TALP 49 | Oklahoma Appellate Law

 

With different court rules and practices being implemented in every state, lawyers do not necessarily encounter the same experience in general. To discover how the Oklahoma appellate law differs from Texas, Todd Smith and Jody Sanders sit down with lawyers Gabe Bass and Jana Knott. Together, they discuss the major contrasts of the field between the two states and how they cope with some regulations they think need some adjustments. They go deep on how their courts handle published and unpublished opinions, how court officials are elected or appointed, the common sources of their appellate work, and the absence of electronic filing in Oklahoma. Gabe and Jana also share a bit about their podcast, Oklahoma Appeals, with Todd and Jody, imparting advice on running a show about appellate law.

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Listen to the podcast here:

A Red River Crossover | Gabe Bass & Jana Knott

We’re joint Texas and Oklahoma Appellate Law Podcast. We have virtually crossed over the Red River and we have our friends from the Oklahoma Appeals Podcast here. We’re going to talk with them about appellate practice in both of those different states. Let’s start with some introductions. Jana and Gabe, do you want to introduce yourselves and tell us a little bit about yourselves?

Thanks, Jody. My name is Jana Knott and Gabe Bass is my cohost on Oklahoma Appeals – The Podcast. My background is I graduated undergrad at the University of Oklahoma in 2008. I did law school at Oklahoma City University and graduated there in 2011. From there, I went directly to the Oklahoma Supreme Court as a staff attorney, also known as a law clerk. Each of the nine justices on our court has two staff attorneys that work directly for each of them. As luck would have it, as I was coming out of law school, Justice Noma Gurich was appointed in February of 2011 to the Oklahoma Supreme Court. I was able to get one of the positions as her staff attorney. I stayed with her at the court for seven years. In 2018, I joined up with Gabe at Bass Law here in Oklahoma City. I now have an appellate practice and I also do some district court civil litigation.

I’m Gabe Bass. Thanks, Jody and Todd, for inviting us on. You have legitimized our little effort here in Oklahoma by recognizing us. We appreciate that. My background is I’m an Oklahoma kid. I grew up in Central Oklahoma. I went to OU for an undergrad in Finance and Accounting major. I started law school right after undergrad at the University of Southern California, and got about halfway through and then took a year leave of absence to work at a software startup. This would have been about 1999 or 2000. That was the thing to do. I took a year leave of absence that turned into two that turned into me being a law school dropout, but after the tech stock market crashed from 2000 to 2001, I thought it probably made some sense to finish this law degree that I was halfway through and that would make my mom proud and happy.

I went back to OU to finish my law degree and got a Master’s degree in Information Systems. I was on a five year to law school, a multistate law school plan. I grew up in a family full of lawyers and my dad is an attorney. We practice together now. My uncle, his brother, was a former partner of ours. Lots of cousins. We grew up around the law business. I never thought I would practice law, but I went to law school after undergrad as an easy thing to do. I wasn’t sure what I wanted to do. That’s the direction I went. I already covered my uneven path through law school. In law school, after September 11th, I decided to join the Marine Corps.

I signed up in January 2002, and then I had about one year of law school left at that time. I went to Officer Candidates School that summer after my second year of law school, which was my fourth year. I went through that and finished Officer Candidate School. I got commissioned and then they put me in the reserves and allowed me to go back to OU and finish my law degree and Master’s degree. I spent about the first five years of my life as a lawyer as an active-duty Marine. I worked mostly in military justice. I tried courts-martial, which was a great experience, akin to going to work in the DA’s office. At that time, the Marine Corps was very busy and a lot of interesting things were going on in the early to mid-2000s.

We got to work on a lot of interesting military justice issues, war crimes and all kinds of crazy stuff. A lot of trial experience, it was fantastic. I decided to leave active duty because of the operational tempo and I had a new baby. I’d already put my wife through enough moving around in the unpredictable nature of the Marine Corps at that time in our world. I came back to Oklahoma City to join my dad and uncle in practicing law here. I’ve been doing that ever since. I came back here in 2007. I remained in the Marine Corps, I’d spend anywhere from a few days to a few weeks to 7 or 8 months at a time going and doing Marine Corps things over the last many years. That’s how I get to now. My practice has always been mostly real estate, oil and gas, estate and trust-related, and representing closely-held businesses, a pretty even mix of trial and transactional practice.

I understand where Jana is coming from and her appellate experience and how you don’t clerk for a state Supreme Court justice and fall in love with the practice because you see what the possibilities are. What I didn’t catch in that, Gabe, was how you got connected into appellate law as an interest. It’s clear you bring a different perspective to this with all your varied background, but why do an appellate podcast?

For the same reason, I’ve done about everything in my life, which is I’m usually scratching my own itch. I see something that I wish was there that doesn’t exist, and then I don’t have the good sense to leave well enough alone, and I try to create it. We didn’t have anything like this. I had listened to your podcasts and thought, “That’s neat. That’d be cool to have something like that for Oklahoma lawyers and with Jana doing a lot of appellate law.” I had done some before Jana joined us. I’d been involved in a few appeals. I’ve muddled my way through. I was glad to have her come and bring her expertise to the operation, but like the rest of you and many of the readers, I’m a frequent consumer of podcasts.

I listen to a lot of podcasts and enjoy them. I was interested in what it would take to put one together. This seemed like a good topic because I thought it would be a good service for Oklahoma lawyers. We try to read all the new cases anyway and stay on top of what’s going on. Why not get a little more bang out of that effort and reuse the information and the time? I thought it would be a good way for Jana to promote her appellate practice. Here we are. I didn’t realize how much time it was going to take either.

We got into it for a lot of the same reasons and came to some of the same realizations, too, once we got started. One thing we may want to start out with on the substance of this is talking a little bit about how Texas courts versus Oklahoma courts are structured. In Texas, like in Oklahoma, we have a Supreme Court that handles civil jurisdiction. We have a Court Of Criminal Appeals, it’s the highest criminal jurisdiction. In between that, we’ve got fourteen intermediate Courts of Appeals that are all divided into different geographic regions. We’ve got all crazy different trial court permutations. That’s what ours looks like. Our Courts of Appeals, the intermediate has both criminal and civil jurisdiction. That’s generally how ours is set up. Oklahoma is similar, but also a little bit different. Do you want to tell us how that works?

We do have our Oklahoma Supreme Court, which is the highest court in the state in which is the court that constitutionally does have superintending power over all other courts, including the Court of Criminal Appeals as it relates to any jurisdictional disputes between the Oklahoma Supreme Court and the Court of Criminal Appeals. If there’s a dispute about who has appellate jurisdiction in a case, then the Oklahoma Supreme Court gets to make that decision. Our Court of Civil Appeals only has civil jurisdiction. That’s a difference from Texas. We have four divisions of our Court of Civil Appeals. A high percentage of our appeals that get filed at the Oklahoma Supreme Court is assigned back to our Oklahoma Court of Civil Appeals. That’s where the majority of the appellate decisions are coming from in Oklahoma.

When you say division, do they all sit in one location, the Court of Civil Appeals, or are they distributed throughout the state?

The Court of Civil Appeals has an office in Oklahoma City and Tulsa. In both of those locations, they have courtrooms and offices. Two divisions sit in each location. They are geographically appointed. You do have to be in a certain area in order to apply for an open seat on the Court of Civil Appeals or at least have moved there by the time you’re appointed. Two locations, where all four of them are located.

TALP 49 | Oklahoma Appellate Law

Oklahoma Appellate Law: Compared to Texas, Oklahoma’s Court of Civil Appeals only has civil jurisdiction.

 

Is your Oklahoma Supreme Court done by the geographic district as well, or is it all at large?

It’s also done by geographic location. The legislature has done a little bit of tweaking on that because, for a very long time, it was based on our old congressional districts. I can’t remember when it’s going into effect, but I think it was in 2020. We do have some at-large positions now, but historically that has not been the case. That’s a recent creation.

Are your judges appointed, elected, or both? How do they do judge selection?

Our appellate court judges, the Oklahoma Supreme Court, Court of Criminal Appeals, and Court of Civil Appeals are all appointed by the governor and we have what’s called the judicial nominating commission. When there’s a vacancy, the applicant applies to that commission and go through background investigations and interviews. The commission then submits three names to our governor, and then he or she makes the selection to that vacancy. Each of the judges on the appellate court sits for a retention ballot every six years. It’s, “Yes or no, do you want this judge or justice to be retained?” We’ve never not had anyone be retained. In effect, it’s a lifetime appointment, at least for now, historically.

There’s been historically very little political interest in the retention ballots. A couple of election cycles ago, the state chamber dipped their toe in the water and tried to put out some judicial rankings and tried to drag it into a political direction, but they didn’t have any success with that. There hasn’t been any energy behind that effort the last few times. There have been judges on their retention ballot. It’s worth saying a little more about our additional nominating commission. It’s an interesting creation. It’s the result of reform following some bribery scandals in our Oklahoma Supreme Court decades ago.

That’s when this system was implemented, and the judicial nominating commission is made up of a majority of laypersons. They’re appointed from different authorities. We did a whole episode on our podcast about the judicial nominating commission and how it works, but the rules are such that you can’t even be related to a lawyer if you’re in one of the layperson positions on the commission. They have even waited for a political affiliation. They structurally tried to make it as apolitical as possible. It seems to work pretty well. Our district court judges are still elected by a nonpartisan election but, as a practical matter, many of them are also appointed because if an elected judge retires or leaves the bench, or dies during their term, then the judicial nominating commission process is used to submit three names to the governor for the governor to appoint their replacement.

Even though they are elected positions at the trial court level, when I say district court that’s our trial court level, while they are technically elected, it’s pretty unusual to have a contested election, especially in the smaller counties, for obvious reasons. Not many lawyers are that motivated to run against their city judge with the threat of losing. That could be a little uncomfortable because some of these counties don’t have a lot of lawyers. Now you will see more contested elections in Oklahoma County and Tulsa County, but for the other 75 counties in the state, it’s rare to have a contested judicial election for the trial court.

That is very interesting and, in contrast to Texas where, from the justice of the peace to small claims court, all the way to the Texas Supreme Court, every bench is elected in a partisan election. There are appointments, but typically the appointment is like you were talking about. When somebody retires before their term is up or leaves office, the governor gets to appoint them, but then they have to stand for a partisan election the next time around. As far in one direction as your system goes towards non-partisanship, ours is pretty much the opposite direction towards a partisan system. Although there’s been a lot of talk in the last couple of years about reforming it and our legislature is in its biennial session. That’s one of the agenda items. It will be interesting to see what, if anything, comes of that.

We’ve had an election commission that’s been studying the issue. This happens with some frequency. It always depends on what the election looked like for the party, historically, in power in recent times. Sometimes when it doesn’t go the way that people think it should, there’s a big flurry to study the way that we pick our judges. That is an issue that’s being discussed currently. The kinds of models that we covered here have been looked at extensively. It will be interesting to see, in our legislature, if there’s any traction that comes out of that. I don’t know if they’re looking at the kind of model where the appellate judges only, rather than the trial judges, would be subject to an appointment.

That’s interesting to me because that’s one of the knocks on the election of appellate judges is the qualification, for one thing, because as much as they try to take the politics out of the office, many of them do that and do it well. At the end of the day, you meet the bare constitutional qualifications, get your name on the ballot and the political tide is running a certain way, you’re a six-year appellate justice at a minimum. It does create some strain on developments in our civil and criminal justice system to have the system we have. It’s interesting to hear about what you guys do up there.

Your Supreme Court justices, for instance, how often do they sit for election?

We have nine and they each serve a six-year term, but they’ve got them staggered. Every couple of years, some members of the court are up, but for a while, we had a consistent court. There was a long time where there was a lot of turnover in a very quick period. There was a period of about 8 or 10 years where we had a consistent court where nobody’s turned over. In the last couple of years, it started turning over again with retirements and stuff. There are a lot of different movements where people may be on the ballot at a time that they wouldn’t have been before. It’s a different system than Oklahoma where you talked about a lifetime appointment. Particularly, our Texas Supreme Court for a lot of different reasons has historically, at least in the last many years, turned over seats with regular frequency.

There are not a lot of Texas Supreme Court justices that fill multiple terms and are elected three times in eighteen years. That would be a long time for a Texas Supreme Court justice to serve. I don’t want to describe that office as a stepping stone, but there’s certainly been former Supreme Court justices who have attained other positions. Two went on to become the attorney general of the state. We have had several now that have gone from that to the Fifth Circuit Court of Appeals.


Unpublished opinions are beneficial in law to prove a point to court judges or at least give them some guidance.
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Governor or Senator.

The same ones that were AG went on to become our governor and senators. You can see how the political element of it fits in. They have the advantage of learning how to operate, even though there are lawyers and judges in the political system that are able to take that and propel themselves.

I can’t think of any instance where one of our appellate judges in Oklahoma had a post-bench political career. I’m not saying there hasn’t been, and I think it’s not uncommon for our Supreme Court justices to serve 30-year plus. We’ve had some turnover, but our senior justice, Justice Kauger was put on the bench in 1982.

We had announced the retirement of Justice Colbert. He is our first African-American justice on the court. He’s been on the court for many years. He was in the Court of Civil Appeals before he went to the Supreme Court. He’s had a long tenure as well.

Several there are a twenty-year plus. I think of Justice Winchester, Justice Edmondson, Justice Reif, who retired, was there a long time.

What that also produces is a court that is looking at the snapshot of, it’s older than, say, our court. We’ve paralleled what you see in the federal appointment system where we’ve got a youth movement, as you might call it on our court. When you’ve been practicing law for 25 years and some of the Supreme Court justices are younger than you, that’s now happening to me. The Court of Appeals got elected and that happened to me, too, but it’s an interesting thing to watch.

I can’t think of any of our justices. I don’t think any of them came directly from private practice. They’ve all come from either the trial court or a court of appeals. Is it common in Texas that someone goes from private practice directly to an appellate court or do most of them have trial court experience?

It varies depending on where you are. In the smaller appellate court districts, it seems like it’s more common anecdotally for a trial court judge to move up to the Court of Appeals, either by appointment or election. In the urban districts like Houston, Dallas and Austin, you see a lot more people going straight from private practice to the bench. In the smaller places, it makes sense because you have that political profile, maybe the district judge or a DA or something like that, to move up to the appellate court. You see it more there than you do here, although it depends. A lot of our judges on the appellate court levels, I think in particular, both intermediate and Supreme Court, leaving the bench sometimes to give the governor’s office an appointment. Sometimes that paves the way for them to pull somebody out of private practice and appoint them and then give them a little boost to hit the ground running, to keep that bench.

To add quickly to that. Some of the appointments in the past or whenever, there’s been a vacancy on the Supreme Court or a trend to appoint and fill the unexpired terms, someone who had been in the governor’s office working in the executive branch has good credentials, nothing that doesn’t pass muster that way. Also, we’ve had some leaves in elections that have resulted in some good judges being removed from office in some of the intermediate courts. The last few appointments have seen a lot of those people who were longstanding appellate judges have run elections many times. Unfortunately, he’s got caught up in a wave. The governor has seen fit to fill the unexpired term for of a couple of benches with those people who are not going to be running for statewide offices. It has been a mix. There are a few private practices but, as Jody says, it depends on the court and the area of the state.

Did I understand you correctly to say that your intermediate appellate courts, the criminal and civil, are combined and they hear both types of cases?

Everything except for the death penalty. Death penalty cases, there may be some other limited exceptions, but that’s the big one I can think of. Death penalty cases go straight from the trial court to the Court of Criminal Appeals. For the most part, 99% of everything else goes through the intermediate courts. That’s a good transition maybe into our next topic, is talking about how appeals are initiated in both states. I know that they’re a little bit different. I’ve done enough appellate work in Oklahoma to be dangerous to myself.

In Texas, from whatever trial court you come from, for the most part, you file your notice of appeal on the trial court and you’re going to go to the intermediate appellate court where they’re civil or criminal for the geographic area where you are. Except in Houston, they have two different appellate courts with the same jurisdiction and you rolled the dice onto which one you’re going to end up in front of. You do that and then it takes you straight up to that court. They’re going to hear your case.

They don’t have the discretion to do anything else with it. They’re going to hear your case with some limited exceptions, like the Austin Court of Appeals has some jurisdiction over some statewide stuff because it’s based in the Capitol. That’s where it goes. However they decide from there, your only real next step is to seek discretionary review on the criminal side, either in the Court of Criminal Appeals or on the civil side to the Texas Supreme Court. Everything goes through the filter of the intermediate courts first, no matter what, but I understand it’s a little bit different in Oklahoma.

TALP 49 | Oklahoma Appellate Law

Oklahoma Appellate Law: Contested judicial elections for a trial court in Oklahoma and Tulsa Counties are becoming usual, but it is not the same for the other 75 counties.

 

When you file your appeal, at least on the civil side, there’s no notice of appeal that’s filed in the trial court. You file your appeal directly with the Oklahoma Supreme Court. At that point, the Oklahoma Supreme Court takes the reins on getting the case worked up, essentially, and getting the record from the trial court. The briefs are all filed at the Oklahoma Supreme Court. Once all of that is finished and the briefing cycle is completed, then 85% to 90% of the appeals are then assigned back to one of the four divisions of the Court of Civil Appeals. The Supreme Court does have the opportunity before it assigns and even after, in some cases, to retain the case, retain the appeal and make the first instant decision, and parties can ask for the court to retain the case before it’s assigned to the Court of Civil Appeals.

That does happen occasionally. You’ve got to have a pretty salty legal issue to get any traction on your motion to retain because the overwhelming majority of cases are sent back to the Court of Civil Appeals for their first decision. Once the Court of Civil Appeals issues their opinion, then the parties have the opportunity to seek cert with the Oklahoma Supreme Court and that is a discretionary decision. Unlike the US Supreme Court, where it’s a four-vote to take cert, we are a five-vote to take cert on a case. I don’t know the percentages off the top of my head. Those things are not easily tracked in Oklahoma because we don’t have electronic filing yet and our state court database is not easily searchable.

It’s probably about 10% to 15% of the cases that go up on cert are taken and not just from experience. The majority of them, they don’t review those. The Court of Criminal Appeals side of things, which I don’t do any criminal appellate work, but I do know that it’s similar to what you said that there is a notice of appeal filed in the trial court first and that is the appeals filed in the Court of Criminal Appeals. They don’t have an intermediate criminal court, so they have a very heavy workload at the Court of Criminal Appeals because they’re taking everything. They do have more staff attorneys that do a first to look at everything so that they can weed out some of the procedural cases that have issues. That’s typically how it works.

If we’re talking about an original proceeding, our Oklahoma Supreme Court has original jurisdiction to hear cases. There’s not a limit on what they can hear. It’s discretionary as well. You initiate those proceedings by filing an application to assume original jurisdiction. You get a brief with that and make your arguments as to why the court should assume jurisdiction. If they do, then they’ll either grant relief or deny relief. Those can come from the district courts. It could be a discovery issue that you don’t have an immediately appealable order on. One of the parties seeks a writ through an application to assume original jurisdiction. We’ve got some very specific areas of the law where the legislature has given the Oklahoma Supreme Court original jurisdiction to hear challenges to certain things.

One example is the initiative petition process in Oklahoma when an organization seeks to put a state question on the ballot. That’s heavily based on statute and any challenge to that state question is brought in the first instance in Oklahoma Supreme Court. That’s where they would exercise their original jurisdiction. A lot of cases where there’s a public policy issue or interpretation of a statute that’s been recently passed, in recent years, with budget issues with the legislature, a lot of times those things will end up in the Supreme Court first in their original jurisdiction docket. Those are the types of cases that you’re going to see published opinions and coming from the court’s original jurisdiction.

Does the Supreme Court issue some unpublished opinions then?

The Supreme Court issues unpublished orders. Most of the things that come from the Supreme Court, if it’s a case that’s pending there, it is a published opinion. For instance, those writs that I was talking about that come from the district courts on discovery disputes or things like that, a lot of those are unpublished, even if they grant relief. A lot of times, you only know about those if you happen to know the lawyer that’s on the case or know to look for it. We occasionally will get some conflicting decisions, not from the court, but from the Court of Civil Appeals, and then an unpublished writ that was issued that helps us make an argument as to why the court should take a case and issue a published opinion.

What about the unpublished opinion situation in your intermediate appellate court? Are all their opinions published or unpublished or some are and some aren’t?

There used to be a significant distinction between unpublished and published opinions. It was a cause of some concern among appellate advocates because unpublished opinions couldn’t be used as authority. You’re researching a case on maybe a semi-novel issue and you find the unpublished opinion from another court, or even from your court, you’re appearing on all fours with your facts. It got to be quite a problem. The Supreme Court many years ago now did away with the distinction in terms of the authoritative notice of unpublished versus published opinions.

In fact, it did away with unpublished opinions altogether but there’s no such thing any longer as an unpublished opinion. What you have is a memorandum opinion, which is not published in the Southwestern reporter, and an opinion, which is published in the Southwestern reporter. We see a lot of cases. We saw a lot of memorandum opinions to Westlaw or Lexis, but since 2003, they carry the same authoritative weight as something that’s public as the reporter. It’s made our job a lot easier in terms of researching and finding cases that have the weight of authority, but there are a few lawyers who still sometimes get the designation confused or who will refer to unpublished opinion. That’s now an archaic term in our jurisprudence.

Our Supreme court doesn’t do unpublished opinions. They’re a little bit different because pretty much everything comes to them on discretionary review, but with the exception of mandamus, which is akin to some of the original proceedings that you talked about, or per curiam opinion where you have six judges that agree to correct an error and a written opinion, everything in the Supreme Court gets oral argument, and then is decided with a written published opinion. Except in those other instances, sometimes they’ll do it without oral argument. Everything that comes from them is always published.

The rate of the Supreme Court taking cases is in line with what Jana says, which is around 15% or so. We’ve got some people that keep track of these statistics and in ways that I can hardly get my mind around because everybody wants to know, “What are my chances?” For many years, the percentage of grants has hovered between 10%, 12%, 13%. It does give you something to go on when you’re advising your clients about what your chances are if you’re dealing with something that is a discretionary jurisdiction issue which, in our Supreme Court, is 100% of the cases.

In Oklahoma, the number of cert petitions granted is hard to put your finger on. In cases where cert is not granted, there’s no resulting in a published opinion, then you don’t know what’s been petitioned for or what’s been granted or what’s not, because the court doesn’t publish their day-to-day orders of granting or denying. Unless you happen to be in the case or following the docket, you don’t know what they’ve turned down. Jana and I are looking at ways to try to glean a little better insight into that information so people can know, “What are my chances?” Particularly, what issues have they granted cert on that we’re awaiting a decision on because that could be of interest to people?


Without uniform instructions, lawyers resort to following pattern jury charges instead.
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If you’ve got an issue or you’re thinking about appealing or you’re getting ready to take the trial, it might be nice to know if the court has recently granted cert on an issue that is important in your case and you’re awaiting a decision, that may impact your timeline at the trial court. Do you want to push things along or do you want to slow it down and see what they do? We’re trying to figure out a way to harness the data there and make that information a little more transparent to the bar.

I was going to touch back on that, piggyback on the unpublished decisions from the Court of Civil Appeals, where we are having issues about whether to cite two unpublished Court of Civil Appeals opinions in our briefs at the district court and even on appeal. Our Supreme Court still has a rule that says, “You cannot cite two unpublished Court of Civil Appeals opinions in any brief to any court in the state.” I completely agree and I’m in favor of using unpublished opinions. Like you said, a lot of times, you’ve got a case that’s unpublished, but it’s directly on point and if nothing else, it at least gives your district court judge, or even your appellate court judges, some guidance. They know it’s there.

It’s not precedential, necessarily, but it does give them at least a starting point analytically a lot of times. I would like to be able to cite those and say, “Here’s this case. This is what this panel did on the Court of Civil Appeals.” The database that used to collect those is no longer online. The Supreme Court’s reasoning for that rule is that these opinions are not widely available for practitioners to search and locate. There has to be something. We have to deal with the database portion of it, I think, before we can make any movement toward any type of rule change in that regard. I won’t talk about our pending case, but as I said, we were asked from a district court judge, “Is there any unpublished Court of Civil Appeals opinions on this issue?” It’s like, “Yeah, judge, but I can’t cite to those.” It’s like, “If you’re going to consider them, what do we do?” It’s an interesting conundrum, but it sounds like you guys went through that many years ago.

I think Oklahoma needs to address it. I’m interested to look at the details of how Texas addressed it as a model to suggest. What happens is the judges look for themselves and they find these unpublished opinions and they’re taking them into consideration, but because you can’t cite to them in your brief, you don’t get the opportunity to distinguish them or make sure they find the ones that you think matter. As far as authority in Oklahoma, published or unpublished, the Court of Civil Appeals opinions are persuasive only.

I have to clarify, something related to that is the pre-2003 unpublished opinions are still unpublished opinions. They didn’t get elevated to memorandum opinion status. Occasionally, you will see people reaching back beyond 2003 and you still have to cite those as being not designated for publication. You should take a look at our rule if you’re looking to try and advocate for some change in Oklahoma because I think it handles it well. The rule does specifically say that pre-2003 cases are unpublished but they can be treated as to the weight of authority. If a court has set out its reasoning for deciding a case based on a certain set of facts, you can present that to any judge throughout the state and cite it.

The weight of authority may be a little questionable, but it’s there because that’s what you’re describing, which we all described as a situation like what we used to have before 2003. If someone decided on an unpublished opinion that therefore couldn’t be authoritative, the other side would squawk about it and the judges wouldn’t necessarily follow it. “That’s an unpublished opinion.” Our courts have done a good job and this was a rule change that drove this in making the law available publicly. Westlaw and Lexis received those opinions from the courts directly. We don’t have an issue with there being some hidden decisions, those are something that goes way beyond Oklahoma. The federal systems have experienced this quite a bit and they have their own unpublished opinion rules. It’s hard to imagine not knowing what the Supreme Court has been up to in deciding certain cases. That’s a different kind of shadow docket. I get it.

Going back to one of the reasons we started this podcast is like you say in your intro, it’s like pulling back the curtain on some of these issues. If there’s a way that we can start tracking some of these things and keeping lawyers in the know on what issues are pending and what’s coming out, but part of it is that the court itself has to be willing to publish their order sheets that come from their weekly conference. That’s not been the case historically. Stay tuned on that. We’ll see if anything comes of it.

Are you all doing a jury court practice in Oklahoma? Tell us a little bit about how that works.

We have the Oklahoma Uniform Jury Instructions and what happens is once you are getting close to your trial date, you submit written proposed jury instructions to the trial judge. Usually, it is some type of a conference with the trial judge to go through those. It’s statutory in Oklahoma. If there is a civil or criminal uniform jury instruction that is available for your case, the statute mandates that you use that in the case. The Oklahoma Supreme Court has a commission for the proposed jury instructions. They go through all of these, look at them, propose new ones, and make amendments based on changes in the law and the Oklahoma Supreme Court administratively approves those, but they do not substantively say anything about any of those jury instructions with regard to whether that is the law.

In those jury instruction conferences with your trial judge, if you think that the uniform jury instruction is not what the law is, you’ve got to make your record on it and bring that up as an appealable issue. Decisions where our appellate courts have said that the uniform jury instruction is not the law are very few and far between. Most of the appellate issues that come up with jury instructions are when there’s not a uniform jury instruction that’s directly on point and parties are proposing special instructions to the trial court based on specific facts of the case or an area of the law where the issue’s not been drilled down to a jury instruction. That’s how it goes in Oklahoma state courts. I don’t know if Gabe has anything to add to that with his more trial lawyer background.

There is not too much. I think it works as you described after the defendant has rested their case. The judges say, “Tomorrow morning, you bring in your proposed jury instructions. You send it to my bailiff in Word format, we’ll go through them and argue about any ones that one side wants or the other side doesn’t want. I’ll decide which instructions we’re going to give and then we’re going to give them.” It’s not an issue that we see bubbling up to our appellate courts very often. Between our Court of Civil Appeals and our Supreme Court, there were maybe 120 or 130 published opinions in 2020. Maybe one of them had something to do with an error in a jury instruction. It seemed to do a fairly good job of it primarily because of the uniform nature of the jury instructions. There’s not a lot of freelancing that goes on. There’s pretty much a uniform jury instruction for about everything. It makes it harder to screw up. Generally, that’s a big contrast.

That was one of the things I wanted to talk about because our charge practice is appellate lawyer bread and butter. Many issues and many cases come from that. We don’t have uniform instructions. We have what are called pattern jury charges, but they’re not required. They’re not approved by the Supreme Court. Our Supreme Court has no problem knocking down a pattern jury charging instruction that they don’t like. If there is one on point, generally a court is going to give it, but there have been times when I know I have probably taught, and most of the appellate lawyers had to argue against the pattern jury charged instruction for not accurately stating the law. There are all sorts of weird procedural issues that come up with the charge separate and apart from the substance of the law that create issues. I don’t have a number, but we have a lot of charge error issues that come up in Texas.

It’s one of the very ripe areas where if you’re the appellant, that’s one of the first things you want to do. If you’ve lost, that trial takes a close look coming in as appellate counsel at the jury charge and see what you want to know what era was preserved, and you can advise the client then, “I think you’ve got a decent issue here, or not, based on your understanding of the law.” We have a pattern jury charge committee action, several of them, they’re standing committees through the state bar that are appointed by the state bar president. This committee works on, you build off what others have done, but they’re updated regularly.

TALP 49 | Oklahoma Appellate Law

Oklahoma Appellate Law: Most appellate judges in Oklahoma rarely pursue a post-bench political career.

 

There are publication cycles every two years for each volume. There’s healthy debate in those rooms. I’m happy to sit on one of those committees. It’s interesting to talk with a bunch of other lawyers from all kinds of different perspectives about what the law is and how the jury ought to be instructed. The task is not to write a law review article that settles all these issues. You have to be flexible and malleable to what the law is doing. You’ve got to take into consideration cases that have been decided on those issues and recent Supreme Court decisions. It is quite interesting. I don’t think I appreciated when I first started doing this kind of work how involved that part of trials and jury calls can be in our state.

That brings up a question too, is the practice that Jana and I have as far as the trial court practice, many of our issues are bench issues. I’m curious about the difference between Oklahoma and Texas and what entitles you to the jury in Texas.

For the most part, honestly you pay a fee. Just about any kind of factual dispute can go to a jury, broadly speaking. Other things like the interpretation of a contract is initially a matter for the trial court. There are some situations when you can get into contract interpretation for the jury, but there are a lot of things that are gateway legal issues that the trial court has to decide in the first instance. If there are fact issues, ambiguity in a contract, that kind of stuff can go to a jury. We have a very robust right to a jury trial here. A lot of stuff gets tried. That’s not to say that trial lawyers and appellate lawyers don’t spend a lot of time arguing. As a matter of law, there’s no issue here that needs to go to the jury. We have a lot of different procedural avenues to go to that. A lot of stuff gets disposed of long before it ever goes to a jury trial, but Texas does have a very robust jury trial. There’s a lot of stuff that ends up in front of a jury that probably in other states might not.

In Oklahoma, if you have a claim for money damages, you’re going to have the right to a jury. All the tort practice, all the plaintiff’s type of stuff, is certainly going to be jury trial-eligible. In the estate and trust world where I do a lot of my work, you’re not entitled to a jury. If it’s a probate contest, if it’s the construction of a trust, that’s all bench. Even our appellate work that we’ve done in the last couple of years, a lot of it has been appeals coming up from bench trials.

Trust construction and that kind of stuff would get decided by the bench, but in probate, things like undue influence and capacity, that stuff that can end up in front of a jury and often does.

Not here. Jana and I tried to bench trial on undue influence and capacity on a wheel-to-wheel contest in summer 2019. That’s a big difference then because anything probate related is going to be a bench trial in Oklahoma. It’s an equitable court, probate courts and equitable court in Oklahoma and you’re not getting a jury.

The number of my appeals, I do a lot of oil and gas. Those quiet title cases, all those issues are equitable. They come up from a bench trial. I don’t know that I’m in many years out of being at the court in private practice. I don’t think I’ve had a jury trial appeal yet. All of my appeals are coming from bench trials or interlocutory orders that are right for an appeal.

I wonder with the differences in the way jury trials are handled up there, we’ve been crippled by the pandemic in terms of moving patients along. We’ve got such a strong tradition of trying jury cases and the numbers are staggering as far as what our backlog has been. We are not able to move cases along through bench trials that we are doing. How has it been going up there?

It’s gone by district by district, judge by judge and a lot of our judges are nervous about virtual hearings. There are a handful of them that are moving things along with virtual hearings. Gabe may know, but I’m not aware of any bench trials taking place virtually.

It’s been limited to pretrial matters, motions and non-evidentiary issues, summary judgments and motions to compel.

There’s a backlog as far as if we have a civil case. We’ve got a couple that are even bench trials, the judges are backlogged with the criminal felony cases and the civil jury trials. They have weeks that they set aside for jury trials. We fall in behind those if we are asking for a bench trial. We are seeing a little bit of a backlog in that regard.

What about on the appellate side? My limited experience in Oklahoma appellate courts was a lot of cases don’t get argued. A lot of us decided on the briefing. Number one, is that correct? Number two, has there been a move toward virtual oral arguments as the pandemic has gone on?

That is correct that most cases in Oklahoma are decided on the briefs.


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Most is an understatement.

The Oklahoma Supreme Court in a regular year, in the last many years, has at most 3 to 5 oral arguments per year. The Oklahoma Court of Civil Appeals, the same or less than that. The Court of Criminal Appeals does hold oral argument more frequently especially on some of the more high-profile case. They set those dockets regularly each month. As far as the civil side of things, few and far between. To answer your second question, there has not been any type of movement toward a virtual oral argument in Oklahoma.

We did have one of the Supreme Court referees on the podcast a month ago. They have been making a little more use of telephonic and virtual hearings on their matters that the referees handle for the court with preliminary stuff.

Certainly, not the nine justices in a virtual setting like you’re seeing with a lot of the appellate courts around the country.

We have not had our oral arguments at the Supreme Court even archived for purposes of listening to later or watching. Over the last few years, they did start streaming them in real time. Unless someone has gone through the effort to capture that live stream and archive it, the court doesn’t do that. There’s no way to go back and watch oral arguments which is astounding.

You don’t have a recognized specialty in appellate law, either on the criminal or civil side in Oklahoma?

Oklahoma does not have recognized specialties.

That’s not unusual for states not to do that. Florida and California are among the top that do that. There may be a few others, but those are the jurisdictions I’m familiar with. I was thinking, with still few cases being argued, how does a lawyer without substantial experience get the experience they need to be perceived as a good oral advocate?

Jana and I argued a case, but I don’t know how great we were because we didn’t win.

You may have been fantastic. He was moving on one against the other.

We can represent that we were fantastic because there’s no record of it for anybody to prove us wrong.

It’s tough. There are only a handful or less than five practitioners here in the state who practice in the initiative petition world and/or state constitutional world that have had multiple oral arguments at our Oklahoma Supreme Court. That’s because those types of cases are what they typically will grant oral argument in. Even those practitioners, we’re looking at only maybe 5 to 7 where you’re seeing the same advocates on certain issues, it’s difficult to be able to get that experience.

At this point, it’s like you try to argue as many motions in the trial court as you can, and know that if it goes up on appeal, you’re going to have 3 or 9 asking you questions. I’ve seen enough of them to be familiar with what goes on. For somebody who’s got an appeal and they’ve not done many appeals, but all of a sudden this Supreme Court grants their oral argument, I can imagine what you might feel like.

TALP 49 | Oklahoma Appellate Law

Oklahoma Appellate Law: With an overwhelming number of cases sent back to the Oklahoma Court of Civil Appeals, you must have a pretty salty legal issue to get any traction on your motion to retain.

 

Does that make you want to gravitate more federal work so you can get arguments in the Tenth Circuit? What do you think?

I think that’s part of what I would like to do in building my practice. As you know, that takes time. Part of the hurdle is always breaking into that area and convincing those trial lawyers that they need to bring you in on a case. Part of it will take time for me to build that part of my practice.

Starting a podcast is a good way to get people to know who you are and your interest in developing an appellate practice. That’s great. I’ve noticed that a little different approach than we have and we tend to get on here. Jody and I will get a guest on, and we’ll pontificate about a specific topic or about that person’s particular experience or background. It seems like you all are doing a lot of substantive case analysis being the reporters for lawyers who are interested in cases coming out of those appellate courts.

We’ve taken a blend. We’ve done a series of interviews with district court judges. We’ve got 4 or 5 judges that we’re going to interview, some we have already. It’s a sampling of small counties, big counties across the state. We also have been doing the appellate case update episodes, trying to at least say a few things. Sometimes there are probably too many things about all of the published opinions that come out from the Court of Civil Appeals and the Supreme Court. I’d be interested to hear if you all have had requests for that. We have gotten good feedback for that. People tend to say they like that because they get their bar journal with those cases in them, but they stack up. It’s not something that you sit down and most practitioners sit down and read all the new cases.

They like the fact that they can either drive into work or when they’re on the treadmill or whatever, they can listen and get a 3 to 5 to 7 in audio format, “Here’s a case that came out.” Maybe it’s something of interest to them in their practice and maybe it’s not. We’re encouraged to continue to do both styles of an interview as well as case updates and talk about the case. We typically will say where the case came from, how it got to the court that has issued the opinion that we’re talking about, cover the facts briefly, the court’s analysis, what the outcome was if there were dissents or any other quirky things about it, like the court issued an order to the party and refiled their briefs and in the correct bounded format and weird things like that. We tried to touch on administrivia and trivia.

One of the things too when we were talking about how we wanted to set those episodes up, spending seven years in the court system in Oklahoma, I interacted frequently with trial judges in Oklahoma at different judicial conferences and things like that. Our trial judges don’t have law clerks. For me, this is a way to provide them some research that’s quick and easy to be able to do when they’re driving in or if they’ve got a break or whatever. It’s not necessarily pulling all the cases from the website and having to read any of them. They can listen. If there’s something that they think affects any cases that they have currently pending before them, then they can pull it and take a deeper look at it. A way to provide them with a little bit of assistance on some of that legal research I know is something I heard frequently about.

It gives you a good motivation to stay on top of those cases as they come out. You get that little pressure of, “I’ve got to report on this.” We’ve got to digest these cases and it will benefit you tremendously in your practice to do that. We never even considered doing case updates in 2021. It’s in part because the staff attorney for public information that the Supreme Court issues opinion summaries every Friday when the opinions come out. There seems like there’s always someone who’s already providing summaries of cases. When I used to write a lot of blog posts, I started off doing case summaries and I thought to myself, “This is a lot of work and someone else is already doing it.” I questioned the value in doing it in that format at the time, but you’re offering something completely different with the 5 or 10 minutes synopsis of a case that someone can listen to on the treadmill. There’s value in that.

Our other problem is the amount of keeping up with it. The Texas Supreme Court is not so hard to follow, but the intermediate Courts of Appeals, yikes.

That’s a consideration for you all. Our Court of Civil Appeals, I can’t remember how many they issued in 2020.

They issued about the same number as far as published opinions as to the Supreme Court, as far as substantive cases, it’s 60-ish. The Supreme Court issues a bunch more stuff because of all the bar discipline as a published opinion and their administrative orders and things. As far as true case decisions, it’s about 60.

In 2020, it was 48 for the Oklahoma Supreme Court. I did a presentation on that. Those we can keep up with fairly quickly, and quarter of civil appeals were what we did in 2020. We’ll see how it goes here in 2021.

We may have to be a little more discerning and just because this is published, we may not need to talk about it. In some cases, we have said, “This is about expungements. If you practice in that area, you might want to have a look at it, but we don’t need to talk about it for ten minutes.”

We’ve covered a lot of stuff. Is there anything else you want to cover before we wrap up here?


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I’d be curious and our reader might want to know your backgrounds since we’re going to release this on our feed as well. What’s your background and how did you decide to take on this endeavor of a show? How often do you put out these episodes? We try to say every other Wednesday and we’ve been able to keep up with that pace so far, but I don’t know how often you all are trying to do it.

You are cranking them out though.

We have cranked them out. Jody, you can tell the origin story and I’ll chime in. You tell it better than I do.

About me, I am at Kelly Hart & Hallman, which is a firm that’s based in Fort Worth. I do primarily appellate practice and civil litigation as well. It varies month-to-month what that looks like, whether it’s working on actual appeals or working in the trial court on legal issues, appellate issues, or sometimes just straight litigation. That’s what I do. In terms of the show, it started with a joke on Twitter. I made a joke about starting an appellate podcast and inviting all my friends on. Blake Hawthorne, who’s the clerk of our Texas Supreme Court, picked it up and said, “Are you interested in that?” I thought, “Not really.”

Todd said, “Seriously, are you interested? I have always wanted to do that.” We talked on the phone and Todd has the tech side of it, which I certainly didn’t have. He had explored the idea a few years ago but realized it was more than one person could handle. I agreed with that, but we realized we complemented each other in terms of what we bring to it. We started doing it and we started, fortuitously or not, in early March 2020. Blake set us up.

We went down to the Texas Supreme Court and got to interview him and Justice Jeff Boyd as our first two guests. We went and did that. The next week, the pandemic hit, and everything shut down. We were planning to record over Zoom anyway because Todd’s in Austin and I’m in Fort Worth. It turned out that literally every judge in the State of Texas and the Federal Courts of Appeals, all know how to use Zoom and they all have Zoom accounts. It’s been easy to get guests because they didn’t have anywhere to go. They couldn’t have any excuses and they all have a Zoom account. We do it every week and it has worked out well to be able to do that.

I had looked at it going back a few years ago and saw a need and saw that there’s space to be filled with this kind of discussion. I started listening to legal podcasts and the ones I liked the most were the ones in this rather informal style, not a real stilted interview, bright lights in the face kind of thing. Because of the way that social media and podcasting has opened people up to be more transparent and getting to know the people behind the bench or these successful appellate practices or the court clerks, there’s such an opportunity. The medium lends itself to pulling back the curtain, which is such an apt visual as far as what we set out to do here.

The nice thing from our perspective is our courts are in favor of that. The people who run them are in favor of that. Jody mentioned Blake Hawthorne. It was fortuitous that we all happen to be in this conversation. When Jody made that Twitter post and Blake amplified it, I thought, “Maybe I’ll come back to that idea because it was the issue.” I’m a sole practitioner and I could not take on this thing by myself. At first, when we started, I thought we would do more of a twice a month kind of thing, more or less on the schedule that you all have done. We started off and we’re doing weekly episodes and we got together and said, “Let’s see how this goes.”

We found ourselves with an abundance of topics and potential guests, and it hasn’t stopped. It’s not been a struggle for us to put together a weekly episode. It doesn’t take all that much time to get on a Zoom call. As long as you spend a little time thinking about it in advance and know what you want to talk about. Generally, it does tend to flow and happen. One of the things we did early on was we went ahead and secured some sponsorship through a couple of companies that are known to the appellate world like Thomson Reuters and Court Surety Bond Agency.

Getting that support has allowed us to have the podcast operate on its own budget and not have to deal with cost factors and nobody’s law firm was saying, “What are you spending this money on? What do you do?” Everybody’s been very supportive. That’s been great. I’m overwhelmed that they are following what we’ve developed. We hit 10,000 downloads, which blows me away, but I can see now that having done this, the numbers are increasing and they’re starting to increase at a much faster rate. We’re not going to be the most popular podcast on the internet, but we have a niche.

We have managed to have some good guests come on and it’s been a pleasure to do. I enjoy it. There are days that I would rather do this than my day job. At the same time, we’ve all got bills to pay and you’ve got to take care of your client. My background, I was a two-year post-graduate law clerk briefing attorney at the Texas Supreme Court. That’s what got me interested. I was already interested in appellate work, but going and seeing how the sausage is made does give you that perspective and I’ve always joked around that. I saw what people were doing when I was in law school and I thought, “If they can do it, I can do it.” That’s turned out to be true in the end.

I make a career out of it and it’s been a good career. I’ve thoroughly enjoyed it. It’s like when I first started blogging many years ago. That was a novel thing, people come up and talk to me about it. I was always thrilled when a judge would ask me about it. This has taken the place of that. Podcasting is such a different medium to consume. You can do it anywhere, put in your headphones. What you all are doing is great. As far as the case-specific stuff, we’re going to have to think about whether that’s something we want to do, but our approach has been we’ll keep talking to people we know and are friends with.

TALP 49 | Oklahoma Appellate Law

Oklahoma Appellate Law: As far as the authority in Oklahoma, the Court of Civil Appeals take published and unpublished opinions as persuasive only.

 

Eventually, maybe we’ll run out of those people and we’ll do some case updates or something on top of that, but I have found that new issues arise as the calendar goes month to month. There’s always going to be something of interest to talk about, but it’s been fun for us to see what you guys are doing and check out your show and see you on appellate Twitter, which of course is a great source of buzz for all of us where we can meet our like-minded brothers and sisters and nerd out on this kind of stuff.

In Oklahoma, we have an appellate practice section in our bar association, but it’s a very small community that truly focuses on appellate work primarily. I can count on one hand the people who truly have an appellate practice in Oklahoma. It is nice to reach across state lines through social media and be able to connect with people who have a similar practice and a similar mindset about how they practice law. We sure do enjoy your guests and learning about the Texas court system, for sure.

I learned a lot about Oklahoma appellate procedure. It is interesting to me. We’ve come to the end of the time that we had scheduled, but we always like to ask our guests if they’ve got a particular tip or war story to pass along. Do you have anything that you’d like to share with the Texas appellate lawyer contingent?

I’ll give you a tip. If you’re thinking about taking an appeal in Oklahoma, Oklahoma in the district courts and at the appellate level does not have electronic filing. If you are going to do an appeal in the Oklahoma Supreme Court, I would highly suggest you get a copy of the rules and figure out how to bind your briefs, how many copies you need to file with your original, because all of those things highly matter still in Oklahoma appellate practice. That would be my practitioner’s tip for you.

My tip is to call Jana.

We have come to take electronic filing for granted in Texas and it has saved our bacon.

I can imagine how much more efficient your practice is, and easier because I get appeals out of Pittsburg County, which is McAlester, which is three hours away from me. I’ve got to have a certified copy of the final order. I have to have the paper record. It’s put together in the court clerk’s office and then mailed to the Supreme Court clerk. There have been times when we’ve had to make those trips, go down there and get some of those things if I wasn’t the trial lawyer or involved in the trial in any way. I envy the efficiency that electronic filing allows you to have in parts of your practice.

Texas is the same, but as far as filing that petition and error, the timeliness is jurisdictional. If you miss it by one minute, you’re done, no appeal. Having to round all that stuff up and get in the file on time in Oklahoma City is sometimes challenging.

Make sure you have an Oklahoma City courier on standby if you’re going to file something in the Oklahoma Supreme Court.

The greater bit of wisdom coming out of this is it’s worth consulting Oklahoma appellate counsel if Texas lawyers have appealed in Oklahoma because we are all used to electronic filing and we’ve gotten the advice of getting a copy of the rules. You’d like to think that’s the starting point for everyone, but it’s not. We didn’t invite you guys on the show as a business development tool, but I’m happy if anyone has an appeal in Oklahoma, Jody Sanders has some experience with those, but I sure don’t. Calling Jana and Gabe would be a good first step.

Thank you. We appreciate that.

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About Gabriel Bass

TALP 49 | Oklahoma Appellate LawGabe practices primarily in the areas of business law, real estate, oil & gas, and estates and trusts. Gabe is equally at ease in the boardroom and the courtroom. He has obtained Martindale-Hubbell’s highest rating of AV® Preeminent™, an indication that his peers rank him at the highest levels of professional excellence. Additionally, he has been recognized by Oklahoma Super Lawyers® and is listed in Best Lawyers in America®. Gabe was active duty, U.S. Marine, prior to joining Bass Law and remains an active member of the U.S. Marine Corps Reserve with the current rank of lieutenant colonel.

He is a graduate of the U.S. Marine Corps Command and Staff College and the U.S. Air Force Air War College and his personal decorations include the Meritorious Service Medal (with gold star in lieu of second award), Navy and Marine Corps Commendation Medal (with combat distinguishing device) and the Navy and Marine Corps Achievement Medal.

About Jana Knott

TALP 49 | Oklahoma Appellate LawJana L. Knott joined Bass Law in 2018. Prior to joining the firm, she worked for seven years as a staff attorney to the Honorable Noma D. Gurich, Justice of the Oklahoma Supreme Court.

Jana’s practice focuses primarily on appellate litigation, as well as public law & policy, business law, estate planning, probate, and oil & gas.

 

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