Bills of interest in upcoming legislative session

“No man’s life, liberty, or property are safe while the legislature is in session.” This quotation has been attributed to Gideon J. Tucker and Mark Twain. Regardless of who said it first, it rings true. I just had a look at a list of some of the pre-filed bills. In the interest of political neutrality at this blog, I’ll refrain from editorializing on them. But a few of them bear watching by Louisiana appellate lawyers.

Two bills would propose constitutional amendments affecting the structure of the Louisiana Supreme Court. House Bill No. 28 would increase the number of justices from seven to nine (one chief justice plus eight associate justices). Probably more controversial will be Senate Bill No. 178; that one would eliminate the seven supreme-court districts and require all justices to win statewide election. That one is bound to be a lightning rod, as it will likely be perceived as an effort to dilute minority votes.

One more bill of note, Senate Bill No. 78, would propose a constitutional amendment empowering the legislature to create courts by a two-thirds vote. I don’t know the purpose of that one; my impression is that the legislature already has the power to create courts—our five courts of appeal are creatures of legislation. See La. R.S. 13:312.


In case you missed it

I recently figured out that there was a problem with the email subscription service for this blog. A few communications with Typepad and Feedblitz seem to have solved the problem. But if you’re an email subscriber, there are still some posts you may have missed, such as:

If you’d like to be extra sure not to miss any future posts, I have two suggestions. First, add [email protected] to the safe-senders list in whatever email system you use. Second, follow me on LinkedIn. I usually try to cross-post on LinkedIn whenever I post something to this blog. For my part, I’ll try to change “usually” to “always” so that all posts here are cross-posted on LinkedIn.

Thanks for reading.


In case you missed it

I recently figured out that there was a problem with the email subscription service for this blog. A few communications with Typepad and Feedblitz seem to have solved the problem. But if you’re an email subscriber, there are still some posts you may have missed, such as:

If you’d like to be extra sure not to miss any future posts, I have two suggestions. First, add [email protected] to the safe-senders list in whatever email system you use. Second, follow me on LinkedIn. I usually try to cross-post on LinkedIn whenever I post something to this blog. For my part, I’ll try to change “usually” to “always” so that all posts here are cross-posted on LinkedIn.

Thanks for reading.


The Indigo Book: A Free Citation Manual

Would you like a citation manual that—unlike The Bluebook—is designed for practitioners, is easy to use, and costs nothing? If so, then check out The Indigo Book. It comes in your choice of HTML and PDF formats. The latter is handy if you want to browse the pages. (Note: It’s 284 pages long, so if you print a hard copy, print on both sides of the page.)

Besides giving good guidance for citations, it’s peppered with helpful comments, called “Indigo Inklings.” My favorite so far is the one that tells you how to type “§” (Alt-0167 in Windows; Option-6 on an Apple keyboard).

Of course, if you’re citing a Louisiana case decided after 1993 to a Louisiana court, follow § 8 of the LASC’s General Administrative Rules.


U.S. 5th Circuit Attorney Toolbox

Recently, Lyle Cayce—the indefatigable clerk of the U.S. 5th Circuit—has implemented more tech tools to make lawyers’ practice in that court easier: a new “Attorney Toolbox” feature added to the court’s CM/ECF system. You can read his announcement and description of its features by following this link. Here’s his intro:

I write to make sure that BAFFC[*] members know that we have created a new “Attorney Toolbox” you can access by clicking on the link prominently displayed on the CM/ECF landing page. This Toolbox will eventually serve as the location for case related programs now found under our “Utilities Tab,” including the EROA download, brief template, and Quality Control (QC) programs. But the Toolbox also contains two features long requested by BAFFC members — a record excerpt creation tool for appellants, and hyperlinks in pleadings.  

__________
* Bar Association of the Federal Fifth Circuit


How not to evade the word-count limit

Sometimes brief-writers find themselves tempted to squeeze under the page limit or word-count limit by referring to and incorporating by reference an argument in another brief. If you’re ever tempted to do that, here’s my suggestion: Don’t. Otherwise, you may find yourself on the receiving end of an order like this one in Promptu Systems Corp. v. Comcast Cable Communications, LLC, No. 2022-1093 (Fed. Cir. Feb. 16, 2024). The lawyer there tried to get under the word-count limit by incorporating by reference a 2,000-word argument from another brief. The court didn’t appreciate that; nor did it appreciate the lawyer’s argument that he was just trying to “streamline the briefing”: “Requiring the Court to crossreference arguments from multiple briefs in multiple, separate cases does not increase efficiency nor does exceeding the word count.”

If you think you’ll have trouble meeting the page limit or word-count limit, file a motion to enlarge the limit. That motion will likely get a better reception than any attempt to evade the limit. And if you’re filing in a Louisiana court of appeal, be mindful of Uniform Rule 2-12.2(C)(3).


Have you thought of becoming an appellate specialist?

Many readers of this blog devote a substantial part of their practice to appellate litigation. If you’re one of them and if you’ve been practicing for at least five years, please consider applying for certification as an appellate specialist. The Louisiana Board of Legal Specialization recently extended the 2024 application deadline from February 29 to March 15. To find out whether you qualify, follow this link to read the standards. See also this letter from the LBLS Chair, Richard Leefe, to members of the LSBA Appellate Section.


The first two commandments of brief writing

Here’s something I’ve wanted to get off my chest for a long time. It springs from the seemingly endless debates lawyers have about matters of style in writing a brief: Citations in text or in footnotes? How many spaces—1 or 2—after the end of a sentence? What font to use? And so on.

We often answer these questions according to what we like or what we think judges like. In my opinion, that’s the wrong approach to answering these questions. Instead, in making these choices, we should ask ourselves one question: Which choice will be most persuasive?

This approach stems from something we all should agree on: that the brief’s most important purpose is to persuade the judges deciding the case. Judge Ruggero Aldisert made this point well in Winning on Appeal:

Briefs are written for one audience and one audience only: judges and their law clerks.... You write to persuade a court, not to impress a client. You write to persuade a court to your point of view; at a minimum, you write to convince the court to grant oral argument in your case. The key word is “persuasion.” If a brief does not persuade, it fails....

Persuasion is the only test that counts. Literary style, massive displays of scholarship, citations that thunder from the ages, and catchy phrases are uniformly pointless if the writing does not persuade.

[Ruggero J. Aldissert et al., Winning on Appeal 15 (3d ed. 2017).]

Because the brief’s most important purpose is to persuade, the most important consideration in every choice we make as brief writers is this: Which choice will make the brief more persuasive? As Bryan Garner has said, “All aspects of a brief—its basic ideas, its tone, its sentence structure, its word choice, its punctuation, its page layout—matter.” The Winning Brief xiii (3d ed. 2014). All aspects matter for persuasiveness.

Let me give you an example: choice of font. My go-to font is Cambria, which I use whenever the rules allow me to choose the font. Why? Not because I think it looks nice (though I do), but because it has high contrast—the letters stand out from the white background better than in other fonts. Studies in cognitive psychology show that high-contrast text is (no surprise) easier to read, which encourages readers to use System 1 thinking, which makes them more receptive to whatever message the writing conveys. So I choose Cambria not because I find it aesthetically pleasing, but because I have reason to think that it will enhance the persuasiveness of my brief.

How do you know what’s more persuasive? Learning that is a career-long pursuit. I recommend the books listed on the right side of this blog’s home page. Bryan Garner’s books are a good place to start. For an intro to cognitive psychology, check out Daniel Kahneman’s Thinking, Fast and Slow. For lessons in classical rhetoric, check out Classical Rhetoric for the Modern Student by Edward Corbett and Robert Connors and Legal Persuasion by Linda Berger and Kathryn Stanchi. For advice on applying this knowledge to brief writing, I recommend Michael Smith’s Advanced Legal Writing.

So here are the first two commandments of brief writing:

  1. Persuasiveness matters more than anything else.
  2. The most important consideration for every choice you make as a brief writer is which choice will be most persuasive.

For your last-minute appellate CLE needs

If you haven’t yet met your CLE quota and are looking for appellate CLE, check out these upcoming offerings:

For appellate specialists and those intending to apply for appellate specialization in 2024, both seminars qualify for appellate-specialization CLE credit.


LASC ruling on use of prior cases in reviewing general damages

Today, the Louisiana Supreme Court issued a significant decision on appellate review of general damages. In Pete v. Boland Marine & Manufacturing Co., 2023-C-170 (La. 10/20/23), the LASC holds that, in determining whether a factfinder abused its discretion in assessing general damages, “an appellate court is to include a consideration of prior awards in similar cases, as well as the particular facts and circumstances of the case under review.” Id., p. 10. Prior cases held that a reviewing court could look to prior cases involving similar injuries only after finding an abuse of discretion, and then only to determine the highest or lowest reasonable award. As the LASC explained in Pete, this left reviewing courts with “no objective, neutral, or equitable way to measure whether a general damage award is, in fact, an abuse of discretion.” Id., p. 8. This led the LASC to find that “the abuse of diiscretion standard lacks parameters and, for that reason, we are compelled to find an approach that includes an element of objectivity.” Id., p. 7.

What this means for appellate practitioners is that prior cases involving similar injuries are now relevant in showing that the award under review is abusively high or low. At the same time, prior awards do not establish a uniform scale. Consideration of prior awards is merely “a starting point. No two cases will be identical. The review of prior awards will simply service to illustrate and supply guidance in the determination of damages.” Id., p. 9