On Zoom = on the air

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.


How to write a statement of the case

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.


Proposed expansion of the LASC from 7 to 9 justices

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. 


The U.S. Fifth Circuit’s “Rule of Orderliness”

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.


For “Bridging the Gap” participants

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:

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

Finally, in case you missed the presentation:


Don’t recycle your trial-court brief in the appellate court

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.

 


Oral argument using ASL

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.


A plug for the LSBA Advanced Appellate Practice webinar

If you’re looking for appellate CLE, then please consider registering for the Louisiana State Bar Association’s upcoming Advanced Appellate Practice Webinar, to be held on the afternoon of April 9, 2021. The program offers two hours of appellate CLE. In the first hour, attorney Thomas Flanagan will interview newly elected Supreme Court Justice Piper Griffin. The second hour will be a panel presentation on how to make every part of your brief persuasive, from cover to conclusion. The panel includes Judge Guy Holdridge of the Louisiana First Circuit, Judge Sandra Cabrina Jenkins of the Louisiana Fourth Circuit, attorney Kelly Becker of Liskow & Lewis, and me. To view more information about the program or to register online, follow this link.


Federal appellate jurisdiction in abstention cases

Under 28 U.S.C. § 1447(d), “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ....” Let’s say that plaintiff sues defendant in Louisiana state court, the defendant removes the case to federal court, and the plaintiff moves for remand. The district court finds that it has subject-matter jurisdiction, but it grants the remand anyway by applying an abstention doctrine (in this instance, Burford). The defendant appeals. Does the U.S. Fifth Circuit have appellate jurisdiction to review the abstention-based remand?

According to a decision released yesterday, the answer to the appellate-jurisdiction question is “yes.” Grace Ranch, LLC v. BP America Production Co., No. 20-30224, at 10–14 (5th Cir. Feb. 24, 2021). The Fifth Circuit concluded that the barring of review under § 1447(d) applies only to removals described in § 1447(c), namely remands for defects in the removal procedure or for lack of subject-matter jurisdiction. Since a remand based on abstention fits neither category, it can be reviewed.

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p.s. 26 Feb. 2021: The Fifth Circuit released an updated version of its opinion today. To download a copy of the revised opinion, follow this link. The discussion of appellate jurisdiction starts on page 11.