Louisiana Civil Appeals

Delay in getting a return date for a writ application

Let’s say that you’re applying to a court of appeal for a supervisory writ. You know that, under Uniform Rule 4-3, the return date can’t be more than 30 days after notice of the trial court’s judgment. You also know that your writ application has to include the trial court’s return date order so that the court can determine whether the application is timely. So twenty days after notice of judgment, you file your notice of intent. But for whatever reason, the 30th day arrives without the judge’s having signed the return-date order. What do you do?

There’s a case for this situation: In re Gramercy Plant Explosion at Kaiser, 06-C-555 (La. App. 5 Cir. 7/31/06), 2006 WL 8453927. In Kaiser, the applicant’s counsel* filed the writ application with a conformed copy of the notice of intent and, in the jurisdictional statement, an explanation of the problem with getting the judge to sign the order. Here’s what the court said:

The judge who has been given notice of intention to seek writs shall immediately set a reasonable return date within which the application shall be filed in the appellate court. Uniform Rules-Courts of Appeal, Rule 4-3. However, relator’s timely notice of intention to seek writs was denied by the trial court. When a relator makes a timely and genuine attempt to obtain the judge’s signature on the order for which review is sought, the writ should not be refused. See, City of New Orleans v. Benson, 95-2436 (La.App. 4 Cir. 12/14/95), 665 So.2d 1202. Accordingly, the writ will be considered. 

Note, though, that you must show “a timely and genuine attempt to obtain the judge’s signature” on the return-date order. To do that, you’ll likely need a conformed copy of the notice of intent with proposed return-date order to show that you did your part timely. I’d also suggest filing the notice of intent soon enough that the judge actually has an opportunity to sign the return-date order within the 30-day period. Except for real emergencies, e-filing the notice of intent after 5 p.m. on the 30th day may not qualify as “a timely and genuine attempt to obtain the judge’s signature.”

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*Happened to be me.

New local rules in the La. 2nd Circuit

The Louisiana Second Circuit has a handful of new and amended local rules and that will become effective on June 1.

• New Local Rule 16 sets an absolute 15-day deadline to a non-emergency writ application. That’s absolute as in “no extensions of time to file a response will be granted.” The new rule comes with the caveat that the court may “may adjudicate the application at any time after receipt, with or without the benefit of a response.”
  
  
• Amended Local Rule 9 requires lawyers to show up for oral argument when oral argument is docketed. To be excused from appearing for oral argument, a lawyer must file a motion to waive oral argument. Failure to appear for oral argument without filing a timely motion to waive oral argument will cost you up to $200.
  
  
• Amended Local Rule 4-1 implements a new schedule of fees charged by the clerk of court. The court’s web site says that the only change is in the numbers of copies required for various filings (generally the original and only one copy now required for some of the listed items).
  
  
• Speaking of numbers of copies, new Local Rule 3-1 requires only an original plus one copy for “[a]ll filings, in appeals or writs ....” That’s if you file on paper. If you file electronically, “that filing will be deemed the original and a duplicate is not required.”
  
  
• Finally, amended Local Rule 2-8 sets certain conditions on lawyers who borrow the record from the clerk of court. Under the amended rule, the exhibits remain at the courthouse—you have to go there to look at the exhibits. You have to return the record before or when you file your brief; the clerk won’t consider your brief filed unless you’ve returned the record. Also, you can’t borrow the record once the case is submitted except to prepare an application for rehearing to the Second Circuit or a writ application to the Louisiana Supreme Court; and then, you can only have the record for five days.

On that last item: it’s usually a good practice to make a copy of the record as soon as you get it, either on paper or scanned to PDF. Once you have your own copy, return the record promptly; don’t wait until your brief is due. That way, you reduce the risk of having your brief deemed untimely; plus you avoid the trouble of having to re-borrow the record for rehearing, LASC writ practice, and (if writs are granted) LASC merits briefing.

More free CLE stuff

A couple of days ago, I gave my semi-annual presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar for new lawyers. My written materials (PDF copy here) include nuts-and-bolts stuff for handling appeals and writ applications in the Louisiana appellate courts. My slide presentation (PDF copy here) show five principles that I’ve come up with for succeeding in appellate practice, some of which can be transferred to other areas of legal practice. I’m making them available here for anyone who’s interested.

Free CLE stuff

I just finished giving a presentation for the Louisiana State Bar Association’s Jazz Fest seminar. The seminar theme was powerful writing. My presentation focused on use of grammatical structures to either focus or deflect attention on someone or something. For anyone interested in that sort of thing (and who isn’t?), here are links to my written materials and slide presentation.