For your pre-Thanksgiving weekend enjoyment, here is the opening statement of Mr. Harold Schoff, plaintiff’s attorney in Wile E. Coyote v. Acme Co., No. B19294 (D. Ariz. Feb. 18, 1990). Think of it as a lesson in the silliness of legalese, which Mr. Schoff uses to describe various mishaps caused by unreasonably dangerous conditions in Acme products.
You can find a printed copy in Ian Frazier’s book Coyote v. Acme.
If you file a motion in the U.S. Fifth Circuit needing expedited consideration, you need to follow a new procedure, effective October 31. The new procedure, in amended 5th Cir. Rule 27.3, requires the filer to give the clerk’s office a heads-up by telephone, and the filing must inform the court of the date by which action is required and the reason. Here’s the text of the amended rule, with new language in red:
5th Cir. R. 27.3:
27.3. Emergency Motions and Urgent Filings Requiring Action by a Date Certain in Cases Other Than Capital Cases.
27.3.2 Urgent Filings Requiring Action by a Date Certain. If a filing does not meet the criteria for an emergency under this rule but a party certifies that court action is necessary by a date certain, the filer must notify the clerk of court by telephone no later than 2:00 p.m. on the day of the filing of the intent to file and the date by which action is required. In addition to following all rules regarding the format of the filing, the filed pleading must clearly state the date for action and provide a justification for why such action is needed.
To download the court’s order publishing the new rule, follow this link.
Did you know that Louisiana has a rule for citing the Revised Statutes? I didn’t until a few minutes ago. The rule is hiding in plain sight at R.S. 1:1. Luckily, I’ve been unwittingly citing the Revised Statutes just as the rule specifies: it says to cite the Revised Statutes “as R.S. followed by the number of the Title and the number of the Section in the Title, separated by a colon. Example: Section 1 of Title 20 shall be cited as R.S. 20:1.” (Most lawyers put an “La.” before the “R.S.” That doesn’t hurt; rather it clarifies for the reader that you’re citing a Louisiana statute.)
The Bluebook and the ALWD Guide to Legal Citation would have you cite R.S. 20:1 as “La. Rev. Stat. Ann. § 20:1.” So this is another instance where you should disregard the Bluebook, and instead cite the Revised Statutes the way Louisiana practitioners cite them.
Let’s say that, in a personal-injury suit, the plaintiff sues both the tortfeasor and the tortfeasor’s liability insurer, and the trial results in a judgment over the insurer’s policy limit. If the insurer wants to take a suspensive appeal, does it need a bond covering the entire judgment amount, or only its policy limit. Today, the Louisiana Supreme Court answered the question: the insurer may take a suspensive appeal by posting a bond for policy limits, and may take a devolutive appeal on behalf of its insured for the excess part of the judgment. Martinez v. Am. Transport Group Risk Retention Group, Inc., 2023-CC-01716 (La. 10/25/24). The Court reasoned that it would “impair the obligation of contracts” to require an insurer to bond the amount of the judgment in excess of its policy limit. Slip op. at 5–6.
This morning I gave a one-hour presentation on appellate practice at the Louisiana State Bar Association’s semi-annual Bridging the Gap seminar for new and relatively new lawyers. The legal citations in my written materials had hyperlinks to the cases and statutes being cited, but the hyperlinks were stripped in the process of including the materials in the seminar manual. So for anyone interested in the hyperlinked version of my written materials, here’s a link to a downloadable PDF version with active hyperlinks.
Today I found a bit of time to update the appellate blogroll: you’ll find it on this blog’s home page on the right, under the “Appellate Blogs” heading. As of today, it includes several new entries from across the country.
Blog rolls used to be a standard feature of every blog. They transformed a bunch of individual blogs into a limitless network, enabling readers to jump from one blog to another, to another, ad infinitum. They also transformed individual bloggers into a blogging community—I used to enjoy going to conferences and meeting other bloggers, knowing who they were and their already knowing who I was before we met in person. Also, since I’ve been blogging in one form or another for over 20 years, I fondly remember the post-Katrina New Orleans blogging community, whose members blogrolled and followed each other and even created an annual get-together: the Rising Tide conferences.
Sadly, you don’t see blog rolls on most law blogs anymore. I suppose that’s because most law bloggers use their blogs as marketing tools and don’t want to link to perceived competitors. That’s a shame.
Me, my thinking is that I want this blog to be a resource to readers, and the best way to do that is to provide links to other sources of information. I also enjoy acknowledging other bloggers with the same interest that I have, and the best way I know to do that is to include them on my blogroll. So I’ll continue to be old-school that way.
The Louisiana Fifth Circuit has a few recent updates to its local rules.
On September 24, the court updated Local Rules 1 and 2. Local Rule 1 implements a new fee schedule. Local Rule 2(A) now provides that “[a]ll filings require only one original. Filings submitted electronically or via facsimile shall be deemed original and do not require hard copies.” Local Rule 2(B) relieves the district-court clerks of the task of filing the record in duplicate. Instead, “the clerk of the trial court shall prepare a record in electronic form or one certified copy of the original record in hard copy form.” Both new rules reflect the ongoing shift away from paper and toward electronic media.
On October 15, the court enacted Local Rule 9.1, governing the material the court will consider on an application for a supervisory writ. The rule seems to express the court’s expectation that the writ applicant will attach all pertinent pleadings and exhibits to the writ application, particularly those of the opposing party. Local Rule 9.1(A) states that “[t]he scope of this court’s supervisory review is customarily limited to materials submitted in a writ application and any supplements thereto.” Local Rule 9.1(B) states, “If a writ application omits materials required by Rule 4-5 of the Uniform Rules of the Courts of Appeal, the applicant may supplement the writ application, or the panel on its own motion may order supplementation thereof.”
A few days ago, the U.S. Fifth Circuit issued a judgment in First United Pentecostal Church v. Church Mutual Insurance Co., No. 23-30779 (5th Cir. Oct. 17, 2024). For folks litigating hurricane-related coverage disputes, First United is interesting: while it affirmed the trial court’s award of the amount owed under the policy, it reversed the trial court’s imposition of statutory penalties, attorney fees, and costs, finding that the insurer’s delay in paying the claim was not arbitrary or capricious.
But what caught my eye was near the end of the opinion, where the Fifth Circuit disposed of the appellant insurer’s attempt to throw in a grabbag of errors and arguing for reversal, with the catchall argument “for the reasons presented supra.” The Fifth Circuit decided that the appellant insurer forfeited these points by failing to brief them adequately:
Finally, CM contends—in a single paragraph in its brief—that the district court erred by denying its motion for a directed verdict or judgment as a matter of law, as well as its motion for post-judgment relief. The only basis for its argument is “for all the reasons presented herein, which are incorporated into this argument as to the error presented” and “for the reasons presented supra.”
Federal Rule of Appellate Procedure 28(a)(8)(A) requires an appellant’s argument to contain “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which appellant relies.” CM fails to meet this standard. It does not explain the legal standard for a directed verdict, judgment as a matter of law, or a new trial, nor does CM explain which of its previously made arguments apply under those legal standards. “A party forfeits an argument . . . by failing to adequately brief the argument on appeal.” Thus, CM has forfeited its arguments that the district court erred by failing to grant a directed verdict, a judgment as a matter of law, or a new trial.
[Slip op. at 17 (footnote omitted).]
We’ve all heard the conventional thinking about introductions and conclusions. It goes something like this:
In an article I recently came across, attorney Bret Rappaport challenges that conventional thinking. And in doing so, he draws lessons from another creative discipline—photography—and eminent photographer Ansel Adams. Writing Like a Photographer Thinks: Using Ansel Adams’s Composition Principles to Write More Effective Persuasive Introductions and Conclusions, 28 J. Legal Writing Inst. 263 (2024).
For the introduction, Rappaport asks us to consider how a photographer composes a photograph by finding the right place to stand and framing the image—deciding what goes inside and outside the frame. Similarly, the brief’s introduction should tell the reader where the brief-writer stands and frame the big picture for how the case should be decided.
Some examples provided by Rappaport will give you a better idea of what he’s talking about than my attempt to summarize. One comes from a brief in Virginia House of Delegates v. Bethune-Hill, 139 S.Ct. 1945 (2019). You won’t have to guess whether this is the appellant’s or the appellee’s brief:
Two points of black-letter law and a straighforward application of this Court’s precedent resolve this case.
The black-letter law is:
The only appellants here are the lower chamber of Virginia’s bicameral state legislature and its speaker (together, the House). The House does not represent the Commonwealth of Virginia, and a component of state government has no standing to appeal that is separate from the State of which it is a part.
Rappaport’s second example is from Bucklew v. Precythe, 139 S.Ct. 1112 (2019), a capital-punishment case. Again, you won’t have any trouble figuring out where the brief-writer stands or where the brief is headed:
Justice is long overdue for Russell Bucklew. Over 22 years ago, in a vicious crime spree Bucklew committed murder, attempted murder, kidnapping, rape, escape from jail, and assault. He was convicted and sentenced to death. He now seeks an effective exemption to the death penalty through an as-applied challenge to Missouri’s method of execution.
For the conclusion, Rappaport suggests trying a little pathos—emotion. He reminds us that, “[w]hile blatant pathos may backfire as being overly manipulative, pathos plays an important roll in all persuasive writing, including legal writing.” Again, an example he provides illustrates the point better than my attempt to summarize. This come from a brief written by Jeff Fisher in Ohio v. Clark, 576 U.S. 237 (2015):
As hard as child abuse sometimes is to prove, it has been recognized for centuries that such a criminal charge is even “harder to be defended by the party accused, though innocent.” Indeed, due to the “heinousness of the offence,” there is a special danger that the jury may be “overhastily carried to the conviction” by false or innacurate accusations. For hundreds of years, the Anglo-American legal system has recognized that the best antidote to this danger is cross-examination—“the greatest engine ever invented for the discovery of truth.” This Court should turn away the State’s request to systematically dispense with that protection where it is most needed.
As Rappaport says, “This powerful conclusion offers flowing prose that harnesses and deploys pathos by focusing the justices on dedication to truth finding.” Citing Ross Guberman’s Point Made, he suggests “end[ing] your brief with a bit of ‘heft’ and, “[i]f you’ve kept your emotions in check throughout your argument, let yourself vent a bit in your conclusion.’”
What all these examples share is the power to move the reader. The same can’t be said for “This is what I’m going to tell you” or “this is what I just told you.”
It’s not the plaintiff-appellant’s fault if the defendant-appellee’s trial exhibits are missing from the record on appeal because the defendant-appellee failed to provide them to the clerk of court. That was the Louisiana Supreme Court’s common-sense ruling today in Estate of Knox v. Banks, No. 2024-C-00516 (La. 10/15/24), reversing 2023-CA-0762 (La. App. 1 Cir. 3/22/24). The ruling accords with La. Code Civ. P. art. 2161, which disallows dismissal of an appeal for “irregularity, error or defect unless it is imputable to the appellant.”
In the case, the plaintiff sued the defendant to nullify a purported cash sale and a donation of the decedent’s home. The bench trial was held via Zoom, during which the court accepted six defense exhibits into evidence. At the end of the trial, the defendant moved for involuntary dismissal, which the trial court granted. The plaintiff appealed. But when the record arrived at the First Circuit, it was missing the defendant’s exhibits. In response to the First Circuit’s order, the clerk of court informed the First Circuit that “the actual hard copies of the evidence” offered at the Zoom trial were never turned in to the clerk’s office. The First Circuit, over Judge Welch’s dissent, held the plaintiff responsible for the absence of the defendant’s exhibits, reasoning: “When the record lacks evidence that is pertinent to an issue raised on appeal, the inadequacy of the record is attributable to the appellant.” And “because an appellate court renders its judgment based upon the record filed on appeal,” the First Circuit felt “bound to presume that the [trial court’s judgment] was correct and was supported by sufficient competent evidence.” Based on this reasoning, the First Circuit affirmed.
Judge Welch dissented. He pointed out that all of the missing exhibits were introduced by the defendant, that the plaintiff never had control of the physical exhibits, and that it was the defendant, not the plaintiff, who failed to send the physical exhibits to the clerk of court for inclusion in the record. Thus, he “would vacate and emand for a new trial so that the evidence may be properly offered, filed, and introduced into the record.”
The Louisiana Supreme Court granted the plaintiff’s writ application and summarily reversed. It agreed with Judge Welch that the incompleteness of the record was attributable to the defendant-appellee, not the plaintiff-appellant. Thus, the First Circuit “erred in affirming the trial court’s judgment without a complete record.” The LASC remanded the case to the trial court for the limited purpose of filing the defendant’s physical exhibits into the record. “Once the record is corrected on remand,” the LASC continued, “the appeal may be re-docketed in the appellate court upon the lodging of the necessary supplemental record.