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February 2014

How not to write the opener for your next brief.

When I first started practicing law in 1990, it seemed that every paper filed in any court began with the verbiage “Now into court, through undersigned counsel, comes ....” If your pleadings, motions, and briefs begin this way, stop it. If you write anything to be filed in any court, read Mark Herrmann’s latest piece at Above the Law, and my own gloss on it at The (New) Legal Writer.

If you think that Louisiana judges like the “comes now” opener, think again. Bryan Garner once polled judges in Louisiana and three other states, and found that 0ver 80% of them prefer a more direct, more substantive opener. See Garner’s Dictionary on Legal Usage 176 (3d ed. 2011). 

On the necessity to cross-appeal

A recent decision by the U.S. Fifth Circuit holds that an appellee who failed to cross-appeal an adverse finding by the jury cannot, on remand, attempt to relitigate the same issue. ART Midwest Inc. v. Atlantic Ltd. Partnership XII, No. 11-11140 (5th Cir. Feb. 3, 2014).

In a nutshell, this is what happened. Buyer contracted with Seller to purchase eight apartment complexes. Later, alleging title problems with two of the complexes, Buyer notified Seller that it was terminating the entire deal. Buyer then sued Seller, alleging Seller's fraud and seeking a declaratory judgment that Buyer had the right to terminate the deal. The jury rejected the fraud claim but found that Buyer had the right to terminate the deal. Seller appealed, but Buyer failed to cross-appeal the jury’s finding of no fraud. The Fifth Circuit reversed the verdict against Seller, finding that the Seller did not default and remanding the case to the district court to determine liability and damages.

On remand, the district court granted summary judgment on Buyer’s fraud claim, holding that issues previously decided by the district court and forgone on the first appeal could not be relitigated on remand. A jury resolved other liability issues against Buyer and awarded millions of dollars in damages.

On Buyer’s appeal, the Fifth Circuit affirmed the summary judgment dismissing Buyer’s fraud claim. The court held that Buyer’s decision not to cross-appeal the jury’s adverse fraud findings in the first district-court proceeding prevented Buyer from raising the same rejected fraud claims in the second district-court proceeding.

(Hat tip to the Bar Association of the Fifth Federal Circuit.)

A virus going around.

There must be a virus going around. Recently the Louisiana Supreme Court and the First, Third, and Fifth Circuits have published warnings about malicious e-mails purporting to come from those courts.

Apparently the spammers don’t know much about the business conducted in appellate courts—the e-mail purports to be a “pre-trial notice.” According to the Fifth Circuit’s warning, the e-mail instructs the reader to click on a link “to check your complaint once again and confirm it. If we do not get your confirmation the claim will be cancelled.”

The courts are warning people to check the sender’s e-mail address to see whether it matches the court’s domain name. While that is good advice, it’s not foolproof. The best defense against malicious e-mail is some healthy skepticism. If an e-mail is unexpected and its message doesn’t make sense, it’s probably malicious. If it invites you to click on a link or open an attachment—don’t.

La. appellate jurisdiction in a nutshell

Not all judgments can be appealed. The general rule is that any appeal must await the final judgment in the case. There are exceptions for some partial final judgments and for certain kinds of interlocutory judgments. Last week, the Louisiana Fourth Circuit issued an opinion dismissing an appeal, and in hornbook-like manner, explained the process for determining whether a judgment can be appealed and the reason the judgment in question was not appealable. See Pollard v. Alpha Technical, 2013-1239 (La. App. 4 Cir. 2/5/14).

Citations in footnotes: The never-ending debate.

There are four topics it’s best not to raise in polite discussion with an appellate lawyer: religion, politics, fully-justified versus ragged-right text, and citations in footnotes. Thirteen years ago, the last of these controversial topics generated some heat in the La. Third Circuit, in Ledet v. Seasafe, Inc. Today, people are still arguing about it. I have a little piece about the most recent stir up at The (New) Legal Writer.

My own opinion on the subject has evolved along with the technology. Legal writers started putting citations in text because, in the days of the typewriter, it was most impracticable to put anything in footnotes. Twenty years or so ago, the computer and programs like WordPerfect and Word freed us from the typewriter’s constraints. But even then, the brief was still designed to be printed on and read from paper.

Today, the game has changed. Many judges are now reading briefs on iPads or other e-readers. As pointed out by Rich Phillips, that, in itself, is a good reason to put the citations in text. And the briefs being read by U.S. Fifth Circuit judges on those devices are hyperlinked: thanks to the court’s magic software, all the legal citations are converted to Lexis or Westlaw hyperlinks, and all the record citations are converted to hyperlinks to the electronic record. To me, a 10-year veteran reader and writer of hyperlinked text, that is a huge, huge reason to put all the citations in text. If you doubt that, ask yourself whether this blog post would be improved by relocating all the hyperlinks to the bottom of this post. Would you like that? Didn’t think so.

For La. appellate briefs, does the cover count against the page limit?

Under the recently revised rules governing briefs in Louisiana courts of appeal, does the cover page count against the page limit? Apparently in the First Circuit, the answer is yes. At least, that is the interpretation of First Circuit Clerk’s office, as expressed in its checklists for the appellant’s and appellee’s briefs. (Hat tip to Mark Plaisance.)

Some background: As many of you know, the Uniform Rules of the Louisiana Courts of Appeal were recently amended, and the amendments included substantial revisions to the briefing rules.

One set of changes was designed to prevent lawyers from circumventing the old 28-page limit (for legal-size paper). Under the old rules, several non-argumentative items (such as the jurisdictional statement) were excluded from the 28-page limit. Often, some lawyers would circumvent the page limit by loading up those non-argumentative items with argument. So some lawyers, unable to control their prolixity, would submit briefs including, say, a five-page jurisdictional statement loaded up with argument on the merits of the appeal.

The revised rules fix that problem. Under revised Rule 2-12.2(D)(1), the page limit is expanded from 28 legal-size pages to 31, but everything is included in the expanded page limit except the table of contents and table of authorities. With everything counting against the page limit, lawyers no longer have anything to gain by shifting argument to what are supposed to be non-argumentative parts of the brief.

Under the old rules, the clerks of the five courts of appeal invariably omitted the cover page from the old 28-page limit. Many lawyers (well, at least I) assumed that the cover page would continue to be excluded from the new 31-page limit. But revised Rule 2-12.2(D)(1) does not explicitly exclude the cover page, and it seems that the First Circuit clerk’s office is interpreting the new rule literally, thus including the cover page in the page limit.

How are the other circuits interpreting the new rule? The Second Circuit’s briefing checklist does not say whether the cover page is included in or excluded from the page limit, but it does remind lawyers that the page limit “[e]xcludes only table of contents and table of authorities.” I couldn’t find anything on the Third, Fourth, or Fifth Circuit’s web sites addressing this question.

My suggestion: When filing a brief in the First Circuit, comply with the First Circuit’s checklist. If you don’t, you risk having your brief returned unfiled. In the other courts of appeal, assume that the clerk’s office will, like the First Circuit, interpret the new rule literally and will count the cover page against the page limit. If you need more pages, file a timely motion to enlarge the page limit. See Unif. R. 2-12.2(D)(3).

New La. 2nd Circuit local rule for appellee’s brief

Today the Louisiana Second Circuit promulgated Local Rule 12, governing the content of the appellee’s brief. You can view the newly adopted rule on the court’s web site, on the local-rules page, and you can download a copy of the order promulgating the new rule by clicking here.

Local Rule 12 departs slightly from Uniform Rule 2-12.5 by adding three items to the list of things that the appellee’s brief need not include unless the appellee is dissatisfied with the appellant’s statement:

  • the assignment of alleged errors (Unif. R. 2-12.4, subsection A(5));
  • the statement of the objection or proffer (Unif. R. 2-12.4, subsection A(9)(b)); and
  • a copy of the judgment, order, or ruling complained of, and any reasons for judgment (Unif. R. 2-12.4, subsection B(1)).