De Novo: A Virginia Appellate Law Blog

De Novo: A Virginia Appellate Law Blog

Jay O’Keeffe practices with Johnson, Rosen & O’Keeffe LLC. in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more

New Paper: Appellate Experience is Correlated with Success on Appeal (at least for Appellees’ Counsel)

Posted in Uncategorized

I just finished reading a thought-provoking law review article summarizing a multiple regression analysis of a sample set of 200 Ninth Circuit opinions handed down between 2010 and 2013.

No, really, it’s true. The study is Sisk, Gregory C. and Heise, Michael, ‘Too Many Notes’? An Empirical Study of Advocacy in Federal Appeals (February 17, 2015). 12:3 Journal of Empirical Legal Studies (2015, Forthcoming). (H/T Kim Keller.)

Here are some of the authors’ findings:

  • For appellants, brief length was highly significant and in a positive direction–that is, longer briefs were positively correlated with a greater likelihood of success on appeal.
  • For appellees, lawyer experience was statistically significant, and in the expected direction: more experienced lawyers were more likely to win.
  • Oral argument was also highly significant as an independent variable. The authors caution that correlation does not mean causation: “The panel’s decision not to hear oral argument in an appeal does not so much ’cause’ a loss for the appellant as offer an early signal that such a loss is likely impending.” We’ve discussed the importance of oral argument before.
  • Procedural issues were correlated with higher reversal rates. This makes sense, the authors point out, as procedural issues often involve questions that can be reviewed de novo.

The study as a whole is pretty cool. It’s worth you time to check it out.

To an extent, the authors’ finding about brief length seems to cut against conventional wisdom; judges in particular are forever advocating for shorter briefs. But Sisk and Heise don’t actually argue that longer is categorically better. Instead, their suggestion is more nuanced:

[T]he right length of a brief should turn on the substance of the individual case and the nature of the winning argument. While brevity has its place and tighter writing remains an essential part of the set of skills for a persuasive writer, the greater priority for the civil appellate brief-writer is persuasive completeness.

It’s tough to argue with a concept like “persuasive completeness.” And to to put things in context, the study’s data set included a group of briefs that were not just concise or pithy, but stupidly short. Like, “Pass the crayons–I need to file something today avoid a bar complaint” short. Nobody should be surprised that the win rate for federal appellate briefs of 0-1,000 words is lower than the win rate for briefs of 10,001-11,000 words.

And don’t let the phrase “regression analysis” throw you off. The paper is anything but bland. Sisk and Heise pepper their analysis with some very enjoyable soundbites from respected lawyers and judges about the proper length of briefs. Suffice it to say that the views of the bench and bar are less than perfectly aligned on this point.

(Somehow, I got through all of that without making a single “size matters” joke. Strong.)

Equally helpful–at least from a marketing perspective–was Sisk and Heise’s conclusion about lawyer experience:

Does greater experience in federal appellate work by a lawyer make that lawyer’s client more likely to prevail on appeal? The short answer from our study of civil appeals appears to be “yes,” at least for one side of the adversarial divide (appellees). Based on this intriguing finding and prior work by other scholars, the evidence grows that attorney experience matters in general and attorney experience in appellate work matters in particular.

I couldn’t have said it better myself. (Actually, I could have–and in fewer words, too. But I’m still putting the blurb up on our website.)

So what do you think–are longer briefs better for appellants? Does it make sense to higher an experienced appellate lawyer, even if you are an appellant?

Hicks v. Commonwealth: For the First Time Ever, SCV Applies “Good-Cause” Exception to Contemporaneous-Objection Rule

Posted in Appellate Practice, Opinions and Analysis, Preservation of Error
it's our corporate motto.

It’s our new corporate motto.

Frequent fliers in the Supreme Court of Virginia are all too familiar with Rule 5:25, the Court’s contemporaneous-objection rule.

The rule is straightforward:

No ruling of the trial court, disciplinary board, or commission before which the
case was initially heard will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or
to enable this Court to attain the ends of justice. A mere statement that the judgment or
award is contrary to the law and the evidence is not sufficient to preserve the issue for
appellate review.

It’s also almost invariably fatal. A quick Lexis search shows that Virginia courts have cited “Rule 5:25″ in 463 cases. That suggests that the rule has killed more appeals than Chuck Norris and my own incompetence combined. So, scary stuff there.

“But wait,” the naive client or novice appellate lawyer in my head sometimes argues, “doesn’t the rule have two exceptions–‘except for good cause shown or to enable this Court to attain the ends of justice’?”

That’s technically correct, imaginary voice in my head, but those exceptions have historically been very, very limited. Habeas cases aside, I’m not sure that I’ve ever seen the ends-of-justice exception applied in a civil case. And until last Thursday, I’d never seen the good-cause exception at all. If you’d asked me a week ago, I would have told you that it didn’t really exist; it was a collection empty words on a page. I’d have advised you to put your faith in Bill Belichick’s ethics unicorns over that particular bit of verbiage.

But that was all a week ago. Then came the SCV’s latest batch of opinions. The set included Hicks v. Director, Department of Corrections, which applied the ends-of-justice–excitement enough for an appeals geek (and Hicks is discussed at length on Steve Emmert’s blog). Just a little further down the list, I found Toghill v. Commonwealth.

And there it was: The unicorn. The white whale. The watchable network drama.

An opinion applying the good-cause exception to Rule 5:25.

So let’s have as much fun with this opinion as we can, because who knows when another will show up.

We’ll start with the facts. Our story begins, as stories so often do, with Mr. Toghill, “an adult, engaged in an email exchange with a law enforcement officer posing as a minor wherein Toghill proposed that the two engage in oral sex.” Toghill was tried and convicted in 2012 of soliciting sodomy from a minor. He did not argue at trial that the underlying statute supporting his conviction, Code § 18.2-361(A), was unconstitutional.

The next year, in a separate case, the Fourth Circuit concluded that  Code § 18.2-361(A) was facially unconstitutional in light of Lawrence v. Texas in MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013). So Toghill appealed to the Court of Appeals of Virginia, adopting the Fourth Circuit’s rationale and candidly admitting that he’d raised Code § 18.2-361(A)’s constitutionality for the first time on appeal.

Unfortunately for Toghill, the SCV had previously held that Code § 18.2-361(A) was constitutional as applied to oral sex between an adult and a minor in McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007) . And so the CAV affirmed the trial court, and Toghill appealed to the SCV.

The Commonwealth argued that Toghill was procedurally barred from raising the argument because he did not raise it in the trial court. The Court considered Rule 5:25, and acknowledged that it had held that it could not reverse a trial court on a ground never raised below–and that it did so in the specific context of a challenge to the constitutionality of Code § 18.2-361(A). But the Court reviewed the timeline:

  • In 2007, the Court held that Code § 18.2-361(A) was constitutional in McDonald;
  • In 2012, Toghill was convicted;
  • In 2013, the Fourth Circuit held that Code § 18.2-361(A) was unconstitutional in MacDonald.

The Court acknowledged that its cases have not applied the good-cause exception. But given those facts, it held that “the conflict created by the Fourth Circuit’s subsequent opinion is good cause under Rule 5:25 to consider the error alleged by Toghill regarding the constitutionality of Code § 18.2-361(A).” It stressed that the exception applied in “this narrow instance.”

(Okay, quick Zack Morris timeout: As a lawyer who regularly represents appellants, and as an observer who suspects that the Court’s waiver jurisprudence may have grown, um, excessively robust, I like this result. But as an objective observer, I have to admit that it’s surprising for several reasons. First, the Court acted sua sponte; Toghill never even asked it to apply the good-cause exception. And why would he? The Court itself had never applied the exception. Second, as Justice Mims points out in his concurrence, the majority approach “creates the precedent that an appellant may raise an issue for the first time on appeal simply because a federal court addressed it in a non-binding opinion after the state court has concluded its proceedings . . . .” I’m told that it’s not hard to find recent cases where the Court declined to reach issues under these circumstances, but I haven’t done the research. Third, what conflict did the Fourth Circuit’s opinion create? It was non-binding.)

Back to the main plot: In the end, none of this helps Toghill. The five-justice majority concludes that the Fourth Circuit got it wrong in MacDonald. Justices Mims and McClanahan concur separately. Neither would have applied the good-cause exception, and both would have affirmed. So Toghill gets shut out.

So what can we take away from Toghill?

  1. Toghill holds that the conflict created by an intervening, nonbinding opinion can qualify as “good cause shown” under Rule 5:25, allowing the Court to reach an issue that wasn’t raised below. Nothing necessarily limits this principle to intervening Fourth Circuit opinions on constitutional issues.
  2. It’s clear from the Court’s opinion that it is concerned with conflicts in the law. You can leverage this concern to your advantage in other contexts. For example, if you want your Petition for Appeal to grab the Court’s attention, you might play up a conflict between the state trial courts, or a doctrinal detour that the federal courts took.
  3. The Toghill Court stressed that the good-cause exception applied in this “narrow instance.” The SCV will sometimes be a little more forgiving with preservation issues in criminal cases. I wouldn’t necessarily expect a Toghill argument to work in a civil appeal. In fact, I wouldn’t necessarily expect it to work anywhere, ever. Raise your appeal points in trial court.

Lessons from Baca v. Adams: Video Breakdown of a Ninth Circuit Beatdown

Posted in Oral Argument, Uncategorized

Ever want to see the appellate equivalent of torture porn? Here’s a video that’s making the rounds of an oral argument from the Ninth Circuit in a case called Baca v. Adams:

Skip ahead to 16:03, and be sure to watch all the way to the end. Otherwise, you’ll miss the part where Judge Kozinski stops flogging the poor lawyer and actually starts flaying him alive. It’s as brutal a thing as I’ve ever seen in a courtroom.

And yet, we might be able to turn it into a teachable moment. My buddy, Kyle McNew, shared this video on Facebook along with a few thoughts. One of them is a question that he’s been asking himself: “Self, is there anything the dude from the AG’s office could have done to avoid that, short of just not standing up to argue at all?”

Let’s take a careful look at the video and try to answer Kyle’s question. Out of empathy for said dude from the AG’s office, we won’t use his name. We’ll just call him “Counsel.”


This is an appeal from the denial of a habeas petition, so it’s pretty far outside my wheelhouse. To simplify things for our exercise (and because I don’t understand the nuances of habeas law), let’s say that the government sent a bad man to jail for first-degree murder on the basis of false testimony–specifically, false testimony from a jailhouse informant and a prosecutor to the effect that the informant did not receive any benefit for his testimony in the case. Let’s say that both the California Court of Appeal and the district court concluded that this testimony was false. Let’s also say that the State had other strong evidence. For purposes of our exercise, we will assume that Counsel had useful arguments to make on appeal about prejudice, harmless error, and deference to state courts.

(This summary is what I gleaned from the argument; it might not be totally accurate. I’m interested in the appellate lessons from the argument, not the underlying facts of the case. Scott Greenfield has a good discussion of the substance of the case from a criminal law perspective here:

With those assumptions, we can pick out a few spots where Counsel could have saved himself some pain:

Before Argument

We have to acknowledge at the outset that the real problem here is one of strategy, not execution. The State made a tremendously bad call by fighting to hold onto a conviction that it obtained on the basis of false testimony. It doesn’t matter if they had clever technical or jurisdictional arguments for preserving the result. The whole endeavor was morally abhorrent. In my experience, if you try to use a clever, technical argument to make a court do something obviously unjust, the court will punish you. Maybe the AG’s missed the forest for the trees, or maybe it fell victim to some sort of bureaucratic inertia that drove it to keep defending its result. But whatever happened, any error that we pick out below flows from this fundamental mistake of judgment.


Counsel starts his argument by saying that “[a] number of things happened that should have not happened, and we’re not here to defend them.” That invites Judge Fletcher to probe the extent of that concession, and he immediately asks if Counsel concedes that the prosecutor lied below. Counsel tries to defend the prosecutor; while he’s forced to acknowledge that the prosecutor testified untruthfully, Counsel suggests that he may have been confused and that’s “not clear” that he lied.

No! Don’t do it! Don’t poke the bear. Don’t challenge Judge Fletcher right out of the box. And don’t burn your credibility on a point that you can’t–and don’t have to–win. Of course the prosecutor lied (at least, on this record and for purposes of this appeal). Admit it, but explain that it’s irrelevant because the question in the case is harmless error/prejudice. Counsel gets to that point eventually, at around 17:12, but he manages to annoy panel on the way.


Judge Fletcher asks if the court should go ahead on the assumption that the prosecutor lied, as the California Court of Appeal found. Counsel unhelpfully clarifies that the Court of Appeal used the word “fantasy.”

Here we go again. For purposes of this appeal, the prosecutor lied. Give up the point and get out of there. By this point, Counsel has burned two minutes and an awful lot of argument time to little effect.


Judge Kozinski asks if the prosecutor has been prosecuted for perjury. Counsel says that he hasn’t. Why not? Counsel doesn’t know, and Judge Kozinski explains that he has to “doubt the sincerity of the State” when it says that this was all a big mistake. Judge Kozinski suggests that the first thing to do in a situation like this normally would be to prosecute the witness for perjury.

Counsel challenges Judge Kozinski’s premise that perjury occurred. Judge Wardlaw promptly smacks him with the record, reminding him that the state Court of Appeal determined that it had. Counsel agrees. He tries to push back, but it’s too late–Judge Kozinski asks about the lawyer who put on all the false evidence. Turns out he wasn’t disciplined. Judge Kozinski asks why not, and what message that sends young prosecutors. Counsel tells Judge Kozinski that, “when this matter wraps up,” he intends to speak with the new district attorney in Riverside and alert him to the severe criticism that his office has received from the magistrate judge. Judge Kozinski asks why he can’t do that right now. Counsel admits that nothing prevents him from bringing it to the DA’s attention immediately.

Again, Counsel is wasting credibility and time on the perjury issue. His expressed intent to speak with the Riverside DA is not very compelling, and it unnecessarily–and unhelpfully–gives him a personal role in the train wreck. About which more later. Neither of these points were worth making, and both drew the panel’s ire.


After a relatively smooth stretch, Judge Fletcher methodically walks Counsel into an ambush. He gets Counsel to expressly concede that the California Court of Appeal stated a standard for prejudice and applied that standard to the Petitioner’s Napue claim. Judge Fletcher then explains to him that if that’s true, then the state court got the standard wrong. Counsel immediately reverses his position, without explanation, and argues that the state court actually applied the correct standard, without discussing it or apparently even mentioning the standard.

Do you smell that? Those are the smoldering ashes of Counsel’s last ounce of credibility with this panel. Listen to the questions. Think about your answers and their implications, and answer carefully. The inquiry about standards was easy to anticipate, particularly after watching the Appellant’s argument, and it was pretty clear where Judge Fletcher was headed.


Judge Wardlaw explains at length why the case seems so fundamentally unfair. Counsel agrees that the prosecutor’s conduct was “improper,” which doesn’t exactly assuage her concerns. Judge Kozinski chimes back in, pointing out that the government’s lack of a response suggests that this is just the way things are done in Riverside; “it’s not a reassuring picture.”

For some reason, Counsel disagrees. This does not sit well with Kozinski, who runs through a counterfactual list of things that would have shown sincerity on the State’s part. Counsel gallantly tries to defend not the prosecutors, but the courts involved, saying that it’s quite clear that they did not “condone” the conduct. Judge Wardlaw explains that it’s actually not that clear, because while the courts acknowledge that the prosecutor lied and bolstered the credibility of another lying witness, they found that it didn’t matter because there was other evidence. That, as she points out, is condoning the conduct.

When prepping for the argument, Counsel should have identified the smallest set of points he needed to establish to win. At argument, he should have gone after those points and nothing else. Tangling with the panel on irrelevancies is not productive.


And then things get personal. Judge Kozinski points out that Counsel works for the AG, who has prosecutorial authority. He asks if the AG is aware of the situation. It turns out that Counsel has not provided her a report. Judge Kozinski directs Counsel to provide this information to her in the next forty-eight hours. He then asks if an investigation has been conducted, or any other steps taken to show that California does not condone prosecutors getting on the stand and lying to the jury. Counsel says that, other than the criticism from the Court of Appeal, California’s got nothing. Kozinski notes that the Court of Appeal does not work for the AG. Kozinski asks if there is any particular reason why this has not happened.

Counsel then unnecessarily injects himself into the case, explaining that the reason he personally has not conducted an investigation is that he does not believe that the proof shows that the prosecutor who put on the false evidence knew that it was false (even the prosecutor who lied on the stand worked in the same office). This only baits Judge Kozinski to further badger Counsel.


Judge Fletcher points out that the AG’s office fought “tooth and nail” to keep the sentencing transcript–which evidently showed that the informant and prosecutor were lying–away from the Court of Appeal. Counsel agrees that this “does not look good.” Fletcher clarifies that it looks terrible. Counsel tries to explain why this was nonetheless an appropriate legal position. Judge Wardlaw asks why the Petitioner’s counsel should have had to fight tooth and nail for the transcript. Counsel responds that Petitioner’s counsel had the transcript from the beginning, which is too clever by half and unresponsive to the question. The issue, as Judge Fletcher points out, is whether the Court of Appeal could see that transcript–and that it’s hard to see the AG’s efforts as anything other than an attempt to keep inculpatory evidence away from the Court of Appeal.

Judge Kozinski observes that this “[l]looks sort of bad–and would look terrible in an opinion when we write it up and name names.” He asks Counsel if his name will be in the opinion–that is, if he was involved with the effort to keep the transcript out of the Court of Appeal. He was not. Kozinski asks who was, and gets an answer. Judge Kozinski suggests that that lawyer may be seeing his name in an opinion.

Judge Kozinski then hits the deep issue in this appeal: “Is this the kind of thing you really want to press here?” He gives Counsel a week to talk to his supervisor to see if he can work anything out with opposing counsel that will avoid the need for the Ninth Circuit to decide the case. “Get ahold of the Attorney General, get ahold of your supervisor, and see whether they really want to stick by a conviction that was obtained by lying prosecutors and that was maintained in the Court of Appeal after the Attorney General’s office fought tooth and nail to keep out a transcript that would have shown the perfidy of the prosecutors, and whether having that documented in Fed Third is really going to further the interests of justice in California. Do you understand the question?”

Surely, by that point, he did. If the AG’s office had appreciated the issue earlier, we might have avoided this display.

Finally, careful watchers will note that the argument took place on January 8, and that more than a week has passed. On January 15, the State asked for more time, and the Ninth Circuit gave the AG until January 29 to update the court on the status of discussions.



Changes at the Supreme Court and Court of Appeals of Virginia

Posted in News, Uncategorized
It's hard to type with this law hammer.

It’s hard to type with this law hammer.

Congratulations to our new Chief Justice Donald Lemons and to the jurists recently elected to Virginia’s appellate courts–SCV Justice-elect Arthur Kelsey and CAV Judges-elect Richard Atlee, Mary Grace O’Brien, and Wesley Russell. All begin their terms on February 1. (And no, I have no idea if “Justice- or Judge-elect” is actually the proper term for a new member of the court between election and investiture.) 

Intrepid reporter and longtime friend of De Novo Peter Vieth (@Peter_Vieth) recently interviewed the new Chief Justice, and you can read some of the highlights in this week’s Virginia Lawyer’s Weekly.

One exchange in particular caught my eye: Vieth asked Lemons about the changes that he’s witnessed since joining the Court in 2000. The Chief Justice explained that, when he started, it was “unheard of” for the justices to talk about the substance of cases before the conference following oral argument. Now, by contrast, the justices are “constantly in contact with one another about the substantive questions that are before the court.”

Lemons surmised that this early communication could be playing a role in the decline in appeals granted. “The rule remains that it takes only one justice to accept an appeal. Nowadays, however, by the time a writ is considered, it’s likely that the court has already discussed whether there is a need to fix a trial court error or clarify the law, Lemons said.”

That’s an interesting thought. I’m not sure quite what to do with it.

On the one hand, you can hardly fault the Court for improved communication or efficiency.

On the other, I’m not a big fan of the decline in appeals granted–either from the selfish perspective of business development, or from the broader view of developing the law or correcting trial-court error. So I don’t relish the idea of the justices getting together online and talking themselves out of taking a case. That’s particularly true if some or all of them haven’t had the benefit of oral argument, and maybe haven’t heard the best explanation of the petitioner’s case.

(Of course, that’s easy for me to say–I’m not the person who has to work through all of the writ arguments.)

But despite the flourish about technology, I think that the ultimate takeaway from the Chief Justice’s comments is actually pretty old-fashioned: the briefing in an appeal is critically important. Particularly if your argument is going to be relayed to a justice by a staff attorney in a bench memo or another justice via email, you want the key points to get through. An introduction or preliminary statement, or even a well-framed assignment of error, can go a long way toward achieving that goal.

A Christmas Present for Appellants from the Fourth Circuit

Posted in Notice of Appeal, Uncategorized
The Feats of Strength will follow the Airing of Grievances.

The Feats of Strength will follow the Airing of Grievances.

On December 18, the Fourth Circuit gave appellants an early Christmas/timely Hanukkah/late Ramadan present when it clarified the requirements for a notice of appeal in Jackson v. Lightsey, Case No. 13-7291. Jackson is a deliberate-indifference Section 1983 action. I am deliberately indifferent to its treatment of the merits, but I am deeply interested in its holding on a pair of procedural issues: Was the appellant’s notice of appeal sufficient to confer jurisdiction on the appellate court and, if so, what issues could the court review?

Here’s the background: Felicitously named inmate Samuel Jackson brought a 1983 action against two prison doctors and the medical staff of the North Carolina Department of Corrections. The district court reviewed his complaint for frivolity under 28 U.S.C. § 1915A. Finding that the complaint’s allegations pertained only to the doctors, the district court dismissed the staff as a party on July 6, 2012. The doctors then brought a 12(b)(6) motion, which the district court granted on July 31, 2013. The clerk of the district court entered final judgment later that day.

Jackson then filed a notice of appeal stating that he would “[a]ppeal the Order of the United States District Court [for the] Eastern District of North Carolina [] on this 31st day of July, 2013, by James C. Foxx [sic], Senior United States District Judge.” (Yes, Samuel Jackson and Jamie Foxx. Jackson was a Christopher Waltz away from Django Bingo.) The notice of appeal did not name the court to which Jackson planned to appeal–but since there was only one option, the clerk of the Fourth Circuit issued an informal briefing order. Jackson submitted an informal brief in which he argued only the 12(b)(6) issue from the 2013 order. The Fourth Circuit then appointed counsel for him, and Jackson argued both the 2013 dismissal of the doctors and the earlier 2012 dismissal of staff in his counseled briefs an at oral argument.

So what’s the problem?

Rule 3 of the Federal Rules of Appellate Procedure explains that a notice of appeal needs to:

  1. Specify the party taking the appeal;
  2. Designate the judgment, order, or part thereof being appealed; and
  3. Name the court to which the appeal is being taken.

These requirements are jurisdictional.

The appellees argued that the Fourth Circuit lacked jurisdiction to hear the appeal, because Jackson failed to name the court in his notice of appeal. The Fourth Circuit disagreed. It explained that it construes Rule 3 liberally, and that it measures compliance by asking whether a litigant’s action is the “functional equivalent” of the rule’s requirements. Where a notice of appeal provides adequate notice and does not prejudice the complaining party, the court won’t let technical noncompliance foreclose appellate review. Applying those principles, the Court determined that Jackson’s failure to add the words “Fourth Circuit” to his notice did not bring him out of compliance with Rule 3–particularly given that there was only one court to which he could possibly have appealed. And everybody else in the case knew exactly what he was trying to do; the Fourth Circuit’s clerk issued an informal briefing order, and the appellees conceded that they’d received prompt notice and had suffered no prejudice.

Importantly, the Fourth Circuit did not limit its holding on this point to pro se litigants. Jackson will therefore be broadly useful to appellants going forward.

So far, so good: the Fourth Circuit had jurisdiction. But did that jurisdiction extend to the 2012 order dismissing the staff?

It did not. Jackson filed a notice of appeal and an informal brief addressing only the 2013 12(b)(6) order. Rule 3 required him to designate the judgment or order being appealed. Again, the Fourth Circuit took a liberal, functional approach, asking whether he’d manifested the intent to appeal a specific issue, and whether the opposing party had notice and a chance to brief the issue. The answer to both questions was “no.”

First, there was no indication that Jackson intended to appeal the 2012 order. He specifically identified only the 2013 order, and the fairest inference to be drawn from that specific designation was that he intended to appeal only that order. Jackson’s informal brief confirmed that inference. Under the local rules, the Fourth Circuit’s review was limited to issues preserved in that informal brief.

Second, Jackson had a serious notice problem. Because he did not designate the 2012 order in his notice of appeal, DOCS medical staff was never told of his appeal or asked to file an informal brief. As a result, they were not represented in the appeal, and they had no chance to defend the 2012 order.

What are the takeaways from Jackson?

  1. Although Rule 3 is jurisdictional, the Fourth Circuit will construe it liberally and take a functional approach to weighing compliance. Appellants can breathe a sigh of relief! At least under these facts, a “jurisdictional” requirement presents less of a hurdle in the Fourth Circuit than it does in, say, the Supreme Court of Virginia.
  2. The Federal Rules of Appellate Procedure include a form notice of appeal. Follow the form.
  3. Prejudice and surprise factored into the Court’s analysis. This brings to mind Justice Mims’ own “functional” recommendation for preserving error in the Supreme Court of Virginia: “When in danger, when in doubt, run in circles, scream and shout!” You can never get in trouble for providing the trial court or opposing counsel too much notice of an appeal point. You may look a little silly every now and then, but that’s a small price to pay if excessive diligence lets you sleep at night.


Am I Really Deranged? Listen to this Webinar on Legal Writing and Find Out.

Posted in Writing

Apologies for the late notice, but I’m doing a webinar on legal writing tomorrow at noon for West LegalEdCenter. I don’t claim to be anything special as a writer, but I do enjoy writing and take it seriously. In fact, I may take it a little too seriously; after watching me deliver this talk live, one of my partners called me “deranged.” Another nicknamed me “Atticus Font.”

For those of you who are interested, here’s the link to the webinar: If you can’t make it tomorrow, sigining up for the CLE will give you online access to the program for 180 days.

The Hardest Part of Arguing in the Fourth Circuit–And Three Ways to Handle It

Posted in Oral Argument


Who will be sitting in that chair?

Who will be sitting in that chair?


There’s a lot to like about practicing in the Fourth Circuit–the case managers are excellent, the local rules and IOPs are intuitive, and the staff is remarkably responsive. It’s probably the most user friendly court I’ve ever seen . . . except in one respect: The Fourth Circuit doesn’t announce panel assignments until the day of argument.

That presents a problem for lawyers, because the Circuit is now home to 15 judges with widely divergent worldviews, judicial philosophies, and life experiences. For a given argument, you could theoretically draw anyone from Justice O’Connor* to a district judge to a former AUSA to a former state legislator to a former law-school professor (and let’s not get into the judges who check multiple boxes.) Including the 2 senior judges, the Court has 1 Reagan appointee, 2 Bush I appointees, 4 Clinton appointees, 3 Bush II appointees,  and 7 Obama appointees.While that diversity is certainly invigorating, it comes with some risk. An argument that might carry the day with one judge could well draw nothing but great vengeance and furious anger from another.

As a result, it’s very hard to craft an optimally effective argument in advance. The Fourth Circuit would likely frame this differently, and argue that not disclosing panel assignments keeps lawyers from tailoring their arguments to any particular judge. (Whether that would actually be a bad thing is an argument for another day.)

Either way, diligent advocates have come up with a few ways to cope with the uncertainty:

  1. The Little Black Book. I keep a 1-inch binder on the Fourth Circuit, which contains bios of all of the current and senior judges. It also includes my personal notes from oral arguments I’ve had before them. Quickly reviewing a judge’s background before oral argument can alert you to potential rabbit holes and missteps (like, hypothetically, criticizing a regulatory agency or office where the judge used to work . . .)
  2. Judicial Battleship. This is a tip that I just  picked up from some friends. Before arguments in the Fourth Circuit, they’ll create an Excel table that has all of the key cases listed on the left, from top to bottom, and all of the judges listed across the top of the page, from right to left. So imagine a grid 15 cases up and down the left margin, and 17 judges across the top. Whenever a judge has written a majority, concurring, or dissenting opinion in a case, the box where that judge and case intersect is filled in with an M, C, or D–kind of like playing Battleship, but with judges. You can also show where a judge has joined an opinion with notations of JM, JC, JD. On the day of argument, you can highlight the three columns for each of the threee judges that you’ve drawn. That will graphically illustrate their involvement in the most relevant cases.
  3. Flexibility. Finally, you just have to be flexible when arguing before the Fourth Circuit–not just with structure and order, as in other courts, but even with points of emphasis and (in extreme cases) themes. This is all about preparation and approaching the argument in the right frame of mind. Moot courts can help, as can careful exploration of opposing arguments.

What do you think? I’d love to hear any thoughts that you have about refining these techniques, or other approaches that you’ve developed to deal with the mystery of who will sit on your panel.


*Assuming that she’s still sitting by designation; I know that she heard argument last year, but I don’t know how frequently (if at all) Justice O’Connor shows up in the Fourth Circuit rotation these days.

Guest Post: Confessions of an Oral Argument Junkie

Posted in Oral Argument, Uncategorized

Wooden Confessional isolated on white.

Here’s a guest post from my partner and longtime friend of De Novo, Monica Monday, in which she owns up to her personal demons (such as they are):

I admit it. I am an appellate argument junkie. This has been a long-standing problem, but when the Supreme Court of Virginia began releasing audio recordings of its oral arguments earlier this year, my habit took on new dimensions. I can now listen to hours of appellate argument without leaving the house, car, or office. This has brought new purpose to my long daily commute (I hope the legislature will not make this illegal), and I’m totally hooked.

But what’s the big deal, concerned friends ask – audio recordings of Fourth Circuit arguments have been available for some time now. It’s true, so what is the big deal? Supreme Court recordings provide a look at the Court as a whole and how the justices interact with each other. Except for the rare ocasion when it sits en banc, the Fourth Circuit hears most arguments in panels of three, limiting a study of that Court as a whole.

Whatever the reason for my obsessive interest in these audio recordings, they have reinforced some suspicions I have had about the Supreme Court, and appellate arguments in general. And, they have provided some new insight as well.

First, the justices are talking to each other when they ask their questions. This is something that is hard to follow during the heat of oral argument. However, listening to the argument after the fact, it is clear that many questions are not really for me, but are directed towards another justice, or the entire Court. The justices are really discussing the case with each other and trying to convince their colleagues on the bench of their position.

So does this mean that my answers don’t matter? Am I just a pawn on the Court’s chess board? Not at all. My answers to those questions can influence that private, judicial discussion – and the ultimate outcome of the case – by showing why my position is right.

Second, some questions are not at all what I thought they were at the time. During argument, it can be difficult to really listen to the Court’s questions when you are focused on delivering the argument you have prepared. Things become clearer with the luxury of hearing the argument again without the stress of being in the middle of it. In particular, I have noticed that some questions were not exactly what I thought they were at the time; rather, the Court was asking something slightly different.

Good listening at oral argument is hard. It requires us to focus on the Court first, and our prepared argument second. Because the Court is the decision-maker, though, we must understand its concerns and questions so we can respond meaningfully. If we haven’t answered the Court’s questions, then we have not done our jobs as oral advocates. So, be flexible during oral argument. Weave the important points of the argument into your answers, but make sure you are addressing the issues the Court wants to discuss.

Third, the Court genuinely wants to understand your argument and the ramifications of its decision. This is why the justices ask hypothetical questions – to test the boundaries and effect of its ruling in future cases involving different facts. And this is why it may press the advocate to define the scope of the ruling he seeks and to explain the effect of that ruling. Concisely explaining the scope and limiting principles of your position will greatly assist the Court in understanding the effect of adopting your position, and becoming comfortable with it. Embrace the opportunity to help the Court do its job well.

Finally, audio recordings only tell you half the story. Listening to an audio recording of an argument I heard – or delivered – is a different experience than being there live. The visual, relational, and intangible aspects of the live argument cannot be captured on an audio tape. Thus, many essential ingredients to an effective oral argument, such as genuineness, credibility, eagerness, passion, engagement, and rapport with the Court are not fully experienced on an audio recording.

Therefore, being there in person is the only way to fully appreciate the argument – although that won’t stop me from listening. And, you should not agree to argue your case by phone – that separation prevents full engagement with the Court.

You can access the audio recordings from the Court’s merits arguments since January 7, 2014, at

Adding Insult to Injury? Virginia Code Section 8.01-682 and the Mysterious $250 in Damages

Posted in Appellate Practice, Uncategorized

We get questions about this a lot.

When the Supreme Court of Virginia issues a mandate affirming a judgment, it will sometimes include this line: ‘The appellant shall pay to the appellee two hundred and fifty dollars damages.”



Occasionally, the appellee maybe curious about his unexpected windfall. But when you’re on the wrong end of one of these mandates and you haven’t warned your client in advance, brace yourself for great vengeance and furious anger understandable consternation. It’s bad enough that the appellant has  lost her appeal. Now she has to pay two hundred and fifty dollars to the appellant? Where did that come from?! It probably doesn’t help that the Court”s form language doesn’t explain the damages or cite any authority. The whole thing can seem a little arbitrary.

It’s not. And the Court isn’t being mean or piling on. If anything, the Court is being charitable.

That’s because Virginia Code Section 8.01-682, “What damages awarded appellee,” states:

When any judgment is affirmed, damages shall be awarded to the appellee. When the judgment is for the payment of money, the damages shall be the interest to which the party is legally entitled from the date of filing the notice of appeal until the date the appellate court issues its mandate. Such interest shall be computed upon the whole amount of the recovery, including interest and costs, and such damages shall be in satisfaction of all interest during such period of time. When the judgment is not for the payment of any money, except costs, the damages shall be such specific sum as the appellate court may deem reasonable, not being more than $2,500 nor less than $150.

When it affirms a nonmonetary judgment, the SCV has no choice but to award the appellee between $150 and $2,500 in damages. The General Assembly has tied its hands. In fact, the General Assembly amended the statute in 2010, increasing the maximum damages award from $100 to $2,500.

The Court’s $250 award is actually pretty charitable when viewed in that context. (And for some reason, the award always seems to be $250; off the top of my head, I can’t remember a case where it awarded a different amount.)

Would it soften the blow if the Court cited authority for the award? Sure. It would also soften the blow if adverse rulings came on Hallmark cards, with a personal note of apology. But we’re all grownups, and part of the reason that people hire appellate lawyers is to explain these mysteries.

Legal Research: How Do You Know When Enough Is Enough?

Posted in Appellate Practice, Uncategorized


I’ve never been any good at figuring out when I’m done with a legal research project. This will come as absolutely no surprise to those who know my many personality flaws and obsessions.

For most questions, I can get the right answer in less than two hours, a definitive answer in less than two days, and a robust, scholarly understanding of the area of law in less than two weeks (but why stop there?). Figuring out which of those benchmarks is appropriate for a given task, however, or when I’ve reached it . . . well, that’s a little tougher. And things only get more complicated when I try to bring in an associate to help. Because, you know, control. OCD. Catholic guilt. And such.

With that in mind, here are some guidelines that I’ve developed over the years to rein in my worst impulses:

  1. What kind of appeal are we handling? Broadly speaking, there are two types of appeals: cases where you ask the court to correct an error, and cases where you ask the court to develop the law. To argue either case, you need to understand how the law works and why it works that way. But to argue a law-development case, it’s often helpful to have a broader and deeper understanding of the law. You’ll want to know, for example, how other jurisdictions have handled the issue, whether there’s a clear majority rule (and why), and if the law  is moving in a particular direction. The same information can be helpful in an error-correction case, of course, but it’s not always as necessary.
  2. Have we checked the obvious boxes? I tend to work my way through research problems methodically. I start with reliable secondary sources to get a broad understanding of the area of the law. (Big fan of context here.) Then I look at statutes and rules. Then I read the cases that showed up in my secondary sources and annotations. Then–and only when I understand what I’m looking for and how it fits into the area of law–I run some keyword searches and Shephardize my major cases for research. If I’m working with an associate–and I sometimes have to, because at my advanced age I’ve lost the luxury of spending days in the library–I’ll make sure that he or she has run through these steps. I would hate to learn that we found the answer to a civil procedure question in 20 minutes based on a word search without checking the rules or Wright and Miller. Don’t laugh. These things happen–even (and maybe especially?) at great big Am Law 200 firms.
  3. Am I bored yet? In most research projects, there’s a point where you see basically the same ideas showing up, with citations to the same authorites. When you reach this point, you’ll be able to rattle off those ideas, and you’ll have read the pertinent authorities, and you will know how they all fit into the broader legal landscape. This is where boredom sets in. I consider the boredom threshold the point where I know the answer to a legal question.* This may or may not be when I stop researching. Sometimes, I want to read every single case from a court on a certain point, so I can say things like “This Court has never held that . . . .” Other times–and especially in a law-development case–I will keep researching well past the boredom threshold because I want to see what other courts have done. If another court has gotten the wrong answer for a compelling reason, I’d like to know that before I submit my brief.
  4. Can I answer the tough questions? From an early point in the appellate process, I keep a list of “tough questions” that I should expect from the judges or justices. Sometimes these questions sound like “Have we ever ruled that . . . ” or “Do you have any authority for that proposition?” If I can’t answer these questions, then I’m not done yet.
  5. Can I explain it to Caroline? I have three kids: Caroline is 8, Jack is 5, and Cricket is 3. When I am comfortable with a case, I can explain it to Jack. When I am comfortable with an area of law, I can explain it to Caroline. And as any parent will tell you, there is no sense explaining anything to a three-year-old, so Cricket remains largely useless as a benchmark.

That, in a nutshell, is what I do. What do you think? Have I left anything big out?

*Unfortunate fact of legal practice #364: junior associates have no boredom threshold. This is why they are unable to meaningfully answer any legal research question and will instead hand you a 25-page, single-spaced memo that says “maybe.”