De Novo: A Virginia Appellate Law Blog : Virginia Appellate Lawyer & Attorney : James O'Keeffe : Gentry Locke Rakes & Moore Law Firm : VA Court of Appeals Commentary & Analysis

Our friends at the VLW Blog are reporting that William C. Mims will replace departing Justice Barbara Milano Keenan on the Supreme Court of Virginia. Mims was introduced to a joint meeting of the House and Senate Courts of Justice Committees. Each committee must certify a candidate before that candidate can be considered by the respective houses. Mims was the only person interviewed for the SCV opening, removing any doubt that he would replace Justice Keenan.

A quick Wikipedia check (I don't pretend to know this stuff) shows that Mims is a Republican who's served in both the House of Delegates (1992–98) and the Senate (1998–2006). He was Bob McDonnell's Chief Deputy Attorney General. When McDonnell resigned as Attorney General to campaign for governor in February 2009, the General Assembly picked Mims to finish McDonnell's term. Mims did not run for a full term as Attorney General. 

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In September, we wrote about Snyder v. Phelps, the funeral-picketing case out of the Fourth Circuit.

Yesterday, the Supreme Court granted cert in Snyder. The case is getting plenty of attention from the mainstream media, as well as some treatment on De Novo favorites SCOTUSblog, the Volokh Conspiracy (which had roughly a bajillion posts about the case yesterday), and Above the Law.

The Court will consider Snyder in the fall. This should be interesting. Stay tuned.

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One of the themes that we harp on here at De Novo is the importance of answering the Court''s questions. That usually comes up in oral argument, but sometimes, the Court is so kind as to direct the parties to brief certain issues.

That was the case in Roberson v. Commonwealth, handed down last session. Roberson and its companion case, Ghameshlouy v. Commonwealth, address some interesting but fairly esoteric questions of appellate jurisdiction, procedural defects, and waiver.

And in Roberson, it sounds like the Court really wanted to talk about waiver. At issue in the case was who was the proper appellee, the Commonwealth or the City of Virginia Beach. In its order granting the appeal, the Court directed both entities to appear, and specifically directed the City to address the question of whether it had made an appearance before the Court of Appeals. That could bear on whether it had waived its objection to the any procedural defect in the notice of appeal.

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Virginia Lawyer's Weekly reports that the U.S. Senate has unanmiously confirmed Justice Keenan for a seat on the Fourth Circuit. The Senate voted for cloture on her nomination this afternoon, then confirmed her by a 99-0 vote. Great news, and congratulations to the new Judge.

Now, about those other three vacancies . . .

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Ross Guberman of Legal Writing Pro has a fun piece, Five Ways to Write Like John Roberts, that's worth checking out. In the essay, Guberman distills five writing lessons from Roberts's brief in Alaska v. EPA. Those lessons are:

1. Let your facts "show, not tell."
2. Add speed through short and varied transitions.
3. Add elegance and clarity through parallel constructions.
4. Add interest through short sentences, examples, and figures of speech.
5. End with a bang.

Sure, you've heard it all before. But Guberman's vivid discussion and well-chosen examples bring these points to life. And frankly, the quotation from Roberts's statement of the case alone makes the essay worth reading.

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There hasn't been much news on Justice Keenan's nomination to the Fourth Circuit recently. But yesterday, the VLW Blog reported that Virginia's two Democratic Senators, Jim Webb and Mark Warner, invoked their Republican Governor, Robert McDonnell, in urging their Senate colleagues to act on her nomination.

According to the VLW Blog, Sens. Webb and Warner note that Justice Keenan has been a trailblazer for female jurists. She passed the Judiciary Committee by a unanimous voice vote in October. And, as further evidence of her bipartisan support, Webb and Warner point out that McDonnell had requested that she swear him in as governor.

That's an interesting point. There was some commentary on the interwebs to the effect that Justice Keenan was a "relative moderate" without a real track record on LGBT issues. To the author's way of thinking, she's ruled the correct way in two LGBT cases on the SCV, but only for procedural reasons.

Leaving aside the merits of that position, at least it sounds like there's general agreement that Justice Keenan calls balls and strikes. Isn't there something about "being an umpire" in her job description? Yes, I'm certain I remember reading that somewhere once.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

That's right. Thank you, Mr. Chief Justice.

All true. And to that I would add that Justice Keenan an excellent judge. It may be only marginally relevant to the political process, but she does a terrific job on the SCV and will do equally well on the Fourth Circuit. So let's get on with it.

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We're back with the second in our series of guest posts from recent Supreme Court of Virginia clerk and avid water skier Tommy Strelka. Today, Tommy shares some more things that his clerkship taught him about brief writing:

• Ditch the hyperbole. Your appeal from your client’s sixth conviction of shoplifting probably does not amount to “a case of extreme jurisprudential and meritorious weight.” Don’t oversell. You will lose credibility.
• Use the correct number of assignments of error. A petition for appeal with forty-five assignments of error is either a petition for appeal from a death penalty sentence or it is a poorly written brief. Most cases on appeal have only a handful of truly relevant and contested issues of law. You can obscure the main thrust of your argument by addressing far too many issues.
• Craft your assignments of error with care. You define the scope of your client’s appeal. When you submit an assignment of error or question presented, you are effectively setting the bounds of your argument. But be sure not to paint yourself in a corner. Every word matters in an assignment of error. Ask yourself, “What is the real legal issue at the heart of my case?” Boil it down to a single statement and write it down. If you knew nothing about this case and another attorney read this statement, would that attorney still understand the argument of law?

I'm enjoying Tommy's guest posts, and I hope that you are as well. Clerks have the ear of justices, and they are a primary audience for our briefs. It helps to know what they find persuasive and annoying.

Also, I like the goofy pictures he comes up with.

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The Supreme Court of Virginia is in session this week. Here's the argument document, which includes four criminal and thirty-four civil appeals. Good luck to everyone who is arguing.

Also, the Court will be handing down opinions on Thursday, instead of Friday. (Mental note: check Emmert's website on Thursday.) Friday will be devoted to hearing writ arguments rescheduled from the most recent snowpocalypse. Those writ arguments had originally been pushed back to March 31, so this is a positive development.

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Welcome to De Novo's inaugural guest post. Today, Tommy Strelka shares a few things that he learned during a recent clerkship with the Supreme Court of Virginia. This will be the first of several visits from Mr. Strelka, who has promised to provide us no fewer than ten--TEN!--tips.

Tommy is currently a trial lawyer at Strickland, Diviney & Strelka in Roanoke. A Mary Washington and Richmond Law grad, he's also clerked for Judge Turk in the Western District of Virginia. The opinions and practice tips expressed in this post are solely those of the author. They do not represent the opinions of any member of the Supreme Court of Virginia or any other Court--or, for that matter, any right-thinking person.

And now, a word from Thomas:

Clerking for a Justice of the Supreme Court of Virginia was a wonderful experience that opened my eyes to appellate practice. One of my favorite aspects of the job was the knowledge that many of the attorneys who filed briefs and argued before the Court were bringing their A-game. While skill, raw talent, and experience levels varied greatly, most attorneys stepped up to the plate and gave it their best shot. That best shot might have been an incredibly polished and persuasive brief or it might have been the world’s greatest thirty-second rebuttal. But no matter what form their work product manifested, the good attorneys always oozed preparedness. With that tenet in mind, I have compiled a list of traits or practices used by the attorneys who I felt, knocked it out of the park.

On Brief

• Acknowledge Weaknesses. In their quest for appellate justice, some attorneys spend a great deal of time waving their banners and thumping their chests. They will proudly file a brief that is far too one-sided. Even the best arguments have holes. If an attorney consistently pronounces the strengths of his or her argument while glossing over the weak points, her brief can come across as disingenuous and uninformed. That brief does not reflect the case, only a few facets of it. Leave the one-sided claims to the folks in advertising. Better briefs illuminate the entire case by spotlighting the argument’s weak points while simultaneously explaining how these points are not nearly as detrimental as the current case law would have the Court believe. The best briefs do this while acknowledging and attacking the arguments of the opposing party. 

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