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October 2013

How to acknowledge and refute counterarguments

Sharp_stacyHere is an interesting article on how persuasive legal writers—U.S. Supreme Court justices—acknowledge and refute counterarguments. In Crafting Responses to Counterarguments: Learning from Swing-Vote Cases, Stacy Rogers Sharp (U. Tex. Law School) analyzes the justices’ opinions in close cases (the ones decided 5-4), identifies the techniques used by the justices to refute counterarguments, and illustrates the techniques with numerous examples. As she explains, the same techniques can be used by brief-writers to refute an opponent’s arguments. If you want to write killer briefs, her article is a must-read.

(Cross-posted on The (New) Legal Writer.)

New requirements for the brief’s jurisdictional statement

Several days ago, I wrote about some amendments to the Uniform Rules of La. Courts of Appeal to take effect January 1, 2014. Among the biggest changes will be those governing the form and content of briefs. Perhaps the biggest change to the briefing rules will be those addressing the jurisdictional statement.

Continue reading "New requirements for the brief’s jurisdictional statement " »

Where to find La. appellate-court statistics

Ever wonder what percentage of writ applications are granted in the Louisiana Supreme Court and the Courts of Appeal? These figures and others can be found in the Louisiana Supreme Court’s Annual Report. The 2012 edition (the most current to date) provides the following figures on civl writ applications filed in 2012:

Applications filed (except prisoner pro se): 1,065
Prisoner pro se applications: 22
Granted: 133

To be argued: 49
With orders and transferred: 84

Dismissed: 4
Not considered: 53
Denied: 912

Assuming no prisoner pro se applications were granted, we’re look at 133 writ grants out of 1,065 applications filed. That works out to a writ-grant rate of 12.5%. Writs granted for merits briefing and oral argument are 49 out of 1,065, which works out to about 4.6%.

If you lose in the La. Supreme Court and want to apply for rehearing, your odds are even slimmer. In 2012, 43 rehearing applications were filed; 1 was granted.

New fee schedule for U.S. Court of Appeals

Here are amendments to the U.S. Courts of Appeals schedule of miscellaneous fees, effective December 1, 2013, posted today by the U.S. Fifth Circuit. The docketing fee for an appeal will be $500, up from the current $450. One thing I learned from reading this schedule that I didn’t know before: appellants who file separate notices of appeal each pay the full filing fee, while appellants who join in one notice of appeal jointly pay just one filing fee.

For “Bridging the Gap” attendees and other interested persons

This afternoon, I co-presented a CLE class on Louisiana appellate practice for the Louisiana State Bar Association’s Bridging the Gap seminar for newly sworn-in lawyers. For them and anyone else who may be interested, here is a PDF copy of my presentation.

As mentioned at the seminar, the Uniform Rule of Louisiana Courts of Appeal are being amended effective January 1, 2014. Among the amendments are substantial revisions to the rules governing briefs. To download a copy of the amendments, click here.

We talked a bit about typography. For those interested in making their briefs and other legal writing easier to read, the U.S. Seventh Circuit offers two free guides: its own Requirements and Suggestions for Typography in Briefs and Other Papers, and Ruth Anne Robbins’s Painting With Print. Both are must-reads for lawyers who understand that they are professional writers and publishers. In applying the information in these resources, however, be careful when writing for Louisiana courts of appeal. They have a specific rule on allowable fonts for briefs. See Uniform Rule 2-12.2.2 (current) and Uniform Rule 2-12.2(D)(2) (effective 1/1/2014).

Finally, here are two entertaining and informative articles about appellate practice by Chief Judge Alex Kozinski, U.S. Ninth Circuit:

  • In Praise of Moot Court—Not!, in which Judge Kozinski explains the differences between law-school moot-court programs and real-world appellate practice, and offers suggestions for making the former more closely resemble the latter.
  • The Wrong Stuff, in which Judge Kozinski explains how to lose an appeal.

Amendments to the Uniform Rules effective Jan. 1, 2014

The Louisiana Conference of Court of Appeal Judges has amended the Uniform Rules for Louisiana Courts of Appeal, effective January 1, 2014.  Click here to download a PDF copy of the amendments. For highlights of the amendments, read on.

The biggest changes are in the form and content of briefs. The page count is increased from 28 to 31 legal-size pages for original briefs (but still 13 legal-size pages for the reply brief). The reason for the increase is that all content of the brief will count against the page limit, except for the table of contents and table of authorities. Thus, the jurisdictional statement, assignments of error, and issues presented for review will now count against the page limit.

Under amended Rule 2-12.4, the content of briefs will become more similar to the content of U.S. Fifth Circuit briefs. The amended rule lists the elements of the brief and requires that they appear in the order indicated in the rule. Among the other changes are the following:

  • A table of authorities will be mandatory. It must include references to the pages in the brief where the authorities are cited.
  • The jurisdictional statement in the appellant’s brief must set forth specific facts and law establishing appellate jurisdiction. It must establish that the judgment appealed from is an appealable judgment, and it must establish that the appeal was timely. (I’ve covered the topic of jurisdictional statements in a prior blog post.)
  • A summary of the argument will be mandatory.
  • Each assignment of error and issue for review must have a corresponding statement of the standard of review. This statement may be included in the argument on that issue or may appear under a separate heading.

Another change concerns service of briefs and other papers. Service may be made under any means authorized by La. Code Civ. P. art. 1313. Article 1313(A)(4) authorizes electronic service. So come January 1, we can start serving our appellate briefs and motions by e-mail.

Amended Rule 2-11.4 clarifies the manner of requesting oral argument. The short version: You can’t do it in your brief. You have to do it by a separately filed piece of paper: either a motion for oral argument or a letter to the clerk of court requesting oral argument.

Finally, if you do administrative appeals, you’ll want to check out the amendments to Rules 3-1.1 and 3-1.2.

Many thanks to Chief Judge Vanessa Whipple of the Louisiana First Circuit for providing a copy of the amendments.

If you can’t afford to travel for oral argument in the U.S. 5th Circuit

Here’s an interesting tip I picked up at the recent U.S. Fifth Circuit seminar, courtesy of Judge Priscilla Owen: If you or your client cannot afford the cost of travel for oral argument, say so in the brief, in the statement regarding oral argument. The judges will consider those statements when deciding whether to docket the case for oral argument.

La. 5th Circuit’s electronic-notice system

The Louisiana Fifth Circuit Court of Appeal has introduced a system for electronic notification. I just registered a minute ago, so I can’t give you a review of its operation. Here is the blurb describing what it will do:

With our eNotification service, you will receive instant notification of filings via email rather than through the mail. In addition, detailed information regarding your cases is available online through our portal.

Although I can’t tell you yet how well the Louisiana Fifth Circuit's system works, in my experience, the electronic-notice systems at the Louisiana First and Fourth Circuits work well, providing same-day notice of any action taken by the court in my cases. To read about and register for the Louisiana Fifth Circuit’s system, click here.

How U.S. 5th Circuit judges read briefs

These past two days, I’ve been attending the annual Appellate Advocacy Seminar put on by the Bar Association of the Fifth Federal Circuit. The entire seminar was great, but perhaps the most valuable information came from the clerk of court, Lyle Cayce. Mr. Cayce revealed that most of the judges read brief on iPads. But before the briefs are downloaded to the iPad, they are run through a program that automatically turns all the legal citations into hyperlinks, linking to either Lexis or Westlaw. So whenever the judge comes across a legal citation, the judge can click on the link and can instantly see the cited authority.

There’s more. The district courts in the Fifth Circuit are moving toward electronic records on appeal. Fifth Circuit Rule 28.2.2 is going to be amended to require a uniform method of citing the record: “ROA.[page number].” Why? Because someone has developed a program that can convert all properly formatted record citations into hyperlinks, which will link to the cited page of the electronic record. The program will recognize “ROA.[page number]” as a record citation and automatically create the hyperlink.

Mr. Cayce hopes to make the hyperlinked versions of the briefs available on PACER. But meanwhile, the information he provided is going to change the way I write U.S. Fifth Circuit briefs.

Here is the change: Before today, I used footnotes for some legal citations and all record citations. From now on, all the important citations, including record citations, are going to be in main text, not in footnotes. From a typographic standpoint, this may be aesthetically unpleasing. But from a reader-friendly standpoint, it is the way to go when you realize that all those citations are going to be hyperlinks. To make the on-screen reader’s job easier, you want that hyperlink to be located as close as possible to the associated text. You don’t want to make your reader do the extra work of scrolling down the page to find the hyperlink.