Louisiana Civil Appeals

La. 3 Cir. Citation Manual

Did you know that the Louisiana Third Circuit has its own citation manual? I happened to come across it today on the court’s web site. If you practice in the third circuit, I suggest downloading a copy and getting familiar with it. Among the rules that caught my eye are these:

• No space after “So.” and “2d” or “3d.” (Rule 1.3.)
• No space between “La.” and “App.” (Rule 1.4.)
• For Louisiana Supreme Court decisions before 1994, no space between “La.” and the year of the decision. (Rule 1.5.)
• In a case’s subsequent history, include writ denials and certiorari denials unless the denial is due to untimeliness. (Rule 1.15.)
• For U.S. Supreme Court cases, omit the parallel citation to the Lawyer’s Edition. (Rule 1.16.)
• For Louisiana statutory abbreviations, omits spaces after internal periods, but put a space before “art.” (Rule 2.1.) Thus:
  • La.Civ.Code art. 2315
  • La.Code Civ.P. art. 1914
  • La.Code Crim.P. art. 413
  • La.Ch.Code art. 1131
  • La.Code Evid. art. 601
• For the Revised Statutes, ignore the Bluebook and omit the section symbol. Thus, “La.R.S. 23:1201(F)(1).” (Rule 2.2.)
• Know the difference between a hyphen, an en-dash, and an em-dash. For proper usage of these punctuation marks, consult Bryan Garner’s Redbook (not to be confused with the Redbook magazine). (Rule 3.5.)

To download a cop of the citation manual, follow this link.

Federal appellate jurisdiction over discovery order

Yesterday, the U.S. Fifth Circuit issued an interesting judgment raising issues of appellate jurisdiction and standing: Jackson Municipal Airport Authority v. Harkins, No. 21-60321 (5th Cir. May 10, 2023). 

First, the jurisdictional issue. The plaintiffs included members of the Board of Commissioners of the Jackson Municipal Airport Authority, whose positions would be eliminated by legislation passed by the Mississippi legislature, referred to as SB 2162. The underlying case is a constitutional challenge to that legisllation. The commissioners subpoenaed documents fro certain non-party legislators who participated in SB 2162’s drafting and passage. The legislators refused to produce the documents, claiming legislative privilege. The magistrate judge and the district judge ordered the legislators to produce a privilege log. Had they stopped there, the order would have been non-appealable. But the jurisdictional issue arose because the magistrate judge also found “that to the extend documents or information otherwise protected by legislative privilege have been shared by third parties, the privilege has been waived.” The next sentence order the legislators to “produce those documents.”

In a fractured opinion, Judges Elrod and Duncan held that the Fifth Circuit had appellate jurisdiction. They followed Fifth Circuit precedent holding that a discovery order may be appealable when (1) a governmental privilege is involved, and (2) the government is not a party to the lawsuit. Judges Elrod and Duncan further interpreted the magistrate judge’s order as compelling production of documents that had been shared with third parties.

On the jurisdictional issue, Judge Dennis dissented. He did not disagree with the law followed by Judges Elrod and Duncan. But he disagreed with their interpretation of the magistrate judge’s order. In short, he interpreted the order as requiring only the production of a privilege log, not production of any documents over which the legislators claimed a privilege.

The standing issue—whether the commissioners had any standing to sue in the first place—produced a different lineup: Judge Dennis joined Judge Elrod’s holding that the commissioners had standing, with Judge Duncan dissenting. Judges Elrod and Dennis concluded that the commissioners had standing because they stood to lose their position, along with its benefits, as SB 2162 would abolish the body on which they served as commissioners. In dissent, Judge Duncan reasoned that the commissoiners’ loss of perks—such as “the right to expense the City of Jackson for a New York Strip or a trip to Vegas”—did not give them standing because they would not lose “something to which they personally are entitled ....” He also said that the Elrod–Dennis majority’s judgment “puts our circuit out of step with at least three others,” citing decisions of the Third, D.C., and Tenth Circuits.

Hat tip to Tad Bartlett at Take the Fifth.

Bridging the Gap hyperlinked written materials

Today I again gave my semi-annual CLE presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar for new and relatively new lawyers. I intended for the legal citations in my written materials to be hyperlinked to the cited cases and statutes, but the hyperlinks got lost in the process of incorporating my written materials into the seminar manual. So for BTG participants and anyone else who may be interested, follow this link to download the hyperlinked version of my written materials.

Certified questions from federal district courts to the LASC

The Louisiana Supreme Court is considering an amendment of Rule XII, concerning acceptance of certified questions from federal courts. Currently, the LASC may accept certified questions from the U.S. Supreme Court or any U.S. court of appeals. The proposed amendment would allow the LASC to also accept certified questions from federal district courts. To read or download a copy of the proposed amendment, follow this link.

If you want to comment on the proposed amendment, you have until May 25 to do so. The LASC gives the following instructions for submitting comments:

PLEASE REVIEW THE PROPOSED RULE CHANGE AND SEND YOUR COMMENTS BY MAY 25, 2023, TO:

David Becker
Louisiana Supreme Court
400 Royal Street, Suite 1190
New Orleans, LA 70130

OR EMAIL YOUR COMMENTS TO:  [email protected]

Hat tip to my colleague Taylor Brett for flagging this item.

LASC 2022 Annual Report

In passing by the Louisiana Supreme Court’s web site today, I noticed that the 2022 Annual Report is out. As in past years, the report is loaded with statistics about the Supreme Court and the courts of appeal, total and broken down by circuit. You can use the statistics to get an objective measure of the chances of getting a writ application granted. I recommend downloading a copy or bookmarking it in your browser for future reference. 

Don’t use Garamond

This post is both a tip and a plea: if you get to choose the font for whatever you’re writing, please do not choose Garamond. Of all the Microsoft system fonts one might use in legal writing, Garamond has to be the hardest to read, making it worse than the much-maligned Times New Roman.

What makes Garamond hard to read is its poor contrast—I have to squint to read it. And the harder something is to read, the more likely the reader is to doubt both the messenger and the message. That is true whether the cause of the difficulty is word selection, sentence and paragraph composition, or a hard-to-read font. If you doubt that, read this short article, especially page 185 and the studies cited in the article. That is why font selection is so important to persuasive writing.

In choosing a font, don’t choose the one with the prettiest letters. The thing to look for is contrast: how well do the black letters stand out on a white page. Good contrast is what makes a font easy to read. Poor contrast does the opposite. And the easier something is to read, the more likely the reader is to find both the messenger and the message credible.

I like Cambria because it has good contrast compared with other system fonts. To illustrate my point, I made a short PDF document comparing Cambria with Garamond. To have a look, follow this link. Note the difference in contrast between the two fonts. If you can find a font with better contrast than Cambria, use it.

Let it go

If  your opponent files an appellate brief with offensive language, should you move for sanctions? Probably not. That’s the lesson from a decision rendered last month by the Louisiana First Circuit in Brumfield v. Village of Tangipahoa, 2022-CA-0730 (La. App. 1 Cir. 3/6/23), — So. 3d —.

In an earlier appeal in the case, one of the parties moved the First Circuit to impose sanctions on the other side for filing a brief with offensive language. The First Circuit denied the motion, holding that Uniform Rule 2-12.2(C) does not authorize the court of appeal to impose sanctions, and that any authority to impose sanctions under La. Code Civ. P. art. 863 is limited to the trial court. Brumfield v. Village of Tangipahoa, 2021-CA-0082 (La. App. 1 Cir. 12/20/21), 340 So. 3d 221.

Back in the trial court, the offended party moved for sanctions under art. 863 because of the offensive language in the other side’s appellate brief. The trial court obliged, awarding the moving party $1,500. The First Circuit reversed, holding that the sanction was not authorized by art. 863. The court reasoned that, by its terms, art. 863 applies only to “pleadings,” i.e. petitions, exceptions, written motions, and answers. See La. Code Civ. P. art. 852. Since an appellate brief isn’t a pleading as defined by art. 852, the First Circuit concluded that art. 863 didn’t apply. So the First Circuit reversed and imposed the appeal costs on the party who moved for sanctions. Result: the pursuit of sanctions accomplished nothing except to drag out ancillary litigation and to increase the moving party’s legal expenses.

My suggestion: take note of Brumfield, and use it the next time you have to talk someone down from chasing sanctions against an opponent because of an offensive brief. 

Trial court’s authority to dismiss an appeal for failure to pay costs

Last month, the Louisiana Fifth Circuit rendered a judgment reversing a trial court’s dismissal of an appeal because of the appellant’s failure to pay the appeal costs timely. In re Medical Reviiew Panel for Singleton, 22-CA-285 (La. App. 5 Cir. 3/1/23), — So. 3d —. It includes an informative discussion of purpose and proper use of the trial court’s authority under La. Code Civ. P. art. 2126(E) to dismiss an appeal for failure to pay costs, drawn from Reed v. Columbia/HCA Info. Serv., Inc., 99-1315 (La. App. 5 Cir. 4/25/00), 761 So. 2d 625.

Where to find current LASC rules

Here’s a tip for anyone practicing in the Louisiana Supreme Court: before relying on any LASC rule you find in a printed source, check the LASC’s web site for any updates. I happened to be wandering around the web site today and came across this page of amendments to the LASC’s rules, some of which I missed when they first came out. One example is the amendment to the rules governing amicus participation in oral argument, which became effective last December 6. The lesson here is simple: whenever looking up an LASC rule, look it up on the LASC web site.

Where to file an answer to an appeal

Under La. Code Civ. P. art. 2133, an appellee can file an answer to an appeal to obtain relief against the appellant that the trial court denied. The answer is “equivalent to an appeal on [the appellee’s] part from any portion of the judgment rendered against [the appellee] in favor of the appellant ....” But Article 2133 does not say which court to file the answer in. Since the deadline to file it is 15 days after the record is lodged in the court of appeal, usually the answer is filed in that court. But some Louisiana decisions hold that it’s okay to file the answer in the trial court (presumably before the record lodged in the court of appeal). The most recent example is a decision last month on rehearing by the Third Circuit, Boudreaux v. Take 5 LLC, 22-44 (La. App. 3 Cir. 12/14/22). The Boudreaux court followed the First Circuit’s 2016 decision in Succession of Poole, 2015-1317 (La. App. 1 Cir. 10/28/16), 213 So. 3d 18, which is discussed in this 2017 blog post.

My suggestion: if you’re going to file an answer in the trial court (which I don’t recommend), do it well before the record is lodged in the court of appeal, so that the answer will be included in the record before the court of appeal. In Boudreaux, the appellee filed his answer the day before the return date for lodging the record, and the answer was included in a supplemental record lodged in the Third Circuit. The result might have been different if the appellee filed his answer after the return date for lodging the record; in that case, the answer would not have been in the record for the Third Circuit’s consideration.