CHAPTER 15 Texas Supreme Court: Briefs on the Merits and Oral Argument

• Jurisdiction: United States

CHAPTER 15

Texas Supreme Court: Briefs on the Merits and Oral Argument

15-1 Briefs on the Merits

A brief on the merits to the Texas Supreme Court is substantially different from a brief to an intermediate court of appeals. In the court of appeals, it is not necessary to persuade the court to take the case—as a court of non-discretionary jurisdiction the court is required to decide the matter. The Texas Supreme Court, in contrast, gets to pick and choose which cases it decides. And almost invariably the Court does not make that decision until after it requests and receives full briefing on the merits.

As a result, the brief on the merits must not only address the merits of the case, but also, depending on who is filing it, the brief must seek to persuade or dissuade the Court from granting review. More specifically, from the perspective of the petitioner, the goal of the brief on the merits is to: (1) persuade the Court to grant review, and (2) persuade the Court that the petitioner should prevail on the merits. From the perspective of the respondent, the goal of the brief on the merits is to: (1) persuade the Court to deny review, or, alternatively, (2) persuade the Court that the court of appeals correctly ruled for respondent on the merits. Accordingly, this chapter will address the process of the Court's review of briefs on the merits first in order to explain the strategy for crafting a persuasive brief.

15-1:1 Internal Procedures and Deadlines

Technically, the Court can grant the petition for review without first requesting full briefing on the merits.¹ As a practical matter, however, this rarely, if ever, occurs under the Court's internal operating procedures—the Court requests full briefing as part of its continuing evaluation of whether to grant review.

Before full briefing is granted, certain justices may take an interest in a petition and circulate memoranda recommending the Court take a certain action. Sometimes, even after a petition receives sufficient votes to be automatically denied, a justice may pull the petition from orders and issue a memorandum or speak at conference in an effort to convince the other justices of another course of action.

A request for briefs on the merits requires the vote of three justices. When full briefing is requested, the Court also simultaneously (1) requests the court of appeals to transfer the record to the Court, and (2) assigns the case in rotation to one of the chambers for the preparation of a study memo. The study memo procedure is described in the following sub-section.

Unless the Court sets a different schedule, the rules provide that the petitioner's brief on the merits is due 30 days after the Court's request for full briefing; the respondent's brief on the merits is due 20 days after the petitioner's brief is filed; and the petitioner's reply brief is due 15 days after the respondent's brief is filed.²

15-1:2 Preparing the Brief Sensitive to the Study Memo Procedure

The most significant development since the Court switched to the petition practice has been the Court's adoption of the "study memo" procedure. When the Court requests briefing on the merits, the petition is assigned in rotation to one of the chambers for preparation of a study memo, which is typically prepared by one of the law clerks. The law clerk assigned to prepare the study memo is charged by the Court to study the case and prepare a memorandum addressing the pertinent law and facts. The study memo is prepared within 30 days of the filing of the respondent's brief on the merits. However, the grant of briefing extensions for any of the briefs will also delay the internal circulation of the study memo. The study memo will not be circulated until the filing of the reply brief, waiver of reply, or passage of the deadline for filing the reply.

The study memo's cover identifies the parties and counsel, lower courts, and issues in the case. The law clerk is charged with presenting the issue and the arguments on each side, and analyzing how each argument contributes to their recommended disposition. First, the law clerk must collect the "pink sheets" (the justices' handwritten notes on the case)³ and the justices' electronic notes from each chambers for the relevant petition. The law clerk will be able to glean from these, and the discussion at Conference, which issues the Court is interested in, and what the law clerk should focus on in the study memo. If jurisdiction is questionable, if a particular issue is dispositive and the result is clear, or if an argument has been waived so that the Court is precluded from reaching it, the author is instructed to flag that for the Court in the study memo.

Although the author will typically frame the issues as presented by the parties, the author has freedom to consolidate or reframe the issues so they are presented in a concise manner, especially when numerous cross-issues or unbriefed issues are raised. Law clerks will typically frame the issues with single sentences, so an attorney who wants a law clerk to mimic their own framing of the issues should use the single-sentence style of issue framing. In addition, a law clerk will be more willing to borrow from a non-argumentative recitation of the facts rather than one laced with argument. The law clerk will check the record on disputed facts and often include citations to the record in the study memo.

Law clerks are also asked to recommend a disposition, generally either granting or denying the petition. Additionally, if the law appears to solidly support a more specific disposition, such as reversal by per curiam opinion, the law clerks are encouraged to provide that recommendation. Often, the law clerk may even draft a per curiam opinion and attach it to the study memo for discussion at Conference. If six justices vote for a per curiam disposition, or to at least consider one, the per curiam opinion is assigned to the chambers that drafted the study memo.

A law clerk may also recommend that the petition be held until another petition or cause before the Court with the same issue(s) is disposed of. When petitions become "linked" in this manner, a law clerk will often address the lead case in a full study memo, with shorter study memos for the linked petitions. However, when petitions arise from the same facts, or similar facts, one study memo may address several petitions with the same issue. Counsel can assist in this process by bringing to the Court's attention any pending petitions or causes with similar issues.

The recommendations by the study memo's author are not rigidly adhered to—it is not uncommon for a justice to note disagreement with the disposition recommended in a study memo emanating from his or her own chambers. A law clerk will typically attend the Conference(s) during which his or her study memo is discussed, and answer any questions the justices may have regarding the issues or record in the case.

Because the justices typically make the decision about whether to grant review based on the study memo, the primary target audience for the brief on the merits is someone fresh out of law school. Although the law clerk is undoubtedly bright, the briefing should be sensitive to their relative inexperience. However, the briefing also should be careful not to offend the law clerk. One law clerk tells of a brief that declared, "This issue is so simple that even a recent law grad...