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Ray
New Orleans, Louisiana, Earth
Civil appellate lawyer
Interests: Blues
Recent Activity
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 6 hours ago 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 3 days ago 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 4 days ago 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 5 days ago 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 6 days ago 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 7 days ago at Louisiana Civil Appeals
To make old posts on this blog easier to find, I’ve set up a few categories for topics that have recurred, and I’ve edited many of the old posts to put them into categories. To see the categories, click on or touch “Archives” in the navigation bar. Continue reading
Posted Mar 20, 2015 at Louisiana Civil Appeals
The peremptory exception is a means of defense, other than a denial or avoidance of the demand, to dismiss or defeat the demand. See La. Code Civ. P. art. 921. Its function is to have the plaintiff’s action declared legally nonexistent or barred by effect of law. Id. art. 923.... Continue reading
Posted Mar 20, 2015 at Louisiana Civil Appeals
In the last post on preservation of error, we looked at preserving declinatory and dilatory exceptions. These exceptions tend to be procedural rather than substantive: they impede the plaintiff’s ability to pursue the action but do not defeat the plaintiff’s action. Substantive defenses — those that defeat the plaintiff’s action... Continue reading
Posted Mar 19, 2015 at Louisiana Civil Appeals
This post is the first of several examining the preservation of defenses. A defense, depending on its nature, may be pleaded by an exception or by the answer. An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant to retard,... Continue reading
Posted Mar 18, 2015 at Louisiana Civil Appeals
Up to now, this series of posts on preserving error has examined general rules and principles underlying the doctrine of error preservation. We will now begin examining the application of those general rules and principles to specific stages of litigation. Note that, when examining how and when to raise a... Continue reading
Posted Mar 17, 2015 at Louisiana Civil Appeals
Preserving errors for appeal can seem complicated; it seems that every possible error a trial court can make has a corresponding procedure for preserving the error for appellate review. But in fact, this entire area of law can be summed up in just one basic two-part rule for preserving any... Continue reading
Posted Mar 16, 2015 at Louisiana Civil Appeals
Here is the first of a series of YouTube videos by the Comma Queen, a.k.a. Mary Norris, copy editor for the New Yorker. As a proofreader and editor, I love her long, graceful deletes! Continue reading
Posted Mar 13, 2015 at the (new) legal writer
Yesterday we saw that one purpose of requiring parties to preserve errors in the trial court is to avoid sandbagging: allowing the trial court to make an error by failing to object, then attempting to raise the error on appeal. A second purpose served by the error-preservation requirement is similar:... Continue reading
Posted Mar 13, 2015 at Louisiana Civil Appeals
In the last post, we looked at the jurisdictional foundation of the law on preserving error. Today we will look at one of two purposes of this law: prevention of sandbagging. What is sandbagging? Black’s Law Dictionary defines it as “[t]he act or practice of a trial lawyer’s remaining cagily... Continue reading
Posted Mar 12, 2015 at Louisiana Civil Appeals
Yesterday we asked why an error must be brought to the trial court’s attention to be corrected there before being raised on appeal. The answer lies in the jurisdiction of the trial and appellate courts. The first article of the Code of Civil Procedure defines jurisdiction as “the legal power... Continue reading
Posted Mar 11, 2015 at Louisiana Civil Appeals
I just redesigned this blog to make it easier to read on your smart phone or tablet. If you’re reading this post by e-mail or RSS feed, click on through and check out the new look. Continue reading
Posted Mar 10, 2015 at the (new) legal writer
I just redesigned this blog to make it easier to read on your smart phone or your tablet. If you’re reading this post by e-mail or RSS feed, click through to the blog to check out the new design. Continue reading
Posted Mar 10, 2015 at Louisiana Civil Appeals
Ray has shared their blog the (new) legal writer
Mar 10, 2015
Monday’ blog post reminded me of some materials I’ve accumulated on preserving errors for review in Louisiana state courts. Recently I shared those materials with a colleague, who suggested writing an article about the topic. I decided instead to self-publish a series of posts here on preservation of error. I... Continue reading
Posted Mar 10, 2015 at Louisiana Civil Appeals
Recently I came across I Object! A Blog on Preservation of Error. It’s sponsored by the good folks at Carlton Fields Jorden Burt, and is edited by Wendy Lumish, Sylvia Walbolt, and Steven Bickensderfer. I’m adding it to my news feed. Continue reading
Posted Mar 9, 2015 at Louisiana Civil Appeals
The other day, I learned that the Louisiana Supreme Court has promulgated a set of standard, plain-language jury instructions for civil cases. The instructions can be found in Part R, Rule XLVI (46) of the Court’s rules, which you can find on the Court’s rules page. You can find a... Continue reading
Posted Mar 6, 2015 at Louisiana Civil Appeals
In a case I’m involved in at the U.S. Fifth Circuit, we recently received, along with the notice of oral argument, this notice of the court’s new policy on admitting electronic devices, such as smart phones and tablet computers. Bottom line: you can take your smart phone or tablet with... Continue reading
Posted Mar 2, 2015 at Louisiana Civil Appeals
Fair is fair. Yesterday I criticized a petition for certiorari, filed in the U.S. Supreme Court, as being incomprehensible. It’s only fair to present the filing lawyer’s side of the story. So here is his response to the Court’s show-cause order, with some redactions (presumably to protect intellectual property). Hat... Continue reading
Posted Feb 24, 2015 at Louisiana Civil Appeals
In U.S. ex rel. Little v. Shell Exploration & Production Co., 14-20156 (5th Cir. Feb. 23, 2015) (unpublished), the Fifth Circuit not only reversed a summary judgment, but also ordered that, on remand, the case be reassigned to a different district judge. Why? Here is the sequence of events in... Continue reading
Posted Feb 24, 2015 at Louisiana Civil Appeals