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New Orleans, Louisiana, Earth
Civil appellate lawyer
Interests: Blues
Recent Activity
A brief can help the judicial reader. Or it can be a big, stinking — well, Mark Herrman explains it better than I can. Continue reading
Posted Jul 13, 2015 at the (new) legal writer
A recent writ decision by the Louisiana First Circuit provides a valuable lesson on timeliness. As most of you know, a party wishing to apply to the court of appeal for a supervisory writ must first file, in the trial court, a notice of intent to seek a supervisory writ... Continue reading
Posted Jul 9, 2015 at Louisiana Civil Appeals
Today the Louisiana Supreme Court issued a decision in Costanza v. Caldwell, a case involving same-sex marriage that has managed to fly under the radar of main-stream media. Since my firm represented an amicus in the case, I won’t comment on the decision; instead I’ll just report the facts. The... Continue reading
Posted Jul 7, 2015 at Louisiana Civil Appeals
Louis LaCour, chair of the Louisiana State Bar Association’s appellate section reports on an important vote yesterday by the LSBA House of Delegates: Everyone: I’m please to report that the Louisiana House of Delegates considered and approved, by a narrow margin, the creation of a new specialty in Appellate Practice... Continue reading
Posted Jun 12, 2015 at Louisiana Civil Appeals
Megan Boyd has a good post at Lady (Legal Writer) on the use of forms in legal writing. She does not ban them, but she does offer some wise cautionary advice on using them. I am not a fan of... Continue reading
Posted Jun 9, 2015 at the (new) legal writer
Does your draft brief exceed the court’s page limit? Before asking the court for extra pages, try these tips by Mark Herrmann for getting the brief under the page limit. Continue reading
Posted Jun 1, 2015 at the (new) legal writer
The New Orleans Bar Association is offering some lunchtime CLE in June with two appellate judges. On June 17, Judge Stephen Higginson will give a one-hour presentation on practice and procedure at the U.S. Fifth Circuit. On June 24, Judge Terri Love will give a similar presentation on practice and... Continue reading
Posted May 27, 2015 at Louisiana Civil Appeals
This morning I gave a presentation on appellate practice at the Louisiana State Bar Association’s “Bridging the Gap¨ seminar for newly admitted lawyers. For those who are interested, here are links to my written materials and my my presentation. And to find those bonus materials I talked about, follow this... Continue reading
Posted May 5, 2015 at Louisiana Civil Appeals
Theoretically, Louisiana is a civil-law jurisdiction. This means that our primary sources of law are legislation and custom. Theoretically, it also means that we don’t recognize stare decisis: the idea that an appellate decision creates binding law for the appellate court and all lower courts under its jurisdiction. But, as... Continue reading
Posted Apr 22, 2015 at Louisiana Civil Appeals
When trial results in an adverse final judgment, a party may move for new trial under La. Code Civ. P. arts. 1971 et seq. Often, the arguments raised in a motion for JNOV or new trial can be the same as those raised in an appeal. This raises two questions.... Continue reading
Posted Apr 10, 2015 at Louisiana Civil Appeals
Code of Civil Procedure art. 1814 authorizes a trial court to grant an additur or remittur if the court believes that the verdict is so excessive or inadequate that a new trial should be granted for that reason alone. In such cases, the trial court must give the party adversely... Continue reading
Posted Apr 9, 2015 at Louisiana Civil Appeals
This tip for bench trials in Louisiana is a no-brainer: If you lose, file a timely request for the trial court’s findings of fact and reasons for judgment. “Timely” means within 10 days after mailing of the notice of final judgment. See La. Code Civ. P. art. 1917(A). In tort... Continue reading
Posted Apr 8, 2015 at Louisiana Civil Appeals
How does one preserve for appellate review an inconsistency in the jury’s verdict? If you spot the inconsistency before the jury is discharged, raise it immediately so that the trial judge can send the jury back for further deliberations. If you don’t spot the inconsistency until after the jury is... Continue reading
Posted Apr 7, 2015 at Louisiana Civil Appeals
For practicing lawyers, the purpose of writing articles is to develop business. By writing authoritatively, you can establish your knowledge of the subject you’re writing on. And with any luck, your article will be read by someone in a position... Continue reading
Posted Apr 6, 2015 at the (new) legal writer
The way to preserve objections to jury instructions in Louisiana courts is spelled out in La. Code Civ. P. art. 1793. Article 1793(A) allows the parties to file written requests for jury instructions, and art. 1793(B) requires the judge to inform the parties of the instructions it will give (including... Continue reading
Posted Apr 6, 2015 at Louisiana Civil Appeals
In our last post, we looked at preserving erroneous evidentiary rulings for appellate review. We will now turn to other errors that may occur during a trial. The default rule for preserving an error for review is spelled out in La. Code Civ. P. art. 1635: “For all purposes it... Continue reading
Posted Apr 2, 2015 at Louisiana Civil Appeals
The good folks at the OED debunk 7 grammar myths you may have learned in school. Continue reading
Posted Apr 1, 2015 at the (new) legal writer
At trial, a court may err in admitting evidence or excluding it. If the error does not affect a party’s substantial right, the error will be deemed harmless. See La. Code Evid. art. 103(A) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial... Continue reading
Posted Apr 1, 2015 at Louisiana Civil Appeals
In the last post, we looked at errors in granting or denying a jury trial. Today we will look at preserving errors in jury selection. Most of us are familiar with the jury-selection process. A group of prospective jurors is sworn to answer questions truthfully. Then the judge and the... Continue reading
Posted Mar 31, 2015 at Louisiana Civil Appeals
In the last post, we saw that a party aggrieved by the erroneous granting of a jury trial must seek immediate appellate review by applying for a supervisory writ; otherwise the court of appeal will deem the issue waived. Does the same rule apply to the erroneous denial of a... Continue reading
Posted Mar 30, 2015 at Louisiana Civil Appeals
Let’s say the trial court denies your motion to strike a jury. Can you save this issue for appeal after final judgment? Probably not. Louisiana caselaw consistently holds that a litigant aggrieved by such a ruling must apply for a supervisory writ so that the issue can be reviewed and... Continue reading
Posted Mar 27, 2015 at Louisiana Civil Appeals
To be admissible, expert testimony must be reliable under the standards first articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and adopted by the Louisiana Supreme Court in State v. Foret, 628 So. 2d 1116 (La. 1993). Code of Civil Procedure art. 1425(F) provides a detailed... Continue reading
Posted Mar 26, 2015 at Louisiana Civil Appeals
Louisiana appellate courts review summary judgments de novo, applying the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of LSU, 591 So. 2d 342, 345 (La. 1991). Based on this standard of review, one might think that an appeal... Continue reading
Posted Mar 25, 2015 at Louisiana Civil Appeals
Before leaving the topic of preserving claims and defenses, let’s look at something that can be part of a claim or a defense: an argument that a law is unconstitutional. The general rule in Louisiana is that litigants must first raise constitutional attacks in the trial court, not the appellate... Continue reading
Posted Mar 24, 2015 at Louisiana Civil Appeals
As we saw in an earlier post, an affirmative defense “raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits.” Webster v. Rushing, 316 So. 2d 111, 114 (La.... Continue reading
Posted Mar 23, 2015 at Louisiana Civil Appeals