Where to file an answer to an appeal

Under La. Code Civ. P. art. 2133, an appellee can file an answer to an appeal to obtain relief against the appellant that the trial court denied. The answer is “equivalent to an appeal on [the appellee’s] part from any portion of the judgment rendered against [the appellee] in favor of the appellant ....” But Article 2133 does not say which court to file the answer in. Since the deadline to file it is 15 days after the record is lodged in the court of appeal, usually the answer is filed in that court. But some Louisiana decisions hold that it’s okay to file the answer in the trial court (presumably before the record lodged in the court of appeal). The most recent example is a decision last month on rehearing by the Third CircuitBoudreaux v. Take 5 LLC, 22-44 (La. App. 3 Cir. 12/14/22). The Boudreaux court followed the First Circuit’s 2016 decision in Succession of Poole, 2015-1317 (La. App. 1 Cir. 10/28/16), 213 So. 3d 18, which is discussed in this 2017 blog post.

My suggestion: if you’re going to file an answer in the trial court (which I don’t recommend), do it well before the record is lodged in the court of appeal, so that the answer will be included in the record before the court of appeal. In Boudreaux, the appellee filed his answer the day before the return date for lodging the record, and the answer was included in a supplemental record lodged in the Third Circuit. The result might have been different if the appellee filed his answer after the return date for lodging the record; in that case, the answer would not have been in the record for the Third Circuit’s consideration.


More enhancements of this blog

On the home page of this blog, I’ve done some maintenance of the links on the right side of the screen: a few additions; a few deletions; and a little re-arranging. The goal was and is to make this blog more useful to readers.

Under the heading “Resources,” you’ll find linked to selected provisions of Louisiana Constitution Article V, Code of Civil Procedure Book III, and Revised Statutes Title 13. The key word is “selected”: I included only the provisions that seemed most relevant to practicing lawyers. Under the same heading is a link to a complete set of the Uniform Rules of Louisiana Courts of Appeal effective on 1 January 2023

Under the heading “About me,” I’ve added a link to my law-firm bio, and I’ve put there the links to some of my publications and CLE presentations.

Under the heading “Appellate blogs,” I just did a little weeding, removing links to blogs that are no longer active. If a blog’s last post was 2021 or earlier, that blog is gone.

Finally, under the heading “Books for La. appellate lawyers,” I just did a little updating. All the same books are still listed, but the links now mostly go to the most recent edition of book.

If you’re reading this post by email or RSS feed, please visit the blog and check out the new features. If you like what you see, bookmark them for future reference.


New blog feature: Uniform Rules of La. Courts of Appeal

I’ve added a new feature to this blog: the Uniform Rules of Louisiana Courts of Appeal, presented in a format that (I hope) will make it easy to look up a specific rule. You can find a complete set of the Uniform Rules in one PDF document on some of the courts of appeal web sites. But none of the courts’ web sites has the rules in a format where you can look up just one specific rule. You can find my version of the rules by visiting this blog’s home page and looking for the rules on the right side under the heading Resources. Or you can create a direct link for yourself by following this link and bookmarking the page.


Too much recycling

Sometimes in writing appellate briefs, we adapt and reuse arguments from trial-court briefs, especially on issues subject to de novo review. But in one case in the U.S. Third Circuit, an appellant carried that idea too far. As a result, the Third Circuit awarded damages against the appellant’s counsel under Fed. R. App. P. 38 for “fil[ing] a brief that was essentially a copy of the one he filed in the District Court.” Conboy v. U.S. Small Bus. Admin., 992 F.3d 153, 155 (3d Cir. 2021). To make its point, the Third Circuit attached a copy of the appellant’s trial court brief and a redline copy of his appellate brief showing the few non-substantial differences between the two. To see these appendices, follow this link to download the slip opinion and appendices.

So what did the appellant in Conboy do wrong? I don’t think it was failure to reinvent the wheel. It was failure to incorporate that reused wheel into a new vehicle. An appellate brief can and often should contain an argument used in the trial court, but it shouldn’t be merely a recycled version of the trial-court brief. In Conboy, the Third Circuit found that the appellant’s counsel “filed a copy-and-paste appeal without bothering to explain what the District Court did wrong.” 992 F.3d at 158.

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Hat tip for this post goes to Lucian Pera and Trisha Rich and the 2002 version of their Legal Ethics Year in Review presentation.


Amendments to Fed. Rules of Appellate Procedure

Speaking of rule changes, a few amendments to the Federal Rules of Appellate Procedure went into effect last December 1. Nothing major. FRAP 25(a)(5), on privacy protection, was tweaked to add a provision for appeals in benefits cases from the Railroad Retirement Board. And FRAP 42, on voluntary dismissal, was amended to make it easier to dismiss an appeal on agreement of the parties. To see the amendments in redline, follow this link.


New rules for La. courts of appeal

A reminder: On January 1, a new set of Uniform Rules for the Louisiana Courts of Appeal went into effect. While there were no revolutionary changes, many rules were updated to account for electronic filing (now available in all five circuits) and to abolish obsolete provisions. You can find the new rules on the First, Second, Fourth, and Fifth Circuits’ web sites. For a comparison between the current and prior versions of the Uniform Rules, see this Dec. 16, 2022 blog post.