Thursday Q&A
Here are some more of the questions that have led readers to our humble blog (or left them hopelessly confused after getting here):
- One reader emailed to ask how we thought the Supreme Court's recent decision in Walton would affect "claw back" agreements in context of electronic document productions. Hopefully, not at all. Walton sets up a flexible five-part test for determining the effects of inadvertently disclosing privileged material. In the context of that test, I'd consider a claw-back agreement to be a reasonable and prompt (really, prophylactic) step to rectify an inadvertent disclosure. It's certainly one of the "factors arising from the posture of the case . . . that have a material bearing on the reasonableness issues," which Walton directs courts to consider. Ideally, courts applying Walton will use it to effect the goals of claw back agreements entered into by the parties.
- What cases did appellate lawyer John Ward win? Beats the heck outta me. But we can find out. The Supreme Court of Virginia maintains a webpage called "Counsel in Cases Decided," which lists the lawyers in the Court's most recent cases. You can use this page to find out who's winning and who's losing. (As it turns out, Mr. Ward is not listed among the counsel in cases decided on June 10, 2010.)
- In Virginia law is Off the record discussions part of record? No. Of course not. Why would you ever think otherwise? And if something is not in the record, then, for appellate purposes, it did not happen. That is why it is so important to keep your trusty court reporter nearby.
- How to count 30 day notice and appeal courts of Virginia? Very carefully. The notice of appeal deadline is mandatory, and missing it will likely be fatal to your appeal. In terms of mechanics, you start counting on the day after the final order and keep going until you get to 30. But here's a handy shortcut: the "Go to Date" function in Microsoft Outlook counts days just like the Supreme Court does. So if you go into your Outlook calendar and tell it to go to a date 30 days after the date of your final judgment, it should take you to the date on which your notice of appeal is due. This is an easy way to double check your calculations.
- How do you say Alford plea? You'd be surprised how often we get this question. I don't know. I assume "Alford" sounds just the way it looks (AL-ferd), but there is apparently some dispute on that point.
This last question highlights one of my great fears about oral argument: mispronouncing a word in front of a room full of people. The best solution I've found is to look words up on the Merriam-Webster website, which has a neat function that allows you to hear how a word is pronounced. This occasionally leads to even more problems, because some words are just not pronounced the way they should be. For example,"gravamen" actually sounds like grav-VAY-men"--but you can't say it that way, at least not in this part of the state.
Speaking of proper pronunciation, a tricky word for appellate practitioners is "certiorari." The popular four-syllable pronunciation (ser-SHE-ror-ree) is technically wrong -- it should be five syllables (ser-SHE-oh-RARE-eye), and if you want to go old-school Latin, use a hard "c." This is vital to those Haiku-writing appellate lawyers out there.
I once asked Judge Kenneth Starr which pronunciation he favored, and he replied, "Whichever one the justice is using."
I try to go with "cert" whenever possible to mask my ignorance. "Err" is another one gives me fits. I am 85% sure that "air" is an acceptable alernate pronunciation these days. But if you say "air," the Bryan Garners of the world feel compelled to correct you and tell you that the word is pronounced "urr." If you say "urr," people worry that you're growling at them and/or you're some kind of haiku-writing appellate dweeb.