Do I really need to know about appellate review?

Questions to ask yourself:• Do you think this topic will be useful to me?

• How many of you feel that I don’t need to know about appellate review — I never appeal cases?

• How many of your do trial work and actually try cases? If you do, perhaps you may find this

presentation helpful.

• If you are in trial and —

• Your motion for continuance is denied;

• There’s a Batson challenge;

• Your key expert witness is not accepted as an expert;

• Your key jury instruction is rejected;

• Your proposed jury verdict form is rejected;

What do you do?

• Maybe, just maybe, you do need to know a little about appellate review, i.e.,

• Taking a writ

• A final judgment v. an interlocutory judgment

• Timeline

• Should you take a writ or should you appeal?

(A discretionary reviewing court)

At first glance, one would think that the Louisiana Supreme Court is an appellatecourt which reviews the decisions of lower courts. Well, that’s true; however, such areview is, for the most part, discretionary and certainly not mandated except for a fewspecific instances.

In Louisiana, appellate courts are “errors courts.” The Louisiana Supreme Court isnot. The appellate courts correct the errors of the lower courts. The supreme court doesnot exist to provide a second appeal. In a three-tiered judicial system, such as we have inLouisiana, the supreme court exercises discretionary jurisdiction over the intermediatetier, and its function is to provide the authoritative voice on questions of importance to thelegal system and to maintain uniformity among the lower courts. The supreme courtdoes not exist to provide a second appeal on the litigants’ interests. The widespread viewis that every losing litigant should be accorded one review as a matter of right and thatone review is sufficient to satisfy the litigants’ interests in a trial judgment free ofprejudicial error. In Louisiana, as in many states and in the federal system, the review-for-error function is performed by the courts of appeal. Further review in the supreme courtis in the interest of the law and the system.

The supreme court’s role is one of clarifying, harmonizing, shaping and developingthe law, often referred to as an institutional review; whereas, the mission of the appellatecourt is that of review for error.

Jurisdiction(La. Const. art. V, Sec. 5)

• Supervisory jurisdiction over all lower courts• Authority to establish procedural and administrative rules• Scope of review:

• Civil: facts and law• Criminal: questions of law• Primarily writ applications

Plenary(full…completely discretionary)

• Immediate and direct appellate jurisdiction– Where law, ordinances or statute declared unconstitutional– Capital cases where death penalty imposed– District Court decision on a Public Service ruling

Original Jurisdiction• Attorney Discipline

• Judicial Discipline

Errors Court Institutional Court

Writs and Appeals Writs and Appeals

Supervisory Writ* Writ of Certiorari

Expedited / Emergency Writ Expedited / Emergency WritAssignments of Error Issues

(3 - 4) (1 - 2)

Appellate Briefs Appellate Briefs

The Record The Record

Oral Argument Oral Argument

The Opinion The Opinion

Time Line Time Line(14 / 30) (30 / 14)

La.Code Civ.P. art. 2166 La.Code Civ.P. art. 2166, 2167“transmission of notice”

(sending notice via US mail,electronic mail, or facsimile)

What is a writ?

The Supervisory Writ vs. The Writ of Certiorari

(Courts of Appeal) (Supreme Court)

Louisiana Supreme Court Rule X, §1 grants the Louisiana Supreme Courtjurisdiction to review the judgment of a court of appeal through a writ ofcertiorari or review. By contrast, supervisory and original writs (sometimesreferred to as remedial writs) issue under the jurisdiction of Louisiana Courts ofAppeal to review the judgment or a district court.

Generally, a writ is a request for review of a lower courtdecision and comes in two basic forms (a Supervisory Writor a Writ of Certiorari)

Writ is filed; Rule X, Sec. 1;

Meador effect

THE TOUCHSTONE FOR ALL WRITS OF CERTIORARI1. Conflicting decisions

2. Significant unresolved issues of law

3. Gross departure from proper judicial proceedings

4. Erroneous interpretation or application of constitution or laws

5. Overruling or modification of controlling precedent

Courts of appeal = error correcting courts

Supreme court = not an error correction court

Does the denial of a writ for certiorari generally have

any precedential value?

“Meador-Worthy” *

• A litigant is not entitled to right to two appeals

• After the first appeal, a second review is provided only in the interest of law and the legal system

Meador Report (1991, 1996).

*Daniel J. Meador, James Monroe Professor of Law Emeritus, University of Virginia

CONTENT OF WRIT APPLICATION(RULE 10, SEC 3-4)

TIMELINESS OF WRIT APPLICATION

(RULE 10, SECTION 5)

• Writ application filed within 30 days of mailing of(1) notice of the original judgment of court of appeal;(2) notice of denial of rehearing or judgment on rehearing

• IF YOUR WRIT IS DENIED, THAT’S IT• REHEARING APPLICATIONS FROM WRIT DENIALS ARE NOT PERMITTED

IF YOUR WRIT IS GRANTED (not a GWO):

• Record lodged forthwith Rule X, Sec. 8 (a)

• Briefs required

• Oral argument set

• May be on summary docket (Rule VI)

First day of Conference (video or sitting)Administrative Conference

“2” list

Pro Se list

Second day of Conference (video or sitting)“1” list

“3” list

“4” list

“B” list

Rehearing list

Discussion list

Special lists

Opinion Conference (always sitting)

Worksheet summary circulated two cycles before

Opinion Conference date – check for preparation of concurrences, dissents, etc.

Opinions…………………….

Civil Staff Memos…………Central Staff Memos(criminal)…………………….1 list…………………………… white2 list…………………………… white3 list……………………………4 list…………………………… whiteRehearing list………………. whiteDiscussion list……………… whiteSpecial lists…………………. whitePro Se list………...............B list…………………………..

BRIEFS (RULE VII)• You must limit the assignments of error in your brief to those raised in your writ application• Amicus curiae briefs require leave of court upon motion and notice to parties

PREPARATION FOR ORAL ARGUMENTS• Know your case (both the record and the law)• Anticipate questions• Have a clear theory and tell us how a ruling in your favor will affect future cases (the broader

impact because, remember, we’re not an error correcting court!)

• Tell us exactly what you want

TIMING (RULE VIII SEC. 2) (DIVIDED EQUALLY)A. 40 min. - lawyer discipline

non-capital criminalB. 60 min. – civilC. 60 min. – judicial disciplineD. 80 min. – capital

POST ARGUMENT• During oral argument you may ask to supplement your brief

• Rehearing – See Rule IX

TYPICAL WORKLOAD

• 40 - 50 new writ applications, plus 15 - 20 criminal pro se writs each week of conference. There are 3, sometimes 4, conferences a month except for the months of July and August.

• 15 ± holdovers

• Administrative matters

OPINIONS

• MAJORITY = MAJORITY

• PLURALITY: WHEN A MAJORITY CANNOT AGREE ON THE RATIONALE

BUT AGREE IN THE RESULT

• IF YOU RECEIVE A MAJORITY VOTE OR A PLURALITY VOTE, YOU WIN.

CONCURRENCES

• Agree with the decision, but write separately for one or more reasons• Additional commentary (just because!)• Agreement with the result, but not the rationale

DISSENTS

• The dissent by a court of appeal judge can be a “heads-up” to us that we take a closer look

PER CURIAMDerived from Latin, meaning by the court as a whole:

• Simultaneously (1) grants certiorari; and (2) disposes of the merits at some length

• Usually a reversal or modification of the judgment below• No notice and no opportunity to file briefs on the merits

While the U.S. Supreme Court at one time sparingly issued per curiams,

today, 1/10 of opinions issued by SCOTUS are per curiams.

Per Curiams at the Louisiana Supreme Court• Same pattern as U.S. Supreme Court• Better than a Grant with order (GWO)• Invaluable means of rapidly dispensing with certain matters where

some discussion is necessary• Some claim a per curiam is a cloak of invisibility!