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January 2014

Trial court cannot rescind an order of appeal

Once a party perfects an appeal, jurisdiction over all matters reviewable under the appeal is transferred from the trial court to the court of appeal. La. Code Civ. P. art. 2088(A). Once this happens, the trial court has no jurisdiction to rescind its order of appeal. That proposition seems obvious, and indeed, the Louisiana Third Circuit so held in a recent decision, Thompson v. Thompson, 13-1237 (La. App. 3 Cir. 1/22/14). See also David v. David, 13-171 (La. App. 3 Cir. 6/19/13) (same holding).

Note, though, the distinction in art. 2088(A) between a devolutive appeal and a suspensive appeal. In a devolutive appeal, jurisdiction vests in the court of appeal when the order of appeal is signed. In a suspensive appeal, jurisdiction vests in the court of appeal when the order of appeal is signed and the appellant has timely filed the appeal bond. When the appellant in a suspensiive appeal fails to file the bond timely, the trial court retains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in eviction cases. La. Code Civ. P. art. 2088(B).

What happens if a trial court purports to rescind an order of suspensive appeal before the appellant has filed the appeal bond? I don’t know because I’ve never seen that problem occur. If you know the answer, please leave a comment or send me an e-mail.

Appellate lawyers can help at all stages of litigation.

When is the best time to get an appellate lawyer involved in a case? If it’s a big-money case, the sooner the better—preferably before filing the first pleading. That is the view expressed by Paul G. Ulrich in Working With Appellate Counsel: Increase Your Clients’ Litigation and Appellate Success, published in the November 2013 issue of the DRI magazine For the Defense. In his article, Paul explains the contributions an appellate lawyer can make at every stage of litigation.

(Sorry, I couldn’t find a link to the article by itself, so we have to settle for a link to a PDF of the entire issue. But if you click on the article title, it will take you to the page where the article starts.)

Bryan Garner triple feature

If you’d like to improve your writing, editing, and advocacy skills, then here is a worthwhile CLE seminar for you: A day with Bryan A. Garner, featuring these classes:

This seminar is hitting 12 U.S. cites between March 4 and June 5. The stops most convenient to Louisiana lawyers:

  • New Orleans, April 1 (InterContinental New Orleans)
  • Houston, April 3 (Hyatt Regency Houston)*
  • Dallas, April 18 (InterContinental Dallas)*

I can vouch for the quality of the material. And Bryan is probably the most skilled CLE presenter I have seen. Good presenters hold your attention for an hour; Bryan can hold your attention for an entire day.

For more information, follow these links:


*I don’t know the process for obtaining Louisiana CLE credit for classes taken in Texas. But since the seminar is stopping in New Orleans, I assume that at least that presentation will have the LSBA’s blessing. If you’re interested in attending the Houston or Dallas sessions, I’d suggest calling the LSBA about getting Louisiana CLE credit.

What are the odds?

Let’s say you lost in federal court and are thinking about appealing to the U.S. Fifth Circuit. What are the chances of reversal? The answer is on this handy statistical snapshot prepared by the Fifth Circuit clerk's office. Here are the reversal rates for various categories of cases for the year ending 30 June 2013:

  • Criminal: 3.4%
  • U.S. Prisoner Petitions: 2.8%
  • Other U.S. Civil: 17.8%
  • Private Prisoner Petitions: 4.2%
  • Other Private Civil: 11.4%
  • Bankruptcy: 4.8%
  • Original proceedings (mandamus, etc.): 0%
  • Miscellaneous: 0%

Now, let’s say you lost a Fifth Circuit appeal and are considering petitioning for either panel rehearing or rehearing en banc. What are the chances of success? Not so good. Here are the numbers of rehearings granted divided by the number of rehearing petitions:

  • Panel rehearing: 17/290, or about 6%.
  • Rehearing en banc: 6/229, or about 2.6%

You can find oodles of additional statistics in the Clerk’s Annual Report for July 2012 – June 2013. Among the statistics are these disposition numbers:

  • Affirmed: 61.9%
  • Affirmed in part: 5%
  • Dismissed: 26%
  • Remanded: 0.5%
  • Reversed or vacated: 6.6%

Now let’s say you struck out in the Fifth Circuit but sincerely believe that your case has a truly cert-worthy issue. What are your chances of getting the U.S. Supreme Court to grant certiorari? You can find those numbers here, and they’re not as bad as you might expect. The statistics don’t include percentages, but they do include the numbers of petitions filed and granted in various categories. Here are my calculations of percentages. I’ve taken the number of petitions pending at the beginning of the statistical year, added the number filed during the year, subtracted the number pending at the end of the year to get the total petitions acted on. I then divided that total by the number granted and by the number dismissed. The results:

  • Total: about 4.4% granted, 1% dismissed.
  • Criminal: about 4% granted, none dismissed.
  • Private civil: about 5.7% granted, 1.5% dismissed

These numbers are actually better than one might expect. The reason, according to the clerk, Lyle Cayce, may be that the lawyers are generally doing a good job of evaluating the cert-worthiness of their cases.

Three reasons to hire an appellate lawyer for appellate litigation

Here is a short piece by Jarod Bona offering Three Reasons to Hire an Appellate Lawyer.

I would add a fourth reason to Jarod’s list: an appellate lawyer knows the appellate court’s rules, and when practicing in the appellate court, is in familiar territory. This means that the appellate lawyer spends less time researching the rules and, while not perfect, is less likely to make a procedural mistake.

Reflections on Dr. Martin Luther King Jr.

Today is a good day to visit American Rhetoric, which has a page devoted to Martin Luther King Jr.’s “I have a dream” speech, including both a video and the text of the speech. Besides being historic and inspirational, the speech is a fine example of rhetoric — in this case rhetoric in the service of moral persuasion. (Hat tip to

A good example of Dr. King’s rhetorical writing is his Letter from a Birmingham Jail. This letter is Dr. King’s response to southern clergymen who questioned the wisdom and timeliness of his protests. In the letter, Dr. King employs rhetoric not only to justify the righteousness of his own actions, but also to prick the conscience of the clergymen. This too is a textbook example1 of rhetoric used for moral persuasion.
1 The textbook is Classical Rhetoric for the Modern Student, pp. 301-19 and 478-83 (4th ed. 1999), by Edward P.J. Corbett and Robert J. Connors.

This post was originally published on The (New) Legal Writer seven years ago.

Finality of judgment when attorney’s fees not yet determined

Here is a valuable lesson for anyone handling appeals in the federal system: A judgment on the merits is a final, appealable judgment under 28 U.S.C. § 1291 even if the award or amount of attorney’s fees is yet to be determined. This rule applies regardless of whether the right to attorney’s fees is based on a statute, a contract, or both. So a notice of appeal filed more than 30 days after the merits judgment but less than 30 days after the award of attorney’s fees is untimely as to the merits decision.

That is the lesson of Ray Haluch Gravel Co. v. Central Pension Fund, handed down today by the U.S. Supreme Court. Writing for a unanimous court, Justice Kennedy explained, “Whether the claim for attorney’s fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.” Slip op. at 1.

Tips for writing the statement of the case

Until January 1 of this year, Uniform Rule 2-12.4 required the appellant’s brief to include “a concise statement of the case,” which most lawyers used to describe both the procedural history and the facts. Effective this year, Rule 2-12.4(A) requires the statement of the case to be separate from the statement of facts:

The brief othe appellant shall contain, under appropriate headings and in the order indicated:


(4) a concise statement of the case indicating the nature of the case, the action of the trial court and the disposition;


(7) a statement of facts relevant to the assignments of error and issues for review, with references to the specific page number of the record ....

Ironically, Fed. R. App. P. 28, governing briefs in federal courts of appeals, was recently amended to make the opposite change. Under the former rule, the statement of the case was separate from the statement of facts. Under the newly amended rule, federal appellate briefs are to include one statement of the case, which should include both the procedural history and the facts. Why bring this up? Because commentary on the former version of Fed. R. App. P. 28 offers guidance to Louisiana appellate practitioners for writing a separate statement of the case.

The new version of Unif. R. 2-12.4(A)(4) itself instructs that the statement of the case should “indicat[e] the nature of the case, the action of the trial court and the disposition ...." This accords with the purpose of the statement of the case under former Fed. R. App. P. 28. The 1998 comments under former Rule 28 explained the distinction between the statement of the case and the statement of facts:

The current rule requires a brief to include a statement of the case which includes a description of the nature of the case, the course of proceedings, the disposition of the case—all of which might be described as the procedural history—as well as a statement of the facts. The amendments separate this into two statements; one procedural, called the statement of the case; and one factual, called the statement of facts....

In his book Winning on Appeal § 9.1 (Rev. 1st ed.), Judge Ruggero Aldisert offered these tips for writing the statement of the case:

A succinct statement of the case in your brief tells the appellate court “how you got here.” In this portion of the brief you verify the procedural history of the case by answering these questions:

  • Who: Who won in the trial court? Who is taking the appeal?
  • What: What is the general area of law implicated in the appeal, and what specifically are the issues?
  • Where: Where has the case been so far? A trial court, administrative agency or intermediate court?
  • When: When was the alleged error committed? During the pre-trial, trial or post-trial stage?
  • How: How was the case resolved? By summary judgment, a directed verdict, a jury verdict or a nonjury award?

In an article recently published on Law360, Matthew J. Dowd explains the “old” Rule 28 statement of the case:

The primary purpose of the old statement of the case was to provide a concise summary of the procedural history of the case. The statement of the case would quickly explain how the case reached the appeals court. This summary, in turn, could inform the judges and clerks about numerous aspects of the case, including whether the appeal concerned a final judgment or an interlocutory order, whether the decision being appealed was one of summary judgment or after a full trial, and wehther the trial was a bench trial or a jury trial. From this, using their internal knowledge, the judges and clerks could readily discern, for example, the basis for jurisdiction and the proper standard of review.

Matthew J. Dowd, How to Take Advantage of New Fed. Circ. Brief Structure (Law360 Jan. 8, 2014).