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Insight
Grounds for Appeal: Preparing for Round Two
Lawsuits begin in the trial court. For that reason, the immediate focus remains in the trial court where the case will be decided by the jury or the trial judge. However, once the judgment is entered or the verdict reached, the focus quickly shifts to the appeals court. In many cases, what happens in the trial court is just “round one” and cases are often truly decided on appeal. This post will help to identify the types of issues considered when there is an appeal.If you’ve received a negative ruling in the trial court, you are not out of options. State and federal trial court decisions are subject to review by a court of appeals. Generally, when an appellate court reviews a decision, it looks for two things: 1) legal error; or 2) an improper finding of fact. Your chance of success on appeal increases when there is a significant legal error because a reviewing court will give a de novo review of the issue. In other words, you get a brand new “trial” on the issue presented when it involves a legal issue and not merely an interpretation of the evidence offered at trial.The chance of success on appeal decreases when there are no significant legal questions to resolve. In this situation, the trial court’s findings of fact will be respected unless “manifest error” is found. However, other grounds for an appeal do exist including, but not limited to, refusal to admit relevant evidence, refusal to admit an expert’s testimony, providing improper jury instructions or, in some cases, judicial bias toward a party.It is also important to know that your right to seek appellate relief is not only available after a trial. When a party can show that the trial court has made an error which will cause prejudice if not corrected before trial or demonstrate that a reversal of the ruling would resolve the entire claim against that party, they can file a “writ application.” While similar to an appeal, a writ is a streamlined process. When the case presents a new or novel issue of law, the chances of having the appellate court consider the writ increases dramatically.The written brief--the appellate brief (for final judgments) and the writ application (for pre-trial rulings)–is the centerpiece of any request for appellate relief. It is critical that the brief be well-reasoned and persuasive. Appeals often involve oral argument, but, even then, the arguments typically center around issues addressed in the written briefs.When you are in the throes of the fight in the trial court, it is important to remember that another “round” may be coming. Keeping this focus helps to preserve and develop arguments and evidence that may be needed on appeal. Whether you won or lost in the trial court, know that the real fight may just be beginning.Reynolds LeBlanc is an Associate Attorney with Keogh Cox heavily involved in appellate practice. The attorneys at Keogh Cox have decades of combined experience representing clients in federal, state, and administrative appeals. The appeals practice by Keogh Cox attorneys has resulted in positive, landmark rulings in a variety of settings to include: the proper scope of who can administer interventional pain management (Spine Diagnostics Ctr. of Baton Rouge, Inc. v. Louisiana State Bd. of Nursing ex rel. Louisiana Dep't of Health & Hosps., 2007-0183 (La. 3/16/07), 952 So. 2d 702, handled by John P. Wolff III,Chad A. Sullivan and Nancy Brehm Gilbert); the extent to which employers will be protected by the immunity provided by worker’s compensation (Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208, handled by Gracella Gail Simmons and Collin J. LeBlanc); the establishment of mitigation defenses available to attorneys in legal malpractice claims (MB Indus., LLC v. CNA Ins. Co., 2011-0303 (La. 10/25/11), 74 So. 3d 1173, handled by Gracella Gail Simmons and Collin J. LeBlanc); and, the preservation of water rights under the Federal Powers Act (Simmons v. Sabine River Auth. of Louisiana, 134 S. Ct. 1876, 188 L. Ed. 2d 912 (2014), handled by John P. Wolff III and Nancy Brehm Gilbert), along with others.
Court of Appeals
Judicial Review
Legal Error
Trial Court
Verdict
Writ
Insight
Legal Malpractice: An Ounce of Prevention Can Save You Benjamins
Benjamin Franklin is famous for many things including his musing that “an ounce of prevention” is worth a “pound of cure.” While that truism applies to many aspects of life, it represents real-world reality when it comes to avoiding legal malpractice. When a few simple steps can avoid disaster, attorneys may want to spend a few “pennies” of their time and consider these steps.
“Meet or Beat” deadlines
Deadlines are not “suggestions” when it comes to law. Have in place a robust calendaring system and make sure your office is in compliance. This is one place where redundancy is not a bad thing.
Be smart
Remember that there are many good reasons not to take cases. The potential case may not involve an area of law with which you are familiar. You may not have adequate time or resources to properly devote to the case. Your history with the other parties or their counsel may not suggest the case as a good fit. Trust your instincts here. If you have meaningful reservations about taking the case, turn it down no matter how profitable it could prove to be.
Respect Your Clients
Do not ignore your client. Return your client’s phone calls. Keep the client informed. You work hard. Frequent communication with your client shows them that. They will be less likely to sue if they know you worked diligently on their behalf.
Document Your Work
More information is better than less. If you do not document your work, a client has cause to challenge the work you performed. Proper documentation also can diffuse the “he said, she said” trap attorneys often find themselves embroiled in after something has gone wrong.
Avoid Conflicts of Interest
Ensure that you have a comprehensive conflicts-check procedure. Failure to identify conflicts ahead of time can create unnecessary complexity. The rules allow waiver of many conflicts when they will not impact the representation.
Take Care of Yourself
Nothing can invite more disaster upon an attorney than substance abuse and/or debilitating stress. If either of these conditions apply to you, there are plenty of ways to get help-whether from friends, family members, or health care providers. You owe it to yourself, your family and your clients to address these issues. The Louisiana State Bar Association has created a Judges and Lawyers Assistance Program (JLAP) to help you through these issues. http://louisianajlap.com/
Thorough Research and Investigation
It’s not easy getting it right so spend the time it takes. Consult with others when you are not sure. Citing law that is no longer applicable is not only embarrassing but can affect your credibility. Judges remember lawyers who submit pleadings with improper or inadequate research.
Pursuing Unpaid Fees
Fully consider the ramifications when pursuing unpaid fees. Try to work it out. Clients have been known to find themselves suddenly dissatisfied with their representation when sued for an unpaid legal bill.
Benjamin Franklin is also known for his image plastered across the $100 bill. Putting in place reasonable procedures may keep more of them in your pocket.
Gracella Simmons’ practice includes defense of attorneys and law firms when professional liability claims are made and defense of attorneys in response to complaints made to the Office of Disciplinary Counsel.
Disciplinary Complaint
Legal Malpractice
Office of Disciplinary Counsel
Resource
TAXING COSTS AND EXPERT FEES
When is a "win" good enough win to give a successful plaintiff the right to have costs and expert expenses made a part of the judgment? That issue was recently addressed by the Louisiana First Circuit Court of Appeal in Clark C. Cenac, Jr. & Eileen C. Cenac v. Evangeline Business Par, LLC & National Building & Contracting, Co., Inc., 2015-CA-0198 (La. App. 1 Cir. 5/27/16). The case involved a dispute over a fence line and allegedly damaged trees. The plaintiffs won a partial victory, i.e. they were awarded damages for the destruction of their fence; however, they were not awarded damages for destruction of their trees. The trial court ruled that each party was to bear its own costs.
On appeal, plaintiffs argued that, because they won a money judgment and were the prevailing party, they should be awarded all costs and fees, including fees for the arborists' trial testimony. The appellate upheld the ruling of the trial court as the plaintiffs “failed to prove their case” that any trees on their property had been destroyed.
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Insight
Disciplinary Complaint
“Whether you want to admit it or not, the process has begun and the clock is already ticking.”
You've Got Mail (Just Not the Good Kind)You open your mail box. Flipping through the daily mail, you hope for a check and expect a few bills, but behind a glossy mailer and an annoying letter from opposing counsel, you find a certified letter--and it's from Office of Disciplinary Counsel. The letter advises that an ethics complaint has been filed against you. Whether you want to admit it or not, the process has begun and the clock is already ticking. This post explores what happens next.The Complaint- A complaint can be made by anyone and the mere fact of a complaint does not signify that it possesses merit. After a complaint is made, a screening process begins. At the point a letter finds its way into your mailbox, you will know that the ODC wants your side of the story. It is imperative that you respond and within the time delays allowed. Famously, Lincoln said that a lawyer who represents himself has “a fool for a client”-- you should strongly consider selecting counsel to represent you in the process.ODC Investigation- If a complaint is found to possess possible merit, the ODC will conduct an investigation. After the investigation, the ODC makes its recommendations from the following options:-Dismissal of the Complaint: A dismissal may be appealed;-Diversion: A diversion will allow the attorney to receive counseling, training, or assistance from the LSBA Practice Assistance and Improvements Committee in lieu of formal punishment;-Private Admonition: A private form of discipline used in cases of minor misconduct; or,-Formal Charges: The ODC must seek approval from a Hearing Committee chair to file formal charges.Formal Charges- If the ODC request for formal charges is approved, formal charges will be filed with the Louisiana Attorney Disciplinary Board. The ODC possesses a “clear and convincing” burden of proving an alleged ethical violation. The attorney has an opportunity to mount a defense before a Hearing Committee which will then issue a report and recommendation.Objections to Ruling- If an objection to the Committee’s ruling is raised, the matter will be heard before the Disciplinary Board. After briefs are filed and oral arguments made, the Board will make a recommendation which will then be filed with the Louisiana Supreme Court.Supreme Court – If either the attorney or the ODC objects to the recommendation of the Disciplinary Board, the Supreme Court will consider the matter after briefing and oral argument. The Supreme Court may reject the charges or issue sanctions to include: suspension, disbarment, or permanent disbarment.The rules set in place by the Supreme Court provide that formal charges against an attorney will be “deemed admitted” if no response is made within 20 days—even if the attorney otherwise had a meritorious defense. So, when you've got mail, the simple act of opening it may just save your career.Gracella Simmons’ practice includes defense of attorneys and law firms when professional liability claims are made and defense of attorneys in response to complaints made to the Office of Disciplinary Counsel.
Disbarment
Disciplinary Complaint
Office of Disciplinary Counsel
Sanctions Against Lawyers
Insight
Mediation: A Little History
You didn't expect to be here, but yet here you are -- stuck in a lawsuit over which you seem to possess little control. Now, your lawyer says he wants to "mediate" your case and wants a response from you soon. Unfamiliar with the process, you wonder if you should say "yes." Maybe a little history will help you to make your choice. Mediation arrived on the scene in Louisiana in the early 1990s. It offered an alternative to protracted litigation and the ordeal of trial. The theory was that mediation offered an efficient, cost-effective means of resolving a case and allowed the outcome to be determined by the litigants as opposed to the judge or jury.
In a state court trial, the outcome of your case rests in the hands of twelve unknown jurors or the judge. For all intents and purposes, once the case is submitted to the judge or jury, a litigant loses control of his or her destiny. Although judges and juries often get it “right," sometimes they do not. All you have to do is consider how many of the convicted are subsequently exonerated through a DNA analysis; how many cases get reversed on appeal; or, for a specific example, the O. J. Simpson acquittal which is often cited as an improper verdict. Mediation can put the decision-making back in your hands.
Mediation is generally an informal proceeding. The first step is for the parties to agree to mediate. The next, and very important step, is to select the mediator. You want a mediator familiar with your type of case. Then, you pick a date. Meditations usually last between a half-day to a full day. The mediation is attended by the mediator, the litigants and their attorneys in a confidential setting. It is important to understand that the mediator is simply the facilitator who “manages” the mediation. The “shots” are called by the parties through their attorneys. The decision as to whether to settle is solely in the hands of the parties. At the end of the day, cases are often resolved, perhaps most of the time. Even if the case does not settle at mediation, follow-up by the mediator often results in a settlement in the days and weeks that follow.
The process of mediation can be extremely valuable for these reasons: it can greatly reduce costs, fees and expenses; it gives the parties greater control over the outcome; it eliminates risk; and it allows closure and ends the distraction and emotional baggage clients often experience when in litigation. So now, when you are asked to mediate, you might let history be your guide.
By: Gracella Simmons, partner with Keogh Cox. As a mediator, she has successfully resolved a wide variety of cases over the past 15 years.
Compromise
Mediation
Resolution
Resource
DAMAGES
DAMAGES- In Woods v. Hall, First Circuit, 2015-CA-1162 (4/20/16), the Louisiana First Circuit overturned an award for lost wages after finding that the proof offered was speculative and insufficient to justify the award. Following an auto accident, the plaintiff in Woods (who had received a doctorate in music with a concentration in opera) claimed lost earnings from a missed opportunity to attend an audition in New York populated with opera representatives from all over the world. According to plaintiff, missing the audition left her unable to work the entire 2013 opera season. Based solely on the plaintiff's testimony, the Trial Judge awarded $35,000 in "lost income and/or lost opportunity of income."In considering this award, the First Circuit re-stated the principles governing lost wage or earnings awards. As to past lost wages, the Woods Court commented that a plaintiff must present "proof sufficient" to establish the claim "to a degree of reasonable certainty." As to future income or a loss of earning capacity, Woods added that such awards are "inherently speculative," "intrinsically incapable of being calculated with mathematical certainty," and cannot be based upon "speculation, conjecture, and probabilities."After re-stating the law, the Woods Court applied these principles to find the plaintiff's proof lacking. Case facts revealed that the plaintiff was not guaranteed employment from attending the audition, had not purchased tickets to the audition, and could present no documentary evidence that she had even registered. On this basis, the award for lost income was vacated.
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News
Mary Anne Wolf will speak at a meeting of the International Facility Management Association
On May 17, 2016, Mary Anne Wolf will speak at a meeting of the International Facility Management Association, Baton Rouge Chapter, held at Juban’s Restaurant. The topic is Changing Contracting Methods – Design Build and Project Manager at Risk.
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Insight
What Mrs. O'Leary's Cow Has to Do With Spoliation
For more than a century, the debate has raged over whether Mrs. O'Leary and her famous cow truly started The Great Chicago Fire of 1871. Were the tragic events of that conflagration to happen today, someone would ask Mrs. O'Leary to produce the "RFID" chip in her bovine. (You know they would). They would contend that this key evidence could show the whereabouts and movement of the cow at the time the fire began. When she could not produce it, they would claim not only that she started the fire that destroyed a swath of Chicago, but that she also destroyed the evidence of her guilt. They would cry "spoliation."
"Spoliation" is the legal term for the improper destruction or alteration of evidence to prevent its use in litigation. It is also an ugly word and its presence in litigation can lead to ugly results. While this doctrine has existed in some form or the other for hundreds of years, understanding the concept may prove to be even more important now in a time when reams of documents can be stored on a "zip drive" smaller than a stick of gum and information can be maintained in a multiplicity of ways previously unthinkable.
To prove spoliation, a litigant must demonstrate that their adversary in litigation: (1) knew of a lawsuit or had a reasonable expectation that a lawsuit would follow; (2) failed to produce relevant evidence without an explanation; and, (3) participated in intentional conduct to alter, secret, or destroy the evidence. It is important to note that a defendant is not responsible under the doctrine of spoliation when the defendant’s failure to produce evidence is adequately explained.
A party who discovers that evidence has been spoliated has options. They may ask the court to enter an adverse presumption. If allowed, a court may instruct the jury that the missing or altered evidence would have been unfavorable to the party who destroyed it. Depending upon the nature and relevancy of the evidence, the court may have grounds to strike claims or defenses relevant to the evidence.
Another option is to file a formal claim against the party who spoliated the evidence. This type of claim alleges that the alleged “spoliator” impaired a party's ability to win or defend a law suit. In Louisiana, all five appellate circuit courts have recognized the tort of spoliation.
The issues surrounding spoliation have been magnified by technology. Meaningful information can now be found on almost anything: "smart refrigerators"; product sensors; a car's "black box" that may reveal the speed at the time of impact; SMS information on a phone, computer, or tablet; and on and on. Consider further the increasing scope of surveillance video recorded at businesses, schools, hospitals, and even homes, which is complicated by the fact that many systems automatically "write over" prior video in a matter of days, weeks, or months.
In short, it’s a good time for everyone to understand the doctrine of spoliation. The chance that some party will loudly proclaim that your spoliation of evidence adversely affected their case continues to increase. Being aware of the potential spoliation issues that may arise when a suit has been filed, or is expected to be filed, may save your case. It may also save you the time, money, and distraction involved in defending a claim that you have spoliated key evidence.
Litigation
Torts
Resource
PREMISES LIABILITY: Boyd v. Cebalo
PREMISES LIABILITY- In Boyd v. Cebalo, 2015-1085 (La. App. 4 Cir. 3/16/16), ---So. 3d ----, a Tulane University student filed suit following an incident where Cebalo, a guest of her suitemate, was alleged to have snuck into her dorm room and inappropriately touched her while she was sleeping. The plaintiff sued the alleged perpetrator. She also sued Tulane under allegations that it failed to provide a safe environment or to comply with industry standards regarding doors, locks, and other security measures. Tulane filed an Exception of No Cause of Action alleging that Cebalo's alleged actions were an "intervening and superseding cause" and that it owed no legal duty to Boyd. The Exception was granted by the lower court.The Fourth Circuit reversed, labeling the dismissal of the claim as "clearly wrong." According to the Boyd Court, "a third-party's criminal activity does not grant the university absolute immunity from liability." In its analysis, the Court found that the factors given by the Louisiana Supreme Court in Posecai v. Wal-Mart Stores, Inc., 99-1222 (La. 11/30/99); 752 So. 2d 762 for the assessment of the liability of a business for the criminal actions of others "can easily be applied to a university setting." Further, the Court seemed to question the use of an Exception of No Cause of Action to resolve a potentially fact-intensive case insofar as no evidence is to be offered in support of such an exception. Because the plaintiff may be able to ultimately demonstrate that the alleged criminal conduct was reasonably foreseeable, the matter was remanded back to the trial court.
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Resource
UNINCORPORATED ASSOCIATIONS AND IMMUNITY
Unincorporated Associations and Immunity- Annually, the “Jingle All the Way 5K Run” is held on a course that begins in Natchez, Ms. and crosses the old Mississippi River Bridge to Vidalia, La. Normally, the “new” bridge is solely used by eastbound traffic. Nevertheless, to accommodate the race, it accepts traffic in both directions during the event. In Byargeon v. Concordia Chamber of Commerce, Inc., 15-900 (La. App. 3 Cir. 3/16/16), - - So.3d - - - (2016), it was alleged that Ms. Byargeon was not alerted to this change. Tragically, she was involved in a head-on collision that took her life.Numerous parties were sued following the accident including members of an unincorporated association named MissLou Regional Healthcare Committee. In response to the Petition, the association members argued that they were immune to liability by statute. Alternatively, they argued that they could not be held responsible because the police possessed exclusive control of the roadway. The defendants’ Exceptions of No Cause of Action were granted by the trial court, but reversed by the Third Circuit as outlined below.With respect to immunity, the defendants relied on LSA-R.S. 12:506 which provides immunity to the members of an unincorporated association as a result of their membership. However, according to the Byargeon Court, the statute does not create an unqualified immunity against negligent acts perpetrated by members of the association. Therefore, the statute did not provide a shield from liability to individual members of the association who may have individually performed acts or omissions which lead to the death.The Third Circuit also reversed the trial court’s ruling with respect to control of the roadways. Pursuant to LSA-R.S. 32:1 et seq., the state police force possesses the duty to address traffic on state roadways. Nevertheless, the Byargeon court cited to an earlier Supreme Court decision in Blair v. Tynes, 621 So.2d 591 (La. 1993) which held that, when a private entity assumes duties with respect to a traffic plan or roadway, it is required to execute that “assumed duty” in a non-negligent manner.
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Insight
Discovery in a Digital World
The image of a law firm stuffed with banker boxes floor-to-ceiling is shifting to the view of a computer server filled with gigabytes of information. This is increasingly a digital world and the documents, photographs, charts, memos, and emails that are the “stuff” cases are built upon now often come in digital form. As a result, great emphasis is placed upon “electronic discovery.”
What is “electronic discovery”? “Discovery” includes the exchange of information between parties in a lawsuit. “Electronic discovery” is the process of collecting, preparing, reviewing, and producing “electronically-stored information” in the context of a civil action.
What is electronically stored information (“ESI”)? The Federal Rules of Civil Procedure define ESI as information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software. Because of the wide variety of computer systems currently in use, and the rapidity of technological change, courts often give an expansive definition of ESI which can include any type of information that is stored electronically, including emails, images, spreadsheets, “metadata,” PDF documents, databases, and other groupings of information.
Are printed copies of my emails sufficient? In litigation, emails are commonly produced as printouts or PDFs. However, courts may require the production of emails in their native electronic form to allow the other party to certify that the produced emails have not been altered. If the court finds that a party, anticipating litigation, intentionally deletes or destroys ESI, that party may be exposed to a claim that they have “spoliated” evidence. An opponent may even complain if a party fails to take affirmative steps to prevent information from being deleted or overridden as part of an automated process. For instance, this often occurs when a surveillance camera system “writes over” older video to create space for new video.
Discovery
Federal Courts
Litigation
State Courts
Resource
AMERICAN REBEL ARMS, LLC V. NEW ORLEANS HAMBURGER AND SEAFOOD CO., 15-599 (LA. APP. 5 CIR. 2/24/16)
The Law of Corporations - In American Rebel Arms, LLC v. New Orleans Hamburger and Seafood Co., 15-599 (La. App. 5 Cir. 2/24/16), Deborah Norred, the sole member of American Rebel Arms, a limited liability company (“LLC”), alleged that she was injured when she slipped and fell in a bathroom owned and operated by the defendant/restaurant. Norred filed suit for her injuries. In a separate suit, American Rebel Arms claimed that the injuries to Norred damaged its business. In response, the defendants argued that American Rebel possessed no cause of action. The Trial Court agreed and dismissed the suit.In considering whether an LLC can recover for a slip and fall of its only member, the Louisiana Fifth Circuit looked to the language of Louisiana’s “slip and fall” statute, LSA-R.S. 9:2800.6, which creates a duty owed to “persons” who use the premises. American Rebel correctly contended that it is a “person” under Louisiana law. Nevertheless, the American Rebel Court determined that an LLC was not the type of “person” protected in the statute which references keeping “aisles, passageways, and floors in reasonably safe condition.” Only natural persons are capable of using such areas. As such, and consistent with supportive corporate law, the Fifth Circuit found that there is no “ease of association” between injury to a member and the corresponding damages to the LLC. The Court observed that even substandard conduct does not render an actor liable “for all consequences by spiraling outwards until the end of time.”
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