Preserving errors for review

Today I'm helping to give a one-hour presentation on preserving errors for appellate review, as part of the Louisiana Justice Community Conference in Baton Rouge. For participants and anyone else who may be interested, I've uploaded my written materials at Minor Wisdom. To get there, click here.

Bridging the Gap materials on appellate practice

In a little over an hour, I will be presenting the appellate segment of the LSBA's Bridging the Gap seminar at the New Orleans Marriott. For anyone who's interested, I've uploaded my materials, PowerPoint presentation, and other goodies on The (New) Legal Writer.

Amendments to Uniform Rules of La. Courts of Appeal

The Louisiana Conference of Court of Appeal Judges has approved several amendments to the Uniform Rules of Louisiana Courts of Appeal, effective November 1, 2006. You can download a copy of the amendments by clicking here. Lawyers who file appeal briefs or writ applications will want to be aware of the following amendments:

1. Rule 2-13 has been amended to state that if you file by mail, proof of timely filing includes a postmark, a receipt for mailing, or, if you file by FedEx, UPS, or other "bonafide commercial service," an official receipt from the commercial service. "Any other date stamp, such as a private commercial mail meter stamp, shall not be used to establish timeliness."

2. Rule 3-2 has been amended to speed up communication in election cases, to allow various notices to be sent by e-mail "if directed by the Court of Appeal."

3. Starting November 1, writ applications and attachments must be hole punched and bound in two places along the top margin, preferably with 4 1/4 inch metal file fasteners such that no part of the text on any page is obscured, and in sections consisting of no more than 250 pages ...." Also, the statement of the case must "includ[e] the status of the case at the time the writ application is filed, in order to reflect any trial dates or hearing dates that are pending ...." See amendment to Rule 4-5.

4. Once the writ application is filed, if any trial or hearing date is set, or any date included in the writ application is changed or continued, the applicant must notify the Court of Appeal within three business days, either by fax or (if directed by the Court of Appeal) by e-mail. Within one week of the setting or scheduling change, the applicant must file a supplement to the writ application with the new information.

Appellate CLE materials

On Minor Wisdom, I've posted some materials from a CLE session I taught this afternoon. It was the appellate hour of the Louisiana State Bar Association's Bridging the Gap program, a two-day seminar designed for newly minted lawyers to "bridge the gap" between law school and professional practice.

LSBA forms appellate section

René deLaup submits the following announcement:

The [La. State Bar Association] House of Delegates has approved the formation of the Appellate Section.

The members will meet and communicate via an electronic discussion group. All members will be automatically subscribed to this listserve. The first order of business there will be to come up with an appellate-advocate light-bulb joke.

The section will ask every member to make a small scholarly contribution to the listserve once a year, even if it is just an educational war story from her practice or a few remarks about a recent decision or court rule.

In slow months for appellate-practice developments, we may use our Recent Developments section of the Bar Journal to puncture some cherished legal-writing shibboleths.  We promise this will be excruciating. Stay tuned.

Appellate tip of the day

Under the Rule 2-12.7, Uniform Rules of Louisiana Courts of Appeal, an appellant's reply brief is due 10 days after the appellee files its brief. Note carefully: that's not 10 days after the appellee's due date, but 10 days after the appellee actually files. For example, let's say you represent the appellant, and the appellee's brief is due on June 1. If the appellee actually files on June 1, your reply brief is due on June 11. But if the appellee files a day early, on May 31, your reply brief is due on June 10, not June 11.

And remember that in the Louisiana courts of appeal, you can file by mail, and the date of the postmark is deemed the date of filing. So in the above example, if the appellee mailed the brief on May 31 and it arrived at the clerk's office on June 1, it will be deemed filed on May 31.

Appellate tip of the day

When most lawyers prepare an application to a court of appeal for a supervisory writ, the last thing they do before having it photocopied is assemble the documents to be included in the appendix. But you can make the job easier by assembling and page-number your appendix first, before you write the writ application. Number the pages in the appendix consecutively, A1 through A-whatever. If you do this, you can give the court a pinpoint cite to a specific page in your appendix whenever you refer to any document there.

Improve your legal writing

Bryan Garner is a reknowned speaker on the subject of legal writing, and his seminars are always lively and highly informative. On June 7th, he is coming to New Orleans to speak at the Hyatt Regency Hotel (500 Poydras Plaza). His topic will be The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts. Advance Registration is $375 for the all day seminar, which starts at 8:30 am and ends at 4:00 pm.

For more information call 214-691-8588 or visit his company website. Do yourself a favor and look into attending this seminar. You won't regret it, and you'll wind up being a better legal writer.

Jurisdictional statements in appellate briefs: An editorial

In Louisiana's appellate courts, the appellant's brief must "set forth the jurisdiction of the court." Rule 2-12.4, Unif. R. La. Cts. App. I'm going to go out on a limb here and assume that the courts of appeal put that requirement in Rule 2-12.4 for a reason: to help the court determine whether it in fact has appellate jurisdiction. If that is the purpose of the jurisdictional statement, then most jurisdictional statements that Louisiana lawyers actually write are useless.

If you're a Louisiana lawyer who, on occasion, writes an appellate brief, and if you'd like to distinguish yourself from the herd -- if you want the court of appeal to appreciate your brief -- then read below the fold.

Here is a typical jurisdictional statement:

This Court has jurisdiction of this appeal pursuant to the Louisiana Constitution, Article V, Section 10 and La. Rev. Stat. § 13:312.

Jurisdictional statements like this are useless for helping the court figure out whether it actually has jurisdiction. They are useless because they fail to tell the court anything that the court doesn't already know.

A good jurisdictional statement should tell the court things that it does not already know: the facts and record citations to answer two questions:

1. Is the judgment in question subject to an appeal?
2. Did the appellant obtain a timely order of appeal?

Here are some examples of informative answers to question # 1:

The judgment in question is a final judgment under La. C.C.P. Art. 1915(A), because it dismisses the suit as to one defendant. R.__. Therefore, it is an appealable judgment under La. C.C.P. Art. 1911.

The judgment in question is an appealable judgment, because the trial court designated it as a final judgment, after expressly finding no just reason to delay an immediate appeal. R.___. Therefore, the judgment is appealable under La. C.C.P. Art. 1915(B).

This is an appeal from a judgment granting a preliminary injunction. R. ___. Such a judgment is immediately appealable under La. C.C.P. 3612(B).

To answer question # 2 -- whether the appeal is timely -- requires that you give the court the pertinent dates, with record citations. For example:

The clerk of court mailed notice of judgment on February 1, 2005. R. ___. On February 20, 2005, the trial court granted an order of suspensive appeal, R. ___, and on February 28, 2005, the appellant furnished security for the appeal in the amount fixed by the trial court. R. ___. Thus, the appellant timely perfected its suspensive appeal. La. C.C.P. Art. 2123(A).

Write an informative, useful jurisdictional statement, and you will establish yourself in the court's eyes as a better than average lawyer.

Proposal for LSBA Appellate Section

New Orleans lawyer René B. deLaup is spearheading an effort to create an Appellate Section of the Louisiana State Bar Association. He sent me this message describing his effort:

Our LSBA doesn’t have an appellate section, and I’m trying to gauge interest. Texas has one (http://www.tex-app.org/); some other states probably do too. In addition, Louisiana appellate courts have no organization of appellate attorneys from which to solicit feedback on rule changes.

I envision an LSBA appellate section being not much more than a low-traffic listserve discussion group where we can share expertise and tips. I hope also that the appellate court judges would sometimes consult us for our thoughts on an appellate practice issue or U.R.C.A. amendment. On a volunteer basis only, members could write pieces in the Louisiana Bar Journal on new developments or on legal-writing topics. Annual dues of $5 or $10 should cover it.

I’ve drafted some proposed bylaws, and I can do a resolution for approval by the LSBA House of Delegates at the June annual meeting. I may need some more names behind the resolution. Please let me know if you’re interested in the section.
--
René B. deLaup
Attorney at Law, Appeals
511-B Lowerline Street
New Orleans, Louisiana 70118-3801
504-861-7402

René is still tinkering with the draft bylaws, but the preliminary draft he sent is here. If you have any comment or feedback on the draft, write to René; his email is rdelaup*at*bellsouth.net.

Several people at my firm (Adams and Reese) are interested in this idea. René is drafting a resolution that he'd like to submit to the LSBA House of Delegates at the June 2005 annual meeting. He's going to sign it and then send it over here for signing, by us and other interested people located in downtown New Orleans. If you're a member of the LSBA who'd like to sign the resolution, please let us know. Send an email to René or to me (ray.ward*at*arlaw.com), or leave a comment here.

Out-of-the-Box Resources

AJ Levy notes that the Louisiana Supreme Court now makes its Westlaw subscription available for free on two terminals in its library. Most law school libraries in the state also make resources freely available--if you make the effort to visit. For example, Loyola provides the excellent resources listed here (if you are not familiar with them, take the time to read the descriptions--especially for Hein Online and Wilson Web). LSU provides an even more exhaustive set of databases in its library.

UPDATE: AJ Levy notes that the law school libraries do not provide free access to Westlaw and Lexis. Generally, if an item on the LSU list is not freely available, it will indicate that a personal password and/or LSU ID is necessary for access.

E-Discovery & Proposed Changes to the FRCP

Mike Tonsing has a thought-provoking article on proposed changes to the Federal Rules of Civil Procedure and e-discovery. Here's a sample quote from the article: "Marrying e-discovery with a mandatory initial disclosure requirement could produce a wholly unnecessary, expensive hurdle for parties at the outset of most cases..."

Clerk of Court Information Online?

KiMformation provides some research on the status of online access available from Louisiana Clerks of Court. Unfortunately, it doesn't look very promising for the time being, although a few Clerks of Court provide paid access to docket and record information. Kim also provides some excellent content about managing the flow of information through a law office, so take the time to look around.

Louisiana Joins Streamlined Sales Tax Study Commission

The Times reports on Louisiana's plans to seek a tax on Internet and catalog sales. Claiming that Louisiana lost an estimated $302 million in state and local taxes in 2001, Louisiana has "signed onto a joint effort (with 30 other states), commonly referred to as the streamlined sales tax study commission, to find a national solution to their mutual problem."

A second article outlines the work being done to develop a uniform sales tax code to aid Internet taxing efforts.

GM Wins Appeal in First Circuit

The Advocate reports that General Motors has won an appeal to the First Circuit Court of Appeal preventing owners of GMC and Chevy pickups with sidesaddle gasoline tanks to sell their $1,000 vouchers for new GM vehicles for $100.

Plaintiffs' counsel in the original class action arranged with Certificate Redemption Group of Houstong to buy the certificates, planning to sell them to companies or individuals. GM objected to the organized effort to create a secondary market by claiming that it made "impermissible" and "substantive" changes to the settlement agreement. Both sides have applied for a rehearing.

Wal-Mart faces Court Challenge in NOLA

The New Orleans City Council approved a plan to use tax revenue from a new Wal-Mart to be built on the site of the former St. Thomas public housing complex (near Magazine Street) to back $20 million in bonds to help pay for housing planned near the Garden District. The Times Picayune reports that the city filed a petition against All Taxpayers, Property Owners and Citizens of New Orleans, which seeked to "permanently [enjoin] any person from bringing any action or proceeding contesting the validity" of the bonds, the council's actions or any of the lengthy legal documents involved, "or any other matters adjudicated or which might have been called into question in said proceedings."

The citizens fighting Wal-Mart and the housing development have also filed suit to contest the council's approved use of "tax increment financing" to underwrite the bonds. Not surprisingly, the developer intends to begin construction in a few months, despite the large number of legal challenges he faces. Deja Vu anyone?