Pro bono program at the U.S. Fifth Circuit

Want to do appellate pro bono work? The U.S. Fifth Circuit is looking for you. Here’s the court’s description of its new pro bono program:

The [Fifth Circuit] Pro Bono Program assists the Court by facilitating the appointment of pro bono counsel to represent pro se litigants. Pro Bono Panel members will, at the Court’s invitation, be appointed in civil appeals that, for example, present issues of first impression, complex facts or legal questions, or potentially meritorious claims warranting further briefing and/or oral argument.

If you’re interested in signing up, follow this link. (Hat tip to 600 Camp.)

Bridging the Gap, Oct. 2017: Free appellate CLE stuff

Today I was honored to give a one-hour presentation at the Louisiana State Bar Association’s “Bridging the Gap Seminar,” a CLE program for newly sworn-in lawyers. For them and anyone else who may be interested, here are some PDFs you can download:

Although I counsel against over-reliance on forms (see Immortal Forms above), I’m happy to share some samples of the kinds of court filings discussed during my presentation:

As a bonus, here’s a link to The Wrong Stuff by Judge Alex Kozinski of the U.S. Ninth Circuit, explaining how you, too, can lose your first appeal (or your next one).

Finally, make your briefs look better by following this advice on typography:

$25 discount on La. appellate CLE

Can you use an extra $25? If so, read on.

Several days ago, I posted about the LSBA’s Advanced Appellate Practice Seminar, scheduled for November 16 in New Orleans. The faculty include La. Supreme Court Justice James Genovese, eight judges from the Fourth and Fifth Circuit Courts of Appeal, and yours truly. Today, I am happy to hand out this bonus goody to this blog’s readers: a $25 discount on the seminar registration fee. Just use this flyer to register—it has a $25 speaker-referral discount.

For La. practitioners: Advanced Appellate Practice Seminar

If you’re looking for high-quality appellate CLE, then consider the Louisiana State Bar Association’s Advanced Appellate Practice Seminar. It will be held on Thursday, November 16, 2017, at the Hyatt Centric French Quarter Hotel (800 Iberville), and will offer 6.25 hours of CLE credit, including 1 hour of professionalism. The faculty will include Justice James Genovese of the Louisiana Supreme Court, eight judges from the Louisiana courts of appeal, several outstanding appellate advocates, and me. Here’s the schedule:

8:00-8:30 a.m.

8:30-8:45 a.m. - (.25 credits)
Program Overview 
Thomas M. Flanagan • Flanagan Partners • New Orleans

8:45-9:45 a.m. - (1 credit)
Writ Practice: Herlitz, Writ-Grant Considerations, and Law of the Case
Hon. Roland L. Belsome, Jr. • 4th Circuit Court of Appeal • New Orleans 
Hon. Rosemary Ledet • 4th Circuit Court of Appeal • New Orleans 
Jennifer L. Thornton • Stanley, Reuter, Ross, Thornton & Alford • New Orleans

9:45-10:45 a.m. - (1 credit)
Appellate Review: Supreme Court vs. Court of Appeal
Hon. James T. Genovese • Louisiana Supreme Court • Opelousas

10:45-11:00 a.m.

11:00 a.m.-Noon - (1 credit)
The Winning Oral Argument: Mock Argument and Critique
Hon. Paula A. Brown • 4th Circuit Court of Appeal • New Orleans
Hon. Sandra Cabrina Jenkins • 4th Circuit Court of Appeal • New Orleans
Kim M. Boyle • Phelps Dunbar • New Orleans
Harry Rosenberg • Phelps Dunbar • New Orleans
Martin A. Stern • Adams and Reese • New Orleans

Noon-1:15 p.m.
Lunch (on your own)

1:15-2:15 p.m. - (1 credit)
The Role of the “Second Chair” on Appeal
Camille E. Gauthier • Flanagan Partners • New Orleans
Emily E. Ross • Sher Garner Cahill Richter Klein & Hilbert • New Orleans
Alex B. Rothenberg • Gordon, Arata, Montgomery, Barnett, McCollam, 
    Duplantis & Eagan • New Orleans 

2:15-3:15 p.m. - (1 credit)
The Winning Brief: Persuading the Court and Following the Rules
Hon. Terri F. Love • 4th Circuit Court of Appeal • New Orleans
Hon. Fredericka H. Wicker • 5th Circuit Court of Appeal • Gretna 
Kelly B. Becker • Liskow & Lewis • New Orleans

3:15-3:30 p.m.

3:30-4:30 p.m. - (1 credit - Prof.)
Professionalism on Appeal 
Hon. Regina Bartholomew Woods • 4th Circuit Court of Appeal • New Orleans
Hon. Jude G. Gravois • 5th Circuit Court of Appeal • Gretna
Thomas M. Flanagan • Flanagan Partners • New Orleans
Raymond P. Ward • Adams and Reese • New Orleans

For more information about the seminar or to register online, follow this link.

Workload of La. courts of appeal in 2016

For an upcoming CLE presentation, I created this graph showing the workloads in the Louisiana courts of appeal in 2016, focusing on the number of appeals versus applications for supervisory writs. The raw numbers from the Louisiana Supreme Court’s 2016 Annual Report, pp. 22–23.

Bar graph

Not surprisingly, the First Circuit is the busiest state appellate court. Also not surprising is that writ applications comprise a significant percentage of each court’s volume. What is surprising is the predominance of writ volume in the Fourth Circuit: 672 writ applications versus 334 appeals. That’s more than twice as many writ applications as appeals. These numbers include both civil and criminal cases, but exclude pro se writ applications.

The 2016 statistics on writ applications have some other surprises. Those will be subjects of future posts.

Counting Each Shot: The CLE Presentation

This morning, I was privileged to give a one-hour in-house CLE presentation at the Louisiana Fourth Circuit for the court’s law clerks and staff attorneys. It was based on an article I wrote a few years ago, Counting Each Shot: Techniques for Emphasis and De-emphasis. It was a clinical analysis of the respective fact statements by Justices Stevens and Scalia in Atkins v. Virginia, 536 U.S. 304 (2002). We examined the techniques Justice Scalia used to play up facts supporting his opinion, and those Justice Stevens used to do the opposite. For anyone who may be interested, here are some freebies from the presentation (all in PDF).

How not to draft a judgment, × 3

Last month, the Louisiana Fourth Circuit dismissed three appeals (that I know of) because the judgment appealed from lacked decretal language and therefore was not a valid, final judgment:

Lacking from all three judgments was decretal language. As these cases say, decretal language must do three simple things: (1) Name the party in whose favor the ruling is ordered. (2) Name the party against whom the ruling is ordered. (3) State the relief that is granted or denied. In these three instances, the judgments should have said something like, “Judgment is hereby rendered in favor of [defendant’s name] and against [plaintiff’s name], dismissing all claims of [plaintiff’s name] against [defendant’s name] with prejudice.” If only some of the plaintiff’s claims are being dismissed, then the decree must identify the specific claims being dismissed.

In Louisiana, lawyers need to know how to draft a proper judgment. That is because in many Louisiana district courts, the lawyer who prevails at the hearing of the exception or motion is instructed to draft the judgment.

Plain language wins.

Does plain language in briefwriting translate into winning? It probably does. At least there is a correlation between use of plain language and winning. That’s the result of an empirical study of appellate briefs by Prof. John Campbell of the University of Denver Sturm College of Law. His conclusion:

We can’t prove from one study that style wins cases, but we can conclude that those who win cases most value writing style. Often, we spend a great deal of time on research, framing, and crafting argument. And we must do these things. But style matters too. Voiceless, passive, complex writing is a liability. Given that energetic, simple writing rules in the Supreme Court and even correlates with winning in the busy Ninth Circuit, we’d all do well to set aside some time to make our briefs read more like a Grisham novel and less like a statute. Judges and our clients will thank us.

To read an abstract of Prof. Campbell’s study and to download a PDF copy, follow this link.

Source: Campbell, John E., Writing that Wins: An Empirical Study of Appellate Briefs (July 31, 2017). The Colorado Lawyer, Vol. 46, No. 3, March 2017; U Denver Legal Studies Research Paper. Available at SSRN:

La. CLE on Advanced Appellate Practice

If you’re reading this, then here’s some CLE you’ll be interested in: the LSBA’s Advanced Appellate Practice seminar, to be held in New Orleans on November 16. The coordinator, Tom Flanagan, has put together a great faculty that includes nine appellate judges, including Justice James Genovese of the Louisiana Supreme Court. I’ll be on a panel with Tom, Judge Regina Bartholomew Woods (La. 4th Cir.), and Judge Jude Gravois (La. 5th Cir.) to talk about professionalism. To see the entire lineup, follow this link.