Louisiana Civil Appeals

Stare decisis applies to wrongly decided cases

Yesterday, the U.S. Fifth Circuit rendered an interesting decision touching on both the binding effect of precedent and appellate jurisdiction of a remand order. The long and short of it is, “We think our precedent is wrong, but we have to follow it.” Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337 (5th Cir. July 25, 2024).

Here’s the skinny version of what happened. A law firm sued one of its former lawyers, alleging that he attempted to take firm clients and files with him to a new firm. The law firm filed its suit in state court. The lawyer moved to dismiss the suit under state law, which suspended the expedited discovery sought by the law firm. The lawyer and the law firm then agreed on a protective order, and the lawyer agreed to produce certain document by a specified date.

Before that date arrived, however, the lawyer removed the case to federal court, alleging diversity jurisdiction. The law firm moved to remand, arguing that diversity was lacking and (more pertinently here) that the lawyer waived his right to remove by litigating in state court (i.e. filing the motion to dismiss and agreeing to the protective order). The district court remanded on the second ground—waiver—without reaching the lack-of-diversity issue.

The lawyer appealed the remand, which raised the question whether the Fifth Circuit had appellate jurisdiction to review the remand. This is where things started to get complicated. Under 28 U.S.C. § 1447(d), a remand order ordinarly “is not reviewable on appeal or otherwise ....” But caselaw interprets § 1447(d) in conjunction with neighboring § 1447(c), which authorizes remand for lack of subject-matter jurisdiction or a defect in the removal procedure. Caselaw holds that § 1447(d)’s prohibition of appellate review applies only to remands under § 1447(c), and not to remand orders based on discretionary grounds outside of § 1447(c).

One would think that a waiver-based remand is a non–§ 1447(c) remand: it’s not based on lack of jurisdiction or a defect in the removal procedure, and it involves some exercise of the district court’s discretion. The Abraham Watkins panel thought so, which would mean that it had appellate jurisdiction to review the remand order. But there was a problem with ruling that way: the court’s precedent in In re Weaver, 610 F.2d 335 (5th Cir. 1980). The Abraham Watkins panel “reluctantly” read Weaver “to say that a waiver-based remand order is jurisdictional under § 1447(c) and thus ‘immune from review under § 1447(d).’” Slip op. at 7. Result: the panel dismissed the appeal for lack of appellate jurisdiction.

We probably haven’t heard the last of Abraham Watkins. Judge Duncan wrote a concurring opinion inviting the losing appellant to apply for en banc rehearing: “The proper course is for our en banc Court to unweave Weaver.” Id. at 12. If an en banc Fifth Circuit does not overrule Weaver, that will leave “a 2–2 circuit split on the question whether waiver-based remand orders are reviewable on appeal.” Id. at 7. That would make this case a prime candidate for certiorari by the U.S. Supreme Court.

p.s. Hat tip to Tad Bartlett. If you want to know everything about what’s going on at the U.S. Fifth Circuit, you should subscribe to his blog, Take the Fifth.

This is big.

Today the Louisiana Supreme Court reversed itself on rehearing in Bienvenu v. Defendant 1, 2023-CC-1194. That’s the case testing the constitutionality of legislation reviving claims for sexual abuse of minors after those claims had prescribed. On the first go-round, the LASC split 4–3 in holding the legislation unconstitutional, with Chief Justice Weimer and Justices Crain and McCallum dissenting. On rehearing, the split was 5–2 in favor of upholding the legislation, with Justices Genovese (author of the original opinion) and Hughes dissenting. To read the now-vacated original opinion, follow this link. To read the superseding opinion on rehearing, follow this link. For your court-watching scorecard: the justices who changed their position between the original hearing and the rehearing are Justice Crichton and Justice Griffin.

As you probably know, grants of rehearing in the LASC are rare, and rehearings resulting in a different result are even rarer. That in itself makes this case exceedingly rare. Then there’s the majority’s reasoning on rehearing, which, in the area of Louisiana constitutional law, is a bombshell. If you do any tort litigation in this state, you need to read today’s opinion.

Yes, font choice is important

Does font choice matter in writing an appellate brief? YES! If you don’t believe that, read the U.S. Seventh Circuit’s recent decision in AsymaDesign, LLC v. CBL & Associates Management, Inc., No. 23-2495 (7th Cir. June 3, 2024), starting with the last paragraph on page 4.¹ There, Judge Easterbrook urges lawyers to follow the Seventh Circuit’s advice on typography for briefs, (found here and here). Why?

Judges are long-term consumers of lengthy texts. To present an argument to such people, counsel must make the words easy to read and remember. The fonts recommended in our Handbook and Typography for Lawyers promote the goals of reading, understanding, and remembering. Display faces such as Bodoni or Bernhard Modern wear out judicial eyes after just a few pages and make understanding harder.
[Id. at 6–7.]

What prompted Judge Easterbrook’s sermonette on fonts? The appellant’s counsel in AsymaDesign filed a brief written in Bernhard Modern., “a display face suited to movie posters and used in the title sequence of the Twilight Zone TV show.” Id. at 5. That font has a low x height (the ratio of a lower-case x to the capital letters), elongated ascenders, and short descenders, “not characteristics that conduce to easy reading of long passages.” Id. at 5. To drive home his point, Judge Easterbrook put two paragraphs of his opinion in 16-point Bernhard Modern, to contrast it with the 12-point Palatino Linotype used elsewhere in his opinion. See id. at 6. 

What, then, should lawyers use instead of something like Bernhard Modern? Simple: “Use the most legible face available to you. Experiment with several, then choose the one you find easiest to read.” Id. at 5. There are at least two objective criteria for deciding which font is more legible than another:

• Look for a font with a taller x-height, i.e., where a lower-case x is taller in relation to a capital letter. According to the Seventh Circuit, x height makes “the Bookman and Century families ... preferable to faces in the Garamond and Times families.”
• Looks for a font with good contrast. To my extremely myopic eyes, Cambria has good contrast; Garamond doesn’t.

For further guidance, take a look at Matthew Butterick’s assessment of system fonts. They’re not his first choice—he prefers professional fonts such as his own Equity, used by the U.S. Fifth Circuit. But if you’re stuck with system fonts, then following Butterick’s suggestions will likely make your brief easier to read than your opponent’s.

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Hat tip to my colleague Aaron G. McLeod, a proud user of Equity.

The Rule of Necessity applied in La.

“[W]here all are disqualified, none are disqualified.” Turner v. American Bar Ass’n, 407 F.Supp. 451, 483 (N.D. Tex., W.D. Pa., N.D. Ind., D. Minn., S.D. Ala., W.D. Wis. 1975). Yesterday, the Louisiana Supreme Court applied that maxim to a case where a litigant essentially sought to recuse every judge in Louisiana. Slaughter v. La. State Employees' Retirement Sys., 2024-00358 (La. 5/21/24).

The plaintiff in Slaughter alleges that the Louisiana judges’ supplemental pay from the Judicial Compensation Fund is being improperly included by LASERS in calculating the judges’ retirement benefits. After the case was randomly allotted, the plaintiff moved to recuse the assigned district-court judge on grounds that the judge was a member of LASERS and thus had a financial interest in the litigation’s outcome. The district court denied the recusal motion, sustained defendants’ peremptory exceptions, and dismissed the suit. Plaintiff then took two appeals to the First Circuit, one on the recusal and the other on the merits judgment. At the same time, the plaintiff moved to recuse all First Circuit judges on grounds that all of them had the same financial interest in the case as the district judge. The First Circuit’s chief judge asked the LASC to appoint a judge to her the recusal motion, and the LASC appointed an ad hoc judge for that task. The plaintiff then moved to recuse the ad hoc judge for having the same financial interest as the other judges. I think you can see where this is going—appointment of another ad hoc judge, another motion for recusal, etc.

“Recognizng the inability to resolve this matter through normal procedures,” the LASC intervened to “assume jurisdiction over the recusal issue ....” Slaughter, p. 2. The LASC resolved the recusal issue by applying the Rule of Necessity. The Rule calls for a judge to decide a case even though grounds for recusal exist when no other judge is available to decide the case.  Applying the Rule of Necessity, the LASC denied all of the plaintiff’s recusal motions. “The unique circumstances of the instance case clearly require application of the Rule of Necessity,” the LASC reasoned, since “Plaintiff asserts every sitting judge and retired judge in the state, both at the district and appellate level, may have some potential financial interest in the outcome of the suit.” Id., p. 5. In short, “where all are disqualified, none are disqualified.” Id., indirectly quoting Turner.

What’s needed for a final, appealable judgment

In a recent decision, the Louisiana Fourth Circuit reminds us that a final judgment must be “signed by the judge.” La. Code Civ. P. art. 1911. But not just any judge; the judge who signs must be the judge who presided over the hearing or trial. Lassalle v. Napoleon, 2023-0705 (La. App. 4 Cir. 4/11/24). According to Lassalle, “[a] judgment signed by the wrong judge—a judge who did not preside over the hearing or trial—does not constitute a valid final judgment.” Id., p. 4. 

What happens if the presiding judge leaves office before signing the judgment? There’s a statute for that: La. R.S. 13:4209, which allows a successor judge to sign the judgment if certain requirements are met. Lassalle lists these requirements on pages 4–5, but finds that they were not met in that case.

My suggestion: If you ever need a judgment signed by a successor judge, read and comply with La. R.S. 13:4209. If the Fourth Circuit will be the reviewing court, read and follow Lassalle. If another court of appeal will be the reviewing court, you’d probably do well to read Lassalle and the cases it cites, and follow the strictest set of requirements you find in them. (And before you follow any of my suggestions, read my disclaimer.)

New local rules at the La. 5th Circuit

The Louisiana Fifth Circuit has adopted two new local rules, both effective June 1, 2024.

Under new Local Rule 15, the court will have discretion to give expedited consideration to tutorship and interdiction cases.

New Local Rule 16 governs exceptions to the norm of three-judge panels. Here’s the full text of the new rule:

RULE 16: PANELS

In accordance with Louisiana Constitution, Article V, Section 8(A), the Fifth Circuit Court of Appeal shall sit in panels of three judges, except as follows:

A. A five-judge panel is convened in accordance with Louisiana Constitution, Article V, Section 8(B).

B. A five-judge panel is convened in cases arising under Chapter 9 of Title 18 of the Louisiana Revised Statutes [election contests and challenges] unless an en banc panel is required by law.

C. A five-judge panel, and, if necessary, an en banc panel, is convened if a majority of the judges sitting in a case cannot concur to render judgment.

D. An en banc panel is convened when precedent of the court is to be abrogated.

E. A panel of more than three judges may be convened in all other cases as the court deems necessary. 

“Bridging the Gap” bonus materials

This morning, I’m giving a CLE presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar. For attendees and anyone else who’s interested, here are links to a couple of articles I came across recently that make for good reading. The authors’ names are links to their bios, and the article titles are links to the articles themselves.

• Douglas S. Lavine, Advocacy from the Human Perspective: Advice for Young Appellate Lawyers, 15 J. App. Prac. & Process 243 (Fall 2014).
• Andrey Spektor and Michael A. Zuckerman, Legal Writing as Good Writing: Tips from the Trenches, 14 J. App. Prac. & Process 267 (Fall 2013).

Timeliness of writ application in court of appeal

Here’s a citable decision released today by the Louisiana Supreme Court on the timeliness of a writ application filed in a Louisiana court of appeal. Since the decision is (a) short, and (b) light on facts, I’ll just quote it verbatim:

PER CURIAM

Granted. Although the trial court set the return date more than thirty days from the date of the ruling, the court has authority to extend the deadline under Rule 4-3. See Barnard v. Barnard, 96-0859 (La. 6/24/96), 675 So.2d 734. Relator’s application, filed within the time limit authorized by the trial court, is timely.

Accordingly, the application is remanded to the court of appeal for consideration on the merits. 

Boyer v. Boyer, 2024-CC-00372 (La. 5/7/24). Caution: while I don’t know the facts of this case, my experience is that this works only when the writ applicant files its notice of intent within the original 30-day period in Uniform Rule 4-3. In those instances, when the trial court sets a return date beyond the 30-day period, the courts should treat the order as an implied motion and order to extend the return date, which Rule 4-3 authorizes.

For an excruciatingly detailed discussion on the timely filing of writ applications in the court of appeal, see my 20-year-old La. Bar Journal article on that topic.

Time to oppose an LASC writ application: 15 30 days

Here’s a rule change I just found out about.¹ Before April 1, 2024, the time to file an opposition to a writ application in the Louisiana Supreme Court was 15 days after filing of the writ application. But effective April 1, Rule X § 6 now gives the opposing party 30 days to file an opposition. This expanded time to file an opposition comes with the caveat that “[n]o extensions of this deadline shall be granted unless the party can demonstrate through clear and convincing evidence that the delay was the result of circumstances beyond its control.” An official comment explains the LASC’s rationale for this amendment:

The court is cognizant that in many cases, the prior fifteen-day opposition deadline was too short for opposing parties to adequately respond to issues raised in the application, which has resulted in the filing of motions for extension of time. While the court encourages the filing of oppositions, motions for extension can delay consideration and affect the court’s ability to rule upon applications in a timely fashion. To balance these competing concerns, the fifteen-day opposition deadline has been increased to thirty days, with the condition that no extensions will be permitted. The only exception to this prohibition is for truly exceptional situations where the party can demonstrate through clear and convincing evidence that the inability to file the opposition timely was due to circumstances beyond the party’s control. Circumstances within a party’s control, such as errors in calendaring the delay or conflicting obligations, shall not constitute a basis for extension under this rule.  

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¹ Hat tip to my colleague Martin Stern for this.

TMI—TF: too much information—too fast

I’ll start this post with some axioms: If we’re in the persuasion business, then what we say is far less important than what our audience grasps. If the audience fails to grasp our point, then the persuasion process has failed. And if the audience wants to grasp our point but fails to do so, a possible cause is our failure to communicate our point in a way that the audience can grasp. Thus, if we want to succeed in persuading the audience, then we want to make sure that we’re presenting our case in a way that the audience can readily grasp.

If you’re with me up to here, then you need to know the stuff in Professor Andrew M. Carter’s article The Reader's Limited Capacity: A Working-Memory Theory for Legal Writers, 11 Legal Communication & Rhetoric: J. ALWD 31 (Fall 2014) (PDF download here). In his article, he makes several points that professional persuaders must know. The most important of these is the undeniable fact that humans’s capacity for processing information is limited. That limit applies not only to humans’ capacity to take in new information, but also to their capacity to tie that information to what they already know. Carter offers the metaphor of a juggler. If the juggler tries to juggle too many things at once, the juggler is likely to drop something. So it is when we ask our audience to juggle too many ideas at once: they’re liable to drop something. And what gets dropped will be the point we’re trying to communicate.

To avoid that result, Carter offers what he calls a “cognitive-load theory” of legal writing “to manage the reader’s working memory loads in order to maximize learning and reasoning.” He includes several tips for reducing the cognitive load we impose on our readers. The tips are important, but so is the science behind the tips. The article is only 20 pages long, so it’s well worth your time.