LASC: Expedited consideration requires expedited writ application

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.

To read the amending order, follow this link. To read the LASC’s press release announcing the amendment, follow this link.

Recommended reading on the science of persuasion

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.

5th Cir. Appellate Advocacy Seminar

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.

Timeliness in federal appeal of appealable interlocutory order

A couple of weeks ago, the federal Fifth Circuit issued a judgment dismissing an appeal because of untimeliness. Ueckert v. Guerra, No. 22-40263 (5th Cir. Jue 27, 2022). It’s a cautionary tale for anyone practicing in federal court.

Generally in the federal system, only final judgments are appealable. But there are exceptions to the general rule. The Ueckert case involved one of those exceptions, the one allowing an appeal from denial of a defendant’s motion for summary judgment based on qualified immunity. At a March 2, 2021 hearing, the district court held a hearing of the motion and denied it from the bench. Two days later, a minute entry memorializing the district court’s oral order was entered on the docket. But no separate written judgment per Fed. R. Civ. P. 58 was ever filed.

Apparently the appellant thought that the 30-day time to take an appeal would not start until a Rule 58 judgment was entered. By the time the appellant filed a notice of appeal, 412 days had passed since denial of the summary-judgment motion. That turned out to be too late by 232 days. Under Fed. R. App. P. 4(a)(7)(B), the appellant could have filed a notice of appeal immediately after the orally rendered judgment without waiting for a Rule 58 judgment. And when a Rule 58 judgment is required but is never forthcoming, the 30-day time to file a notice of appeal starts 150 days after entry of the judgment or order on the civil docket. This gave the appellant 180 days after the minute entry to file a notice of appeal. See Fed. R. App. P. 4(a)(7)(a)(ii). By waiting 412 days, the appellant missed the deadline by 232 days.

There are probably a few lessons to draw from this case. One of them is to never assume that you know when the clock starts ticking on your appeal: always look up and re-read the law setting the time limit (in this case, Fed. R. App. P. 4). Another is never to assume that the rules for final judgments apply to interlocutory judgments. Note, for instance, the differences between La. Code Civ. P. arts. 1913 (final judgments) and 1914 (interlocutory judgments). When in doubt, look it up. When not in doubt, look it up anyway. 

Delay in getting a return date for a writ application

Let’s say that you’re applying to a court of appeal for a supervisory writ. You know that, under Uniform Rule 4-3, the return date can’t be more than 30 days after notice of the trial court’s judgment. You also know that your writ application has to include the trial court’s return date order so that the court can determine whether the application is timely. So twenty days after notice of judgment, you file your notice of intent. But for whatever reason, the 30th day arrives without the judge’s having signed the return-date order. What do you do?

There’s a case for this situation: In re Gramercy Plant Explosion at Kaiser, 06-C-555 (La. App. 5 Cir. 7/31/06), 2006 WL 8453927. In Kaiser, the applicant’s counsel* filed the writ application with a conformed copy of the notice of intent and, in the jurisdictional statement, an explanation of the problem with getting the judge to sign the order. Here’s what the court said:

The judge who has been given notice of intention to seek writs shall immediately set a reasonable return date within which the application shall be filed in the appellate court. Uniform Rules-Courts of Appeal, Rule 4-3. However, relator’s timely notice of intention to seek writs was denied by the trial court. When a relator makes a timely and genuine attempt to obtain the judge’s signature on the order for which review is sought, the writ should not be refused. See, City of New Orleans v. Benson, 95-2436 (La.App. 4 Cir. 12/14/95), 665 So.2d 1202. Accordingly, the writ will be considered. 

Note, though, that you must show “a timely and genuine attempt to obtain the judge’s signature” on the return-date order. To do that, you’ll likely need a conformed copy of the notice of intent with proposed return-date order to show that you did your part timely. I’d also suggest filing the notice of intent soon enough that the judge actually has an opportunity to sign the return-date order within the 30-day period. Except for real emergencies, e-filing the notice of intent after 5 p.m. on the 30th day may not qualify as “a timely and genuine attempt to obtain the judge’s signature.”


*Happened to be me.

New local rules in the La. 2nd Circuit

The Louisiana Second Circuit has a handful of new and amended local rules and that will become effective on June 1.

  • New Local Rule 16 sets an absolute 15-day deadline to a non-emergency writ application. That’s absolute as in “no extensions of time to file a response will be granted.” The new rule comes with the caveat that the court may “may adjudicate the application at any time after receipt, with or without the benefit of a response.”

  • Amended Local Rule 9 requires lawyers to show up for oral argument when oral argument is docketed. To be excused from appearing for oral argument, a lawyer must file a motion to waive oral argument. Failure to appear for oral argument without filing a timely motion to waive oral argument will cost you up to $200.

  • Amended Local Rule 4-1 implements a new schedule of fees charged by the clerk of court. The court’s web site says that the only change is in the numbers of copies required for various filings (generally the original and only one copy now required for some of the listed items).

  • Speaking of numbers of copies, new Local Rule 3-1 requires only an original plus one copy for “[a]ll filings, in appeals or writs ....” That’s if you file on paper. If you file electronically, “that filing will be deemed the original and a duplicate is not required.”

  • Finally, amended Local Rule 2-8 sets certain conditions on lawyers who borrow the record from the clerk of court. Under the amended rule, the exhibits remain at the courthouse—you have to go there to look at the exhibits. You have to return the record before or when you file your brief; the clerk won’t consider your brief filed unless you’ve returned the record. Also, you can’t borrow the record once the case is submitted except to prepare an application for rehearing to the Second Circuit or a writ application to the Louisiana Supreme Court; and then, you can only have the record for five days.

On that last item: it’s usually a good practice to make a copy of the record as soon as you get it, either on paper or scanned to PDF. Once you have your own copy, return the record promptly; don’t wait until your brief is due. That way, you reduce the risk of having your brief deemed untimely; plus you avoid the trouble of having to re-borrow the record for rehearing, LASC writ practice, and (if writs are granted) LASC merits briefing.

More free CLE stuff

A couple of days ago, I gave my semi-annual presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar for new lawyers. My written materials (PDF copy here) include nuts-and-bolts stuff for handling appeals and writ applications in the Louisiana appellate courts. My slide presentation (PDF copy here) show five principles that I’ve come up with for succeeding in appellate practice, some of which can be transferred to other areas of legal practice. I’m making them available here for anyone who’s interested.

Free CLE stuff

I just finished giving a presentation for the Louisiana State Bar Association’s Jazz Fest seminar. The seminar theme was powerful writing. My presentation focused on use of grammatical structures to either focus or deflect attention on someone or something. For anyone interested in that sort of thing (and who isn’t?), here are links to my written materials and slide presentation.