In wandering around the Louisiana Supreme Court’s web site today, I came across the Court’s 2020 Annual Report. The report includes statistical data about the volume and disposition of cases in the Supreme Court and the Courts of Appeal. If you want to know the odds of having your writ application granted, that’s where you’ll find the numbers. If you want to research statistics from prior years, follow this link to prior annual report going back to 1998.
Yesterday the Louisiana Supreme Court accepted a pair of certified questions from the U.S. Fifth Circuit. The underlying case, Doe v. Mckesson, arose from a Black Lives Matter protest that, according to the complaint, descended into a riot. The complain alleges that one of the protesters (identity unknown) threw a chunk of concrete, hitting a police officer in the head and causing brain damage and other injuries. The officer sued DeRay Mckesson as the alleged organizer of the protest for negligently triggering the riot. The certified questions:
- Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party?
- Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana’s Professional Rescuer’s Doctrine bars recovery under the facts alleged in the complaint?
The case has had an interesting procedural history. The district court dismissed the suit on First Amendment Grounds. A three-judge panel of the Fifth Circuit reversed. The equally divided Fifth Circuit denied en banc rehearing. Mckesson petitioned the U.S. Supreme Court for certiorari, raising the question “whether the theory of liability adopted by the Fifth Circuit violates the First Amendment.” The U.S. Supreme Court vacated the panel opinion. The Court concluded that “the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented.” Translation: “The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances in the first place.” The Court then wrote for four paragraphs extolling the benefits of certifying difficult state-law questions to the state supreme court, and remanded “for further proceedings consistent with this opinion.” Consistently with the Supreme Court’s opinion, the Fifth Circuit certified the questions, and the Louisiana Supreme Court accepted them.
Here’s another lesson for anyone participating in a Zoom oral argument: Always assume that your camera is on.
A lawyer in Michigan learned this lesson the hard way. While watching a Zoom oral argument, he experienced a technical glitch with his computer screen. In frustration, he gave his computer the middle finger. He didn’t realize that, despite whatever problems he was having with his display, his camera was working fine and was live. So the appellate panel saw his gesture and interpreted it as flipping off the court or his opponent (who was arguing at the time) and fined him $3,000. Stories about this incident are at the ABA Journal and the Detroit Free Press.
The lesson: If you’re on Zoom and don’t want to be seen, learn how to turn off your camera. If your camera has a built-in lens cover, use it; if not, consider using a sticky note to cover the lens. And if you share your computer with anyone, make sure no one has turned on a video filter.
Under federal rules governing briefs, the statement of the case includes the statement of facts. See Fed. R. App. P. 28(a)(6). But in Louisiana appellate courts, the Uniform Rules distinguish the statement of the case from the statement of facts. See Unif. R. 2-12.4(A)(4) and (7). In this post, I’ll try to explain what the statement of the case should do and, along the way, distinguish it from the statement of facts.
Under Uniform Rule 2-12.4(A)(4), the statement of the case must state “the nature of the case, the action of the trial court and the disposition ....” In his book Winning on Appeal, Judge Ruggero Aldisert offered this guidance for writing a statement of the case:
A succinct statement of the case in your brief tells the appellate court “how you got here.” In this portion of the brief you verify the procedural history of the case by answering these questions:
- Who: Who won in the trial court? Who is taking the appeal?
- What: What is the general area of law implicated in the appeal, and what specifically are the issues?
- Where: Where has the case been so far? A trial court, administrative agency or intermediate court?
- When: When was the alleged error committed? During the pre-trial, trial or post-trial stage?
- How: How was the case resolved? By summary judgment, a directed verdict, a jury verdict or a nonjury award?
Ruggero J. Aldisert, Winning on Appeal § 9.1, at 147 (rev. 1st ed.).
In addition to these points, remember where the statement of the case fits into the brief’s structure: it immediately precedes the assignments of error and issues for review. So in addition to what’s required by the Uniform Rules, the statement of the case should provide context to help the reader understand the assignments of error and issues for review. If done right, it helps the reader view the case from your perspective without being overtly argumentative.
For an example of a statement of the case, follow this link. This example comes from a brief medical-malpractice case (all names changed). The marginal comments point out where the writer tried to convey the information required by Rule 2-12.4 and suggested by Judge Aldisert. The writer also attempted to provide enough information for the reader to understand—on the first read—the assignments of error and issues for review, which immediately followed. It includes a broad overview of the case’s facts; the details (with supporting record citations) are in the statement of facts.
There’s a bill in the Louisiana Senate that, if approved by two-thirds of both houses of the Legislature and a majority of voters, would amend the Louisiana Constitution to expand the Louisiana Supreme Court from seven to nine justices, effective January 1, 2025. According to the Louisiana Illuminator, the bill had bipartisan support. The Illuminator gives this summary of the reasons for this proposal:
Both Republicans and Democrats are hoping to gain something from the bill, and lawmakers see it as an opportunity to have some control over the redrawing of state Supreme Court district lines before the U.S. Supreme Court does it for them. Federal voting rights lawsuits are still pending over the demographic makeup of Louisiana’s current districts. They allege that current district lines dilute the voices of Black voters. Democrats, particularly the Legislative Black Caucus, see the bill as an opportunity to gain more representation on the state’s highest court, while Republicans want more equal populations among the districts.
Yesterday, the Louisiana Supreme Court announced the appointment of its new clerk of court, Veronica Odinet Koclanes. She will succeed the current clerk, John Tarlton Olivier, when he retires at the end of this year, and will be the first female clerk of court in the LASC’s 208-year history. To read the Court’s press release about Ms. Odinet Koclanes, follow this link.
Two weeks ago, the U.S. Fifth Circuit issued an interesting decision about the court’s “rule of orderliness,” which is another name for law of the circuit: Douglas v. Nippon Yusen Kabushiki Kaisha, No. 20-30382 (5th Cir. Apr. 30, 2021). The issue was one for civil-procedure fans: the proper framework for analyzing personal jurisdiction under the Due Process clause of the Fifth (as opposed to Fourteenth) Amendment. Long story short: the panel agreed that the plaintiffs’ argument, but reluctantly followed circuit precedent, which led to a contrary result. In a concurring opinion, Judge Elrod (joined by Judge Willett) suggested that "[t]his case presents a good vehicle for our en banc court to correct our course ....”
For lawyers practicing in the Fifth Circuit, this case is a good lesson on how binding circuit precedent is in the Fifth Circuit. If you’re looking to overrule circuit precedent, you might save time by move for en banc hearing in the first instance under Fed. R. Civ. P. 35.
Hat tip to my colleague Martin Stern for spotting this case.
Today, I gave a one-hour CLE presentation on appellate practice for the Louisiana State Bar Association’s Bridging the Gap webinar for newly sworn-in lawyers. For the participants and anyone else who may be interested, here are some bonus goodies.
First, here are some resources on typography:
- Painting with Print by Ruth Anne Robbins. This 2004 article changed the way I think about typography in everything I write.
- The U.S. Seventh Circuit’s Requirements and Advice for Typography in Briefs and Other Papers. This article is an introduction to typography and a good source of tips to make your briefs and motions look better.
- Typography for Lawyers, by Matthew Butterick. Matthew is the leading authority on this stuff. I highly recommend his book to any lawyer who cares about making a good impression.
Next, here are some sample briefs and motions. I offer these with the caution to avoid over-reliance on others’ work product for other cases.
- Motion for extension of briefing deadline
- Request for oral argument (letter)
- Request for oral argument (pleading)
- Appellant's original brief
- Writ application to La. Supreme Court
Finally, in case you missed the presentation:
Last week, the U.S. Third Circuit penalized a lawyer for filing an appellate brief that, in the court’s view, was no more than a “cut-and-paste” version of his district-court brief. Conboy v. U.S. Small Business Admin., No. 20-1726 (3d Cir. Mar. 19, 2021). The same lawyer responded to a motion for sanctions in the Third Circuit by recycling his argument against sanctions in the district court. Id., slip op. at 8. The court faulted the lawyer “for recycling meritless arguments without engaging the District Court’s analysis.” Id., slip op. at 9. Attached to the court’s opinion are redlines showing the differences (or lack of them) between the lawyer’s district-court brief and his Third Circuit filings.
From time to time, probably all of us have recycled trial-court arguments for appellate briefs and writ applications. When you do that, make sure to adapt them for the appellate court. The lawyer in Conboy didn’t do that. Remove stuff that has become irrelevant or moot, and add whatever is necessary to respond to the district court’s judgment or your opponent’s argument. Uncritical copying and pasting is not a good way to win an appeal; in some courts (like the U.S. Third Circuit), the result may be worse than merely losing the appeal.
I’ll close this post with some closing words from the Third Circuit:
It’s not easy to become a lawyer. The practice of law is challenging, and even the best lawyers make mistakes from time to time. So we err on the side of leniency toward the bar in close cases. But the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.
The ABA Journal has an interesting article about a third-year law student who recently argued a case in the U.S. Fourth Circuit through American Sign Language. She used two interpreters: one to translate her argument into spoken English for the judges, and another to translate what other people said (the judges and opposing counsel) into ASL. To read the ABA Journal article, follow this link.