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July 2017

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.


The first principle of briefwriting

Here is a reminder of the importance of following court rules governing the form and content of briefs. Last Monday, Chief Judge Diane Wood of the U.S. Seventh Circuit issued a scathing order rejecting two appellees’ briefs—including one by U.S. Attorney General Jeff Sessions—for failure to strictly comply with the court’s local rule governing the content of the brief’s jurisdictional statement. To read the order, follow this link.

There’s a lesson here for lawyers practicing in Louisiana’s courts of appeal. Since 2014, Uniform Rule 2-12.4(3) has required the appellant’s brief to include a detailed jurisdictional statement, stating both the legal and factual bases for the court of appeal’s jurisdiction. Under this rule, a proper jurisdictional statement must state the following things:

  • the constitutional and statutory basis for the court to exercise appellate jurisdiction
  • the dates of the judgment appealed from and the order of appeal to establish the appeal's timeliness
  • specific information establishing that the judgment appealed from is an appealable judgment, including (as applicable) the following:
    • an assertion that the appeal is from a final, appealable judgment, including a record citation to any trial-court order designating the judgment as final and reasons for the designation of finality
    • an assertion that the appeal is from an interlocutory judgment or order which is appealable as expressly provided by law (hint: cite the statute or code article making it appealable)
    • an assertion of information establishing the court of appeal's jurisdiction on some other basis

In my experience, the majority of briefs that cross my desk include jurisdiction statements that fail to comply with this rule. I have to conclude that the briefwriters have not read and perhaps are not even aware of this rule. They are probably using other briefs as models for their own briefs without questioning whether the “model¨ actually complies with the rules.

My advice: Never, ever trust a “model” brief. For guidance on the form and content of your brief, read the Uniform Rules and the court of appeal’s local rules. It’s that simple, folks.

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p.s.  Here is a PDF copy of the Judge Wood’s order.