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December 2021

Watch your language

Today’s news release by the Louisiana Supreme Court included an interesting item: a writ application not considered because the applicant violated Rule VII § 7. What does Rule VII § 7 say?

The language used in any brief or document filed in this court must be courteous, and free from insulting criticism of any person, individually or officially, or of any class or association of persons, or of any court of justice, or other institution. Any violation of this rule shall subject the author or authors of the brief or document to the humiliation of having the brief or document returned, and to punishment for contempt of the authority of the court. 

In a concurring opinion, Justice Crichton (joined by Justice Crain) elaborated on the writ application’s language that offended the LASC:

In his writ application to this Court, applicant sets forth overly harsh criticism of the lower courts, describing the “corrupt” trial court’s ruling as a “massacre of justice” and the court of appeal’s “feebl[y] written” decision as “feckless,” “perverse,” and “aberrant.” In my view, even in the spirit of zealous advocacy, the use of this language violates our oath as lawyers, our Professionalism Guidelines, and La. Sup. Ct. Rule VII, §7.

Randazzo v. Imbraguglio, 2021-CC-1562 (La. 12/21/21), with concurrence by Crichton, J.

Hat tip to my colleague Sara Valentine for spotting this.

Bankruptcy stays in Louisiana courts of appeal

Earlier this month, the Louisiana Fifth Circuit adopted new Local Rule 13, governing motions for a stay of a matter in that court because of an automatic stay triggered by a party’s bankruptcy. The new rule is similar in substance to the Louisiana Fourth Circuit’s Local Rule 20.1. Both rules impose certain obligations on the party moving for the stay in the court of appeal to keep the court of appeal informed of the status of the bankruptcy-caused stay and to notify the court timely of any lifting or cancellation of the automatic stay.

I did a quick check of the local rules of other Louisiana courts of appeal about what happens when a party’s bankruptcy triggers an automatic stay. I found that the Louisiana First Circuit’s Local Rule 4, governing abandonment of a civil appeal, includes a provision for abandonment after one year “unless the appellant in the meantime files a motion showing why the appeal should not be dismissed.” La. 1st Cir. R. 4(B).

Reviewing these rules reminds me of another bankruptcy-related quirk in Louisiana appellate procedure: what happens when a case is removed to federal court1 after an appealable judgment has been rendered but before a party has moved for a devolutive or suspensive appeal. This sometimes happens when a party’s post-judgment bankruptcy creates federal jurisdiction under 28 U.S.C. § 1334(b), providing for federal jurisdiction over cases related to a bankrupty proceeding. If the bankruptcy occurs while the appeal clock is ticking, it interrupts the time to take a devolutive or suspensive appeal. See La. Code Civ. P. arts. 2087(E) (for devolutive appeal) and 2123(D) (suspensive appeal). 

Questions I don’t know the answer to (so don’t ask):

  1. What happens to the case in federal court after it’s removed under art. 2087(E) or 2123(D)? Appeal to the U.S Fifth Circuit?
  2. Can a case be removed after a party has perfected a devolutive or suspensive appeal? If so, what happens to the appeal in the federal system?

Concessions strengthen persuasiveness

The title of this post seems counterintuitive. Maybe it shouldn’t be.

[F]ew things add strength to an argument as does a candid and full admission, whether as to facts or law, of the factors which are clearly against one. When this is made, judges know that the lawyer is worthy of full confidence, and every sentence he utters or writes carries force from the very fact that he makes it.

Wiley B. RutledgeThe Appellate Brief, in Classic Essays on Legal Advocacy 429, 438 (George Rossman ed. 1960), adapted from Vol. 8, American Bar Association Journal (1942).