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April 2020

March 2020

Oral arguments cancelled and filing by mail suspended at U.S. 5th Circuit

Two days ago, oral arguments at the U.S. Fifth Circuit scheduled for April 27–30 were still a go. Today, they became a no-go with this announcement on the court’s home page:

The Court previously canceled in person oral arguments for March 30-April 2, 2020. Additionally, the Court has canceled in person oral arguments scheduled for April 27-30, 2020. When the Court determines how to proceed in these cases, the Clerk’s Office will advise counsel. 

This announcement follows an order signed yesterday by Chief Judge Owen. Besides cancelling the April 27–30 oral arguments, the order suspends the mail operations of the clerk’s office until further notice. The order gives a 30-day extension to hose affected by the suspension: pro se litigants (including prisoners) who are unable to file electronically. To download a PDF copy of the order, follow this  link.

Today’s order updates the court’s order of March 18, which remains in effect as updated today. You can download the March 18 order by following this link.


Tips for telephonic oral argument

As I reported 10 days ago, the U.S. Fifth Circuit is considering the possibility of holding oral argument of some cases by telephone. Depending on how long the COVID-19 emergency lasts, Louisiana appellate courts may consider doing the same. With that possibility in mind, here are some tips for advocates faced with arguing an appeal over the phone. They are brought to you by the Sixth Circuit Appellate Blog, hosted by Squire Patton & Boggs.


Status of La. 3rd Circuit during COVID-19 emergency

Today the Louisiana Third Circuit issued a notice about its current operations during the COVID-19 emergency. To download a copy of the notice, follow this link. Here are some highlights:

  • Although the Third Circuit courthouse is closed, the Third Circuit is continuing to conduct business, with most of its personnel working remotely.
  • During the emergency, the Third Circuit is accepting filings by email, fax, and U.S. Mail.
  • Unlike the other Louisiana appellate courts, the Third Circuit is continuing to accept in-person filings, but subject to the court’s March 18 notice restricting access to the courthouse.
  • Appeal records remain available, both on paper and electronically. Today’s notice provides details on that.

Are longer briefs and cross-appeals helpful?

For appellate lawyers looking for a diversion from the COVID-19 emergency, here is an article that bucks some of the conventional wisdom on appellate practice: Inputs and Outputs on Appeal: An Empirical Study of Briefs, Big Law, and Case Complexity, by professors Adam M. Samaha, Michael Heise, and Gregory C. Sisk. The article reports the results of a study of briefs and opinions in civil cases in  in the federal Second, Eighth, and Ninth Circuits. About two-thirds of the article describes the authors’ methodology, which will be more understandable to statisticians than to lawyers. The article is just a draft; it will undergo some vetting before being published. With that caveat, two of the authors’ conclusions jumped out as contrary to conventional wisdom.

First, in briefing, shorter is not necessarily better. To the contrary: the longer the brief, the greater the chances of reverse. The authors caution that this finding does not mean that prolixity is persuasive. “It remains possible,” they caution, “that the appellant brief length is simply a better proxy for the unobserved vulnerability of trial-level decisions than are our measures of complexity and our controls.... So we are not in a position to recommend that lawyers start writing longer briefs with no other measure of exposition quality. At the same time, we have no evidence that shorter briefs are more effective.” My suggestion: make your brief as long as it has to be: no longer, no shorter.

Second, a cross-appeal (or in Louisiana, an answer to the appeal) is not a good strategy for an appellee to obtain an affirmance. To the contrary, the presence of a cross-appeal correlates positively with reversal, but not necessarily in the cross-appellant’s favor. This, in itself, shouldn’t be surprising. As the authors point out, “Once a cross-appeal is lodged, both sides are attacking the trial court in some respect.” They also caution that, in itself, the cross-appeal may not be the cause of reversal; it may be that attorneys file cross-appeals in cases where the risk of reversal is already high. My suggestion: don’t take a cross-appeal or answer the appeal with the idea that you’ll increase the chance of affirmance by compromise decision. The data suggests that, faced with cross-appeals, appellate judges do not compromise by simply affirming; instead they’re more likely to reverse—and the direction of the reversal may not be in the cross-appellant's favor.


U.S. 5th Circuit announcement about upcoming oral arguments

The U.S. Fifth Circuit’s home page has this new announcement:

The oral arguments for next week remain cancelled. At this time, the oral arguments scheduled for April 27 to April 30 will continue as scheduled. Counsel will be notified if the court determines it necessary to make alternate arrangements for the submission of those cases to the three-judge panels.


La. 2nd Circuit order of Mar. 23 responding to COVID-19 emergency

The Louisiana Second Circuit has issued a supplemental order, signed yesterday, responding to the COVID-19 emergency. To download a copy of the March 23 order, follow this link. This order supplements the provisions and restrictions in the court’s prior orders of March 13, three order of March 15 (governing fax and electronic filing, partial court closure), and restriction of courthouse access, and March 19 by adding the following:

  • All filings must be made remotely, by either e-filing, mail, or fax (no in-person filing).
  • The court will temporarily accept fax filings, but only with prior notice to and permission from the clerk of court.
  • Fees for fax filing or e-filing are to be mailed or shipped separately.
  • Requests to borrow records and exhibits must be made by email.
  • Persons returning records to the court must use “trackable means.” U.S. Mail, UPS, FedEx, or other commercial carriers are okay; just make sure to get a tracking number.

To download a PDF copy of the March 23 order, follow this link.


LASC orders La. courts to take precautions against COVID-19

Today the Louisiana Supreme Court issued an order to all Louisiana courts to take concrete steps toward reducing the risk of exposure to the coronavirus. To download a copy of today’s order, follow this link. Under today’s order, Louisiana courts must do the following things (among others):

  • "take immediate measures to limit access to courtrooms and other spaces, with absolute minimum physical contact, to practice social distancing and limit court activity to only the essential functions ..."
  • "follow all guidelines issued by the Center[s] for Disease Control, the President and the Governor ..."
  • conduct all essential court functions by video and telephone conferencing when possible
  • conduct essential criminal matters by video or telephone conferencing "with increased frequency to alleviate potential overcrowding of jails ..."

To read the rest of the order, follow this link.


La. 1st Circuit closed

Yesterday, the Louisiana First Circuit announced this order closing the court:

IT IS HEREBY ORDERED that the Louisiana Court of Appeal, First Circuit, IS CLOSED and shall remain closed through Monday, April 13, 2020, unless extended by further order.

This closure shall not affect this Court's administration of emergency matters. Due to the court being closed during this period, parties shall contact the Clerk of Court @ 225-247-2853 in regard to any emergency matters.

All filings due during the period of March 12, 2020 through April 14, 2020, or which become due during this period shall be deemed timely if filed on or before April 14, 2020.

Parties who are unable to file within this extended time may submit a Motion and Order with supporting documentation and argument requesting re-consideration of timeliness or other such relief.

THUS DONE AND ORDERED on this 22th day of March 2020.

VGW

To download a PDF copy of the order, follow this link.