Dana Livingston

Biography

Clients embroiled in bet-the-company appeals and high-stakes litigation call on Dana for the type of broad and deep experience a savvy appellate lawyer can bring. A board-certified appellate specialist and a Fellow of the by-invitation-only American Academy of Appellate Lawyers, Dana is recognized as one of the premier appellate practitioners in the state, with particular expertise before the Fifth Circuit and the Supreme Court of Texas. A former Law Clerk for the Fifth Circuit and a former Staff Attorney at the Supreme Court of Texas, Dana is equally fluent in both state and federal appellate matters.

Because of her extensive appellate expertise, the Texas Board of Legal Specialization appointed Dana to its Civil Appellate Examination Commission—the committee that writes and grades the state’s specialization exam. Dana has also served as an Adjunct Professor of Law at the University of Texas School of Law where she taught Appellate Advocacy for many years.

A sought-after CLE speaker on appellate practice, Dana is also a contributing author for the Texas Practitioner’s Guide to Civil Appeals (Texas Lawyer Books 2019). And on the national stage, the American Bar Association selected Dana as the Editor in Chief of the two-volume multi-jurisdictional appellate practice guide, the Appellate Practice Compendium.

During her 30-plus years of practice, Dana’s wide-ranging experience in appellate advocacy and complex legal issues covers a diverse range of substantive law. Known for her ability to weave creative problem-solving with the meticulous analysis the appellate process demands, she often works with trial counsel on strategy, key discovery disputes, legal motions, crafting and arguing the jury charge, and error preservation during and after trial to achieve an early litigation victory or lay the groundwork for a successful appeal or mandamus.

Dana entered private practice with the Houston office of Vinson & Elkins LLP and was a partner for 15 years with the Austin office of the appellate boutique Alexander Dubose Jefferson & Townsend LLP where she was the managing partner. She has been Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization since 1995 and is ranked for appellate in Chambers. Dana was recently named one of the “Top 10 Most Influential Texas Appellate Litigators.”

Education

University of Texas School of Law – J.D., with honors, 1990
– Texas Law Review (1988 – 1990), Executive Editor (1989 – 1990)
University of Texas at Austin – B.A., with high honors, 1987

Recognitions & Distinctions

Fellow, American Academy of Appellate Lawyers—the premier organization for appellate specialists in the United States
Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization (1995 – present)
United States Court of Appeals for the Fifth Circuit, Law Clerk (1990 – 1991)
Supreme Court of Texas, Staff Attorney (1996 – 1998)
Appointed by the State Bar of Texas and the State Board of Disciplinary Appeals as Special Assistant Disciplinary Counsel on Appeal (1994 – 1996)
Texas Board of Legal Specialization, Civil Appellate Examination Commission (2004 – 2010)
University of Texas School of Law, Adjunct Professor of Law, Appellate Advocacy (2000 – 2007, 2022 – 2023)
Chambers USA: Guide to America’s Leading Lawyers for Business — Ranked for Texas Litigation: Appellate (2022 – present)
Best Lawyers in America: Appellate Law (2008 – present)
Selected for inclusion in Thomson Reuters Super Lawyers Texas in Appellate Practice (2003 – present)
Named one of the “Top 10 Most Influential Texas Appellate Litigators” (Business Today 2023)

Speaking Engagements & Presentations

Stays and Emergency Relief in Federal Appellate Courts, in STATE BAR OF TEX., ADVANCED APPELLATE PRACTICE COURSE (2024) (speaker & author)
Under-Utilized Procedural Tools—How to Make Use of Rule 166(g) Motions, Rule 62.1 Indicative Rulings, and Rule 54(b) Judgments, in UNIV. OF TEX. 33RD ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2023) (speaker & author)
Jury Charge in Construction Cases, in State Bar of Tex., Prof. Dev. Program, 35th Annual Construction Law Conference (2022)
Certification of Questions to State Courts, in Appellate Judges Education Institute Summit (2021) (panel moderator)
Seeking Rehearing: Don’t Banc on It, in STATE BAR OF TEX. PROF. DEV. PROG., HANDLING YOUR FIRST (OR NEXT) FIFTH CIRCUIT APPEAL (2020) (co-presenter with Fifth Circuit Judge Jennifer Walker Elrod & author)
Federal Court Certification of State Law Questions: Lessons from Other Circuits, in UNIV. OF TEX. 26TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2020)
Interview with Fifth Circuit Judge Don Willett, in UNIV. OF TEX. 28TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2018)
Fifth Circuit Panel & En Banc Rehearing: Strategies & Voting Patterns, in UNIV. OF TEX. 27TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2017) (co-presenter)
Fifth Circuit En Banc, in UNIV. OF TEX. 26TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2016) (co-presenter with Fifth Circuit Judge Jennifer Walker Elrod)
From Volkswagen to Crystal Power to RadMax: The Changing Landscape of Mandamus in the Fifth Circuit, in UNIV. OF TEX. 24TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2014) (speaker & author)
Federal Interlocutory Appeals and Mandamus, in UNIV. OF TEX. 23RD ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2013) (speaker & author)
Fifth Circuit Voting Patterns, in STATE BAR OF TEX. PROF. DEV. PROGRAM, 20TH ANNUAL ADVANCED CIVIL APPELLATE PRACTICE COURSE (2011) (speaker & author)
Panel Roulette: Fifth Circuit Voting Patterns, Dallas Bar Ass’n Appellate Section (2010) (speaker)
Competing Visions of the Role of an Appellate Court: Internal Struggle at the Fifth Circuit, Houston Bar Association Appellate Section Luncheon (2009) (speaker)
Preserving Error for Appeal, AUSTIN BAR ASSOCIATION,ULTIMATE TRIAL NOTEBOOK SEMINAR (2009) (panelist)
Anatomy of an Appeal Part 2: Persuasion, ABA/YLD TELECONFERENCE (2009) (co-presenter)
Oral Argument: Anticipating and Handling the Tough Questions at the Supreme Court of Texas, in UNIV. OF TEX. 18TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS APPEALS (2008) (co-presenter)
How to Make Yourself Indispensable at Trial, in STATE BAR OF TEX. PROF. DEV. PROGRAM, 20TH ANNUAL ADVANCED CIVIL APPELLATE PRACTICE COURSE (2006) (panelist)
For the Record: Judicial Notice on Appeal, in UNIV. OF TEX. 16TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2006) (co-presenter & co-author)
Fifth Circuit Clerk’s Rules and Procedures You Should Know, But No One Ever Told You, in UNIV. OF TEX. 15TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2005) (co-presenter with Clerk of the Fifth Circuit, Fritz Fulbruge)
Jury Charge and Other Error Preservation Hot Topics, in AUSTIN BAR ASSOCIATION ULTIMATE TRIAL NOTEBOOK SEMINAR (2005) (panelist)
Fifth Circuit Internal Operating Procedures Beyond the I.O.P.s, in STATE BAR OF TEX. PROF. DEV. PROGRAM, 18TH ANNUAL ADVANCED CIVIL APPELLATE PRACTICE COURSE (2004) (speaker & author)
Interlocutory Appeals and Mandamus in Federal Court, in UNIV. OF TEX. 14TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2004) (speaker & author)
Threshold Forum Issues, in STATE BAR OF TEX. PROF. DEV. PROG., 26TH ANNUAL ADVANCED CIVIL TRIAL COURSE (2003) (speaker & co-author)
The Supervening Decision Doctrine, in UNIV. OF TEX. 13TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2003) (speaker & author)
Permissive Interlocutory Appeals in State Court, in TRAVIS COUNTY BAR ASS’N BENCH–BAR CONF. (2003) (speaker & author)
Interlocutory Appeals, in TRAVIS COUNTY BAR ASS’N BENCH–BAR CONF. (2003) (speaker)
Permissive Interlocutory Appeals in State Court, in UNIV. OF TEX. 12TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2002) (speaker & author)
Briefing to the Intermediate Courts of Appeals: State and Federal, in STATE BAR OF TEX. PROF. DEV. PROG.,NUTS & BOLTS OF APPELLATE PRACTICE (2001) (speaker & author)
Fifth Circuit Internal Operating Procedures Beyond the I.O.P.s, in UNIV. OF TEX. 11TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2001) (speaker & co-author)
Federal Interlocutory Appeals and Mandamus, in UNIV. OF TEX. 10TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (2000) (speaker & author)
Preparing and Preserving Error in the Jury Charge, in UNIV. OF TEX. CONF. ON PROCEDURE AND EVIDENCE (2000) (speaker & author)
Practice Before the Third Court of Appeals, in TRAVIS COUNTY BAR ASS’N BENCH–BAR CONF. (2000) (panel moderator)
Cases Pending Before the Supreme Court of Texas, inTRAVIS COUNTY BAR ASS’N CIVIL APPELLATE SEMINAR (1999) (speaker & author)
Ten Things You Ought to Know About Practicing in the Fifth Circuit, AUSTIN BAR ASS’N CIVIL APPELLATE LAW SECTION LUNCHEON (1998) (speaker & author)
Perfecting the Appeal and Appellate Motion Practice, in STATE BAR OF TEX. PROF. DEV. PROG., APPELLATE PRACTICE INSTITUTE (1998) (speaker & author)
Practice Before the Supreme Court of Texas, in STATE BAR OF TEX. PROF. DEV. PROG., APPELLATE PRACTICE INSTITUTE (1998) (speaker & co-author)
A Comparison of State and Federal Appellate Practice, in STATE BAR OF TEX. PROF. DEV. PROG., APPELLATE PRACTICE INSTITUTE (1998) (speaker & co-author)

Publications

Editor-in-Chief, Appellate Practice Compendium (ABA 2012)
Author, Appellate Practice Compendium (ABA 2012)
Author, Texas Practitioner’s Guide to Civil Appeals, Mandamus Chapter (ALM 2d ed. 2019)
Comparison of State and Federal Appellate Practice, in STATE BAR OF TEX. PROF. DEV. PROG., APPELLATE BOOT CAMP (2009) (co-author)
A Comparison of State and Federal Appellate Practice, in STATE BAR OF TEX. PROF. DEV. PROG., APPELLATE BOOT CAMP (2008) (co-author)
Insider’s Guide to Fifth Internal Procedures, in Fifth Circuit Ultimate Practice Guide: What Every State-Court Practitioner Needs to Know About Practicing in the Fifth Circuit, in STATE BAR OF TEX. PROF. DEV. PROG., APPELLATE BOOT CAMP (2005) (author)
Nuts and Bolts of Fifth Circuit Practice, in UNIV. OF TEX. 9TH ANNUAL CONF. ON STATE AND FEDERAL APPEALS (1998) (co-author)
Texas Supreme Court Update, in STATE BAR OF TEX. PROF. DEV. PROG., 14TH ANNUAL LITIGATION UPDATE INSTITUTE (1998) (co-author)
Interlocutory Remedies in State Court, in UNIV. TEX. 21ST ANNUAL PAGE KEETON PRODUCTS LIABILITY AND PERSONAL INJURY LAW CONF. (1997) (co-author)
Fifth Circuit Update, in STATE BAR OF TEX. PROF. DEV. PROGRAM, 10TH ANNUAL ADVANCED CIVIL APPELLATE PRACTICE COURSE (1996) (co-author)
The Court’s Charge, in STATE BAR OF TEX. PROF. DEV. PROG., 16TH & 15TH ANNUAL ADVANCED CIVIL TRIAL COURSE (1993 & 1992) (co-author)
Jury Charge in State and Federal Court, in STATE BAR OF TEX. PROF. DEV. PROG., 9TH ANNUAL ADVANCED PERSONAL INJURY LAW COURSE (1993) (co-author)

Memberships & Affiliations

American Academy of Appellate Lawyers
– Fellow (by invitation only), Appellate Rules Task Force (Chair), Planning Committee (Member)
American Bar Association
– Council of Appellate Lawyers, Judicial Division
– Publications Committee (Editor of Appellate Practice Compendium) (2008 – 2014)
– Rules Committee, Member (2008 – 2014)
Texas State Bar
– Appellate Practice & Advocacy Section
– Section Member (1991 – present)
– Interaction with Judges Committee (2018 – 2019)
– Appellate Advocate, Editor (2019 – 2022), Associate Editor (1996 – 1997, 2003 – 2006)
– Electronic Publications Committee, Member (1996 – 1997)
– Annual Meeting Planning Committee, Member (2003)
– Pattern Jury Charge Committee, General Negligence and Intentional Personal Torts, Member (2004 – 2006)
– Plain Language Committee, TYLA Liaison (1994 – 1995)
– Texas Bar Foundation, Fellow (1995 – present)
– Texas Bar Journal, Editorial Board (1995 – 1998)
– Texas Bar Journal Committee, Member (1995 – 1998)
Austin Bar Association
– Appellate Section, Chair (2003 – 2004)
– Austin Young Lawyers Association: AYLA Board of Directors (2003 – 2004); Treasurer (2002 – 2003); Secretary (2001 – 2002); Director (2000 – 2001)
– Austin Lawyer, Editor of AYLA Section (1999 – 2003)
– Judicial Affairs Committee, Co-Chair (1998 – 2003)
– Publications Committee, Co-Chair (1999 – 2003)
– Supreme Team Committee, Co-Chair (1998 – 1999)
– VoTexas Committee, Member (1998 – 1999)
– Nominated for Outstanding Young Lawyer of Austin (2000)
University of Texas Annual Conference on State and Federal Appeals:
– Planning Committee Member (2002 – present)
– Presiding Officer (2003, 2005 – 2007, 2010)
Bar Association of the Fifth Federal Circuit

Admissions

United States Supreme Court
United States Courts of Appeals for the Third, Fifth, Eighth, Ninth & Eleventh Circuits
United States District Court: Northern, Eastern, Southern, & Western Districts of Texas
State Bar of Texas

Contact

Practice Areas