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

Civil procedure nerds and defense counsel, rejoice! (I am looking at you, Travis.) In Barbour v. International Union, a fun--if dense--opinion handed down on Thursday, the Fourth Circuit adopts the "last-served defendant" rule for removal. Or in geekspeak, it takes a district court up on its invitation "to clarify whether the 'first-filed' 'dictum' in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992), means what it actually seems to say."

Short answer: it doesn't. But before we get there, the Fourth Circuit walks us through some removal case law, considers the extent to which earlier panel decisions are binding, and honors the nerdly virtues of close reading and careful research.

A quick refresher, for those of us who slept through civ pro: under 28 U.S.C. 1446, a defendant has 30 days in which to file a notice of removal. But what if  there are multiple defendants, and they are served more than 30 days apart? That's what happened to the defendant unions in Barbour. All three defendants filed a joint notice of removal. They filed it more than 30 days after the first defendant was served, but less than thirty days after the second defendant was served, and before the third defendant was even brought into the case. Was the notice of removal timely?

Turns out there's a Circuit split on that point. The Fifth Circuit applies a "first-served defendant" rule: in cases involving more than one defendant, the thirty days starts running when the first defendant is served. The Fifth Circuit reasons that, since all served defendants must join in the removal petition, the failure of the first defendant to remove within 30 days defeats removal altogether.

The Sixth, Eighth, and Eleventh Circuits, by contrast, apply a "last-served defendant" rule. Those jurisdictions give each defendant 30 days in which to file a notice of removal.

By all appearances, the Fourth Circuit had found a middle ground. Footnote 3 in the McKinney opinion states that, if the first-served defendant does not petition for removal within 30 days of service, the case may not be removed. But if the first-served defendant does petition for removal within 30 days, a later-served defendant may join in the petition or move for remand.

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Last Friday, the Supreme Court of Virginia handed down a batch of eighteen opinions and two published orders. One of them, Shapiro v. Younkin, provides a lucid, well-reasoned treatment of the rules regarding transcripts and written statements of fact.

Please ignore it in its entirety. To paraphrase one of Caroline's favorite writers, there is a monster at the end of this opinion. 

Background

At issue in Shapiro was whether the circuit court erred by dismissing a plaintiff's appeal from the general district court because the plaintiff had failed to secure a court reporter, in violation of the circuit court's rule requiring that a court reporter be present at the trial of all civil cases.

Shapiro brought a landlord-tenant suit against Younkin in general district court, proceeding pro se. He lost and appealed to the circuit court, where he also appeared pro se. The court's local rules required that a court reporter be present at all civil trials, and that a party appealing a GDC case arrange to have a court reporter present at the circuit court trial.

Shapiro failed to arrange for a court reporter, so the circuit court dismissed his appeal with prejudice. Later that day, Shapiro submitted a written statement of facts. The trial court declined to enter the statement. Instead, it wrote on the face of the document that the statement did not accurately reflect the events at trial, which were noted in the court's order.

[Are you still reading? Because there is a monster at the end of this opinion.]

Shapiro--still proceeding pro se--appealed to the Supreme Court. He argued that the dismissal of his case violated Code Section 17.1-128, which provides that the failure to secure a court reporter will not affect the proceeding or trial. He also claimed that the court violated Rule 5:11 by failing to certify his written statement of facts.

Holding

The Supreme Court agreed. It reversed the trial court's judgment and remanded the case, holding that the trial judge had violated both Code Section 17.1-128 and Rule 5:11.

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On Friday, the Supreme Court of Virginia handed down 18 published opinions and two orders. As always, Steve Emmert has a witty write-up (along with a new photo on his web page--looking good, Steve). The VLW Blog also discusses some of the highlights. The bulk of January cases are either criminal appeals or habeas proceedings; I haven't done the math myself, but Emmert breaks it down to 15 criminal appeals/habeas proceedings and 5 civil matters.

As you might have noticed, I wasn't exactly on top of this breaking news--or much of anything else that happened over the past week, for that matter. Here's my excuse:

From January 8-14, I attended the the National Trial Advocacy College at the University of Virginia. It's off-topic, so I won't bore you with the details, but it was probably the best educational experience of my life. The faculty was spectacular, the exercises were demanding, and the feedback was brutally honest. Further, I got to spend a week with dozens of talented and motivated lawyers working to get better at their job. That was fun. It was also a neat reminder of how lucky we are to do what we do.

But it gets better. I capped that off with an oral argument before the Supreme Court on Friday. For obvious reasons, I can't discuss the case. But I really treasure the opportunities I get to argue before the Court. Oral argument is the reward for all of the hard work you put into briefing and preparing (although somehow, thinking of it that way doesn't make me any less nervous). Different people go to law school for different reasons. If you ask me, the coolest thing you can do with a JD is to have a conversation with the Commonwealth's highest court about what the law is (or should be), and help them get to a fair result that will justly govern future cases. It was a brilliant end to a perfect week.

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Here's the merits argument lineup for next week in the Supreme Court of Virginia. Civil cases follow after the jump.

We'll be in Richmond on Friday. Give me a shout if you will be in town and would like to grab lunch.

Criminal Cases

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And we're back after a short holiday break. I hope that you all were able to take a little time out of your schedules to enjoy the season.

For Christmas this year, Carrie got me The Curmudgeon's Guide to Practicing Law by Mark Herrmann. It's just perfect. If you haven't read the book, I highly recommend it. Herrmann, of course, was until just recently one of the authors of the Drug and Device Law Blog and a partner at Jones Day. All of that pales in comparison to the sheer brilliance of The Curmudgeon's Guide.

One of the book's highlights is its chapter on preparing for oral argument. In just 10 pages, it offers as good a treatment of the topic as I've ever read. Many of Herrmann's thoughts apply just as well to motions argument in trial court as they to oral argument in an appellate court.

So how does Curmudgeon prepare for an argument?

He drafts four outlines:

1. A 1-2 page chronology of key facts. Curmudgeon does a chronology of key events in the case, with dates. He can use this as a study guide, and also to fact-check the other side's argument from counsel table.
2. An outline of key cases, with summaries of each. These are just the key cases--the ones the court might actually want to talk about--not all of the cases. There will rarely be more than 5-10 key authorities in a case, and they should be apparent from the briefs. Curmudgeon tries to limit his description of each to 6-8 words.

3. A list of hard questions. Curmudgeon works up a list of the hardest questions about his case, irrespective of whether he can answer them. Then he works on the answers. It can be a big time investment, but it pays off when one of the questions comes up in argument, and he can answer--citing the JA chapter and verse, and even throwing in the odd quotation.

"They all think I'm Einstein, when all I am is Curmudgeon."

4. A 1-page outline of his argument. With very few words.

Armed with these outlines, Curmudgeon rehearses his argument, several times, from his 1-page summary. He typically reserves "moot courts" for his more complicated arguments. When it's time to deliver his argument, Curmudgeon brings only his 1-page outline with him to the lectern.

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Happy families are all alike; every unhappy family is unhappy in its own way. Leo Tolstoy I wrote that. With briefs, it's the opposite: Good briefs are unique, but miserable ones have an awful lot in common. My job has given me the opportunity to read (and, unfortunately, write) more than my share of bad briefs. Through careful study, I've distilled a list of 10 foolproof ways to turn a good brief bad:

1. Take shortcuts. Here's how you write a brief: brainstorm, research, brainstorm, outline, draft, revise, cite check. Skipping any of these steps to save time will backfire. If you don't outline, it will take you twice as long to write, and your brief will likely be poorly structured and repetitive. If you don't brainstorm, then you may miss a key point. If you don't cite-check, you will be embarrassed sooner or later. And if you don't research or revise, then may God have mercy on your soul.
2. Keep the court in suspense. On brief and in argument, get straight to the point. Your audience should understand the crux of your argument within 60 seconds. Don't keep the court in suspense by backing into things with an atmospheric statement of the case. Remember: Michael Bay, not Alfred Hitchcock.
3. Argue too many issues. There should not be more than 3 assignments of error/questions presented/major issues in any appellate brief. Aim for the jugular and let the rest go--a cheerful holiday thought from Justice Holmes, one of the cuddliest jurists to grace the bench. If you're not going to win on your strongest points, then you will certainly lose on your weaker ones. Some lawyers have told me that there is no harm in throwing in another argument or appeal point to see if it sticks. That's wrong. Judges have limited time to devote to your case, and you have few words in which to convince them. Excess argument dilutes your brief and erodes your credibility. As Justice Scalia likes to say, anything that doesn't help, hurts.
4. Ignore the other side's best arguments. The point of writing a brief is to help the judge arrive at the correct conclusion (i.e., the one you're advocating). You cannot do that without addressing the other side's best arguments. Those arguments will come out eventually, and the judge will have to grapple with them. Give her the tools to do so. Ignoring the other side's best points suggests that (i) you cannot rebut them or (ii) you were not clever enough to see them coming. Neither is an impression that you want to create. The only thing worse than ignoring the other side's best arguments is caricaturing them.
5. Call the other side names. Okay, so I might have brought this up once or twice in the past. Let the pony do his trick. Judges are trying to arrive at the legally correct result in a given case. That rarely has anything to do with opposing counsel, no matter how desperate, disingenuous, obfuscatory, or prevaricose he or she may be. (If prevaricose isn't a word, it should be.)

More after the jump . . .

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Stunning news from Yorba Linda Washington, DC: appellate superstar and SCOTUSblog mastermind Tom Goldstein has issued a shocking public apology: 

It's hard not to like the guy, but I am reserving judgment until I see the text messages.

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All productive work at the Firm on the Move (TM) instantly ground to a halt today when the VLW reported the finalists in the William & Mary mascot search. The W&M website has pictures of the finalists. I'd post them, but I'm not sure about the trademark implications and I think that I'm still bound by the honor code.

Here are the finalists and our thoughts:

• The Griffin. What's that, a nod to our Quidditch team? No D&D mascots, thanks. Nerds.
• King and Queen. Wow, that's creative. We'd definitely be the first school in the Old Dominion to use Monarchs as a mascot. On the other hand, the transgender queen is a nice touch.
• The Phoenix. Crap.
• The Pug. Dogcrap.
• The Wren.  I guess this one has potential. We'd get our Tribe with Feathers after all, that late unpleasantness with the NCAA notwitshtanding. And the Wren actually has a connection to the school. (Ahem, Griffin.)  It looks like we have a winner by default--although it really is a shame that not everyone can lose.

And now back to our regularly scheduled programming.

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Last week's post briefly noted Francis v. Giacomelli, the Fourth Circuit's new opinion clarifying federal pleading standards under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Francis merits further discussion, as it may prove to be one of the most influential civil procedure decisions to come out of the Fourth Circuit in years.

Background

Twombly and Iqbal--collectively, Twiqbal--are, of course, the Supreme Court's landmark recent opinions on federal pleading standards. To put them in their proper context, I Shephardized the decisions, along with a few less important opinions to use as benchmarks:*

These results suggest that Twiqbal ranks somewhere between the Bible and the Magna Carta in terms of its importance to Western law (though Virginia state courts remain unmoved, implying that the new standard has not yet crept into state-court practice). The Fourth Circuit's substantive take on Twiqbal will, therefore, prove important to practitioners.

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