Judge Vanessa Whipple (La. 1 Cir.), chair of the Uniform Rules Committee for the Louisiana Courts of Appeal, recently informed members of the LSBA Appellate Section that the next committee meeting is scheduled for April 5. If you have any ideas for rule amendments that you’d like the committee to consider, you can send them to Judge Whipple. Her mailing address is P.O. Drawer 2667, Houma, Louisiana 70361.
Ask me the easiest way to win an appeal, and I’ll answer, “Represent the appellee.” Depending on the issue, the appellee often benefits from deferential standards of review. But one of the appellee’s greatest advantages is one I seldom see lawyers use: Code of Civil Procedure art. 2133(B). This provision allows the appellee to assert, in support of affirmance, “any argument supported by the record ....” This means that, unlike the appellant, the appellee is not confined to arguments made in the trial court. Caselaw interpreting art. 2133(B) holds that, even if an argument was rejected or not considered by the trial court, it can still be raised on appeal in defense of the trial court’s judgment.
If you represent the appellee, most of the time you will want to stick with whatever argument worked in the trial court. Just remember that you are not confined to what worked in the trial court, or even what you raised in the trial court. If the record supports the argument, art. 2133(B) allows you to make it.
Why is this project so important? Because several studies have shown that about half the time, jurors don’t understand the instructions.
The committee’s work shows its awareness of this problem and a
worthwhile effort to overcome it, through instructions written in plain
English. Please do your part: take the time to read the proposed instruction and send your comments to Tereze.
Recently for a marketing piece, I was asked to answer the question, “What is an important case relevant to your practice area and why?” The answer I came up with is Gonzales v. Xerox Corp., 320 So. 2d 163 (La. 1975). At the risk of over-simplifying, Gonzales holds that, when an appellate court reverses a trial court’s judgment because of a legal error affecting the verdict, the appellate court ordinarily should not remand the case to the trial court for a new trial, but instead should determine the facts for itself and render the appropriate judgment. In these instances, the appellate court becomes the trier of fact.
Gonzales highlights the uniqueness of Louisiana civil appellate procedure. This uniqueness stems from La. Const. art. V § 10(B), which vests the courts of appeal with jurisdiction over both law and facts in civil cases, and from La. Code Civ. P. art. 2164, which empowers appellate courts not merely to review the trial court’s judgment, but to render judgment themselves. Gonzales is an application of these principles. And because a trial court’s legal error may lead to the appellate court’s having to decide the facts for itself, Gonzales highlights the importance of selling your side’s version of the facts to the appellate court.
That is why I think that, in the area of Louisiana civil appellate practice, Gonzales is one of the most important decisions on the books. Do you agree? What do you think is the most important case in this area? Comments are open.
Some sad news to report: about a week ago, Rene deLaup passed away. He was active in the Louisiana State Bar Association. Among other things, he was the founding president of the LSBA’s Appellate Section. Here is a link to the Times-Picayune’s obituary.
Do you want an easy way to look up code articles and other Louisiana statutes? If you do, then bookmark Naked Ownership’s codes and statutes page. You will not find comments or annotations. You will, however, find the current version of any statute you look up, with references to legislative acts creating and amending each statute. Very handy when you just want to browse the statutory language. Also very handy for copying and pasting statutory text into your notes, memo, or brief. The proprietor is Al Robert Jr., a good lawyer and a good man.
Please note that the time standards are not hard-and-fast deadlines; they are goals that the courts of appeal and supreme court are supposed to strive for. And by their own terms, the standards apply only under “normal and usual circumstances.” Your mileage may vary. Still, when your client asks how long the process will take, it’s nice to have some objective guidelines to refer to in answering the client’s question.
Note too that the time standards don’t kick in until the record is lodged in the court of appeal. To figure how long it will take for the record to be lodged, refer to La. Code Civ. P. art. 2125.
Often I am asked about the deadline to apply for a supervisory writ after a trial court’s adverse interlocutory ruling. I wish the answer to this question were simple. The short answer is 30 days—unless the trial court gives you either less time or more time. In any event, there are two things you must do within 30 days: file (in the trial court) a notice of intent to seek a supervisory writ, and get the trial judge’s signature on the order setting the return date, i.e. the deadline to file the application in the court of appeal.
Next question: When does the 30 days start running? If the judge takes the matter under advisement, the answer is easy: when the clerk mails notice of judgment. But things get trickier when the trial judge rules in open court. In that event, the 30 days starts either when the judge rules in open court or later, when the clerk mails notice of written judgment. Usually it’s the latter, but sometimes it’s the former.
The best way to answer these questions is to consult Uniform Rules 4-2 and 4-3 and La. Code Civ. P. art. 1914—the interaction of these provisions determines your deadline. If you’re looking for a practitioner-oriented article explaining these provisions and judicial glosses on them, then take a look at A Writ in Time, published a few years ago in the Louisiana Bar Journal. The article was published shortly after the most recent amendments to Rule 4-3 and art. 1914 in 2003.
THE OTHER DAY, I RAN INTO AN ENTIRE PARAGRAPH WRITTEN IN ALL CAPITAL LETTERS. TO MAKE MATTERS WORSE, THE ENTIRE THING WAS IN BOLD TEXT. AND I THOUGHT TO MYSELF, “GEEZ, TRYING TO READ THIS IS HURTING BOTH MY EYES AND MY BRAIN. IT’S LIKE THE WRITER IS SHOUTING AT ME, WHICH HURTS MY EARS AND MAKE ME WISH THAT HE WOULD JUST SHUT UP, JUST TO STOP THE PAIN.”
The other day, I ran into an entire paragraph written in all capital letters. To make matters worse, the entire thing was in bold text. And I thought to myself, “Geez, trying to read this is hurting both my eyes and my brain. It’s like the writer is shouting at me, which hurts my ears and makes me wish that he would just shut up, just to stop the pain.”
Which of the two paragraphs above would you rather read? If the latter, then please, please don’t ever write anything that looks like the former. Not in a heading, not in your table of contents, not on the cover of your brief, not even in an e-mail. Not anywhere, ever. Because the last thing you want your readers to think is “Oh, please, just stop.”
Today I’ve taken advantage of the Martin Luther King holiday to do some work on this blog. To describe the content more accurately, I’ve given it a new title, “Louisiana Civil Appeals.” To make the posts more readable, I’ve reformatted the blog. And on the right side of the screen, I’ve added two Feedburner widgets, allowing you to subscribe either in a reader or by e-mail.