Many readers of this blog devote a substantial part of their practice to appellate litigation. If you’re one of them and if you’ve been practicing for at least five years, please consider applying for certification as an appellate specialist. The Louisiana Board of Legal Specialization recently extended the 2024 application deadline from February 29 to March 15. To find out whether you qualify, follow this link to read the standards. See also this letter from the LBLS Chair, Richard Leefe, to members of the LSBA Appellate Section.
Here’s something I’ve wanted to get off my chest for a long time. It springs from the seemingly endless debates lawyers have about matters of style in writing a brief: Citations in text or in footnotes? How many spaces—1 or 2—after the end of a sentence? What font to use? And so on.
We often answer these questions according to what we like or what we think judges like. In my opinion, that’s the wrong approach to answering these questions. Instead, in making these choices, we should ask ourselves one question: Which choice will be most persuasive?
This approach stems from something we all should agree on: that the brief’s most important purpose is to persuade the judges deciding the case. Judge Ruggero Aldisert made this point well in Winning on Appeal:
Briefs are written for one audience and one audience only: judges and their law clerks.... You write to persuade a court, not to impress a client. You write to persuade a court to your point of view; at a minimum, you write to convince the court to grant oral argument in your case. The key word is “persuasion.” If a brief does not persuade, it fails....
Persuasion is the only test that counts. Literary style, massive displays of scholarship, citations that thunder from the ages, and catchy phrases are uniformly pointless if the writing does not persuade.
[Ruggero J. Aldissert et al., Winning on Appeal 15 (3d ed. 2017).]
Because the brief’s most important purpose is to persuade, the most important consideration in every choice we make as brief writers is this: Which choice will make the brief more persuasive? As Bryan Garner has said, “All aspects of a brief—its basic ideas, its tone, its sentence structure, its word choice, its punctuation, its page layout—matter.” The Winning Brief xiii (3d ed. 2014). All aspects matter for persuasiveness.
Let me give you an example: choice of font. My go-to font is Cambria, which I use whenever the rules allow me to choose the font. Why? Not because I think it looks nice (though I do), but because it has high contrast—the letters stand out from the white background better than in other fonts. Studies in cognitive psychology show that high-contrast text is (no surprise) easier to read, which encourages readers to use System 1 thinking, which makes them more receptive to whatever message the writing conveys. So I choose Cambria not because I find it aesthetically pleasing, but because I have reason to think that it will enhance the persuasiveness of my brief.
How do you know what’s more persuasive? Learning that is a career-long pursuit. I recommend the books listed on the right side of this blog’s home page. Bryan Garner’s books are a good place to start. For an intro to cognitive psychology, check out Daniel Kahneman’s Thinking, Fast and Slow. For lessons in classical rhetoric, check out Classical Rhetoric for the Modern Student by Edward Corbett and Robert Connors and Legal Persuasion by Linda Berger and Kathryn Stanchi. For advice on applying this knowledge to brief writing, I recommend Michael Smith’s Advanced Legal Writing.
So here are the first two commandments of brief writing:
- Persuasiveness matters more than anything else.
- The most important consideration for every choice you make as a brief writer is which choice will be most persuasive.
If you haven’t yet met your CLE quota and are looking for appellate CLE, check out these upcoming offerings:
- On November 8, the LSBA is holding it’s annual Advanced Appellate Practice Seminar in New Orleans, offering 6.25 hours of CLE credit. For details and registration information, follow this link. To download the flyer, follow this link.
- On November 17, LSU is holding its inaugural Appellate Practice Conference in Baton Rouge, offering 6 hours of CLE credit. For details and registration information, follow this link.
For appellate specialists and those intending to apply for appellate specialization in 2024, both seminars qualify for appellate-specialization CLE credit.
Today, the Louisiana Supreme Court issued a significant decision on appellate review of general damages. In Pete v. Boland Marine & Manufacturing Co., 2023-C-170 (La. 10/20/23), the LASC holds that, in determining whether a factfinder abused its discretion in assessing general damages, “an appellate court is to include a consideration of prior awards in similar cases, as well as the particular facts and circumstances of the case under review.” Id., p. 10. Prior cases held that a reviewing court could look to prior cases involving similar injuries only after finding an abuse of discretion, and then only to determine the highest or lowest reasonable award. As the LASC explained in Pete, this left reviewing courts with “no objective, neutral, or equitable way to measure whether a general damage award is, in fact, an abuse of discretion.” Id., p. 8. This led the LASC to find that “the abuse of diiscretion standard lacks parameters and, for that reason, we are compelled to find an approach that includes an element of objectivity.” Id., p. 7.
What this means for appellate practitioners is that prior cases involving similar injuries are now relevant in showing that the award under review is abusively high or low. At the same time, prior awards do not establish a uniform scale. Consideration of prior awards is merely “a starting point. No two cases will be identical. The review of prior awards will simply service to illustrate and supply guidance in the determination of damages.” Id., p. 9.
If you want expedited consideration of your writ application, you should file it as soon as possible. You shouldn't exacerbate or (worse) create the emergency by waiting until the last possible day to file. That’s a matter of courtesy and professionalism. It’s also a matter of self-interest: the last thing you want to do as a writ applicant is antagonize the court by dragging your feet on filing and then insist on an immediate ruling by the court.
In some Louisiana courts, it’s also the rule. A few days ago, the Louisiana Fifth Circuit adopted Local Rule 14. The new rule requires a writ application seeking emergency consideration to be “be filed in this court as soon as possible after the lower court ruling but not more than ten days after issuance of the notice of the ruling.” Failure to do so without good cause may be grounds for denial of emergency consideration.”
Since the beginning of this year, the Louisiana Second Circuit has had a similar rule, except that the time to file is 15 days instead of 10 days. See La. 2 Cir. Local Rule 17. Both the Second and Fifth Circuits appear to be following the Louisiana Supreme Court’s example. Under the LASC’s Rule X § 5(a)(2), “An application seeking expedited review of a judgment of the court of appeal as ... shall be filed as soon as possible after the court of appeal’s disposition and in no event more than ten days after the mailing of notice of judgment by the court of appeal.” The penalty for failure to comply “may be grounds for denial of expedited review (with review in regular course if the application is otherwise timely under subsection (a) (1)) and/or imposition of sanctions against the party seeking expedited review.”
But regardless of whether the court you’re filing in has a rule like this, it’s just good practice to file your writ application as soon as possible if you need expedited consideration. The court will appreciate your effort to give them as much time as you can to consider your application. That good will should enhance your chances of winning. At the very least, you’ll avoid sabotaging your own writ application by antagonizing the court.
If you’re looking for appellate CLE opportunities, two are coming up in November, and another comes up soon in early October.
On November 8, the Louisiana State Bar Association is holding its Advanced Appellate Practice seminar in New Orleans at the Hilton Riverside. The program offers 6.25 hours of CLE. Appellate-practice specialization CLE credit is pending, but all past versions of this seminar have qualified for that, and I see no reason why this one wouldn’t. To review the program or to register online, follow this link.
If you want to combine your CLE with a trip to our nation’s capital, then check out the ABA’s Appellate Judges Education Institute 2023 Summit, to be held in Washington, DC on November 2–5. This is a bench–bar event, with many appellate judges from across the nation attending as registrants. So if you attend, you may (as happened to a former colleague) find yourself sharing a cab or dinner table with a future U.S. Supreme Court justice. According to the event’s CLE/CJE page, the organizers are applying for accreditation in Louisiana. For appellate-practice specialization CLE credit, you may have to submit individually to the La. Board of Legal Specialization for committee approval. To view the speaker lineup and session topics, follow this link. For registration, follow this link.
Finally, if you don’t want to wait until November to get your appellate CLE, check out the annual Fifth Circuit Appellate Advocacy Seminar, to be held in New Orleans on October 2–3. This is always a worthwhile seminar (meaning you’ll actually learn useful stuff). For Louisiana lawyers, it offers ten hours of CLE, including one hour each of ethics and professionalism. And it’s typically approved for appellate-specialization CLE credit. To view the program and register online, follow this link.
Last Friday, the Louisiana Fifth Circuit announced that its courthouse will be close on October 5 and 6. The reason: “inaccessibility of the courthouse due to street closures in the immediate vicinity.” If you have anything due on one of those dates, there’s some good news: the closure will be deemed a legal holiday, and “[a]ll filings due during this period of closure shall be deemed timely if filed no later than October 10, 2023.” To read or download a copy of the court’s order. follow this link.
With the Labor Day weekend almost here, I offer a labor-saving hint for Louisiana practitioners. Let’s say you want to a case with this title:
Arthur Tolis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College1
A slave to the Bluebook might abbreviate the case name like this:
Tolis v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.
I’ve actually seen Louisiana lawyers cite Tolis like this. Don’t do that. If you must follow the Bluebook, then heed Rule 6.1 (17th ed.). According to that rule, when an entity is known by its initials rather than its full name, you may substitute those initials for the party’s complete name. Certainly in Louisiana, LSU is a well-known set of initials for the Louisiana State University and Agricultural and Mechanical College. So you can comply with the Bluebook by citing Tolis this way:
Tolis v. Bd. of Supervisors of LSU
If you follow the ALWD Guide to Legal Citation instead of the Bluebook (good for you!), then you get to the same place under ALWD Rule 12.2(e)(3) (5th ed.).
So the next time you want to cite a case with LSU’s full name in the caption, save yourself some labor and abbreviate it LSU. Everyone will know which entity you’re referring to.
1 95-1529 (La. 10/16/95), 660 So.2d 1206.
“We briefly adress the arguments presented in the petition, as well as the ethical concerns posed by counsel’s behavior in this litigation.” That’s how the Fifth Circuit ended its opening paragraph in Johnson v. Lumpkin, No. 22-70005 (5th Cir. Aug. 11, 2023), The lesson: ignoring adverse binding authorities will not help you win. It’s more likely to make a bad situation worse.
In Johnson, a petitioner for habeas corpus raised arguments that were foreclosed by several decisions of the U.S. Supreme Court and U.S. Fifth Circuit. One of those binding Fifth Circuit decisions involved the same lawyers making the same arguments: Buntion v. Lumpkin, 982 F.3d 945 (5th Cir. 2020). According to the panel’s original opinion, the district court denied habeas and ordered the petitioner’s counsel to show cause why they should not be sanctions under Rule 11 “for making arguments that have been ‘consistently rejected by the Fifth Circuit for decades.’” Counsel responded by moving to recuse the district judge. As you’d expect, the district judge denied that motion. Johnson then petitioned the Fifth Circuit for a certificate of appealability on the denial of habeas and appealed denial of his recusal motion. A panel of the Fifth Circuit denied the certificate and affirmed the denial of recusal. Johnson v. Lumpkin, No. 22-70005 (5th Cir. July 18, 2023).
Unfazed, Johnson applied for rehearing en banc. That effort did not succeed in obtaining rehearing; instead it drew another panel opinion chastizing counsel for ignoring multiple adverse binding authorities. It didn’t help that the same lawyers had done the same thing three years ago in Buntion. The panel pointed out that, while it’s okay to seek overruling of binding authority, it’s not okay to ignore it:
To be sure, ethical rules and rules of civil procedure allow counsel to advocate for a modification in the law. But when doing so, counsel is unquestionably obligated to recognize contrary authority. See Mod. R. Prof. Cond. 3.3(a)(2) (“A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”); Tex. Disciplinary R. Prof. Cond. 3.03(a)(2) (same).
Johnson’s attorneys failed to do so. Both before the district court and on appeal, counsel failed to cite any of the binding precedents listed above. Nor could they reasonable argue that there were not aware of these precedents. Indeed, the same lawyers raised the exact same arguments just three years ago in Buntion v. Lumpkin. The district court was well within its discretion to consider whether counsel’s lack of candor warranted sanctions.
Nor was the panel impressed—at least not in the right way—by Johnson’s petition for en banc rehearing, which the panel found to misstate its original opinion:
Especially given that counsel are already testing the limits of their duties of good faith and candor, we would have expected them to show better judgment in discerning whether to file a petition for rehearing en banc—especially one that badly misstates the opinion’s conclusion. A good-faith reading of the court’s opinion clearly shows that it does not hold what counsel says it holds. Petitions for rehearing en banc are an “extraordinary procedure” that should be used only to bring the court’s attention to an issue of “exceptional public importance” or one that “directly conflicts” with onpoint Supreme Court or prior Fifth Circuit precedent. 5th Cir. R. 35 I.O.P. Given the deficiencies discussed above, Johnson’s petition does not rise to that level. Counsel are strongly encouraged to confine future arguments to the limits imposed by applicable ethical rules.
The lesson here isn’t new. You can argue in good faith that binding precedents should be overruled. But to do that, you first must confront those binding precedents head-on. Ignoring them is a way to lose both the case and your credibility.
... then don’t write “on or about.” FDR did not say, “On or about December 7, 1941, a date which will live in infamy ...." No one says that Christmas comes “on or about December 25.” If you know the date is August 15, just say or write “on August 15.” If you don’t know the exact date, say or write “around the middle of August.”
That is all. Carry on.