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.


Feb. 17 court closures

The Louisiana Supreme Court and several courts of appeal are closed today because of the cold weather and related problems (dangerous traveling conditions, loss of electricity). Follow these links to orders or announcements of court closures

I haven’t seen any announcement yet from the Louisiana Fourth or Fifth Circuit. But according to the Louisiana Supreme Court’s announcement, “the Commissioner of Administration announcing that state offices will be closed statewide Wednesday, February 17th.”


Court closures for weather, Lundi Gras, or Presidents’ Day

Here are some court closures to pass along:

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p.s. This afternoon, the Louisiana Second Circuit issued another order. This one extends the weather-related closure through tomorrow, February 16, reopening on February 17. To view or download a cop of this order, follow this link.


Appellate CLE offered by the New Orleans Bar Association

If you’re looking for appellate CLE, the New Orleans Bar Association has an inexpensive offering for you: a one-hour discussion of appellate practice with a pair of Louisiana chief judges: Chief Judge McKay of the Fourth Circuit and Chief Judge Chehardy of the Fifth Circuit. Attorneys Kelly Becker and Leigh Ann Schell will moderate. It’s only $20 for NOBA members and $40 for non-members. It’s going to be a Zoom webinar, so no travel time or expenses. For more information or to register, follow this link.