Be a writer

Twice a year, I speak about appellate practice at a CLE seminar for newly sworn-in lawyers. One thing I continually warn them against is using someone else’s brief or writ application as a model. There are two reasons for this advice: (1) The model may not follow current court rules. (2) Following form like this tends to preserve bad legal writing. Today I can cite Mark Herrmann as a supporting authority for this advice. In a recent blog post at Above the Law, Mark tells this story from his early career:

It took a while for me to develop a sense of comfort when I started working at a small firm in San Francisco. I didn’t know how the quality of my written work compared to the quality of the written work of other new associates at the joint. (In fact, in my first week at the firm, I made the mistake of using a brief filed a few months earlier as a model for a brief that I was working on. When the partner told me my work was nothing special, I showed him the model I’d worked from. He explained an important lesson: Your obligation is never to recreate what we did last time; your obligation is to do the best you can do.)  


Appealing consolidated cases in federal court

Let’s say two civil actions in federal court are consolidated according to Fed. R. Civ. P. 42(a). A final judgment is entered in one of the consolidated cases but not the other. Is that judgment appealable? Yesterday, the U.S. Supreme Court answered “yes.” See Hall v. Hall, No. 16-1150 (Mar. 27, 2017). The Court reasoned that consolidation does not merge the consolidated cases into one civil action; instead each case retains its identity as a separate civil action.


Dismissal of amended petition not a final judgment

Let’s say a trial court renders judgment on exceptions that dismisses the plaintiff’s amended petition “in its entirety with prejudice at [plaintiff’s] cost.” Is the judgment final and appealable? In a recent decision, the La. First Circuit said, “Nope.” State v. Teva Pharmaceuticals Indus., Ltd., 2017-0448 (La. App. 1 Cir. 2/8/18), 2018 WL 773968, 2018 La. App. LEXIS 224. Why? Because the judgment did not dismiss leftover claims in the original petition.

Not surprisingly, the procedural history of this case is complicated. In its original petition, the state alleged claims under the Louisiana Monopolies Act, the Louisiana Unfair Trade Practices Act, and unjust enrichment. The defendants pleaded some peremptory exceptions. In a judgment signed on June 1, 2016, the trial court sustained most of the exceptions (no right of action, no cause of action), and overruled the exceptions with respect to the state's claim for an injunction under LUTPA. Importantly, the only claim that this judgment dismissed was the unjust-enrichment claim.

The state then filed an amended petition that incorporated by reference the original petition and added some paragraphs. The defendants repleaded their exceptions. In a judgment signed on December 8, 2016, the trial court struck all but three paragraphs of the amended petition, sustained peremptory exceptions as to all claims, and dismissed the amended petition with prejudice. 

On appeal, the First Circuit determined that it lacked appellate jurisdiction because neither the June 1 judgment nor the December 8 judgment was a final, appealable judgment. the June 1 judgment was not final because it dismissed fewer than all of the state’s claims against the defendants. The December 8 judgment was not final because it dismissed only the amended petition; it failed to dismiss the original petition. Therefore, the state’s claims under the LMA and LUTPA remained undismissed.

Most lawyers (including me) would have thought that the December 8 judgment was final and appealable. This decision is something to keep in mind when drafting a judgment intended to sustain peremptory exceptions and dismiss the entire suit—make sure that the judgment explicitly dismisses all claims.


It’s never too late to plead prescription.

Here’s an unusual sequence of events. Plaintiffs filed a petition to nullify a judgment. The defendant pleaded a peremptory exception of prescription. The trial court sustained the exception and dismissed the suit. The court of appeal reversed and remanded for further proceedings. On remand, at the conclusion of trial testimony, the defendant re-urged its exception of prescription. After taking the matter under advisement, the trial court rendered judgment dismissing the plaintiffs’ petition with prejudice without addressing prescription. Plaintiffs appealed. Without answering the appeal, the defendant re-urged its exception of prescription in the court of appeal. Can the court of appeal consider the exception? Yes, says the Louisiana Fourth Circuit. See Loughlin v. United Services Auto. Ass’n, 2017-0109, pp. 13–16 (La. App. 4 Cir. 12/20/17), — So. 3d —. And what’s more, the Loughlin court sustained the exception! Id., p. 21. 

“What about law of the case?” you ask. The Fourth Circuit determined that, in the first appeal, it did not rule on the merits of the exception. Instead, it found that the claim was not prescribed on the face of the petition and there was no evidence to contradict the petition’s allegations. Id., p. 15. Thus, the defendant was free to re-urge the exception in the trial court and (unlike the first time) offer evidence to support the exception.

From there, it was only a tiny step to for the defendant to re-urge the exception on appeal. See La. Code Civ. P. art. 2163 (appellate court may consider peremptory exception raised for first time in that court); see also La. Code Civ. P. art. 2133(B) (party who does not answer appeal may still assert, in support of the trial court’s judgment, any argument supported by the record).


Can you appeal denial of arbitration by a La. state court?

Here’s an interesting issue that I came across today. The Federal Arbitration Act includes a provision allowing an immediate appeal of an order refusing to enforce an arbitration clause. See 9 U.S.C. § 16(a)(1). But suppose that a case governed by the FAA is in a Louisiana state court. Under La. Code Civ. P. art. 2083, an interlocutory judgment cannot be appealed unless an appeal is “expressly provided by law.” Is a Louisiana trial court’s order denying arbitration appealable to a Louisiana court of appeal. In at least two circuits (the Fourth and the Fifth), the answer is “no.” Despite the FAA, a party to a Louisiana case seeking appellate review of an order denying arbitration must apply for a supervisory writ. See Saavedra v. Dealmaker Developments, 2008-1239 (La. App. 4 Cir. 3/18/09), 8 So. 3d 758, 761–62; and Allen v. Valero Energy Corp., 06-726, pp. 3–4 (La. App. 5 Cir. 1/9/07), 951 So. 2d 370, 371–72.


Write like a president.

Oseid Communicators in ChiefThis book is next up on my reading list: Communicators-in-Chief by Julie Oseid, a law professor at the University of St. Thomas School of Law. In this book, Prof. Oseid examines the writing style and habits of five American presidents, focusing on one quality at which each excelled: Thomas Jefferson (metaphor), James Madison (rigor), Abraham Lincoln (brevity), Ulysses S. Grant (clarity), and Teddy Roosevelt (zeal). For each president, Prof. Oseid offers some biographical background, insights into his writing habits, and some examples of his best writing. There’s also a chapter on the presidents’ reading habits and favorite books.


DRI Appellate Advocacy Seminar

If you want or need high-quality appellate CLE, DRI has what you need—in Las Vegas. The DRI Appellate Advocacy Seminar will be held on March 14–15 at the Planet Hollywood Resort. It’s being held in conjunction with the DRI Trial Tactics Seminar, with a joint session being held on the afternoon of March 15. The faculty includes six appellate judges. Also on the lineup is Bryan Garner, who will talk about using canons of textualism to construct legal arguments. As a bonus, you can stick around on the morning of March 16 for additional CLE with the trial-tactics folks without any additional cost.

Oh, in case you’re board-certified in Louisiana as an appellate specialist, or if you intend to apply for that specialization this year, DRI has applied to the Louisiana Board of Legal Specialization for specialized CLE accreditation. From reading the brochure, it looks like it’ll be good for 9 hours of specialized CLE credit. (For specialists in other states, DRI has applied for specialized CLE accreditation to California, Florida, Ohio, and Texas.)


When do you need a bond to take a devolutive appeal?

Usually, an appellant taking a devolutive appeal does not have to post an appeal bond. See La. Code Civ. P. art. 2124(A). But there’s an exception to this rule: in a worker’s compensation case, an employer appealing an award of benefits must post a bond “guaranteeing that the employer will pay the amount of the award,” plus interest and costs. when the worker’s compensation judge has awarded benefits to the employee. La. R.S. 23:1310.5(C). This rule applies to both suspensive appeals and devolutive appeals. See Coolidge v. Butler, 16-937 (La. App. 3 Cir. 11/22/17)

Another procedural quirk under R.S. 23:1310.5(C): the time to post the bond does not begin to run until the worker’s compensation judge has notified the employer of the bond amount. In Coolidge, the employee moved to dismiss the employer’s appeal for failure to post the bond. The Third Circuit granted the motion. But since the WCJ had failed to set the amount of the bond, the Third Circuit dismissed the appeal as premature, and remanded the case for the WCJ to set the bond amount.

That’s a wrap for this year, folks. I just peaked at the blog archives and was surprised to realize that this blog passed its 5th birthday back in October. Thanks for reading, and best wishes for the New Year.