Delay in getting a return date for a writ application

Let’s say that you’re applying to a court of appeal for a supervisory writ. You know that, under Uniform Rule 4-3, the return date can’t be more than 30 days after notice of the trial court’s judgment. You also know that your writ application has to include the trial court’s return date order so that the court can determine whether the application is timely. So twenty days after notice of judgment, you file your notice of intent. But for whatever reason, the 30th day arrives without the judge’s having signed the return-date order. What do you do?

There’s a case for this situation: In re Gramercy Plant Explosion at Kaiser, 06-C-555 (La. App. 5 Cir. 7/31/06), 2006 WL 8453927. In Kaiser, the applicant’s counsel* filed the writ application with a conformed copy of the notice of intent and, in the jurisdictional statement, an explanation of the problem with getting the judge to sign the order. Here’s what the court said:

The judge who has been given notice of intention to seek writs shall immediately set a reasonable return date within which the application shall be filed in the appellate court. Uniform Rules-Courts of Appeal, Rule 4-3. However, relator’s timely notice of intention to seek writs was denied by the trial court. When a relator makes a timely and genuine attempt to obtain the judge’s signature on the order for which review is sought, the writ should not be refused. See, City of New Orleans v. Benson, 95-2436 (La.App. 4 Cir. 12/14/95), 665 So.2d 1202. Accordingly, the writ will be considered. 

Note, though, that you must show “a timely and genuine attempt to obtain the judge’s signature” on the return-date order. To do that, you’ll likely need a conformed copy of the notice of intent with proposed return-date order to show that you did your part timely. I’d also suggest filing the notice of intent soon enough that the judge actually has an opportunity to sign the return-date order within the 30-day period. Except for real emergencies, e-filing the notice of intent after 5 p.m. on the 30th day may not qualify as “a timely and genuine attempt to obtain the judge’s signature.”

_____________

*Happened to be me.


New local rules in the La. 2nd Circuit

The Louisiana Second Circuit has a handful of new and amended local rules and that will become effective on June 1.

  • New Local Rule 16 sets an absolute 15-day deadline to a non-emergency writ application. That’s absolute as in “no extensions of time to file a response will be granted.” The new rule comes with the caveat that the court may “may adjudicate the application at any time after receipt, with or without the benefit of a response.”

  • Amended Local Rule 9 requires lawyers to show up for oral argument when oral argument is docketed. To be excused from appearing for oral argument, a lawyer must file a motion to waive oral argument. Failure to appear for oral argument without filing a timely motion to waive oral argument will cost you up to $200.

  • Amended Local Rule 4-1 implements a new schedule of fees charged by the clerk of court. The court’s web site says that the only change is in the numbers of copies required for various filings (generally the original and only one copy now required for some of the listed items).

  • Speaking of numbers of copies, new Local Rule 3-1 requires only an original plus one copy for “[a]ll filings, in appeals or writs ....” That’s if you file on paper. If you file electronically, “that filing will be deemed the original and a duplicate is not required.”

  • Finally, amended Local Rule 2-8 sets certain conditions on lawyers who borrow the record from the clerk of court. Under the amended rule, the exhibits remain at the courthouse—you have to go there to look at the exhibits. You have to return the record before or when you file your brief; the clerk won’t consider your brief filed unless you’ve returned the record. Also, you can’t borrow the record once the case is submitted except to prepare an application for rehearing to the Second Circuit or a writ application to the Louisiana Supreme Court; and then, you can only have the record for five days.

On that last item: it’s usually a good practice to make a copy of the record as soon as you get it, either on paper or scanned to PDF. Once you have your own copy, return the record promptly; don’t wait until your brief is due. That way, you reduce the risk of having your brief deemed untimely; plus you avoid the trouble of having to re-borrow the record for rehearing, LASC writ practice, and (if writs are granted) LASC merits briefing.


More free CLE stuff

A couple of days ago, I gave my semi-annual presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar for new lawyers. My written materials (PDF copy here) include nuts-and-bolts stuff for handling appeals and writ applications in the Louisiana appellate courts. My slide presentation (PDF copy here) show five principles that I’ve come up with for succeeding in appellate practice, some of which can be transferred to other areas of legal practice. I’m making them available here for anyone who’s interested.


Free CLE stuff

I just finished giving a presentation for the Louisiana State Bar Association’s Jazz Fest seminar. The seminar theme was powerful writing. My presentation focused on use of grammatical structures to either focus or deflect attention on someone or something. For anyone interested in that sort of thing (and who isn’t?), here are links to my written materials and slide presentation.


Ambiguously dated notice of judgment

Today the Louisiana Supreme Court reinstated an appeal that had been dismissed for untimeliness. Schiff v. Pugh, 2022-OC-210 (La. 4/12/22). The issue was doubt over either the date or adequacy of the notice of judgment.

Here’s what happened: In a legal-malpractice case, the trial court granted defendants’ motion for summary judgment. On November 25, 2020, the trial judge signed a final judgment dismissing the case. The bottom of the notice of judgment looked something like this:

Schiff notice of judgment

If notice of judgment was mailed on November 25, the deadline to move for new trial would have been December 7. See La. Code Civ. P. art. 1974. Counsel for both sides did not receive the notice until December 9, 2020. Two days after receiving the notice of judgment, plaintiff filed a motion for new trial. Plaintiff filed his motion for appeal on March 9, 2021, presumably within 60 days after denial of new trial but more than 60 days after the December 7 deadline to move for new trial.

On appeal, the Fourth Circuit issued a rule to show cause why the appeal should not be dismissed as untimely. In response, the plaintiff-appellant made two arguments: first, that the purported notice of judgment was signed by the judge’s law clerk rather than a deputy clerk of court; second, that the purported notice of judgment did not explicitly state that it was actually mailed on November 25, and in fact was not received by counsel until December 9. A majority of the Fourth Circuit panel dismissed the appeal, with Judge Ledet dissenting. The Louisiana Supreme Court granted the plaintiff’s writ application, vacating the Fourth Circuit’s judgment and reinstating the appeal. The LASC found that "the grounds cited by the court of appeal for dismissal of the appeal are not free from doubt," and therefore resolved the doubt in favor of maintaining the appeal.

While this chapter of the story has a happy ending for the appellant, we can all benefit from the appellant’s experience. My suggestion: when there’s uncertainty or ambiguity over when a notice of judgment was mailed or transmitted, always resolve the doubt conservatively. Assume the notice was sent on the same day that the judge signed the judgment unless somethine else unambiguously indicates a later date for sending the notice. 


Clichés: How clichéd writing leads to clichéd thinking

The next issue of the Scribes Journal of Legal Writing will include one of my contributions: Will I Ever See the Day When Lawyers Write without Clichés? The article examines clichés as a species of metaphor and shows how clichéd writing can be both an effect and a cause of clichéd thinking. Good news: if you want to read it, you don’t have to wait for your copy of the Scribes Journal to arrive in the mail. Just follow this link.


Bryan Garner’s most misunderstood advice

(Cross-posted on the New Orleans Bar Association’s web site.)

One of the liveliest debates among brief-writing nerds is whether to put citations in text or in footnotes. Attend any CLE with a panel of judges in the Q&A session, and someone will put this question to the panel—guaranteed.

The person credited with starting this debate is Bryan A. Garner. Twenty-six years ago, in the first edition of his book The Winning Brief, he recommended putting citations in footnotes. That advice persists in the second and third editions. Thus, lawyers who put citations in footnotes cite Garner as their authority, while traditionalists who follow Garner’s advice in other areas beg to differ with him on this point.

My impression: most people on both sides of this debate misunderstand Garner’s advice. People on both sides seem to think that Garner’s advice is simply to relocate the citations from text to footnotes. Thus, people who think they’re following Garner’s advice aren’t. And people who think they’re criticizing his advice are shooting at the wrong target.

To follow Garner’s advice, you can’t stop at relocating your citations. As Garner says in The Winning Brief:

You must rewrite in a way that cues the reader to what your authority is. It’s just that you put this into prose; you work it into your paragraph, while ridding the text of volume numbers and page numbers—and thereby make life easier for the judge who reads your brief.[1]

 Here’s an example from The Winning Brief. First, the “before” version, with citations in text:

Not this:
Courts can treat “custom” and “usage” as the dictionary for technical terms. See In re Envirodyne Indus., Inc., 29 F.3d 301 (7th Cir. 1994) (on appeal from bankruptcy court, the appeals court found that dictionaries, treatises, trade usage (in other words “specialized dictionaries”), and other third party publications, are useful and allowed for defining terms of a contract); Hurst v. Lake & Co., 16 P.2d 627 (Or. 1932) (Supreme Court of Oregon reversed because the court should have allowed evidence of custom and usage in horse meat industry where parties mean that 49.5% protein is equivalent to 50% protein in the industry); Fox Film Corp. v. Springer, 8 N.E.2d 23 (N.Y. 1937) (new trial was granted so court can hear evidence of custom and usage in the industry, put itself in the position of the parties, and use their language to find out the parties’ intent).[2]

If you’re lazy and just move the citation to a footnote—not what Garner recommends—you’d end up with something like this:

Not this either:
Courts can treat “custom” and “usage” as the dictionary for technical terms.19
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19 See In re Envirodyne Indus., Inc., 29 F.3d 301 (7th Cir. 1994) (on appeal from bankruptcy court, the appeals court found that dictionaries, treatises, trade usage (in other words “specialized dictionaries”), and other third party publications, are useful and allowed for defining terms of a contract); Hurst v. Lake & Co., 16 P.2d 627 (Or. 1932) (Supreme Court of Oregon reversed because the court should have allowed evidence of custom and usage in horse meat industry where parties mean that 49.5% protein is equivalent to 50% protein in the industry); Fox Film Corp. v. Springer, 8 N.E.2d 23 (N.Y. 1937) (new trial was granted so court can hear evidence of custom and usage in the industry, put itself in the position of the parties, and use their language to find out the parties’ intent).[3]

No one would call that an improvement. To really follow Garner’s advice, you’d have to rewrite the text to tell the reader what authorities you’re citing. In this example, you’d also want to weave the relevant parenthetical information into the text. The result would look something like this:

But this:
Courts routinely look to industry-specific custom and usage to define technical terms. In In re Envirodyne Indus., Inc.,19 for example, the Seventh Circuit found that trade usage, together with specialized dictionaries, can usefully help determine the meaning of a contract. Similarly, the Supreme Court of Oregon reversed a lower-court ruling for failing to allow evidence of custom and usage when interpreting contractual terms.20 And in Fox Film Corp. v. Springer,21 the New York Court of Appeals granted a new trial so that the lower court could hear evidence of industry custom and usage to determine the parties’ intent.
__________
19 29 F.3d 301 (7th Cir. 1994).
20 Hurst v. Lake & Co., 16 P.2d 627 (Or. 1932).
21 8 N.E.2d 23 (N.Y. 1937).[4]

Note that the text tells the reader the authorities being cited (the Seventh Circuit, the Supreme Court of Oregon, the New York Court of Appeals). What’s relegated to footnotes is the volume-and-page information.

Feel free to agree or disagree with Garner’s advice. Just be sure that you first understand it.

 

[1] Bryan A. Garner, The Winning Brief 180 (3d ed. 2014).

[2] Id. at 185.

[3] Not from The Winning Brief.

[4] The Winning Brief at 185.


LawProse lesson on writing a brief with a team

Yesterday, I received an email from Bryan Garner's company, LawProse, on how to write a brief as a team, with different team members writing different parts of the brief. I thought it was excellent, so I asked Bryan for permission to reprint it here, and Bryan graciously granted permission.

These tips refer to Bryan’s book The Winning Brief. If you don’t already have a copy, get one. And if you’d like to receive emails like this one, just visit the LawProse web site and tap or click where it says “Join our email lists.” 

Without further ado, here is Bryan and LawProse’s suggested method for having a team write a brief.

LawProse Lesson #372

How To Write a Brief with a Team

First, establish deadlines for each step. Then:

Step One: Have everyone draft two to three deep issues, not to exceed 75 words apiece. (See The Winning Brief 104–09 [3d ed. 2014].)

Step Two: The team leader cherry-picks the best issue statements, puts together a master draft using no more than four issues, and circulates it for edits and improvements—insisting that each issue must be 60 to 75 words. (Again, see The Winning Brief.)

Step Three: Have everyone draft point headings that mirror the deep issues, using the style of the U.S Solicitor General’s Office. (See The Winning Brief at 403–22.)

Step Four: The team leader selects the best propositions, edits or rewrites them, and circulates a master draft for improvements. There should be three major propositions—all coolly worded.

Step Five: The team leader assigns each major section of the brief to a different attorney, who researches the law and the record and writes up that section. The attorney most familiar with the record drafts the statement of facts, providing a citation for each sentence and ensuring that there are no argumentative statements there. (See The Winning Brief at 524–26.)

Step Six: Once the parts are assembled, each team member edits the brief—one at a time (not simultaneously)—for cohesion, flow, and persuasiveness. Anything tedious must be eliminated. Meanwhile, the team leader drafts an introduction, a summary of the argument, and a conclusion. All this takes place in one day.

Step Seven: The day before filing, one team member does extensive fact-checking against the record. Another verifies all citations of authority for both form and substance. Another checks the brief against applicable court rules and tries to find leading hornbooks and treatises that might be cited in support of the law. Another reads to ensure that obvious counterarguments have been rebutted. The team leader oversees all final changes—and the preparation of front and back matter (table of authorities, certificate of service, etc.).

Step Eight: Everyone reads with the object of making at least one improvement per page. The team leader accepts or rejects each suggested improvement. Hyperlinks are carefully inserted and tested. The brief is filed.

Congratulations.

Further reading: Bryan A. Garner, The Winning Brief (3d ed. 2014).

© 2022 Bryan A. Garner and LawProse. Reprinted here with permission.