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  • LOUISIANA JUDICIAL COLLEGE 2016 Spring Conference for Judges

    April 14 and 15 Double Tree by Hilton, Lafayette

    Adjudication: Judging Others, Judging Yourselves, and Being Judged by Others

    DONA RENEGAR Huval Veazey Felder & Renegar LLC Facilitator JUDGE JOHN CONERY 3rd Circuit Court of Appeal

  • ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS

    Louisiana Judicial College

    Spring Judges Conference

    April 15, 2016 11:20 a.m.

    Presented by:

    Dona K. Renegar Huval, Veazey, Felder & Renegar 2 Flagg Place Lafayette, LA 70508 (337) 234-5350

    drenegar@hvfr-law.com

    Acknowledgment – Thanks to Judge Durwood Conque of the Fifteenth Judicial District Court for his contribution

    mailto:aveazey@hvfa-law.com mailto:drenegar@hvfr-law.com

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    JUDGING OTHERS I. CONTINUANCES

    A. Code of Civil Procedure Articles 1601-1605

    1. C.C.P. Article 1601 Discretionary grounds A continuance may be granted

    in any case if there is good ground therefor. 2. C.C.P. Article 1602 Peremptory grounds A continuance shall be granted if

    at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

    3. C.C.P. Article 1603 Motion for continuance A motion for continuance shall

    set forth the grounds upon which it is based, and if in writing shall comply with the provisions of Article 863 (Signing of pleadings, effect).

    4. C.C.P. Article 1604 Prevention of continuance by admission of adverse party When a party applies for a continuance on account of the absence of a material witness, the adverse party may require him to disclose on oath what facts he intends to prove by such witness, and if the adverse party admits that if the witness were present he would testify as stated in the affidavit, the court shall proceed to the trial of the case.

    5. C.C.P. Article 1605 Trial of motion; order Every contested motion for continuance shall be tried summarily and contradictorily with the opposite party.

    B. Factors to Consider When Filing a Motion for Continuance

    1. Contact with the judge’s office

    • Always include an order setting an opposed motion for continuance for hearing.

    • Do not discuss the grounds of the motion for continuance if you call the judge’s office.

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    • If you have a trial in the near future some judges will allow you to argue the motion for continuance telephonically. The other party must agree to have the hearing via telephone, there will be no record, and you are bound by the ruling.

    • An illustrative list of factors judges use to determine if you have good grounds for a motion for continuance include: the diligence and good faith of the moving party, the reasonableness of the grounds, the fairness to both parties and other litigants before the court, and the need for the orderly and prompt administration of justice. Louisiana District Court Rule 9.17.

    2. Common “factors” cited by lawyers to get a continuance

    • This case has never been continued before.

    • My opponent has already gotten a continuance, so I should get one too.

    • I have not had time to prepare for trial.

    • I have a family vacation scheduled for that week.

    • I thought we were going to settle.

    3. Practical pointers

    • Always let the court know if your motion for continuance is opposed as many judges will grant an unopposed motion for continuance without a hearing.

    • Be prepared to reschedule the trial right away and have your calendar

    ready. • Never present a motion for continuance to any judge other than the one to

    whom the case is allotted unless you have permission. 4. Why are judges cautious about continuances

    • Civil cases should be settled, tried or otherwise concluded within nine (9) months of the date a motion to set for trial is filed, except for individual

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    cases in which the Court determines exceptional circumstances exist and for which a continuing review should occur. Louisiana Supreme Court Rule Part G, Section 6. Time Standards Louisiana District Courts (A).

    • Proceedings using summary hearing procedures should be concluded within forty-five (45) days from service of process. Louisiana Supreme Court Rule Part G, Section 6. Time Standards Louisiana District Courts (B).

    • Domestic relations matter should be settled, tried or otherwise concluded within four (4) months of the date of case filing, except for individual cases in which the Court determines exceptional circumstances exist and for which a continuing review should occur. Louisiana Supreme Court Rule Part G, Section 6. Time Standards Louisiana District Courts (C).

    II. BRIEFS AND MEMORANDA

    A. Getting them in on time

    1. When filing exceptions or motions you should file the supporting memorandum and serve a copy of same to all parties and the trial judge concurrently. The memorandum shall be served on all parties at least fifteen (15) calendar days before the hearing unless the court sets a shorter time. Louisiana District Court Rule 9.9(b).

    2. The opposing party to an exception or motion shall serve a copy of an opposition brief to all parties and furnish a copy to the trial judge concurrently. The opposition memorandum shall be served on all parties at least eight (8) calendar days prior to the hearing unless the court sets a shorter time. Louisiana District Court Rule 9.9(c).

    3. The mover may furnish the judge and serve on all parties a reply memorandum as long as it is received before 4:00 p.m. on a day that allows one (1) full working day before the hearing. Louisiana District Court Rule 9.9(d).

    4. Failure to abide by these rules may result in waiver of oral argument and failing to timely serve a memorandum necessitating a continuance to give the other party a fair chance to respond, can result in the court ordering the late-

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    filing party to pay the opposing side’s costs incurred on account of the untimeliness. Louisiana District Court Rule 9.9(e).

    B. Getting them to the proper place

    1. Any party may, but need not, file a copy of the memorandum with the clerk of court. Louisiana District Court Rule 9.9(f). See Rule 9.4 and Appendix for Rule 9.4 for whether a particular judicial district court requires that memoranda be filed with clerk of court or sent directly to the presiding judge.

    2. Make sure you know where your presiding judge is located when you provide a copy of the memorandum especially in multi-parish districts.

    3. Determine whether the judge’s law clerk wants to receive a copy of the memorandum and provide same.

    III. DECISIONS AND JUDGMENTS

    A. Timing of judgment

    1. C.C.P. Article 1637 Completion of trial; pronouncement of judgment After trial is completed, the court may immediately pronounce judgment or take the case under advisement.

    2. Louisiana Supreme Court Rule G, Section 2(a) A case or other matter shall be considered as fully submitted for decision to the trial judge, and should be decided, immediately upon conclusion of trial or hearing, and judgment signed expeditiously thereafter.

    3. LSA-R.S. 13:4207 If oral reasons for judgment are not rendered in open court

    and the matter is taken under advisement then district and city court judges have thirty (30) days from the time the case is submitted to render a written judgment.

    a. LSA-R.S. 13:4210: Penalty provision for judge who violated above

    statute shall be withholding by clerk of court of one-quarter’s salary of that judge for each violation.

    b. But see Prejean vs. Acadia Parish Clerk of Court, 107 So.3d 569, 2012- 1177 (La. 1/29/13) holding that LSA – R.S. 13:4210 is unconstitutional.

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    • District Court heard a custody hearing and took the matter under

    advisement. Decision was not rendered for approximately five (5) months.

    • The claimant filed a writ of mandamus against the clerk seeking an order requiring the clerk to notify the legislative auditor that the district judge failed to render a decision within the time prescribed.

    • District Court denied the writ of mandamus. Prejean then filed an appeal with the Third Circuit Court of Appeal which raised the issue of the constitutionality of LSA-R.S. 13:4210 sua sponte was unconstitutional on its face because the legislature lacked the authority to regulate judicial conduct; because the statute reduces the judge’s salary without proper notice to the judge violating the due process clause; and the description of “one quarter salary” was unconstitutionally vague.

    • Supreme Court found that there is a very limited exception to the rule that a constitution challenge must be raised in the trial court when the statute, as drawn, is clearly unconstitutional on its face.

    • The Supreme Court found that the statute usurped the powers which our constitution grants exclusively to the Supreme Court, i.e. judicial discipline.

    • The Supreme Court found that because the