For La. practitioners: Advanced Appellate Practice Seminar

If you’re looking for high-quality appellate CLE, then consider the Louisiana State Bar Association’s Advanced Appellate Practice Seminar. It will be held on Thursday, November 16, 2017, at the Hyatt Centric French Quarter Hotel (800 Iberville), and will offer 6.25 hours of CLE credit, including 1 hour of professionalism. The faculty will include Justice James Genovese of the Louisiana Supreme Court, eight judges from the Louisiana courts of appeal, several outstanding appellate advocates, and me. Here’s the schedule:

8:00-8:30 a.m.
Registration

8:30-8:45 a.m. - (.25 credits)
Program Overview 
Thomas M. Flanagan • Flanagan Partners • New Orleans

8:45-9:45 a.m. - (1 credit)
Writ Practice: Herlitz, Writ-Grant Considerations, and Law of the Case
Hon. Roland L. Belsome, Jr. • 4th Circuit Court of Appeal • New Orleans 
Hon. Rosemary Ledet • 4th Circuit Court of Appeal • New Orleans 
Jennifer L. Thornton • Stanley, Reuter, Ross, Thornton & Alford • New Orleans

9:45-10:45 a.m. - (1 credit)
Appellate Review: Supreme Court vs. Court of Appeal
Hon. James T. Genovese • Louisiana Supreme Court • Opelousas

10:45-11:00 a.m.
Break

11:00 a.m.-Noon - (1 credit)
The Winning Oral Argument: Mock Argument and Critique
Hon. Paula A. Brown • 4th Circuit Court of Appeal • New Orleans
Hon. Sandra Cabrina Jenkins • 4th Circuit Court of Appeal • New Orleans
Kim M. Boyle • Phelps Dunbar • New Orleans
Harry Rosenberg • Phelps Dunbar • New Orleans
Martin A. Stern • Adams and Reese • New Orleans

Noon-1:15 p.m.
Lunch (on your own)

1:15-2:15 p.m. - (1 credit)
The Role of the “Second Chair” on Appeal
Camille E. Gauthier • Flanagan Partners • New Orleans
Emily E. Ross • Sher Garner Cahill Richter Klein & Hilbert • New Orleans
Alex B. Rothenberg • Gordon, Arata, Montgomery, Barnett, McCollam, 
    Duplantis & Eagan • New Orleans 

2:15-3:15 p.m. - (1 credit)
The Winning Brief: Persuading the Court and Following the Rules
Hon. Terri F. Love • 4th Circuit Court of Appeal • New Orleans
Hon. Fredericka H. Wicker • 5th Circuit Court of Appeal • Gretna 
Kelly B. Becker • Liskow & Lewis • New Orleans

3:15-3:30 p.m.
Break

3:30-4:30 p.m. - (1 credit - Prof.)
Professionalism on Appeal 
Hon. Regina Bartholomew Woods • 4th Circuit Court of Appeal • New Orleans
Hon. Jude G. Gravois • 5th Circuit Court of Appeal • Gretna
Thomas M. Flanagan • Flanagan Partners • New Orleans
Raymond P. Ward • Adams and Reese • New Orleans

For more information about the seminar or to register online, follow this link.


Workload of La. courts of appeal in 2016

For an upcoming CLE presentation, I created this graph showing the workloads in the Louisiana courts of appeal in 2016, focusing on the number of appeals versus applications for supervisory writs. The raw numbers from the Louisiana Supreme Court’s 2016 Annual Report, pp. 22–23.

Bar graph

Not surprisingly, the First Circuit is the busiest state appellate court. Also not surprising is that writ applications comprise a significant percentage of each court’s volume. What is surprising is the predominance of writ volume in the Fourth Circuit: 672 writ applications versus 334 appeals. That’s more than twice as many writ applications as appeals. These numbers include both civil and criminal cases, but exclude pro se writ applications.

The 2016 statistics on writ applications have some other surprises. Those will be subjects of future posts.


Counting Each Shot: The CLE Presentation

This morning, I was privileged to give a one-hour in-house CLE presentation at the Louisiana Fourth Circuit for the court’s law clerks and staff attorneys. It was based on an article I wrote a few years ago, Counting Each Shot: Techniques for Emphasis and De-emphasis. It was a clinical analysis of the respective fact statements by Justices Stevens and Scalia in Atkins v. Virginia, 536 U.S. 304 (2002). We examined the techniques Justice Scalia used to play up facts supporting his opinion, and those Justice Stevens used to do the opposite. For anyone who may be interested, here are some freebies from the presentation (all in PDF).


How not to draft a judgment, × 3

Last month, the Louisiana Fourth Circuit dismissed three appeals (that I know of) because the judgment appealed from lacked decretal language and therefore was not a valid, final judgment:

Lacking from all three judgments was decretal language. As these cases say, decretal language must do three simple things: (1) Name the party in whose favor the ruling is ordered. (2) Name the party against whom the ruling is ordered. (3) State the relief that is granted or denied. In these three instances, the judgments should have said something like, “Judgment is hereby rendered in favor of [defendant’s name] and against [plaintiff’s name], dismissing all claims of [plaintiff’s name] against [defendant’s name] with prejudice.” If only some of the plaintiff’s claims are being dismissed, then the decree must identify the specific claims being dismissed.

In Louisiana, lawyers need to know how to draft a proper judgment. That is because in many Louisiana district courts, the lawyer who prevails at the hearing of the exception or motion is instructed to draft the judgment.


Plain language wins.

Does plain language in briefwriting translate into winning? It probably does. At least there is a correlation between use of plain language and winning. That’s the result of an empirical study of appellate briefs by Prof. John Campbell of the University of Denver Sturm College of Law. His conclusion:

We can’t prove from one study that style wins cases, but we can conclude that those who win cases most value writing style. Often, we spend a great deal of time on research, framing, and crafting argument. And we must do these things. But style matters too. Voiceless, passive, complex writing is a liability. Given that energetic, simple writing rules in the Supreme Court and even correlates with winning in the busy Ninth Circuit, we’d all do well to set aside some time to make our briefs read more like a Grisham novel and less like a statute. Judges and our clients will thank us.

To read an abstract of Prof. Campbell’s study and to download a PDF copy, follow this link.

Source: Campbell, John E., Writing that Wins: An Empirical Study of Appellate Briefs (July 31, 2017). The Colorado Lawyer, Vol. 46, No. 3, March 2017; U Denver Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3011605.


La. CLE on Advanced Appellate Practice

If you’re reading this, then here’s some CLE you’ll be interested in: the LSBA’s Advanced Appellate Practice seminar, to be held in New Orleans on November 16. The coordinator, Tom Flanagan, has put together a great faculty that includes nine appellate judges, including Justice James Genovese of the Louisiana Supreme Court. I’ll be on a panel with Tom, Judge Regina Bartholomew Woods (La. 4th Cir.), and Judge Jude Gravois (La. 5th Cir.) to talk about professionalism. To see the entire lineup, follow this link.


Reminder of new briefing requirement in the 2nd Circuit

The current issue of the Louisiana Bar Journal includes a short but worthwhile article for anyone practicing in the Louisiana Second Circuit. Under new Local Rule 15, all appeal briefs must include the following certification:

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

Failure to comply with this rule will result in rejection of your brief. See Local Rule 2-5Hal Odom, Jr., Focus on Local Practice: New Certification Required in 2nd Circuit, 65 La. B.J. 100 (Aug./Sept. 2017).

Of course, if you’re a regular reader of this blog, you already knew about this new rule. Still, Hal’s article is a good reminder.


Footnote not enough to preserve an issue

Some questions have easy answers, such as this one:

Q.    Can I preserve an issue for review by the Louisiana Supreme Court by reserving my right to do so in a footnote in my writ application?

A.    No. You need to address the issue in your assignments of error and your argument. Relegating it to a footnote won’t do. See Bonnette v. Conoco, Inc., 2001-2767, p. 10 (La. 1/28/03), 837 So. 1219, 1227.