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

Interesting news from Richmond: House Joint Resolution 111, sponsored by Delegate Sal Iaquinto (R-Virginia Beach--pictured), would direct the Judicial Council of Virginia to study the jurisdictional capacity of the Court of Appeals. HT: Peter Vieth at Virginia Lawyer's Weekly.

In particular, Joint Resolution 111 would tell the Judicial Council to review the respective capacities of the Supreme Court of Virginia and the Court of Appeals, and consider whether the quality of appellate review would be served by expanding the intermediate court's capacity.

The Resolution calls for the Judicial Council to complete its meetings for the first year on November 30, 2012, and its meetings for the second year on November 30, 2013. For each year, it would publish an executive summary and report of its findings.

Joint Resolution 111 has been referred to the Committee on Rules.

(I don't know what that means.)

In fact, I don't pretend to understand any of  the mechanics or politics behind this at all--but I am certainly in favor of expanding the jurisdiction of the Court of Appeals for several reasons:

• It would help with the development of the law in a broad array of areas. It's just not possible for the Supreme Court to hear enough cases each a year to fully flesh out the law. That leads to gaps in the law and uncertainty. As an overall matter of policy, Virginia tends to be business-friendly. But uncertainty is bad for business and expensive; it makes people have to employ the legal equivalent of belts-and-suspenders to protect their interests.
• It would be fairer to litigants. The recitals to Delegate Iaquinto's Resolution state that "the caseload of the Supreme Court of Virginia continues  to preclude it from granting petitions for appeals in many cases in which appellate review is sought." I don't know if that's right or wrong, but I do know that only about 1 in 5 civil petitions for appeal are granted. That means that about 80% of people who want appeals don't get them.* Giving everybody 1 appeal of right  would let them feel like they've gotten a fair shake, and offer them recourse when trial judges get things wrong. (That's not meant as a shot at trial judges--somebody has to make the decisions, and questions with clear answers tend not to get litigated. See bullet point 1, above.)
• It would force trial judges to be more careful. I've never been a trial judge, but I can't help but think that the looming prospect of an appeal of right would help focus my efforts on resolving the legal questions at hand. And I've practiced in many jurisdictions around the Commonwealth, where I've seen . . . things. In places. Which lead me to favor appeals of right for civil litigants. Let's leave it at that.

In short, I like the sound of this. I'll try to keep you posted on Joint Resolution 111.

* Don't think that I missed the counterargument that many of those petitions don't deserve to be granted. If that's true, then those appeals would be easily disposed as appeals of right. The Fourth Circuit, for example, hears appeals of right but brooks no foolishness from appellants.

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The Supreme Court of Virginia handed down a remarkable bath of opinions on Friday.

The 20 opinions included 7 dissenting opinions, which is highly unusual for a court previous notable for its consensus.

Stranger still, the 12 civil cases generated all 7 dissenting opinions (one case, Weedon v. Weedon, generated two separate dissenting opinions).

It looks like things could get a little bumpy in the near future.

Here's a quick breakdown of who did what (including cases with concurrences as split cases):

Chief Justice Kinser

• Votes Cast: 20
• In Majority: 20
• In Dissent: 0
• In Majority in Split Cases: 7/7
• Opinions Written: 2

Justice Lemons

• Votes Cast: 19
• In Majority: 18
• In Dissent: 1
• In Majority in Split Cases: 6/7
• Opinions Written: 2

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Here's a question: Is it stranger that the Supreme Court of Virginia decides some cases by unpublished order, or that it publishes any opinions at all?

A colleague and I were recently trying to track down a recent unpublished order from the SCV the other day. We weren't having much luck--we couldn't find it on Virginia Lawyer's Weekly, the SCOVA blog, or Steve Emmert's website.

That sparked a discussion about the utility of issuing unpublished orders in the first place. I tend to believe that, if a case is worthy of SCV review, then it is worthy of a published opinion that counts as precedent--particularly when the Court needs more than a page to explain its reasoning, or when it decides a case over a dissent.

But I've never been a judge, and I haven't spent much time thinking about the issue, so I could be persuaded otherwise.

What struck me the other day was, why publish opinions in hard copy at all?

It's incredibly weird that we still go through the ritual of publishing opinions in case reporters, as if people still used books to find cases. Relatively few people have access to the Virginia Reports. Practically everybody has access to the internet, and professionals these days use LEXIS, Westlaw and (increasingly) google scholar.

To wit: look at the chump in this picture. He's reading law books, and taking notes with a pen in a spiral bound notebook. Who does that?

Nobody, that's who.

Wouldn't it be cheaper and easier to finalize opinions and then post them on the Web, with some sort of generic citation? For old times sake, we could keep with volume numbers in the citation, or we could just do something like "2012 Va. 1."

Peter Martin recently wrote a thought-provoking piece on Arkansas' efforts to do just that. Peter W. Martin, Abandoning Law Reports for Official Digital Case Law, 12 J. App. Prac. & Process 25 (2011).

And when I say "thought-provoking," I mean that literally; it was Martin's hard work that got me thinking about these issues in the first place, and I don't make any claim to remotely  original thought in this post--Arkansas has already put this into effect, for God's sake.

At any rate, Martin's article is thorough and well worth your time.

Right now, the SCV puts slip opinions up on the web. That is extraordinarily helpful and--from what I can tell--greatly appreciated by the bar. Imagine how easy it would be if the official "published" opinion followed shortly thereafter, on the web and freely available to all, in one central and easily searchable place?

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About a year ago, I did a holiday post apologizing for the recent lack of substantive posts, and explaining what I'd been doing instead.

This year, I decided to make that sort of post a De Novo holiday tradition, for two reasons. First, it just gets really busy around here during the holidays.

Second, redoing the post lets me reuse this picture of Jack and Caroline with Santa Claus. I love this picture. I plan to keep recycling it at least until Jack is a sophomore in college.

Anyway, here are some of the things I've been up this holiday season instead of generating decent content for this blog:

• Working. Lots and lots of work, including an oral argument in the Fourth Circuit.
• Drinking. More specifically, organizing a cocktail party for local lawyers who use iPads, so we could get together and share apps and thoughts about using the device. (If you live in a jurisdiction without a nearby Apple store, I highly recommend these meetings; we've done a few, and I've found them all to be terrifically informative.) Rob Dean, who blogs at Walking Office, was one of the lawyers who joined us. It was a pleasure to meet him. He was very impressive, and if you have any questions about Apple products I would refer you to him. Not me.
• Talking. I was one of several legal bloggers who did an interview with Deborah Elkins of Virginia Lawyer's Weekly about the most important opinions of the year. If you want to better understand why it's a bad idea to speak off the cuff (and on the record) about opinions you haven't looked at for months, check out my quotes in this piece (subscription required).
• Talking Some More. I also recorded a radio spot for St. Francis Service Dogs that is currently running on WFIR. St. Francis is an incredible Roanoke-based charity that trains service dogs for people with a variety of disabilities. The dogs are absolutely brilliant, and so are the people who run the operation. I encourage you to check out St. Francis' website, or their mascot's blog. (Full disclosure: I'm on the board of this organization.) 
• #losing. I spent more time than I should have playing Supervillain or Newt.

Thankfully--and also consistent with our holiday tradition--you have not been missing out on anything in my absence, because the one story I feel like blogging about is off limits. Last year, the big story that I couldn't comment on for a variety of reasons was the vacancy on the Supreme Court of Virginia.

This year, the big story that I can't comment on for a variety of reasons is the vacancy on the Court of Appeals.

Happy New Year. We'll be back next week with something useful to say.

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A piece in the Baltimore Sun last week makes the case that the traditionally conservative Fourth Circuit is becoming increasingly progressive.

The primary support for the argument appears to be:

1. Results in about a half dozen recent opinions, including a series of defendant-favorable Fourth Amendment holdings and the court's rejection of challenges to the Affordable Care Act;
2.  The fact that 9 of the 14 sitting judges were appointed by Democrats, and 5 were appointed by Republicans;
3. Soundbites from a number of pundits, some of whom are extremely credible, and others who may be perhaps ever so slightly biased.

The article, while interesting, lacks force for three reasons:

First, it would be hard to get much more conservative than the Fourth Circuit of yore. The court really didn't have anywhere to go but left.

Cue cliched image of pendulum swinging.

Second, the Fourth Circuit typically sits in randomly selected panels of three judges. Further complicating matters, one of the three judges might be a judge who has assumed senior status, or it might be a district judge filling in. So it's still possible that you could show up at court and appear before two or three Republican-appointed judges.

Third, from a practitioner's perspective, the political affiliation of the president who appointed a particular judge is not necessarily the most salient thing you can know about that judge. Justice Stevens was appointed by Presidents Nixon and Ford, after all.

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We have a real treat for you today.

A major highlight of last week's AJEI Summit was a surprise appearance by Chief Justice Roberts, who dropped in on our Thursday-night reception.

In person, the Chief is ever so dreamy, though perhaps not quite as tall as you might have expected.

(Shortness is endemic in appellate circles; most people don't know this, but you can actually fit Tom Goldstein in your pocket.)

In honor of my long running man-crush on Chief Justice Roberts, here is a link from the C-Span archives to a classic panel that he sat on in 1997. Here's the link.

This is truly amazing stuff.

You have John Roberts, Maureen Mahoney, Philip Lacovara, and E. Barrett Prettyman, Jr., discussing how to argue a case before SCOTUS. Bob Bennett moderates, apparently  fresh from the late unpleasantness involving Paula Jones.

Half the fun of this video is people-watching for famous faces in the audience. I think I spotted pre-millennial versions of Delaware Supreme Court Justice Henry Ridgely; white-collar superlawyer Alan Kriegel; and Mark Stancil of Robbins Russell and UVA's Supreme Court clinic.

Enjoy.

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On Friday, the Supreme Court dropped 13 published opinions and 2 published orders. That's a bit surprising, because there were 29 cases listed on the September docket. Even counting the unpublished opinions that have come down in the meantime, we still have decisions in about 10 cases outstanding from September. (This is all back-of-the-envelope stuff; I'd welcome corrections.)

Another little anomaly: based on a quick flip through the opinions, it doesn't look like the Chief Justice wrote any of them.

I suspect that any weirdness is a combination of three factors: (1) the recent turnover at the Court; (2) Chief Justice Kinser's administrative responsibilities, particularly with regard to the rules of evidence and judicial realignment; and (3) luck of the draw.

At any rate, quality is far more important than quantity, and we picked up some fun opinions last week--even a rare dissent!

One of my early favorites is Justice Lemons' opinion in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc.

A little background: Justice Lemons is President of the American Inns of Court. He is unfailingly gracious, and probably takes civility and professionalism more seriously than anyone you will ever meet.

Also, Landrum looks to be a holdover from June, when the depleted five-member Court was hearing cases. In Landrum, we have a 3-justice majority and a 2-justice concurrence. That alone makes it something of a collector's piece.

Now back to our story. Landrum was represented by out-of-state counsel, who was pro hac vice. Kind of. The record lacked a motion by local counsel to associate him pro hac, or an order granting such a motion. Both are required by Rule 1A:4(3)(b)-(c). So he was clearly off to a good start.

But I digress. More importantly, so did the Court, in a footnote on the first page of the opinion.

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.

You must have done something horribly wrong to deserve that.

And indeed, Landrum (or more precisely, her Missouri counsel) did.

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As you've likely heard, the Supreme Court of Virginia recently approved rules of evidence for the Commonwealth. The rules are modeled on the set drafted by the Boyd-Graves conference and published by Virginia CLE. They track and codify the existing common-law rules of evidence.

(You'll note that the VLW story I linked to above mentions submitting the rules to the Code Commission and getting approval from the General Assembly. More on that in a second.)

I was thrilled to hear the news. Our lack of rules of evidence is one of my well-documented pet peeves. 

In fact, I'd just done a post complaing about that very topic. Virginia and Massachusetts are the only two states (technically, commonwealths) without rules of evidence. That's bad company. Massachusetts is a very silly state.

So, logically, I was about to crack open a nice box of wine and write a follow-up post taking credit for the new rules. After all, while they may have been in the works for a while, it was clearly the force of my rhetoric that put this thing over the top.

Then Chief Justice Kinser stopped by Roanoke last Tuesday.

Now, I defer to no one in my admiration for the Chief Justice. But sometimes she scares me. Usually, it's when she's asking me questions. On Tuesday, she did something even more fightening: She explained a little about the rules adoption process going forward.

In my simple-minded view of the world, I guess I'd figured that the Boyd-Graves conference would propose rules, the SCV would approve them, and all would be good. (This is what happens when you only read the VLW headline, and not the entire story.) After all, these seem like the folks best situated to tell us what the law of evidence in Virginia says. Please stop me if, at any point, I say something that isn't blindingly self-evident.

So imagine my surprise when the Chief Justice explained that the next step in the process involves sending the rules to the General Assembly.

Eep.

Let's set politics aside for a minute. Many rules of evidence don't make much sense on their own; you need context to understand them. A lot of context. (I'm looking at you, hearsay exceptions.)

There's something fundamentally horrifying about the idea of people, many of whom who have no background in law--and some of whom have a professional hostility to lawyers--sitting down to play with the rules of evidence. I mean, how much sense the limits on character and habit evidence make to you before you went to law school?

And half the time when we try to improve on the common law, we wind up screwing the whole thing up. We get things like the dead man's statute. Whether or not that statute makes policy sense as interpreted, it's completely incomprehensible as drafted.

Worse still is the potential for politicizing some of these rules. Like, how about we stick it to the greedy plaintiff's bar by saying that the dead man's statute doesn't apply to doctors, or tweaking the hearsay rule to help corporate defendants? We could make a real mess of oh, say, about 200 years of jurisprudence by horse trading rules and exceptions. That's not worth it.

So to those of you in the Boyd-Graves conference and on the SCV, hearty congrats on a job well done. 

And to everybody else, please ask your friendly neighborhood legislators to pass the rules of evidence as presented, and as a package.

No rules are bad. But bad rules are worse.

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Loyal readers are no doubt wondering what happened to last week's post; I know that many of you plan your week around the sunbursts of appellate goodness that rarely regularly shine forth from these pages.

The short answer is that it's hiding. Last week I did a guest post at Chris Hill's blog, Construction Law Musings, about the SCV's recent opinion in Bennett v. Sage Payment Solutions, Inc.

Bennett is a neat case about whether a defendant can assert repudiation as a defense to breach of contract, even after performance has begun. It's one of the more important business cases of the past year. (I know that because I am giving a talk on the most important business litigation cases of the past year at the annual VADA meeting, and I saw Bennett in my outline.)

The long answer is pretty much the same, but it includes a prolonged, vaguely self-pitying discourse on how busy I've been.

Not that I have any reason to complain. In the past two weeks, I've made two entirely stress-free trips to Richmond, both related to oral arguments someone else was giving, and a third trip to Richmond to speak at the Professional Development Conference put on by the Virginia State Bar's Young Lawyer's Division.

I had a blast at the PDC and really enjoyed talking to folks afterward. I won't drop any names (mostly because I don't want to embarrass anyone by associating them with this page without their express written consent), but that was a real highlight in a jam-packed week.

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I'm a sucker for a good standard of review.

As the Curmudgeon likes to say, the standard of review decides cases.

And sometimes, unfortunately, that standard of review is abuse of discretion. See, e.g., John Crane, Inc. v. Jones, 650 S.E.2d 851 (2007) (affirming trial court's exercise of discretion; accidentally starting inexorable urban legend about expert disclosures).

What do you do with that? When a decision is "committed to the sound discretion of the trial court," after all, it kind of sounds like the trial court can go either way. It can grant or deny the motion, admit or exclude the evidence.

That does not translate well into "reversible error." You really only get so much leeway to kvetch about trial management.

That's exactly why I always like a good treatment of abuse-of-discretion review.

Justice Goodwyn delivers one in AME Financial Corp. v. Kiritsis, Record No. 091244, handed down in March of this year. (Important note for appellants--the Court winds up affirming the circuit court.)

Here is a quick summary of what the Court had to say about abuse of discretion:

• An appellate court should not simply rubber-stamp every discretionary trial court ruling. It has an obligation to review the record and to reverse the trial court if it finds a clear abuse of discretion.
• Whether a trial court has abused its discretion is a fact-specific question.
• In evaluating whether a trial court has abused its discretion, the appellate court does not substitute its judgment for that of the trial court. Instead, it considers only whether the record fairly supports the trial court's action.
• Abuse-of-discretion review also includes review to ensure that the trial court's decision was not guided by erroneous legal conclusions.

There's enough useful stuff in there to draw the sting from the standard of review in most cases.

Finally, I was in Richmond yesterday to watch Monica's argument in Campbell County v. Royal, as well as the argument in the fascinating new noncompete case, Home Paramount Pest Control. It was great to see everyone in Richmond. Sorry it's taken me so long to update the blog.

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A few weeks ago, we welcomed Virginia's new justices and appellate judges with a piece about the five worst parts of Virginia law.

In hindsight, that was probably a little rude: "Welcome to your new job. Here's why it sucks."

To make amends, here is a list of the five best parts of Virginia law (or, maybe more precisely, practice):

1. Oral Argument. The Fourth Circuit hears oral argument in roughly 1 out of every 398,734 cases. The Supreme Court of Virginia hears oral argument in every single case.
2. Writ Arguments. Especially of the Traveling Variety. Even compared to a traditional oral argument, a writ argument is inherently fun; it's a ten-minute,  unopposed argument before a panel of three justices. You only have to convince one. And the numbers are such that you have a very good chance of not having to argue before one of the Scary Justices. So the baseline hedonic calculus is pretty good. The Court's annual tradition of holding traveling writ panels--essentially bringing the appellate bench to the bar--adds to the fun, and sends a good message to us poor slobs schlepping briefs to the lectern.
3. Consensus. The proliferation of separate opinions and the (ahem) range of viewpoints on SCOTUS renders some of its decisions difficult to interpret and impossible to explain to non-lawyers. One of the refreshing things about state-court practice is the degree of consensus on the SCV. When the Court issues an opinion, you can generally understand what it means without counting justices for a future hypothetical case. And when one of the SCV justices does write a separate opinion (as, for example, the Great Concurrer is wont to do) there's usually a good reason. E.g., Evans v. Evans, 695 S.E.2d 173 (Va. 2010).
4. Collegialtiy. People* seem to be meaner to me in the federal system. Couldn't say why.
5. Trials. One of the great recent themes of Virginia jurisprudence is that of a court "increasingly confronted with appeals of cases in which a trial court incorrectly has short-circuited litigation pretrial and has decided the dispute without permitting the parties to reach a trial on the merits." Those aren't empty words. The Court is seriously interested in seeing citizens have their day in court, and it won't hesitate to bench-slap trial judges who are too quick to grant a demurrer, or a motion for summary judgment, or a motion to strike.

There's plenty more I could add, like the lack of Daubert motions, or the suits-and-sneakers bar exam uniform, or the quality of donuts at the Homestead (rightful home to all important gatherings of Virginia lawyers). But this seems like a decent start.

*Not including the Fourth Circuit case managers, who are immensely patient, helpful, and nice.

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I'm always on the lookout for new ways to lose an appeal.

Steve Emmert and Kevin Martingayle showed me one in their recent webinar, Preventing Nightmares: Preserving Issues and Avoiding Waiver.

They call it the "successful-appellant trap," and it's based on the Supreme Court of Virginia's recent holding in VMRC v. Clark, 281 Va. 679 (2011).

Clark involved an administrative law appeal that was prosecuted before the Marine Resources Commission, the circuit court, the Court of Appeals, and the Supreme Court of Virginia. A group of citizens challenged the Commission's issuance of a permit. The circuit court ruled that they lacked standing to object. They asked for leave to amend their complaint, which the circuit court denied.

The Court of Appeals reversed, agreeing with the citizens that it's unnecessary to allege standing in administrative law appeals. It did not reach the leave-to-amend issue.

The Commission appealed, and the SCV reversed on the standing issue, holding that standing is essential for any litigant. So far, so good.

But the SCV then refused to address citizens' claim that they should have an opportunity to amend to assert proper standing, because the citizens hadn't appealed the intermediate appellate court's failure to address that issue. The SCV therefore reversed and entered final judgment against the citizens.

If Clark actually means what it seems to say, then it's very bad news for folks like me. Its holding requires a successful litigant to appeal anything less than an unconditional victory in order to preserve points for appeal. That is, if you give the court five reasons why you should win, and the court sides your way on four of them but doesn't reach the fifth, under Clark you apparently need to cross-appeal its failure to reach that issue or waive the point for appeal. This is true even where the lower court had a perfectly good reason for not reaching the issue--e.g., where the first four rulings render the fifth point moot.

There are several problems with this rule:

• First, it's inefficient. Clark requires a successful litigant to appeal everything that did not go her way, just to protect her position on appeal. That will require litigants to waste pages briefing against shadow arguments. Even worse from the system's perspective, somebody (ahem) is eventually going to have to read those briefs.  
• Second, what happened to the right result for the wrong reason? We just learned in Perry and Banks that the SCV will affirm a lower court that arrived at the correct disposition, even if its reasoning was incorrect, so long as the record supports the alternative ground for affirmance. Presumably, the record in Clark supported affirming the CAV's reversal and remand on the alternative ground that the trial court should have granted the citizens leave to amend. Why wasn't that good enough to save the citizens' case? 
• Third, this rule is very harsh on the citizens. It's one thing to require litigants to assign error to rulings that aggrieve them. But the CAV's ruling did not really aggrieve the citizens; it gave them what they asked for--reversal and remand--and did not reach their procedural argument about leave to amend, because it didn't have to. Requiring them to appeal that ruling is more than counter-intuitive. It is, as Martingayle and Emmert suggest, nothing less than a trap.
• Fourth, the efficiency and fairness problems in Clark all flow from the Court's requirement of binding assignments of error, which we've complained about before. The successful-appellant trap would not arise in federal court.

With luck, the Supreme Court will distance itself from Clark--at least as it applies to points rendered moot by the lower court's ruling. Until then, appellants have one more reason to be wary.

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On Friday, Virginia appellate lawyers breathed a sigh of relief as the powers that be filled a crucial vacancy--and not a moment too soon. I think I speak for all of us when I say that we congratulate Jurgen Klinsmann on being named the 35th coach of the U.S. National Team, and look forward to his tenure.

Also, the General Assembly elected some judges and justices in Richmond.

All five have their work cut out for them, but at least Klinsi's mission is relatively straightforward: make it 2002 again through science or magic.

Our four newly robed friends and friends in new robes, however, face a more perplexing array of problems. Their position is complicated by stare decisis, separation of powers, and the fact that they are only able to answer the questions presented in the cases before them.

I'm going to ignore all of that.

Instead, I will take this opportunity to welcome our new jurists by offering my list of five strange things about Virginia law that somebody (ahem) ought to fix:

1. Contributory negligence. Contributory negligence is an outdated, patently unfair doctrine. If we're going to hold on to this one, we might as well offer plaintiffs trial by ordeal.  I'd like my chances of snatching a pebble from a cauldron of boiling water better than my odds of convincing a jury that I wasn't 1% to blame for whatever happened--Enron, the Spanish Inquisition, or a rear-ender. When last I checked, only Alabama, D.C., Maryland, North Carolina, and Virginia still applied a pure contrib rule. This means that the development of our law lags such bleeding-edge jurisdictions as Arkansas, South Dakota, and West Virginia.  
2. Binding assignments of error. Okay, now it's really time to break out the powdered wigs. A few years ago, I heard a statistic to the effect that only five states still use binding assignments of error. Since then, North Carolina--one of our sister contrib states--has abandoned them. The federal system seems to get along just fine without them. Without having done the research remotely necessary to back this statement up, binding assignments of error seem like an artifact from a time when the appeals process worked differently, and reproducing parts of the record was a big deal. Today, not so much. They've become just another mechanism that clever appellees can use to raise procedural default (or that the Court could use to duck a difficult question, were it ever so inclined). I'd call them a trap for the unwary, but they catch the cautious as well--in part because different justices interpret Rule 5:17 differently. This means that you can hear one day that a particular assignment is insufficient, appeal dismissed, then see an almost identical assignment upheld against a challenge in a published opinion a few months later.
3. No intermediate appellate court of general jurisdiction. Try explaining this to one your out-of-state colleagues. We tell our civil clients that the SCV grants about 1 in 5 petitions for appeal. This creates a system where some lawyers seem to think that it's worth their time to try to trick the trial judge into doing something goofy, like granting a motion to strike on the ground of contributory negligence; after all, there's only a 1-in-5 chance that anyone will ever review it on the merits. Trial courts are also more likely to make substantive mistakes on their own, because there is less binding guidance. Developing the law is one of an appellate court's basic functions, and it's asking a lot of the Supremes to expect them to do all of that themselves. Further, basically every civil appeal--from dog-bites to the Episcopal church case--goes straight to the SCV, no matter how wacky, without a buffer court to explain that this argument has been waived, that argument is nonsense. etc.
4. No motion for summary judgment may be based on discovery depositions. Because why should a man be bound by his sworn testimony in a formal proceeding, recorded by an officer of the court and possibly a video camera? Adding to the weirdness, you can use a discovery deposition to resist a motion for summary judgment, but not to support one. So basically, you can use depositions to increase the cost of litigation, but not to end it. 
5. No rules of evidence. These rules would help. A lot. It's not like there aren't some out there we could borrow.

(Yes, I know that some of these require legislative solutions. Please see above disclaimer.)

If any of these points are well-taken, credit should go to my partner, TJ, because (believe it or not) this is what we talk about in our spare time, and he is smarter than I am. All errors and unsupportable claims are solely my fault.

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I had just agreed to give a talk on legal writing when I came across this post on the Appellate Record, discussing the Fifth Circuit's recent opinion in Sanches v. Carrollton Farmers Branch Independent School District.

Sanches is a gem for two reasons.

First, it's a completely absurd case. In a fact pattern that probably only makes sense in the Lone Star State, a complaint over failing to make the cheerleading team somehow festered into a Title IX/Section1983 action.

Second, as discussed below, Sanches single-handedly covers about half of the points for my presentation.

Here's to God, and football, and Texas forever.

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