The appellee’s secret weapon

Let’s say you represent an appellee, and you know of a better argument to support the trial court’s judgment than the one the trial court relied on. Can you raise that argument in support of the trial court’s judgment? In both Louisiana and federal courts, the answer is “yes”—as long as support for the argument appears in the record.¹

In Louisiana’s appellate courts, La. Code Civ. P. art. 2133(B) permits an appellee to "assert, in support of the judgment, any argument supported by the record ....” In Roger v. Estate of Moulton, 513 So. 2d 1126, 1136 (La. 1987), Justice Dennis aptly described art. 2133(B)’s operation:

A party who is satisfied with a judgment, and who does not file a notice of appeal or a petition for review, is, nevertheless, a party to the appeal or review whose arguments must be heard, and in support of the judgment in his favor he may present any argument supported by the record, whether it was ignored, or flatly rejected, by the court below. This principle generally applies to all manner of review proceedings, although the discretionary nature of the grant of certiorari by a supreme court may make its application less certain in certiorari cases.

The federal rule is identical. The appellee in a federal appeal “may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.” U.S. v. American Ry. Express Co., 265 U.S. 425, 435 (1924). See also Blum v. Bacon, 457 U.S. 132, 137 n. 5 (1982) (“It is well accepted ... that without filing a cross-appeal or cross-petition, an appellee may rely upon any matter appearing in the record in support of the judgment below.”).

Please note, though, that this rule applies only if you do not seek any modification of the trial court’s judgment. If you seek to have the judgment modified in the appellee’s favor, you must take a cross-appeal or (in Louisiana state court) answer the appeal. In Louisiana, see La. Code Civ. P. art. 2133(A). The choice of answering the appeal versus taking a cross-appeal is itself an interesting topic, which I’ll try to cover in a future post.

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¹ I’ve covered this topic before, but that post is more than two years old and does not address federal appeals.