Inadmissible

A report released in October by the 5th U.S. Circuit Court of Appeals confirms what many lawyers already know: More than half of the cases the court considers are criminal in nature, and the majority of appeals are generated by the Lone Star State, which shares the court with Louisiana and Mississippi. But there are a few surprises in the Clerk’s Annual Report, which covers July 2011 through June 2012. For example, the number of new appeals filed during that time period was up 1.2 percent, from 7,537 to 7,626. However, the court issued 3,024 opinions during the 2011-2012 time period, down from 3,192 for the July 2010 through June 2011 time period. There’s a reason why filings can go up, while opinion totals can go down at the same time, says 5th Circuit Judge Carolyn Dineen King. “I think there’s some lag time between when the incoming cases show up and when that begins to manifest itself in more opinions,” she says, noting that it can take over a year for the court to issue an opinion in some appeals. The numbers show that 66.6 percent of the new filings at the court came from Texas — 5,077 out of 7,626 total filings. The Western District of Texas showed the biggest jump in filings. The Western District sent 1,344 appeals to the 5th Circuit, compared to 1,268 the previous year, according to the report. “We don’t have any choice over the cases. We don’t grant cert in this court,” King notes. “We take the cases that come our way, and they have a very heavy criminal docket in the Western District.” Fifth Circuit Judge Edith Jones says the court’s criminal docket has a big impact on the yearly statistics. And the criminal filings could explain why the court saw a spike in newly filed appeals but a lower number of overall opinions. “I would have to speculate that it has to do with the number of criminal cases. Some of those are disposed of in ways that do not necessarily show up as opinions,” Jones notes. Sometimes a decision from a previous year ends up creating a new theory for appeal the following year, she says. “Every year the court is coming out with new decisions that affect sentencing and give the defense bar new avenues of challenging convictions,” Jones says. “It’s an evolving area.”

Fees, Please

Late last year, U.S. District Judge Reed O’Connor awarded more than $21 million in attorney fees to Lisa Blue and Baron and Blue; Charla G. Aldous and the Aldous Law Firm; and Stephen F. Malouf and the Law Offices of Stephen F. Malouf — collectively known as “BAM” in O’Connor’s opinion. BAM had represented Albert G. Hill III in a complicated trust dispute. Hill later challenged the validity of the contingent-fee agreement he had with BAM and the amount he owed, according to the order O’Connor issued in the case. [See "BAM! Counsel Win $21 Million in Fees From Clients Who Wouldn't Pay," Texas Lawyer, Jan. 30, 2012, page 1.] Hill appealed the decision to the 5th U.S. Circuit Court of Appeals. On Oct. 26, the 5th Circuit dismissed Hill’s appeal of the attorney fees awarded to BAM in Hill v. Schilling, et al. In its per curiam opinion, the 5th Circuit noted that Hill “entered into an agreement to submit the BAM fee dispute for resolution by the District Court” and “[a]s a part of that agreement waived . . . his right of appeal to this court.” The 5th Circuit panel concluded that Hill’s appeal of the attorney-fee issue was “barred by the appeal waiver agreement.” Alan Loewinsohn, a partner in Dallas’ Loewinsohn, Flegle & Deary who represents BAM, says he’s pleased with the decision. “We’re appreciative of the prompt ruling of the court of appeals and that they confirmed our original position that the judgment should stand and should not have been appealed,” says Loewinsohn, noting that the court issued its decision less than a month after it heard oral arguments on Oct. 1. William J. Skepnek, of The Skepnek Firm in Lawrence, Kan., represents Hill on appeal. He says he’s disappointed in the decision. “Right now, we’re considering what to do. We have not made any final decisions,” Skepnek says. Blue says she’s happy with the 5th Circuit decision, but expects the fight is not over. “. . . I wouldn’t be surprised if they filed an appeal en banc and an appeal to the U.S. Supreme Court,” Blue says. Malouf says he’s pleased the 5th Circuit saw the attorney-fee challenge BAM’s way. “It was always our view that Mr. Hill had agreed that the trial court would finally decide the issue. And when he appealed the decision of the trial court, it was always our position that he had waived his right to appeal. And thankfully the 5th Circuit agreed and dismissed his appeal,” Malouf says. Aldous declines comment. [See the Jan. 10 judgment and order.]

The Young Ones