Louisiana Civil Appeals

The 5th Circuit by numbers

The U.S. Fifth Circuit has released its annual statistical report for July 2023 through June 2024. If you want to know how many cases the court handles, what kinds of cases predominate, etc., it’s worth downloading or bookmarking.

If you’re a lawyer handling an appeal in the Fifth Circuit, one question you’re likely to receive is: what are the chances of winning? If you represent the appellant, the default answer is: “not good.” The overall reversal rate is 8.2%, which includes 20 reversals from the summary calendar (1.3%) and 185 reversals in argued cases (18.9%). See page 17 of the report . In federal-question cases, the reversal rate is 21.99%; in diversity cases, it’s 17.03%. See page 19 of the report.

Coincidentally, over at Taking the Fifth, Tad Bartlett has his own statistical compilation from October 2023 through September 2024. It’s like the monthly statistical summaries that Tad publishes, except that it covers 12 months. I find Tad’s statistics enlightening because they remind me that the kinds of cases I handle form a relatively small minority of the cases the judges there handle. That makes a difference in how I brief the substantive law.

What’s your persuasion strategy?

Here’s an axiom for anyone reading this blog: the primary (if not sole) purpose of a brief is to persuade. But don’t take my word for it. Consider this passage by Judge Ruggero Aldisert and refined by successor authors:

You write to persuade a court, not to impress a client. You write to persuade a court to your point of view .... The key word is “persuasion.” If a brief does not persuade, it fails. Every brief writer must understand this and never forget it. As you write, prop a sign, literally or figuratively, on your desk that asks, “Will this brief persuade the reader?”

Persuasion is the only test that counts. Literary style, massive displays of scholarship, citations that thunder from the ages, and catchy phrases are uniformly pointless if the writing does not persuade.

[Ruggero J. Adlisert, Leslie H. Southwick, and Tessa L. Dysart, Winning on Appeal § 2.1, at 15 (2017).]

If you agree with this axiom (and you should), then certain things follow from it.

First, behind every brief you write should be a strategy for persuading the court. Writing a brief without a persuasion strategy is like playing a football game without a game plan—you might luck out, but your chances of winning are less than they would be if you had a strategy or game plan.

Second, that strategy should be based on something that’s been proven to work. Some things that don’t qualify as proven to work: what you’ve always done; what you were taught by another lawyer way back when; what you think will pass muster with whoever’s reviewing the brief. Me, I lean on what little I know about classical rhetoric and cognitive psychology. And unless I have a reason to disagree, I’ll usually follow the advice of experts like Bryan Garner who have spent their careers figuring out what works.

Here’s something I’ve learned from rhetoric and psychology: the first step in persuasion is to establish your credibility. That idea should not be controversial. You can confirm it by observing yourself: what persuades you. If you trust the messenger, you’re more likely to accept the message than you would be if you didn’t trust the messenger. Judges are no different.

If you believe that (and I hope you do), then it follows that a strategy of “always be arguing” is likely to be counterproductive. If you fail to first establish your credibility, then the readers will be less receptive to the argument than they would be if  you established your credibility before delivering the argument. So save any overt argument for, well, the argument (or summary of the argument). Use the other parts of the brief to establish your credibility and gently persuade.

So—what’s your persuasion strategy? What is it based on? If your strategy is “always be arguing,” you might want to rethink it.

Can’t sneak a jurisdictional problem past the 5th Circuit

Here’s the scenario: An insurance company sues some limited liability companies for declaratory judgment in federal court, alleging diversity of citizenship as a basis for jurisdiction. But the insurance company failed to properly allege the LLCs’ citizenship. Citizenship of an LLC is determined by the citizenship of its members, but the insurance company failed to allege the citizenship of the LLCs’ members. The district court resolved some claims by summary judgment, and it resolved the remaining claims by bench trial—presumably with no one questioning federal subject-matter jurisdiction.

When the case gets to the Fifth Circuit, will that court assume that subject-matter jurisdiction exists just because no one contests jurisdiction? Nope. The court asked the parties to file a letter brief identifying any record evidence establishing the citizenship of the LLCs’ members. If such evidence was in the record, the court would amend the defective jurisdictional allegations under 28 U.S.C. § 1653.¹ The parties filed a joint letter admitting that there was no such evidence. So the Fifth Circuit remanded the case to the district court for jurisdictional discovery. Megalomedia Inc. v. Philadelphia Indem. Ins. Co., No. 23-20570 (5th Cir. Sept. 20, 2024). Presumably, if that discovery reveals that diversity jurisdiction exists, then the Fifth Circuit panel will decide the appeal’s merits. If not, then the likely result will be vacatur of the district court’s judgments for lack of jurisdiction.

The lesson: Just because a jurisdictional problem gets past a federal district court, don’t assume it will get past the Fifth Circuit. Also, don’t assume that the Fifth Circuit will ignore a jurisdictional problem just because no one objected to jurisdiction in the district court or the Fifth Circuit.

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1. I didn’t know they could do that. Learn something every day.

Which persuasive authorities are more persuasive?

If you’re reading this blog, you probably know that, when building an argument, it’s best to rely on primary, binding authorities: governing legislation and caselaw from the court of appeal you’re in or the Louisiana Supreme Court. But what if your case raises an issue that isn’t governed by binding authority—a “case of first impression”? In those instances, you need persuasive authorities. But which persuasive authorities are likely to be most persuasive? Cases from other jurisdictions? Treatises? Law-review articles?

A few years ago, Professor Mark Cooney studied that topic and had the results published in the Stetson Law Review. Mark Cooney, What Judges Cite: A Study of Three Appellate Courts, 50 Stetson L. Rev. 1 (2020) (available on SSRN). He studied opinions of two state intermediate appellate courts (Wisconsin and Virginia) and the U.S. Supreme Court to see the types and frequence of authorities cited: primary sources versus secondary sources, binding versus persuasive authorities, and types of persuasive authorities. Since most readers of this blog probably practice more in Louisiana courts of appeal than the U.S. Supreme Court, I’m going to focus on Cooney’s findings from the two state appellate courts.

According to Cooney’s study, the appellate courts generally stick with primary authorities: statutes and cases. Those constituted 98% of the authorities cited. When citing caselaw, they cited binding precedents 80% of the time—90% when counting U.S. Supreme Court cases.

These numbers are not surprising, and they probably won’t cause any of you to change your research and writing habits. Most lawyers I’ve come across know that statutes and binding cases are the best authorities to support an argument. Cooney’s study provides data supporting that instinct.

When citing cases as persuasive authorities, the state appellate courts most often cited published cases from U.S. courts of appeals (30%), followed closely by published cases from another state’s highest court (29%). They didn’t much cite cases from U.S. district courts (7%) or unpublished decisions from any court, including their own (6%). Long story short, a persuasive authority is likely to be more persuasive if the citation contains an F.2d, F3d, or F.4th.

The state appellate courts also preferred more recent decisions over older decisions. The cases from the state appellate courts were decided in 2017, and cases from the 2010s were cited 32% of the time. Extrapolating that to a full decade (assuming three more years of cases to cite) works out to 46% if my math is correct. That’s compared with 35% for 2000s cases, 15% for 1990s cases, 10% for 1980s, cases, and down from there as the cases got older.

As for secondary sources, the state appellate courts most frequently cited treatises (32%), followed by comments to standard jury instructions (17%), legal dictionaries (17%), encyclopedias (14%), and periodicals, including law reviews (13%), with other secondary sources in the single digits. And when citing law reviews, they tended to stick to those from in-state law schools.

One thing Cooney’s study didn’t account for was in-state persuasive authority. From a quick-and-dirty Internet check, it looks like Virginia and Wisconsin each have one court of appeals. In Louisiana, we have five separate courts of appeal. So a decision from, say, the Louisiana Fourth Circuit would be binding in that court but only persuasive in the Louisiana First Circuit. That being said, my unscientific impression (probably shared with most Louisiana practitioners) is that Louisiana courts of appeal tend to follow each other’s cases, either because they find them persuasive or because they want to avoid a circuit split.

So for Louisiana practitioners in need of persuasive authorities, continue to look first to published cases from other Louisiana courts of appeal. Next, look first to published decisions of U.S. courts of appeals. If you have to fall back to secondary sources, start with something like the Louisiana Civil Law Treatise, and next look to in-state law reviews.

For any readers in academia who’d like to have their writing cited by the U.S. Supreme Court, Cooney’s study has that covered. First, get yourself published in a so-called “elite” law journal—Harvard, Yale, or a journal from another top-tier school. Second, choose a hot topic. In the SCOTUS, the articles most cited were about criminal law and procedure (30.4%), followed by constitutional law and justiciability (26.5%), jurisprudence and statutory construction (16.7%), and civil procedure and jurisdiction (9.8%). Other topics were below 3% each, with several registering 0%.

Update on Abraham Watkins et al. v. Festeryga

In my last post (July 26), I reported on the U.S. 5th Circuit’s panel opinion in Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337 (5th Cir. July 25, 2024), now reported at 109 F.4th 810. Since I haven’t posted anything since then, you can read about that case by scrolling down a bit. Long story short: the panel thought that it was wrong to dismiss an appeal from a remand order based on waiver, but felt compelled to do so by what the panel thought was a wrongly decided precedent: In re Weaver, 610 F.2d 335 (5th Cir. 1980).

A few days ago, the en banc 5th Circuit granted rehearing en banc. Abraham Watkins et al. v. Festeryga, No. 23-20337 (5th Cir. Sept. 11, 2024). That’s something I predicted in my July 26 post. No telling what will come from the rehearing, but my bet is that In re Weaver will be overruled.

Stare decisis applies to wrongly decided cases

Yesterday, the U.S. Fifth Circuit rendered an interesting decision touching on both the binding effect of precedent and appellate jurisdiction of a remand order. The long and short of it is, “We think our precedent is wrong, but we have to follow it.” Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337 (5th Cir. July 25, 2024).

Here’s the skinny version of what happened. A law firm sued one of its former lawyers, alleging that he attempted to take firm clients and files with him to a new firm. The law firm filed its suit in state court. The lawyer moved to dismiss the suit under state law, which suspended the expedited discovery sought by the law firm. The lawyer and the law firm then agreed on a protective order, and the lawyer agreed to produce certain document by a specified date.

Before that date arrived, however, the lawyer removed the case to federal court, alleging diversity jurisdiction. The law firm moved to remand, arguing that diversity was lacking and (more pertinently here) that the lawyer waived his right to remove by litigating in state court (i.e. filing the motion to dismiss and agreeing to the protective order). The district court remanded on the second ground—waiver—without reaching the lack-of-diversity issue.

The lawyer appealed the remand, which raised the question whether the Fifth Circuit had appellate jurisdiction to review the remand. This is where things started to get complicated. Under 28 U.S.C. § 1447(d), a remand order ordinarly “is not reviewable on appeal or otherwise ....” But caselaw interprets § 1447(d) in conjunction with neighboring § 1447(c), which authorizes remand for lack of subject-matter jurisdiction or a defect in the removal procedure. Caselaw holds that § 1447(d)’s prohibition of appellate review applies only to remands under § 1447(c), and not to remand orders based on discretionary grounds outside of § 1447(c).

One would think that a waiver-based remand is a non–§ 1447(c) remand: it’s not based on lack of jurisdiction or a defect in the removal procedure, and it involves some exercise of the district court’s discretion. The Abraham Watkins panel thought so, which would mean that it had appellate jurisdiction to review the remand order. But there was a problem with ruling that way: the court’s precedent in In re Weaver, 610 F.2d 335 (5th Cir. 1980). The Abraham Watkins panel “reluctantly” read Weaver “to say that a waiver-based remand order is jurisdictional under § 1447(c) and thus ‘immune from review under § 1447(d).’” Slip op. at 7. Result: the panel dismissed the appeal for lack of appellate jurisdiction.

We probably haven’t heard the last of Abraham Watkins. Judge Duncan wrote a concurring opinion inviting the losing appellant to apply for en banc rehearing: “The proper course is for our en banc Court to unweave Weaver.” Id. at 12. If an en banc Fifth Circuit does not overrule Weaver, that will leave “a 2–2 circuit split on the question whether waiver-based remand orders are reviewable on appeal.” Id. at 7. That would make this case a prime candidate for certiorari by the U.S. Supreme Court.

p.s. Hat tip to Tad Bartlett. If you want to know everything about what’s going on at the U.S. Fifth Circuit, you should subscribe to his blog, Take the Fifth.

This is big.

Today the Louisiana Supreme Court reversed itself on rehearing in Bienvenu v. Defendant 1, 2023-CC-1194. That’s the case testing the constitutionality of legislation reviving claims for sexual abuse of minors after those claims had prescribed. On the first go-round, the LASC split 4–3 in holding the legislation unconstitutional, with Chief Justice Weimer and Justices Crain and McCallum dissenting. On rehearing, the split was 5–2 in favor of upholding the legislation, with Justices Genovese (author of the original opinion) and Hughes dissenting. To read the now-vacated original opinion, follow this link. To read the superseding opinion on rehearing, follow this link. For your court-watching scorecard: the justices who changed their position between the original hearing and the rehearing are Justice Crichton and Justice Griffin.

As you probably know, grants of rehearing in the LASC are rare, and rehearings resulting in a different result are even rarer. That in itself makes this case exceedingly rare. Then there’s the majority’s reasoning on rehearing, which, in the area of Louisiana constitutional law, is a bombshell. If you do any tort litigation in this state, you need to read today’s opinion.

Yes, font choice is important

Does font choice matter in writing an appellate brief? YES! If you don’t believe that, read the U.S. Seventh Circuit’s recent decision in AsymaDesign, LLC v. CBL & Associates Management, Inc., No. 23-2495 (7th Cir. June 3, 2024), starting with the last paragraph on page 4.¹ There, Judge Easterbrook urges lawyers to follow the Seventh Circuit’s advice on typography for briefs, (found here and here). Why?

Judges are long-term consumers of lengthy texts. To present an argument to such people, counsel must make the words easy to read and remember. The fonts recommended in our Handbook and Typography for Lawyers promote the goals of reading, understanding, and remembering. Display faces such as Bodoni or Bernhard Modern wear out judicial eyes after just a few pages and make understanding harder.
[Id. at 6–7.]

What prompted Judge Easterbrook’s sermonette on fonts? The appellant’s counsel in AsymaDesign filed a brief written in Bernhard Modern., “a display face suited to movie posters and used in the title sequence of the Twilight Zone TV show.” Id. at 5. That font has a low x height (the ratio of a lower-case x to the capital letters), elongated ascenders, and short descenders, “not characteristics that conduce to easy reading of long passages.” Id. at 5. To drive home his point, Judge Easterbrook put two paragraphs of his opinion in 16-point Bernhard Modern, to contrast it with the 12-point Palatino Linotype used elsewhere in his opinion. See id. at 6. 

What, then, should lawyers use instead of something like Bernhard Modern? Simple: “Use the most legible face available to you. Experiment with several, then choose the one you find easiest to read.” Id. at 5. There are at least two objective criteria for deciding which font is more legible than another:

• Look for a font with a taller x-height, i.e., where a lower-case x is taller in relation to a capital letter. According to the Seventh Circuit, x height makes “the Bookman and Century families ... preferable to faces in the Garamond and Times families.”
• Looks for a font with good contrast. To my extremely myopic eyes, Cambria has good contrast; Garamond doesn’t.

For further guidance, take a look at Matthew Butterick’s assessment of system fonts. They’re not his first choice—he prefers professional fonts such as his own Equity, used by the U.S. Fifth Circuit. But if you’re stuck with system fonts, then following Butterick’s suggestions will likely make your brief easier to read than your opponent’s.

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Hat tip to my colleague Aaron G. McLeod, a proud user of Equity.

The Rule of Necessity applied in La.

“[W]here all are disqualified, none are disqualified.” Turner v. American Bar Ass’n, 407 F.Supp. 451, 483 (N.D. Tex., W.D. Pa., N.D. Ind., D. Minn., S.D. Ala., W.D. Wis. 1975). Yesterday, the Louisiana Supreme Court applied that maxim to a case where a litigant essentially sought to recuse every judge in Louisiana. Slaughter v. La. State Employees' Retirement Sys., 2024-00358 (La. 5/21/24).

The plaintiff in Slaughter alleges that the Louisiana judges’ supplemental pay from the Judicial Compensation Fund is being improperly included by LASERS in calculating the judges’ retirement benefits. After the case was randomly allotted, the plaintiff moved to recuse the assigned district-court judge on grounds that the judge was a member of LASERS and thus had a financial interest in the litigation’s outcome. The district court denied the recusal motion, sustained defendants’ peremptory exceptions, and dismissed the suit. Plaintiff then took two appeals to the First Circuit, one on the recusal and the other on the merits judgment. At the same time, the plaintiff moved to recuse all First Circuit judges on grounds that all of them had the same financial interest in the case as the district judge. The First Circuit’s chief judge asked the LASC to appoint a judge to her the recusal motion, and the LASC appointed an ad hoc judge for that task. The plaintiff then moved to recuse the ad hoc judge for having the same financial interest as the other judges. I think you can see where this is going—appointment of another ad hoc judge, another motion for recusal, etc.

“Recognizng the inability to resolve this matter through normal procedures,” the LASC intervened to “assume jurisdiction over the recusal issue ....” Slaughter, p. 2. The LASC resolved the recusal issue by applying the Rule of Necessity. The Rule calls for a judge to decide a case even though grounds for recusal exist when no other judge is available to decide the case.  Applying the Rule of Necessity, the LASC denied all of the plaintiff’s recusal motions. “The unique circumstances of the instance case clearly require application of the Rule of Necessity,” the LASC reasoned, since “Plaintiff asserts every sitting judge and retired judge in the state, both at the district and appellate level, may have some potential financial interest in the outcome of the suit.” Id., p. 5. In short, “where all are disqualified, none are disqualified.” Id., indirectly quoting Turner.

What’s needed for a final, appealable judgment

In a recent decision, the Louisiana Fourth Circuit reminds us that a final judgment must be “signed by the judge.” La. Code Civ. P. art. 1911. But not just any judge; the judge who signs must be the judge who presided over the hearing or trial. Lassalle v. Napoleon, 2023-0705 (La. App. 4 Cir. 4/11/24). According to Lassalle, “[a] judgment signed by the wrong judge—a judge who did not preside over the hearing or trial—does not constitute a valid final judgment.” Id., p. 4. 

What happens if the presiding judge leaves office before signing the judgment? There’s a statute for that: La. R.S. 13:4209, which allows a successor judge to sign the judgment if certain requirements are met. Lassalle lists these requirements on pages 4–5, but finds that they were not met in that case.

My suggestion: If you ever need a judgment signed by a successor judge, read and comply with La. R.S. 13:4209. If the Fourth Circuit will be the reviewing court, read and follow Lassalle. If another court of appeal will be the reviewing court, you’d probably do well to read Lassalle and the cases it cites, and follow the strictest set of requirements you find in them. (And before you follow any of my suggestions, read my disclaimer.)