DRI’s 2016 appellate seminar

If you will be looking for high-quality appellate CLE in 2016—and if you don’t mind catching a flight out of Louisiana the day after Mardi Gras—then save the dates of February 11–12, 2016. That’s when DRI will hold its 2016 Appellate Seminar in Scottsdale, Arizona. The official program has not yet been released, but DRI’s e-mail blast promises the following content:

The program includes unique presentations pertaining to every stage of an appeal, including seeking discretionary review, staying the trial court decision, considering settlement on appeal (including consideration of vacatur options), and presenting your best case through effective use of public policy arguments. We will also explore the review of arbitration awards, both through traditional appellate courts and alternative methods, in the wake of Hall Street Associates. And Josh Blackman, the creator of FantasySCOTUS, will discuss how you can use Big Data to predict how judges will decide cases. We will have top appellate practitioners offering practical advice on growing your appellate practice, both within and outside of your firm. As always, we will have a mock argument before three esteemed jurists on an actual class action case pending before the U.S. Supreme Court.

I’ve attended all but one DRI appellate seminar since the first one in 1999. If this one lives up to its predecessors, it will be the best appellate CLE you can find in 2016. (Disclosure: I’ve been a member of the DRI Appellate Advocacy Committee since before 1999, and I’m on the steering committee.)

Three upcoming appellate CLE programs

If you’re looking for CLE focused on appellate advocacy, you will have three programs to choose from this fall:

Writ applications: A lesson on timeliness

A recent writ decision by the Louisiana First Circuit provides a valuable lesson on timeliness. As most of you know, a party wishing to apply to the court of appeal for a supervisory writ must first file, in the trial court, a notice of intent to seek a supervisory writ and obtain an order setting a return date—a deadline by which to file the application in the court of appeal. These steps must be completed within 30 days after notice of the trial court’s ruling sought to be reviewed. See La. Ct. App. Unif. R. 4-3. With that rule in mind, consider this time line:

  • December 5, 2014: The trial court denied the relators’ motion for summary judgment.
  • January 6, 2015: The trial court signed a written judgment on its December 5 ruling.
  • January 16, 2015: The relators filed a notice of intent to seek a supervisory writ.

Was the notice of intent timely? No, found the First Circuit. Why? According to the court:

The January 6, 2015 written judgment states that judgment was rendered in open court on December 5, 2014, and the transcript of the hearing confirms this. However, there is no evidence that a written judgment was ordered by the trial court or that a written request for a judgment was filed within 10 days of the ruling in open court so as to make the notice of intent timely under Rules 4-2 and 4-3. See La. Code Civ. P. arts. 1914(A) and (B).

Does this ruling surprise you? It shouldn’t. Unlike a final judgment, an interlocutory judgment does not have to be reduced to writing and signed by the trial court. Under La. Code Civ. P. art. 1914(A), the general rule is that “the rendition of an interlocutory judgment in open court constitutes notice [of judgment] to all parties.” Article 1914(B) provides three exceptions to this general rule, under which the judgment must be reduced to writing:

  • if the court so orders;
  • if, within 10 days of rendition in open court, a party request that the judgment be reduced to writing; or
  • if the court takes the interlocutory matter under advisement.

When one of these three exceptions applies, the clerk’s mailing of notice of judgment constitutes notice of judgment to start the 30-day time to file a notice of intent. In the vast majority of cases, the trial court orders counsel for the prevailing party to prepare a written judgment.  But you must remember that, according to the structure of art. 1914, this nearly universal exception to the general rule is just that: an exception. The general rule (which unfortunately applied in the First Circuit case discussed above) is that rendition in open court equals notice of judgment, which starts the 30-day clock ticking.

Here are the lessons we can take from this case:

  • When a trial court issues an adverse interlocutory ruling in open court, assume that the general rule of art. 1914(A) applies, and that the 30 days to file a notice of intent started running at that moment.
  • Do not assume that notice of the subsequent written judgment starts the 30-day period unless you are absolutely sure that one of the art. 1914(B) exceptions applies.
  • If you file your notice of intent more than 30 days after the hearing but less than 30 days after notice of the written judgment, include in your writ application evidence that the trial court ordered the judgment to be reduced to writing. This evidence should consist of the hearing transcript, a minute entry of the court’s ruling, or both.
  • When you write the jurisdictional statement in your writ application, demonstrate the application’s timeliness. Cite the exact pages in the appendix showing when notice of judgment occurred under art. 1914(A) or (B). Also provide pinpoint citations of the notice of intent (showing that it was filed timely) and the order setting the return date (showing that the application itself was filed timely).

For more on this topic, read R. Ward, A Writ in Time, 51 La. Bar J. 338 (Feb./Mar. 2004).

La. Supreme Court justices on same-sex marriage

Today the Louisiana Supreme Court issued a decision in Costanza v. Caldwell, a case involving same-sex marriage that has managed to fly under the radar of main-stream media. Since my firm represented an amicus in the case, I won’t comment on the decision; instead I’ll just report the facts. The trial court had held Louisiana’s ban on same-sex marriage unconstitutional. The State appealed to the Louisiana Supreme Court. Today the Louisiana Supreme Court dismissed the appeal on grounds of mootness, as the issue has since been decided by the U.S. Supreme Court, the U.S. Fifth Circuit, and the U.S. District Court for the Eastern District of Louisiana. Justices Knoll, Weimer, Guidry, and Chrichton filed concurring opinions; Justice Hughes filed a dissenting opinion. Here are links to the press release and the decision itself, including the concurring and dissenting opinions.

Appellate specialization in Louisiana

Louis LaCour, chair of the Louisiana State Bar Association’s appellate section reports on an important vote yesterday by the LSBA House of Delegates:

Everyone: I’m please to report that the Louisiana House of Delegates considered and approved, by a narrow margin, the creation of a new specialty in Appellate Practice in the state of Louisiana at its semi-annual meeting yesterday in Destin, Florida.

The measure was presented by Kendrick Guidry, a member of the Louisiana board of Legal Specialty. I presented our support on behalf of the Appellate Section of the LSBA, and another house delegate (E. Phelps Gay) spoke in support as well. The passage of this resolution is somewhat historic in that it is the first to be approved since the moratorium on new specialties was lifted more than 10 years ago.

Special thanks go to Barbara Shafransky, Executive Director of the LBLS, for her tireless efforts aiding this effort. And many thanks to all of you, as well as multiple members of the appellate bench for their support.

The task now is to create and populate a new Advisory Commission to oversee the operation of the specialty. If service on that Board is something that would interest you, please let me know.

Best regards,


Appellate CLE in New Orleans

The New Orleans Bar Association is offering some lunchtime CLE in June with two appellate judges. On June 17, Judge Stephen Higginson will give a one-hour presentation on practice and procedure at the U.S. Fifth Circuit. On June 24, Judge Terri Love will give a similar presentation on practice and procedure at the Louisiana Fourth Circuit. Registration is free for NOBA member and $25 per session for non-members. To register, follow this link.

“Cases? We don’t need no stinking cases.” Or do we?

Theoretically, Louisiana is a civil-law jurisdiction. This means that our primary sources of law are legislation and custom. Theoretically, it also means that we don’t recognize stare decisis: the idea that an appellate decision creates binding law for the appellate court and all lower courts under its jurisdiction.

But, as anyone who has practiced in the appellate courts for a few years knows, the reality does not conform exactly to the theory. Over at the New Orleans Bar Association web site, Bruce Dean has posted a short, informative, and entertaining article explaining why, despite our civilian heritage, caselaw matters in Louisiana.

Motion for new trial not a prerequisite to appeal

When trial results in an adverse final judgment, a party may move for new trial under La. Code Civ. P. arts. 1971 et seq. Often, the arguments raised in a motion for JNOV or new trial can be the same as those raised in an appeal. This raises two questions. The first is whether you must file a motion for new trial to preserve your right to appeal. The second is whether, if you do file such a motion, must you include every issue and argument that you will make on appeal if the motion fails.

Fortunately, the answer to both questions is “no.” You do not have to file a motion for new trial to preserve your right to appeal. A quotable quote to this effect comes from Grosch v. De Bautte, 203 So. 2d 906, 908 (La. App. 4 Cir. 1967):  “With respect to the contention that appellants should have applied for a new trial after the rendition of judgment, all we can say is that we know of no law which makes it necessary as a prerequisite to appealing that the aggrieved litigant apply for a new trial.”

And if you do file a motion for new trial, you don’t have to include every issue that you might raise on appeal. The court of appeal put it well in Luttrell v. International Paper Co., 511 So. 2d 7, 7–8 (La. App. 3 Cir. 1987):

Mover argues that since International did not seek a new trial as to the issue presented in its third party demand, but only sought a new trial on the statutory employer-employee issue, International has limited itself to appealing only as to that issue. We disagree ....

.... Our Code of Civil Procedure does not require the aggrieved party to file an application for new trial before appealing nor is there any authority in our law supporting the proposition that one must raise all issues in a motion for a new trial in order to preserve those issues for review in a subsequently filed appeal.

A more recent application of this rule appears in Hicks v. Steve R. Reich, Inc., 873 So. 2d 849, 851 (La. App. 2 Cir. 2004)

[T]here is no requirement in the law that a party must raise an issue pursuant to a motion for new trial or else waive the issue for purposes of appeal. A party may elect to seek relief from the trial court through a motion for new trial if the party concludes that the trial court may be willing to grant such relief for the reasons given in support of the motion. However, a party instead may elect to proceed directly to the appeal.

Additur, remittitur, and acquiescence

Code of Civil Procedure art. 1814 authorizes a trial court to grant an additur or remittur if the court believes that the verdict is so excessive or inadequate that a new trial should be granted for that reason alone. In such cases, the trial court must give the party adversely affected by the additur or remittur the opportunity to consent to it as an alternative to a new trial on quantum. That is, the additur may be granted only with the defendant’s consent, and a remittitur may be granted only with the plaintiff’s consent. See Accardo v. Cenac, 722 So. 2d 302, 306 (La. App. 1 Cir. 1998).

Consenting to an additur or remittitur makes lawyers nervous. The reason is that, under La. Code Civ. P. art. 2085, an appeal cannot be taken by a party who voluntarily and unconditionally acquiesced in an adverse judgment. If you consent to an additur or remittitur, have you acquiesced in the judgment and lost your right to appeal the amount of damages?

In 1975, the Louisiana Supreme Court answered this question in the affirmative. In Miller v. Chicago Insurance Co., 320 So. 2d 134 (La. 1975), the Court held that a defendant who agreed to an additur or a plaintiff who agreed to a remittitur, while not losing the right to appeal entirely, lost the right to appeal the amount of damages. Any right of a party agreeing to an additur or remittitur to complain of the amount of damages was limited to answering the other side’s appeal.

Nine years later, the Louisiana Legislature amended La. Code Civ. P. art. 2083 to allow appeal of "a judgment reformed in accordance with an additur or remittitur. See 1984 La. Acts No. 59. The intermediate appellate courts have interpreted this legislation as overruling Miller and allowing a party who agreed to an additur or remittitur to appeal the award of damages. See Karl v. Amoco Prod. Co., 492 So. 2d 1279, 1280 (La. App. 3 Cir. 1986)Accardo v. Cenac, 722 So. 2d at 307 n. 3. In a similar vein, the court in Hodapp v. Am. Indem. Co., 618 So. 2d 32, 35 (La. App. 3 Cir. 1993), held that a defendant who agreed to and paid an additur retained the right to appeal damages.

This interpretation is supported by a 1989 comment accompanying the reenactment of La. Code Civ. P. art. 1814. According to comment (b), the article’s purpose is to “serve[ ] judicial efficiency by allowing the parties to avoid a possibly unnecessary new trial and then to seek appellate review of the correctness of the judgment reformed by additur or remittitur.”