The Sneaky Extra Rule You Have to Remember Sometimes When You're Citing the Federal Fifth Circuit

Every part of the United States of America is served by a federal district court, and those-- in turn-- are served by federal circuit courts of appeals. Eleven of them are numbered. Each of those cover a geographical area.

First: Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.
Second: Connecticut, New York, and Vermont.
Third: Delaware, New Jersey, Pennsylvania, and the Virgin Islands.
Fourth: Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
Fifth: Louisiana, Mississippi, and Texas.
Sixth: Kentucky, Michigan, Ohio, and Tennessee.
Seventh: Illinois, Indiana, and Wisconsin.
Eighth: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
Ninth: Alaska, Arizona, California, Territory of Guam, Hawaii, Idaho, Montana, Nevada, Territory of the Northern Mariana Islands, Oregon, and Washington.
Tenth: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Eleventh: Alabama, Florida, and Georgia.

There are two other I will save for a later post: the District of Columbia Circuit-- I know, it's kind of geographical-- and the Federal Circuit, which is the only geographically general content-specialized federal court of appeal.

So what's the special rule about the Fifth Circuit? It is Rule 10.8.2 of the Bluebook, A Uniform System of Citation. On October 1 1981, the Fifth Circuit was divided to create the new, smaller Fifth Circuit and an Eleventh Circuit.

So:

1. Cite decisions rendered in 1981 and labeled "5th Cir." by month.
2. Give unit information whenever possible (it seems the court began the transition by having a Fifth Circuit Unit A and a Fifth Circuit Unit B.
3. Designate as "Former 5th" any nonunit judgment labeled as a Former Fifth judgment and rendered after September 30, 1981.

Knowing this rule separates the appellate children from the appellate grown-ups. Although the other circuits have had coverage changes, this separation is the only one the Bluebook cares about.

Jury Charge Objection Made with Less than Usual Formality Causes Reversal and Remand

Longshoreman Quinton Henderson slips, falls and is injured on the deck of a ship.It is loading a powdery, dusty solid-- petroleum coke. The day the work was done was wet, and solid petroleum is slippery in the best of circumstances. The ship is owned by Prosperity Management S.A. and managed by Irika Shipping S.A. Henderson sues both for negligence. The trial jury finds that all three parties are negligent and awards Henderson $1,734,943.00 in damages. Prosperity and Irika appeal together raising three issues:

1. the trial court erred in denying the defendants a directed verdict,
2. the evidence is legally and factually insufficient to support the verdict, and 
3. the trial court erred in omitting requested language in the charge and in the issue submitted to the jury.

The defendants had three specific complaints about omitted jury charge and issue language. Justice Leanne Johnson, also writing for Justices Charles Kreger and Hollis Horton, held that the defendants were not entitled to judgment as a matter of law in issue one, and that sufficient evidence existed to support the verdict in issue two.

The jury charge in this case was taken from the Federal Fifth Circuit Pattern Jury Instructions. It  appears that the employer of a worker-plaintiff has the primary duty to provide the worker with a safe place to work, but working conditions can get so obviously dangerous that ship's personnel would have a duty to intervene to protect the worker. The trial judge left out a part of the pattern jury instruction that commented on this point of law, so the appeals court reversed and remanded.

In this case defense counsel failed to follow Texas Rule of Civil Procedure 276. "When an instruction, question, or definition is requested and the provisions of the law have been complied with and the trial judge refuses the same, the judge shall endorse thereon 'Refused,' and sign the same officially." The appellate court refused the complaints about the first two instances of omitted language on the ground that defendants waived error by failing to follow Tex. R. Civ. P. 276. However, the appeals court held that the defendants so clearly complained about the third omission that they would take cognizance of it, and reverse and remand on the basis of it.

In the appeals court's defense, the defendants basically said, "Put that employer/shipowner responsibility sentence that's in the pattern jury charge in the jury charge.  The writers of the pattern jury charge thought it was needed for the benefit of the jury to make a proper decision," Even to me, that seems an unambiguous complaint.

I have one practice tip, one personal note and one observation. The practice tip is that when you are following a pattern jury charge, it is rarely a good idea to get the trial judge to leave out a part unfavorable to you even when you can. Appeals court justices who see a part of a pattern jury charge omitted which clearly favors one side over the other presume that that part was left out unfairly. Unless you can show comparable changes that help the other side or an elaborate explanation why under statute or case law that part of the pattern jury charge is grossly wrong, they will assume that the omission is a cheat.

The personal note is that Justice Johnson's prose style is a pleasure to read-- first rate. I look forward to years of clear reading of this court's opinions in the years ahead.

The observation is that I have no radical objection to the process used to come to this decision. The informality was allowed when a stevedore won a damage award of more than one million dollars against a ship and its manager. I have a concern that the informalities are much less likely to be overlooked when it is a personal injury plaintiff who needs it or a criminal defendant or a respondent in a sexually violent predator civil-commitment case.


Irika Shipping S.A. v. Henderson, No. 09-13-100237-CV, (Tex. App.--Beaumont Dec. 18, 2014, no pet. h.) (mem. op.) available at  http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=56e3dc6f-a22a-4689-bf45-806b8c5e2bac&coa=coa09&DT=Opinion&MediaID=53ca95bf-7d0c-4c9a-8c3d-193e6b9fd17f

The Federal Court System Seeks to Cut the Length of Briefs.

Here's a communication about proposed changes in the Federal Rules of Appellate Procedure. Their main effect would be to cut the length of briefs. There is a public comment period; how to comment yourself is in the printout.
So long as appellate courts have discretion to allow longer briefs for truly extraordinary cases, shorter default lengths would seem to make the system more efficient.

Appellate Court Personal Jurisdiction

Usually, as to Texas state class C misdemeanors or municipal ordinance violations, personal jurisdiction in a trial court is obtained over a person by service of a summons, though in rare cases, it can be gained by the arrest of the defendant.
In higher level Texas crimes, personal jurisdiction is normally  invoked by the arrest of the defendant.
In civil matters, normally, one or more plaintiffs give notice to one or more defendants by service of citation and the petition or complaint is served with the citation. Except for special appearances-- procedurally tricky filings which allege that a court does not have jurisdiction over a matter-- even an unserved party can subject itself to jurisdiction by merely filing a document in the court's file.
In justice of the peace courts, a timely request with a bond or a pauper's oath will get one a de novo trial in a higher court. The same is true of municipal courts that are not courts of record-- that is, ones that do not keep track of things by a court reporter or recorder. Appeals from municipal courts of record are not de novo, the higher courts to them, sit as courts of errors like courts of appeals. Motions for new trial and bonds are required also.
In higher courts, an unhappy trial litigant files a notice of appeal in the trial court before the deadline, a timely appeal generally invokes the jurisdiction of a court of appeals. In civil litigation, it is not uncommon for some parties to want to appeal and others not to. Sometimes some trial litigants can hold on to trial rulings they like by not appealing, though other times any single appeal can invoke jurisdiction as against the other parties. Notices of appeal, petitions for discretionary review, and applications for writ of certiorari must generally be timely, otherwise they do not impose appellate jurisdiction. The main exception to this being that the Court of Criminal Appeals may authorize an out-of-time appeal by a writ of habeas corpus (See the post before this one.)
Extraordinary writs, which I have talked about earlier, may give a basis for a higher trial court or appellate court to invoke the jurisdiction of such a court without having started in a lower court.

Illiterate Defendant's Ineffective Assistance of Counsel Held No Excuse for Habeas Application Almost 20 Years after Conviction

Alberto Giron Perez was convicted of murder. He received a 88-year sentence in 1991. He had appointed counsel on appeal-- it is not clear whether his appellate counsel was the same as his trial counsel-- and Perez lost his appeal October 9, 1992. His appointed lawyer failed to notify Perez of his loss at the Court of Appeals until 1993. Perez had a right to appointed counsel on appeal to the Court of Appeals, but did not have a right to appointed counsel to apply to get discretionary review from the Texas's Court of Criminal Appeals. From the time that the appeals court finally decides a case, the loser in that court only has 30 days to file a petition for discretionary review, and, ordinarily, an indigent has to file it without the help of counsel. More than 30 days had passed when Perez first learned that he had lost his appeal-- he only found out in 1993-- so he was barred from asking the CCA to consider his case on direct appeal. When Perez found out about his loss and that his lawyer's action barred him from direct appeal, he sued that lawyer civilly and filed a grievance. However, Perez did not file an application for a writ for habeas corpus until September 2011. Applicants like Perez are subject to Texas Code of Criminal Procedure article 11.07. It has no deadline by which an initial application must be made. The district attorney in the case complained that Perez's delay in applying for his writ made the case not capable of being retried if Perez prevailed. Judge Elsa Alcala wrote for all the members of the court save dissenting Judge Laurence E. Meyers .The court held that Perez knew or should have known that he had a meritorious writ application in 1993, and that the delay between 1993 and 2011 was his fault so that the equitable doctrine of laches applied to his application. In equity, if someone asks for relief from a court, but delays asking for that relief so that the person asking for relief gains a marginal advantage over that person's adversary, that is not fair to the adversary and relief should be denied on that basis. This result obtains even if the relief is sought within a statute of limitations. 11.07 gives no deadline for a first application for habeas corpus.
Judge Meyers's dissent argued that the court's opinion contravened the will of the legislature since the Lege could have easily put in:

1.  a deadline or
2. an acknowledgement that laches applied

to 11.07 writ applications, but it did not. He noted that Perez was illiterate, and that Perez was in this mess because of his appellate counsel's ineffective assistance of him, which was not Perez's fault.
I hate it when people are denied appellate relief other than on the merits.  See Tex. R. Civ. P. 1. But Perez or his family members were almost certainly told by the initial appellate lawyer or the lawyer who did the civil suit that Perez should apply for habeas corpus relief, and, generally, the sooner the better. Really, more than 19 years is too long to wait.
The thinking in this case might lay the groundwork for how Texas courts deal with Jerry Hartsfield, the defendant whose 1983 reversal of his conviction was never implemented. His efficacious federal writ application was filed Oct. 22, 2007. His facts are different, though. He filed a number of pro se motions for relief earlier and didn't have counsel to help him until shortly after he filed his federal writ. Hartsfield's claims of post-conviction ignorance are much more reasonable than Perez's. The law in his case is different, too. Hartsfield got the death penalty at the trial court, so his post-conviction rules are different.
Hat tip for this case to the estimable Jim Skelton.
Ex parte Perez, No. AP-76,800 (Tex. Ct. Crim. App. Oct. 8, 2014 available at ww.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=35d3f487-d044-4f01-9b49-c473fa02ef2b&coa=coscca&DT=OPINION&MediaID=55f5c7f0-26f3-4adb-b5d0-1b93e38aff4e)

Texas Supreme Court Justices Discuss Their Views on Dissents and Contrasting View's in Texas's Highest Civil Court

If you've got a case going before the Texas Supreme Court, this Texas Lawyer article will be of interest, and possibly help to you. Justices Jeff Brown and Jeff Boyd are interviewed. The Texas Lawyer has a weird paywall that lets you read, I believe, five of their articles per month for free.

XXXXX’s Motion for Continuance, or, in the Alternative, to Reschedule Trial

No. XXXXXXXXXX

XXXXXXXXX                                           §         XXXXXXXXXXXXX County, Texas

                                                             §

XXXXXXXXXXXXXXXX                             §         In the XXXXXXXXX Court

            XXXXXXXXXXXXXXX                   §

                                                             §

XXXXXXXX                                             §         XXXXXXX Judicial District     

XXXXX’s Motion for Continuance, or, in the Alternative, to Reschedule Trial

            Respondent XXXX moves this court to continue the setting of this case from Saturday,  the XX day of the month of XXXXXXXX, 20XX, 1:30 PM. It appears to XXXXX and her attorney Bob Mabry that a Saturday trial would be impractical.

1.

XXXXXX and Mabry are eager for trial. Mabry in particular is impressed that Your Honor wishes to burst the shackles of an ordinary Monday through Friday workweek and continue on past Friday afternoon into Saturday afternoon. Opposing counsel, pressing on with Stakhanovite passion, may find Saturdays and Sundays dusty deserts of mind-numbing inaction and wish for Saturday afternoon court sessions. Unfortunately, respondent’s counsel believes that the rest of the court personnel and the other state and county employees that make court practical are unlikely to attend the hearing, when the alternative is “beautiful back porches to sit on, beautiful sporting news to read, [and] beautiful beer to drink.”[1]

2.

Mabry respects the court’s orders. He will come to court on this matter at any place in [the county seat of] XXXXXX, at any date or time more than ten days from now of the court’s choosing unless summoned to another court with priority or unless a relevant bona fide medical emergency exists. His views contrast with his wife’s. And Mabry respectfully requests that the trial be moved away from a Saturday in the interest of domestic harmony in his home. He further regrets to inform the court that the only authority which he stands in awe and fear more than Your Honor is Mrs. Mabry.[2]

3.

This application is not sought for delay only, but that justice be done.

Wherefore, respondent XXXXXX and her counsel Bob Mabry pray for this court to continue this trial or reschedule it to someday not less than ten days later than the date of this filing and service XXXXXXXXX XX, 20XX.

Respectfully Submitted,

_____________________

[1] Sinclair Lewis, Elmer Gantry, Ch. XVII, § 2, (1927)

[2] H. Rider Haggard, She, Ch. VI, inter alia. (1886); Rumpole of the Bailey (last accessed XXXXX XXXX, 20XX)