Tag Archives: Raymond P. Ward

No Sandbagging!

13 Friday Mar 2015

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

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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

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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.

 

Why Circuit Courts Reassign Cases To Different District Judges On Remand.

24 Tuesday Feb 2015

Posted by in Appellate Judges, Civil Procedure, Court Orders, Federal Civil Procedure, Federal Judges, Judges

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Standards For Reassignment To A Different Judge On Remand, by Raymond P. Ward, Louisiana Civil Appeals

http://raymondpward.typepad.com/la-appellate/2015/02/standards-for-reassignment.html

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 a nutshell:

  1.  The district court rendered summary judgment in defendants’ favor.
  2.  On appeal, the Fifth Circuit reversed, holding that the district court applied the wrong legal standard. The Fifth Circuit remanded with instructions for the district court to apply the correct legal standard.
  3.  A year later, the district court again rendered summary judgment in defendants’ favor, apparently applying the same legal standard that the Fifth Circuit had rejected. The Fifth Circuit concluded that, in rendering this judgment, the district court disregarded the Fifth Circuit’s instructions on remand.

Starting at page 25, the decision includes a survey of case law enunciating various standards applied by circuit courts in deciding whether to reassign a case to a different judge on remand. So this decision is worth tucking away for future reference in case you ever find yourself in need of similar relief.

The Right Way to Assemble Attachments To Appellate Supervisory Writs.

17 Saturday Jan 2015

Posted by in Appellate Law, Appellate Writing, Legal Writing, Louisiana Supreme Court, Readability

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Practical Tip For Assembling A Writ Application, by Raymond P. Ward, Louisiana Civil Appeals

http://tinyurl.com/o2or5jy

Today [January 14. 2015] I started working on an application to the court of appeal for a supervisory writ, and was reminded of my # 1 tip for this task: the first thing you do—before you write a word—is assemble the attachments. Uniform Rule 4-5 lists the attachments that must be included. I like to put them all together and give them provisional page numbers before I start writing the application itself, starting with A1, A2, etc. If your attachments are in PDF (if they’re not, they should be), putting them together and page-numbering them is a snap with Adobe Acrobat or other PDF-handling software.

Assembling the appendix on the front end has at least two advantages. First, when you draft the writ application, you can include pinpoint citations to items in the appendix. Second, you find out immediately if you’re missing something that you need (such as the hearing transcript).

There is one little hitch to my system: Uniform Rule 4-5(B) requires all pages of the application, including the application itself and all attachments, to be consecutively numbered. And if you don’t know how long the application itself will be until you write it, you don’t know until the end of the process the number of the first page of the attachments. But this problem is easy to solve. Once the application is in almost-final form, you know how long it will be. If it’s 25 pages, you know that the number of the first page of attachments will be 26. So when I’m finalizing, say, a 25-page application, I just add 25 to all my “An” citations to the attachments and remove the “A”. A1 becomes 26, A2 becomes 27, etc. Is this time-consuming? A bit. But not nearly as time-consuming as trying to fill in totally blank citations to the attachments.

Which leads to another tip: when, in writing a writ application, you cite one of the attachments, cite it by its consecutive-page number. If it’s a multi-volume writ application, cite by volume and page number. Example: “See writ app. vol. 2 p. 301.” Your job as the writer is to make it as easy as possible for the reader to locate what you’re citing. So give the reader the information needed to instantly locate whatever it is you’re citing.

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

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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: