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Last month, the First Circuit issued a pair of unpublished decisions, each of which dismissed an appeal for lack of a final, appealable judgment.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.


When a court of appeal declares a law unconstitutional

Most of the civil cases decided by the Louisiana Supreme Court are heard under the court’s supervisory jurisdiction. This means that review by the LASC is discretionary. You invoke the court’s jurisdiction by filing a writ application, and you pray that your application is among the roughly 5% of applications that are granted. But when a Louisiana court declares a law unconstitutional, the LASC has appellate jurisdiction. This means that the aggrieved party has the right to have at least the constitutional issue heard and decided by the LASC.

If a district court declares a law unconstitutional, you appeal it the same way you would appeal any adverse decision: you file a motion or petition for an appeal. The only difference is that, instead of going to a court of appeal, the appeal goes directly to the LASC. But what do you do if it’s the court of appeal, not the district court, that declares a law unconstitutional? Procedurally, how to you exercise your right to have the constitutional question heard and decided by the LASC? As it turns out, there are two right answers to this question.

The most common approach seems to be the normal route to the LASC: an application for a writ of certiorari. In a 1970 decision, the LASC held that it "will grant certiorari as a matter of right to the applicant in a case where the appellate court has declared a law unconstitutional.” Bradford v. Dept. of Hosps., 255 La. 888, 894, 233 So. 2d 553, 555 (1970). Since the adoption of the 1974 Constitution, the LASC has repeatedly granted writs in such cases and docketed the case as an appeal. These cases include the following:

More recently, the LASC has accepted appeals taken from a court of appeal when the court of appeal declared a law unconstitutional. See Crooks v. Metropolitan Life Ins. Co., 2001-0466 (La. 5/25/01), 785 So. 2d 810Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732 (La. 1/19/05), 903 So. 2d 392.

So it seems that, if a court of appeal declares a law unconstitutional, there are two paths you can go by to get to the LASC (apologies to Plant and Page).


Free appellate CLE in New Orleans and elsewhere

On March 9, the good folks at Chaffe McCall are hosting a free hour of appellate CLE, followed by a networking reception. The program is Appellate Counsel at Trial: Protecting the Record and Putting Your Best Foot Forward, a webinar produced by the DRI Appellate Advocacy Committee. For details about the New Orleans event, follow this link.

The same webinar is being hosted simultaneously in several other cities across the United States. For a list of the cities and host law firms, follow this link.


A welcome amendment to the Fifth Circuit rules

As most of you know, the word limits for briefs filed in U.S. Courts of Appeals were recently reduced (e.g. from 14,000 words to 13,000 for opening briefs). Perhaps to offset the effect of that amendment on some cases, the U.S. Fifth Circuit is proposing an amendment to 5th Cir. R. 32.4 that will make it easier to obtain leave to file a brief in excess of the word limit. If promulgated, the new rule will do two things:

  1. While parties will still be required to file their motion for leave at least 10 days before their briefing deadline, they will no longer have to file a draft copy of the brief along with the motion.
  2. The court is removing the language saying that “[t]he court looks upon such motions with great disfavor and will grant them only for extraordinary and compelling reasons.”

The court is accepting comments on the proposed change through March 6, 2017. To read the text of the proposed amendment and to comment electronically, follow this link.


In praise of night law school

Pardon me for going a little off-topic here. As a graduate of Loyola Law School’s evening division, I especially enjoyed this article by Jill Switzer at Above the Law. From my experience, everything she says about the determination and work ethic of night law students is true. It’s a tough way to earn a law degree, but most who do so end up with much lower student debt because during the day, they’ve been working for a living. So here’s a shout-out and a salute to all students and graduates of night law school.


Two cases of interest to appellate lawyers.

The Louisiana Association of Defense Counsel’s January 2017 newsletter discusses two cases of interest to lawyers practicing in Louisiana’s appellate courts:

  • In Nabors Offshore Corp. v. Caterpillar, Inc., 2016-0003 (La. App. 4 Cir. 11/30/16), the Fourth Circuit reminds us that a denial of a supervisory writ is not a decision on the merits, even when accompanied by the comment of “no error” in the trial court’s judgment. “[A] denial of a writ application is of no precedential value, regardless of the reasons assigned. That is, a writ denial is not precedential for any purpose; it is merely a statement that the court is declining to exercise its supervisory jurisdiction to review the issues addressed at that time.” Id. at 7.

  • Urquhart v. Spencer, 2015-1354 c/w 2015-1355 (La. App. 4 Cir. 12/1/16), provides a lesson about the form of a final, appealable judgment. A final judgment must contain decretal language, meaning that it “must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.” Id. at 3. The judgment in this multi-defendant case recited that it was against “defendants,” without naming which defendants were cast in judgment and without assigning percentages of fault. Because the judgment lacked the required decretal language, it was not final or appealable. Thus, the Fourth Circuit dismissed the appeal.