Stare Decisis vs. Jurisprudence Constante
In both the common law and civil law systems, it is crucial that the populace be able to rely on a stable set of laws by which they are governed.
In the United States, 49 of the 50 states follow the common law tradition, which traces its roots to Great Britain where judicial interpretation of statutes is considered "law" itself. Although state legislatures in those 49 states obviously enact statutes, it is the interpretation of those statutes by courts that is considered binding "law".
Louisiana, however, followed the civil law tradition originating in continental Europe. Like the other 49 states, Louisiana's Legislature also enacted statutes. Yet, under strict civil law theory, the statutes (as well as "custom" - another concept unique to Louisiana with respect to the other 49 states) themselves are considered "the law". Court decisions are merely interpretations of those statutes and customs, and other courts are not required to follow prior interpretations. These principles are reflected in the first articles of Louisiana's Civil Code:
- "The sources of law are legislation and custom." (La. C.C. Art. 1)
- "Legislation is a solemn expression of legislative will" (La. C.C. Art. 2 - referring to statutes)
- "Custom results from practice repeated for a long time and generally accepted as having acquired the force of law . . ." (La. C.C. Art. 3)
So what function does the judiciary serve in Louisiana if its opinions are not "binding" in the common law sense?
Stare decicis - used in common law jurisdictions - refers to the judicial principle that once a court interprets a particular statute, that interpretation is considered "law" and should be followed by future courts interpreting that same statute.
Jurisprudence constante - used in civil law jurisdictions such as Louisiana - refers to the judicial principle that every court begins with a review of a statute and not with previous decisions interpreting that statute. This does not mean that Louisiana jurisprudence has no importance. On the contrary, civil law jurisdictions strive for the same measure of legal "consistency" like common law jurisdictions.
But the key distinction between the two doctrines lies in the authority afforded one previous decision interpreting a statute (stare decisis) versus numerous court cases consistently interpreting a statute (jurisprudence constante) and providing guidance. As the Louisiana Supreme Court recently explained: "a single court decision can provide sufficient foundation for stare decisis . . . [however] . . . a series of adjudicated cases, all in accord, form the basis for jurisprudence constante."
Thus, in Louisiana, are court cases authoritative? Absolutely. Are subsequent courts bound to render the same opinion as a previous court, especially when an issue with a statute has been decided only once before? No. So how does a person unfamiliar (out of state counsel, business, insurance companies) with Louisiana's Civil Law System evaluate its court decisions, especially those by the Louisiana Supreme Court? That Court addressed this question with the following answers:
"We must be ever mindful that once this court has ruled on an issue we should be extremely reluctant to change our position, as both the legislature and society in general should be able to rely on the finality of our pronouncements. Stability and predictability in the law demand such a result.
"In sum, the chief distinction between jurisprudence constante and stare decisis is this: 'A single case affords sufficient foundation for the latter, while a series of adjudicated cases, all in accord, form the basis for the former.'"
I found the following statement by Marcel Planiol, one of the great French legal commentators, in his Treatise on the Civil Law, to be one of the most profound - and an accurate one when evaluating Louisiana jurisprudence even today:
"[O]ne of the fundamental rules of [the civil law tradition] is that a tribunal [court] is never bound by the decisions which it formerly rendered; it can always change its mind . . ."
State Judicial Districts Throughout Louisiana
All Louisiana state district, appellate, and supreme court judges are elected by popular vote of Louisiana residents. The major exception involves workers’ compensation judges, who are appointed.
Louisiana's state district judges are the "lowest" level of elected members of the judicial branch of state government. Candidates run in "judicial districts", which sometimes encompass one parish (single parish districts), and in other instances comprise more than one parish (multi-parish districts).
For example, the 15th Judicial District consists of Lafayette, Vermilion, and Acadia Parishes, and the 16th Judicial District consists of St. Mary, Iberia, and St. Martin Parishes. On the other hand, the following judicial districts are limited only by the boundaries of the parishes they occupy: the 13th Judicial district encompasses only Evangeline Parish, the 27th Judicial District empasses only St. Landry Parish, and the 14th Judicial District encompasses only Calcasieu Parish.
In multi-parish districts, the number of judges representing each parish in a particular district is determined by the population of that particular parish in contrast to the other parishes in that district. Thus, in the 15th Judicial District, Lafayette Parish has more state district judges than Acadia and Vermilion Parishes because more residents live in Lafayette Parish than Acadia and Vermilion Parishes.
Of the 13 state district judges who serve the 15th Judicial District, eight are elected from Lafayette Parish, three are elected from Acadia Parish, and two are elected from Vermilion Parish.
Louisiana's State Judicial Districts
Elected or Appointed Judges?
In the last decade or so, a number of "good government" organizations have pushed for the elimination of elected judges, and have advocated a selection/appointment process where individuals become judges based on "merit" as determined by select "blue ribbon" committees. These organizations cite the appointment of federal judges as an example of eliminating politics and perceived bias in choosing a judiciary (although I contend that federal judges are themselves, in effect, akin to being "elected" by virtue of the U.S. Constitution requiring their confirmation by the U.S. Senate and the politicization of that process in the last 25 years).
Consider the following scenario where an elected judge might be perceived by the public as having been "compromised" (or at least has given the "appearance of impropriety") because he is presiding over a case involving a party or an attorney who is a major political contributor to that judge's upcoming campaign for re-election. Suppose further, that trial judge is running for re-election on the Tuesday of election week, is hearing motions on the Monday before the election, and one pending motion is in a case whether either a party or an attorney is a major campaign contributor or a campaign "steering committee" member. In Louisiana, it would not be automatically deemed unethical per se for that judge to continue to preside over such a case. Although this, as well as other reasons, have been cited as the impetus for moving Louisiana from elections to a "merit-based" selection/appointment process, the election of judges remains firmly entrenched in this state and Louisiana's Constitution would have to be amended to change the current judicial election process.
The most prominent public statement on whether Louisiana should move from an elected to a selected judiciary came from now-retired Justice Pascal Calogero, who said, in opposing appointed/selected judges during his State of the Judiciary address in 2008:
My experience has been that the electorate, for the most part, has made wise and deliberate choices of those who are elected to serve in the state judiciary . . . I am also concerned that replacing an elective system with a selection or appointive system only takes away the choice from the people and places it in the hands of a few . . . It does not in any way remove the politics from the process, as some have argued.
Our Founding Fathers, of course, reached a different conclusion when they excluded the federal judiciary from being elected. In addition, federal judges - unless removed from office by impeachment - serve for life, unlike elected judges, who must campaign to retain their respective positions in Louisiana's judiciary.
One should note that a sitting judge in Louisiana is rarely "unelected" by the populace. Whether through apathy or genuine support, Louisiana judges often remain in office from election until they either die or retire.
Civil Trials in Louisiana
Judge or Jury Trial?
Although Louisiana's Constitution requires an elected judiciary, that Constitution does not require civil jury trials except in specified circumstances. Instead, jury trials are granted by statute in the Louisiana Code of Civil Procedure, and are available in all cases except the following:
1. A suit where the amount of no individual petitioner's cause of action exceeds $50,000 exclusive of interest and costs.
2. A suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, error, want, or failure of consideration.
3. A summary, executory, probate, partition, mandamus, habeas corpus, quo warranto, injunction, concursus, workers' compensation, emancipation, tutorship, interdiction, curatorship, filiation, annulment of marriage, or divorce proceeding.
4. A proceeding to determine custody, visitation, alimony, or child support.
5. A proceeding to review an action by an administrative or municipal body.
6. Probate matters.
7. Disbarment proceedings.
8. All other cases where the law specifically prohibits jury trials. As such cases are too numerous to enumerate for the purpose of this general description, the layman may assume he has a right to a jury trial and request one accordingly. At worst, his request will be denied if a specific statute has been enacted to prohibit jury trials in his particular case.
Once you determine your case presents an issue entitling you to a jury trial, your attorney must be careful in the pleading and timing of his demand for a jury trial. Although you may be entitled to a jury trial in your case, a timely demand must still be made to obtain one.
Two very important time periods exist for jury trial demands: 10 days and 60 days.
Any litigant may demand a trial by jury by filing a pleading containing that demand no later than 10 days after either the service of the last pleading directed to any issue triable by a jury, or the granting of a motion to withdraw a demand for a jury trial.
As an amended pleading directed to a jury-triable issue provides a "tardy" litigant with a new chance to demand a jury trial if that litigant failed to do so before, some litigants will file amended pleadings solely for the purpose of reopening that 10 day period. But, the Code of Civil Procedure also has a time limit for amending pleadings without court approval. Most such approvals are routinely granted ex parte, but if either a trial judge happens to carefully review a purported amended pleading and concludes that the amendment was filed solely to reopen the jury demand period, or a litigant opposing a jury trial contests the purported amended pleading as without merit, a judge could deny the amended pleading as improper, thereby resulting in no extension to demand a trial by jury.
A timely demand for a jury trial by one party enures to the benefit of all other parties who desire a jury trial.
Yet, what happens if the party who timely demanded a jury trial decides to withdraw his demand after the original 10 day period has expired? Louisiana's Code of Civil Procedure protects the other litigants who wanted a jury trial and relied on the party who first requested one, by extending the original 10 day period another 10 days after the withdrawal. Thus, once the original demanding-party withdraws his demand, any other party may preserve the jury trial by making their own demand within 10 days after the withdrawal.
Once a litigant has timely demanded a jury trial, he must then timely post a bond to secure his jury trial. When a case is fixed for jury trial, the court shall fix the amount of the bond to cover all costs related to the trial, and it shall also fix the time for filing the bond. The time period for posting a bond shall be no later than 60 days before the trial date (as set by the Code of Civil Procedure) and no earlier than 180 days before the trial date (as prescribed by the Uniform Rules for Louisiana District Courts).
The wording "no later than 60 days" is a bit inartful, with the word "later" causing confusion. A casual reading of "no later than 60 days" seems to indicate that 61 or more days is "later" than 60 days. This is not, however, how the courts have interpreted this provision. Once a trial date is
set, a party wishing to preserve a jury trial by posting a bond must do so at least 60 days before the trial date. If a bond is posted on any date after 60 days prior to the trial date, then the bond will be untimely.
The Uniform Rules of State District Courts state that a court may not fix the posting of bond more than 180 days from the date of the trial.
Reading the Code of Civil Procedure and the Uniform Rules together, a party who wishes to post a timely bond must do so at least 60 days or more before a trial date, and a court may not set a bond date more than 180 days before a trial date.
Thus, because there is a window of 180-60 days prior to trial in which a court may set a bond posting date, and local clerks may set different time periods within that 180-60 window, it is incumbent on any party wishing to preserve a jury trial to consult the local rules of court to determine how many days less than 180 but no more than 60 days prior to the trial date, he has to post his bond timely.
The time for posting a bond is much "trickier" than the 10 day period for demanding a jury trial because of notice requirements. As the clerk of court is only required to notify all parties of the original date and fixing of the bond, other parties who want to maintain a jury trial have the burden of continually checking to ensure that bond is still posted. Once 10 days pass from the date that bond should have been posted and no other party follows up by posting their own bond, the jury trial will revert to a judge trial. And the clerk has no duty to notify other litigants that a party who had requested a jury trial missed the filing deadline for that party's jury bond.
At first blush, it seems contradictory that a clerk must notify all litigants of the withdrawal of a jury demand but does not have to notify all litigants of the withdrawal of a bond. No contradiction exists, however. The former refers to a litigant's jury demand or withdrawal of that demand - the latter refers to a litigant's withdrawl of the supporting bond.
As jury bonds are relatively inexpensive, many defendants (especially if they are companies or insurers) post a jury bond even if other jury bonds have been posted by other parties. That duplicate-posting prevents all parties who want a jury trial from losing it if only one party posts a jury bond and then withdraws it.
Calling a Pool from Which a Jury will be Selected
When the bond has been filed, the clerk of court will order the jury commission to serve notices on a sufficient number of people to serve as potential jurors. This group of people - summoned for jury service - is called the venire. After a preliminary process of eliminating people primarily for reasons of hardship such as family, health, or age, each resident is given a number and instructed to appear at a certain area of the courthouse where they will participate in what Louisiana calls voir dire - a French phrase that means "to see and speak".
Voir dire is the name given to the questioning of prospective jurors to determine if any potential juror is so biased in his views that he cannot set aside that bias and deal fairly with the issues as a juror at trial. Usually, a group of 24-36 potential jurors will be seated in the courtroom for voir dire.
Although the procedure varies to some degree with individual judges, attorneys - for the most part - ask the majority of questions of the potential jurors. The judge will usually begin with a short, pre-determined list of questions that, if answered in a certain manner, almost always eliminate potential jurors based on their answers to those questions. After the judge finishes, he then permits the attorneys to ask their own list of questions. The questions posed by attorneys are meant to obtain as much information as possible about a potential juror: his feelings about people who file lawsuits, his feelings about insurance companies, whether he has been a litigant himself, whether he has ever been injured, can he put aside any pre-conceived notions he might have about litigation and render a just verdict, etc. Although attorneys are given a good deal of latitude in their questioning of the venire, the judge ultimately controls the scope of that questioning.
Number of Jurors
For civil jury trials, 12 jurors are seated from a group of residents summoned from the judicial district in which the trial is to be held. The number of residents called for jury duty varies from each judicial district. The parties may stipulate that the case will be tried by 6 jurors, and they may stipulate that if one or more jurors dies or is disqualified, the remaining jurors shall try the case.
To preserve an "adequate" number of jurors in the event of a loss of original jurors for whatever reasons, the court may direct that one or more residents be empaneled as alternate jurors.
Challenging Potential Jurors
A peremptory challenge refers to the right of the litigants in a jury trial to have a potential juror dismissed before trial without stating a reason. This differs from a challenge for cause, where the litigants seek to dismiss a potential juror any of the following reasons:
(1) When the juror lacks a qualification required by law;
(2) When the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial;
(3) When the relations whether by blood, marriage, employment, friendship, or enmity between the juror and any party or his attorney are such that it must be reasonably believed that they would influence the juror in coming to a verdict;
(4) When the juror served on a previous jury, which tried the same case or one arising out of the same facts; or,
(5) When the juror refuses to answer a question on the voir dire examination on the ground that his answer might tend to incriminate him.
Although peremptory challenges are supposed to be granted without a litigant having to give a reason why he struck a potential juror from serving, the United States Supreme Court in 1991 held that if a litigant believes that a particular juror has been peremptorily dismissed by the opposing side because of that potential juror's race, the non-challenging litigant may demand that the challenging-litigant provide a race-neutral reason for the challenge - be it lack of education, lack of wealth, involved in too many lawsuits of his own, etc. If the challenging-litigant cannot articulate a race-neutral reason for the challenge, then that juror will be allowed to remain and serve as a juror.
If trial is by a jury of twelve, each side is allowed six peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges, not to exceed four.
If trial is by a jury of six, each side is allowed three peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges, not to exceed two.
Each side shall be allowed an equal number of peremptory challenges. If the parties on a side are unable to agree upon the allocation of peremptory challenges among themselves, the allocation shall be determined by the court before the examination on voir dire.
An Example of How a Judge Conducts Voir Dire and Handles Challenges:
15th Judicial District Judge Durwood Conque's (now retired) Approach to Voir Dire
The following was taken verbatim from a retired judge's website in which he described his approach (remember - judges have great latitude in conducting voir dire) to selecting a jury:
"I generally use a "struck jury" method of jury selection. That is, I conduct voir dire of (24) to (36) prospective jurors at a time. When the parties have challenged, peremptorily or for cause, everyone whom they wish to strike from this group, the first (12) called who remain unstriken become the jury. The next (1) or (2) become alternates, if needed. I permit (1) additional challenge per party for each alternate needed. If there are not (12) who remain unstriken, then I call up a sufficient number to complete the jury. I do permit 'back striking' anytime before the jury is sworn. ['back striking' refers to the process in which a party may strike a juror who was at first not stricken when his number was called, but a party changes his mind and decides to strike a 'seated' juror before the jury is sworn]
"I conduct fairly extensive voir dire myself, then I permit voir dire by each side in the case. Voir dire by the attorneys should be confined to pertinent issues not already covered by me. Voir dire is not the proper place to make impassioned pleas, speeches or argument, but I will not usually intervene "sua sponte" in front of the jury. It is the duty of the opposing attorney to decide if an objection should be made during the voir dire. The court should not be expected to do the job of the advocates in the case. I do encourage the making of such objections at sidebar, and in any event, all discussion or debate on any objection is required to be at sidebar.
"All challenges must be made at sidebar. If a record needs to be made regarding any challenge, I allow time when the jury is out of the courtroom for this purpose. At sidebar, I first ask for any challenges for cause. Once these are disposed of, I ask for peremptory challenges in rotation beginning with the plaintiff. If there is a second round, the rotation begins with the defendant. In turn, each side may challenge any prospective juror, regardless of the order in which the juror was called up. Again, "back striking" of any prospective juror is permitted until the jury is sworn."
Number of Jurors Needed to Win
If trial is by a jury of six, five of the jurors must concur to render a verdict unless the parties stipulate otherwise.
If trial is by a jury of twelve, nine of the jurors must concur to render a verdict unless the parties stipulate otherwise.
If the parties have stipulated that if one or more jurors die or become disqualified and that remaining jurors shall try the case, the parties must also stipulate the number of remaining jurors who must concur to render a verdict.
Appellate Practice in Louisiana
Appealing a Trial Court Decision
Any party to a suit who wishes to contest part or all of the outcome of a decision by a judge or jury has a state constitutional right to appeal the trial court's judgment to one of five circuit courts of appeal.
Louisiana's State Appellate Circuits
The map above provides a breakdown of the five appellate circuits in Louisiana. The parish in which a case is tried may be appealed only to the appellate circuit in which the parish is located. Thus, if a trial occurs in Lafayette Parish, an appeal must be taken to the Third Circuit Court of Appeal.
Appellate courts are usually composed of three randomly selected appellate court judges. If the three-judge panel rules 3-0 or 2-1 in favor of the party who won at trial, the trial judgment is "affirmed", and the appellate process at the appeals court is finished (unless a rehearing is granted). Conversely, if the three-judge panel rules 3-0 against the party who won at trial, the trial court’s judgment is set aside and the appellate court’s opinion is deemed the "decision" in the case.
There are times when the law requires that at least five judges hear a case. This happens only in civil matters, and only when a judgment of a district court is to be modified or reversed by a three-judge panel with one dissenting judge (that is, 2-1 in favor of overturning the trial judgment). In such an event, the case has to be reargued before a panel of at least five judges, and a majority of them must concur to render judgment. The original 3 judges will be part of the 5 judge panel, with the remaining two selected randomly.
Sometimes, all of the judges in a particular appellate circuit court will sit on a case. This is referred to as en banc, and happens only when the law or special circumstances require it.
Appeal to the Louisiana Supreme Court
Any party who wishes to contest part or all of the outcome of a decision by a circuit court of appeal may seek review by the Louisiana Supreme Court, but the review is discretionary. Four out of the seven Supreme Court justices must agree to grant the request for a review in order for the case to be considered by the Supreme Court.
The chance to receive a hearing before the Louisiana Supreme Court is very small. In 2009, 2546 applications were file for consideration by the Supreme court in civil cases. The Court granted only 336 (approximately 13%) of those applications, and that year was high. In most years, the average rate is 10% or less.
Appellate Review of Fact - Unique to Louisiana
Louisiana is different from the other 49 states in that it permits appellate courts at both the circuit court and supreme court levels to review issues of fact as well as issues of law. In other words, an appellate court, relying solely on the trial-record, may resolve a factual dispute differently than the court immediately preceding it. This is unusual in the sense that appellate courts may decide factual issues (that is, they may act as a trial court), but are not permitted to consider new evidence - their decisions must be based on the trial-record.
Appellate review of fact in Louisiana has been hotly debated ever since its first appearance in the Louisiana Constitution of 1921. Louisiana’s Constitution grants all parties - both civil and criminal - an automatic right to appeal from a trial court’s judgment. But, is this right to appeal protected if an appellate court overturns a factual determination that was made at the trial level? Some argue that the "right to appeal" is lost because a litigant does not have the right to appeal an appellate court decision that overturned a verdict based on a review of factual evidence - something that is done by trial courts and from which automatical appeals are granted.
Thus, Louisiana’s unique "appellate review of fact" presents a situation where its Constitution clearly gives its residents an automatic right to review (that is, to appeal a trial court decision), but then seems to deny that same right when an appellate court overturns a trial court’s decision based on an issue of fact, and an automatic review of that "new" fact-based decision is not available. Remember - when an appellate court reviews the trial-record and makes its own factual determination that differs from a trial court’s determination, the appellate court was, in effect, "sitting as a trial court on appeal". And in such a case, the party who loses on appeal on the "factual issue" does not have an automatic right to have that appellate determination reviewed by the Louisiana Supreme Court.
Some of you reading this part and the the previous part of my website may find it quite "legal oriented" and a bit long on history. I decided, however, to make this part so detailed because I believe that understanding Louisiana's history, along with the manner in which Louisiana enacts its laws and courts interpret those laws, is crucial to successfully handling cases in Louisiana.
Many out-of-state businesses, insurance companies, and in-house counsel, do not have a good understanding of Louisiana's civil law system, and as a result, often make decisions they may not otherwise have made if they knew more about that system. With this information, I hope that out of state "legal departments" will be better armed with information in deciding whether to settle, try, or appeal civil cases pending in Louisiana - the only civil law jurisdiction in the United States.