Plain English jury instructions for Louisiana: Your chance to comment
How to suggest changes to the Uniform Rules for La. Courts of Appeal

Article 2133(B): The appellee’s secret weapon

Ask me the easiest way to win an appeal, and I’ll answer, “Represent the appellee.” Depending on the issue, the appellee often benefits from deferential standards of review. But one of the appellee’s greatest advantages is one I seldom see lawyers use: Code of Civil Procedure art. 2133(B). This provision allows the appellee to assert, in support of affirmance, “any argument supported by the record ....” This means that, unlike the appellant, the appellee is not confined to arguments made in the trial court. Caselaw interpreting art. 2133(B) holds that, even if an argument was rejected or not considered by the trial court, it can still be raised on appeal in defense of the trial court’s judgment.

If you represent the appellee, most of the time you will want to stick with whatever argument worked in the trial court. Just remember that you are not confined to what worked in the trial court, or even what you raised in the trial court. If the record supports the argument, art. 2133(B) allows you to make it.


Feed You can follow this conversation by subscribing to the comment feed for this post.

Susan Kalmbach

I shouldn't admit it, but I didn't know this!


A quotable quotation by Justice Dennis:

“A party who is satisfied with a judgment, and who does not file a notice of appeal or a petition for review, is, nevertheless, a party to the appeal or review whose arguments must be heard, and in support of the judgment in his favor he may present any argument supported by the record, whether it was ignored, or flatly rejected, by the court below. This principle generally applies to all manner of review proceedings, although the discretionary nature of the grant of certiorari by a supreme court may make its application less certain in certiorari cases.”

Roger v. Estate of Moulton, 513 So. 2d 1126, 1136 (La. 1987) (on rehearing). See also RPM Pizza, Inc. v. Automotive Cas. Ins. Co., 601 So. 2d 1366, 1370 (La. 1992).

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.


Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name and email address are required. Email address will not be displayed with the comment.)