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Ahead of the Curve: Meet Appellate Partner Penny Nicholson

Ahead of the Curve: Meet Appellate Partner Penny Nicholson

Hicks Johnson partner Penny Nicholson, a veteran appellate practitioner board-certified in civil appellate law, has spent the past 30 years at the forefront of this evolving practice area. As a partner at Vinson & Elkins, she helped co-found the firm’s appellate section in 1990—one of the first in Texas. Below, Penny discusses her history at V&E, her current appellate practice at Hicks Johnson, her approach to appellate law, and what makes appellate lawyers an invaluable addition to any trial practice.

Why was the decision made to establish a formal stand-alone appellate section at V&E?

Until the late 1980s, trial lawyers tended to handle their own appeals. After I joined V&E’s commercial litigation section, I gradually became known for my ability to handle appeals in what was then a developing area.

My colleague Marie Yeates, who started in V&E’s admiralty law section and later transitioned to torts, had a similar experience. Given the volume of appellate work that we were handling, we thought it might be beneficial for V&E to start a standalone appellate practice. Once the firm gave the green light, we were off to the races. Our appellate practice consisted both of handling appeals of cases tried by other law firms and appeals of cases tried by V&E lawyers.

The appellate section at V&E was majority women. What was that experience like?

It was certainly a rarity in the early 90s. Marie was one of the firm’s first female section heads, and most of our partners were women, too. I loved the group’s collaborative spirit and camaraderie. I also love that Hicks Johnson’s appellate section is following in those footsteps, with a majority-women team and a similar collaborative dynamic.

What are the benefits of practicing appellate law at Hicks Johnson?

The Hicks Johnson appellate group is nimble and close-knit. When we get new appeals, we often huddle as a group to brainstorm ideas. The product of our collaborative sessions is always stronger and more creative than the product of any single lawyer could have been. These sessions are one of my favorite parts of our appellate practice—the give and take that comes from the exchange of ideas, and the development of arguments that become stronger because of it.     

In addition to handling appeals and mandamuses, appellate lawyers can also play a key role at the trial court level. How do you partner with trial lawyers to set a case up for success?

At Hicks Johnson, the appellate practice handles appeals in cases tried by other law firms as well as in cases tried by Hicks Johnson lawyers. In addition, we support Hicks Johnson lawyers by handling appellate-related matters that arise during trial, like the jury charge and mandamuses. We try to posture cases so they will have the best possible chance for success on appeal, whether we win or lose at trial. There are a number of matters in the trial court that can have huge ramifications on appeal, a crucial one being the jury charge. Because trial lawyers are typically busy preparing for closing arguments at about the same time that charge objections have to be made, they are often happy to have appellate lawyers handle the jury charge and charge objections. Cases can be won or lost based on matters relating to the jury charge, so it’s important to structure the charge correctly and make the necessary objections to set up any appeal. Appellate lawyers also can handle emergency matters that sometimes arise during trial, like the need to file a mandamus petition. Ultimately, clients can benefit tremendously from having appellate expertise available at trial.

Describe your approach to appellate law.

Whenever I handle an appeal, I always try to accomplish two main objectives: 1. to make the appellate court want to rule in my client’s favor and 2. to provide the court with a roadmap of how to rule in my client’s favor. In some cases, compelling facts can make a court want to rule in your client’s favor, but you still have to provide the court with the legal arguments necessary to get to that result. In other cases, a compelling legal argument can both make the court want to rule for your client and give the court a way to do so.

I’ve witnessed many changes to the practice of appellate law since I started out, but the power of a strong narrative has remained constant. For me, a key objective has always been to tell the best story as simply as possible. If you can master the art of persuasion in both written and oral advocacy, you’ll be ideally positioned to deliver the best possible result for your clients.