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October 2016

Why the LASC sometimes denies meritorious writ applications

Today the Louisiana Supreme Court released its oral-argument docket for December. Eight cases are scheduled for oral argument. These include three civil cases, four criminal cases, and one lawyer-disciplinary case.

The docket is a reminder of why the Court often denies meritorious writ applications. Simply put, the Court has only a limited number of oral-argument slots. Some of those slots must be allotted to criminal cases and disciplinary cases, leaving only a few slots for civil cases. This means that, if your writ application nails one or more of the writ-grant criteria in Rule 10, the writ may still be denied. Your application is competing with perhaps dozens of equally meritorious applications for a limited number of oral-argument slots. Your case has to be not just important, but more important than the other cases competing for that limited number of slots.

I had a quick look at the three civil case on the December docket. One of them, Radcliffe 10, LLC v. Burger, involved a fractured decision from the First Circuit, sitting en banc, with no majority opinion on the dispositive issue and two dissents or partial dissents. Another, South Lafourche Levee District v. Jarreau, went to a five-judge panel in the First Circuit, resulting in two partial dissenting opinions. Lesson: a case with one or more dissenting opinions may be the one that emerges from the pack.

For “Bridging the Gap” participants, and anyone else who’s interested

This morning I gave my semi-annual CLE presentation on appellate practice for the Louisiana State Bar Association’s “Bridging the Gap” seminar, a program designed for newly minted lawyers. For those attending, and for anyone else who may be interested, here is the stuff I promised to upload:

As lagniappe, here are links to two entertaining articles by Judge Alex Kozinski of the U.S. Ninth Circuit:

High-quality appellate CLE in New Orleans

I’ve just learned that the next DRI Appellate Advocacy Seminar will be held in New Orleans on May 11-12, 2017. Here is a blurb by program coordinator Keith Whitson about what’s planned:

The 2017 seminar promises to be very special. This program features presentations on the impact of various technological advances on brief writing, certification of issues to a state court, and the role of insurance on appeal. We also will offer guidance on brief writing and preparation for argument in the context of en banc review, and discuss strategic considerations when the government is a party to your appeal. This year, we are adding a panel of in-house counsel, who will offer their insight on the appeal process and effective management of appeals. And for the first time, our highly-regarded mock argument will be held at the United States District Court, just blocks from our hotel.

If this is the kind of CLE you’re looking for, mark your calendars.

Writing for the ignorant reader

John Balestriere has an interesting post at Above the Law on writing persuasively for the reader who knows far less about your case than you do—that is, every judge, judicial law clerk, and court staff attorney who reads your brief. He reminds us that those readers have many more cases on their plates than we have on ours, and that the time they can spend reading a brief is measured in minutes, not hours.

 For more on this topic, read this October 2014 post on the curse of knowledge.

To writ or not to writ?

In our last post, we looked at instances in which the court of appeal considered converting an appeal of an unappealable judgment into an application for a supervisory writ. In this post, we’ll focus on two cases presenting this issue, plus a twist: in both cases, the would-be appellant had already applied for a supervisory writ, but the court of appeal denied the writ.

The first case is MAPP Construction, LLC v. Amerisure Mutual Insurance Co., 2013-1074 (La. App. 1 Cir. 3/24/14), 143 So. 3d 520. Here is the timeline:

  • Sept. 25, 2012: The trial court rendered the judgment complained of. The aggrieved party, C & F, filed a timely application for a supervisory writ.
  • Feb. 13, 2013: The court of appeal denied the writ application, commenting that the judgment would become appealable once a pending motion for new trial was ruled on.
  • Mar. 20, 2013: The trial court denied the motion for new trial, and C & F took a suspensive appeal.

The appeal panel, disagreeing with the writ panel, concluded that the September 25 judgment was not appealable. Id., p. 10, 143 So. 3d at 528. Nevertheless, even though the appeal was taken well beyond the 30-day period to apply for a supervisory writ, the appeal panel converted the appeal into a supervisory writ. Why? “Because C & F initially filed a timely supervisory writ application and we find clear error in the trial court's second judgment that will create a grave injustice iif not corrected, we will convert the appeal to an application for a supervisory writ, grant the writ, and review the second judgment rendered on September 25, 2012.” Id., pp. 10–11, 143 So. 3d at 528. Thus, the prior writ application, although denied, helped persuade the court to convert the later appeal into a writ application.

In Kirby v. Poydras Center, LLC, 2015-0027 (La. App. 4 Cir. 9/23/15), 176 So. 3d 601, the court reached the opposite conclusion, declining to convert an appeal into an application for supervisory writ because of its prior denial of a writ application from the same judgment. After rendition of the judgment complained of, the aggrieved party simultaneously appealed and applied for a supervisory writ. The writ panel denied the application. Later, the appeal panel decided not to convert the appeal into an application for supervisory writ because of the prior writ denial. The court reasoned that converting the appeal into a writ application would be “repetitious,” suggesting a rule of one writ application per customer for any particular judgment. Id., p. 12, 176 So. 3d at 608.

So what is the lesson here? A prior writ application, though denied, may help persuade the court to convert a later appeal into a writ application. Or it may have the opposite effect. When review is discretionary (as it always is with writ applications), nothing is certain.