Six tips for appellate lawyers from Judge Higginson (5th Cir.)

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.

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