Let’s say that Plaintiff sues Defendants A and B, and each defendant pleads the comparative fault of the other defendant. Defendant A moves for and is granted summary judgment, and Plaintiff decided to forgo an appeal. Can Defendant B appeal? This question has divided the Louisiana courts of appeal, with the Fourth Circuit recently holding that Defendant B cannot appeal. Today the Louisiana Supreme Court reversed that judgment and held that Defendant B can appeal, regardless of whether Plaintiff also appeals. Amedee v. Aimbridge Hospitality LLC, 2020-OC-1906 (La. 10/21/22). To hold otherwise, the Court explained, would be patently unjust, as it would deprive Defendant B of the right to assert Defendant A’s fault as an affirmative defense.
Today I’m giving a one-hour presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar for newly sworn-in lawyers (mostly those who took the July 2022 bar exam). For anyone who’s interested, here are links to my written materials and my slide show. The written materials are substantially revised, not only to update them but also to reorganize them for easier reading. I hope they’re helpful.
Hat tip to my colleague Jack Pringle.
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If you ever need to research the background of a Louisiana Supreme Court justice or Louisiana Court of Appeal judge, here are a couple of places to start:
- The Louisiana Free Enterprise Institute has a page on Louisiana’s judiciary. The LFEI is an organization created by the Louisiana Association of Business and Industry. The bios are organized by court, but there’s also a search feature that allows you to jump straight to a particular judge’a or justice’s bio.
- Ballotpedia is more ambitious than the LFEI; it attempts to cover all elected offices in America. With a scope that broad, the site can be a chore to navigate. But don’t worry; just follow these links to Ballotpedia’s pages on the Louisiana Supreme Court and the Louisiana Courts of Appeal, and click on the name of the justice or justice you’re researching.
If you consult Thomson Reuters Louisiana Rules of Court to look up the Uniform Rules of the Louisiana Courts of Appeal, you may have noticed something: a slew of amendments, scheduled to become effective on January 1, 2023. A committee headed by Louisiana First Circuit Judge Allison Penzato undertook a stem-to-stern revision of the entire body of Uniform Rules. The comprehensive revision was approved on May 2, 2022, and will kick in with the new year.
So what’s in store? I’ve been comparing the old rules with the new ones to see what’s different, and I’m about two-thirds of the way through that project. It looks like the committee had three goals. One was to update the rules to account for electronic filing. All five Louisiana courts of appeal now allow electronic filing, and for electronic filers (i.e. the vast majority of lawyers), that development makes rules applying only to paper obsolete, such as numbers of copies, binding of briefs and writ applications, etc. Another thing the committee accomplished was to adopt some uniform style choices—for example, always referring to the court itself as “the Court of Appeal,” always using “shall” for mandatory things, and using the same numbering system for tabulated lists. The third goal appears to have been to drop rules that have become obsolete. I’m about two-thirds of the way through comparing the old rules to the new ones, and so far, everything I’ve seen falls into at least one of these categories.
In some future posts, I hope to go through the rules one at a time to describe the amendments. I’m also working on finding a public-domain document containing the rules to take effect in 2023; so far, the only place I can find them is in the 2022 edition of the Thomson Reuters Louisiana Rules of Court book. If I can’t find a document like that, I may create my own and post it on this blog. So stay tuned.
. . . you need to make sure that the clerk receives the original document within seven days (excluding holidays) after the fax filing. Otherwise, the fax filing “shall have no force or effect.” La. R.S. 13:850. Timely mailing or sending isn’t enough. The orginal document must be “delivered” to the clerk of court within the seven-day period. La. R.S. 13:850(B). Otherwise, the fax-filing “shall have no force or effect,” and the pleading will be deemed filed on the day the clerk receives the original. La. R.S. 13:850(C).
The first lesson is obvious: When you fax-file a motion or petition for appeal, even when the fax-filing is timely, make sure the original is delivered to the clerk of court within seven days after fax filing. But there’s another way this rule can bite you if you’re not careful.
As we all know, a timely motion for new trial interrupts the time to take an appeal. See La. Code Civ. P. art. 2087(A)(2) (devolutive appeal); id. art. 2123(A)(2) suspensive appeal). If you’re counting on a fax-filed motion for new trial to interrupt the time to take an appeal, you must make sure that the clerk of court received the original motion for new trial within seven days after the fax-filing. Otherwise, the motion for new trial will be deemed filed when the clerk received the original. And if the clerk received the original more than seven days after notice of the adverse judgment, the motion for new trial will be deemed untimely (see La. Code Civ. P. art. 1974), and will not interrupt the appeal time. Which means that the appeal clock will have started ticking when the clerk sent notice of the adverse judgment, not when the clerk sent the later notice of the judgment denying new trial.
Starting September 1, if you want the Louisiana Supreme Court expedite its review of your writ application, you’ll need to do your part by filing your writ application with 10 days of the court of appeal’s judgment, not the usual 30 days. This amendment to Rule X § 5(a) takes effect on September 1. A comment to the amending order explains the reason for this change:
Applications requesting expedited review place a considerable burden on the resources of the court and its staff. The court’s ability to address such applications in an orderly fashion can be significantly impaired when applicants elect to wait to until the last day of the thirty-day period following the court of appeal’s disposition to request expedited attention in this court. Although this rule does not change the general thirtyday filing period set forth in La. Code Civ. P. art. 2166, it makes it clear that any request for expedited review must be made promptly. If an application seeking priority review is not filed within at least ten days following the court of appeal’s disposition and the applicant fails to show good cause for the delay, the court retains the discretion to summarily deny the request for priority review and/or impose other sanctions pursuant to La. Code Civ. P. art. 2164.
I recently came across an article by Prof. Kathryn M. Stanchi that I recommend to appellate lawyers and anyone else in the persuasion business: The Science of Persuasion: An Initial Exploration, 2006 Mich. St. L. Rev. 411, available on SSRN.
Stanchi starts her article by saying something that I’ve come to believe: that persuasive writers should “study the existing social-science data about human decisionmaking.” As she points out, trial lawyers have been doing that for years. But “appellate lawyers have been slow to follow theiir trial brethren in the pursuit of scientific data about what persuades people.” Instead, Stanchi says, “the study of persuasive writing has been dominated by a kind of ‘armchair psychology’—a set of conventions and practices, handed down from lawyer to lawyer, developed largely from instinct and speculation.” These conventions and practices are handed down “without analysis or critique, and without taking stock of the growing body of research from other disciplines that would provide some evidence about whether the conventional wisdom is an accurate account of human decisionmaking.”
Let me add another observation, which goes to the good people who organize appellate CLE presentations. The conventional wisdom there is to recruit as many judges as possible as speakers to say what does and doesn’t work. That’s a good idea: there’s some wisdom in asking the fish which bait is most alluring. But even the best judges will be aware of only what they consciously perceive as being persuasive; they likely won’t be aware of what works subconsciously. For that data, we need to look to sciences such as cognitive psychology.
Stanchi’s article goes on to describe several strategies for constructing legal arguments and the data supporting their effectiveness. All of that material is worth reading. My wish is that readers take to heart what she says in her introduction and—maybe—change their way of thinking about persuasion itself and how to discover ways to be better persuaders.
If you’re looking for appellate CLE in Louisiana, the Bar Association of the Fifth Federal Circuit is offering 10 hours of it, including professionalism and ethics. The BAFFC’s annual Appellate Advocacy Seminar is scheduled for October 3–4 at the Pan Am Center in New Orleans (601 Poydras Street). The first day will be heavy on writing: a two-hour writing workshop in the morning on storytelling, and a one-hour presentation in the afternoon by Tenth Circuit Judge Robert Bacharach. (If you have Judge Bacharach’s recent book, Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word, maybe he’ll autograph it for you.) The second day looks good to: it includes an opportunity in the morning to watch oral arguments at the Fifth Circuit, and an afternoon panel discussion with three Fifth Circuit judges. For more information about the seminar or to register online, follow this link.