Tips for Preparing for the Specialization Exam in Civil Appellate Law

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					TIPS FOR PREPARING FOR THE SPECIALIZATION
       EXAM IN CIVIL APPELLATE LAW




              SCOTT A. JAMES
              Chambers Attorney
             First Court of Appeals
           1307 San Jacinto, 10th Floor
              Houston, TX 77002

              JEFF L. OLDHAM
              Bracewell & Giuliani
         711 Louisiana Street, Suite 2300
            Houston, TX 77002-2770




              State Bar of Texas
      CIVIL APPELLATE PRACTICE 101
              September 7, 2011
                    Austin

                 CHAPTER 13
                           SCOTT ALAN JAMES
               3403 Sycamore Shadows, Kingwood, Texas 77339
                                832-527-6909
                         scottalanjames@yahoo.com

EDUCATION          The University of Texas School of Law
                   J.D. May 2001, With Honors, G.P.A. 3.71, Order of the Coif
                   Teaching Quizmaster-UT Legal Research and Writing Assistant
                   The Review of Litigation Law Journal
                   Thad T. Hutcheson Moot Court Semifinalist

                   Louisiana State University
                   B.A. in Political Science, May 1998, Magna Cum Laude
                   G.P.A. 3.82/G.P.A. in Major 4.0
                   Phi Beta Kappa
                   LSU Honors Scholarship
                   LSU Honors College, Sophomore Honors Distinction
                   Leadership LSU

LEGAL              Texas First Court of Appeals, Houston, Texas
EXPERIENCE         Senior Chambers Attorney, 2005 to present
                   Identify and research legal issues raised in appellate briefing, analyze trial
                   court records, write proposed opinions, present recommendations to panel
                   of judges and attorneys at weekly conferences, manage active docket of
                   civil cases, and review and edit work product of attorneys and interns.
                   Focus on complex civil litigation, including appeals arising from
                   commercial disputes, personal injuries, labor and employment, oil and gas,
                   insurance, products liability, arbitration, and statutory interpretation.

                   Andrews Kurth, L.L.P., Houston, Texas
                   Commercial/General Litigation Attorney, 2001-2004
                   Handled all phases of litigation, including pleadings, discovery,
                   depositions, motion practice, hearings, bench trials, and post-judgment
                   remedies. Concentrated practice on complex commercial disputes,
                   products liability, and wrongful death/personal injury. Served major
                   clients from oil and gas, waste management, and transportation sectors.
                   Drafted jurisdictional pleas, summary judgment motions and responses,
                   federal removal documents, appellate briefs, and settlement agreements.

PUBLICATIONS       Texas Civil Standards of Review, South Texas College of Law Advanced
                   Civil Trial Law Conference, February 2008 (Co-Presenter)

CERTIFICATIONS Civil Appellate Law (2010), Texas Board of Legal Specialization

ASSOCIATIONS       Houston Bar Association and State Bar of Texas, Appellate Sections
                   Member-Team Texas Children’s Hospital-BPMS 150 Rider-5 years
                          Jeffrey L. Oldham
                          Partner
                          Houston
                          T: 713.221.1225
                          F: 713.221.2102
                          E: jeff.oldham@bgllp.com




Experience
Jeff Oldham is an experienced appellate attorney who has handled numerous appeals in the U.S. Supreme Court,
Texas Supreme Court, and federal and state courts of appeals. He is Board Certified in Civil Appellate Law, and is a
frequent speaker about appellate issues. Mr. Oldham also regularly works with trial counsel to formulate pre-trial and
trial strategy, write dispositive motions, prepare jury charges, preserve error at trial, and handle post-trial proceedings.

Mr. Oldham served as a law clerk to Chief Justice William H. Rehnquist, U.S. Supreme Court, and to Judge J. Harvie
Wilkinson, U.S. Court of Appeals for the Fourth Circuit. He also served as Counsel to the Attorney General in the U.S.
Department of Justice.

Representative Matters
Franks Investment Co. LLC v. Union Pacific R.R., No. 08-30236; 5th Cir. 2010. En banc reversal on preemption
issues.

Baker Hughes v. Nalco Company, No. 2010-1124; Fed. Cir. 2010. Affirmed preliminary injunction in a patent
infringement matter.

Ibarra v. Harris County, 338 Fed. Appx. 457; 5th Cir. 2009. Reversing contempt order and sanctions findings against
lawyer.

Cameron Int'l Corp. v. Vetco Gray Inc., 2009 WL 838177; Tex. App.- Houston [14th Dist.] 2009, pet. denied. Affirming
summary judgment in breach of contract of a license agreement involving $14 million in past royalties and $50 million
in future royalties.

Key Energy Services, Inc. v. Eustace., 2009 Tex. App. LEXIS 2970, No. 11-07-00314-CV (Tex. App.—Eastland
2009). Reversing damages award in employment and securities dispute.

Lalila v. Parker Drilling Co., 2009 Tex. App. LEXIS 1592, No. 01-07-00281-CV (Tex. App.—Houston [1st Dist.] 2009).
Affirming dismissal of mass torts case based on forum non conveniens.

In re Devon Energy Corp., 2009 Tex. App. LEXIS 4196 (Tex. App.—Houston [1st Dist.] 2009). Granting mandamus
petition to stay litigation pending outcome of separate arbitration.

HCA Inc. v. Aon Corp., 130 S. Ct. 271 (2009). Petition for certiorari asserting due process challenge to application of
Illinois law to nationwide class action.

Aspenwood Apartment Corp v. Link, 129 S. Ct. 997 (2009). Opposition to petition for certiorari involving application of
collateral estoppel to suit against city officials.
Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008). Reversal of summary judgment in religious liberties challenge under
Religious Freedom Restoration Act.

In re Sterling Chemicals, Inc., 261 S.W.3d 805 (Tex. App.—Houston [14th Dist.] 2008). Affirming denial of motion to
dismiss based on forum-selection clause.

Alpert v. Riley, 274 S.W.3d 277 (Tex. App.—Houston [1st Dist.] 2008). Challenging summary judgment on trustee
appointment, order disregarding jury finding that trustee breached his fiduciary duty, and order refusing to set
supersedeas bond for non-monetary part of judgment.

U.S. v. Rapeta-Garcia, 171 Fed. Appx. 562 (9th Cir. 2006). Affirming challenge to criminal conviction (arguing on
behalf of U.S. Government).

Singh v. Gonzales, 175 Fed. Appx. 638 (4th Cir. 2006). Affirming decision of Board of Immigration Appeals (arguing
on behalf of U.S. Government).

Singh v. Gonzales, 191 Fed. Appx. 437 (7th Cir. 2006). Reversing decision of Board of Immigration Appeals (arguing
on behalf of U.S. Government).

Bates v. UPS, 511 F.3d 974 (9th Cir. 2007) (en banc). Amicus brief on behalf of American Trucking Associations, Inc.,
in favor of UPS, in American with Disabilities Act case.

Publications and Speeches
"The Educated Observer's Guide to the Sotomayor Confirmation Hearings," University of Houston Federalist
Society, 2009; Houston Bar Association Appellate Section, 2009.

"Preservation of Error Post-Trial," State Bar of Texas Appellate Boot Camp, 2009.

"Comparison of State and Federal Appeals," Texas Association of Defense Counsel's Commercial Litigation Seminar,
2009.

"Difference Between Federal and State Appeals," State Bar of Texas Appellate Boot Camp, 2008.

"U.S. Supreme Court: October Term 2007," Austin Bar Association Civil Appellate Section, 2008.

"U.S. Supreme Court Update," Appellate Advocate, State Bar of Texas Appellate Section (Winter, Spring, and
Summer 2007 issues).

Distinguished Alumni Lecturer in Law and Politics, University of Tulsa, 2006.

"Taking 'Efficient Markets' Out of the Fraud-on-the-Market Doctrine after the Private Securities Litigation Reform Act,"
97 Nw. U. L. Rev. 995, 2003.

"Constitutional 'Religion': A Survey of First Amendment Definitions of Religion," 6 Tex. F. on C.L., 2001.

Education
J.D., magna cum laude, Order of the Coif, Northwestern University School of Law, 2003
B.S.B.A., summa cum laude, with honors, University of Tulsa, 2000

Certifications
Texas Board of Legal Specialization, Civil Appellate Law
Affiliations
Texas Bar Foundation, Fellow
Houston Bar Foundation, Fellow
Houston Bar Association, Appellate Section
State Bar of Texas, Appellate Section
Houston Young Lawyers Association

Noteworthy
John Paul Stevens Award, Northwestern University School of Law
Faculty Honor Medal, University of Tulsa
Texas Rising Stars, 2010
Coordinating Articles Editor, Northwestern University Law Review

Bar Admissions
Texas

Court Admissions
U.S. Courts of Appeals for the 2nd, 3rd, 4th, 5th, 7th, 9th, 11th, District of Columbia, and Federal Circuits
U.S. District Court for the Southern and Eastern Districts of Texas
U.S. Supreme Court
Tips for Preparing for the Specialization Exam in
Civil Appellate Law                                                                                                                                         Chapter 13


                                                                 TABLE OF CONTENTS


I.     GENERAL CONSIDERATIONS FOR PREPARATION ..................................................................................... 1
       A. Amount of Studying ........................................................................................................................................ 1
       B. Timeline for Studying ..................................................................................................................................... 1
       C. Studying Tips .................................................................................................................................................. 1

II.    PRIMARY RESOURCES TO STUDY .................................................................................................................. 1
       A. We have provided the below list of resources based upon our personal experiences in studying for and
          taking the exam. We found that our review and study of these materials covered most of the information
          on the exam. .................................................................................................................................................... 1
       B. Resource List ................................................................................................................................................... 1

III. POPULAR TOPICS ................................................................................................................................................ 2
     A. Interlocutory appeals. Memorize section 51.014 of the CPRC. This is a favorite for the exam, in the
        essays and multiple choice. ............................................................................................................................. 2
     B. All appellate timetables and deadlines (state and federal) .............................................................................. 2
     C. Findings of Fact and Conclusions of Law. Memorize all deadlines............................................................... 2
     D. Default Judgments and the ways to review them (motion for new trial, restricted appeals, bills of review). . 2
     E. Preservation of error at different points of case. ............................................................................................. 2
     F. Standards of Review. ....................................................................................................................................... 2
     G. Injunctive Relief. ............................................................................................................................................. 2
     H. Texas Supreme Court jurisdiction. .................................................................................................................. 2
     I. Supersedeas. Elaine Carlson’s paper, Reshuffling the Deck: Enforcing & Superseding Civil Judgments on
        Appeal After HB 4, is a very good resource.................................................................................................... 2
     J. Perfecting appeals............................................................................................................................................ 2

IV. EXAM SPECIFICS ................................................................................................................................................. 2
    A. Format ............................................................................................................................................................. 2
    B. Laptop or Handwriting .................................................................................................................................... 3




                                                                                      i
Tips for Preparing for the Specialization Exam in
Civil Appellate Law                                                                                         Chapter 13

TIPS FOR PREPARING FOR THE                                     C. Studying Tips
                                                                    Make your own study tools. Prepare outlines, note
SPECIALIZATION EXAM IN CIVIL                                   cards, timelines, charts, etc. in order to effectively
APPELLATE LAW                                                  digest the detailed information that will be the subject
                                                               of the exam. As the exam approaches, you can
I.    GENERAL         CONSIDERATIONS              FOR          transition your studies from the significant volume of
      PREPARATION                                              resource materials to these more manageable study
A. Amount of Studying                                          tools. These study tools will allow you to focus on the
      The exam is difficult and requires significant           detailed information in the weeks and days
preparation. In years past, successful examinees have          immediately preceding the exam.
advised studying, in total, 100-200 hours. Although
this figure seems daunting, effective studying over the        II. PRIMARY RESOURCES TO STUDY
course of several weeks/months quickly accumulates to          A. We have provided the below list of resources
these totals.                                                      based upon our personal experiences in
                                                                   studying for and taking the exam. We found
B. Timeline for Studying                                           that our review and study of these materials
1. Successful examinees have advised commencing                    covered most of the information on the exam.
preparation during the summer months before the
exam. Successful examinees have also stated during             B. Resource List
previous conferences that applicants who have not              1. All papers from the Civil Appellate Practice
dedicated significant study time by the time of the            Course 101 (also known as “Boot Camp” and “Nuts
Advanced Civil Appellate Law Course in September               and Bolts”). We recommend consulting papers—at
may lack adequate preparation time. While heeding              least to identify hot topics—from courses for the two
this advice is recommended, an examinee who begins             years preceding the exam. These papers provide an
preparation in September may discover that he or she           excellent review of the important details that are likely
has sufficient time to become adequately prepared for          to be tested. It is a good idea to study at least one
the exam, particularly if he or she can set aside large        paper on each of the likely test topics.
amounts of time in the weeks before the exam.
                                                               2. All substantive papers from the Advanced Civil
2. Our advice—do not be too easily discouraged                 Appellate Practice Course itself—including courses for
from taking the exam, even if you have not dedicated a         the two years preceding the exam. Again, it is worth at
significant amount of time to studying up to this point.       least reviewing the list of papers to identify hot topics
If you can begin preparation at, or shortly after, the         that may appear on the exam. You may also want to
date of this course, and you are able to study                 consider consulting the substantive papers from the
consistently between now and the exam, you should              University of Texas State and Federal Appeals
seriously consider sitting for the exam. Last year, a          Conference. If any of these papers are duplicative,
large number of approved applicants elected not to sit         focus on the most recent and comprehensive paper in
for the exam, likely due to the concern that they lacked       order to limit the amount of resource material that you
adequate preparation time.                                     are studying. Note that there are always a number of
                                                               papers presented at the conferences that accompany
3. However, cramming the weekend (or even the full             panel discussions, focus on interesting statistical
week) before the exam will likely not allow for                information, or provide guidance on brief writing, etc.
adequate preparation, even for a practitioner who              While these papers are useful for the practitioner, we
devotes nearly all of his or her time to civil appellate       recommend focusing on the papers from the Civil
work. That is because the exam covers a number of              Appellate Practice Course 101 and the substantive
appellate and trial topics that are not part of the            papers provided during these other conferences.
everday practice of an appellate lawyer.            Our
recommendation is to, whenever possible, make                  3. Comprehensive case summaries for Texas
studying part of your daily routine. You should                Supreme Court cases for the two years preceding the
endeavor to study for one or two hours a day. Daily            exam. We recommend those summaries written by the
review of this highly detailed material is likely more         Texas Supreme Court staff that are presented at CLE
beneficial than significant studying time shortly before       presentations, including those presented at the
the exam.                                                      Advanced Civil Appellate Practice Course and the
                                                               University of Texas State and Federal Appeals
                                                               Conference. Osler’s e-mail summaries can also be
                                                               helpful. Additionally, some successful past examinees
                                                           1
Tips for Preparing for the Specialization Exam in
Civil Appellate Law                                                                                          Chapter 13

have reported compiling a binder of every supreme               III. POPULAR TOPICS
court case within the preceding year(s) and making                    The TBLS provides a list of topics in its Exam
their own notes on each case, or at least the key               Specifications for Civil Appellate Law. The list is
procedural cases and the more significant substantive           comprehensive. Our experience is that the exam is
cases.                                                          wide-ranging, and this comprehensive list of topics is a
                                                                fair indicator of the breadth of the test. We provide the
4. The Texas Rules of Civil Procedure, Texas Rules              below list of topics to place special emphasis on those
of Appellate Procedure, Texas Civil Practice &                  areas of the law that successful examinees have
Remedies Code, and Texas Rules of Evidence (but                 reported as being traditional favorites for testing.
only those evidence rules related to topics discussed in
the Exam Specifications for Civil Appellate Law that is         A. Interlocutory appeals.      Memorize section
available on the TBLS website).           In particular,           51.014 of the CPRC. This is a favorite for the
applicants should read and re-read the Texas Rules of              exam, in the essays and multiple choice.
Appellate Procedure.
                                                                B.   All appellate timetables and deadlines (state
5. The Federal Rules of Civil Procedure and Federal                  and federal)
Rules of Appellate Procedure (see our discussion
below of the federal questions). Again, the Federal             C. Findings of Fact and Conclusions of Law.
Rules of Appellate Procedure are more significant.                 Memorize all deadlines.

6. O’CONNORS TEXAS RULES—CIVIL TRIALS.                          D. Default Judgments and the ways to review
Review the entirety of this resource, but pay special              them (motion for new trial, restricted appeals,
attention to the introduction, which outlines the recent           bills of review).
statutory, rule, and common law changes. This section
highlights areas of law that are evolving, and it               E.   Preservation of error at different points of
provides good testing material. The exam, in years                   case.
prior, has tested on these evolving areas to ensure that
examinees are current on significant changes in the             F.   Standards of Review.
law. Also pay special attention to those trial rules that
frequently are the focus of appellate practice (i.e,            G. Injunctive Relief.
preservation, findings of fact/conclusions of law, etc.)
                                                                H. Texas Supreme Court jurisdiction.
7. O’CONNORS TEXAS RULES—CIVIL APPEALS.
Pay special attention to the introduction, for the              I.   Supersedeas.      Elaine   Carlson’s   paper,
reasons stated above.                                                Reshuffling     the    Deck:   Enforcing   &
                                                                     Superseding Civil Judgments on Appeal After
8. O’CONNORS CIVIL PRACTICE & REMEDIES CODE,                         HB 4, is a very good resource.
with annotations for the CPRC provisions described in
the Exam Specifications for Civil Appellate Law on              J.   Perfecting appeals.
the TBLS website. The relevant provisions of the
CPRC include, but are not necessarily limited to,               IV. EXAM SPECIFICS
Chapter 9 (Frivolous Pleadings & Claims), Chapter 10            A. Format
(Sanctions for Frivolous Pleadings & Motions),                  1. Essay Questions
Chapter 15 (Venue), Chapter 41 (Damages), and                        In years past, the essay portion of the exam has
Chapter 51 (Interlocutory Appeals).                             been given in the morning. Generally, there are three
                                                                separate essay questions for a 3 hour morning exam
9. O’CONNORS TEXAS CAUSES OF ACTION. But                        period. Each of these questions contains differing
only for those areas that are described in the Exam             numbers of subparts. Plan to generally spend one hour
Specifications for Civil Appellate Law. Example—                per question. Limit yourself to a maximum of one hour
DTPA.      Familiarity with these matters will be               on the first question. You will be able to return to that
important for the essay questions.                              question if time permits.
                                                                     Special note for repeat takers—it has been
                                                                reported that it is common for a question from the prior
                                                                year’s exam to reappear in some fashion the following
                                                                year. So, if you are a repeat taker, come prepared on
                                                                the topics tested in the prior year.
                                                            2
Tips for Preparing for the Specialization Exam in
Civil Appellate Law                                                                                       Chapter 13

2.   Multiple Choice Questions                                  which to complete the essay questions is challenging.
     There are approximately 100 multiple choice                However, if you are more comfortable with
questions for a three hour exam period. 80 of those             handwriting, stick within your comfort zone.
questions pertain generally to Texas appeals, 10 pertain
to federal appeals, and 10 pertain to ethics. Many of
these multiple choice questions are presented in a
complex format that requires the applicant to consider
the correctness of several possible answers. Pay
special attention to the call of the question. Many of
the questions may seem to include multiple correct
choices. Choose the “most” correct where necessary.
Keep track of time as you go through the multiple
choice questions, and do not let yourself get caught up
on any one question. Like the MBE portion of the bar
exam, these questions are difficult.

3.   Ethics
     The 10 ethics multiple choice questions are not
specific to the specialization exam for civil appellate
law, but rather are provided to all examinees for all
specialization exams.        Because of this format,
preparing for the ethics questions is difficult. Past
examinees have given mixed advice on the helpfulness
of preparing in any significant detail for the ethics
questions. Our experience is that the ethics questions
are detailed and fact-sensitive, and that these questions
would be difficult even with substantial time spent in
preparing for these questions.          We recommend
reviewing/reading the ethics rules once, but devoting
your preparation time to other areas. This is especially
true if you feel that you are in a crunch and are worried
about whether you are adequately prepared for the
appellate questions.

4.   Federal Questions
     There are also 10 multiple choice federal
questions. We recommend paying special attention to
those areas where the federal and state rules diverge.
But past examinees have given mixed advice about the
helpfulness of preparing for these questions, and the
authors have slightly differing views. One author
studied only the Comparison of State and Federal
Appeals paper presented at the 2010 Civil Appellate
Practice 101 Course. On the other hand, because these
questions are generally detail specific, this is an area
where examinees (even those who do not practice in
federal courts) can obtain credit with adequate
preparation. O’CONNORS FEDERAL RULES OF CIVIL
TRIALS provides additional helpful material, including
timetables.

B.   Laptop or Handwriting
     You may take the essay portion of the exam on a
laptop or by handwriting. Most examinees report
taking the exam on their laptop. This has been
generally recommended because the time period in
                                                            3

				
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