Louisiana Civil Appeals

How to abbreviate LSU

With the Labor Day weekend almost here, I offer a labor-saving hint for Louisiana practitioners. Let’s say you want to a case with this title:

Arthur Tolis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College¹

A slave to the Bluebook might abbreviate the case name like this:

Tolis v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.

I’ve actually seen Louisiana lawyers cite Tolis like this. Don’t do that. If you must follow the Bluebook, then heed Rule 6.1 (17th ed.). According to that rule, when an entity is known by its initials rather than its full name, you may substitute those initials for the party’s complete name. Certainly in Louisiana, LSU is a well-known set of initials for the Louisiana State University and Agricultural and Mechanical College. So you can comply with the Bluebook by citing Tolis this way:

Tolis v. Bd. of Supervisors of LSU

If you follow the ALWD Guide to Legal Citation instead of the Bluebook (good for you!), then you get to the same place under ALWD Rule 12.2(e)(3) (5th ed.).

So the next time you want to cite a case with LSU’s full name in the caption, save yourself some labor and abbreviate it LSU. Everyone will know which entity you’re referring to.

__________

¹ 95-1529 (La. 10/16/95), 660 So.2d 1206.

Duty to cite adverse binding authorities

“We briefly adress the arguments presented in the petition, as well as the ethical concerns posed by counsel’s behavior in this litigation.” That’s how the Fifth Circuit ended its opening paragraph in Johnson v. Lumpkin, No. 22-70005 (5th Cir. Aug. 11, 2023),  The lesson: ignoring adverse binding authorities will not help you win. It’s more likely to make a bad situation worse.

In Johnson, a petitioner for habeas corpus raised arguments that were foreclosed by several decisions of the U.S. Supreme Court and U.S. Fifth Circuit. One of those binding Fifth Circuit decisions involved the same lawyers making the same arguments: Buntion v. Lumpkin, 982 F.3d 945 (5th Cir. 2020). According to the panel’s original opinion, the district court denied habeas and ordered the petitioner’s counsel to show cause why they should not be sanctions under Rule 11 “for making arguments that have been ‘consistently rejected by the Fifth Circuit for decades.’” Counsel responded by moving to recuse the district judge. As you’d expect, the district judge denied that motion. Johnson then petitioned the Fifth Circuit for a certificate of appealability on the denial of habeas and appealed denial of his recusal motion. A panel of the Fifth Circuit denied the certificate and affirmed the denial of recusal. Johnson v. Lumpkin, No. 22-70005 (5th Cir. July 18, 2023).

Unfazed, Johnson applied for rehearing en banc. That effort did not succeed in obtaining rehearing; instead it drew another panel opinion chastizing counsel for ignoring multiple adverse binding authorities. It didn’t help that the same lawyers had done the same thing three years ago in Buntion. The panel pointed out that, while it’s okay to seek overruling of binding authority, it’s not okay to ignore it:

To be sure, ethical rules and rules of civil procedure allow counsel to advocate for a modification in the law. But when doing so, counsel is unquestionably obligated to recognize contrary authority. See Mod. R. Prof. Cond. 3.3(a)(2) (“A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”); Tex. Disciplinary R. Prof. Cond. 3.03(a)(2) (same).

Johnson’s attorneys failed to do so. Both before the district court and on appeal, counsel failed to cite any of the binding precedents listed above. Nor could they reasonable argue that there were not aware of these precedents. Indeed, the same lawyers raised the exact same arguments just three years ago in Buntion v. Lumpkin. The district court was well within its discretion to consider whether counsel’s lack of candor warranted sanctions. 

Nor was the panel impressed—at least not in the right way—by Johnson’s petition for en banc rehearing, which the panel found to misstate its original opinion:

Especially given that counsel are already testing the limits of their duties of good faith and candor, we would have expected them to show better judgment in discerning whether to file a petition for rehearing en banc—especially one that badly misstates the opinion’s conclusion. A good-faith reading of the court’s opinion clearly shows that it does not hold what counsel says it holds. Petitions for rehearing en banc are an “extraordinary procedure” that should be used only to bring the court’s attention to an issue of “exceptional public importance” or one that “directly conflicts” with onpoint Supreme Court or prior Fifth Circuit precedent. 5th Cir. R. 35 I.O.P. Given the deficiencies discussed above, Johnson’s petition does not rise to that level. Counsel are strongly encouraged to confine future arguments to the limits imposed by applicable ethical rules.

The lesson here isn’t new. You can argue in good faith that binding precedents should be overruled. But to do that, you first must confront those binding precedents head-on. Ignoring them is a way to lose both the case and your credibility.

La. 3 Cir. Citation Manual

Did you know that the Louisiana Third Circuit has its own citation manual? I happened to come across it today on the court’s web site. If you practice in the third circuit, I suggest downloading a copy and getting familiar with it. Among the rules that caught my eye are these:

• No space after “So.” and “2d” or “3d.” (Rule 1.3.)
• No space between “La.” and “App.” (Rule 1.4.)
• For Louisiana Supreme Court decisions before 1994, no space between “La.” and the year of the decision. (Rule 1.5.)
• In a case’s subsequent history, include writ denials and certiorari denials unless the denial is due to untimeliness. (Rule 1.15.)
• For U.S. Supreme Court cases, omit the parallel citation to the Lawyer’s Edition. (Rule 1.16.)
• For Louisiana statutory abbreviations, omits spaces after internal periods, but put a space before “art.” (Rule 2.1.) Thus:
  • La.Civ.Code art. 2315
  • La.Code Civ.P. art. 1914
  • La.Code Crim.P. art. 413
  • La.Ch.Code art. 1131
  • La.Code Evid. art. 601
• For the Revised Statutes, ignore the Bluebook and omit the section symbol. Thus, “La.R.S. 23:1201(F)(1).” (Rule 2.2.)
• Know the difference between a hyphen, an en-dash, and an em-dash. For proper usage of these punctuation marks, consult Bryan Garner’s Redbook (not to be confused with the Redbook magazine). (Rule 3.5.)

To download a cop of the citation manual, follow this link.

Don’t use Garamond

This post is both a tip and a plea: if you get to choose the font for whatever you’re writing, please do not choose Garamond. Of all the Microsoft system fonts one might use in legal writing, Garamond has to be the hardest to read, making it worse than the much-maligned Times New Roman.

What makes Garamond hard to read is its poor contrast—I have to squint to read it. And the harder something is to read, the more likely the reader is to doubt both the messenger and the message. That is true whether the cause of the difficulty is word selection, sentence and paragraph composition, or a hard-to-read font. If you doubt that, read this short article, especially page 185 and the studies cited in the article. That is why font selection is so important to persuasive writing.

In choosing a font, don’t choose the one with the prettiest letters. The thing to look for is contrast: how well do the black letters stand out on a white page. Good contrast is what makes a font easy to read. Poor contrast does the opposite. And the easier something is to read, the more likely the reader is to find both the messenger and the message credible.

I like Cambria because it has good contrast compared with other system fonts. To illustrate my point, I made a short PDF document comparing Cambria with Garamond. To have a look, follow this link. Note the difference in contrast between the two fonts. If you can find a font with better contrast than Cambria, use it.

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.

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

Clichés: How clichéd writing leads to clichéd thinking

The next issue of the Scribes Journal of Legal Writing will include one of my contributions: Will I Ever See the Day When Lawyers Write without Clichés? The article examines clichés as a species of metaphor and shows how clichéd writing can be both an effect and a cause of clichéd thinking. Good news: if you want to read it, you don’t have to wait for your copy of the Scribes Journal to arrive in the mail. Just follow this link.

Bryan Garner’s most misunderstood advice

(Cross-posted on the New Orleans Bar Association’s web site.)

One of the liveliest debates among brief-writing nerds is whether to put citations in text or in footnotes. Attend any CLE with a panel of judges in the Q&A session, and someone will put this question to the panel—guaranteed.

The person credited with starting this debate is Bryan A. Garner. Twenty-six years ago, in the first edition of his book The Winning Brief, he recommended putting citations in footnotes. That advice persists in the second and third editions. Thus, lawyers who put citations in footnotes cite Garner as their authority, while traditionalists who follow Garner’s advice in other areas beg to differ with him on this point.

My impression: most people on both sides of this debate misunderstand Garner’s advice. People on both sides seem to think that Garner’s advice is simply to relocate the citations from text to footnotes. Thus, people who think they’re following Garner’s advice aren’t. And people who think they’re criticizing his advice are shooting at the wrong target.

To follow Garner’s advice, you can’t stop at relocating your citations. As Garner says in The Winning Brief:

You must rewrite in a way that cues the reader to what your authority is. It’s just that you put this into prose; you work it into your paragraph, while ridding the text of volume numbers and page numbers—and thereby make life easier for the judge who reads your brief.[1]

 Here’s an example from The Winning Brief. First, the “before” version, with citations in text:

Not this:
Courts can treat “custom” and “usage” as the dictionary for technical terms. See In re Envirodyne Indus., Inc., 29 F.3d 301 (7th Cir. 1994) (on appeal from bankruptcy court, the appeals court found that dictionaries, treatises, trade usage (in other words “specialized dictionaries”), and other third party publications, are useful and allowed for defining terms of a contract); Hurst v. Lake & Co., 16 P.2d 627 (Or. 1932) (Supreme Court of Oregon reversed because the court should have allowed evidence of custom and usage in horse meat industry where parties mean that 49.5% protein is equivalent to 50% protein in the industry); Fox Film Corp. v. Springer, 8 N.E.2d 23 (N.Y. 1937) (new trial was granted so court can hear evidence of custom and usage in the industry, put itself in the position of the parties, and use their language to find out the parties’ intent).[2]

If you’re lazy and just move the citation to a footnote—not what Garner recommends—you’d end up with something like this:

Not this either:
Courts can treat “custom” and “usage” as the dictionary for technical terms.¹⁹
__________
¹⁹ See In re Envirodyne Indus., Inc., 29 F.3d 301 (7th Cir. 1994) (on appeal from bankruptcy court, the appeals court found that dictionaries, treatises, trade usage (in other words “specialized dictionaries”), and other third party publications, are useful and allowed for defining terms of a contract); Hurst v. Lake & Co., 16 P.2d 627 (Or. 1932) (Supreme Court of Oregon reversed because the court should have allowed evidence of custom and usage in horse meat industry where parties mean that 49.5% protein is equivalent to 50% protein in the industry); Fox Film Corp. v. Springer, 8 N.E.2d 23 (N.Y. 1937) (new trial was granted so court can hear evidence of custom and usage in the industry, put itself in the position of the parties, and use their language to find out the parties’ intent).[3]

No one would call that an improvement. To really follow Garner’s advice, you’d have to rewrite the text to tell the reader what authorities you’re citing. In this example, you’d also want to weave the relevant parenthetical information into the text. The result would look something like this:

But this:
Courts routinely look to industry-specific custom and usage to define technical terms. In In re Envirodyne Indus., Inc.,¹⁹ for example, the Seventh Circuit found that trade usage, together with specialized dictionaries, can usefully help determine the meaning of a contract. Similarly, the Supreme Court of Oregon reversed a lower-court ruling for failing to allow evidence of custom and usage when interpreting contractual terms.²⁰ And in Fox Film Corp. v. Springer,²¹ the New York Court of Appeals granted a new trial so that the lower court could hear evidence of industry custom and usage to determine the parties’ intent.
__________
¹⁹ 29 F.3d 301 (7th Cir. 1994).
²⁰ Hurst v. Lake & Co., 16 P.2d 627 (Or. 1932).
²¹ 8 N.E.2d 23 (N.Y. 1937).[4]

Note that the text tells the reader the authorities being cited (the Seventh Circuit, the Supreme Court of Oregon, the New York Court of Appeals). What’s relegated to footnotes is the volume-and-page information.

Feel free to agree or disagree with Garner’s advice. Just be sure that you first understand it.

 

[1] Bryan A. Garner, The Winning Brief 180 (3d ed. 2014).

[2] Id. at 185.

[3] Not from The Winning Brief.

[4] The Winning Brief at 185.

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.

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.

Are briefing rules THAT important?

Both the Federal Rules of Appellate procedure and the Louisiana Uniform Rules for Courts of Appeal include detailed rules governing the form and content of briefs. Both sets of rules contain, among other things, detailed requirements for the brief’s jurisdictional statement. In essence, both sets of rules require the brief only only to say that the court has jurisdiction, but also to prove jurisdiction, with citations to specific statutes establishing jurisdiction and citations to the parts of the record establishing jurisdictional facts (e.g., finality of judgment being appealed, timeliness of the appeal).

What happens when parties fail to heed these rules? In Louisiana, the offending party may have its brief rejected and may be ordered to file a corrected brief. The same goes in the U.S. Fifth Circuit. We’re relatively lucky. The U.S. Seventh Circuit is less tolerant, especially when it comes to jurisdictional statements in both appellants’ and appellees’ briefs. Consider these cases:

• In a diversity case, the appellant’s jurisdictional statement failed to properly allege the citizenshihps of two party corporations. The appellees’ jurisdictional statement failed to correct the appellants’ error, saying instead that the appellant’s statement was complete. Counsel for both sides were publicly reprimanded in a published opinion. Cincinnati Ins. Co. v. Eastern Atlantic Co., 260 F.3d 742, 747–48 (7th Cir. 2001).
• A pro se plaintiff-appellant’s brief failed to include a jurisdictional statement. The defendants-appellees’ jurisdictional statement said only that the district court had diversity jurisdiction but failed properly state the parties’ citizenships. The court ordered the defendants-appellees’ counsel to show cause why they shouldn’t be sanctioned. Meyerson v. Harrah's East Chicago Casino, 299 F.3d 616, 617–18 (7th Cir. 2002).
• Both sides’ jurisdictional statements failed to allege the parties’ citizenships. Although the court didn’t sanction them, it described their “insouciance about jurisdiction” as “unprofessional.” Wise v. Wachovia Securities, LLC, 450 F.3d 265, 266–67 (7th Cir. 2002).
• Finding both sides’ jurisdictional statements to be insufficient, the court described their briefing as “malpractice” and ordered both sides’ counsel to show cause why they shouldn’t be sanctioned. Smoot v. Mazda Motors of America, Inc., 469 F.3d 675, 676–78 (7th Cir. 2006).
• In one appeal, the appellee’s brief said that the appellant’s jurisdicitonal statement was “correct,” but failed to state whether it was “complete.” In another appeal, the appellee’s brief said that the appellant’s jurisdictional statement was “complete,” but failed to state whether it was “correct.” Both briefs violated a local rule requiring the appellee to state whether the appellant’s jurisdictional statement was both complete and correct. The chief judge ordered both appellees’ briefs to be stricken and ordered the appellees to file new briefs with adequate jurisdictional statements. Baez-Sanchez v. Sessions and Bishop v. Air Line Pilots Ass’n, 862 F..3d 638 (7th Cir. 2017).