Kairos—or what briefwriters can learn from Dr. John

I been in the right place, but it must have been the wrong time.
Dr. John

Here are three principles of briefwriting that I try to follow:

  1. Every part of a brief should contribute to persuasiveness.
  2. Not every part of a brief should be argumentative. Argument should be confined to, well, the argument (and summary of the argument).
  3. Argument in the wrong place (for example, in the jurisdictional statement) detracts from persuasiveness.

Probably everyone would agree with item # 1. Some people may need convincing on items # 2 and #3, so I’ll give it a try.

Way back when, Aristotle described four modes for creating persuasive arguments: ethos, logos, pathos, and kairos. Ethos refers to the credibility and trustworthiness of the one giving the argument. Logos refers to logic, to the syllogistic thinking we all learned in law school. Pathos refers to establishing common ground with listener or reader. See Linda L. Berger and Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Approach to the Science 5 (2018). As the title of this post suggests, I want to talk about kairos and how that figures into briefwriting.

Kairos refers to the appropriateness of timing and setting for the argument. Id. To paraphrase Dr. John, it means not only saying the right thing, but saying it at the right time. According to the editor of this web page, “Kairos ... is based on the thought that speech must happen at a certain time in order for it to be most effective. If rhetoric is to be meaningful and successful, it must be presented at the right moment, or else it will not have the same impact on ... the audience.”*

I’ll take it a step further and propose this: In a brief, argument in the wrong place or at the wrong time detracts from persuasiveness. Why is that? Because when the reader is reading, say, the jurisdictional statement, she is not receptive to argument; she just wants to know whether the court has jurisdiction over the appeal. So if she hits a patch of argumentative language in the jurisdictional statement, she filters that out or skims past it. As a briefwriter, I don’t want my reader to get in the habit of filtering or skimming. I want to encourage the reader to read every word; I want to get her in the habit of nodding in agreement or, at least, thinking that every word is worth reading.

Every part of the brief can be persuasive if it does exactly what it’s supposed to do, and does so without inflicting pain or boredom on the reader. Doing this builds ethos by establishing the briefwriter’s knowledge, credibililty, and trustworthiness. It also builds pathos by showing that the briefwriter understands and is trying to meet the reader’s needs. Putting argument where it doesn’t belong has the opposite effect.

In the coming days, I hope to write a series of posts on how to make the non-argumentative parts of the brief persuasive. Well, maybe not the certificate of service, but everything else.

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*Yes, I know it’s just Wikipedia. But the statement makes sense, and I don’t have a better source handy at the moment: my copy of Aristotle’s Rhetoric is at home.


New Second Circuit briefing rules effective 5/31/19

If you practice in the Louisiana Second Circuit, be aware of two new briefing rules that become effective on May 31.

First, if your brief has any attachments, it must include a certification that “all attachments to this brief have previously been duly filed and/or accepted or proffered into evidence in the lower court ....” For the full text of the required certificate, see new Local Rule 15.

Second, if your brief has no attachments, it must include a certification stating, “I hereby verify that there are no attachments required with this brief.” See new Local Rule 15.1.

I don’t know and won’t speculate what led the court to make these rules. I do know from experience that the Second Circuit clerk’s office often rejects briefs that fail to comply with all of the rules, including local rules. See Local Rule 2-5. Starting May 31, any brief filed with the Second Circuit will have to include one of these certifications. If it doesn’t, the lawyer submitting the brief will run the risk of having the brief rejected.

Speaking of attachments: the Second Circuit has not opted out of Uniform Rule 2-12.4(B)(1). That rule requires that the trial court’s judgment and reasons for judgment (written or transcribed) be attached to the appellant’s brief. The rule doesn’t expressly prohibit other attachments, but my experience in other circuits is that any other attachments are often either removed at intake or counted against the page limit.

A third rule effective on May 31 concerns borrowing the record. Under new Local Rule 2-8.1, the court will not allow lawyers to borrow the record after the case has been submitted for decision except for the purpose of preparing an application for rehearing. If this rule is applied literally, then the court will not loan out the record for a writ application to the Louisiana Supreme Court. Related Rule 2-8.2 (also effective May 31) requires counsel to return the record no later than with the filing of that party’s brief.

Complying with this rule should not be a problem. When you borrow the record, immediately make a copy: either on paper or in PDF. Once you have your own copy of the record, immediately return the original to the court. If you do these things, you won’t have to worry about returning the record when you file your brief, and you won’t have to re-borrow the record for rehearing or a La. Supreme Court writ application.


For “Bridging the Gap” participants (and anyone else interested)

This morning I gave my annual 1-hour presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar for new lawyers. For them and anyone else who may be interested, here are PDFs copies of

While I preached against following forms, I’m happy to share samples of pleadings, writ applications, and other appellate filings; you can find them by following this link. A word of caution: the rules may have changed since these were written, and may change by the time you actually consult any of these samples. So check the rules, and if you see a conflict between the sample and a rule, follow the rule.


What happens when a partially incomplete judgment is appealed?

Let’s say a party appeals a trial-court judgment that is partially incomplete. For example:

  • The judgment awards plaintiffs “$4,733, along with any penalties and interest, for the amount of income tax liability Plaintiffs incurred,” but fails to specify the amounts of penalties and interest.
  • The judgment awards a worker’s compensation claimant “[a]ll medical bills and expenses not paid by his general health insurer” and “[a]ll out of pocket medical expenses incurred for the lumbar spine which are part of the evidence admitted at trial,¨ but fails to specify the amounts of these awards.
  • The judgment awards “$16,420.00 ... together with reasonable attorney’s fees,” but fails to specify the amount of attorney’s fees.

Each of these judgments is technically unappealable because part of the relief awarded is indefinite. But if the judgment comes up on appeal anyway, what’s an appellate court to do with it? As shown in some recent decisions, this question has bedeviled the First Circuit. Last month, the issue came up in two cases that went en banc, with no majority agreement on what to do.

First, some history. About two years ago, the issue came up in Duet v. Landry, 2016-0575 (La. App. 1 Cir. 3/6/17), 2017 WL 900066, 2017 La. App. Unpub. LEXIS 77. The Duet judgment awarded “4,733, along with any penalties and interest, for the amount of income tax liability Plaintiffs incurred.” Because the judgment failed to specify the amount of penalties and interest awarded, the court found the judgment indefinite and therefore not final. So the court dismissed the appeal without prejudice and remanded the case to the district court for further proceedings, including entry of a final judgment setting forth the amounts of penalties and interest. The panel consisted of judges Welch, Crain, and Holdridge.

About three months later, a five-judge panel of the First Circuit faced the same issue in Crockerham vl Weyerhaeuser Holden Wood Products, 2016-0331 (La. App. 1 Cir. 6/2/17), 223 So. 3d 533, a worker’s compensation case. The judgment in the claimant’s favor included awards for “[a]ll medical bills and expenses not paid by his general health insurer” and “[a]ll out of pocket medical expenses for the lumbar spine which are part of the evidence admitted at trial ....” The panel agreed that the failure to specify the amounts of these awards made the judgment indefinite and therefore not final, but the panel split on what to do about that. A two-judge plurality (Whipple and Guidry) vacated the parts of the judgment that were indefinite and not final, and decided the merits of the rest of the judgment. Remarkably, in reaching this decision, the plurality noted but declined to follow Duet v. Landry. See Crockerham, 2016-0331, pp. 16–17 n. 6. Judge Pettigrew concurred without giving reasons. Judge Holdridge—who was on the Duet panel—dissented, citing Duet. Judge McClendon also dissented, though on the merits and not on appealability. 

Fast-forward to December 2018, when the First Circuit rendered a pair of en banc decisions involving the same procedural issue. The first (and shorter) of the pair is Advanced Leveling & Concrete Solutions v. Lathan Co., 2017-1250 (La. App. 1 Cir. 12/20/18), 2018 WL 6716997, 2018 La. App. LEXIS 2564 (en banc). The judgment in Advanced Leveling awarded $16,420.00 ... together with reasonable attorney’s fees,” without specifying the amount of attorney’s fees. It appears that the court went en banc in Advanced Leveling to resolve the conflict between Duet and Crockerham. But the conflict may have remained unresolved because of no majority decision. A five-judge plurality (Guidry, McClendon, Welch, Crain, and Penzato) subscribed to an opinion overruling Crockerham and dismissing the appeal. Judge Holdridge concurred in the result, noting that the judgment had not been designated as final under La. Code Civ. P. art. 1915(B). Chief Judge Whipple (joined by Judge Higganbotham) dissented for reasons stated in Crockerham. Judges Pettigrew, Theriot, and Chutz dissented without giving reasons.

The next day, an en banc First Circuit rendered a judgment in ABS Services, Inc. v. James Construction Group, LLC, 2016-0705 (La. App. 1 Cir. 12/21/18), 2018 WL 6718889, 2018 La. App. LEXIS 2578. ABS was set for oral argument before the en banc court specifically to resolve the conflict between Duet and Crockerham: i.e., “whether or not the award of ‘reasonable attorney’s fees’ in an otherwise final judgment renders the judgment, in whole or in part, nonappealable as uncertain or indefinite in nature.” But the appellee found a procedural way around this issue, filing  motion for limited remand for the sole purpose of allowing the trial court to designate the judgment as final under La. Code Civ. P. art. 1915(B). The First Circuit granted the order, the trial court signed the 1915(B) order, and the case returned to the First Circuit to be decided on the merits. (Unfortunately, a majority of the court could not agree on the resolution of all issues in this complex case—that is a topic for another post.) Judge Crain dissented “because this court does not have appellate jurisdiction to consider the merits of this appeal,” citing the previous day’s decision in Advanced Leveling. He further opined that the art. 1915(B) certification did not cure the defect in the judgment.

What will happen in the next First Circuit case with this issue? I don’t know. The lesson to be learned here is to avoid the issue. Try to avoid having a judgment signed that leaves the amount of any relief to be determined later. Otherwise, try to include in the judgment a designation of finality under La. Code Civ. P. art. 1915(B). If you go the latter route, ask the judge to state for the record the reasons why the judgment should be immediately appealable.

 


Answering a constitutional appeal to the LASC

Under La. Const. art. V § 5(D), the Louisiana Supreme Court has appellate jurisdiction when a law or ordinance has been declared unconstitutional. Let’s say that a plaintiff sues to have three statutes declared unconstitutional. The trial court renders a final judgment declaring two of the statutes unconstitutional but the third constitutional. The defendant appeals. Can the plaintiff answer the appeal and ask the Supreme Court to declare the third statute unconstitutional? The answer is “yes.” The case saying so is Louisiana High School Athletic Association v. State, 2012-1471 (La. 1/29/13), 107 So. 3d 583.


The Chief

PFC_02Yesterday, former Chief Justice Pascal F. Calogero died. He was the chief justice when I started practicing law in 1990, and served in that post for 18 years. His entire career on the Louisiana Supreme Court spanned 36 years, from 1973 through 2008. My own impression of him from his written opinions is that he always saw the people behind the cases and the legal arguments. He was a pragmatic judge, believing that law existed to serve people, that it was more important for the court to do the right thing than technically correct thing.

To read the Louisiana Supreme Court’s announcement, follow this link.


Appeal from new trial = appeal from judgment on the merits — sometimes.

A few days ago, the Louisiana Supreme Court saved a litigant who purportedly appealed only from an order denying new trial rather than the judgment that was the subject of a motion for new trial. “While a judgment denying a motion for new trial is an interlocutory order and is normally not appealable,” the Court explained, “when a motion for appeal refers by date to the judgmetn denying a motion for new trial, but the circumstances indicate that the appellant intended to appeal from the final judgment on the merits, the appeal should be maintained as taken from the judgment on the merits.” Williams v. Hosp. Servs. Dist. No. 1 of Tangipahoa Parish, 2018-1386 (La. 12/17/18), — So. 3d —.

That seems simple enough. But as the court of appeal’s decision shows, the case had an extra layer of complication. Two plaintiffs—DePhillips and Williams—each brought similar putative class actions. After the two cases were consolidated, a defendant raised a peremptory exception of prescription. At a hearing in open court, the trial court sustained the exception in both cases. Afterwards, things got complicated.

On the same day, the trial court signed two judgments. While each judgment bore the consolidated caption, the substance of each judgment indicate that each applied to only one case:

  • The “DePhillips judgment,” signed November 16, 2016, sustained the exception as to plaintiff DePhillips, and said that the suit was confined to claims occurring within one year from filing of suit. This judgment contained no decretal language dismissing any claims. Notice of this judgment was mailed on November 17, 2016.
  • The “Williams judgment,” signed the same day as the DePhillips judgment, sustained the exception of prescription as to Wiliams’s claims and dismissed Williams’s claims with prejudice. Notice of this judgment was mailed on November 22, 2016.

Both plaintiffs then filed a motion for new trial, which on its face, sought review of the judgment signed on November 16, 2016, and stated that the clerk mailed notice of the judgment on November 17, 2016. The trial court denied the motion for new trial on January 9, 2017, and signed a written judgment to that effect on January 19, 2017. The plaintiffs then attempted to appeal the judgment rendered on January 9 and signed on January 19.

The court of appeal dismissed the appeal. In its decision, the court recited the rule that, when a motion for appeal refers by date to a judgment denying a new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. But in applying this rule, the court determined that the plaintiffs still appealed the wrong judgment. The reason was that the motion for new trial referred by date to the non-final DePhillips judgment, not the final Williams judgment. DePhillips v. Hosp. Serv. Dist. No. 1 of Tangipahoa Parish, 2017-1423 c/w 2017-1424 (La. App. 1 Cir. 7/18/18), 255 So. 3d 1.

The Louisiana Supreme Court reversed the court of appeal's judgment and reinstated the appeal. Reviewing the same circumstances as the court of appeal, the Supreme Court concluded that the plaintiff appealed “from the only final judgment rendered in this consolidated matter, which was the dismissal of the plaintiff Earnest Williams’ claims.”

The lesson for the rest of us: be careful in writing your motion and order of appeal: make sure that it correctly identifies the judgment you want to appeal, and make sure that the judgment being appealed is a final, appealable judgment.


Vacatur of default judgment not appealable

In a decision rendered last month, the Louisiana Fifth Circuit held that a judgment vacating a default judgment is not a final judgment and therefore cannot be appealed. Russell v. Jones, 18-160 (La. App. 5 Cir. 11/14/18), — So. 3d —, 2018 La. App. LEXIS 2294. While the judgment might have been reviewable under the court of appeal’s supervisory jurisdiction, the plaintiff failed to appeal within the 30-day time to apply for a supervisory writ.