Tag Archives: Louisiana Civil Appeals Blog

No Sandbagging!

13 Friday Mar 2015

Posted by in Appellate Law, Appellate Record, Issues On Appeal, Preservation of Error

≈ Comments Off on No Sandbagging!

Tags

, , , , ,

Thou Shalt Not Sandbag, by Raymond P. Ward, Louisiana Civil Appeals Blog

http://raymondpward.typepad.com/la-appellate/2015/03/thou-shalt-not-sandbag.html

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 silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem.’ Black’s Law Dictionary 1542 (Bryan A. Garner, ed., 10th ed., Thomson Reuters 2014). Justice Scalia once described sandbagging as ‘suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later — if the outcome is unfavorable — claiming that the course followed was reversible error. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

Appellate courts hate sandbagging. As proof of this proposition, here are some quotable quotes:

  • ‘The Sixth Circuit’s decision to require the filing of objections is supported by sound considerations of judicial economy…. The Sixth Circuit’s rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from ‘sandbagging’ the district judge by failing to object and then appealing.’ Thomas v. Arn, 474 U.S. 140, 147–48 (1985).
  • ‘The rationale behind this Court’s opinion in Lewis was distaste for the ‘sandbagging’ practice in which defendants circumvent district judges and raise objections for the first time on appeal.’ Perales v. Casillas, 950 F.2d 1066, 1071 (5th Cir. 1992).
  • ‘If the record indicates that counsel for the complaining party deliberately avoided making the proper objection or request, plain error will almost never be found. This court will not tolerate ‘sandbagging’ defense counsel lying in wait to spring post-trial error.’ U.S. v. Sisto, 534 F.2d 616, 624 n. 9 (5th Cir. 1976).

Ththere no-sandbagging rule is a consequence of the appellate court’s jurisdiction, which is limited to reviewing the trial court’s actions. It is also a matter of fairness to the district court. In the appellate courts’ view, it is unfair to the district court to complain of that court’s error on appeal without having given that court a fair opportunity to avoid or correct its own error.

Preserving Issues On Appeal.

11 Wednesday Mar 2015

Posted by in Appellate Law, Appellate Record

≈ Comments Off on Preserving Issues On Appeal.

Tags

, , , ,

Series Of Posts On Preserving Issues For Appeal, by Raymond P. Ward, Louisiana Civil Appeals

http://raymondpward.typepad.com/la-appellate/2015/03/series-of-posts-on-preserving-issues-for-appeal.html

The first of Mr. Ward’s series on this subject. -CCE

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 figured that breaking down the topic into a series of short blog posts and self-publishing them would be easier than trying to write one big lengthy article and then shopping for a publisher.

Let’s begin by defining preservation of error. Black’s Law Dictionary defines it as ‘the taking of all steps necessary under the rules of procedure or at common law in bringing an improper act or statement to the trial court’s attention so that, if not corrected, the mistake can be reviewed on appeal.’ Black’s Law Dictionary 1375 (Bryan A. Garner, ed., 10th ed.,Thomson Reuters 2014). In Louisiana, substitute Code of Civil Procedure for rules of procedure, and substitute case law or jurisprudence for common law. This definition is reflected in La. Ct. App. Unif. R. 1-3, under which the court of appeal ‘will review only issues which were submitted to the trial court ….’

But why must an error in the trial court be brought to the trial court’s attention before it can be argued in the court of appeal? The next few posts will answer that question.

 

Appellate Legal Writing – This Is How You Do It.

27 Thursday Nov 2014

Posted by in Appellate Law, Appellate Writing, Brief Writing, Editing, Legal Analysis, Legal Argument, Legal Writing, Legalese, Plain Language, Proofreading, Propositions and Headings, Readability, Statement of Facts, Summary of the Argument, Table of Authorities

≈ Comments Off on Appellate Legal Writing – This Is How You Do It.

Tags

, , , , , , , , ,

Free La. Appellate CLE Materials, by Raymond P. Ward, Louisiana Civil Appeals Blog

http://tinyurl.com/mg88sy7

Here’s something you don’t see everyday – a top-notch lawyer generously sharing everything juicy in his CLE presentation.  I am a long-time follower of Mr. Ward’s blogs. I strongly recommend this blog, as well as his other blog, the [new] legal writer blog at http://raymondpward.typepad.com/newlegalwriter/. 

Notice how the propositions further the appellate brief’s argument to the court. They are not simply “The Court Should Grant Summary Judgment to Plaintiff” or something equally bland.  Likewise, the propositions are not more than one sentence.

The Statement of the Case is less than one page. The writer doesn’t bog the Court down with unnecessary facts. You can look, but you will not find even a whiff of legalese.

Please pay attention when you read the materials and each sample document (thank you for including them!). Notice that no words are wasted. There is a reason why.

Notice the word choice, the size of the sentences and paragraphs, and the crafting of the propositions and subheadings. The persuasive argument is easy to follow. The writer keeps the reader’s attention – an absolute must for anything you write.

Do you aspire to be a good writer? Write like this. -CCE

This morning [October 28, 2014], I presented an hour of CLE on appellate practice for the Louisiana State Bar Association’s ‘Bridging the Gap’ seminar, a program for newly minted lawyers who passed the February 2014 bar exam. For attendees and anyone else who may be interested, here are some supplemental materials used or discussed in the presentation:

For reasons discussed at the seminar and elsewhere, I recommend against over-reliance on forms. With that caution stated—and with no warranties—I offer some samples of pleadings and briefs, all in PDF:

Fifth Circuit Reiterates ERISA Standard of Review.

20 Wednesday Aug 2014

Posted by in 5th Circuit Court of Appeals, ERISA

≈ Comments Off on Fifth Circuit Reiterates ERISA Standard of Review.

Tags

, , , ,

ERISA Standard Of Review, by Raymond Ward, Louisiana Civil Appeals

http://tinyurl.com/mqhn2mq

In case anyone needed a reminder about the district court’s standard of review in an ERISA case, the U.S. Fifth Circuit recently drove the message home, with some harsh words for the district judge:

It apparently bears repeating here that district courts hearing complaints from disappointed ERISA plan members or their beneficiaries for the administrative denial of benefits are not sitting, as they usually are, as courts of first impression. Rather, they are serving in an appellate role. And, their latitude in that capacity is very narrowly restricted by ERISA and its regulations, as interpreted by the courts of appeals and the Supreme Court, including the oft-repeated admonition to affirm the determination of the plan administrator unless it is “arbitrary” or is not supported by at least “substantial evidence”—even if that determination is not supported by a preponderance. We had thought that by now this was understood and accepted by all district judges of this circuit. But, as this case demonstrates that we were wrong, at least as to one of them, we try yet again to drive that message home.

McCorkle v. Metropolitan Life Ins. Co., No. 13-30745, slip op. at 6–7 (5th Cir. July 3, 2014) (footnotes omitted, emphasis by the court). The opinion goes on to articulate the abuse-of-discretion standard of review applicable in ERISA cases. For anyone who practices in this area, it’s a must-read.

Email Virus Running Amuck In Some Appellate Courts.

17 Monday Feb 2014

Posted by in 1st Circuit Court of Appeals, 5th Circuit Court of Appeals, Appellate Law, Emails, Legal Technology, Louisiana Supreme Court

≈ Comments Off on Email Virus Running Amuck In Some Appellate Courts.

Tags

, , , , , , , ,

A virus going around, by Raymond Ward, Louisiana Civil Appeals Blog

http://tinyurl.com/kv5owgc

There must be a virus going around. Recently the Louisiana Supreme Court and the First, Third, and Fifth Circuits have published warnings about malicious e-mails purporting to come from those courts. . . .

When Do You File An Appeal?

22 Wednesday Jan 2014

Posted by in Appellate Law

≈ 2 Comments

Tags

, , , ,

Finality Of Judgment When Attorney’s Fees Not Yet Determined, by Raymond Ward, Louisiana Civil Appeals

http://tinyurl.com/pjcrk32

Mr. Ward raises an interesting point. An appeal cannot be filed until the court issues a final, appealable order. In many jurisdictions, the trial court’s journal entry or judgment on the merits of the all the causes of action in a case is indeed a final, appealable order, even when the court has not yet ruled on an attorney fee and cost award.

Sometimes attorneys wait to file an appeal until the attorney fee award is decided, which may be past the tolling of the 30-day deadline to file the appeal on the merits. Mr. Ward explains how to resolve this issue. -CCE

Use Quotations Sparingly.

22 Sunday Dec 2013

Posted by in Bad Legal Writing, Legal Writing, Quotations

≈ Comments Off on Use Quotations Sparingly.

Tags

, , ,

The Danger Of Over-Quoting, by Raymond Ward, the (new) legal writer blog

http://tinyurl.com/plg2tf8

Page after page of lengthy quotations are the sign of a lazy writer. Use quotes to add credibility to your argument, but not to make your argument for you. When readers are faced with a lengthy quote, a reader often skims over it than reading it in its entirety.

A good rule of thumb is to quote only when the court says it better than you can. Even then, quote sparingly. Use spot citations for any quote, holding, or reasoning by the court in your document.  -CCE