New Second Circuit briefing rules effective 5/31/19

If you practice in the Louisiana Second Circuit, be aware of two new briefing rules that become effective on May 31.

First, if your brief has any attachments, it must include a certification that “all attachments to this brief have previously been duly filed and/or accepted or proffered into evidence in the lower court ....” For the full text of the required certificate, see new Local Rule 15.

Second, if your brief has no attachments, it must include a certification stating, “I hereby verify that there are no attachments required with this brief.” See new Local Rule 15.1.

I don’t know and won’t speculate what led the court to make these rules. I do know from experience that the Second Circuit clerk’s office often rejects briefs that fail to comply with all of the rules, including local rules. See Local Rule 2-5. Starting May 31, any brief filed with the Second Circuit will have to include one of these certifications. If it doesn’t, the lawyer submitting the brief will run the risk of having the brief rejected.

Speaking of attachments: the Second Circuit has not opted out of Uniform Rule 2-12.4(B)(1). That rule requires that the trial court’s judgment and reasons for judgment (written or transcribed) be attached to the appellant’s brief. The rule doesn’t expressly prohibit other attachments, but my experience in other circuits is that any other attachments are often either removed at intake or counted against the page limit.

A third rule effective on May 31 concerns borrowing the record. Under new Local Rule 2-8.1, the court will not allow lawyers to borrow the record after the case has been submitted for decision except for the purpose of preparing an application for rehearing. If this rule is applied literally, then the court will not loan out the record for a writ application to the Louisiana Supreme Court. Related Rule 2-8.2 (also effective May 31) requires counsel to return the record no later than with the filing of that party’s brief.

Complying with this rule should not be a problem. When you borrow the record, immediately make a copy: either on paper or in PDF. Once you have your own copy of the record, immediately return the original to the court. If you do these things, you won’t have to worry about returning the record when you file your brief, and you won’t have to re-borrow the record for rehearing or a La. Supreme Court writ application.