Hard lesson in appellate jurisdiction

Today, I came across the Louisiana Third Circuit’s recent decision in Babineaux v. University Medical Center, 15-292 (La. App. 3 Cir. 11/4/15), in which the court dismissed the appeal because the appellant appealed the wrong judgment.

The sequence of events was not uncommon. The district court granted a defendant’s motion for summary judgment. The plaintiff filed a timely motion for new trial, arguing that his counsel did not receive notice of the summary-judgment hearing and that he had new evidence to offer in opposition to the motion. The trial court denied the motion for new trial. The clerk of court mailed notice of the denial of new trial on September 29, 2014. Thirty-two days later (October 31), the appellant filed a motion for devolutive appeal. The problem: the appellant attempted to appeal the denial of new trial, not the earlier summary judgment. And in his brief, the only errors the appellant raised bore on the denial of new trial, not the earlier summary judgment. The Third Circuit dismissed the appeal for the following reasons:

  1. The judgment appealed from (denial of new trial) was an interlocutory judgment, not a final judgment; hence no appeal could be taken from that judgment. The court noted that, had the appellant taken an unrestricted appeal from the final judgment (the one granting summary judgment), the appellant would have been entitled to seek review of all adverse interlocutory judgments.
  2. The Third Circuit determined that it could not treat the appeal from the denial of new trial as an attempted appeal from the final judgment (as Louisiana courts sometimes do), because none of the errors raised in the appellant’s brief dealt with the underlying summary judgment. Rather, the only errors raised in the brief concerned the denial of new trial.
  3. The Third Circuit could not entertain the appeal under its supervisory jurisdiction, because the motion for devolutive appeal was filed more than 30 days after notice of the judgment denying new trial; hence it could not be treated as a timely notice of intent to seek a supervisory writ. See Unif. R. 4-3.

Issue preclusion in successive appeals

Here is an interesting decision out of the U.S. Fifth Circuit concerning issue preclusion in successive appeals in the same case: Art Midwest, Inc. v. Clapper, No. 14-10973 (5th Cir. Nov. 9, 2015). The bottom line: an issue not argued in the first appeal was waived in the second.

In earlier proceedings, the district court rendered a judgment that (among other things) awarded 19% prejudgment interest on an award of damages. In the first appeal, the appellants argued that the district court miscalculated damages by double-counting. The Fifth Circuit remanded the case to the district court for recalculation of damages. On remand, the appellants argued that the award of 19% prejudgment interest was inappropriate. The district court refused to consider the argument, holding that it was foreclosed by the Fifth Circuit’s prior judgment. Appellants again appealed, this time arguing that the 19% interest rate was erroneous. But the Fifth Circuit held that the appellants waived the argument by failing to raise it in the first appeal.

LSBA Bar Briefs reports on La. appellate specialization

The latest issue of the La. State Bar Association’s publication Bar Briefs include an item about the LSBA’s recent addition of appellate practice to its plan of specialization. According to Bar Briefs, the La. Board of Legal Specialization anticipates accepting applications for certification in appellate practice in 2016. For more information, e-mail Barbara Shafranski, the Board’s executive director.

Prior posts on this topic: Nov. 10 and Nov. 11.

If you plan to apply for appellate specialization, consider this CLE seminar

As readers of this blog know, beginning in 2016, the Louisiana Board of Legal Specialization will begin accepting applications for Board certification in appellate practice. Among the requirements for certification will be 18 hours CLE focused on appellate advocacy and approved by the Board’s Appellate Practice Advisory Commission. As I understand the rules, those 18 hours have to be earned during the application year (that is, during 2016 for the inaugural class).

To earn a large chunk of those 18 hours, you may want to plan now to attend the DRI Appellate Advocacy Seminar, to be held February 10–12 in Scottsdale, Arizona. Judging from the seminar brochure, it looks like it’ll be a great program. DRI typically obtains accreditation for its CLE seminars from all states that have mandatory CLE. And though this seminar has not yet been approved by the Advisory Commission, I am confident that DRI will apply for and get the necessary approval for this seminar to count toward the required 18 hours.

Since 1999, I’ve attended all but one of the DRI Appellate Advocacy Seminars. Their programs are consistently excellent. And this particular seminar offers the rare opportunity to meet and make friends with appellate lawyers from across the country.

Why plan so early? If you go to this seminar, you’ll probably be flying to Arizona on February 10. That’s going to be Ash Wednesday, the day after Mardi Gras. If you procrastinate, you may have trouble booking a flight out of MSY (assuming that is your airport of choice). Also, DRI offers a $100 discount for early registration (on or before January 19).

Another use for on-line briefs

As you probably know, databases such as Westlaw often contain not just reported decisions in cases, but also the briefs filed in those cases. I’ve sometimes downloaded those briefs as research tools, just to see whether they lead to authorities that I hadn’t already found. Today, it occurred to me that those briefs can serve another purpose: as examples of what to do—or what not to do.

Let’s say that, in a pertinent case, the opinion writer said that she was convinced or not convinced by an argument in a party’s brief. If the brief is available online, download it to analyze the argument. Find out exactly what the briefwriter did that either worked or didn’t work. And put that knowledge to work in formulating your own arguments.

Correction to standards for La. appellate certification

I’ve made a slight correction to yesterday’s post concerning the standards for appellate-specialty certification in Louisiana. As originally written, the post said that among the experience requirements would be six appellate oral arguments, including at least one argument before the Louisiana Supreme Court. Today I learned that the standards will be amended to drop the requirement of at least one LASC  argument. You’ll still need at least six appellate oral arguments under your belt, but they can be before any appellate court.

Appellate specialization is coming to Louisiana.

Here is some exciting news for Louisiana appellate practitioners: appellate practice has become an area of specialization recognized by the Louisiana Board of Legal Specialization and approved by the Louisiana Supreme Court. The initial period to apply for appellate specialization will be January 1 through March 31, 2016. If you’re interested in applying, you’ll want to read these two documents:

The basic requirements for this specialty will include the following

  • Active membership in good standing in the Louisiana State Bar Association
  • Five years of continuous full-time practice of law
  • During the five years immediately preceding your application, a minimum of 25% of work in appellate practice
  • In your career, service as lead counsel or having substantial responsibility for 25 appellate matters
  • In your career, six appellate oral arguments
  • Five references from practicing lawyers who can attest to your competence in appellate practice
  • During the application year (January 1 through December 31, 2016 for the initial class), 18 hours of continuing legal education in appellate law
  • Passing a written examination

A lot of work by a lot of people made this happen, but one person deserves special recognition: Louis LaCour, chair of the LSBA’s Appellate Section and inaugural chair of the Board’s Appellate Practice Advisory Commission. Louis worked hard to develop the standards, obtain the blessing of the LSBA’s House of Delegates, obtain the Louisiana Supreme Court’s approval, and recruit the first members of the Advisory Commission. Thanks, Louis.

Using grammar to play up the good and play down the bad

The New York Times has an interesting article about how Texas school textbooks use grammatical structure when talking about the history of slavery, to emphasize the less-bad parts and de-emphasize the worse parts. The short version: To play up the good, write sentences in the active voice, with real people as the subjects and real verbs. To play down the bad, use passive voice and hide your verbs in nominalizations.

For an older article on the same topic, follow this link.

Bridging the Gap: Free appellate CLE stuff

This morning, I presented an hour of CLE on appellate practice for the Louisiana State Bar Association’s “Bridging the Gap” seminar, a program for newly minted lawyers who just passed the bar exam. For attendees and anyone else who may be interested, here are some supplemental materials used or discussed in the presentation:

For reasons discussed at the seminar and elsewhere, I recommend against over-reliance on forms. With that caution stated—and with no warranties—I offer some samples of pleadings and briefs, all in PDF: