Texas is one of the few states that offers a certified specialty in civil appellate law. In this episode, Kelley Morris, a partner at Wright Close and Barger in Houston, joins Jody Sanders and Todd Smith to talk about her experience going through the Texas Board of Legal Specialization process and successfully preparing for and taking the notoriously difficult specialization exam. Kelley also discusses her career, including a clerkship with the Texas Supreme Court, practicing in different-sized firms, and a mid-career federal clerkship. She offers interesting insights, contrasts, and takeaways from her extensive experience.
Our guest is Kelley Morris, who is at Wright Close in Houston, a place where we have many friends and some past guests. Kelly, thank you so much for joining us.
Thank you for having me.
I know you haven't been there long. Let's talk about your background for some of our audience who may not know you. Tell us a little bit about yourself, where you come from, and your path into the law.
I am the child of two CPAs turned lawyers who at one point had their own law firm, Clark & Clark, my maiden name. I grew up in Austin and Fort Worth. Depending on the circumstances, I will give you one of those answers. I graduated from high school in Fort Worth. I went to college at UT. I realized in my sophomore year that I did not want to go to medical school. I got talked into law school by my mother, which was something they had always told us, "Do not go to law school."
I ended up following in her footsteps and going to Baylor for law school with the intention of being an appellate lawyer. I'm a big nerd, and my mom sold me on law school with the idea of being an appellate attorney. That was what I went into law school with and focused my experiences and schedule on what would prepare me best to be an appellate lawyer. I followed up after graduation with a clerkship at the Texas Supreme Court, which I think Todd did that as well. I'm part of the elusive group of briefing attorneys. I clerked for Justice Paul Green, who was a guest on the show a few years ago. I then went to Bracewell in Houston as my first law firm job. I've been in Houston ever since. It's almost ten years now.
Before we go too far, I know you didn't go to TCU, but you have a TCU connection which is pretty cool. Since we're two Horned Frog hosts on this show, maybe you'd share it.
My mother's parents met at TCU before World War II. My grandfather was the cornerback for the TCU football team at that time, which until fairly recent history was known as the best football team in the history of the program. He was on the Orange Bowl team. When he would come to visit, we would get to go to the Letterman Club in the stadium. Even though my parents didn't go to TCU, I grew up a little bit of a Horned Frog fan. Living in Fort Worth, it's hard to not be a TCU fan.
Those are cool connections. Those are some historic teams. I'm glad that we've made some new history in recent times. That's fantastic to have that experience.
I also wanted to talk about your Supreme Court clerkship. Maybe share your general experience. You were there at an interesting year too. Let us know a little bit about that experience.
When I was in law school, I originally was only focused on appellate. Maybe in a little bit, we'll touch on my detour into the world of trial law, but I was looking only to do an appellate clerkship. I focused primarily on applying for Supreme Court positions and Fifth Circuit positions. Fortunately, I got an offer to work for Justice Green.
Justice Green at the time was the third most senior judge on the court. You've had guests before talking about the Texas Supreme Court clerkship experience. One thing that's unique about it for recent law school grads is that you have a big group of clerks that all start on the same day and end on the same day. You are like a class of clerks for all the court. Everyone is together all the time. It doesn't matter which judge you work for. It's a big group of clerks, which is very different than a lot of other clerkship experiences. At the time, each judge had two clerks. Now, some are opting for three.
There were eighteen of us fresh out of law school. Those are some of my closest friends still to this day. About a month into my clerkship in September 2013, Chief Justice Wallace Jefferson announced his retirement from the court. We were all fresh on the court. Everyone was like, "What does this mean for us? What do we do?" Especially his two clerks.
The governor worked very quickly to appoint a replacement judge. That was when Justice Jeff Brown was appointed to the court. Chief Justice Hecht was named as the chief. We had a lot of swearing in and a lot of investitures that year, which was exciting. As a clerk, you get to go to the capitol and witness it. Justice Scalia swore in Chief Justice Hecht. We got to do a meet and greet with him as the law clerks.
It's hard to believe that has been ten years ago. It doesn't seem like it was that long ago. You say September 2013. It is a cool experience to participate in investitures or even as an observer when we've got a Supreme Court justice being invested, but also Justice Scalia coming over. It's one of those very ceremonial experiences for lawyers generally. It's something that people don't think about that much unless they're part of the appellate bar or local to Austin or have some relationship with the judges. I always enjoy it when I get the chance to go over and observe. It's done in the Senate chamber as I recall. It's a pretty cool experience.
All the clerks are crowding on the balcony in the Senate chamber to watch. One of the other neat things about when those two investitures happened is that Justice Brown's investiture was in early November. That was right after we had gotten our pass results from the bar. My parents were able to come up to the courthouse and Justice Green swore me in at the Supreme Courtroom. It was the same day as the investiture. Everybody was already all dressed up and there was a big reception. It's almost like we had our own little private party for our swearing in.
You mentioned everybody starting at the same time, your class of clerks. I recall my class of clerks doing that too. I recall getting a rather stern talking to on day one by the then clerk of the Supreme Court that was two clerks ago. We've seen and heard a lot in the news in recent times, including some legislation about maintaining the confidentiality of court work products in advance of their release. Does that still happen? Does Blake take you guys aside and say, "Here's the deal. Don't you dare leak an opinion?"
We definitely had a talking to on the first day. I can't remember if it was Blake or the counsel for the court, but there was a talk. One of the things I remember being stressed is that you're never to say that you wrote an opinion because you did not actually write it, even if you helped to draft it. It's the court's opinion. Each judge handles drafting opinions differently. With Justice Green, we split our opinions pretty evenly between the clerks to draft the first round. Some of the judges take their own first rounds, but Justice Green had us write it. There were opinions published that I did a lot of the work on and I knew those cases very well. Which ones came from me, the co-clerk or the staff attorney is something that has to stay inside the court.
Civil Appellate Law: As clerks, you're never to say you wrote an opinion because you did not write it. Even if you helped to draft it, it's the court's opinion.
That was my biggest takeaway. Also, generally, in any case that's pending or even after it's been decided, how the sausage gets made is something that we do not talk about. I remember over the holidays, I'm on a ski trip and I had printed out a binder for one of the cases I was working on. Fortunately, I didn't put anything on the cover of the binder. It didn't say what case it was.
I'm sitting there in the airport in Phoenix between flights. Somebody sits down next to me and starts chatting. It turns out they're a lawyer in Texas and they have a case pending in the Texas Supreme Court. I'm hiding my binder. It's one of those first moments where I realize that these cases are real people and real lawyers out there. You never know where you're going to run into someone. That also translated well into practice, learning confidentiality and privilege, and what you can and can't talk about in casual conversation with people.
That has certainly become a big item of discussion in the last couple of years too. In fact, I don't know if it passed or not. Todd, do you know if they passed that bill in the legislature about criminalizing releasing judicial materials?
I want to say it did, but I can't recall. I know it got far in the process. My opinion is other things probably should have taken priority over that, but I don't know the answer for sure.
We'll have to wait for Jerry Bullard to come back to tell us the answer. From the Supreme Court, you've had an interesting career. You started out in big law. Did you immediately move into appellate straight out of your Supreme Court clerkship?
No. At Bracewell in Houston, which was where I started, I was officially in the litigation section, although appellate falls within litigation. I was on the same floor as the two appellate legends at Bracewell, Jeff Oldham and Warren Harris. I did get to do work for them here and there where they needed assistance. I was officially working in one of the trial groups that did a lot of patent litigation. That was very different than what I had done at the Texas Supreme Court. I got thrown into a patent infringement lawsuit in Marshall, Texas. I got to go to trial about six months in, in front of Judge Rodney Gilstrap. That was a very exciting experience. I've now realized I was the appellate attorney on the team as much as you can be as a second-year associate.
They had me doing a lot of the writing. Everyone else was engineers or most people were like, "Put this in plain English." I got to work hand in hand with Jeff Oldham on the jury charge. When that case went to trial, he had something that was a little more important going on. He was arguing a case in the U.S. Supreme Court. I got to go to that case or go to trial as the appellate lawyer, which in hindsight is mind-boggling that a second-year associate would be handling a lot of the error preservation issues in a big federal case. That was a great experience. Unfortunately, it didn't go well for our clients. I still got my feet wet right away in Marshall.
About a little over a year later, I'd been at Bracewell just shy of two years. I started thinking I wanted to be somewhere a little smaller so I could get more of that hands-on experience. I realized that my trial experience right off the bat was not necessarily the norm there. I ended up going to Gray Reed & McGraw, which is a mid-sized firm. It technically has three offices, Houston, Dallas and Waco. I was officially a litigation associate, but they had recently brought in Justice Jim Moseley in the Dallas office and Dylan Drummond was also in the Dallas office.
We were trying to build up an appellate practice. I got to work on more appeals. Somewhere along the lines, I realized that what I wanted to do was to be an appellate attorney but doing a lot of the work embedded in a trial. I liked the dispositive motions, the error preservation, and the type of issues that come up in the trial. I did not like discovery. Although to be fair, I don't think anyone does. I was a little confused as a young lawyer. I thought that appellate lawyers just sat and wrote briefs. They read the record and wrote the briefs. Every once in a while, they get to argue a case. While I did enjoy that, I don't think anybody that goes into appellate law doesn't on some level enjoy research and writing. I wanted to see more action.
It took me a number of years before I realized that what I liked doing in a trial is appellate work. That was where I ended up about eight years in, deciding that I wanted to launch myself full time into appellate work. I had been preparing for several years to take the board certification exam as soon as I got the experience. I was getting ready to take the exam. It was September 2022 from the board exam or maybe less.
I had a very unique opportunity to do a federal clerkship that would start right away for Judge Lynn Hughes here in Houston in the Southern district. He had an immediate need for a law clerk. He had a clerk abruptly leave with about a year left in her term. He had one clerk who was fresh out of law school. He needed somebody that could come in and start right away and had some idea about litigation and how things work.
I talked to my husband because that is a crazy decision, and I needed to make sure that he was on board with that. I went and interviewed with Judge Hughes the next day. I got a phone call later that day offering me the job. He wanted me to start immediately. I said, "Can I wait two weeks until after the board certification exam?" He said, "If that's what you want to do."
I gave notice at my law firm that I was going to clerk, which was a very odd thing to do as a ninth-year associate, but everybody was very supportive. I tried to wrap up all my cases, including a Texas Supreme Court brief that was due the day before the board certification exam. I studied as much as I could. I turned in my laptop and drove to Austin to take the exam. The next week, I started my federal clerkship with Judge Hughes.
What a whirlwind. I'm glad you have those few weeks behind you.
I walked out of the board certification exam with no expectation of passing. At the very least, I thought it was a great experience because then I could go into it the next year with eyes wide open and knowing exactly what the test was like. I was shocked when I got the email that I passed in January. "I was shocked," would be an understatement. I don't think I'm a big crier, but I cried when I saw that email because it was such a surprise. I knew that would set me up to do appeals exclusively when I finished my clerkship.
You mentioned going back as a ninth-year attorney. That's not the traditional clerkship path. Some people do go after a few years but usually not that late. How was the experience transitioning from doing advocacy for that long to being on the court side again?
It was nice. Not every clerkship is going to be like this, but Judge Hughes is very old school. It is an appropriate word for him. We did not email between the judge and the clerks. We did not have laptops. It was hard work when I was in the office. When I had to leave the office, I really left the office. I appreciated that so much more after having been in practice that I could disconnect when I left work. It was interesting seeing different styles of litigation. Unfortunately, no cases went to trial while I was there.
Anybody who has practiced before Judge Hughes knows that he has lots of in-person hearings. He does not believe in Zoom or phone conferences. I got to see plenty of lawyers in person in the courtroom and see lots of different styles. There were definitely things where I was like, "I don't know if I would've done it that way," but there were other times where I was like, "That was a great move. I'll have to keep that in mind." Especially coming at it from an appellate perspective, seeing how the orders get written, and seeing the motion practice helped me to understand what is going to be the most helpful for the trial judge to preserve error here, and to get the exact ruling that you need. That was a helpful perspective.
Also, something that most people know but is reinforced when you're a clerk is that the attorneys need to be nice and respectful to everybody that they encounter in the courthouse. When there are attorneys on a case that have a reputation for not being very nice to the court staff, that may or may not impact how the clerk feels about the case and how quickly they want to get the case resolved, or the case manager. Those case managers have a lot of control over the federal dockets. That's somebody that you definitely want to be friends with and not an enemy of.
That's good advice. When you first started talking about your federal clerkship, I was thinking, "It is interesting that you come off a Supreme Court clerkship, had time in private practice, and wanted to focus on appellate work." Other than the circumstances in which the clerkship came up, I was thinking, "Why District court as opposed to Fifth Circuit or another circuit court?"
The way that you explained it answered my question. You mentioned getting in tune with the advocacy that appellate lawyers do in trial courts, and what's effective and what's not. That struck me. It makes a lot of sense to me now, especially because federal court is paper and writing intensive as opposed to state court practice. That experience could help build your skill and help you understand even better what goes into being an effective appellate advocate in a trial court.
There is one other big learning point working for Judge Hughes. I had the good fortune of working with some of his former clerks when I was at Gray Reed. I knew what type of environment he had and his style. One of his jobs as a judge that he sees is to train his law clerks how to write and train the lawyers. I'm sure that there are plenty of lawyers out there who have seen an order or something uploaded from Judge Hughes where he has taken a red pin to the draft order and changed things or struck out words that he thought were unnecessary. I tried to go into the clerkship trying to learn and not be stuck in my ways because I've done this for a number of years and I know what I'm doing. I just wanted to learn everything that I could from him.
He's a big fan of Bryan Gardner. He has thoughts on every single piece of writing that comes across his desk no matter who wrote it. He'll even correct his own writing ten different times before he can get it to the most succinct form of an order that is possible for better or worse. The clerkship also had a big impact on my writing. I considered myself to be a good writer going into it, but I definitely learned a lot from him. I'm honored that I had been one of his final clerks. As most people know, he took senior status in February, which is why my clerkship was cut a little short. I learned a lot from him.
I also had the unique privilege of working for Judge Drew Tipton for the last couple of months. He took over Judge Hughes's civil docket in Houston. I stayed with my cases that were transitioned to Judge Tipton and got to stay on those for a couple of months and see how he did it. Not only did I get to learn about Judge Hughes, but I also got to learn a little bit about how Judge Tipton operates, what he likes and what he doesn't like, and his writing style.
You did a clerkship right out of law school and then you did one later in your career. Do you have views on maybe the value of that experience for someone? Would you say people should go right out of law school and try clerkship? Do you think it may help to have a year or a couple of years of experience before trying to seek that out?
This isn't directly an answer because it's not necessarily what I would recommend. Practically, right now, if you want to do a Fifth Circuit clerkship and even some of the Texas Supreme Court clerkships, they're hiring several years out. It is not necessarily feasible for someone to graduate from law school and go straight into a Fifth Circuit clerkship. I think that's a good thing. That means that those people that are doing Fifth Circuit clerkship are being forced to either go work for a few years beforehand or line up a District court clerkship beforehand. They get to see more than one perspective.
Going straight to the Texas Supreme Court out of law school was a great experience for me. It framed the way I approach the law. The Texas Supreme Court clerkship is a good one to do right out of law school. What you do at the Texas Supreme Court is similar to what you do in law school. It is your opinion writing and your memo writing. Along the same lines, it's the way you were taught to think in law school. District court clerkship is a completely different animal. My co-clerk was straight out of law school. He went to Emory. Most of the other clerks that I got to know in the courthouse were also straight out of law school. Never having tried a case or taken discovery, it would be overwhelming to do a District court clerkship right out of law school.
A lot of people do it. Most people do it and do it very well, but I definitely felt like I was in a much better place to understand what was happening in the case having gone through it myself. There is a lot of terminology that you don't necessarily learn in law school, particularly if you go out of state. Having that trial experience beforehand made me a better District court clerk. Here at Wright Close & Barger, I have several colleagues who went back to either a clerkship or a staff attorney position several years into practice.
To be honest, that was one of the things that attracted me to this firm. I think the type of lawyer that would leave private practice and go back to clerk is the type of lawyer I would get along with, somebody who enjoys legal reasoning and opinion writing, and cares more about the work than necessarily the paycheck. At this point in my career, I see a big benefit to practicing before you clerk. Not only because that is practically how it's happening nowadays, but it would also make you a better clerk, particularly with the District court clerkship.
Civil Appellate Law: When you enjoy the practice of legal reasoning and opinion writing and care more about the work than the paycheck, it will make you a better clerk.
That said, it could be very challenging to go from private practice salary to clerking. You have to make sure that you are planning for that and that your support system is on board with that. I have two kids and a husband. Going back to clerk definitely meant some sacrifices for my family. I had to make sure that everybody was on board with that before I went in for my interview.
Hopefully, you'll get more than two weeks' notice usually about your potential clerkship.
I've seen people now that do a District court clerkship, and then they go work for their firm. They were summer associates for one year, and then go back to their Fifth Circuit clerkship. There are all different combinations now because of how far out these appellate clerkships tend to be hiring. In that case, if you know you're going to be going back to clerking, you approach your year of working in a different light. You save that money. You get ready to go back into public service.
It seems like the folks that are going back to clerk know that they want to do high-level appellate work and they're committed to the experience of getting that federal clerkship. I've seen some, including your colleague Raffi Melkonian, who did it as a reset and pivoted to appellate practice from there. It's awesome to go and do it. I'm a little jealous of your experience clerking in a federal district court. What a great combination of experience for you and a great way to set yourself up for what certainly is shaping up to be a great career as an appellate lawyer with a great firm.
That's getting to be more and more common. You have to fill in the years beforehand. In hindsight, those years that you fill are sometimes more helpful.
Another question about your career. You've done big law, did mid-size law, and now you're doing a boutique. I recognize you've only been there for a month, but I'm curious about your perspective on the different firms and approaches in the development of an appellate career in those types of places.
Each of the three places I've been has been very different in terms of how they treat both litigation and appellate practice. The mid-size firm I worked for was very litigation focused. It was a full-service firm, but valued litigation more than some full-service firms do. Bracewell has a top-tier appellate group that is a very small group. That's a different atmosphere than some of the other big firms that have appellate groups. Where I am now, Wright Close, only does trials and appeals. The downside to being at a boutique is that you don't have the opportunities for business development that you may have at a full-service firm.
Personally, that hasn't affected me much. I can definitely see where if you're somebody at a firm or you're getting a lot of business from the transactional attorneys, you have a great client that the firm has worked to build a relationship over the years, and you're going to automatically be getting their appellate work, that's nice to have.
The other big advantage of being at a full-service firm was when I had subject matter-specific questions, I can call up the transactional lawyer that did that exclusively. I can call up the oil and gas title lawyer or the M&A lawyer and say, "Am I using this phrase correctly? Can you explain exactly how this deal would've happened and what this waterfall spreadsheet means?" All those other big words that are not things that I deal with on a daily basis.
Being at a boutique, I have to reach outside the firm if I want some of that advice. You have to know how to ask those questions without breaching any type of privilege or revealing too much about the case. We have a focus on trials and appeals, and that is a fun place to work. We have all-firm lunches where the young associates have to present Texas Supreme Court opinions that have been recently released. To practice for oral argument, they get peppered with questions by the partners.
Any type of appellate event going on in the state pretty much, our firm will sponsor and you'll have the full support to go to it. Do you want to go downtown for the Houston Bar Association appellate luncheon? There's going to be a big group going. If you want to speak on some topic somewhere and somebody at the firm has already done it, they can put you in touch with the right person.
Being surrounded by lawyers with many years of appellate experience and that have been involved with every level of bar association makes it easy to do what I do. It's also fun to work with people who are as nerdy as I am. Most appellate lawyers are nerds and that's okay. To be surrounded by people who get as excited about things as I do is fun. I got a new legal keyboard and I joked, "This is the nerdiest purchase I've ever made. It's going to change my life." I can tell my coworkers bought the same and they were as excited as I was. I told my husband and he was like, "How much did you spend on that?"
I was thinking it was the epitome of appellate nerdiness for a firm to have all-firm lunches in which there's a presentation on Texas Supreme Court cases. Friday comes around and especially at this time of the year, the orders list can be long. It's hard to dive into all of the cases. That's a neat thing that you all do. We may need to steal that idea.
The other thing that has been enjoyable at the firm and being at Wright Close & Barger is the number of victories that we have had. It's not just to brag about the firm, but it goes more towards how many cases and matters the firm as a whole is handling at any one time, how many trials we are supporting, and how many appeals we have pending. My last two firms were busy, but oftentimes you only have a handful of big appeals going at one time. When you get a decision of victory, it's a big deal because it only comes every few months.
Here at Wright Close, there's an email every single day about a trial victory or an appeal victory. That's not to say we win every case, but we have such a high volume of trial support roles and appeals going on at any one time. Everyone here is busy and everyone here has lots of experience. You can always find somebody to give you advice or answer a question or has been in a situation before that you don't know what to do.
One of the other things we wanted to talk about, and you alluded to it earlier, is the board certification process. I know you took the exam right before your clerkship, which I can't imagine. Walk us through maybe even the process of getting started and the application.
I know in the past, you've had some appellate legends in the state on. You've had Robert Dubose who talked about the history. I obviously don't have that experience and I can't talk about the history of board certification and the development of the appellate bar. I think you had David Keltner on as well. Coming as a baby appellate lawyer, I knew from about my 2nd or 3rd year of practicing law that I might want to focus on appellate law one day.
I knew that it was a specialty where being board certified matters. Not every specialty carries the same weight in your practice area, but civil appeals is definitely one of those areas where being board certified makes a difference in terms of getting business and even making partner in some places. That was something that I was interested in. The board certification process is you have the test, which is difficult and I'll talk about that in a minute. The bigger issue is getting the experience needed to sit for the exam. That takes many years to build up.
My first tip for younger attorneys or attorneys that are thinking about being board certified is to focus on what type of experience you need to be able to be qualified for the board examination. In addition to having practiced for five years, there are very specific experience requirements. What I did is I made a spreadsheet of the different requirements. You can go to TBLS or the Texas Board of Legal Specialization website. They have all these documents on the website, but I'm going to warn you that it's not the most user friendly and it's not set forth in the clearest way.
The first hurdle in getting board certified is whether you want to put the energy in to understand what you have to do and what the test actually is. You have to have handled twelve appeals where you handled all or a substantial part of the appeal. In addition to that twelve, there are other requirements. You have to have four oral arguments. A certain number of them have to have been in the last three years. A certain number of them have to have been to final judgments. A certain number of them have to have been to the high court. That's the U.S. Supreme Court or the Texas Supreme Court in our case.
You want to start keeping track of your appeals early on so that you know if you're meeting those requirements or not. I would have the list of the case. I would have the year because, remember, a certain number of them have to have been within three years. At some point, the cases start to roll off and whether it meets all these various requirements. Something that I didn't do from the beginning that I wish I had was also keeping track of who your opposing counsel was because that is the information you need on the application. It can be hard to go back and look that information up ten years later, and then a short summary of the case.
If you can get started with that early in your career and use that as a roadmap, that would be a big help. How to get that experience? Ask for it. Work with your mentor if you have one. Make it clear to everybody that you want to get board certified. In our community, everybody appreciates and understands that. They will try to get experience for the people who need it for board certification.
Civil Appellate Law: Make it clear to everybody that you want to get board certified because everybody appreciates and understands that, and they will try to get experience for the people who need it for board certification.
Don't be afraid to put that in your brief in your reason for requesting an oral argument. That's probably not going to be the only reason they grant oral arguments, but the Court of Appeals justices do consider that when deciding whether to grant oral arguments. If you're in Houston, the Houston Bar Association Appellate Section Pro Bono Committee is another great thing to get involved with. There are other bar associations that do similar programs in the other courts of appeals. Get involved on that committee and make it known that you want to take cases. Those pro bono cases, you're going to get to argue them.
My first two oral arguments were pro bono cases. It's still terrifying, but the judges know that you're doing the pro bono program. They know probably that you're doing it to get board certified because you've put that in your brief. They're not going to go easy on you, but they might be a little more gracious with you and understand that you might be a little nervous because you don't have a lot of experience with oral arguments.
Once you finally get all those requirements in, you have to apply in the spring. They normally open applications at the beginning of March, and you have about a month to get it done. They've extended the deadline into April. You have to go through and detail all of your cases, the court, cause number, result, opposing counsel, etc., and then you get your five references. Also, be keeping that in mind because they can't all be the people from your law firm and they shouldn't. Once you hit submit on that, you have five months or so until the exam. You have about 2 to 3 months, maybe even longer until you even know if you get to take the exam. In my opinion, the worst part of the process is this, "Do I start studying or do I wait?" The official answer is you start studying.
You can never start too early.
It can be hard to motivate yourself to study when you don't know if you're going to be taking the test or not. You find out in July typically that you've been approved to take the exam. I got the notification on July 31st. It was the very last day that they said we would hear. I was convinced that I didn't get approved. It was 5:00 on July 31st that I got the email that I could take the exam. It's transitioning then to how you study for this test. The test is on a single day in October. It has been in the last few years at the AT&T Conference Center at UT in Austin. It's a full day. In the morning, it's three hours of essays. In the afternoon, it's three hours of multiple choice.
Civil Appellate Law: It can be hard to motivate yourself to study when you don't know if you will take the test.
The most bizarre part of the process is that you are in a room with people that are taking all of the other subject matter board certification exams. People next to you will not be taking the same test as you. Everyone has the same format, but everybody is taking a different test. Probably, no more than ten people a year take the appellate exam and civil appellate exam. When you go up to get your test and the proctor sees the subject matter, they're going to suck in when they see civil appellate and appreciate you're taking one of the hardest exams there.
Taking the exam itself is a surreal experience. It brings you back to your law school days when you're in a classroom that's stadium seating. That 5- or 6-month period between applying and taking the test is where everything has to happen. The Texas Board of Legal Specialization gives you an outline of the topics to be covered on the civil appellate exam. It is the least helpful document you'll ever see.
I was going to ask you about that because my recollection of it was essentially it boils down to knowing everything about Texas appellate practice.
It's not just Texas appellate practice. It's everything about civil litigation.
Are they still testing some federal too?
Yes. It's primarily state practice, but it does test over federal. The biggest issue with the federal is knowing where the federal system deviates from the state system, like where the differences are. I have the exam outline here like, "1) Intentional torts. 2) Negligence."
I do remember there being a very heavy emphasis on civil procedure and not necessarily limiting the test to appellate procedure. You're bringing back flashbacks from many years ago for me, which was that outline was the least helpful document I've ever seen.
You can't fault them. It's an interesting exam. Most of the other exams are subject matter specific. As we all know, appellate law is not a subject matter. It's more of a procedural issue that comes up in any lawsuit. You have to know everything about a lawsuit from the time it's filed to the time the mandate issues, which by the way, that's something that I had never given a whole lot of thought to. What is definitely on the exam is what happens at the end of the appeal.
It's important to know.
You have to know how you post a bond, how many days after the judgment does the mandate issue, and what happens if it's reverse and remand or reverse and render. It is a lot of material. My biggest piece of advice for studying is to think about how you studied in law school. You're the same person you were in law school. You maybe are more efficient now than you were then, but if you are the type of person that likes note cards, it is probably still going to be the best method for you. I am a kinesthetic learner. I like to write things out. I physically write them or type them in law school, making the outlines themselves, and then condensing them into a narrower outline. That was how I studied and learned best, which was true for the board exam.
I took my O'Connor's Texas Civil and Appeals and the federal versions. I took the outline that TBLS gives you for the exam. I made a Word document out of it. I went to each chapter of O'Connor's that was relevant to each of the topics and wrote a summary in my outline. That took several months. The making of the outline was studying. If you're the type of person that making an outline isn't how you learn best, you need to get it onto flashcards, or you need to be teaching it to someone else, then I would recommend you get that outline done much sooner than I did. You're going to need the time to make the note cards. There are some apps you can use that are similar to note cards. I didn't finish my outline until about a week before the exam.
For me that works, but for a lot of other people that might not be a good option. One other study aid that would be super helpful, and I learned about this from one of your episodes, is the Practitioner's Guide To Civil Appeals In Texas book that was put out by Robert Dubose as the editor-in-chief, but pretty much all of the Alexander Dubose & Jefferson lawyers had a hand in it. It is a great resource for practitioners, but it is also like this is the material on the board examination. If you only study one thing, that would be my recommendation.
I also tried to immerse myself in appellate law. I listened to podcasts and CLEs when I was in my car or walking. You have to have 60 hours of continuing education on the topic to sit for the examination. Another tip is that to do the 60 hours, you'll probably hit the requirements to join the Texas Bar College. Texas Bar College essentially means that you do significantly more continuing education than is required to keep your bar license.
Once you join the Texas Bar College, you have access to the Library of Texas Bar CLE materials, which is another good resource for studying the materials from the Advanced Appellate Seminar that the state bar appellate section puts on every fall, the 101 Appellate course that the section puts on, and then there are also some other great Texas Bar CLE courses on evidence and discovery and civil litigation. Those materials are helpful as well. You will probably be eligible to join the Texas Bar College as a result of getting enough CLE and sitting for the exam. Take advantage of that and join the Texas Bar College. You're supporting the bar and you also get access to all of the materials in the Texas Bar Library.
With the timing of the exam being in October, I also remember one little bit of wisdom that's also a tip. It is to make plans to attend 101 and the Advanced Seminar, which usually happens around Labor Day. You will get the latest thinking of the people who are at the very cutting edge of what's going on in appellate practice. I don't know if this is still the case, but when I was taking the exam many years ago, you would be stupid not to attend and study those materials closely and know what the issues are because those were frequently tested on the exam.
I received that advice as well. Anybody that practices civil appellate law should be attending the Advanced Conference every year. As you're preparing for the exam, attending the 101 and the advanced course is super helpful. On one hand, it feels like it's too close to the exam to be useful. It's like, "I've already learned so much. What good is this going to be?" Even if it's just review, sitting in that room and hearing these talks is studying. It's definitely worth the three days out of your schedule to go to Austin. The other course that's very helpful is UT. The University of Texas puts on a class and a seminar on federal and state appeals. It's two days as well. I attended both of those the summer before I took the exam.
Civil Appellate Law: Anybody practicing civil appellate law should attend the Advanced Conference every year.
The UT course has a little bit more of a focus on federal appeals than the state bar course does. That was helpful. There are a lot of overlaps between the two courses, which is good because you see, "If this is being talked about multiple times, I better know it. If this is something that all these appellate experts think is important, then it's probably going to be on the examination." A little plug for the state bar course, the 101 course and the advanced course both have a lunchtime brown bag presentation on the board certification process.
You don't get CLE credit for it and you don't get free lunch, but you should definitely attend no matter where you are in your practice if you have not gotten board certified yet. If you're one of the Supreme Court clerks that are attending because you're required to go to the 101 course as a Supreme Court clerk, stay for the lunch. A lot of it is going to be some of the information that we talked about, but there will be more.
I'll be giving the talk at the 101 course. Somebody else will be giving the talk at the advanced course. If you have very specific questions, I remember thinking at the lunch last year, you're getting very close to the exam and you start thinking about the practicalities of it and the logistics of the test. It can be helpful to talk to people that have recently taken it about what you can bring with you. Should I bring a water bottle? Do I need a snack? The little things that start to bother you.
I'm glad that you're presenting on that topic this fall because as a recent taker of the test and someone who spent much time thinking about it and preparing for it, and clearly was well prepared for it despite the situation you found yourself thrust into right before the exam, you are a great person to offer tips and lessons. You've certainly given plenty of tips in terms of taking the exam and otherwise, clerkship and so forth. As we wrap up here, we do always like to ask our guests if they would like to share a tip or a war story to cap off our episode. Do you have something for us?
I was thinking about war stories. I don't have quite as much courtroom experience as some of your guests have had, but thinking back to that first trial that I got to be a part of in Marshall. I had been working on the case for six months. They weren't sure I was going to go to trial. Even if they had me come to Marshall, they weren't sure if I was going to be sitting back at our temporary office space, drafting the judgment matter of law, or doing things like that. The partner on the case decided the day before trial that I should make an appearance and be ready to be in court if needed. I filed my notice of appearance and we're at pretrial.
One of Judge Gilstrap's clerks comes over and says, "Are you Kelley Clark?" "Yes." "Judge Gilstrap would like to see you." Everybody turns and looks at me like, "What is this about?" I go back to chambers and he said, "Anytime an attorney makes an appearance in my case, I google them. I saw that you recently graduated from Baylor. I'm a Baylor alum myself. I wanted to introduce myself to you and say how great it is that the partners are getting a young attorney involved in the case and that you're getting to go to trial."
I went back out and told the partners. They said, "What does he want to talk about?" "He introduced himself and said that he thought it was great that I'm getting to come to trial." "Then you're definitely going to be sitting at the counsel table. You're going to handle the jury charge now." I was like, "Okay." I've been working on it, but I was not sure if I would be the one doing the charge conference. To finish the story real quick, on the last day of trial the charge conference was set for 7:30 AM because he wanted to get it done before the jury showed up. It's January in Marshall. It's cold and dreary outside. We're in a motel. I look over at the clock and it was 7:35 and I was still in bed. I completely slept through my alarm.
I panic and bolt up. I threw on my suit, no makeup, no shower, get in the car, and drive straight to the courthouse. Fortunately, it's a small town so it only takes five minutes. The senior associate on the case was like, "Where are you?" I'm like, "I'm sorry. I overslept. I'm on my way." Fortunately, the opposing counsel was also very late. I got there before him, and the partners on the case weren't planning on attending the charge conference. This may be the first time they've heard the story that I almost missed it.
It all worked out in the end.
I'll never oversleep for a trial or hearing again.
That is a nightmare. It's been great to visit with you. Thanks for spending the time. We look forward to seeing you in September at the Advanced Seminar.
Thank you for having me.
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