Jason Burge Talks “Litigation in Louisiana” in Recent Blog Interview

Fishman Haygood partner Jason Burge was recently featured in an Unpredictable Blog interview on “Litigation in Louisiana,” for which he shared insights on practicing in the state’s unique civil law system. The blog, run by New York-based litigator Will Newman, delves into the day-to-day aspects of commercial litigation and explores perspectives from attorneys across different states, jurisdictions, and countries. Continue reading below for interview highlights or click here for the full blog post.

Will Newman [WN]: Is there a type of dispute or particular industry that gets more attention in Louisiana than elsewhere?

 Jason Burge [JB]: 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.

[WN]: Louisiana is the only 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?

[JB]: 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where all law is supposed to be written in a statute or code and caselaw (even from the Louisiana Supreme Court) is not precedential.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 case law in our briefs, and it’s largely just a matter of knowing the civilian word for a concept rather than the common law one.

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[WN]: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?

 [JB]: 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.

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

 [JB]: 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.

[WN]: 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?

[JB]: 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.

[WN]: Is discovery different in Louisiana than in the federal or other states’ systems?

[JB]: 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.

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[WN]: 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?

[JB]: 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.

Partner Jason Burge represents individual and institutional investors and borrowers in securities fraud and lender liability cases in state court, federal court, and bankruptcy court, as well as FINRA arbitrations. He handles disputes involving allegations of statutory violations, breach of contract, breach of fiduciary duty, misrepresentation, and fraud from fact investigation through trial and appellate practice. Jason is also an Appellate Practice Specialist, certified by the Louisiana Board of Legal Specialization. Learn more about his practice here.