An appeal is not a second trial. It is an argument about a closed record, decided by judges who were not there, under standards of review that frequently matter more than the merits.
Most appeals are won or lost before the notice of appeal is filed — in what was objected to, what was offered, and what the judgment actually says.
What an appeal actually decides
The standard of review is usually the case. Whether a court of appeals will substitute its own judgment or defer to the trial court’s is the single most consequential question in most appeals, and it is answered issue by issue. Pure questions of law are ordinarily reviewed without deference. Findings of fact and discretionary rulings are not. An appellant with a strong argument reviewed for abuse of discretion is frequently in a worse position than one with a modest argument reviewed afresh, and briefing that does not lead with that distinction has usually misunderstood its own case.
Preservation is jurisdictional in effect. As a general matter, a complaint must have been presented to the trial court by a timely request, objection or motion that stated the specific grounds, and the trial court must have ruled or refused to rule. A complaint raised for the first time on appeal is ordinarily not considered, however meritorious. That rule is why appellate work is trial work: the appeal is built, or lost, in the hearing.
Sufficiency challenges are their own discipline. Legal and factual sufficiency are different complaints with different standards, different consequences, and different preservation requirements — and the route to preserving them in a jury case is not the same as in a bench trial. A legal-sufficiency challenge that succeeds can produce rendition of judgment; a factual-sufficiency challenge that succeeds produces a new trial. Which one is being made should never be ambiguous — and it drives how high the case can go, because the Supreme Court of Texas does not review factual sufficiency, so a factual-sufficiency point ends at the court of appeals while a legal-sufficiency point can be carried up and rendered.
Harm is a separate question from error. Establishing that the trial court got something wrong is only half of it. Most errors require the appellant to show that the error probably caused an improper judgment or prevented proper presentation of the appeal. A great deal of appellate briefing fails not on error but on harm, and the harm analysis has to be built from the record rather than asserted.
Charge error is where civil verdicts are undone. The jury charge is the point at which the law of the case is fixed, and objections to it must be made with specificity and at the right time. A charge complaint that was not preserved correctly is a verdict that cannot be attacked, and one that was preserved correctly is frequently the strongest issue in the appeal.
Deadlines are not flexible. Appellate timetables run from events, not from awareness of them, and certain post-judgment motions extend them while others do not. Getting that calculation wrong forfeits the appeal entirely. It is the first thing we check, before anything else, and it should be checked within days of the judgment.
Mandamus and the orders that cannot wait
Most rulings are reviewable only after final judgment. Some cannot usefully wait that long — an order compelling production of privileged material, a ruling that disqualifies counsel, a refusal to compel arbitration, a discovery order that cannot be undone once obeyed.
Mandamus is an extraordinary remedy with a demanding standard. Relief ordinarily requires showing both a clear abuse of discretion and the absence of an adequate remedy by ordinary appeal. The second requirement defeats most petitions. A ruling that is merely wrong, and whose consequences can be corrected after final judgment, is not a mandamus case — and filing it as one costs money, credibility and time.
The record is the petition. A mandamus record is assembled by the relator, is subject to specific certification and authentication requirements, and must contain every document the court needs to grant relief. Petitions fail on incomplete records with some regularity. Assembling that record properly is a substantial part of the work and is not clerical.
Some interlocutory orders are appealable without mandamus. Texas provides for accelerated appeal of certain categories of order — among them rulings on special appearances, class certification, and temporary injunctions — and where an accelerated appeal is available, mandamus ordinarily is not the right vehicle. Choosing the wrong one wastes the only chance to get the ruling reviewed in time. See Jurisdictional Challenges and Injunctions & Temporary Restraining Orders.
Timing still matters even without a deadline. Mandamus is not governed by the same fixed timetable as an appeal, but unexplained delay in seeking it is a recognized ground for denying relief. A relator who sat on an order for months will be asked why.
Where these cases are won
In the trial court, months earlier. We take appeals in cases tried by other lawyers, and the most common problem we find is not a weak argument — it is a strong argument that was not preserved. Where we are brought in before or during trial, the work is to make the record: the objections, the offers of proof, the charge objections, the motions that have to exist for the issue to survive. That is the single highest-value thing an appellate lawyer does.
In the selection of issues. An appeal with two well-developed issues is ordinarily stronger than one with nine. Every additional issue dilutes the court’s attention and signals that the appellant does not know which one is best. Deciding what to leave out is most of the judgment in this work.
In the record. The reporter’s record and clerk’s record are the universe. If it is not there, it does not exist, and requesting the right portions of the record — completely and on time — is an early decision with consequences that cannot be fixed later.
In the writing. Appellate courts decide on the briefs far more often than on the argument. The brief has to state the standard of review honestly, confront the worst fact in the first section rather than the last, and give the court a disposition it can actually write. Briefs that argue as though the reader were a jury do not work.
At argument, when it is granted. Oral argument is not a recitation of the brief. It is twenty minutes of answering the questions the panel actually has, which are usually not the questions the briefing anticipated. Preparation for it is preparation to be interrupted.
On the possibility of further review. Review in the Supreme Court of Texas is discretionary and is granted in a small fraction of cases, and the petition is a different document with different criteria — it is about why the issue matters beyond the parties, not about why the court of appeals erred. The same is true, more so, of certiorari. Those petitions are drafted to their own standard or not at all.
What we do
We handle civil appeals in the Texas courts of appeals, petitions for review in the Supreme Court of Texas, appeals in the United States Court of Appeals for the Fifth Circuit, original proceedings including mandamus and prohibition, accelerated interlocutory appeals, post-judgment and post-trial motions, supersedeas and security to suspend enforcement, and briefing and argument on appeal in cases tried by other counsel.
We are also retained during trial, or before it, to preserve the record and to handle the legal issues that will decide the appeal — charge conferences, dispositive motions, and the evidentiary rulings that matter.
The appellate practice is led by Shawn A. Johnson, a civil trial and appellate lawyer, licensed CPA, and former law clerk at the Supreme Court of Texas.
Representative appellate results
Petition for writ of certiorari defeated in the Supreme Court of the United States
Successfully defended, as lead counsel, against certiorari review of the Nevada Supreme Court’s finding of personal jurisdiction over a non-resident defendant.
Ralph Lewis v. Power Research, Inc., No. 21-494 (U.S. Mar. 7, 2022).
Disqualification of opposing counsel upheld by the Supreme Court of Texas
Obtained disqualification of opposing counsel and his law firm based on a side-switching legal assistant, upheld on mandamus review by the Fourteenth Court of Appeals and the Supreme Court of Texas.
In re Zaidi, 732 S.W.3d 525 (Tex. 2026) (orig. proceeding); Apex Katy Physicians, LLC v. Zaidi, No. 2009-02578, 61st District Court, Harris County, Texas (July 20, 2023).
$2.2 million judgment reversed; take-nothing judgment rendered
Reversal and rendition for a pastor in a suit alleging transmission of a sexually transmitted disease, establishing that expert testimony is required to prove causation in disease-transmission cases, after defeating the plaintiff’s post-judgment turnover and receivership motion.
West v. D.C., 718 S.W.3d 331 (Tex. App.—Houston [14th Dist.] June 26, 2025, pet. filed).
Special appearances reversed as lead appellate counsel; petition for review defeated
Reversal of orders granting special appearances of defendants residing or incorporated in California, Nevada, and Greece (2020), and successful defense of the petition for review (2021).
Power Research Inc. v. Lewis, No. 14-19-00012-CV, 2020 WL 5200913 (Tex. App.—Houston [14th Dist.] Sept. 1, 2020).
Fifth Circuit reversal of summary judgment; favorable settlement obtained
FMLA retaliation claims against a municipality.
Murillo v. City of Granbury, No. 22-11163, 2023 WL 6393191 (5th Cir. Oct. 2, 2023) (per curiam).
Defamation claims dismissed; fees and costs awarded
Dismissal of a congressional candidate’s defamation claims against his opponent.
Moore v. Reed, No. 14-20-00463-CV, 2022 WL 1180116 (Tex. App.—Houston [14th Dist.] Apr. 21, 2022, no pet.).
Questions we are asked
We lost. How long do I have to decide whether to appeal?
Not long, and the answer depends on what post-judgment motions were filed and when. Appellate deadlines run from the judgment, and some motions extend them while others do not. This is the first thing to determine and it should be determined within days, not weeks — a missed deadline ends the matter regardless of the merits.
Can we introduce new evidence on appeal?
Ordinarily not. The appeal is decided on the record made in the trial court. That is why the most valuable appellate work often happens before the verdict, and why a case handled with the appeal in mind looks different from one that was not.
Our trial lawyer did not object to something important. Is the issue gone?
Frequently yes, though not always — some complaints may be raised without an objection, and some can be preserved by post-judgment motion. It is one of the first questions we answer when we take over an appeal, and the honest answer sometimes is that the strongest issue cannot be reached.
Should we use our trial lawyer for the appeal?
Sometimes. A lawyer who tried the case knows the record, which is a real advantage. But appellate briefing is a different exercise from trial advocacy, and an appeal that requires arguing that something went wrong at trial is harder for the person who was running the trial. We handle both, and we also work alongside trial counsel rather than replacing them.
The judge just ordered us to produce privileged documents. Do we have to wait until the end of the case?
That is the classic situation for mandamus, because once privileged material is produced the harm generally cannot be undone by an appeal later. Whether relief is available still turns on showing a clear abuse of discretion and the inadequacy of ordinary appeal, and on assembling a complete record quickly.
How likely is the Supreme Court of Texas to take our case?
Review is discretionary and is granted in a small fraction of petitions. A petition succeeds on the importance of the issue to Texas law — conflict among the courts of appeals, an unsettled question of statewide consequence — rather than on the unfairness of the result. We will tell you candidly whether the case presents that kind of issue.
Can we stop the other side from collecting while we appeal?
Usually only by superseding the judgment, which ordinarily requires posting security in an amount set by rule and subject to statutory caps, and which the trial court can adjust in defined circumstances. It is a distinct proceeding that has to be started promptly, and it is frequently more urgent than the appeal itself.
Do you take appeals in cases you did not try?
Yes, and a substantial part of this practice is exactly that. We also take on the appellate issues during trial for lawyers who want the record protected by someone whose job is only that.
Results depend on the facts of each matter. Prior results do not guarantee or predict a similar outcome in any future matter.