Louisiana Civil Appeals

LawProse lesson on writing a brief with a team

Yesterday, I received an email from Bryan Garner's company, LawProse, on how to write a brief as a team, with different team members writing different parts of the brief. I thought it was excellent, so I asked Bryan for permission to reprint it here, and Bryan graciously granted permission.

These tips refer to Bryan’s book The Winning Brief. If you don’t already have a copy, get one. And if you’d like to receive emails like this one, just visit the LawProse web site and tap or click where it says “Join our email lists.” 

Without further ado, here is Bryan and LawProse’s suggested method for having a team write a brief.

LawProse Lesson #372

How To Write a Brief with a Team

First, establish deadlines for each step. Then:

Step One: Have everyone draft two to three deep issues, not to exceed 75 words apiece. (See The Winning Brief 104–09 [3d ed. 2014].)

Step Two: The team leader cherry-picks the best issue statements, puts together a master draft using no more than four issues, and circulates it for edits and improvements—insisting that each issue must be 60 to 75 words. (Again, see The Winning Brief.)

Step Three: Have everyone draft point headings that mirror the deep issues, using the style of the U.S Solicitor General’s Office. (See The Winning Brief at 403–22.)

Step Four: The team leader selects the best propositions, edits or rewrites them, and circulates a master draft for improvements. There should be three major propositions—all coolly worded.

Step Five: The team leader assigns each major section of the brief to a different attorney, who researches the law and the record and writes up that section. The attorney most familiar with the record drafts the statement of facts, providing a citation for each sentence and ensuring that there are no argumentative statements there. (See The Winning Brief at 524–26.)

Step Six: Once the parts are assembled, each team member edits the brief—one at a time (not simultaneously)—for cohesion, flow, and persuasiveness. Anything tedious must be eliminated. Meanwhile, the team leader drafts an introduction, a summary of the argument, and a conclusion. All this takes place in one day.

Step Seven: The day before filing, one team member does extensive fact-checking against the record. Another verifies all citations of authority for both form and substance. Another checks the brief against applicable court rules and tries to find leading hornbooks and treatises that might be cited in support of the law. Another reads to ensure that obvious counterarguments have been rebutted. The team leader oversees all final changes—and the preparation of front and back matter (table of authorities, certificate of service, etc.).

Step Eight: Everyone reads with the object of making at least one improvement per page. The team leader accepts or rejects each suggested improvement. Hyperlinks are carefully inserted and tested. The brief is filed.

Congratulations.

Further reading: Bryan A. Garner, The Winning Brief (3d ed. 2014).

© 2022 Bryan A. Garner and LawProse. Reprinted here with permission.

LASC upholds vax requirement for private employers

This just in: applying the employment-at-will doctrine, the Louisiana Supreme Court has upheld a private employer’s right to require all of its employees to be vaccinated against COVID. Hayes v. University Health Shreveport, LLC, 2021-CC-1601 (La. 1/7/21).

Defendant’s right to appeal summary judgment

Here’s a case that appears destined for the Louisiana Supreme Court. A simplified version of the facts: Plaintiff sues Defendant 1 and Defendant 2. Defendant 1 moves for and is granted a summary judgment dismissing plaintiff’s claim against it. Under La. Code Civ. P. art. 966(G), one effect of the summary judgment is to deprive Defendant 2 of its defense that Plaintiff’s damages were caused in whole or in part by Defendant 1’s negligence. Can Defendant 2 appeal the summary judgment if Plaintiff fails to appeal? In a December 1, 2021 decision, the Fourth Circuit dismissed Defendant 2’s appeal, holding that Defendant 2 cannot appeal the summary judgment and cannot argue Defendant 1’s negligence at trial. Amedee v. Aimbridge Hospitality LLC, 2020-CA-0590 (La. App. 4 Cir. 12/1/21). In its opinion, the Fourth Circuit recognized the anomaly in this result, but found it to be compelled by the res judicata effect of the plaintiff’s failure to appeal the judgment and the language of Article 966(G). The Fourth Circuit also recognized a “Split Among the Circuits” on this issue. Slip Op. at 4.

Judgment signed by successor judge

With the New Year just getting started, here’s an issue to look out for if the New Year brings a new judge to the case.

On December 3, 2020, a pro tempore judge in a district court presided over a hearing of defendants’ motions for summary judgment and granted both motions. The written judgment was signed on January 5, 2021 by the newly elected successor judge—not the same judge who heard and granted the motions on December 3. The plaintiff appealed.

In its original opinion, the court of appeal dismissed the appeal without prejudice for lack of an appealable judgment. Relying on caselaw interpreting La. Code Civ. P. art. 1911, the court of appeal interpreted Article 1911 to require that a final judgment be signed by the same judge who presided over the case. Since the judgment was not signed by the judge who presided over the summary-judgment hearing, the court of appeal held that it was invalid and unappeable. Payne v. St. Bernard Parish Hosp. Serv. Dist., 2021-CA-0135 (La. App. 4 Cir. 10/13/21). 

The defendants–appellees applied for rehearing. The court of appeal granted rehearing, vacated its earlier judgment, found that the district court’s judgment was valid after all, and went on to decide the merits of the appeal. The defendants argued, and the court of appeal agreed, that La. R.S. 13:4209(B) authorizes a successor judge to sign "a judgment which conforms with the judgment rendered” by the former judge “if the judge who rendered the judgment dies, resigns, or is removed from office, or if his term expires before signing the judgment in the case ....” Payne v. St. Bernard Parish Hosp. Serv. Dist., 2021-CA-0135 (La. App. 4 Cir. 12/1/21). Judge Ledet dissented, citing cases requiring the successor judge to explicitly state that she or he was complying with La. R.S. 13:4209.