During litigation, competent legal counsel must make efforts to concentrate on two things. First, legal counsel must make sure that all of the most recent cases, statutes, and regulations are being used for litigation. It is embarrassing for legal counsel and risky for a client to proceed before court with expired or outdated law. The impact of such a scenario could mean the prolonging of litigation and a negative overall perception towards the case from the judge. Second, competent legal counsel must pay very close attention to procedural steps needed for successful litigation. This means that all motions and requests for evidence must be made in a timely manner. The art of litigation requires a very structural approach with one step occurring before the next. If one step within the process is missed, misconstrued, or untimely, the result could spell the end of litigation and the client’s claim.
The reason for such strict adherence to procedural steps is due to an effort to expedite an already heavily time-burdened legal system. The procedural steps facilitate quick and systematic approaches to litigation. In a recent case, Percival Franklin v. Allstate Insurance Co., the plaintiff was dealt a blow by the implications of untimely filing.
The case began as many other vehicle-based legal issues do. There was an accident, which was followed by an injury to one of the passengers. The plaintiff in the case sued the driver of the other vehicle and that driver’s auto insurance. During the litigation process, the defendants filed certain exceptions with the trial court. After review, the trial court agreed to the exceptions and the trial was deemed over at that point. The exceptions were sustained on March 29, 2010. The notice of judgment was mailed on April 7, 2010. On May 24, 2010, plaintiff filed for a new trial which was denied on June 2, 2010. The notice of judgment of this decision was mailed on June 7, 2010. On August 13, 2010, plaintiff filed a motion for appeal. The trial court granted this motion on August 17, 2010. The Appellate court asked the plaintiff why it should not dismiss the appeal as being untimely. Plaintiff stated that under LA.CodeCiv.P.art 2087, the appeal was timely because it was filed within 58 days of the trial court’s denial of a new trial. Before reaching its judgment, the Appellate Court described errors in the way the plaintiff viewed the applicable dates. Plaintiff cites that the new trial was denied on June 7, 2010 and that the motion for appeal was filed on August 5. The Court stated that, based on the record, the new trial was denied on June 7 and the appeal was filed on August 13.
Louisiana Code of Civil Procedure Article 1974 states, “[t]he delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by article 1913. This means that after a judgment has been rendered, the plaintiff or defendant, which ever party is making the motion, has seven days to file for new trial, excluding legal holidays. LA.Code Civ.P.art 2087(A)(1) provides that when no motion for a new trial has timely been filed that a devolutive appeal may be taken within 60 days after the expiration of the delay for applying for a new trial. The applicable dates are once again summarized: Judge signed the order sustaining exceptions on March 29, this judgment was mailed on April 7, the delay for new trial expired on April 16, plaintiff filed a motion for new trial on May 24. Thus, we see why the motion for a new trial was rejected by the trial court. The delay for new trial expired on April 16, thus the delay for filing a motion for a devolutive appeal, under LA. Code Civ.P.art 2087(A)(1), expired on June 15, 2010. Plaintiff filed for appeal on August 13, 2010, well beyond the time allowed to file a motion for appeal under Louisiana procedural law. Thus, the Appellate Court dismissed the appeal.
The benefit of competent legal counsel is that legal counsel can help a client traverse the complex procedural framework of the legal system. This helps clients put forth the best claims in a timely fashion. Call the Berniard Law Firm to speak with counsel that can help you with legal advice regarding any claim you may have.