If you’re looking for appellate CLE in New Orleans, then check out Setting Precedents, a two-day appellate CLE seminar to be held on May 31–June 1 at Loyola Law School. It offers 12.5 hours of CLE, and the organizers have applied to the Louisiana Board of Legal Specialization for accreditation as specialized appellate CLE. I’ll be speaking at the seminar, giving a one-hour presentation on using structure and grammar to empower your writing. To see the full lineup and to register, follow this link.
After my recent post about putting only one space (not two) between sentences, a friend pointed out a recent article in Attention, Perception & Psychophysics. According to the article, the authors (Rebecca L. Johnson, Becky Bui, and Lindsay L. Schmitt) did a study about this subject. Here’s the abstract:
The most recent edition of the American Psychological Association (APA) Manual states that two spaces should follow the punctuation at the end of a sentence. This is in contrast to the one-space requirement from previous editions. However, to date, there has been no empirical support for either convention. In the current study, participants performed (1) a typing task to assess spacing usage and (2) an eye-tracking experiment to assess the effect that punctuation spacing has on reading performance. Although comprehension was not affected by punctuation spacing, the eye movement record suggested that initial processing of the text was facilitated when periods were followed by two spaces, supporting the change made to the APA Manual. Individuals' typing usage also influenced these effects such that those who use two spaces following a period showed the greatest overall facilitation from reading with two spaces.
Unfortunately, to read the article itself, you have to shell out $39.95, which I wasn’t willing to do. (You can buy Matthew Butterick’s Typography for Lawyers for only $30.) Fortunately, I found this blog post in Lifehacker, where Nick Douglas did the homework.
Long story short: The font that Johnson et al. chose for their study was Courier New, a monospaced font that replicates a manual Underwood typewriter. The two-space convention is a vestige of the typewriter days, when everything was monospaced. This news just in: no one outside of prison writes a brief or any other court document on a manual typewriter using a monospaced font. For a few decades now, we’ve all had computers, and our documents have been written in proportionally spaced fonts. So as I said, “Unless you’re banging out your briefs on an Underwood manual typewriter, put only one space—not two—between the end of one sentence and the first letter of the next sentence.”
One more absolute rule for typography: No underlining. That will be the topic of a future post.
While on the subject of typography, here is an absolute rule, not subject to serious debate: Unless you’re banging out your briefs on an Underwood manual typewriter, put only one space—not two—between the end of one sentence and the first letter of the next sentence. On this point, the authorities are unanimous:
“Use even forward-spacing in your documents: one space between words and one space after punctuation marks (including colons and periods).” Bryan A. Garner, The Redbook § 4.12 (2013).
“Some topics in this book will offer you choices. Not this one. Always put exactly one space between sentences.” Matthew Butterick, Typography for Lawyers 41 (2010) (emphasis in original).
“A single character space, not two spaces, should be left after periods at the ends of sentences (both in manuscript and in final, published form) and after colons.” The Chicago Manual of Style § 2.12 (15th ed. 2003).
“Space between sentences. In typeset matter, one space, not two (in other words, a regular space), follows any mark of punctuation that ends a sentence, whether a period, a colon, a question mark, an exclamation point, or closing quotation marks.” Id., § 6.11.
Many brief-writers use fully justified text, so that the text lines up with both the left and right margins. I don’t. When I make the typography decisions, I use left-justified or left-aligned text, with a “ragged-right” margin. This is not a matter of personal preference. It’s a matter of readability. If the text is generated by a word processor (e.g. Word, WordPerfect) rather than professionally typeset, left-justified text is easier to read because it avoids odd gaps between words. But don’t take my word for it. Consider these authorities:
“Except in the hands of a skillful typographer, fully justified text can be harder to read than unjustified (‘flush-left’) text. This is always true for office documents, and especially when they are unhyphenated as well. Forcing the text to both margins may result in lines with word spacing that is too wide or, worse, unevenly distributed across the page.... Setting the copy flush left has its own advantages, too: the uneven right margin gives visual clues that help the reader find the beginning of the next line. Readers don’t lose their place in the copy as often.” Bryan A. Garner, The Redbook 92–93 (3d ed. 2013).
“In my law practice, I almost never justify text. Why’s that? The justification engine in a word processor is rudimentary compared to a professional page-layout program. I find that word-processor justification can make text look clunky and coarse. Left-aligning the text is more reliable.” Matthew Butterick, Typography for Lawyers 136 (2010).
“For desktop publishing, then, the choice should be different. According to some experts, keeping the text left-aligned affords the greatest legibility because there is no adjustment needed to word spacing and because the resulting ‘ragged-right’ margin adds variety and interest to the page without interfering with legibility.” Ruth Ann Robbins, Painting With Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents:, 2 J. ALWD 109, 130 (Fall 2004).
“Do not justify your text unless you hyphenate it too. If you fully justify unhyphenated text, rivers result as the word processing or page layout program adds white space between the words so that the margins line up.” U.S. Ct. App. 7th Cir. Requirements and Suggestions for Typography in Briefs and Other Papers.
Under Fed. R. App. P. 38, a federal appellate court may award damages for a frivolous appeal. How bad does an appeal have to be to incur Rule 38 sanctions? The U.S. Fifth Circuit answered that question in depth in Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988). In that case, the appellant’s counsel filed a brief that “cite[d] only two cases, and fail[ed] to explain even those two.” Id. at 813. The brief also failed to address any of the controlling authorities cited in the lower court’s judgment. Said the Fifth Circuit, “This is poor appellate practice and an abuse of the appellate process.”
The lesson for the rest of us: don’t ignore adverse controlling authorities—especially when they’re cited in the trial court’s reasons for judgment.
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.)
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.
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.
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).