Louisiana Civil Appeals

New local rules at the La. 5th Circuit

The Louisiana Fifth Circuit has adopted two new local rules, both effective June 1, 2024.

Under new Local Rule 15, the court will have discretion to give expedited consideration to tutorship and interdiction cases.

New Local Rule 16 governs exceptions to the norm of three-judge panels. Here’s the full text of the new rule:

RULE 16: PANELS

In accordance with Louisiana Constitution, Article V, Section 8(A), the Fifth Circuit Court of Appeal shall sit in panels of three judges, except as follows:

A. A five-judge panel is convened in accordance with Louisiana Constitution, Article V, Section 8(B).

B. A five-judge panel is convened in cases arising under Chapter 9 of Title 18 of the Louisiana Revised Statutes [election contests and challenges] unless an en banc panel is required by law.

C. A five-judge panel, and, if necessary, an en banc panel, is convened if a majority of the judges sitting in a case cannot concur to render judgment.

D. An en banc panel is convened when precedent of the court is to be abrogated.

E. A panel of more than three judges may be convened in all other cases as the court deems necessary. 

“Bridging the Gap” bonus materials

This morning, I’m giving a CLE presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar. For attendees and anyone else who’s interested, here are links to a couple of articles I came across recently that make for good reading. The authors’ names are links to their bios, and the article titles are links to the articles themselves.

• Douglas S. Lavine, Advocacy from the Human Perspective: Advice for Young Appellate Lawyers, 15 J. App. Prac. & Process 243 (Fall 2014).
• Andrey Spektor and Michael A. Zuckerman, Legal Writing as Good Writing: Tips from the Trenches, 14 J. App. Prac. & Process 267 (Fall 2013).

Timeliness of writ application in court of appeal

Here’s a citable decision released today by the Louisiana Supreme Court on the timeliness of a writ application filed in a Louisiana court of appeal. Since the decision is (a) short, and (b) light on facts, I’ll just quote it verbatim:

PER CURIAM

Granted. Although the trial court set the return date more than thirty days from the date of the ruling, the court has authority to extend the deadline under Rule 4-3. See Barnard v. Barnard, 96-0859 (La. 6/24/96), 675 So.2d 734. Relator’s application, filed within the time limit authorized by the trial court, is timely.

Accordingly, the application is remanded to the court of appeal for consideration on the merits. 

Boyer v. Boyer, 2024-CC-00372 (La. 5/7/24). Caution: while I don’t know the facts of this case, my experience is that this works only when the writ applicant files its notice of intent within the original 30-day period in Uniform Rule 4-3. In those instances, when the trial court sets a return date beyond the 30-day period, the courts should treat the order as an implied motion and order to extend the return date, which Rule 4-3 authorizes.

For an excruciatingly detailed discussion on the timely filing of writ applications in the court of appeal, see my 20-year-old La. Bar Journal article on that topic.

Time to oppose an LASC writ application: 15 30 days

Here’s a rule change I just found out about.¹ Before April 1, 2024, the time to file an opposition to a writ application in the Louisiana Supreme Court was 15 days after filing of the writ application. But effective April 1, Rule X § 6 now gives the opposing party 30 days to file an opposition. This expanded time to file an opposition comes with the caveat that “[n]o extensions of this deadline shall be granted unless the party can demonstrate through clear and convincing evidence that the delay was the result of circumstances beyond its control.” An official comment explains the LASC’s rationale for this amendment:

The court is cognizant that in many cases, the prior fifteen-day opposition deadline was too short for opposing parties to adequately respond to issues raised in the application, which has resulted in the filing of motions for extension of time. While the court encourages the filing of oppositions, motions for extension can delay consideration and affect the court’s ability to rule upon applications in a timely fashion. To balance these competing concerns, the fifteen-day opposition deadline has been increased to thirty days, with the condition that no extensions will be permitted. The only exception to this prohibition is for truly exceptional situations where the party can demonstrate through clear and convincing evidence that the inability to file the opposition timely was due to circumstances beyond the party’s control. Circumstances within a party’s control, such as errors in calendaring the delay or conflicting obligations, shall not constitute a basis for extension under this rule.  

__________

¹ Hat tip to my colleague Martin Stern for this.

TMI—TF: too much information—too fast

I’ll start this post with some axioms: If we’re in the persuasion business, then what we say is far less important than what our audience grasps. If the audience fails to grasp our point, then the persuasion process has failed. And if the audience wants to grasp our point but fails to do so, a possible cause is our failure to communicate our point in a way that the audience can grasp. Thus, if we want to succeed in persuading the audience, then we want to make sure that we’re presenting our case in a way that the audience can readily grasp.

If you’re with me up to here, then you need to know the stuff in Professor Andrew M. Carter’s article The Reader's Limited Capacity: A Working-Memory Theory for Legal Writers, 11 Legal Communication & Rhetoric: J. ALWD 31 (Fall 2014) (PDF download here). In his article, he makes several points that professional persuaders must know. The most important of these is the undeniable fact that humans’s capacity for processing information is limited. That limit applies not only to humans’ capacity to take in new information, but also to their capacity to tie that information to what they already know. Carter offers the metaphor of a juggler. If the juggler tries to juggle too many things at once, the juggler is likely to drop something. So it is when we ask our audience to juggle too many ideas at once: they’re liable to drop something. And what gets dropped will be the point we’re trying to communicate.

To avoid that result, Carter offers what he calls a “cognitive-load theory” of legal writing “to manage the reader’s working memory loads in order to maximize learning and reasoning.” He includes several tips for reducing the cognitive load we impose on our readers. The tips are important, but so is the science behind the tips. The article is only 20 pages long, so it’s well worth your time.

 

Choosing names

You’ve probably heard that what you call the parties or other people involved in a case can have subtle persuasive effect. You’re probably aware of and may try to follow Fed. R. App. P. 28(d), which recommends not using terms like appellant and appellee, and instead using either actual names or descriptive terms like “the employee,” “the injured person,” “the taxpayer,” “the ship,” or “the stevedore.” But Rule 28(d) still leaves us with several choices. For instance, if American Airlines is a party, you might refer to that party by its full name, by the shorthand American, or by a description which will vary depending on the type of case, such as the airline, the employer, or the taxpayer. How do you choose? And should your choice be different depending on whether American Airlines is the client or the opposing party?

For help in making these decisions, check out What's in a Name? The Implications of Strategic Naming Choices in Legal Advocacy, by Professor Kristin Gerdy Kyle of BYU Law. In her article, Professor Kyle explores the field of psycholinguistics and applies theories from that field to the choices of what to call the people and entities involved in a case.

To go straight to Professor Kyle’s recommendations based on her examination of the science, you can jump ahead to page 48. But if you want to know a little about the science behind her recommendations, read the whole thing. Following experts’ rules is fine, but it’s always better to know the reasons behind their rules so you’ll know when to make an exception.

I have one suggestion of my own: in attempting to depersonalize an opponent, don’t be obvious. If you call your client Mary Smith and your opponent the defendant, every reader will know what trick you’re trying to pull, and a trick doesn’t work when the audience is on to it. In The Winning Brief, Bryan Garner recommends “us[ing] real names for both parties and let[ting] your arguments do the talking.” That strategy is more effective because, as Garner says, “bad facts don’t stick to neutral labels ... the way they do to real names.” Bryan A. Garner, The Winning Brief 244 (3d ed. 2014).

Bridging the Gap — Spring 2024 Edition

On May 8, I’ll be giving my spiel on appellate practice at the Louisiana State Bar Association’s semi-annual Bridging the Gap seminar. This seminar, designed for new lawyers, will be held on May 7–8 at the Marriott Warehouse / Arts District Hotel, 859 Convention Center Boulevard in New Orleans. It offers 15 hours of CLE, including ethics, professionalism, and law-office management. If you’re a new or relatively new lawyer, please consider registering. If you know a new or relatively new lawyer, please recommend this seminar to her or him. To view the program, follow this link. To see more information and to register, follow this link. Thanks.

Bias in deciding who’s a legal-writing expert

“To be blunt, I think the results of my study suck.” That’s how Professor Alexa Z. Chew described what she found when she examined the people held up as legal-writing experts. Long story short, the people held up as legal-writing authorities in legal-writing books by white male authors are mostly other white males. In her article, The Fraternity of Legal Style, she describes her methodology and the thought-provoking and, well, sucky results.

To read the abstract, follow this link. To go directly to the PDF article, follow this link.

LASC annual report

In case you missed it, the Louisiana Supreme Court recently issued its annual report for 2023. It has useful information for appellate lawyers, including statistics on writ applications filed and granted and the workloads of the five Louisiana courts of appeal. To download a copy, follow this link.

When delay equals “effective denial” of a preliminary injunction

A couple of weeks ago, the U.S. Fifth Circuit issued an interesting judgment granting mandamus: In re Fort Worth Chamber of Commerce, No. 24-10266 (5th Cir. Apr. 5, 2024). For appellate lawyers and anyone else practicing in the federal system, it’s worthwhile reading. The case raised issues of both the Fifth Circuit’s jurisdiction over a purported appeal and the district court’s jurisdiction after the puported appeal.

Here’s the skinny version of what happened: The Chamber sued for a preliminary and permanent injunction against a rule promulgated by Consumer Protection Financial Bureau. Claiming that time was of the essence, the Chamber filed several pleadings seeking an expedited hearing of its request for a preliminary injunction, citing the short time before the new rule would take effect. Rather than rule on the merits of the preliminary injunction, the district court invited the Bureau to file a motion to transfer the case to D.C., which the Bureau did. Before the district court ruled on the motion to transfer, the Chamber appealed the “effective denial” of the preliminary injunction. Three days later, the district court granted the Bureau's motion to transfer.

The Chamber petitioned the Fifth Circuit for a writ of mandamus vacating the transfer. A 2–1 majority (Judges Willett and Oldham) granted the writ. Judge Higginson dissented.

The case raised two issues of appellate procedure. First, without an explicit ruling on the preliminary injunction, did the district court “effectively deny” the preliminary injunction, giving the Chamber the right to appeal? (See 28 U.S.C. §1292(a)(1), allowing appeal of an interlocutory order granting or denying a preliminary injunction.) This issue split the panel. The majority held that, under the case’s particular facts, the district court’s failure to hold an expedited hearing of the motion for preliminary injunction constituted an effective denial of a preliminary injunction. The majority accepted the Chamber’s argument that, because of the case’s urgency (the imminent effective date of the new rule and cost of compliance with it), the district court’s failure to grant the Chamber’s request for an expedited hearing of the preliminary injunction constituted an effective denial.  Judge Higginson dissented on that issue, arguing that the urgency for a ruling on the preliminary injunction was “a fiction.” Slip Op. at 25.

Once the majority concluded that the Chamber had the right to appeal, the rest was easy. Once the Chamber took a valid appeal, the district court had no jurisdiction to “alter the status of the case as it rests before the Court of Appeals.” Slip Op. at 10. The majority reasoned that the transfer most certainly altered the status “because a transfer would frustrate our ability to provide meaningful relief because we would have no case to review.” Id.

There was still the question of whether the Chamber met the high threshold for mandamus. That part of the majority’s opinion was relatively short. Here’s the money quote:

Facing an uptick in inter-circuit transfer orders, we take this opportunity to clarify that once an appealable order is lodged before our court, district courts lack jurisdiction to transfer a case because it stymies our ability to review. [Slip Op. at 12–13.]

Just one editorial comment: Is the right to a writ of mandamus “clear and indisputable” when the court of appeals splits 2–1 on whether mandamus is appropriate?