Louisiana Civil Appeals

If you want expedited consideration of your writ application

If you want expedited consideration of your writ application, you should file it as soon as possible. You shouldn't exacerbate or (worse) create the emergency by waiting until the last possible day to file. That’s a matter of courtesy and professionalism. It’s also a matter of self-interest: the last thing you want to do as a writ applicant is antagonize the court by dragging your feet on filing and then insist on an immediate ruling by the court.

In some Louisiana courts, it’s also the rule. A few days ago, the Louisiana Fifth Circuit adopted Local Rule 14. The new rule requires a writ application seeking emergency consideration to be “be filed in this court as soon as possible after the lower court ruling but not more than ten days after issuance of the notice of the ruling.” Failure to do so without good cause may be grounds for denial of emergency consideration.”

Since the beginning of this year, the Louisiana Second Circuit has had a similar rule, except that the time to file is 15 days instead of 10 days.  See La. 2 Cir. Local Rule 17. Both the Second and Fifth Circuits appear to be following the Louisiana Supreme Court’s example. Under the LASC’s Rule X § 5(a)(2), “An application seeking expedited review of a judgment of the court of appeal as ... shall be filed as soon as possible after the court of appeal’s disposition and in no event more than ten days after the mailing of notice of judgment by the court of appeal.” The penalty for failure to comply “may be grounds for denial of expedited review (with review in regular course if the application is otherwise timely under subsection (a) (1)) and/or imposition of sanctions against the party seeking expedited review.”

But regardless of whether the court you’re filing in has a rule like this, it’s just good practice to file your writ application as soon as possible if you need expedited consideration. The court will appreciate your effort to give them as much time as you can to consider your application. That good will should enhance your chances of winning. At the very least, you’ll avoid sabotaging your own writ application by antagonizing the court.

Appellate CLE opportunities in 2023

If you’re looking for appellate CLE opportunities, two are coming up in November, and another comes up soon in early October.

On November 8, the Louisiana State Bar Association is holding its Advanced Appellate Practice seminar in New Orleans at the Hilton Riverside. The program offers 6.25 hours of CLE. Appellate-practice specialization CLE credit is pending, but all past versions of this seminar have qualified for that, and I see no reason why this one wouldn’t. To review the program or to register online, follow this link.

If you want to combine your CLE with a trip to our nation’s capital, then check out the ABA’s Appellate Judges Education Institute 2023 Summit, to be held in Washington, DC on November 2–5. This is a bench–bar event, with many appellate judges from across the nation attending as registrants. So if you attend, you may (as happened to a former colleague) find yourself sharing a cab or dinner table with a future U.S. Supreme Court justice. According to the event’s CLE/CJE page, the organizers are applying for accreditation in Louisiana. For appellate-practice specialization CLE credit, you may have to submit individually to the La. Board of Legal Specialization for committee approval. To view the speaker lineup and session topics, follow this link. For registration, follow this link.

Finally, if you don’t want to wait until November to get your appellate CLE, check out the annual Fifth Circuit Appellate Advocacy Seminar, to be held in New Orleans on October 2–3. This is always a worthwhile seminar (meaning you’ll actually learn useful stuff). For Louisiana lawyers, it offers ten hours of CLE, including one hour each of ethics and professionalism. And it’s typically approved for appellate-specialization CLE credit. To view the program and register online, follow this link.

La. 5th Circuit closed Oct. 5–6

Last Friday, the Louisiana Fifth Circuit announced that its courthouse will be close on October 5 and 6. The reason: “inaccessibility of the courthouse due to street closures in the immediate vicinity.” If you have anything due on one of those dates, there’s some good news: the closure will be deemed a legal holiday, and “[a]ll filings due during this period of closure shall be deemed timely if filed no later than October 10, 2023.” To read or download a copy of the court’s order. follow this link.

How to abbreviate LSU

With the Labor Day weekend almost here, I offer a labor-saving hint for Louisiana practitioners. Let’s say you want to a case with this title:

Arthur Tolis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College¹

A slave to the Bluebook might abbreviate the case name like this:

Tolis v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.

I’ve actually seen Louisiana lawyers cite Tolis like this. Don’t do that. If you must follow the Bluebook, then heed Rule 6.1 (17th ed.). According to that rule, when an entity is known by its initials rather than its full name, you may substitute those initials for the party’s complete name. Certainly in Louisiana, LSU is a well-known set of initials for the Louisiana State University and Agricultural and Mechanical College. So you can comply with the Bluebook by citing Tolis this way:

Tolis v. Bd. of Supervisors of LSU

If you follow the ALWD Guide to Legal Citation instead of the Bluebook (good for you!), then you get to the same place under ALWD Rule 12.2(e)(3) (5th ed.).

So the next time you want to cite a case with LSU’s full name in the caption, save yourself some labor and abbreviate it LSU. Everyone will know which entity you’re referring to.

__________

¹ 95-1529 (La. 10/16/95), 660 So.2d 1206.

Duty to cite adverse binding authorities

“We briefly adress the arguments presented in the petition, as well as the ethical concerns posed by counsel’s behavior in this litigation.” That’s how the Fifth Circuit ended its opening paragraph in Johnson v. Lumpkin, No. 22-70005 (5th Cir. Aug. 11, 2023),  The lesson: ignoring adverse binding authorities will not help you win. It’s more likely to make a bad situation worse.

In Johnson, a petitioner for habeas corpus raised arguments that were foreclosed by several decisions of the U.S. Supreme Court and U.S. Fifth Circuit. One of those binding Fifth Circuit decisions involved the same lawyers making the same arguments: Buntion v. Lumpkin, 982 F.3d 945 (5th Cir. 2020). According to the panel’s original opinion, the district court denied habeas and ordered the petitioner’s counsel to show cause why they should not be sanctions under Rule 11 “for making arguments that have been ‘consistently rejected by the Fifth Circuit for decades.’” Counsel responded by moving to recuse the district judge. As you’d expect, the district judge denied that motion. Johnson then petitioned the Fifth Circuit for a certificate of appealability on the denial of habeas and appealed denial of his recusal motion. A panel of the Fifth Circuit denied the certificate and affirmed the denial of recusal. Johnson v. Lumpkin, No. 22-70005 (5th Cir. July 18, 2023).

Unfazed, Johnson applied for rehearing en banc. That effort did not succeed in obtaining rehearing; instead it drew another panel opinion chastizing counsel for ignoring multiple adverse binding authorities. It didn’t help that the same lawyers had done the same thing three years ago in Buntion. The panel pointed out that, while it’s okay to seek overruling of binding authority, it’s not okay to ignore it:

To be sure, ethical rules and rules of civil procedure allow counsel to advocate for a modification in the law. But when doing so, counsel is unquestionably obligated to recognize contrary authority. See Mod. R. Prof. Cond. 3.3(a)(2) (“A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”); Tex. Disciplinary R. Prof. Cond. 3.03(a)(2) (same).

Johnson’s attorneys failed to do so. Both before the district court and on appeal, counsel failed to cite any of the binding precedents listed above. Nor could they reasonable argue that there were not aware of these precedents. Indeed, the same lawyers raised the exact same arguments just three years ago in Buntion v. Lumpkin. The district court was well within its discretion to consider whether counsel’s lack of candor warranted sanctions. 

Nor was the panel impressed—at least not in the right way—by Johnson’s petition for en banc rehearing, which the panel found to misstate its original opinion:

Especially given that counsel are already testing the limits of their duties of good faith and candor, we would have expected them to show better judgment in discerning whether to file a petition for rehearing en banc—especially one that badly misstates the opinion’s conclusion. A good-faith reading of the court’s opinion clearly shows that it does not hold what counsel says it holds. Petitions for rehearing en banc are an “extraordinary procedure” that should be used only to bring the court’s attention to an issue of “exceptional public importance” or one that “directly conflicts” with onpoint Supreme Court or prior Fifth Circuit precedent. 5th Cir. R. 35 I.O.P. Given the deficiencies discussed above, Johnson’s petition does not rise to that level. Counsel are strongly encouraged to confine future arguments to the limits imposed by applicable ethical rules.

The lesson here isn’t new. You can argue in good faith that binding precedents should be overruled. But to do that, you first must confront those binding precedents head-on. Ignoring them is a way to lose both the case and your credibility.

If you know the date, ...

... then don’t write “on or about.” FDR did not say, “On or about December 7, 1941, a date which will live in infamy ...." No one says that Christmas comes “on or about December 25.” If you know the date is August 15, just say or write “on August 15.” If you don’t know the exact date, say or write “around the middle of August.”

That is all. Carry on.

New hours for La. 2d Circuit

Here’s some practical news for anyone practicing in the La. Second Circuit: Starting Monday, August 14, the clerk’s office will close at 4:30 p.m. (Current closing time is 4:45 p.m.) That won’t affect the deadline for e-filing, but it could make a difference if you file by hand-delivering paper to the clerk’s office. To read the court’s order establishing the new closing time, follow this link.

U.S. Fifth Circuit by the numbers

The clerk of the U.S. Fifth Circuit has released his annual statistical report for July 2022 through June 2023. You can view or download it by following this link. The report shows that private civil appeals are a relatively small slice of the court’s workload, as the vast majority of cases are criminal cases or prisoner appeals. And as you might expect, most of the court’s cases originate in Texas, with Louisiana and Mississippi a distant second and third respectively.

Among the oodles of statistics in the report are the reversal rates. If you represent the appellant, they’re not good. In summary-calendar cases, the reversal/vacatur rate is 2.3%; in argued cases, it’s 17.3%.

Most of the report is an exposition of the court’s workload, both overall and by judge. The total matters participated in per active judge during the year is 1,384. That total includes 264 summary-calendar cases, 156 argued cases, 168 petitions for rehearing en banc, and 796 administrative or interim matters. The 264 summary-calendar cases and 156 argued cases works out to 420 opinions participated in per year per active judge.

For civil practitioners, the report gives us a good idea of where our cases fit in the judges’ overall work load. And the reversal rates give us some objective data for evaluating our chances of success on appeal.

July 3 is a legal holiday

Governor Edwards has declared July 3 a state holiday. See Proclamation No. 106 JBE 2023. So July 3 and 4 will be legal holidays in the Louisiana Supreme Court and all five Louisiana courts of appeal. Here are some additional links about that:

• Louisiana Supreme Court (home page, 2nd item under “Court News”)
• Louisiana First Circuit (page announcing July 3 holiday)
• Louisiana Second Circuit (order declaring the July 3 holiday)
• Louisiana Third Circuit (home page with announcement of July 3 holiday near the top)
• Louisiana Fourth Circuit (home page, scroll down to “Hours of Operation” and click for pop-up list of holidays)
• Louisiana Fifth Circuit (holiday schedule)

Writ application does not suspend appeal delay

A recent decision by the Louisiana First Circuit provides two lessons:

1. A writ application following denial of a motion for new trial does not suspend the time to take an appeal.
2. The delay to take an appeal starts from denial of new trial, whether that denial comes from the trial court or an appellate court.

Phillips v. Exxon Chem. La., LLC, 2022-CA-1290 (La. App. 1 Cir. 6/23/23), — So.3d —, 2023 WL 4140759. Applying these lessons, the First Circuit dismissed an appeal as untimely. Here’s the Philips timeline:

• May 5 2021: Following a jury trial, the trial court signed a judgment on a defense verdict.
  Plaintiffs then filed a motion for JNOV or new trial.
• July 12, 2021: The trial court signed a judgment denying JNOV but granting a new trial.
  Defendant then applied to the First Circuit for a supervisory writ.
• March 17, 2022: The First Circuit granted a supervisory writ, vacated the trial court’s judgment in part on the new-trial issue, and rendered a judgment denying new trial.
  Plaintiffs then applies to the Louisiana Supreme Court for a supervisory writ to review the court of appeal’s judgment
• June 8, 2022: The LASC denied plaintiffs’ writ application.
• July 5, 2022: Plaintiffs filed a motion in the trial court for devolutive appeal of the May 5, 2021 judgment.

In dismissing the appeal as untimely, the First Circuit cited several cases holding that the filing of a writ application does not suspend running of the delay to take an appeal. The First Circuit held that “the delay for an appeal runs from the denial of the motion for new trial, whether that ruling is by the trial or appellate court, and like an application for supervisory writ, an application for certiorari does not suspend the running of the delay for an appeal.” Phillips, p. 10.