Louisiana Civil Appeals

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.

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).

Invaluable advice for LASC writ applications

I recently came across an old Louisiana Bar Journal article with invaluable advice for anyone thinking about applying for writs to the Louisiana Supreme Court: Get That Writ: Civil Writ Practice Before the Louisiana Supreme Court, 48 La. B.J. 120 (Aug. 2000), by Isaac H. Ryan and J. Todd Benson. If you’ve never read this article before, do yourself a favor: download it and read it.

One important thing the article discusses is the Louisiana Supreme Court’s own perception of its role as one of developing the law rather than correcting errors. An understanding of that role is essential in persuading the court that your case is the one out of a hundred (give or take) worthy of the court’s attention. The Louisiana Supreme Court itself discussed its own view of its role in Boudreaux v. State, DOTD, 2001-1329, p. 3 and id. nn. 5–6 (La. 2/26/02), 815 So. 2d 7, 9–10 and id. nn. 5–6.

Also worth reading are cases in which the Louisiana Supreme Court overcomes its reluctance to exercise its supervisory jurisdiction over other Louisiana courts. The theme in these cases is the Supreme Court’s respect for the independence of other courts in fulfilling their roles and to avoid usurping appellate jurisdiction not conferred on the Supreme Court by the Louisiana Constitution. These cases include the following:

• Mayeux v. Charlet, 2016-1463, p. 7 and id. n. 5 (La. 10/28/16), 203 So. 3d 1030, 1035 and id. n. 5.
• Unwired Telecom Corp. v. Parish of Calcasieu, 2003-0732, pp. 9–10 (La. 1/19/05), 903 So. 2d 392, 400–01.
• Marionneaux v. Hines, 2005-1191, pp. 4–5 (La. 5/12/05), 902 So. 2d 373, 376–77.
• State v. Wimberly, 414 So. 2d 666, 670 (La. 1982).

And of course, anyone filing a writ application in the Louisiana Supreme Court must know and follow La. Supreme Ct. Rule X § 1(a).

How to write a statement of the case

Under federal rules governing briefs, the statement of the case includes the statement of facts. See Fed. R. App. P. 28(a)(6). But in Louisiana appellate courts, the Uniform Rules distinguish the statement of the case from the statement of facts. See Unif. R. 2-12.4(A)(4) and (7). In this post, I’ll try to explain what the statement of the case should do and, along the way, distinguish it from the statement of facts.

Under Uniform Rule 2-12.4(A)(4), the statement of the case must state “the nature of the case, the action of the trial court and the disposition ....” In his book Winning on Appeal, Judge Ruggero Aldisert offered this guidance for writing a statement of the case:

A succinct statement of the case in your brief tells the appellate court “how you got here.” In this portion of the brief you verify the procedural history of the case by answering these questions:

• Who: Who won in the trial court? Who is taking the appeal?
• What: What is the general area of law implicated in the appeal, and what specifically are the issues?
• Where: Where has the case been so far? A trial court, administrative agency or intermediate court?
• When: When was the alleged error committed? During the pre-trial, trial or post-trial stage?
• How: How was the case resolved? By summary judgment, a directed verdict, a jury verdict or a nonjury award?

Ruggero J. Aldisert, Winning on Appeal § 9.1, at 147 (rev. 1st ed.).

In addition to these points, remember where the statement of the case fits into the brief’s structure: it immediately precedes the assignments of error and issues for review. So in addition to what’s required by the Uniform Rules, the statement of the case should provide context to help the reader understand the assignments of error and issues for review. If done right, it helps the reader view the case from your perspective without being overtly argumentative.

For an example of a statement of the case, follow this link. This example comes from a brief medical-malpractice case (all names changed). The marginal comments point out where the writer tried to convey the information required by Rule 2-12.4 and suggested by Judge Aldisert. The writer also attempted to provide enough information for the reader to understand—on the first read—the assignments of error and issues for review, which immediately followed. It includes a broad overview of the case’s facts; the details (with supporting record citations) are in the statement of facts.

Don’t recycle your trial-court brief in the appellate court

Last week, the U.S. Third Circuit penalized a lawyer for filing an appellate brief that, in the court’s view, was no more than a “cut-and-paste” version of his district-court brief. Conboy v. U.S. Small Business Admin., No. 20-1726 (3d Cir. Mar. 19, 2021). The same lawyer responded to a motion for sanctions in the Third Circuit by recycling his argument against sanctions in the district court. Id., slip op. at 8. The court faulted the lawyer “for recycling meritless arguments without engaging the District Court’s analysis.” Id., slip op. at 9. Attached to the court’s opinion are redlines showing the differences (or lack of them) between the lawyer’s district-court brief and his Third Circuit filings.

From time to time, probably all of us have recycled trial-court arguments for appellate briefs and writ applications. When you do that, make sure to adapt them for the appellate court. The lawyer in Conboy didn’t do that. Remove stuff that has become irrelevant or moot, and add whatever is necessary to respond to the district court’s judgment or your opponent’s argument. Uncritical copying and pasting is not a good way to win an appeal; in some courts (like the U.S. Third Circuit), the result may be worse than merely losing the appeal.

I’ll close this post with some closing words from the Third Circuit:

It’s not easy to become a lawyer. The practice of law is challenging, and even the best lawyers make mistakes from time to time. So we err on the side of leniency toward the bar in close cases. But the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.

 

Friendly advice from a judge to would-be amici

Here’s recent opinion by Judge Michael Y. Scudder, Jr. of the U.S. Seventh Circuit describing what is and is not helpful in an amicus brief: Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-3644 (7th Cir. Sept. 24, 2020) (Scudder, J., in chambers). 

• Not helpful: briefs that merely repeat a party’s argument; briefs that “serve only as a show of hands on what interest groups are rooting for what outcome.”
• Helpful: “A true friend of the court will seek to add value to our evaluation of the issues on appeal.” Ways to do this include the following:
  
  • Offering a different analytical approach to the legal issues before the court;
  • Highlighting factual, historical, or legal nuance glossed over by the parties;
  • Explaining the broader regulatory or commercial context in which a question comes to the court;
  • Providing practical perspectives on the consequences of potential outcomes;
  • Relaying views on legal questions by employing the tools of social science;
  • Supplying empirical data informing one or another question implicated by an appeal;
  • Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalst federal judges;
  • Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or anther aspect of a legal question or regulatory challenge.

In short, “an amicus curiae brief should be additive—it should strive to offer something different, new, and important.”