The appellee’s secret weapon
Writing briefs for the tablet-reading judge

An answer to the appeal is as good as a cross-appeal—sometimes.

Let’s say your client didn’t get a complete win in the trial court, but does not want to appeal unless the other side appeals. The other side appeals. Should you cross-appeal? Or should you just answer the other side’s appeal?

Non-Louisiana practitioners may be asking, “What is this answer to an appeal?” It’s a procedure authorized by La. Code Civ. P. art. 2133(A), under which an appellee may seek to have the trial court’s judgment modified, revised, or reversed in part. It’s usually much less expensive than a cross-appeal; while a cross-appellant may have to pay part of the cost of preparing and lodging the record, an appellee who answers the appeal need only pay a filing fee of $74 to $124 (depending on the circuit). And you always have more time to answer the appeal than you have to cross-appeal. Compare La. Code Civ. P. art. 2087(B) (time to cross-appeal) with art. 2133(A) (time to answer an appeal).

But there is a catch. Under art. 2133(A), an answer to an appeal is “equivalent to an appeal on [the appellee’s] part from any portion of the judgment rendered against him in favor of the appellant ....” The emphasized words mean that the answer is good only for seeking relief against the appellant. It is not good for seeking relief against any other party who did not appeal.

A few years ago, Louisiana lawyer S. Mark Tatum wrote an excellent article on this topic for the Louisiana Bar Journal, entitled Questions About Answers: Problems with Answers to Appeals and Protective Cross-Appeals Under Louisiana Procedure, 57 La. B. J. 306 (Feb./Mar. 2010). Mark’s article is a must-read for any lawyer practicing in Louisiana’s appellate courts.

 

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