Not all judgments can be appealed. The general rule is that any appeal must await the final judgment in the case. There are exceptions for some partial final judgments and for certain kinds of interlocutory judgments. Last week, the Louisiana Fourth Circuit issued an opinion dismissing an appeal, and in hornbook-like manner, explained the process for determining whether a judgment can be appealed and the reason the judgment in question was not appealable. See Pollard v. Alpha Technical, 2013-1239 (La. App. 4 Cir. 2/5/14).
There are four topics it’s best not to raise in polite discussion with an appellate lawyer: religion, politics, fully-justified versus ragged-right text, and citations in footnotes. Thirteen years ago, the last of these controversial topics generated some heat in the La. Third Circuit, in Ledet v. Seasafe, Inc. Today, people are still arguing about it. I have a little piece about the most recent stir up at The (New) Legal Writer.
My own opinion on the subject has evolved along with the technology. Legal writers started putting citations in text because, in the days of the typewriter, it was most impracticable to put anything in footnotes. Twenty years or so ago, the computer and programs like WordPerfect and Word freed us from the typewriter’s constraints. But even then, the brief was still designed to be printed on and read from paper.
Today, the game has changed. Many judges are now reading briefs on iPads or other e-readers. As pointed out by Rich Phillips, that, in itself, is a good reason to put the citations in text. And the briefs being read by U.S. Fifth Circuit judges on those devices are hyperlinked: thanks to the court’s magic software, all the legal citations are converted to Lexis or Westlaw hyperlinks, and all the record citations are converted to hyperlinks to the electronic record. To me, a 10-year veteran reader and writer of hyperlinked text, that is a huge, huge reason to put all the citations in text. If you doubt that, ask yourself whether this blog post would be improved by relocating all the hyperlinks to the bottom of this post. Would you like that? Didn’t think so.
Under the recently revised rules governing briefs in Louisiana courts of appeal, does the cover page count against the page limit? Apparently in the First Circuit, the answer is yes. At least, that is the interpretation of First Circuit Clerk’s office, as expressed in its checklists for the appellant’s and appellee’s briefs. (Hat tip to Mark Plaisance.)
Some background: As many of you know, the Uniform Rules of the Louisiana Courts of Appeal were recently amended, and the amendments included substantial revisions to the briefing rules.
One set of changes was designed to prevent lawyers from circumventing the old 28-page limit (for legal-size paper). Under the old rules, several non-argumentative items (such as the jurisdictional statement) were excluded from the 28-page limit. Often, some lawyers would circumvent the page limit by loading up those non-argumentative items with argument. So some lawyers, unable to control their prolixity, would submit briefs including, say, a five-page jurisdictional statement loaded up with argument on the merits of the appeal.
The revised rules fix that problem. Under revised Rule 2-12.2(D)(1), the page limit is expanded from 28 legal-size pages to 31, but everything is included in the expanded page limit except the table of contents and table of authorities. With everything counting against the page limit, lawyers no longer have anything to gain by shifting argument to what are supposed to be non-argumentative parts of the brief.
Under the old rules, the clerks of the five courts of appeal invariably omitted the cover page from the old 28-page limit. Many lawyers (well, at least I) assumed that the cover page would continue to be excluded from the new 31-page limit. But revised Rule 2-12.2(D)(1) does not explicitly exclude the cover page, and it seems that the First Circuit clerk’s office is interpreting the new rule literally, thus including the cover page in the page limit.
How are the other circuits interpreting the new rule? The Second Circuit’s briefing checklist does not say whether the cover page is included in or excluded from the page limit, but it does remind lawyers that the page limit “[e]xcludes only table of contents and table of authorities.” I couldn’t find anything on the Third, Fourth, or Fifth Circuit’s web sites addressing this question.
Today the Louisiana Second Circuit promulgated Local Rule 12, governing the content of the appellee’s brief. You can view the newly adopted rule on the court’s web site, on the local-rules page, and you can download a copy of the order promulgating the new rule by clicking here.
Local Rule 12 departs slightly from Uniform Rule 2-12.5 by adding three items to the list of things that the appellee’s brief need not include unless the appellee is dissatisfied with the appellant’s statement:
the assignment of alleged errors (Unif. R. 2-12.4, subsection A(5));
the statement of the objection or proffer (Unif. R. 2-12.4, subsection A(9)(b)); and
a copy of the judgment, order, or ruling complained of, and any reasons for judgment (Unif. R. 2-12.4, subsection B(1)).
Once a party perfects an appeal, jurisdiction over all matters reviewable under the appeal is transferred from the trial court to the court of appeal. La. Code Civ. P. art. 2088(A). Once this happens, the trial court has no jurisdiction to rescind its order of appeal. That proposition seems obvious, and indeed, the Louisiana Third Circuit so held in a recent decision, Thompson v. Thompson, 13-1237 (La. App. 3 Cir. 1/22/14). See also David v. David, 13-171 (La. App. 3 Cir. 6/19/13) (same holding).
Note, though, the distinction in art. 2088(A) between a devolutive appeal and a suspensive appeal. In a devolutive appeal, jurisdiction vests in the court of appeal when the order of appeal is signed. In a suspensive appeal, jurisdiction vests in the court of appeal when the order of appeal is signed and the appellant has timely filed the appeal bond. When the appellant in a suspensiive appeal fails to file the bond timely, the trial court retains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in eviction cases. La. Code Civ. P. art. 2088(B).
What happens if a trial court purports to rescind an order of suspensive appeal before the appellant has filed the appeal bond? I don’t know because I’ve never seen that problem occur. If you know the answer, please leave a comment or send me an e-mail.
(Sorry, I couldn’t find a link to the article by itself, so we have to settle for a link to a PDF of the entire issue. But if you click on the article title, it will take you to the page where the article starts.)
As mentioned in this prior post, most of the U.S. Fifth Circuit judges are now reading briefs on an iPads. We brief-writers need to consider this reality when making decisions on the brief’s format. For some practical tips on that subject, read this article at the Columbia Business Law Review.
This seminar is hitting 12 U.S. cites between March 4 and June 5. The stops most convenient to Louisiana lawyers:
New Orleans, April 1 (InterContinental New Orleans)
Houston, April 3 (Hyatt Regency Houston)*
Dallas, April 18 (InterContinental Dallas)*
I can vouch for the quality of the material. And Bryan is probably the most skilled CLE presenter I have seen. Good presenters hold your attention for an hour; Bryan can hold your attention for an entire day.
*I don’t know the process for obtaining Louisiana CLE credit for classes taken in Texas. But since the seminar is stopping in New Orleans, I assume that at least that presentation will have the LSBA’s blessing. If you’re interested in attending the Houston or Dallas sessions, I’d suggest calling the LSBA about getting Louisiana CLE credit.
Let’s say you lost in federal court and are thinking about appealing to the U.S. Fifth Circuit. What are the chances of reversal? The answer is on this handy statistical snapshot prepared by the Fifth Circuit clerk's office. Here are the reversal rates for various categories of cases for the year ending 30 June 2013:
U.S. Prisoner Petitions: 2.8%
Other U.S. Civil: 17.8%
Private Prisoner Petitions: 4.2%
Other Private Civil: 11.4%
Original proceedings (mandamus, etc.): 0%
Now, let’s say you lost a Fifth Circuit appeal and are considering petitioning for either panel rehearing or rehearing en banc. What are the chances of success? Not so good. Here are the numbers of rehearings granted divided by the number of rehearing petitions:
Now let’s say you struck out in the Fifth Circuit but sincerely believe that your case has a truly cert-worthy issue. What are your chances of getting the U.S. Supreme Court to grant certiorari? You can find those numbers here, and they’re not as bad as you might expect. The statistics don’t include percentages, but they do include the numbers of petitions filed and granted in various categories. Here are my calculations of percentages. I’ve taken the number of petitions pending at the beginning of the statistical year, added the number filed during the year, subtracted the number pending at the end of the year to get the total petitions acted on. I then divided that total by the number granted and by the number dismissed. The results:
Total: about 4.4% granted, 1% dismissed.
Criminal: about 4% granted, none dismissed.
Private civil: about 5.7% granted, 1.5% dismissed
These numbers are actually better than one might expect. The reason, according to the clerk, Lyle Cayce, may be that the lawyers are generally doing a good job of evaluating the cert-worthiness of their cases.