Preserving constitutional challenges
Preserving objections to expert testimony

Preserving objections to summary-judgment evidence

Louisiana appellate courts review summary judgments de novo, applying the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of LSU, 591 So. 2d 342, 345 (La. 1991). Based on this standard of review, one might think that an appeal from a summary judgment is a total do-over of the district court’s hearing of the motion. That thought would be a mistake. The evidentiary foundation for any argument supporting or opposing the motion must be built in the trial court. Objections to an opponent’s evidence must first be made in the trial court.

Recent amendments to La. Code Civ. P. art. 966 have established specific procedures for admitting and for objecting to evidence offered for or against a summary-judgment motion. Under paragraph (F)(2), evidence attached to the motion or to the opposing memorandum is deemed admitted unless excluded in response to an objection made in accordance with paragraph (F)(3). Paragraph (F)(3), in turn, allows the objection to be made either in a memorandum or a written motion to strike, stating the specific grounds for the objection. The written objection must be served on opposing counsel according to La. Code Civ. P. art. 1313 (that is, by mail or e-mail) within the time specified by La. Dist. Ct. R. 9.9. This means that objections to the mover’s evidence must be served at least eight calendar days before the hearing, and any objections to the opposing party’s evidence must be served before 4:00 p.m. two working days before the hearing (so as to allow at least one full working day between service and the hearing).

I have not seen any caselaw interpreting these relatively new provisions. But the language of art. 966(F) seems straightforward and direct: the evidence is admitted unless an objection is made according to paragraph (F)(3). It follows that failure to object in the manner dictated by paragraph (F)(3) constitutes waiver of the objection.

Besides making your objections properly according to art. 966(F), make sure the judge rules on any properly made objections. Remember our mantra: without a ruling by the trial court, there is nothing for the appellate court to review.


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