CLE on the science and rhetoric of persuasive writing

This one-hour CLE session looks promising: Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word. The presented is Judge Robert E. Bacharach of the U.S. Tenth Circuit. It’s sponsored by the ABA and the ABA Council of Appellate Lawyers. The program “will draw on the field of psycholinguistics, using numerous examples from famous oratory and passages from briefs and opinions by well-known judges and advocates.” The registration fee is $99 for non-member of the ABA, $59 for ABA members and $39 for members of the ABA Council of Appellate Lawyers.

While you’re at it, if you’re an appellate lawyer and ABA member, you might consider joining the Council of Appellate Lawyers. I’ve benefited from my membership in the CAL; so will you.

LSBA appellate webinar on October 2

On October 2, 2020, the LSBA will hold a two-hour CLE on appellate practice. Thomas Flanagan will interview three judges: Judge Sylvia Cooks (La. Third Circuit), Judge Kyle Duncan (U.S. Fifth Circuit), and Justice William Crain (La. Supreme Court). According to the seminar flyer, “The interviews will focus on appellate practice, including the inner workings of the courts and attributes of effective written and oral advocacy.” Follow these links for more information about this webinar:

How (or how not) to fix an erroneous damages award in federal court

Last week, the U.S. Fifth Circuit issued a valuable opinion on how to fix erroneous awards of damages in the federal system. As explained by the court, “the Federal Rules of Civil Procedure provide several ways for a federal litigant to seek a different damages figure than that which the jury awards. And [plaintiff] chose exactly none of them.” Acadian Diagnostic Labs., LLC v. Quality Toxicology, LLC, No. 19-30320, slip op. at 10 (5th Cir. July 13, 2020). The court’s opinion is a handy summary of the motions available in federal court to address errors in the district court, before the cement dries on the final judgment.

The case was a suit for breach of two contracts involving payment for testing lab specimens. Before trial, Judge Brade (M.D. La.) rendered partial summary judgment in the plaintiff’s favor on one of the contracts, finding that the defendant owed damages for 2,027 of the 2,679 contested specimens. As to the 2,027 undisputed samples, Judge Brady concluded that the defendant owed the plaintiff $1,017,528.20, less $73,134.34 already paid (the difference is $944,393.86). The judge apparently left for the jury the question of damages for the remaining 652 specimens.

The jury returned a verdict in plaintiff’s favor on both contracts. For the contract on which Judge Brady had granted partial summary judgment, the jury awarded damages of $269,706.50. The verdict form did not specify whether this figure was for all 2,679 specimens or just the 652 specimens on which Judge Brady had denied summary judgment.

Shortly after the verdict, Judge Brady died. Fifteen months later, another judge entered final judgment for plaintiff on the jury verdict. The final judgment didn’t mention Judge Brady’s prior summary judgment or his damages calculation for the 2,027 undisputed specimens.

Both sides appealed. In its cross-appeal, the plaintiff argued that the $269,706.50 award was too low and should be amended to reflect total damages of over $1.3 million or, alternatively, at least the $1,017,528.20 found to be owed by Judge Brady’s partial summary judgment.

The Fifth Circuit rejected the plaintiff’s argument and affirmed the final judgment. The court began by citing the Seventh Amendment, which prevents an appellate court from simply increasing the damages awarded in a verdict. The court then went on to list the motions available in the trial court to head off or correct an erroneous verdict:

  • A pre-verdict motion for judgment as a matter of law under Fed. R. Civ. P. 50(a)
  • If a pre-verdict motion for JMOL has been filed, a renewed post-verdict motion for judgment as a matter of law under Fed. R. Civ. P. 50(b)
  • A motion for new trial (in this instance, a new trial on damages) under Fed. R. Civ. P. 59(a)

Because the plaintiff failed to file any of these motions in the district court, it forfeited its ability to seek appellate review of the jury verdict.

The Fifth Circuit went on to describe motions that were available to address the inconsistency between Judge Brady’s partial summary judgment for $1,017,528.20 and the final judgment awarding only $269,706.50:

  • A request that the judgment be set out in a separate document under Fed. R. Civ. P. 58(d). The plaintiff could have used this rule to request entry of a final judgment reflecting both the jury verdict and the partial summary-judgment opinion, but failed to do so.
  • Within 28 days after entry of the final judgment, a motion to alter or amend under Fed. R. Civ. P. 59(e). This rule, the Fifth Circuit pointed out, is designed to enable the district court to fix its own errors and, if successful, can make an appeal unnecessary.
  • Even after the time for a Rule 59(e) motion, a motion for relief from the judgment under Fed. R. Civ. P. 60(b). Among the grounds for this motion is “mistake,” including a judicial mistake.

But because the plaintiff failed to use any of these procedures to address the inconsistency in the district court, the plaintiff forfeited its right to raise the inconsistency on appeal.

Many deadlines extended to July 6

On June 9, 2020, Act No. 162 of the Louisiana Legislature’s 2020 Regular Session became effective with the governor’s signature. This legislation enacts La. R.S. 9:5858 through 5830. To download a copy of Act No. 162, follow this link.

Section 9:5828 ratifies Governor Edwards’s various executive orders extending prescription, peremption, and other legal deadlines in Louisiana. Section 9:5829 continues the suspension of prescription, peremption, and abandonment through July 5, 2020, with expiration on July 6. But the suspension applies only to deadlines that otherwise would have expired between March 17 through July 5, 2020. 

Section 9:5830 continues the suspension of all “deadlines in legal proceedings that were suspended” by the governor’s executive orders until July 6. But like § 9:5829, § 9:5830 applies only to deadlines that otherwise would have expired between March 17 and July 5, 2020.

Within the last few days, at least four of the five Louisiana courts of appeal have issued orders conforming their deadlines to Act No. 162. Under these orders, any filings that otherwise would have been due from the beginning of the COVID-19 emergency through July 5, 2020 will be timely if filed by July 6, 2020. Here are links to those orders:

 As I was writing this post, the Louisiana Supreme Court and Louisiana Fifth Circuit had not yet posted orders responding to Act No. 162. If and when they do, I’ll write a follow-up post on this blog. Stay tuned.

Cristobal court closures

The Louisiana Supreme Court’s home page has this announcement about TS Cristobal:

Due to the possible rain and wind resulting from Cristobal, Oral Arguments previously scheduled for Monday and Tuesday, June 8th and 9th have been postponed to Wednesday and Thursday, June 10th (2:00) and 11th (9:30am & 2:00pm).

The storm has also caused the Louisiana First Circuit to close today. To read or download the court’s closure order, follow this link. The court also has an announcement of the closure on its web site.

Same story with the Louisiana Fifth Circuit: closed today for Cristobal, scheduled to reopen tomorrow morning. To download a copy of the La. Fifth Circuit’s closure order, follow this link.

U.S. 5th Circuit announcement on June 29 – July 2 arguments

Passing by the U.S. Fifth Circuit’s web site, I spotted this announcement:

The Court will not conduct in person arguments for the week of June 29 – July 2, 2020, and the Clerk’s Office will advise counsel how panels will handle their cases. Updated calendars will be posted at If panels use video and/or audio conferences as permitted by General Order 3 COVID-19, a News Item will be posted before argument with links to the audio feed.

La. 4th Circuit extends deadlines to June 16

Like the Louisiana Supreme Court and other Louisiana courts of appeal, the Louisiana Fourth Circuit just issued an order extending its deadlines to June 16. Filings in that court that otherwise would have been due between March 12 and June 15, 2020 will be timely if filed by June 16. To download a copy of today’s Fourth Circuit order, follow this link.

It looks like June 16 is going to be a busy day in the Louisiana appellate world. Barring yet another extension of legal deadlines, that’s when a lot of stuff held up by the COVID-19 emergency is going to be due in the Louisiana Supreme Court and the First, Second, Third, and Fourth Circuits. In the Fifth Circuit, litigants will have until June 19.