Louisiana Civil Appeals

Like a rolling stone

I’ll rationalize this post by saying that Bob Dylan is the most frequently cited songwriter in court opinions. If you don’t believe that, open up Google Scholar and search caselaw for the phrase “Bob Dylan.” So with the rationalization out of the way, here’s a musical break from the usual appellate-practice fare. It’s a bit of musical history dramatized in A Complete Unknown, brought to you by this old-school blogger: Bob Dylan’s performance of “Like a Rolling Stone” at the 1965 Newport Folk Festival. Listen to the audience, and you’ll hear some cheers and some jeers. Enjoy.

The history of the LASC’s lectern

Sometimes a visitor to a place sees things that its regular inhabitants miss. Like, for instance, the lectern at the Louisiana Supreme Court. Recently a lawyer based in Houston, Raffi Melkonian, argued a case in the LASC, and was impressed by the lectern. He noticed details that LASC regulars probably miss—such as its vintage IBM logo. So he did a little digging, learned of the lectern’s history, and wrote an article about it for the Louisiana Law Library’s newsletter, De Novo: “The Remarkable Space-Age Lectern of the Louisiana Supreme Court.” Raffi learned, among other things, that President Kennedy stood at an identical lectern when he gave his historic “We choose to go to the moon” address. Raffi concludes with a reflection on the history that often surrounds us when we appear in court:

More broadly, it’s a reminder that we should look for the unexpected stories that surround us. Objects like the IBM lectern serve as more than functional aids; they are artifacts, carrying the weight of history into the present. Our profession is rich with such physical connections to the past—from the worn marble steps of historic courthouses to the centuryold oak benches where anxious lawyers have always waited their turn. Even the most mundane objects—a judge's gavel, a witness chair, a court reporter's stenotype machine—each carries its own history of justice being sought and served. The next time I argue a case, I’ll do so with a renewed appreciation for the tools we use to do so.

Bryan Garner’s most misunderstood advice

One thing that Bryan Garner is famous for is suggesting that brief-writers put their legal citations in footnotes rather than in text. People sometimes debate that point as if the only issue were the location of the citations. If that’s what you think, then you misunderstand Garner’s advice.

To follow Garner’s citation advice, you must do more than merely relocate the citations to the page bottom. You have to “say what your authority is in the text, and put the bibliographic information in footnotes.” Bryan A. Garner, The Elements of Legal Style 91 (2d ed. 2002). The bibliographic information is stuff like the reporter abbreviation, volume number, and page; that’s what goes in the footnote. The important information—the court deciding the cited case, the case name, and its date—goes in text.

To illustrate, I’ll use the example Garner gives in The Elements of Legal Style, pp. 91–92. First, a typical passage with legal citations in text:

Version 1
The effect of a release is to extinguish any claim that a plaintiff might otherwise have against a defendant. Pellett v. Sonotone Corp., 26 Cal. 2d 705, 711, 160 P.2d 783, 786 (1945). Indeed, when a release employs absolute terms, as here, there can be no question about its effect. See Winet v. Price, 4 Cal. App. 4th 1159, 1166, 6 Cal. Rptr. 2d 554 (1992) (holding that a plaintiff’s claim was barred by a release wherein “the parties declared their intention to release each other from all claims, known or unknown, suspected or unsuspected, arising from ... the facts described in the underlying suit,” despite the plaintiff’s contention that it was not his subjective intent to release a right to sue in the future); San Diego Hospice v. County of San Diego, 31 Cal. App. 4th 1048, 1053, 37 Cal. Rptr. 2d 501 (1995) (explaining that “a general release can be completely enforceable and act as a complete bar to all claims known or unknown at the time of the release, despite protestations by one of the parties that he did not intent to release certain types of claims”).

Those who think they’re following Garner’s advice—but actually aren’t—would merely move the case citations and parentheticals to footnotes. Thus, the passage would look like this:

Version 2
The effect of a release is to extinguish any claim that a plaintif might otherwise have against a defendant.¹ Indeed, when a release employs absolute terms, as here, there can be no question about its effect.² 

. . . 

_____
¹ Pellett v. Sonotone Corp., 26 Cal. 2d 705, 711, 160 P.2d 783, 786 (1945).

² See Winet v. Price, 4 Cal. App. 4th 1159, 1166, 6 Cal. Rptr. 2d 554 (1992) (holding that a plaintiff's claim wa barred by a release wherein “the parties declared their intention to release each other from all claims, known or unknown, suspected or unsuspected, arising from ... the facts described in the underlying suit,” despite the plaintiff's contention that it was not his subjective intent to release a right to sue in the future); San Diego Hospice v. County of San Diego, 31 Cal. App. 4th 1048, 1053, 37 Cal. Rptr. 2d 501 (1995) (explaining that “a general release can be compltely enforceable and act as a complete bar to all claims known or unknown at the time of the release, despite protestations by one of the parties that he did not intend to release certain types of claims.”).

Version 2 is not what Garner advises. To follow Garner’s advice, you need to revise the text to say what your authorities are and how they support your argument. Here’s his revision:

Version 3
The effect of a release is to extinguish any claim that a plaintiff might otherwise have against a defendant. The California Supreme Court so held in Pellett v. Sonotone Corp., the leading case, decided in 1945.¹ Intermediate courts have consistently followed Pellett, especially when the release employs absolute terms, as it does here. Two recent cases from this Court are directly on point. In the 1992 case of Winet v. Price,² the Court held that a plaintiff’s claim was barred by a release from “all claims, known or unknown, suspected or unsuspected, arising from ... the facts described in the underlying lawsuit.”³ Although the plaintiff contended that he did not subjectively intend to release a right to sue in the future, the Court found the argument unpersuasive.⁴ And three years later, in San Diego Hospice v. County of San Diego,⁵ the Court reaffirmed this principle, stating that “a general release can be completely enforceable and act as a complete bar to all claims known or unknown at the time of the release, despite protestations by one of the parties that he did not intend to release certain types of claims.”

. . . 

_____
¹ 26 Cal. 2d 705, 711, 160 P.2d 783, 786 (1945).

² 4 Cal. App. 4th 1159, 6 Cal. Rptr. 2d 554 (1992).

³ Id. at 1166.

⁴ Id.

⁵ 31 Cal. App. 4th 1048, 1053, 37 Cal. Rptr. 501 (1995).

Garner repeats his advice in The Winning Brief 176 (3d ed. 2014): “Put all your citations in footnotes, while saying in the text what authority you’re relying on.” (Emphasis added). I’ve seen a few brief-writers relocate their legal citations from text to footnotes, but precious few who did so while saying in text what authority they’re relying on.

When I hear people debate the pros and cons of putting citations in footnotes a la Garner, they seem to be debating the merits of Version 1 versus Version 2 above. But if you really want to debate Garner’s advice, the actual choice is between Version 1 and Version 3. Version 2 is not what Garner suggests.

My suggestion: If you want to follow Garner’s advice, then don’t think you’re doing so merely by moving the citations to footnotes. You have to rewrite the text to say there what your authorities are and how they support your argument—extra points for weaving that juicy parenthetical into the text. On the flip side: if you want to disagree with Garner, that’s fine. But please understand exactly what you’re disagreeing with.

If you’re stuck with system fonts

First, I’m sold on the idea that for typography, professional fonts are the best, and Matthew Butterick’s Equity font may be the best choice for legal writers. The U.S. Fifth Circuit uses Equity in its opinions, and some fine lawyers I know also use it.

But may of us are stuck with system fonts—the ones that come packaged with whatever versions of Windows and Word you have on your PC. Maybe you belong to a firm that doesn’t want you downloading software that the firm hasn’t approved. Or maybe when you write anything, you have to collaborate with people who have only system fonts. If you’re stuck with system fonts, which one is the best for your next brief?

Matthew Butterick has some suggestions about that. His first suggestion, of course, is to use a professional font. But for those stuck with system fonts, he sorts those choices into three categories:

• A List (generally tolerable)
• B List (okay in limited doses)
• C List (questionable)

For a while now, my go-to font has been Cambria, which I like because of its high contrast and not-bad x-height. But Butterick puts Cambria on his C List—questionable—the same category as Times New Roman. That caused me to question my choice and search for another font as my go-to font.

Before moving on: An important consideration for me is high contrast between the letters and the white background. That’s because several studies in cognitive psychology showing that a writing is more persuasive when the reader experiences fluency: a subjective sense of ease in understanding whatever is being read. The studies also show that high contrast promotes fluency. So all other things being equal, high-contrast text is more persuasive than low-contrast text, just because the reader has an easier time reading it.

So here’s what I did: First, I printed the same sentence in various fonts on Butterick’s A, B, and C lists, just to see which ones have good contrast. That narrowed the search down to these finalists, with each one’s Butterick rating:

• Book Antiqua (A)
• Calisto MT (A)
• Century Schoolbook (A)
• Sitka Text (A)
• High Tower Text (B)
• Cambria (C)

To pick the best of this bunch, I thought I needed a paragraph or two. So I decided to use the Gettysburg Address. I used Word to put it these fonts (one page per font) and converted the document to PDF (since that’s the format readers will see). To see what that looked like, follow this link. Then I tried to arrange the pages in best-to-worst order.

My top three: Sitka Text, Century Schoolbook, and Book Antiqua. Of these three, Sitka Text seems to have the best contrast. That would make it my top choice except for one thing: when I converted to PDF, bold type in Word changed to plain type in PDF. To avoid that potential glitch, I’d go with Century Schoolbook and Book Antiqua as my top two. If you want a tie-breaker between these two, Century Schoolbook has the imprimatur of the U.S. Supreme Court.

In a tie for third or fourth place (depending on whether Sitka Text makes the top group) are Calisto MT and Cambria. If you’re looking for a tie-breaker, Calisto MT is on Butterick’s A list, while Cambria is on his C list. While Cambria looks a bit compressed horizontally compared to the other fonts, Calisto MT takes up roughly the same amount of space. So if you’re subject to a page limit instead of a word-count limit, one of these two might enable you to squeeze under the page limit.

I found High Tower Text to be a bit small compared with the other fonts, at least in 12-point. It looked better when I converted it to 14-point. So in 14-point, it might work for a U.S. Fifth Circuit brief. But its small size makes me think that some readers may find it harder to read, which could lead to a loss of fluency.

Can a winner appeal?

Let’s say a party wins a judgment in the trial court, but along the way, the trial court makes findings unfavorable to the winning party. Can the winning party appeal?

That question came up in a recent opinion from the U.S. Fifth Circuit, In re Riverstone Resor, LLC (Azhar Chaudhary Law Firm, P.C. v. Ali), No. 23-20362 (5th Cir. Dec. 9, 2024). The Fifth Circuit’s answer in that case was “no” according to the general rule, though the court acknowedged a “handful of situations” where the answer might be “yes.”

The case involved a dispute between a person and his former lawyer, which found its way to bankruptcy court. The bankruptcy court found the lawyer’s testimony to be “mostly a lie” and in at least one instance “nonsensical.” But the bankruptcy court rendered judgment dismissing the claim against the lawyer on statute-of-limitations grounds. Everyone appealed to the district court, which affirmed the bankruptcy court’s judgment and entered a final judgment in the lawyer’s favor. After that, everyone appealed to the Fifth Circuit.

The Fifth Circuit dismissed the lawyer’s appeal on grounds that the lawyer and his law firm lacked standing to appeal. They had “won a take-nothing judgment—a ‘full victory’ for a defendant—after the bankruptcy court concluded that the statute of limitations had expired on any claims that Ali [the former client] had asserted.” Slip op. at 7. Since there was nothing in the judgment itself unfavorable to the lawyer, the lawyer could not appeal it:

“It is more than well-settled that only an aggrieved party may appeal a judgment.” Cooper Indus., Ltd. v. Nat’l Union Fire Ins. Co. of Pittsburg, 876 F.3d 119, 126 (5th Cir. 2017) (cleaned up). A party is generally not “aggrieved” when it wins a favorable judgment, even if the trial court made “subsidiary finding[s] or conclusion[s]” that were unfavorable to the party. Id. That’s because “appellate courts review judgments, not opinions.” United States v. Fletcher ex rel. Fletcher, 805 F.3d 596, 602 (5th Cir. 2015). A winning party “may not appeal for the sole purpose of seeking a more favorable opinion from the [trial] court.” Id. at 604. [Slip op. at 7.]

The Fifth Circuit described some exceptions to this general rule (none of which applied in the case before it):

• if the judgment itself contains prejudicial language on issues immaterial to the disposition of the case
• where collateral estoppel (issue preclusion) may harm the appellant in future proceeding
• where the appellant will suffer financial loss as a result of the judgment
  [Slip op. at 8.]

The Fifth Circuit refused to review dicta in the bankruptcy court’s reasons for judgment because it was not the court’s role “to nitpick a [bankruptcy] court’s order sentence-by-sentence.” Slip op. at 8, quoting Flight Options, L.L.C. v. Int’l Bhd. of Teamsters, Local 1108, 873 F.3d 540, 546 (6th Cir. 2017).

Rearranged rehearing rules in the U.S. 5th Circuit

Since I can remember, the Federal Rules of Appellate Procedure had two rules for rehearing: FRAP 35 for en banc rehearing,¹ and FRAP 40 for panel rehearing. Effective last Sunday, December 1, the substance of FRAP 35 was moved to and incorporated in a new FRAP 40, governing both petitions for en banc hearing or rehearing and petitions for panel rehearing. The U.S. Fifth Circuit followed suit, amending its local rules to merge 5th Cir. Rule 35 into a new 5th Cir. Rule 40. To read new FRAP 40 with new 5th Cir. R. 40, follow this link. To read just new 5th Cir. R. 40, follow this link. Finally, to read the general docket order promulgating the amendments to the 5th Circuit rules, follow this link. All the linked-to documents include the 5th Circuit’s internal operating procedures for disposing of rehearing petitions; those are worth reading for anyone thinking about applying for rehearing in the 5th Circuit.

________

FRAP 35 also allowed for petitions for initial hearing en banc.

What happens when an appellant fails to pay the appeal costs

In Louisiana courts, appeals cost money—even excluding attorney fees. The appellant is responsible for paying the cost of preparing the record for the appeal. Immediately after the order of appeal is granted, the clerk is supposed to estimate the costs of preparing the record and mail a bill for the estimated costs to the appellant. The appellant then has 20 days from that mailing to either pay the estimated costs or file a motion to reduce the costs. If the appellant fails to do either timely, the trial court can either dismiss the appeal on grounds of abandonment or grant a 10-day time for the appellant to pay the appeal costs. See La. Code Civ. P. art. 2126. If only part of the trial-court record is needed for the appeal, the appellant has the option to designate the record and serve a statement of points on which the appellant will rely. See id. arts. 2128 and 2129. But to go this route, the appellant must file its record designation within 3 working days after taking the appeal. Id. art. 2128.

What happens if the appellant fails to do any of these things timely. If you ever find yourself in this situation, either as appellant or appellee, then you’ll want to read the Louisiana First Circuit’s recent decision in Covington v. Clark Sand Co., 2024-CA-0485 (La. App. 1 Cir. 11/13/24). Besides compiling other cases on this topic, it reminds us that Article 2126 “is not jurisdictional, but is a procedural vehicle designed solely for the efficient administration of the court.” Id., p. 5. Its purposes are “to dismiss the appeal as abandoned, in those cases in which the appellant files a timely appeal and thereafter decides not to pursue it,” and “to ensure prompt payment of costs of appeal by dilatory appellants.” Id., p. 6. “The focus of trial courts in deciding Article 2126 motions to dismiss should be on securing payment of costs in order to move appeals forward rather than on dismissing appeals, although obviously not abandoned, simply because a motion was filed after expiration of the twenty-day period for paying costs.” Id. 

In Covington, the First Circuit affirmed dismissal of the appeal under Article 2126. The would-be appellant never paid the original bill for estimated appeal costs (over $17,000), and the appellant’s attempt to reduce the costs by designating the record for appeal was about 80 days too late. Although the trial court signed an order allowing the belated record designation, the First Circuit held that the trial court had no authority to do so after the 3-day period in Article 2128 had expired. Id., p. 7 n. 5.

The lesson for potential appellants is clear: Don’t blow off the deadlines in Articles 2126 and (if applicable) Article 2128. If you want to designate the record for appeal, do so within 3 days of taking the appeal. And when you get the bill for estimated appeal cost, do one of two things within 20 days of its mailing: (1) pay it; or (2) file a motion to reduce the cost. If you blow all these deadlines, you risk dismissal of your appeal. 

The lesson for potential appellees: if your opponent blows the deadlines in Articles 2126 and 2128, take a deep breath, dust off Covington, and read Covington and the cases it cites. Move to dismiss the appeal, realizing that dismissal is not automatic—the trial court may (and perhaps should) grant the appellant 10 more days to pay the bill for estimated appeal costs. 

eAccess at the La. 5th Circuit

The Louisiana Fifth Circuit now offers on-line access to public case records. For a subscription fee, it allows to court filings related to an appeal or a writ application. If you don’t want to subscribe, you can still use it to download a copy of an appeal record or a writ application for a one-time fee. To read the flyer on this new service, follow this link. To register, follow this link.

Coyote v. Acme Co.

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.

New U.S. 5th Circuit rule for filings requiring prompt action

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.