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Appellate Practice
The Appellate Practice
Section represents clients at all levels of Louisiana and
federal appellate courts, including the United States Supreme
Court. The Section’s attorneys not only work closely with fellow
litigators within the firm, but also co-draft appellate briefs
and writ applications with other lawyers and firms who have
tried cases independently. We likewise appear for amici
curiae on critical issues in cases pending on appeal or
review that affect their industries and interests.
Our Section’s focus on
appellate practice offers distinct advantages to our clients:
Knowledge: We are fully
conversant with the intricacies of appellate jurisdiction,
rules, procedures, and standards of review.
Objectivity: Our unique
perspective as appellate practitioners allows us to analyze and
evaluate trial records objectively, providing a strong
complement to trial attorneys in identifying appealable issues
and assignments of error. We also consult with trial counsel
before and during district court proceedings to assist in
formulating strategies and preserving issues in anticipation of
possible appellate review later in the case.
Advocacy: We are dedicated
legal researchers and writers committed to crafting,
documenting, and supporting arguments designed to interest,
convince, and persuade appellate judges.
Federal
courts
Our motion, appeal, and
writ practice comprises cases arising in virtually all
substantive areas of the law, including commercial litigation,
admiralty and maritime, employment, insurance, oil and gas, and
products-liability law. We have experience in representing
clients on review of both final and interlocutory judgments,
including petitions for mandamus, appeals certified under 28
U.S.C. § 1292(b), and matters involving class actions,
injunctions, and arbitration motions. Some examples of our
appellate advocacy include the following decisions:
- In Liverpool &
London S.S. Protection & Indemnity Association v. M/V QUEEN
OF LEMAN, 296 F.3d 350 (5th Cir. 2002), we obtained an
appellate decision overturning the district court’s ruling
and holding that the choice-of-law provisions in our
client’s (Liverpool & London’s) contract were valid and
enforceable.
- In Babcock v.
Hartmarx Corp., 182 F.3d 336 (5th Cir. 1999), we won a
reversal of the district court’s summary judgment against
our client in an ERISA breach-of-fiduciary-duty claim,
resulting in the dismissal of the case as time-barred under
29 U.S.C. § 1113.
- In Dutton v.
University Healthcare System, L.L.C., 136 Fed. Appx. 596
(5th Cir. 2005), we won an affirmance of a summary judgment
in favor of our client in a suit under the Americans with
Disabilities Act and obtained an award of additional
attorney’s fees on appeal.
Louisiana state courts
Louisiana appellate
practice significantly differs from that of other jurisdictions,
because the state’s appellate courts review law and facts.
After finding reversible or manifest error, an appellate court
must conduct an independent review of the trial record and, if
the record is complete, make findings of fact and render
judgment, without remanding the action for a new trial. We have
prosecuted and defended appeals for our clients in all of the
State’s five intermediate circuit courts of appeal and in the
Louisiana Supreme Court in a variety of cases, including the
following representative matters:
- In Galjour v. Bank
One Equity Investors-Bidco, Inc., 935 So. 2d 716 (La.
App. 4 Cir. 2006), we obtained an affirmance of a judgment
denying class certification in a shareholder suit alleging
breach of fiduciary duty arising out of a merger of two
privately held companies.
- In K.D.D. Smith,
et al. v. Cutter Biological, a Div. of Miles, Inc., 770
So. 2d 392 (La. App. 4 Cir. 2000), we worked closely with
trial attorneys within the firm on multiple writ
applications during trial and on a subsequent appeal
affirming the trial judge’s dismissal of the case as
time-barred.
- In Nicholas v.
Allstate Insurance Co., 765 So. 2d 1017 (La. 2000), we
joined another firm as co-counsel in a certiorari
application to the Louisiana Supreme Court, which overturned
a jury verdict and lower-court judgment against the client
in a suit by a former employee alleging damages from his job
termination.
When a judgment does not
dispose of the entire action, the Section works with trial
counsel to determine whether the judgment is a partial final
judgment (which must be appealed immediately). The Section also
advises whether the judgment can be certified by the district
court as an appealable judgment and, if so, whether
certification and immediate appeal are preferable to awaiting
the final disposition of the entire action.
A good example of
certifying a judgment for immediate appeal is Kimpton Hotel &
Restaurant Group, Inc. and First Orleans Hotel Associates, L.P.
v. Liberty Mutual Fire Insurance Co., 974 So. 2d 72 (La.
App. 4 Cir. 2007), where we represented the owner of a hotel in
New Orleans in a claim for insurance proceeds for property
losses caused by Hurricane Katrina. We filed a motion for a
partial summary judgment, asking the district court to find that
the policy’s limit for flood losses was triple what the insurer
contended that it was, and the trial court granted the motion.
We decided that an immediate appeal of that judgment would be
preferable to awaiting an appeal from a final judgment resolving
all of the issues after a trial. With the assent of the opposing
party, we prepared a joint motion to certify the partial summary
judgment as a partial final judgment. Our motion listed five
factors required for such a designation and showed that all five
were present. The trial court granted the motion, the insurer
appealed, and the appellate court affirmed the judgment.
In addition to their
jurisdiction in appeals of right, Louisiana’s courts of appeal
and supreme court have broad discretion to exercise their
supervisory powers over trial courts. The appellate courts often
use this authority to intervene in any stage of a district court
proceeding, before, during, or after trial, to review
interlocutory rulings. In 2007, for example, 1,546 applications
for supervisory writs were filed with Louisiana’s intermediate
appellate courts in civil cases (excluding pro se), of
which 306 -– almost a fifth -- were granted.
Chaffe McCall’s appellate
attorneys have applied for or opposed supervisory writ
applications on numerous interlocutory issues, including the
right to trial by jury, discovery disputes, privilege questions,
stay orders, and denials of exceptions and summary-judgment
motions. For example, in a products-liability action arising out
of a residential fire, we represented the defendant manufacturer
and won a jury verdict, exonerating our client from liability,
after a trial on the merits. When the district judge ordered a
new trial, we sought writ review of that order, and the
Louisiana Fourth Circuit reinstated the verdict in favor of our
client. The plaintiffs later filed an appeal from the zero
verdict, and the appellate court affirmed the judgment in our
client’s favor.
Amicus curiae briefs
An amicus curiae
brief by an interested non-party in a case on appeal or writ
review can supplement the litigants’ briefing and assist the
reviewing court, especially when the judgment has critical
ramifications and effects on an industry, trade group, or
association. An amicus brief alerts the appellate court
to concerns, considerations, and policies beyond the issues that
the named parties may have briefed on appeal. Chaffe McCall’s
Appellate Practice Section has represented various amici
curiae in several cases, including the following examples:
- In Lane v. R.A.
Sims, Jr., Inc., 241 F.3d 439 (5th Cir. 2001), we filed
an amicus brief for the Association of American
Railroads concerning the application of the Federal Railroad
Safety Act, 49 U.S.C. §§ 20101-20153, and train speed
regulations promulgated thereunder, in a railroad employee’s
action under the Federal Employers’ Liability Act, 49 U.S.C.
§§ 51-60.
- In Hooks v.
Kennedy, 961 So. 2d 425 (La. App. 1 Cir. 2007), we
represented the National Association of State Treasurers and
the National Association of Unclaimed Property
Administrators as amici in a case challenging the
constitutionality of the Louisiana Unclaimed Property Act,
La. R.S. 9:151, et seq.
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Chaffe McCall’s Appellate
Practice Section is headed by Douglas L. Grundmeyer, who
received a BA from Tulane University in 1970, an MA in English
from the University of New Orleans in 1974, and a JD from Tulane
Law School in 1976, where he was a member of the Moot Court
Board. Before joining Chaffe McCall in 1988, where he has
concentrated his practice almost exclusively on appellate
matters, Doug served as a senior law clerk to the Hon. James C.
Gulotta, chief judge of the Louisiana Fourth Circuit Court of
Appeal, and was a contributing editor of Vols. 21 and 21A, Am.
Jur. 2d, Criminal Law (Lawyers Co-Op, 1981) and a contributing
author of Louisiana Appellate Practice Handbook (Lawyers
Co-Op, 1986). Doug is a member of the Louisiana and American Bar
Associations, the State Bar of California, and the Bars of the
United States Supreme Court and the United States Courts of
Appeals for the First, Fifth, and Eleventh Circuits. He has been
profiled in Who’s Who in America and Who’s Who in
American Law, and is a member of the Defense Research
Institute (Appellate Advocacy Committee) and Scribes (the
American Society of Legal Writers). Doug's email is
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