Litigation in Louisiana

Louisiana is a bit of an outlier in many ways among states in the United States. It has parishes instead of counties, it is former French colony, and it uses the civil law system instead of the common law one. While I have had the pleasure of speaking with lawyers from around the world about litigation in their home jurisdictions, I have long been curious about this very unique place inside the United States. And so I was glad that my law school friend and bandmate, Jason Burge, a partner at Fishman Haygood LLP in New Orleans, took some time to talk with me about litigation in Louisiana.

Why should you continue reading this post about litigation in Louisiana?

• You think you know something about litigation in the United States and want to learn that the country’s legal system has some variations.

• You thought that litigation in Louisiana was just the same as litigation in France.

• You are curious about a jurisdiction that permits oral arguments on all contested motions.

Jason Burge is a partner at Fishman Haygood LLP in New Orleans.

Is there a type of dispute or particular industry that gets more attention in Louisiana than elsewhere?

So my personal practice is largely “financial services disputes” considered broadly, even though I’m located in Louisiana, although most of my cases aren’t local.  So I may not be the best person to answer this question.

But in terms of the local market, other than personal injury disputes which probably dominate litigation everywhere, the big local practices are maritime (lots of Jones Act or limitation actions), environmental actions (lots of legacy lawsuits and remediation actions, even apart from direct cases resulting from spills), and oil and gas litigation. 

For my firm, the majority of the litigation we do in Louisiana is environmental litigation, typically representing landowners or governmental entities against companies in the oil and gas and pipeline industries.

Louisiana is the only US state that uses the civil law system instead of the common law system.  How does the civil law system in Louisiana differ from the common law system?

Superficially, it’s very different.  We have a codal system where all law is supposed to be written in a statute or code and caselaw (even from the Louisiana Supreme Court) is not precedential.  The legal language is traced back to civil law systems in France and elsewhere, so there are a lot of terms (prescription instead of statute of limitations; exceptions rather than motions to dismiss; an entire bizarre law of obligations) that differ from the nomenclature anywhere else in the country. 

That said, in practice it’s much the same. We still largely cite caselaw in our briefs and it’s largely just a matter of knowing the civilian word for a concept rather than the common law one. 

Do you use Lexis and Westlaw for legal research?  Or do you rely more heavily on statutes and textbooks?

Almost exclusively Westlaw.  The statutes are available there, and it’s easier to find them there than in books.

Do you electronically file pleadings with the court?  Or must you send paper copies of them to the courthouse? 

Louisiana switched very recently to almost exclusively electronic filings.  Some of the switch was due to advancing technology, but I think COVID helped speed it along. 

Some judges still want paper delivered, and we have a practice of “walking it through” where if you need an order signed that day, you’ll often have a court runner take a paper copy to the courthouse to be signed.

So there are a couple of different websites in use.  CDC (the civil court in Orleans Parish, covering New Orleans), has its own proprietary site. Most courts in the state use Court Connect.  Those are the two I’m familiar with, although to be honest, I don’t do my own filing in state court, I rely on a paralegal for that.

Image credit: https://en.wikipedia.org/wiki/Louisiana_Supreme_Court#/media/File:20150307-LouisianaSupremeCourt.jpg

The federal system in Louisiana still uses the common law system, though.  How does that work when cases are removed from state to federal court?  And do courts in one system cite decisions from the other?

I think technically a federal court in Louisiana should be using the civilian system when sitting in diversity, although I don’t think practically it matters.  It is definitely the case that the federal courts in Louisiana will consider opinions cited from state courts, although they’ll also consider citations to the Civil Code or to the Revised Statutes of course.  And we’ll often cite federal cases to state courts if it’s the only relevant precedent. 

I understand that Louisiana allows for more appellate review than is typical in other systems.  Can you tell me about that?

Sure.  We have a supervisory writ practice, enshrined in the Louisiana constitution, that allows for discretionary interlocutory review of any decision of a trial court, all the way down to discovery decisions. That said, “taking a writ” doesn’t interrupt the proceedings at the trial court like an appeal would, and there is no requirement that the appellate court actually accept the case for review. In practice, if the issue is not likely to be case-dispositive, typically the appellate court won’t consider the writ.

One thing I have learned about civil law systems in other countries is that there are often no juries in commercial disputes.  But that’s not true in Louisiana, is it?

Correct, we have juries for all civil matters where they are requested.  In that way we are very different from a civil system in Europe, for example.  We also have very broad-based discovery by litigants, which to my understanding is also very unlike European civilian systems.

Is discovery different in Louisiana than in the federal or other states’ systems?

Not really.  We have RFPs, Interrogatories, and RFAs just like the federal system and most other states I’m aware of.  One slight difference is that there are no time limits on depositions in Louisiana state disputes, so they can be multi-day affairs, which I understand is common in some other states but typically not in federal court.

Is practicing law in the American South at all like John Grisham novels?  Is there a lot of drama, well-dressed people, and scary villains?

LOL, not typically.  I find the bar down here to be pretty genteel, but that may just be true of most smaller jurisdictions that are not trying to be high-powered legal centers.  When I started down here it was perhaps better dressed than NYC (most people still wore suits to the office), but that’s largely faded away and we’re business casual like everywhere else.  When you get to rural Louisiana you can certainly encounter some accents, and there is a lot of “home-towning” outside New Orleans, but I don’t think that’s unique to the American South.

Do you believe that the Louisiana courts have a particular strength for resolving commercial disputes?  How about a weakness?  What are they?

Definitely not a strength.  The trouble with elected judiciaries is that there’s a wide variety of judicial quality, and no guarantee you’ll have a judge who will know much about business at all or be efficient at driving a complex case to resolution. 

And the juries are all over the place; I certainly would not assume a Louisiana jury is going to follow a complex commercial dispute.  The risks involved put a lot of pressure on parties to consider reasonable settlement, so almost all commercial cases end up resolving through mediation.  Perhaps that’s a particular strength of our system, I suppose it depends on what your goal is.

How often do you go to the courthouse?  Do you think people have to go to court in person more often in Louisiana than in other states?

In state court, there’s a right to oral argument on all contested motions. So while I don’t handle a lot of Louisiana state court cases, when I do I’ll go to court relatively often.  The federal courts down here very rarely have argument.  I may have actually argued more times in the U.S. Fifth Circuit than in the Louisiana Eastern District.  A state court practice in Louisiana will have a lot of court appearances, a federal court practice may have almost none.

How often do you see lawyers come in from Texas or New York or DC to appear in Louisiana courts?  Is that common?

Yes, although far more often in federal court than in state court.  It’s not uncommon to see Texas lawyers, Tennessee lawyers, or lawyers from other neighboring states).  I’ve run into very few New York or DC attorneys in Louisiana, although that may have more to do with a lack of cases that could justify the rates.  Because of my focus on financial services disputes, I actually litigate quite often with New York attorneys, although very few of those cases have been pending in Louisiana.

You’re an accomplished musician!  We played together in a band over twenty years ago and, while I was a goofball who could sometimes bar a chord, you played like a pro.  Do you get to play music still while juggling the demands of the job?

Thank you for the kind words!  I picked back up piano lessons about 7 years ago, trying to put together recitals (I’ve put on 1 one-hour recital so far) and I joined a piano club that plays music monthly about a year ago.  I also very occasionally cover a church service. 

When I first started, I was still composing music, although I ran out of time to do that after a few years.  The demands of the job were certainly part of it, but I also had children shortly after starting, and I think the demands of parenting were almost as responsible for the lack of time as work.