Appellate Practice Tip: Know Your Panel at the Dallas COA
August 24, 2021 by Charlene Koonce
Although you’ve finished your legal research and filed your brief, once your panel is assigned, you have a little more research to do. It’s no secret that the composition of the Fifth District Court of Appeals has changed significantly in the last several years. That, and other changes, make knowing your panel more important than ever.
Once all briefing is complete, the Court will schedule arguments or a submission date for your case. That setting also includes assignment to the three Justices who will decide your case. (A different “motions panel” may have decided any motions filed in the case, but the motions panel will almost certainly differ from your submission panel).
You may gain a significant advantage by learning about the assigned Justices: How long has each been on the Court? What were their respective practice areas (or prior benches) and how long have they been licensed? Do any write often or deeply about specific issues, and does their perspective on a pet issue inform anything in your case? Do any of your panel members rely on persuasive federal law or hew closely to state precedent? How often does any panel member write separately from the majority? Do two of the three generally land on the same side of an opinion? Or always vote on opposite sides? Does any member of the panel author en banc opinions, and if so, on what types of issues? Learning what motivates and interests your panel members allows you to frame issues in your case more specifically in supplemental briefing and at oral argument.
Additionally, review the other two cases set on the same date with the same panel. Which case presents the most challenging or greatest number of issues and the lengthiest record? Knowing where your case falls in the “pick order” may speak to the Court’s interest in your case, and potentially the depth of questions to expect during argument.
Educating yourself about these matters should provide an opportunity to improve your argument and prepare your client for next steps.
My recent tenure as the Staff Attorney for the Chief Justice, as well as serving for several months as the Court’s interim writ attorney, provided unique and valuable insight into practice before the Fifth District Court of Appeals. Please contact me at Charlene@brownfoxlaw.com if I can assist with your appellate or mandamus matter.