De Novo: A Virginia Appellate Law Blog

De Novo: A Virginia Appellate Law Blog

Jay O’Keeffe practices with Gentry Locke Rakes & Moore in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more

Seven Appellate Tips from a Seventh Circuit Judge

Posted in Appellate Practice, Briefs, Oral Argument

Gaze upon his fearsome visage.

I was flipping through the latest volume of The Scribes Journal of Legal Writing when I came across  an interview that Bryan Garner did with (then-Chief) Judge Frank Easterbrook of the Seventh Circuit back in 2007. Bryan A. Garner, Interview with Judge Frank H. Easterbrook, 13 Scribes J. Legal Writing 1 (2013).

Inveterate Garnerphile that I am, I was drawn to the piece, its vintage notwithstanding. The interview concludes by noting that Judge Easterbrook recently delivered a lecture on appellate advocacy, which was published as Frank H. Easterbrook, Friedman Lectures in Appellate Advocacy, 23 Fed. Cir. Bar. J. 1 (2013).

What does all of this have to do with Virginia appellate practice? Two things.

First, the two articles are loaded with helpful appellate practice tips that work just as well here as they do in Chicago. 

Second, Judge Easterbrook’s brother is the tastefully named Gregg Easterbrook, who not only writes the delightful Tuesday Morning Quarterback but has also devoted inordinate time and resources to convincing the world that Virginia Tech runs a model football program. (Cody Journell and Michael Vick’s puppies beg to differ.)* 

Appellate practice + Virginia Tech Football = Virginia appellate practice. QED.

A stretch? Maybe. But I’m going to go with it because I get a kick out of the raw savagery of Seventh Circuit practice.

Anyway, here are some of the highlights of the two articles, in no particular order:

  1. Rebuttal in Oral Argument. Garner asked Judge Easterbrook how to best use rebuttal time in oral argument. The response was classic: “The very best use of rebuttal time is not to use it.” Overall, this is excellent advice. Waiving rebuttal not only signals confidence in your argument, but it also prevents you from saying something stupid at the last minute, thereby wresting defeat from the jaws of victory. But this also brings up an intersting dynamic in the Supreme Court of Virginia: Justice Goodwyn is developing a terrifying habit of sitting quietly through each party’s affirmative argument, then asking a devasting question on rebuttal. Did his understanding of the case just crystallize during argument–or has he been lying in wait the whole time, like a sniper in a black nightgown, just waiting to punish the appellant who says one word too many? Either way, I don’t think that the Court will let you waive rebuttal if one of the Justices still has an issue or two to sort out.
  2. Can You Win a Case at Oral Argument? Judge Easterbrook thinks so: “It is possible to win cases at oral argument. I’ve seen it done. I’ve seen it done watching other advocates do it. I seen it done as a judge.” And how do you do that? By participating in a conversation with the panel, paying careful attention to its questions, and answering the hardest questions that the court can throw at you.
  3. Don’t Ever Say that You Didn’t Try the Case Below. Total copout. If you’re not sufficiently familiar with the record to answer the judges’ questions, then what are you doing at the lectern in the first place? Judge Easterbrook has considered instructing a law clerk to shoot spitballs at any lawyer who tries to dodge a question this way. The panel already knows that you weren’t trial counsel. This just isn’t helpful. On the other hand, Judge Easterbrook notes, it is very impressive to a judge when you are able to answer a fact-based question with a precise citation to the record. And here’s the trick: If a lawyer is familiar with the Court, he should be able to anticipate the key questions about the record and include the pertinent citations on an index card or an argument module.
  4. Think Like a Judge. Judge Easterbrook notes that appellate judges are generalists–and extremely busy generalist at that. The first step in crafting an effective presentation is to keep both of these aspects of the judge’s life in mind. This means that the appellate lawyer “serves as a translator, taking a specialist’s knowledge and making it accessible to a generalist.” That necessarily includes translating jargon and acronyms into English, and providing sufficient background and concrete examples to ground your argument.
  5. Know Your Audience. This point is handled so well that I’ll just quote it verbatim: “The Court’s work is of a piece; Oliver Wendell Holmes would say that particular decisions were just fragments of a single fleece. To see what happens in one case is to know how best to approach the next. Interpretive principles and strategies are common across cases. Both reading the opinions and watching the arguments tells you what kinds of contentions are congenial and what kinds are not. Judges can reveal this information by facial expressions as well as by spoken questions or expressions of exasperation in opinions.” 23 Fed. Cir. B. J. 6 (footnote call omitted). Elsewhere, Judge Easterbrook cites Holmes for the proposition that a jurisdiction’s highest court recapitulates the law in that jurisdiction every 20 years. Bottom line: It’s crucial to keep abreast of new opinions as they are issued, and there’s no substitute for actually watching oral argument.
  6. Stay Positive. Litigation too often devolves into a cycle of denial: the answer denies the complaint, the motion for summary judgment denies the answer, the appellant’s opening brief denies the district court’s conclusions, and so it goes. “This is a trap. You don’t win cases by explaining where the other side messed up, or where some judge erred. You win cases by presenting the winning argument. That is, explain why you are right, and not why someone else is wrong.” Id. at 6-7.
  7. BUTTERICK! Finally, Judge Easterbrook closes with a paean to typography, which is “frequently horrid” in the briefs he sees. He closes with a shout-out to Matthew Butterick’s Typography for Lawyers, which is just a dazzling little book and a solid addition to any lawyer’s library. Said the dork whose partners call him “Atticus Font.”

Both articles are full of other great stuff – disdain for adverbs and adjectives, warnings about the dangers of law clerks, and a discourse on the importance of appellate jurisdiction. They’re well worth a read.

*Cordell Parvin just disowned me.

How to Get a Writ Granted and Other Tips from the Justices

Posted in Briefs, Oral Argument

Helpful Tips

The VTLA just wrapped up another terrific annual meeting at the Homestead. I learned many things during the CLE sessions, including that I would like to be Mike Imprevento when I grow up.

But one of the absolute highlights of the meeting was a session called “Supreme Court Thoughts and Muses,” in which Jeffrey Breit moderated a panel made up of Justice Lemons, Justice McClanahan, and Justice Powell.

One of Breit’s best questions was something along the lines of: “When we are arguing before a writ panel, how do we get the Court to want to grant our appeal?” This is a particularly timely question, given the impending appellate apocalypse in Virginia state courts.

Justice Lemons responded that appellate arguments are all about keeping score, and that during the writ stage, you need to convince only one justice to grant your appeal.That’s it. Just one. (The merits stage demands multivariable calculus by comparison; it usually requires you to count all the way to four.) Although a writ panel is made up of three or four justices, the petitioner can always force the entire Court to review his argument by filing a petition for rehearing. But he still needs to convince only one justice. Not having to assemble a majority, or even convince more than a single person, should allow the petitioner to tailor his or her argument to a justice who is likely to be sympathetic to the petitioner’s arguments, based on past jurisprudence.

Justice Powell added that, at the writ stage, the fact that a case is one of first impression will often get her attention and make her more likely to grant the appeal. Justice McClanahan amplified that answer, noting that it’s necessary to convince the Court both that your case is one of first impression and that it’s a case worth the Court’s time to hear. The focus at the writ stage is on why the Court should take the case in the first place, not why the petitioner should have won below. Justice McClanahan also warned listeners that if they assert multiple assignments of error, the Court will want to know if it needs to grant all of them. That is a common query at the writ argument. Petitioner’s counsel should come in ready to respond.

On the subject of oral argument, Breit asked the justices whether they discuss cases before oral argument.

Justice Lemons offered a historical perspective. When he first came to the Court, those discussions did not take place. The Court’s culture at the time forbade discussions of cases before oral argument. The first conversation about the case took place at the decision conference after oral argument. That is no longer true. Now, the justices talk to each other by e-mail and telephone, discussing things like how they feel about particular issues, or whether they believe points were preserved for appeal. Justice Lemons urged the lawyers in the audience to remember this image: When they stand at the lectern, they are enjoying their first and only chance to participate in the Court’s discussion of the case. He noted that anecdotal evidence shows that nationwide, the outcomes of 15 to 20% of cases are affected by oral argument.

Another interesting tidbit from the panel: Justice Powell is the only member of the panel who reads like a normal human being. From start to finish. More specifically, she reads the briefs in the order in which they are submitted, starting with the opening brief of the appellant, moving on to the appellee’s brief, and finishing with the reply brief.

Justice McClanahan, on the other hand, starts with the reply brief, because when it is done well it will go directly to the flashpoint of contention in the case. (Also, when done poorly, the reply brief just regurgitates the arguments from the opening brief–but it does so in 15 pages instead of 50.) There is a certain logic to this approach. I’ve heard  of other judges reading this way, so I do try to start my reply briefs with an introduction that recalibrates the arguments after the appellee’s offensive.

And then there’s Justice Lemons, who employs a method that is somewhat more difficult to anticipate. He waits until all of the briefs are in. Then he starts by reading the summary of the appellant’s case. (Important note to appellants: Please include a summary of your argument for Justice Lemons. You’re welcome.) Having been at this game for a while, Justice Lemons knows what the Court has decided, what it hasn’t, and what areas of the law he feels that it needs to develop. So after reading the summary of the appellant’s case, he goes directly to the portions of the brief that are interesting to him and reads them piecemeal. He does the same thing with the appellee’s brief.

So Now Briefs Can Be Too Short?

Posted in Briefs

Businessman hitting the books

A heretofore unquestioned rule of appellate advocacy: Less is better. The rule takes many forms–anything that doesn’t help, hurts; we call them “briefs” for a reason; sit down and shut up–but the basic idea is that we have panels of very busy, very smart judges handling appeals. Let’s be respectful of their time and get to the point. Also, every time we keep talking, or add a seventh assignment of error, or re-engage on rebuttal, we materially increase the chance that we’ll say something stupid and torpedo our appeal. This is very nearly one of the unalterable rules of the appellate universe.

But as it turns out, the rule has its limits.

A few days ago, Judge Posner uncorked a blistering opinion in Central States, Southeast and Southwest Areas Health & Welfare Fund v. Lewis, Case No. 13-2214. Here’s the relevant part of the opinion, which discusses the appellants’ brief.

So we come to the merits. The defendants’ appeal brief is a gaunt, pathetic document (there is no reply brief). Minus formal matter, it is only eight and a half pages long. Brevity is the soul of wit, and all that, but still: the first seven and a half pages are simply a recitation of the history of the Georgia lawsuit, the settlement negotiations, and the present suit, along with questionable and irrelevant facts; and the tiny argument section of the brief—118 words, including citations—states merely, without detail or elaboration, that the defendants do not possess the settlement funds and therefore can’t restore them.

A “gaunt, pathetic document”? This is literally the first time that I have ever heard an appellate judge complain that a brief was too short.

Writing nerd that I am, I had to take a look at the offending work product. And it really is a remarkable little thing. Judge Posner’s description of the brief is dead-on, if a little sharp. The summary of argument is four lines long–which is to say, one line longer than the only subject heading in the argument section. And in its entirety, that argument section runs to a whopping nine-and-a-half lines. Judge Posner expends more words making fun of the brief than the appellants spent arguing their case.

On the other hand, the brief is set in visually pleasing font from the century family. Butterick would approve.

The upshot here is two-fold: First, Judge Posner is still brilliant, funny, and mean. My man crush on him remains justified. And second, the point of writing a brief is to help the court. Sure, anything that doesn’t help, hurts–but you have to actually give the court something helpful to work with in the first place.

Oral Argument Prep–The Games We Play

Posted in Oral Argument

I have a pretty idiosyncratic approach to preparing for oral argument, which is full of ideas that I’ve borrowed from people over the years. And also the stuff that I’ve downright plagiarized from David Frederick.Girl and little boy playing chess isolated over white background

We’ve talked about some of these ideas, like argument blocks and various outlines, in the past.

One of the final steps in my preparation is a series of games that I play after I’ve outlined my argument, drawn up my argument blocks, and sketched my answers to tough questions.

These games test how well I’ve prepared, and they’re also kind of fun:

  • What’s your support for that, counsel? This is a favorite. When I’m rehearsing an argument or answer, I’ll stop myself at a random spot and pretend that a judge or justice has just asked me some variation of “What’s your support for that, counsel?”–for example, “Where can we find that in the record?” or “Have we ever said that in a case before?” If I can’t answer from memory or find the answer immediately in my podium binder, I lose the game. This helps me test whether my chronology, argument blocks, and argument outline are sufficiently detailed, and also whether I’m mentally prepared. What’s more, these questions come up in real life. I got one from Justice Mims yesterday. (The answer was JA 79.)
  • What’s the worst that could happen? I try to come up with a pithy formulation of the parade of horribles that would ensue if the court adopted my opponent’s rule. You never know when that could come in handy. 75-word limit, and extra points for gruesome verbs like “gut,” “eviscerate,” or “emasculate.” I’ve never been able to us the last one with a straight face, and the first two are a little hackneyed–but when you only have 15 minutes to make a point, the occasional cliche can be helpful.
  • How would you explain this to a seven-year-old? Self explanatory. If I can’t explain the case to Caroline, then I don’t understand it and probably won’t be able to argue it very effectively. Concerns that she will age out of the contest are unfounded, as Jack and Cricket wait eagerly in the wings.
  • If I were a judge, what would bother me about this argument? This is the flip side of “What’s the worst that could happen?” Appellate judges always have one eye on the next case, so it’s useful to put yourself in their shoes: Listen to your own argument and try figure out what wouldn’t sit well with a judge crafting a precedential opinion. Extra points for creativity–will your FLSA argument cripple the family farm, which has always been the backbone of American society? Appellate judges are endlessly creative.
  • Moot court. I find some version of a moot court to be absolutely essential. Depending on the needs of a particular case, my moots range in formality from getting some smart people together at the same table to discuss a case to hiring a real live appellate judge to sit on our panel. There’s just no way that I’m smart enough to do this stuff on my own.

 If I can win these games, then I can at least convince myself that I’m ready for the argument.

I Am Richard Posner . . . and So Can You?

Posted in Writing

The Daily Beast is running a Q&A with Richard Posner called “How I Write.”

Judge Posner is a brilliant and prolific writer. As a person who writes for a living, I was naturally intrigued. Also, I picked up the link from U of R Professor Kevin Walsh‘s Twitter feed (@kevincwalsh). Professor Walsh has a habit of sharing fascinating arcana, like the story behind the terrifying hat that Justice Scalia wore to the inauguration.

Unfortunately, except for one incredible line, the Posner article is a bit of a let down. Here’s the line:

Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically…it’s like a House of Lords.

Hilarious. Also, Judge Posner writes about 90 opinions a year and considers the average SCOTUS justice’s workload to be “ridiculous.” But aside from those zingers, there’s not much substance for practitioners (and in fairness, practicing lawyers likely were not the article’s target audience).

Even so, here is the titular explanation of how Posner writes: “I don’t really have any routines. Well, if I’m at home or in the office I have a desk and a computer. And I write.”

Not super helpful. Judge Posner is brilliant and prolific because he’s brilliant and prolific. Got it.

I am neither, but I write for a living and somehow manage to churn out enough marginally competent work product to keep the lights on (this blog excepted).

Here’s how I write briefs:*

  1. Review. I review the record (on appeal) or the pertinent facts (in the trial court) to get up to speed. 
  2. Brainstorm. I brainstorm potential appeal points and arguments, writing all of them down in a mind map/whirly-bird outline. Sometimes it’s color coded. I find that worrying too much about the law at this point will limit my creativity. For now, it’s just facts and equity and trying to generate as many ideas as possible. If I come up with a factually compelling argument for a fair result, I will most likely be able to find a legal framework to support it.
  3. Research. Now that I have all of these great ideas about what the trial court might have done wrong, I do some legal research to see which (if any) have merit.
  4. Brainstorm Some More. More brainstorming now that I know the law. Also, at this stage I start formulating specific arguments . . .
  5. Review/Research Again.  . . . and then I inevitably have to learn more facts and law to test my new arguments.
  6. Outline. Taking my color-coded absurdity of a mind map, which has now been highlighted and overwritten beyond legibility, I draft a very careful, full-sentence outline of my brief. This step is tough. I try to draw connections from all of the various strands of my brainstorming, drop the stuff that doesn’t work, and present the stuff that does work in the clearest, shortest way possible.
  7. Write. This is the fun part. It goes by very quickly once I’ve outlined, and I try to do it all in one sitting. I use Dragon NaturallySpeaking 11.0 with a silly headset  to dictate my brief directly onto a screen. The software is amazing and fast. I look utterly ridiculous, but it works. I guess this is the “writing” part.
  8. Edit. This is by far the hardest step, and the key to good writing. I think that Stephen King said that a good writer can cut half the words from his first draft. I’m not quite at that level, but I do cut loads of material from my first drafts–so much that I actually create an “Outtakes” document to store it, just in case it might be useful later. But here’s the real challenge with this part of the process: the stuff that’s the most fun to write–the clever turns of phrase, the biting comeback–is often the least useful to the Court, which just wants to learn what it needs to know to get to a legally correct result. The Court is not interested in how clever you are, or what a fine young writer you have become. It just wants results.

See? Talent is overrated. Sure, I may not be brilliant like Judge Posner, and following this routine will certainly keep me from ever being as prolific, but even a chump like me can learn to write

* Again, to be excruciatingly clear: This is how I write briefs. Blog posts I basically vomit into the internet with minimal thought or editing. They’re lucky if they get a spell check.

What to Bring to Oral Argument

Posted in Oral Argument

I’ve been helping a few friends prep for their first oral arguments recently. It’s been a mutually beneficial exercise, because (1) it has forced me to think about what I do to prepare and why I do it, and (2) it reassured them that, if I can do this stuff, then anyone can.

Looking back on those conversations, though, I realized that I’d forgotten to give my friends one of the most useful pieces of information: What they should actually bring with them to the argument.

You see, if you argue enough appeals, you will eventually suffer every conceivable embarrassment and deprivation at the lectern. And you will learn from those experiences. As a result, I’ve come to stock my argument briefcase like a disaster-preparedness kit. Here’s what it usually contains:

  • Argument Binder, with various outlines, modules, summaries, and questions
  • Joint Appendix
  • Briefs
  • 3 pens–one blue, one black, and one red. I like to take notes in different colors, and you never know when one of the pens will run dry or explode.
  • Two notepads: One to record the court’s questions and the Other Guy’s answers, and one to make notes for my own argument.
  • Key statutes, cases, and rules
  • If I’m in the Fourth Circuit, a binder with my notes on the judges (because there are a lot of them, and you don’t find out who will be on your panel before the day of argument).
  • Post-it notes
  • Hard candy
  • Band-Aids. Because one time at the Fourth Circuit I needed a Band-Aid and didn’t have any handy. (Pro tip: there’s a CVS across the street from the Fourth Circuit and convenient to the SCV.)
  • Advil. Because one time at the Fourth Circuit, I did something to a nerve in my neck the night before an argument and couldn’t turn my head to the right without excruciating pain. This required me to adopt some downright Karloffian body language when addressing the judge on my  right–a suboptimal persuasive technique, as his dissent proved. So, yeah. Advil.
  • Chapstick. Because one time at the Fourth Circuit . . .
  • Glasses. I use contacts in real life, but too much can go wrong on the day of argument. I’d probably swallow one while shaving and spend the whole argument squinting at the panel in  monocular distress. Plus, I gain 10 IQ points and 5 years of gravitas when I wear glasses. So I go with them, and if you’ve read this far you’ve gotten the sense that I wouldn’t risk bringing just one pair. They might be stolen by beavers on the way to court.

So that’s what I bring to court. I could certainly get by with less, but why risk it? This helps me sleep at night. And lest you think I’m some kind of OCD outlier, David Frederick has a handy checklist in Supreme Court and Appellate Advocacy that includes most of these items–and some others as well.

One question for my fellow appellate practitioners: Is there anything important that I left out?

Behind the Scenes at the Fourth Circuit: How the Court Decides Whether to Award Oral Argument

Posted in Oral Argument

Depressing fact of the day: The Fourth Circuit hears oral argument in about 9% of the roughly 5,000 cases it considers each year.

For context, here’s the 2012 acceptance rate of each Ivy League school, according to Google:

  • Harvard: 5.9%
  • Yale: 6.8%
  • Columbia: 7.4%
  • Princeton: 8.5%
  • Brown: 9%
  • Dartmouth: 9.8%
  • Penn: 12.3%
  • Cornell: 16.2%

So basically, the chance of the Fourth Circuit granting oral argument in any given case is about as good as the chance of a mid-tier Ivy granting admission to any given applicant. Only the very best, cream-of-the-crop cases evidently merit that consideration.

But what does that mean? What metric does the court employ to decide which cases warrant argument?

Deena Jo Schneider has a terrific article in the current Appellate Issues that sheds some light on these questions.

Continue Reading

Why Can’t Lawyers Do This?

Posted in Writing

Longtime readers have suffered through my various thoughts, hangups, and neuroses about legal writing.

Prime among them is a frustration with the way lawyers confuse personal attacks with effective advocacy.

By way of example, I’m reading through the record in an appeal right now.

It has taken me less than 2 docket entries to get to douchebag bingo; the trial lawyers used up all of my naughty words (disingenuous, manipulative, end-run, pretext, eleventh-hour, etc.) on each other in under two briefs. Meanwhile, I still have dozens of docket entries to slog through.

That’s no way to write an advocacy piece. There’s nothing persuasive about that sort of writing; it’s tedious, predictable, and unprofessional. And it doesn’t work. I’m being paid to find one side of the argument persuasive, and I’m having trouble getting there.

Contrast this with the recent dustup between David Epstein and Malcolm Gladwell.

For our purposes, the details of the dispute aren’t important. Gladwell famously wrote Outlierswhich helped popularize the “10,000-hour Rule”–which actually isn’t a rule, but whatever. Basically, the “rule” is the notion that it takes natural talent plus a lot of practice to become good at anything that’s hard to do, and that amount of practice averages out to be about 10,000 hours. (This is likely the reason why every good young lawyer comes to work with a pit in her stomach for the first five or six years of practice.)

Epstein wrote his own book called The Sports Gene, which pointed out that talent plays an enormous role in the equation. 10,000 hours is an average, and that some people can become really good at stuff in much less time; others may have to put in far more work.

Gladwell apparently felt that Epstein had given Outliers short-shrift by oversimplifying the 10,000-hour rule, taking it out of context, and marhsalling unconvincing counter-examples.

Thus, Gladwell wrote a short piece in the New Yorker outlining his differences with Epstein.

Even if you don’t know anything about the authors’ respective books (which are excellent), Gladwell’s argument is compelling. It is polite; he compliments Epstein’s work, calling it “fascinating” and “wonderful” (it is both). Gladwell then clearly outlines his differences with Epstein. His tone is professional and at times even funny, albeit in an appropriate and understated way.

The overall effect is quite persuasive. Gladwell’s challenges to Epstein are not personal. They are not mean. I’m not sure if I agree with them, but they make for good reading.

And how did Epstein react?

He hopped on Twitter and said “I appreciate that @Gladwell has addressed my book thoughtfully,” and shared a link to Gladwell’s piece.

That’s how it’s supposed to look when two smart people have a professional disagreement. If only more of our colleagues in the bar agreed.

5 Reasons Why Appellees Win All the Time (And How You Can, Too)

Posted in Appellate Practice

Here’s a very basic, very depressing rule of thumb: roughly nine out of ten cases get affirmed.

The exact figures vary by court, and we can certainly debate the utility of macro and micro figures, but the basic disparity is there.

Part of it has to be a result of the appellee having a decent case; after all, he or she won below.

But part of the disparity also results from a few key structural and doctrinal concepts. Learning to leverage these concepts can help you maximize your advantage as an appellee, as Andrea Ambrose showed in a piece she did for the ABA called Making the Best of Being an Appellee.

The factors favoring an appellee are, in no particular order:

  1. Standard of review. We’ve talked this one to death over the years, but many appeals aren’t contested on a level playing field. If the appellant is challenging a discretionary ruling or a factual determination, the standard of review tilts heavily in the appellant’s favor, and clever appellees use this to their advantage. They also look for ways to frame the issues that will trigger a more deferential review. George Somerville has a great outline on standards of review, and the VTLA appellate journal did a whole issue on them last year. Both are terrific resources.
  2. Waiver. The appellant bears the burden of preserving issues for appeal. In other words, the appellant has to both give the trial court a fair opportunity to rule intelligently on the issues, and make sure that the record is adequate to allow the appellate court to consider those issues. That sounds easy enough in the abstract, but it can be extraordinarily difficult to do in the heat of trial. Add to that the possibility of later abandoning an argument or acquiescing in a trial-court ruling–either intentionally or otherwise–and you have a serious hurdle.
  3. Procedural Default. Deadlines, deadlines, deadlines! Miss a notice of appeal deadline, and you’re out of court. In state court, meet a notice of appeal deadline with a notice filed by out-of-state counsel, and you’re out of court. Forget to file the transcripts on time, and you’re out of court. Write a bad assignment of error, and you’re (at least effectively) out of court. Again, it sounds easy enough–just know the rules and follow them!–but in practice, this stuff can get very tricky. To be fair, procedural default is a bigger threat in state court than federal court, because the Fourth Circuit’s case managers will walk you through the process of handling the appeal, and the court can be surprisingly generous with extensions and forgiving of missed deadlines. Even so, in combination principles 1, 2, and 3 allow the appellee to sit back and wait for the appellant to make a mistake.
  4. Harmless Error. Trial courts have been known to do some pretty odd things–but if those idiosyncratic rulings or mistakes don’t change the outcome of the trial, then they don’t matter. See, e.g., Fed. R. Evid. 103(a) (“A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party . . . .”)
  5. Right for the Wrong Reason. Here’s a corollary to the harmless-error rule: The trial court can be right for the wrong reason. That is, even if the trial court is patently mistaken (“I’m entering summary judgment in favor of the defendant because Justin Bieber”), it will be affirmed on any other ground supported by the record (e.g., the trial court’s exclusion of the plaintiff’s causation experts). See, e.g., Perry v. Commonwealth, 701 S.E.2d 431 (Va. 2010). The net result of principles 4 and 5 is that a trial court can do some wacky things without getting reversed. This wackiness will perplex and infuriate your client and trial counsel, but it won’t support reversal.

So how can you put these ideas to work? In our office, as soon as we receive a petition for appeal (in state court) or an opening brief (in federal court), we review it for these factors, and frame our response accordingly. Especially at the writ stage, it’s often much quicker and more persuasive to dispose of arguments along these lines rather than delving into the weeds of the appellant’s arguments.

Lawlor v. Commonwealth: SCV Clarifies Abuse-of-Discretion Review

Posted in Standards of Review

One of my favorite recent SCV cases is Landrum v. Chippenham & Johnston-Willis Hospitals, Inc., 282 Va. 346, 717 S.E.2d 134 (2011).

I love Landrum, in part, because it gave me an excuse to write this:

This brings us to one of O’Keeffe’s Immutable Rules of Legal Practice: if you have somehow managed to irritate Justice Lemons to the point that he (politely) goes out of his way to make you look like a fool on page one of a published opinion, you should probably just turn in your bar card.

It’s the judicial equivalent of getting kicked in the nuts by Gandhi.

The whole post is here.

And a funny thing about that post: After I wrote it, I went to the Virginia State Bar’s Harry L. Carrico Professionalism Course. (Before you leap to the obvious conclusion that I was ordered to attend the class as a sanction, please understand that I am somehow, inexplicably, on the faculty.) 

At lunch, the keynote speaker was the Honorable Donald W. Lemons. Guess who was seated at his table?


Although, in fairness, it was not nearly as awkward as it could have been, because Justice Lemons is a delightful guy, and he’s blessed with a very good sense of humor. He would never intentionally humiliate me outside of a courtroom.

But Landrum‘s enduring legacy isn’t my personal discomfort at lunch with its author, however exquisite that might have been.

Instead, the opinion adopted a three-part test for finding an abuse of discretion. Under that test, an abuse of discretion principally occurs when (1) a trial court fails to consider a factor that should have been given significant weight; (2) the trial court considers an irrelevant or immaterial factor and gives it substantial weight; or (3) the trial court weighs the right factors but commits a clear error of judgment. Landrum, 282 Va. at 352, 717 S.E.2d at 352 (quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

One of Landrum‘s oddities is that it was decided by five justices, and two of them concurred–leaving only a three-justice majority. The two concurring justices noted that, under prior case law, a trial court abused its discretion by definition when it makes a mistake of law. Id. at 357, 717 S.E.2d at 139 (Millette, J. concurring).

But again, only two justices felt strongly enough about that point to write separately, and only three signed the majority opinion. This left the treatment of a trial court’s mistake of law in an area governed by abuse-of-discretion review somewhat unsettled.

It stayed that way until the Court revisited the issue earlier this year in Lawlor v. Commonwealth, 285 Va. 187, 738 S.E.2d 847 (2013), a loooong opinion in a capital-murder case that the Court handed down in January, and which I’ve just finished reading. All seven current justices signed on to the Lawlor opinions. Justice Mims, a member of the Landrum triumvirate–err, majority?–wrote for the Court.

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