When and where to answer an appeal

Louisiana has a unique procedure for an appellee to take a cross-appeal against the appellant. It’s called an answer to the appeal, and it’s authorized by La. Code Civ. P. art. 2133(A). Under art. 2133(A), the answer must be filed “not later than fifteen days after the return day or the lodging of the record[,] whichever is later.”

Most lawyers reading art. 2133(A) would file the answer in the court of appeal after the record has been lodged and before the 15-day deadline. But occasionally, a litigant files the answer to the appeal in the trial court, before the record is lodged in the court of appeal. Is that okay? Yes it is, at least in the First Circuit. See Poole v. Fuselier, 2015-1317, pp. 9–11 (La. App. 1 Cir. 10/28/16), 213 So. 3d 18, 24–25. Poole contains a lengthy discussion of this issue, including citations to concurring cases in the Fourth and Fifth Circuits and two contrary cases from the Third Circuit.

Speaking of answers, remember that they are only effective to obtain relief against the appellant. They are not effective to obtain relief against any other parties in the case. To get relief against anyone other than an appellant, you need to move for and obtain your own order of appeal. On that topic, see this blog post.


Yes, you can file a reply brief in the LASC

Can the applicant (after a writ grant) or an appellant in the Louisiana Supreme Court file a reply brief, responding to the brief of the respondent or appellee? The answer is “yes.” While LASC Rule VII makes no explicit provision for a reply brief, Rule VII § 11.1 allows parties to file “supplemental briefs on the merits” any time before the case is argued or submitted. Most lawyers use this rubric as authorization for a reply brief. Yesterday, I came across an LASC decision blessing this practice. In Shane v. Parish of Jefferson, the Court said, “The filing of a reply brief was intended to be included within the purview of ‘[s]upplemental briefs on the merits,’ as stated in this court’s Rule VII, § 11.1.” Shane v. Parish of Jefferson, 2014-2225, p. 8 (La. 12/8/15), 209 So. 3d 726, 734 (brackets by the Court).


George Orwell on modern briefwriting

Bryan Garner’s usage tip of the day includes this quotation by George Orwell:

“[M]odern writing at its worst does not consist in picking out words for the sake of their meaning and inventing images in order to make the meaning clearer. It consists in gumming together long strips of words [that] have already been set in order by someone else, and making the results presentable by sheer humbug.”

Is this a good description of bad briefwriting?


New briefing requirement for the La. Second Circuit

If you practice in the Louisiana Second Circuit, here is something you need to know if you don’t want your brief rejected by the clerk of court. Beginning on May 31, every brief filed in the Second Circuit must include the following certification concerning attachments:

I hereby verify that all attachments to this brief have previously been duly filed and/or accepted into evidence in the lower court, to the best of my knowledge, information and belief.  I understand that failure to comply with this local rule may result in the refusal to consider said attachments. WILLFUL FAILURE TO COMPLY WITH THIS LOCAL RULE MAY SUBJECT ME TO PUNISHMENT FOR CONTEMPT OF COURT.

See La. 2d Cir. R. 15 (eff. May 31, 2017). Second Circuit Rule 2-5 has been amended to require the clerk of court to reject any brief that fails to comply with new Rule 15. This amendment, too, takes effect on May 31.


“Bridging the Gap” presentation, written materials, and lagniappe

This morning, I gave my annual presentation on appellate practice at the Louisiana State Bar Association’s “Bridging the Gap” seminar for newly sworn-in lawyers. For those who attended, and for anyone else who may be interested, here are some of the things I used or referred to:

As lagniappe, here are links to two entertaining articles by Judge Alex Kozinski of the U.S. Ninth Circuit:

Finally, make your briefs look better by following this advice on typography:


Negativity as a briefwriting strategy

Are negative themes in briefwriting more persuasive than positive themes? Often, they are. That’s the indication from a study described in a recent article by Prof. Kenneth Chestek. It’s available for free download on SSRN. Here’s the abstract:

Cognitive psychologists have identified a phenomenon they call the “negativity bias,” in which humans seem to remember and be affected by negative information more strongly than by positive information. What are the implications of this bias for legal writers? Should they focus on negative themes (describing the opposing side as bad) instead of positive ones (describing their clients as good and worthy)? More specifically, to trial judges fall prey to the negativity bias?

This article describes an empirical test in which 163 judges were asked to read different versions of a Preliminary Statement to a trial brief (some using positive themes, others using negative ones) to measure whether (and by how much) the judge’s perceptions of the parties were affected. The study concludes that, in many (but not all) cases, negative themes did seem to have more impact on the judicial reader.

Chestek, Kenneth D., Fear and Loathing in Persuasive Writing: An Empirical Study of the Effects of the Negativity Bias (April 17, 2017). Legal Communication & Rhetoric: JALWD, Vol. 14, 2017. Available at SSRN: https://ssrn.com/abstract=2953996.


When a judgment isn’t final

Last month, the First Circuit issued a pair of unpublished decisions, each of which dismissed an appeal for lack of a final, appealable judgment. The problem with both judgments: the amount awarded could not be determined from the judgment itself. As explained by the court, the amount awarded must be stated in or determinable from the judgment itself, so that a third person can determine from the judgment itself the amount owed without reference to other documents. In the First Circuit’s view, the judgments in these two cases came up short.

In Duet v. Landry, 2016-0575 (La. App. 1 Cir. 3/6/17), the judgment awarded “$4,733, along with any penalties and interest, for the amount of income tax liability Plaintiffs incurred.” The judgment was deemed deficient because

[t]he interest due on the delinquent taxes and penalties are not certain and determinable from the judgment. The judgment does not state the precise rate of interst on the taxes or the period of time for which the interest on the taxes is payable. The judgment does not give any information regarding the amount of the penalties. therefore, the portion of the judgment concerning interest and penalties on the delinquent taxes is not definite and certain, and the judgment is not a final judgment.

In Rosewood Enterprises, Inc. v. Rosewood Development, LLC, 2016-0352 (La. App. 1 Cir. 3/6/17), the judgment awarded $2,149,080, plus accrued interest of 7.5% per annum until paid, plus late charges in the amount of 5% of the overdue payments, plus reasonable attorney fees and costs and expenses of collection ....” The award of 5% late charges was insufficient because it failed to “specify either a total amount of late charges owed, or set forth information allowing for the calculation of late charges without necessitating reference to the note or other extrinsic sources.” Also the judgment failed to specify the amount of attorney’s fees and collection costs awarded.

The lessons we can learn from these decisions: (1) If you can calculate the amount awarded, do so and put the amount in the judgment. (2) If some part of the award can’t be calculated—or if there is any other doubt about finality—ask the trial court to designate the judgment as final under La. Code Civ. P. art. 1915(B)


First-class appellate CLE coming to New Orleans

If you’re looking for high-quality appellate CLE, then consider registering for the DRI Appellate Advocacy Seminar, to be held in New Orleans at the Sheraton on May 11-12, 2017. The seminar will provide 9 hours of CLE. Last year’s version of this seminar was approved for specialized appellate CLE credit by the Louisiana Board of Legal Specialization. The 9 hours will fill half of your 18-hour quota.

I’ve attended all but one of the DRI Appellate Advocacy seminars since the first one in 1999. They’ve been consistently excellent. I’ll be signing up for this one; I hope to see you there.

For general information about the seminar, follow this link. To see a list of the speakers, follow this link. To download the brochure (PDF, which includes the program and a registration form), follow this link.