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January 2023

More enhancements of this blog

On the home page of this blog, I’ve done some maintenance of the links on the right side of the screen: a few additions; a few deletions; and a little re-arranging. The goal was and is to make this blog more useful to readers.

Under the heading “Resources,” you’ll find linked to selected provisions of Louisiana Constitution Article V, Code of Civil Procedure Book III, and Revised Statutes Title 13. The key word is “selected”: I included only the provisions that seemed most relevant to practicing lawyers. Under the same heading is a link to a complete set of the Uniform Rules of Louisiana Courts of Appeal effective on 1 January 2023

Under the heading “About me,” I’ve added a link to my law-firm bio, and I’ve put there the links to some of my publications and CLE presentations.

Under the heading “Appellate blogs,” I just did a little weeding, removing links to blogs that are no longer active. If a blog’s last post was 2021 or earlier, that blog is gone.

Finally, under the heading “Books for La. appellate lawyers,” I just did a little updating. All the same books are still listed, but the links now mostly go to the most recent edition of book.

If you’re reading this post by email or RSS feed, please visit the blog and check out the new features. If you like what you see, bookmark them for future reference.

New blog feature: Uniform Rules of La. Courts of Appeal

I’ve added a new feature to this blog: the Uniform Rules of Louisiana Courts of Appeal, presented in a format that (I hope) will make it easy to look up a specific rule. You can find a complete set of the Uniform Rules in one PDF document on some of the courts of appeal web sites. But none of the courts’ web sites has the rules in a format where you can look up just one specific rule. You can find my version of the rules by visiting this blog’s home page and looking for the rules on the right side under the heading Resources. Or you can create a direct link for yourself by following this link and bookmarking the page.

Too much recycling

Sometimes in writing appellate briefs, we adapt and reuse arguments from trial-court briefs, especially on issues subject to de novo review. But in one case in the U.S. Third Circuit, an appellant carried that idea too far. As a result, the Third Circuit awarded damages against the appellant’s counsel under Fed. R. App. P. 38 for “fil[ing] a brief that was essentially a copy of the one he filed in the District Court.” Conboy v. U.S. Small Bus. Admin., 992 F.3d 153, 155 (3d Cir. 2021). To make its point, the Third Circuit attached a copy of the appellant’s trial court brief and a redline copy of his appellate brief showing the few non-substantial differences between the two. To see these appendices, follow this link to download the slip opinion and appendices.

So what did the appellant in Conboy do wrong? I don’t think it was failure to reinvent the wheel. It was failure to incorporate that reused wheel into a new vehicle. An appellate brief can and often should contain an argument used in the trial court, but it shouldn’t be merely a recycled version of the trial-court brief. In Conboy, the Third Circuit found that the appellant’s counsel “filed a copy-and-paste appeal without bothering to explain what the District Court did wrong.” 992 F.3d at 158.

Hat tip for this post goes to Lucian Pera and Trisha Rich and the 2002 version of their Legal Ethics Year in Review presentation.

Amendments to Fed. Rules of Appellate Procedure

Speaking of rule changes, a few amendments to the Federal Rules of Appellate Procedure went into effect last December 1. Nothing major. FRAP 25(a)(5), on privacy protection, was tweaked to add a provision for appeals in benefits cases from the Railroad Retirement Board. And FRAP 42, on voluntary dismissal, was amended to make it easier to dismiss an appeal on agreement of the parties. To see the amendments in redline, follow this link.

New rules for La. courts of appeal

A reminder: On January 1, a new set of Uniform Rules for the Louisiana Courts of Appeal went into effect. While there were no revolutionary changes, many rules were updated to account for electronic filing (now available in all five circuits) and to abolish obsolete provisions. You can find the new rules on the First, Second, Fourth, and Fifth Circuits’ web sites. For a comparison between the current and prior versions of the Uniform Rules, see this Dec. 16, 2022 blog post.

Report of investigation into Dobbs leak

Yesterday the U.S. Supreme Court issued a report of its investigation into last year’s leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization. The Court’s investigation was conducted by the Office of the Marshal and reviewed by The Chertoff Group, headed by Michael Chertoff. While the marshal’s report does not identify the leaker, it does refer to some “gaps in the Court’s security policies,” which, together with “[t]he pandemic and resulting expansion of the ability to work from home, ... created an environment where it was too easy to remove sensitive information from the building and the Court’s IT networks, increasing the risk of both deliberate and accidental disclosures of Court-sensitive information.” To read the full public report, follow this link.