Change in La. writ practice for denials of summary judgment

I was recently reminded of an amendment to La. Civ. Code art. 966, effective January 1, 2016, that will affect applications for supervisory writs to review denials of summary judgment. Under art. 966(H), before reversing the denial of a summary judgment and granting summary judgment to dismiss a case or a party, the court of appeal must assign the case for briefing and give the parties an opportunity to request oral argument. Under prior law, a writ grant usually resulted in a peremptory ruling granting summary judgment.

I remember a discussion of this amendment late last year at the LSBA’s Advanced Appellate Advocacy Seminar, during a presentation by Judges John Michael Guidry and Rosemary Ledet. The amendment is intended to level the playing field for parties supporting and opposing summary judgment. The reasoning is that, when summary judgment is granted, the judgment can be appealed, meaning that the parties have the right to file briefs and to request oral argument. The idea is to give the parties the same level of attention when summary judgment is denied and the party seeking summary judgment applies for a supervisory writ.

The only flaw I see in this reasoning is that the court of appeal is not required to follow the new procedure if it either denies the application or grants the application and affirms on the merits; the new procedure applies only when the appellate court reverses the denial of summary judgment. Time and experience will tell whether the new procedure does what it’s intended to do.

(To see my prior post about this amendment, follow this link.)


Appellate CLE for those seeking La. appellate certification

If you plan to apply this year to the Louisiana Board of Legal Specialization for certification in appellate law, listen up. One thing you’ll need is 18 hours of appellate CLE. And one place to get a good chunk of those hours (11.75 by my count) is the upcoming DRI Appellate Advocacy Seminar. The seminar will be held February 10–12, 2016 in Scottsdale, Arizona. There’s still time to get the early-registration discount—the cutoff for that is January 26. For information about registration and the program, follow this link.


In briefs, emotional language loses.

Some political scientists recently published a study on the use of emotional language in briefs filed in the U.S. Supreme Court. After controlling for a variety of factors, they concluded that overtly emotional language correlates to losing the case. Here’s an excerpt from the abstract:

We argue emotional language conveys a lack of credibility to justices and thereby diminishes the party’s likelihood of garnering justices’ votes. The data concur.... [W]e find that parties who employ les emotional language in their briefs aree more likely to win a justice’s vote, a result that holds even after controlling for other features correlated with success, such as case quality. These findings suggest advocates seeking to influence judges can enhance their credibility and attract justice’s votes by employing measured, objective language.

Ryan C. Black, Matthew E.K. Hall, Ryan J. Owens, and Eve M. Ringsmuth, The Role of Emotional Language in Briefs Before the U.S. Supreme Court (December 15, 2015). To read the abstract and to download the study supporting the authors’ conclusions, following one of these links at SSRN: http://ssrn.com/abstract=2703875 or http://dx.doi.org/10.2139/ssrn.2703875.


How not to comply with word-limit rules

Most appellate courts have rules limiting the number of pages or words in a brief. When a brief is a bit too long, lawyer-editors have a number of techniques for making the brief fit the applicable limit. Some are good. Others are not so good.

An example of the latter comes from the Federal Circuit’s decision last spring in Pi-Net International, Inc. v. JPMorgan Chase & Co., No. 2014-1495 (Fed. Cir. Apr. 20, 2015), cert. denied sub nom. Arunachalam v. JPMorgan Chase & Co., No. 15-691, — U.S. — (Jan. 11, 2015)  (PDF copy here). There, the appellants decided to squeeze their brief under the 14,000-word limit by removing the spaces between words. For example, instead of providing this citation:

Thorner v. Sony Computer Entm’t Am., LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) [14 words]

they provided this one instead:

Thorner.v.SonyComputerEntm'tAm.LLC,669F.3d1362,1365(Fed.Cir.2012) [1 word].

The trick didn’t work. The Federal Circuit struck their brief and dismissed their appeal. And last Monday, the Supreme Court denied certiorari.

For legitimate methods to squeeze a brief under a page or word limit, read this post by Mark Herrmann.


First Circuit to amicus: “You’re not my friend.”

A couple of days before Christmas, the Louisiana First Circuit gave a lesson in what not to do when seeking to file an amicus curiae brief. In Barfield v. Bolotte, 2015-0847 (La. App. 1 Cir. 12/23/15), the First Circuit denied a would-be amicus’s motion for leave to file a brief. Here is the money quote:

While our review of the motion reveals the law firm’s clients have an obvious interest in the outcome of this case, we find that the law firm’s motion does not meet the basic requirement of stating specific reasons why the amicus curiae brief would be helpful to or aid this court in deciding the instant appeal. Instead, the law firm offers general “experience as a friend of the court” without any indication regarding their aid or any suggestion that current counsel and the parties represented in the instant lawsuit will somehow not sufficiently present all relevant legal arguments on appeal. We also note that the law firm’s amicus curiae brief raises issues and theories of law that were not considered by the BTA or district court and have not been raised by the parties involved in this appeal. The law is well settled that issues not raised by the parties cannot be raised by amicus curiae on appeal. [Case citations omitted.] Thus, we deny the law firm’s motion for leave to file an amicus curiae brief.


Mark your calendars

If you plan to apply to the Louisiana Board of Legal Specialization in 2016 for certification as an appellate specialist, one of the things you’ll need is 18 hours of CLE in 2016 in the area of appellate practice. A likely place to pick up some of those hours will be the Appellate Summit put on by the ABA’s Appellate Judges Educational Institute and Council of Appellate Lawyers. According to an e-mail I received today, the 2016 Summit will be held in Philadelphia (presumably PA, not MS) on November 10–13. If you’re interested in attending this seminar and are the type who likes to plan ahead, block out the dates now.

And if you can’t wait 11 months to scratch your appellate-CLE itch, then register for the DRI Appellate Seminar, to be held in Scottsdale, AZ on February 10–12. For details on that seminar, read this blog post.