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.
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.
My colleague Aaron McLeod has written a fine article with the appropriate title “How to Write So Judges Will Like You.” Aaron researched this article by interviewing over a dozen judges and has distilled their responses in the article. To read it in PDF, follow this link.
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.
At a recent seminar in Texas, Judge Stephen Higginson (5th Circuit) offered six tips for appellate advocates. David Lat of Above the Law was there to write them down. To read them, follow this link; your time reading them will be well spent.
Can the applicant (after a writ grant) or an appellant in the Louisiana Supreme Court file a reply brief, responding to the brief of the respondent or appellee? The answer is “yes.” While LASC Rule VII makes no explicit provision for a reply brief, Rule VII § 11.1 allows parties to file “supplemental briefs on the merits” any time before the case is argued or submitted. Most lawyers use this rubric as authorization for a reply brief. Yesterday, I came across an LASC decision blessing this practice. In Shane v. Parish of Jefferson, the Court said, “The filing of a reply brief was intended to be included within the purview of ‘[s]upplemental briefs on the merits,’ as stated in this court’s Rule VII, § 11.1.” Shane v. Parish of Jefferson, 2014-2225, p. 8 (La. 12/8/15), 209 So. 3d 726, 734 (brackets by the Court).
Bryan Garner’s usage tip of the day includes this quotation by George Orwell:
“[M]odern writing at its worst does not consist in picking out words for the sake of their meaning and inventing images in order to make the meaning clearer. It consists in gumming together long strips of words [that] have already been set in order by someone else, and making the results presentable by sheer humbug.”
Is this a good description of bad briefwriting?
If you practice in the Louisiana Second Circuit, here is something you need to know if you don’t want your brief rejected by the clerk of court. Beginning on May 31, every brief filed in the Second Circuit must include the following certification concerning attachments:
I hereby verify that all attachments to this brief have previously been duly filed and/or accepted into evidence in the lower court, to the best of my knowledge, information and belief. I understand that failure to comply with this local rule may result in the refusal to consider said attachments. WILLFUL FAILURE TO COMPLY WITH THIS LOCAL RULE MAY SUBJECT ME TO PUNISHMENT FOR CONTEMPT OF COURT.
See La. 2d Cir. R. 15 (eff. May 31, 2017). Second Circuit Rule 2-5 has been amended to require the clerk of court to reject any brief that fails to comply with new Rule 15. This amendment, too, takes effect on May 31.
This morning, I gave my annual presentation on appellate practice at the Louisiana State Bar Association’s “Bridging the Gap” seminar for newly sworn-in lawyers. For those who attended, and for anyone else who may be interested, here are some of the things I used or referred to:
- My written materials
- My slide presentation (PDF)
- A Writ in Time, 51 La. B.J. 338 (Feb./Mar. 2004), on making sure that your application for a supervisory writ is timely
- Immortal Forms: The Vampires of Legal Writing, For the Defense 57 (Jan. 2009), on why forms are the enemies of good briefwriting.
As lagniappe, here are links to two entertaining articles by Judge Alex Kozinski of the U.S. Ninth Circuit:
- The Wrong Stuff, tips on how to lose your next appeal
- In Praise of Moot Court—Not!, on the difference between law-school moot-court experience and real-life appellate advocacy
Finally, make your briefs look better by following this advice on typography: