This morning I gave a presentation on appellate practice at the Louisiana State Bar Association’s “Bridging the Gap¨ seminar for newly admitted lawyers. For those who are interested, here are links to my written materials and my my presentation. And to find those bonus materials I talked about, follow this link.
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.
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.
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.”
This tip for bench trials in Louisiana is a no-brainer: If you lose, file a timely request for the trial court’s findings of fact and reasons for judgment. “Timely” means within 10 days after mailing of the notice of final judgment. See La. Code Civ. P. art. 1917(A). In tort cases where more than one person’s fault is at issue, include a request for specific findings concerning who was at fault, whether the person’s fault was a legal cause of the damage, and the degree or percentage of the person’s fault. See La. Code Civ. P. arts. 1917(B) and 1812(C).
The reason you must do this is simple: the court of appeal cannot review the trial court’s reasons for judgment if no reasons for judgment are given. See Liprie v. Liprie, 553 So. 2d 1094, 1096 (La. App. 3 Cir. 1989) (“[I]t is not incumbent on this court to determine the sufficiency of the trial judge’s reasons for judgment, as there was no timely request for findings of fact and reasons for judgment entered by the plaintiff.”). In such cases, the judgment will be presumed to be correct and decided according to law, and you will have the burden of showing otherwise. Karisny v. Sunshine Biscuits, Inc., 215 So. 2d 201, 202 (La. App. 3 Cir. 1968). And if you don’t make a timely request for written reasons, you cannot complain on appeal of the trial court’s failure to give them. See Royal Oldsmobile Co. v. Heisler Props., LLC, 119 So. 3d 84, 90 (La. App. 5 Cir. 2013).
How does one preserve for appellate review an inconsistency in the jury’s verdict? If you spot the inconsistency before the jury is discharged, raise it immediately so that the trial judge can send the jury back for further deliberations. If you don’t spot the inconsistency until after the jury is discharged, you may still preserve the issue through a timely motion for new trial or for judgment notwithstanding the verdict. See the following cases:
- Bourque v. Gulf Marine Transp., Inc., 480 So. 2d 337, 340 (La. App. 3 Cir. 1986) (party waived argument of inconsistent verdict by failing to raise the issue either at the reading of the verdict or in post-trial motions).
- Metz v. Howard, 631 So.2d 1248, 1251 (La. App. 5 Cir. 1994) (same as Bourque).
- Morris v. United Services Auto. Ass’n, 756 So. 2d 549, 560 (La. App. 2 Cir. 2000) (same as Bourque).
- Daigle v. White, 544 So. 2d 1260, 1262 (La. App. 4 Cir. 1989) (party who failed to object to inconsistsent verdict at the end of trial salvaged the issue by raising it in a motion for new trial).
The way to preserve objections to jury instructions in Louisiana courts is spelled out in La. Code Civ. P. art. 1793. Article 1793(A) allows the parties to file written requests for jury instructions, and art. 1793(B) requires the judge to inform the parties of the instructions it will give (including the court’s actions on the parties requested instructions) within a reasonable time before closing arguments.
The next paragraph, art. 1793(C), spells out the error-preservation rule:
A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection.
The reason for this rule is the same fundamental principle underlying all error-preservation rules: a specific objection and the grounds for the objection are required to allow the trial court a fair opportunity to correct any erroneous charges before the jury deliberates. Luman v. Highlands Ins. Co., 632 So. 2d 910, 914 (La. App. 2 Cir. 1994).
The phrase “immediately after the jury retires” was addressed by the Louisiana Second Circuit in Sledge v. Continental Casualty Co., 639 So. 2d 805 (La. App. 2 Cir. 1994). In that case, no one objected to the jury instructions before the jury retired. Twenty minutes into deliberations, the jury returned with a question. After the judge dealt with the question and the jury again retired, plaintiff’s counsel objected to the instruction. The court of appeal held that the objection came too late, concluding that “immediately after” means “as soon as the jury has left the courtroom to begin its deliberations and without any undue delay.” Id. at 815. The reason for this short time is to give the trial judge an opportunity to correct the problem before the jury is influenced by its own deliberations. Id.
The phrase “stating specifically the matter to which [the party] objects” means that the objecting party must specifically identify the objectionable instruction. Louisiana courts have repeatedly held that blanket objections do not satisfy the specificity requirement. Here are just a few examples of objections failing to meet this requirement:
- “Defendant objects to any charges that it offered that were not given, whatever those were.” Osborne v. Ladner, 691 So. 2d 1245, 1252 (La. App. 1 Cir. 1997).
- “I will object to all of the charges that were given.” Vitari v. Lewis, 361 So. 2d 476, 479 (La. App. 4 Cir. 1978).
- My favorite: “I also want to object to this jury charge that you are about to give in that there was no brackets or screws and in this charge, therefore you can’t give a charge that does not at least allow the evidence of the case to match the charge. So I don’t know why you're giving that charge.... This is part of this charge that talks about the owner if he got advice from someone else, if he acted on that advice.... And I don’t believe and [sic] owner can circumvent or get out of any liability because of any defense alleging he relied on someone else, it was either strictly liable or negligent or not, he can’t use that as a defense.” The court of appeal commented, “[I]t is not clear what counsel is objecting to in reference to the jury charges, and there is no clear relationship between the vague objections made at trial to the ones made in this appeal.” Seal v. State Farm Fire & Cas. Co., 816 So. 2d 868, 871 (La. App. 4 Cir. 2002).
Article 1793(C) requires more than specific identification of the objectionable instruction; it also requires a statement of “the grounds of [the] objection.” Merely making an objection without giving any reasons for the objection is insufficient. Boncosky Servs., Inc. v. Lampo, 751 So. 2d 278, 284 (La. App. 1 Cir. 1999). In at least two reported Louisiana decisions, counsel were quite specific in identifying the objected-to instructions, but failed to preserve the objection by failing to state the grounds for the objection. See Etcher v. Neumann, 806 So. 2d 826, 833–34 (La. App. 1 Cir. 2001), and Le v. Johnstown Props., 572 So. 2d 1070, 1075 (La. App. 5 Cir. 1990).
The requirements of La. Code Civ. P. art. 1793(C) apply not only to error in the jury instructions, but also to errors in the verdict form. See, e.g., Kose v. Cablevision of Shreveport, 755 So. 2d 1039, 1052–53 (La. App. 2 Cir. 2000) (applying art. 1793 to defendant’s failure to object timely to the verdict form); Hebert v. Old Republic Ins. Co., 807 So. 2d 1114, 1127 (La. App. 5 Cir. 2002) (Art. 1793 “applies to jury interrogatories.”). Merely offering an alternative verdict form without objecting to the verdict form given the jury is insufficient. See Jordan v. Intercontinental Bulktank, 621 So. 2d 1141, 1155 (La. App. 1 Cir. 1993), quoting Wisner v. Ill. C. Gulf R.R., 537 So. 2d 740, 751 (La. App. 1 Cir. 1988).
Besides being governed by art. 1793, special verdict forms are governed by La. Code Civ. P. art. 1812. The provisions of art. 1812 are similar to those in art. 1793. Article 1812(B) requires the trial judge to inform the parties within a reasonable time before closing arguments of the special verdict form the court intends to submit to the jury and to give the parties a reasonable opportunity to make objections. If the verdict form omits a factual issue raised by the pleadings or the evidence, an objecting party must demand the issue’s submission to the jury before the jury retires; otherwise the party waives the right to a jury trial of that issue. La. Code Civ. P. art. 1812(A). After the jury retires, it is too late to object to the verdict form. See Streeter v. Sears Roebuck & Co., 533 So. 2d 54, 60 (La. App. 3 Cir. 1988).
In our last post, we looked at preserving erroneous evidentiary rulings for appellate review. We will now turn to other errors that may occur during a trial.
The default rule for preserving an error for review is spelled out in La. Code Civ. P. art. 1635: “For all purposes it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor ...,” unless the party has no opportunity to object when the order or ruling is made. This is simply another articulation of the basic principle described in an earlier post in this series, requiring the issue to be raised properly and timely in the trial court.
I call art. 1635 a default rule because it applies to any erroneous ruling or order that a trial court may make that is not covered by a more specific error-preservation rule. The following are just a few examples of its application:
- Trial judge’s inappropriate comments before a jury. Code of Civil Procedure art. 1791 forbids a trial judge from commenting on the facts of the case, either by commenting on or recapitulating the evidence, repeating the testimony of a witness, or giving an opinion about what has been proved, not proved, or refuted. Nevertheless, a party who fails to object to the trial judge’s improper comments cannot complain of them on appeal. The Louisiana Fourth Circuit described the reason for this rule: “A timely objection directs the court's attention to the possible prejudicial effects of the remarks and affords it the opportunity to limit the import of the comments in the minds of the jury. By failing to object at the time the remarks are made a party waives his right to later claim prejudice.” Wilson v. Virgademo, 258 So. 2d 572, 577 (La. App. 4 Cir. 1972). Other cases applying the same rule include the following:
- Oh v. Allstate Ins. Co., 428 So. 2d 1078, 1080 (La. App. 1 Cir. 1983) (“By failing to object to the statement of the trial judge at the time it was made, Oh waived his right to assert the statement as error on this appeal.”).
- Bridges v. Allstate Ins. Co., 371 so. 2d 347, 348 (La. App. 4 Cir. 1979) (“Though several remarks by the trial judge are now claimed to be prejudicial by able counsel for appellant, no objections were timely made thereto, and, thus, no proper basis for our consideration here exists.”).
- Trial judge’s questioning a witness in the jury’s presence. In a jury trial, the trial court is forbidden from calling or examining witnesses unless the parties consent. See La. Code Evid. art. 614(D). But if the trial judge violates this provision, the error may not be reviewed on appeal. See Laperouse v. Barbaree, 836 So. 2d 417, 422 (La. App. 1 Cir. 2002) (“[A]lthough La. C.E. art. 614(C) authorizes a party to object to the trial court's questioning of witnesses, counsel for Mr. Barbaree did not object. The failure to object to this testimony thus precludes Mr. Barbaree from raising the issue on appeal. La. C.C.P. art. 1635 ....”).
- Improper ex parte contacts. In Zellinger v. Amalgamated Clothing, 683 So. 2d 726 (La. App. 2 Cir. 1996), the appellant complained on appeal of an ex parte meeting between the trial judge and opposing counsel. The appellate court refused to consider this issue because of the appellant’s failure to timely object in the trial court. “Failure to object constitutes a waiver of the right to complain on appeal.” Id. at 731.
- Inflammatory remarks by opposing counsel. In case after case, Louisiana’s appellate courts have refused to consider arguments about inflammatory, prejudicial comments by opposing counsel because the complaining party failed to object at trial. For example:
- Plaintiffs’ counsel “made outright appeals to prejudice against defendant insurer, characterizing it as soulless and devoid of feeling, charging unfairness and oppression in its dealing with plaintiffs, and even suggesting to the jury that it could punish the insurer through its verdict.” The Louisiana Supreme Court agreed that the remarks wree improper, but determined that “failure to object to several ... statements ... constitutes a waiver of [the] right to complain of them on appeal.” Temple v. Liberty Mut. Ins. Co., 330 So. 2d 891, 894 (La. 1976).
- In closing argument, plaintiff’s counsel remarked that “a lawyer with a briefcase can steal more money than a thousand armies with guns.... It is true because you are armed with very dangerous knowledge as to how the system works and how things can be done.... A lot of times it is done in such a way that that person being taken advantage of doesn’t even know anything.... I think in this case, quite sincerely, that Beau Brumfield took advantage of Rosemary.” The appellate court, doubting that these remarks affected the verdict, found it more important that defense counsel waived this issue by failing to object when the remarks were made. Brumfield v. Brumfield, 477 So. 2d 1161, 1169 (La. App. 1 Cir. 1985).
- Defendant argued on appeal that plaintiffs’ counsel making an improper Golden Rule argument by asking the jurors to choose an injured family member and to put themselves in the place of that injured person. The appellate court refused to consider the argument because of the defendant’s failure to object at trial. “failure to object to alleged inflammatory statements made to the jury constitutes a waiver of the right to complain on appeal.” Reggio v. La. Gas Serv. Co., 333 So. 2d 395, 402 (La. App. 4 Cir. 1976). (The appellate court further observed, “In the absence of objection to allegedly improper questions or argument, the trial court is not afforded the opportunity to prevent or correct the alleged error.” Id. Recall the appellate courts’ distaste for sandbagging and desire to conserve judicial resources.)
At trial, a court may err in admitting evidence or excluding it. If the error does not affect a party’s substantial right, the error will be deemed harmless. See La. Code Evid. art. 103(A) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected ....”).
When the error is one admitting evidence, the party alleging the error must make a timely objection; otherwise the error may not be reviewable on appeal. See La. Code Evid. art. 103(A)(1). In a jury trial, if the evidence is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose, the objecting party must request a limiting instruction; otherwise failure to give the limiting instruction cannot be raised on appeal. See La. Code Evid. art. 105. These rules are expressions of the basic principle governing preservation of error, discussed in this earlier post.
When evidence is not relevant to an issue raised in the pleadings, failure to object on grounds of irrelevance carries another hazard: expansion of the pleadings. Under La. Code Evid. art. 1154, when issues not raised in the pleadings are tried by the implied consent of the parties (i.e. by failure to object), they are treated as if they had been raised in the pleadings, and the court may allow amendment of the pleadings to conform to the evidence.
When the error is one excluding evidence, the party offering the evidence must make its substance known to the court. See La. Code Evid. art. 103(A)(2). The procedure for doing this is spelled out in La. Code Civ. P. art. 1636. Article 1636(A) requires the judge either to let the offering party make a statement setting forth the nature of the evidence or to make a complete record of it; the latter is often referred to as a proffer. Id. art. 1636(A). The proffer may be made in open court, on the record, and outside the jury’s presence; or it can be made by deposition. Id. art. 1636(B). If the court allows the offering party to make a proffer, it must allow other parties to make a counter-proffer. See id. art. 1636(D).
The reason for requiring a proffer was succinctly stated by the Louisiana Supreme Court in McLean v. Hunter, 495 So. 2d 1298, 1305 (La. 1986):
The very purpose of requiring a proffer is to preserve excluded testimony so that the testimony (whatever its nature) is available for appellate review. Without a proffer, appellate courts have no way of ascertaining the nature of the excluded testimony.
One other point on exclusion of evidence bears mentioning: the trial court must state the reason for its ruling that the evidence is inadmissible. Once the trial court does so, the ruling is “reviewable on appeal without the necessity of further formality.” See La. Code Civ. P. art. 1636(C). If the trial court fails to state the reason for its ruling, the party offering the evidence should object to the trial court’s failure to do so. Otherwise, an appellate court, drawing a negative implication from art. 1636(C), may conclude that the ruling is not reviewable.
In the last post, we looked at errors in granting or denying a jury trial. Today we will look at preserving errors in jury selection.
Most of us are familiar with the jury-selection process. A group of prospective jurors is sworn to answer questions truthfully. Then the judge and the parties’ lawyers ask the prospective jurors questions about their qualifications and ability to serve on the jury and about their possible biases. After they are questioned, the judge and the lawyers convene outside the jury’s hearing to decide which prospective jurors to exclude. A juror may be challenged for cause, for one of the reasons listed in La. Code Civ. P. art. 1765. If the court denies the challenge for cause, one or the other party may exercise a peremptory challenge to exclude the juror. The process continues until the parties have run out of peremptory challenges and the requisite number of jurors has survived any challenges. See La. Code Civ. P. arts. 1762, 1763, and 1766.
A party who fails to challenge a particular juror for cause at trial cannot argue on appeal that the particular juror should have been excused for cause. Nichols v. U.S. Rentals, Inc., 556 So. 2d 600, 607 (La. App. 5 Cir. 1990); Dawson v. Mazda Motors of Am., Inc., 517 So. 2d 283 (La. App. 1 Cir. 1987).
Ordinarily a party need not give any reason for exercising a peremptory challenge. But under the U.S. Supreme Court’s decisions in Batson v. Kentucky and Edmonson v. Leesville Concrete Co., a party may not use peremptory challenges to exclude prospective jurors because of their race. In the criminal arena, the Louisiana Supreme Court has held that, to preserve the complaint of the prosecutor’s Batson violation, the defense must make an objection before the entire jury panel is sworn. State v. Williams, 524 So. 2d 746 (La. 1988). The court’s reasoning in Williams suggests that the same rule would apply in civil cases. The ruling on the Batson objection must be made when the trial judge can correct the error. Id. at 746. This purpose is defeated when the objection and ruling are deferred until after trial. See id. at 747 n. 4.
Of course, a party who fails to make a Batson objection at trial cannot raise the issue for the first time on appeal. See State v. Wilson, 524 So. 2d 1251, 1252 (La. App. 3 Cir. 1988); State v. President, 715 So. 2d 745, 753–54 (La. App. 3 Cir. 1998). Likewise, a party who raises a Batson objection but later acquiesces in the composition of the jury may be held to have waived the Batson issue for appeal. See Schexnayder v. Mathews, 898 So. 2d 616, 618 (La. App. 3 Cir. 2005).