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Ray
New Orleans, Louisiana, Earth
Civil appellate lawyer
Interests: Blues
Recent Activity
The history of the LASC’s lectern
Sometimes a visitor to a place sees things that its regular inhabitants miss. Like, for instance, the lectern at the Louisiana Supreme Court. Recently a lawyer based in Houston, Raffi Melkonian, argued a case in the LASC, and was impressed by the lectern. He noticed details that LASC regulars probably... Continue reading
Posted Dec 17, 2024 at Louisiana Civil Appeals
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Bryan Garner’s most misunderstood advice
One thing that Bryan Garner is famous for is suggesting that brief-writers put their legal citations in footnotes rather than in text. People sometimes debate that point as if the only issue were the location of the citations. If that’s what you think, then you misunderstand Garner’s advice. To follow... Continue reading
Posted Dec 16, 2024 at Louisiana Civil Appeals
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If you’re stuck with system fonts
First, I’m sold on the idea that for typography, professional fonts are the best, and Matthew Butterick’s Equity font may be the best choice for legal writers. The U.S. Fifth Circuit uses Equity in its opinions, and some fine lawyers I know also use it. But may of us are... Continue reading
Posted Dec 13, 2024 at Louisiana Civil Appeals
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Can a winner appeal?
Let’s say a party wins a judgment in the trial court, but along the way, the trial court makes findings unfavorable to the winning party. Can the winning party appeal? That question came up in a recent opinion from the U.S. Fifth Circuit, In re Riverstone Resor, LLC (Azhar Chaudhary... Continue reading
Posted Dec 12, 2024 at Louisiana Civil Appeals
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Rearranged rehearing rules in the U.S. 5th Circuit
Since I can remember, the Federal Rules of Appellate Procedure had two rules for rehearing: FRAP 35 for en banc rehearing,1 and FRAP 40 for panel rehearing. Effective last Sunday, December 1, the substance of FRAP 35 was moved to and incorporated in a new FRAP 40, governing both petitions... Continue reading
Posted Dec 3, 2024 at Louisiana Civil Appeals
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What happens when an appellant fails to pay the appeal costs
In Louisiana courts, appeals cost money—even excluding attorney fees. The appellant is responsible for paying the cost of preparing the record for the appeal. Immediately after the order of appeal is granted, the clerk is supposed to estimate the costs of preparing the record and mail a bill for the... Continue reading
Posted Dec 2, 2024 at Louisiana Civil Appeals
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eAccess at the La. 5th Circuit
The Louisiana Fifth Circuit now offers on-line access to public case records. For a subscription fee, it allows to court filings related to an appeal or a writ application. If you don’t want to subscribe, you can still use it to download a copy of an appeal record or a... Continue reading
Posted Dec 2, 2024 at Louisiana Civil Appeals
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Coyote v. Acme Co.
For your pre-Thanksgiving weekend enjoyment, here is the opening statement of Mr. Harold Schoff, plaintiff’s attorney in Wile E. Coyote v. Acme Co., No. B19294 (D. Ariz. Feb. 18, 1990). Think of it as a lesson in the silliness of legalese, which Mr. Schoff uses to describe various mishaps caused... Continue reading
Posted Nov 22, 2024 at Louisiana Civil Appeals
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New U.S. 5th Circuit rule for filings requiring prompt action
If you file a motion in the U.S. Fifth Circuit needing expedited consideration, you need to follow a new procedure, effective October 31. The new procedure, in amended 5th Cir. Rule 27.3, requires the filer to give the clerk’s office a heads-up by telephone, and the filing must inform the... Continue reading
Posted Nov 12, 2024 at Louisiana Civil Appeals
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There’s a rule for citing the Revised Statutes
Did you know that Louisiana has a rule for citing the Revised Statutes? I didn’t until a few minutes ago. The rule is hiding in plain sight at R.S. 1:1. Luckily, I’ve been unwittingly citing the Revised Statutes just as the rule specifies: it says to cite the Revised Statutes... Continue reading
Posted Nov 8, 2024 at Louisiana Civil Appeals
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Bonding an appeal of an excess judgment
Let’s say that, in a personal-injury suit, the plaintiff sues both the tortfeasor and the tortfeasor’s liability insurer, and the trial results in a judgment over the insurer’s policy limit. If the insurer wants to take a suspensive appeal, does it need a bond covering the entire judgment amount, or... Continue reading
Posted Oct 25, 2024 at Louisiana Civil Appeals
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For “Bridging the Gap” participants
This morning I gave a one-hour presentation on appellate practice at the Louisiana State Bar Association’s semi-annual Bridging the Gap seminar for new and relatively new lawyers. The legal citations in my written materials had hyperlinks to the cases and statutes being cited, but the hyperlinks were stripped in the... Continue reading
Posted Oct 23, 2024 at Louisiana Civil Appeals
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Blog maintenance
Today I found a bit of time to update the appellate blogroll: you’ll find it on this blog’s home page on the right, under the “Appellate Blogs” heading. As of today, it includes several new entries from across the country. Blog rolls used to be a standard feature of every... Continue reading
Posted Oct 22, 2024 at Louisiana Civil Appeals
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New local rules at the La. Fifth
The Louisiana Fifth Circuit has a few recent updates to its local rules. On September 24, the court updated Local Rules 1 and 2. Local Rule 1 implements a new fee schedule. Local Rule 2(A) now provides that “[a]ll filings require only one original. Filings submitted electronically or via facsimile... Continue reading
Posted Oct 22, 2024 at Louisiana Civil Appeals
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Catchall briefing leads to forfeiture of argument
A few days ago, the U.S. Fifth Circuit issued a judgment in First United Pentecostal Church v. Church Mutual Insurance Co., No. 23-30779 (5th Cir. Oct. 17, 2024). For folks litigating hurricane-related coverage disputes, First United is interesting: while it affirmed the trial court’s award of the amount owed under... Continue reading
Posted Oct 21, 2024 at Louisiana Civil Appeals
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A different approach to introductions and conclusions
We’ve all heard the conventional thinking about introductions and conclusions. It goes something like this: Introduction: Tell them what you’re going to tell them. Body: Tell them. Conclusion: Tell them what you just told them. In an article I recently came across, attorney Bret Rappaport challenges that conventional thinking. And... Continue reading
Posted Oct 21, 2024 at Louisiana Civil Appeals
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Who’s responsible for missing trial exhibits?
It’s not the plaintiff-appellant’s fault if the defendant-appellee’s trial exhibits are missing from the record on appeal because the defendant-appellee failed to provide them to the clerk of court. That was the Louisiana Supreme Court’s common-sense ruling today in Estate of Knox v. Banks, No. 2024-C-00516 (La. 10/15/24), reversing 2023-CA-0762... Continue reading
Posted Oct 15, 2024 at Louisiana Civil Appeals
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The 5th Circuit by numbers
Posted Oct 2, 2024 at Louisiana Civil Appeals
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What’s your persuasion strategy?
Here’s an axiom for anyone reading this blog: the primary (if not sole) purpose of a brief is to persuade. But don’t take my word for it. Consider this passage by Judge Ruggero Aldisert and refined by successor authors: You write to persuade a court, not to impress a client.... Continue reading
Posted Oct 1, 2024 at Louisiana Civil Appeals
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Can’t sneak a jurisdictional problem past the 5th Circuit
Here’s the scenario: An insurance company sues some limited liability companies for declaratory judgment in federal court, alleging diversity of citizenship as a basis for jurisdiction. But the insurance company failed to properly allege the LLCs’ citizenship. Citizenship of an LLC is determined by the citizenship of its members, but... Continue reading
Posted Sep 24, 2024 at Louisiana Civil Appeals
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Which persuasive authorities are more persuasive?
If you’re reading this blog, you probably know that, when building an argument, it’s best to rely on primary, binding authorities: governing legislation and caselaw from the court of appeal you’re in or the Louisiana Supreme Court. But what if your case raises an issue that isn’t governed by binding... Continue reading
Posted Sep 20, 2024 at Louisiana Civil Appeals
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Update on Abraham Watkins et al. v. Festeryga
In my last post (July 26), I reported on the U.S. 5th Circuit’s panel opinion in Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337 (5th Cir. July 25, 2024), now reported at 109 F.4th 810. Since I haven’t posted anything since then, you can read about that... Continue reading
Posted Sep 16, 2024 at Louisiana Civil Appeals
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Stare decisis applies to wrongly decided cases
Yesterday, the U.S. Fifth Circuit rendered an interesting decision touching on both the binding effect of precedent and appellate jurisdiction of a remand order. The long and short of it is, “We think our precedent is wrong, but we have to follow it.” Abraham Watkins Nichols Agosto Aziz & Stogner... Continue reading
Posted Jul 26, 2024 at Louisiana Civil Appeals
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This is big.
Today the Louisiana Supreme Court reversed itself on rehearing in Bienvenu v. Defendant 1, 2023-CC-1194. That’s the case testing the constitutionality of legislation reviving claims for sexual abuse of minors after those claims had prescribed. On the first go-round, the LASC split 4–3 in holding the legislation unconstitutional, with Chief... Continue reading
Posted Jun 12, 2024 at Louisiana Civil Appeals
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Yes, font choice is important
Does font choice matter in writing an appellate brief? YES! If you don’t believe that, read the U.S. Seventh Circuit’s recent decision in AsymaDesign, LLC v. CBL & Associates Management, Inc., No. 23-2495 (7th Cir. June 3, 2024), starting with the last paragraph on page 4.1 There, Judge Easterbrook urges... Continue reading
Posted Jun 4, 2024 at Louisiana Civil Appeals
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