4 KEY TAKEAWAYS

After reviewing official court statistics, 178 Texas court-of-appeals decisions, and 132 Fifth Circuit decisions from 2017 to determine “Why Judgments Get Reversed,” I offer a few key takeaways:

1

“Legal issues” (i.e., interpreting statutory & contractual provisions, defining legal standards, determining standing & jurisdiction, etc.) are the most common reason for reversal (70% of reversals in CA5; 74% of reversals in TX COA), so start crafting your legal issues and arguments early in the trial court -- this is where excellent legal writing really matters!

2

The next-most common reasons for reversal are attorney-fee issues (arising in about Most TX judges recommend getting an appellate attorney to help with drafting the 25% of reversals in both CA5 and TX COA) and jury-charge error (in TX COA only), so make sure attorneys’ fees and the jury charge are not treated like an afterthought. charge and handling the charge conference.

3

The Fifth Circuit affirmed a judgment after finding that an issue or argument had been waived about 2.5 times more often than it reversed a judgment (split pretty evenly between trial-court waiver and briefing waiver), so pay attention to waiver risks from the pleadings onward -- and brief everything thoroughly!

4

Finally, several Fifth Circuit judges have publicly stated their preference for seeing established appellate attorneys on briefs and at oral argument, and two recent studies showed a correlation between having established appellate lawyers on the briefs and winning on appeal (especially for appellees) -- so consider hiring an appellate attorney!