For “Bridging the Gap” participants

This morning, I gave my semi-annual presentation on appellate practice for the Louisiana State Bar Association’s Bridging the Gap seminar for new lawyers. For them and anyone else who may be interested, here are the bonus materials that I promised:

Below are links to downloadable PDFs of sample appellate briefs and pleadings. For reasons stated during the seminar, please do not follow these slavishly; the rules may have changed since these were written.


Can you appeal a denial of summary judgment?

Can you appeal a trial court’s denial of summary judgment? Normally the answer is “no.” The reason is that a denial of summary judgment is an interlocutory judgment, not a final judgment, and is therefore not appealable. See La. Code Civ. P. art. 2083.

But under a line of Louisiana First Circuit cases, there’s an exception to this rule. The exception occurs when the parties file cross-motions for summary judgment, and the trial court grants one motion while denying the other. If the summary judgment granted by the trial court is appealable, then the appellant can also appeal the denial of the cross-motion for summary judgment. This line of cases includes the following:

I don’t recall any cases on this topic from other circuits. If you know of any, please send me an email or leave a comment.


The Song Remains the Same—Or Doesn’t

Did Led Zeppelin plagiarize another song in writing “Stairway to Heaven”? A while back, a federal jury in California jury found that they didn’t. Last Friday, the Ninth Circuit reversed and remanded for a new trial. Skidmore v. Led Zeppelin, No. 16-56057 (9th Cir. Sept. 28, 2018). The dispute arose because of similarities between “Stairway to Heaven” and the song “Taurus,” written by Randy Wolfe and performed by Spirit. I haven’t read the decision yet and probably won’t comment on it here, but I thought I’d share it here for any music lovers and guitar players who may be interested.

Here’s a video of “Taurus.” If I did this right, it should start at 0:45, where it has a chromatically descending bass line similar to that in the intro to “Stairway.”


Rehearing from a writ denial?

Under Uniform Rule 2-18.7, a Louisiana court of appeal will not consider an application for rehearing when the court has denied an application for a supervisory writ. The rule states that the court will consider rehearing when the court has done one of the following things:

  1. Granted a writ application on the merits;
  2. Dismissed an appeal; or
  3. Ruled on the merits of an appeal.

Since Rule 2-18.7 doesn’t allow for rehearing following a writ denial, the courts of appeal will either deny or refuse to consider rehearing following a writ denial.

But in a recent decision, the Louisiana Third Circuit may have created an exception to this rule. In Trapp v. Allstate Property & Casualty Insurance Co., 18544 (La. App. 3 Cir. 9/19/18), 2018 WL 4472472, 2018 La. App. LEXIS 1764, 2018 BL 338092, the trial court rendered a partial summary judgment on liability, holding a defendant 100% at fault for an automobile accident. The defendant applied to the Third Circuit for a supervisory writ. According to the Third Circuit’s decision, the court initially denied the writ, but later changed its mind on rehearing:

We initially denied the writ, incorrectly believing that the Defendants-Relators had an adequate remedy on appeal. However, we granted rehearing based on our determination that the partial summary judgment on liability did not constitute an appealable judgment because it was not certified as a final judgment by the trial court pursuant to La. Code Civ. P. art. 1915(B).... Therefore, we will address the merits of the writ.

18-544, p. 1. What gives? According to the prior order granting rehearing, the court originally dismissed the writ application rather than deny it.

I don’t know what to make of this. Usually, “adequate remedy on appeal” is a reason for denying an application, not dismissing it. Perhaps the court deemed the dismissal of a writ application to be analogous to the dismissal of an appeal, and thus considered rehearing under Uniform Rules 4-8 and 4-9. Under Rule 4-8, the rules applicable to appeals fill any gaps in the rules governing writ applications. And under Rule 4-9, the rules governing rehearing in appeals apply to writ applications.


Jurisdictional statements in applications for a supervisory writ

In my last post, I talked about the jurisdictional statement in an appellant’s brief. Today, the topic is the jurisdictional statement in an application for a supervisory writ.

Jurisdictional statements in writ applications are governed by Uniform Rule 4-5(C)(2). This rule is not as detailed as Rule 2-12.4(A)(3), which governs jurisdictional statements in briefs. Rule 4-5(C)(2) just says that the writ application must include “a concise statement of the grounds on which the jurisdiction of the court is invoked ....” Still, by analogizing to Rule 2-12.4(A)(3), we can conclude that the jurisdictional statement in a writ application must accomplish at least one thing: it must prove that the court of appeal has supervisory jurisdiction to review the judgment at issue. This usually means proving (not just saying) hat the writ application is timely under Uniform Rule 4-3.

Now, timeliness of a writ application can get complicated because it is determined by two variables: (1) notice of judgment as determined by La. Code Civ. P. art. 1914, and (2) the return date set by the trial court for filing the writ application. For tips on navigating this sometimes tricky terrain, see A Writ in Time (51 La. Bar J. Feb./Mar. 2004). Generally, the writ application must be filed within the return date set by the trial court, and the return date set by the trial court must be no more than 30 days after notice of judgment as determined by Article 1914.

Getting back to the topic of this post: the jurisdictional statement in the writ application must do the following things:

  1. Establish the date that notice of judgment occurred under Article 1914.
  2. Prove that the notice of intent was filed timely, that is, no more than 30 days after notice of judgment under Article 1914.
  3. Establish the return date set by the trial court for filing the writ application.
  4. State (truthfully!) that the writ application itself was filed within the return date set by the trial court.

Each of the above four things should be proved by a citation to a specific page in the appendix to the writ application. For example, if the ruling in open court constituted notice of judgment, your writ application should include the minute entry or hearing transcript reflecting the judge’s ruling in open court, and your jurisdictional statement should cite the pages in the appendix where the court can find that transcript page or minute entry. If the judge ordered the judgment to be reduced to writing, your writ application should include documentation of that order (usually a hearing transcript, sometimes a minute entry), and your jurisdictional statement should cite the page in the writ application’s appendix where that order can be found. Your jurisdictional statement should also include a citation to the pages in the appendix where the court of appeal can find the filed-stamped copy of your notice of intent to seek a supervisory writ and the trial court’s order setting the return date.

In short, the jurisdictional statement should include all information and all appendix citations that the court of appeal needs to conclude that the writ application was filed timely under Rule 4-3.


How to write a jurisdictional statement

In Louisiana appellate practice, the appellant’s brief and the relator’s writ application must include a jurisdictional statement. To get this simple part of a brief or writ application right, you need to know the governing rules and—equally important—the purpose of the jurisdictional statement.

In both a brief and a writ application, the jurisdictional statement serves one and only one purpose: to prove (not just say) that the court of appeal has jurisdiction. Proof of jurisdiction is like proof of any other argument: it requires citation of legal authorities and assertion of facts supported by record citations (or, for a writ application, citations to specific pages in the appendix).

In an appeal brief, proof of appellate jurisdiction means proof that (a) the judgment to be reviewed is appealable; and (b) the appeal was taken timely under the applicable law. Don’t take my word for it: read Uniform Rule 2-12.4(A)(3):

The brief of the appellant shall contain, under appropriate headings and in the order indicated:

...

(3) a jurisdictional statement setting forth the constitutional and statutory basis for the court to exercise appellate jurisdiction, with citations to applicable provisions. The jurisdictional statement shall also include the dates of the judgment appealed and of the motion and order for appeal to establish the timeliness of the appeal and the following, as applicable:

(a) an assertion that the appeal is from a final appealable judgment and, if the appealability is dependent upon a designation by the trial court, a reference to the specific page numbers of the record where the designation and reasons for the designation are to be found, or

(b) an assertion that the appeal is from an interlocutory judgment or order which is appealable as expressly provided by law, or

(c) an assertion of information establishing the court of appeal's jurisdiction on some other basis ....

When citing the law supporting your right to appeal, be as specific as possible. If it’s a suspensive appeal, cite La. Code Civ. P. art. 2123. If it’s a devolutive appeal, cite La. Code Civ. P. art. 2087. If it’s an appeal from a preliminary injunction, cite La. Code Civ. P. art. 3612. If it’s an appeal from a city or parish court, cite La. Code Civ. P. art. 5001 and 5002. If it’s an appeal from an interlocutory judgment that’s appealable “as expressly provided by law,” cite the specific statute or code article that makes the judgment appealable.

Also, any assertion of a jurisdictionally significant date should be supported by a record citation. For example, if the notice of judgment triggers the appeal delay, cite the record volume and page where the notice of judgment can be found. And of course, cite the record volume and page where the motion for appeal and order granting the appeal can be found.

Sometimes, a timely motion for new trial interrupts the appeal delay. If so, your jurisdictional statement should refer to the timely filing of the motion for new trial and the date of the notice of judgment denying new trial, with supporting record citations.

In short, the jurisdictional statement should include all the facts (supported by record citations) and all the law needed to establish the court of appeal’s appellate jurisdiction. 

That’s enough for one blog post. My next one will discuss the jurisdictional statement in an application for a supervisory writ.

For prior posts on this topic, see my posts of 12 July 2017 and 5 January 2013.


How to cite Notorious B.I.G. (and other recordings)

Let’s say you want to quote Bob Dylan’s lyrics in a brief. (You wouldn’t be the first.) If you do, you’ll want to get the citation form right. You could look it up in the Bluebook (19th ed., Rule 18.7.1) or your ALWD Guide to Legal Citation (5th ed., Rules 28.3–28.5). Or you could just imitate Judge Don Willett of the U.S. Fifth Circuit, who cited Notorious B.I.G. in footnote 8 of this recent opinion.

For briefs, cite a single by artist name (plain type), song name (italics), and parenthetical with the recording company and year of release. To cite a song on an album, put a comma after the song name, followed by “on [album name]” in italics. Thus, for a brief:

R.L. Burnside, Shake ’Em On Downon Too Bad Jim (Fat Possum Records 1994).

If you’re writing for a law-review article—or if you want to be like Judge Willett, put the artist’s name and album name in large and small caps instead of italics.


No reasons for judgment? Here’s what you do.

Q. Let’s say that a trial court renders an appealable judgment against your client. You want to appeal, and you want the record to include the trial court’s written findings and reasons for judgment. So you file a timely request for written findings and reasons under La. Code Civ. P. art. 1917, but the trial court fails to issue written reasons. What do you do?

A. “[T]he proper remedy for a trial court’s failure to provide written reasons for judgment, when a timely written request to provide reasons has been filed, is by writ or a motion for remand.” Wooley v. Lucksinger, 2009-0571, p. 75 (La. 4/1/11), 61 So. 3d 507, 570; see also id. n. 160 (collecting cases).


Free CLE stuff for “Bridging the Gap” participants

This morning, I gave my semi-annual presentation on appellate practice for the Louisiana State Bar Association’s Bridging the Gap seminar for new lawyers. For them and anyone else who may be interested, here are the bonus materials that I promised:

Below are links to downloadable PDFs of sample appellate briefs and pleadings. For reasons stated during the seminar, please do not follow these slavishly; the rules may have changed since these were written.