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.

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.

Bankruptcy stays in Louisiana courts of appeal

Earlier this month, the Louisiana Fifth Circuit adopted new Local Rule 13, governing motions for a stay of a matter in that court because of an automatic stay triggered by a party’s bankruptcy. The new rule is similar in substance to the Louisiana Fourth Circuit’s Local Rule 20.1. Both rules impose certain obligations on the party moving for the stay in the court of appeal to keep the court of appeal informed of the status of the bankruptcy-caused stay and to notify the court timely of any lifting or cancellation of the automatic stay.

I did a quick check of the local rules of other Louisiana courts of appeal about what happens when a party’s bankruptcy triggers an automatic stay. I found that the Louisiana First Circuit’s Local Rule 4, governing abandonment of a civil appeal, includes a provision for abandonment after one year “unless the appellant in the meantime files a motion showing why the appeal should not be dismissed.” La. 1st Cir. R. 4(B).

Reviewing these rules reminds me of another bankruptcy-related quirk in Louisiana appellate procedure: what happens when a case is removed to federal court1 after an appealable judgment has been rendered but before a party has moved for a devolutive or suspensive appeal. This sometimes happens when a party’s post-judgment bankruptcy creates federal jurisdiction under 28 U.S.C. § 1334(b), providing for federal jurisdiction over cases related to a bankrupty proceeding. If the bankruptcy occurs while the appeal clock is ticking, it interrupts the time to take a devolutive or suspensive appeal. See La. Code Civ. P. arts. 2087(E) (for devolutive appeal) and 2123(D) (suspensive appeal). 

Questions I don’t know the answer to (so don’t ask):

  1. What happens to the case in federal court after it’s removed under art. 2087(E) or 2123(D)? Appeal to the U.S Fifth Circuit?
  2. Can a case be removed after a party has perfected a devolutive or suspensive appeal? If so, what happens to the appeal in the federal system?

Concessions strengthen persuasiveness

The title of this post seems counterintuitive. Maybe it shouldn’t be.

[F]ew things add strength to an argument as does a candid and full admission, whether as to facts or law, of the factors which are clearly against one. When this is made, judges know that the lawyer is worthy of full confidence, and every sentence he utters or writes carries force from the very fact that he makes it.

Wiley B. RutledgeThe Appellate Brief, in Classic Essays on Legal Advocacy 429, 438 (George Rossman ed. 1960), adapted from Vol. 8, American Bar Association Journal (1942).

Ethos and professionalism

Some lawyers see a tension between professionalism and zealous advocacy. I don’t. I think that the two go together, that we are most persuasive when we apply the highest standards of professionalism in our advocacy.

This truth becomes apparent when we consider ethos as a key to persuasion. In my October 25 post, I discussed ethos as a key to persuasion. Aristotle describes ethos as the audience’s perception of the speaker’s intelligence, high moral character, and benevolence. Those last two components—high moral character and benevolence—are what some of us have learned in our hours of professionalism CLE.

So how does an advocate show high moral character and benevolence? I can’t improve on the following quotable quotes, so I’ll just share them with you.

High moral character

Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 73 (4th ed. 1999):

If a discourse is to reflect a person’s moral character, it must display an abhorrence of unscrupulous tactics and specious reasoning, a respect for the commonly acknowledged virtues, and an adamant integrity.

Michael R. Smith, Advanced Legal Writing 125–26 (2d ed. 2008):

To gain the confidence of their audiences, legal writers must demonstrate that they are of good moral character or at least that they are not of questionable moral character. If a reader believes that a writer is not above lying, cheating, deceiving, or misleading, then the reader will view the writer’s arguments with skepticism and doubt. Conversely, if a reader believes that a writer possesses good character—or at least if the reader has no reason to question the writer’s character—then the reader will be more receptive to the writer’s arguments and assertions.

There are several traits or characteristics that legal writers should project through their writing to demonstrate that they are of good moral character. These traits include:

  • Truthfulness
  • Candor
  • Zeal
  • Respect
  • Professionalism.


Corbett and Connors at 73:

If the discourse is to manifest a person’s good will, it must display a person’s sincere interest in the welfare of the audience and a readiness to sacrifice any self-aggrandizement that conflicts with the benefit of others.

Id. at 143:

Good will in the context of persuasion refers to how an advocate feels or is disposed toward others involved in the matter under discussion. According to classical rhetoricians, a decision-maker will doubt the veracity of what an advocate has to say if the advocate does not appear to be well-disposed toward the decision-maker or toward another party that may be affected by the decision. If a decision-maker receives the impression that an advocate is angry at, resentful of, or otherwise malevolent toward the decision-maker or an adverse party, the decision-maker will likely be skeptical about the advocate’s advice on the matter; the advocate might, after all, be speaking not out of logic or a sense of justice, but out of spite and anger…. The concept of good will is based largely on folk psychology and common sense: We tend to doubt a person’s word if that person has ill-will toward us or toward another person who will be affected by the course of action we are being persuaded to take.

Ethos: How to show intelligence

As we’ve seen in prior posts, an important mode of persuasion is ethos, the appeal based on the character of the speaker or writer. Ethos equates to trustworthiness. An advocates projects trustworthiness by showing intelligence, benevolence toward the audience, and high moral character. Today’s subject: how to show intelligence. For legal advocates, the answer is simple: do your homework.

If you made it through law school and passed the bar exam, you have all the innate intelligence you need. But simply having innate intelligence is not enough to project the ethos quality of intelligence. To project intelligence, the argument or brief  “must show that the speaker or writer has an adequate, if not a professionally erudite, grasp of the subject being talked about, that the speaker or writer knows and observes the principles of valid reasoning, is capable of viewing a situation in the proper perspective, has read widely, and has good taste and discriminating judgment.” Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 72–73 (4th ed. 1999). For the appellate advocate, the standard is not merely “adequate,” but “professionally erudite.” That means knowing the record and the applicable law backwards and forwards. In two words: read everything. It also requires being able to think logically, which requires a working knowledge of logic. For help with that, read Judge Ruggero Aldisert’s book Logic for Lawyers. Finally, the advocate must come across as a reasonable person, not a bomb thrower.

In his book Advanced Legal Writing, p. 148 (2d ed. 2008), Professor Michael Smith offers a list of 11 qualities that an intelligent legal writer is perceived to have:

  1. Informed
  2. Adept at legal research
  3. Organized
  4. Analytical
  5. Deliberate
  6. Empathetic toward the reader
  7. Practical
  8. Articulate
  9. Eloquent
  10. Detail oriented
  11. Innovative

Smith’s book includes an entire chapter on ways a brief writer can demonstrate these qualities, with illustrative examples. I highly recommend it, along with the other books cited in this post. If you’re interested in buying any of these books, click on the book’s link in the right sidebar of this blog under the heading “Books for La. Appellate Lawyers.”

Supervisory writs in First Amendment cases

When we apply to the court of appeal for a supervisory writ, our first task is to persuade the court to exercise its supervisory jurisdiction to consider the application’s merits. To do this, we often argue either that the trial court’s judgment causes irreparable injury (meaning an injury that cannot be corrected on appeal after final judgment) or that the case meets the three criteria of Herlitz Contruction Co. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981): (1) the trial court’s judgment is arguably incorrect; (2) reversal would terminate the litigation; and (3) there is no dispute of fact to be resolved.

If you represent a defendant with a First Amendment defense, that defense may be another way to persuade the court to decide the merits. The Louisiana Fourth Circuit said so explicitly in Roppolo v. Moore, 93-2361, p. 2 (La. App. 4 Cir. 7/27/94), 644 So. 2d 206, 208*:

This Court believes that the exercise of its supervisory powers should be liberally invoked where First Amendment freedoms are at stake. The exercise of First Amendment rights should not be discouraged by the threat of harassing lawsuits.

In support of its stance, the Fourth Circuit cited the Louisiana Supreme Court’s decision in Mashburn v. Collin, 355 So. 2d 879 (La. 1977)Mashburn contains the following quotable quotes:

In cases affecting the exercise of First Amendment liberties, proper summary judgment practice is essential. [Id. at 890.]

. . .

Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press. [Id. at 891.]

Two other cases worth a look in this situation are Schaefer v. Lynch, 406 So. 2d 185 (La. 1981), and Batson v. Time, Inc., 298 So. 2d 100 (La. App. 1 Cir. 1974). In these cases, the Louisiana Supreme Court and the Louisiana First Circuit respectively granted writs to decide the merits of First Amendment issues raised in the writ application. In Schaefer, the Louisiana Supreme Court granted the writ “to determine whethe trial on the merits in this libel action would infringe on the rights of freedom of speech and freedom of the press guaranteed under the First and Fourteenth Amendments of the United States Constitution.” 406 So. 2d at 187. In Batson, the First Circuit suggested that a case involving a First Amendment defense also involves the prospect of irreparable injury. After discussing the First Amendment arguments raised by the defendants and applicants but finding that it lacked appellate jurisdiction, the First Amendment considered the merits under its supervisory jurisdiction because “adequate remedy does not exist by appeal, and ... irreparable injury might otherwise result.” 298 So. 2d at 106.

* Disclosure: Roppolo was one of my early successes.

Supplemental materials for Bridging the Gap participants

Today I gave a one-hour CLE presentation on appellate practice for the Louisiana State Bar Association’s Bridging the Gap webinar for new lawyers. For the webinar participants and anyone else who may be interested, here are some links to resources that you may find helpful: