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

We're back with the second in our series of guest posts from recent Supreme Court of Virginia clerk and avid water skier Tommy Strelka. Today, Tommy shares some more things that his clerkship taught him about brief writing:

• Ditch the hyperbole. Your appeal from your client’s sixth conviction of shoplifting probably does not amount to “a case of extreme jurisprudential and meritorious weight.” Don’t oversell. You will lose credibility.
• Use the correct number of assignments of error. A petition for appeal with forty-five assignments of error is either a petition for appeal from a death penalty sentence or it is a poorly written brief. Most cases on appeal have only a handful of truly relevant and contested issues of law. You can obscure the main thrust of your argument by addressing far too many issues.
• Craft your assignments of error with care. You define the scope of your client’s appeal. When you submit an assignment of error or question presented, you are effectively setting the bounds of your argument. But be sure not to paint yourself in a corner. Every word matters in an assignment of error. Ask yourself, “What is the real legal issue at the heart of my case?” Boil it down to a single statement and write it down. If you knew nothing about this case and another attorney read this statement, would that attorney still understand the argument of law?

I'm enjoying Tommy's guest posts, and I hope that you are as well. Clerks have the ear of justices, and they are a primary audience for our briefs. It helps to know what they find persuasive and annoying.

Also, I like the goofy pictures he comes up with.

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Welcome to De Novo's inaugural guest post. Today, Tommy Strelka shares a few things that he learned during a recent clerkship with the Supreme Court of Virginia. This will be the first of several visits from Mr. Strelka, who has promised to provide us no fewer than ten--TEN!--tips.

Tommy is currently a trial lawyer at Strickland, Diviney & Strelka in Roanoke. A Mary Washington and Richmond Law grad, he's also clerked for Judge Turk in the Western District of Virginia. The opinions and practice tips expressed in this post are solely those of the author. They do not represent the opinions of any member of the Supreme Court of Virginia or any other Court--or, for that matter, any right-thinking person.

And now, a word from Thomas:

Clerking for a Justice of the Supreme Court of Virginia was a wonderful experience that opened my eyes to appellate practice. One of my favorite aspects of the job was the knowledge that many of the attorneys who filed briefs and argued before the Court were bringing their A-game. While skill, raw talent, and experience levels varied greatly, most attorneys stepped up to the plate and gave it their best shot. That best shot might have been an incredibly polished and persuasive brief or it might have been the world’s greatest thirty-second rebuttal. But no matter what form their work product manifested, the good attorneys always oozed preparedness. With that tenet in mind, I have compiled a list of traits or practices used by the attorneys who I felt, knocked it out of the park.

On Brief

• Acknowledge Weaknesses. In their quest for appellate justice, some attorneys spend a great deal of time waving their banners and thumping their chests. They will proudly file a brief that is far too one-sided. Even the best arguments have holes. If an attorney consistently pronounces the strengths of his or her argument while glossing over the weak points, her brief can come across as disingenuous and uninformed. That brief does not reflect the case, only a few facets of it. Leave the one-sided claims to the folks in advertising. Better briefs illuminate the entire case by spotlighting the argument’s weak points while simultaneously explaining how these points are not nearly as detrimental as the current case law would have the Court believe. The best briefs do this while acknowledging and attacking the arguments of the opposing party. 

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As you've probably gathered by now, my job isn't exactly rocket science. I read some pleadings, read some transcripts, read some statutes, read some cases, and then shout an argument into a dictaphone to be transcribed in 14-point type. In between, I drink lots of coffee.

My colleagues who do "real work" here at the Firm on the Move (TM) sometimes give me a hard time about this. But there are legitimate differences between trial and appellate practice, and the two disciplines require different approaches.

A trial judge is trying to get to the right result in one specific case. He will get there by making fact findings and excluding all of your good evidence discretionary rulings. Over the lifespan of a case, trial lawyers will have numerous opportunities to present their theory of the case to the court. Further, trial courts are bound by precedent; for them, the law is pretty much set. Accordingly, legal argument in a trial court will proceed by analogy, applying and distinguishing existing cases, usually on the facts. Trial judges want to hear about the facts and fairness. They want to know what the law is, not what it should be. And they don't set policy

Appellate courts set policy:

The Wise Latina has a point. Appellate courts don't just decide cases one at time; because their decisions are binding on courts and panels of coordinate or lower jurisdiction, they have to formulate rules of law that will work fairly going forward. And at least in theory, they have little room to work with the facts. By the time your case goes up on appeal, the facts are settled. Depending on the result below, the standard of review will essentially dictate that one side or the other will win the fact arguments. A key appellate practice skill is accepting those facts, and working with or around them.

Finally, and perhaps most importantly, a lawyer has a very limited opportunity to convince an appellate judge of her theory of the case. Appellate briefs are subject to strict word and page limits, and oral argument time is strictly limited. Every word counts.

So what does that mean for a practitioner?

• Know your audience, and tailor your presentation accordingly;
• Argue facts and fairness in trial court;
• Argue law and policy in appellate courts;
• Remember that you have very little time to make your point to an appellate court, so every word counts.

 Enough of that. Time for a coffee break.

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

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

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

So how does Curmudgeon prepare for an argument?

He drafts four outlines:

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

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

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

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

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

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

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

More after the jump . . .

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No substantive post at De Novo yet this week because I am lazy I did a piece for Guest Post Friday over at Chris Hill's blog, Construction Law Musings. Check it out for an appellate lawyer's thoughts on construction cases.

On Monday, Steve Emmert lamented the departure (or hibernation) of some of his favorite appellate blogs. We are happy to report that De Novo has been going strong since this summer, meaning that it has passed the dreaded four-month mark. Our business plan proceeds apace. Phase two: ? Phase three: profit.

Finally, I would like to do a post on the Francis v. Giacomelli, the new opinion in which the Fourth Circuit clarifies the Twiqbal pleading standard. (Hat tip to Emmert.) Really, really would. But the World Cup draw starts at noon. And that only comes around every four years. So, um, yeah . . . did I mention that post over at Musings?

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A few weeks back, we wrote about appealing evidentiary rulings. That post generated a pretty obvious follow-up question: What do you do when your (clearly correct) objection is overruled, and the bad guys are allowed to introduce their (wildly improper) evidence?

The problem may be most starkly presented when you file a motion in limine, stating a detailed legal objection to harmful evidence, and the judge overrules it. Now what? The other side will present their evidence. Do you cross examine them on it? Can you introduce your own rebuttal evidence? Or will you waive your original objection by doing so, forever forfeiting your right to raise the issue on appeal?

The answer will depend on the specific facts of the case, but--with the help of the World's Busiest Associate, Mike Finney--we've put together a few general principles that should provide some guidance:

1. Play the percentages. The best thing you can do to help your chances of winning on appeal is to win at trial--especially if the only appeal in your case is a discretionary one to the Supreme Court of Virginia. Very roughly speaking, the Supreme Court grants about 1 in 5 petitions for appeal, and reverses in about 1/2 of the appeals it takes. Let those numbers guide your strategic decisions. They show that it will rarely make sense to risk losing your case to win your appeal.
2. You only have to object once. Va. Code Section 8.01-384(A) obviates the need for repeated objections. See Drinkard-Nuckols v. Andrews, 269 Va. 93, 102-03, 606 S.E.2d 813, 818-19 (2005) (“[P]rovisions of Code 8.01 § 384(A) obviate the need for repeated objections after having made an objection or motion known to the trial court . . . .”). Make your objection once, clearly, on the record. And before you come close to touching the objectionable evidence on cross examination or your case in chief, gently remind the Court (on the record and outside of the presence of the jury) why you are doing so. That will help you with the next step:
3. Avoid waiver. This is where it gets tricky. You will waive your objection to evidence if, after it is admitted, you introduce the same evidence yourself. Southern Ry. Co. v. Blanford, 105 Va. 373, 387, 54 S.E. 1, 6 (1906). Put slightly differently, if a party “’unsuccessfully objects to evidence which he considers improper and then on his own behalf introduces evidence of the same character, he thereby waives his objection.” Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970). There are, however, limitations to this waiver rule. An objecting party may “elicit[] evidence of the same character either during cross-examination of a witness or in rebuttal testimony.” Drinkard-Nuckols, 269 Va. at 102, 606 S.E.2d at 818. In addition, to constitute waiver, “the subject matter of the evidence at issue [must] be the same as the subject matter of the evidence to which an objection was made.” Id. at 102, 606 S.E.2d at 818 (citing Pettus v. Gottfried, 269 Va. 69, 606 S.E.2d 819 (2005)). 
4. Object to jury instructions (and, if necessary, move to set aside the verdict). Just to be on the safe side, formally object to any jury instruction regarding the parties’ alleged oral contract. And if--God forbid--the jury should return an adverse verdict, move for both a new trial and for the court to set aside the jury’s verdict on this ground. See Spitzli v. Minson, 231 Va. 12, 341 S.E.2d 170 (1986) (“[W]hen defendant failed to object to the instruction submitting the entire case to the jury, and failed to move the court to set aside the verdict and grant a new trial, she waived her right to assign error . . . .”) (quoting Hilton v. Fayen, 196 Va. 860, 867, 86 S.E.2d 40, 43-44 (1955)).

That, in a nutshell, is an appellate lawyer's perspective on what to do with an adverse evidentiary ruling. The takeaway from all of this: it's really just a lot easier to win your motion in limine in the first place.

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Over the years, I've come up with a few heuristics to quickly gauge the strength of an opponent's case. An obvious one is body language. A little further down the list is ease or difficulty in getting opposing counsel on the phone or into court--generally, the harder it is to track opposing counsel down, the easier your case will be.

But my absolute favorite is the level of civility in opposing counsel's briefing (and, to a lesser extent, argument). The Colonel and I did a piece on civility earlier this year, in which we interviewed a number of judges and justices. The Robes uniformly told us that uncivil or personal argument does not work, and some of them even take it as a sign of weakness in the underlying argument. In other words, needless bluster either dilutes your argument (which is bad) or affirmatively signals its weakness to the court (which is worse).

My unscientific study over the twelve months or so since those interviews bears this out.Civility of tone and strength of legal argument are strongly correlated. In hindsight, that shouldn't be surprising. As Judge Weckstein told us, he assumes that if a lawyer has the goods, he'll go with the goods instead of resorting to invective. I am fast adopting his worldview. It's gotten to the point now where I am pleasantly surprised when I open a brief to find an adverb-laden account of why my arguments are a desperate, disingenuous 11th-hour attempt to divert the Court's attention from the fatal defect in my client's case. That means that I'm winning.

Effective lawyers gain credibility with the court by providing useful information in a manner that is helpful and respectful of the court's time. That means carefully organized briefs without

• personal attacks,
• needless (ad)verbiage,
• string cites for uncontroversial propositions, and
• overly clever word choices and rhetorical flourishes.

It's the tight, well-structured brief that gives me pause these days. And when I can tell that my opponent was writing with a smile on his or her face, I really start to get worried.

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We blogged a few weeks ago about the VSB's free appellate CLE on October 19th in Richmond. Monica tells me that the CLE has reached capacity, and is now turning away registrants. For those lucky enough to get in, the program promises to be a treat. It will open with an hour-long discussion of effective oral advocacy in Virginia's appellate courts. Next, Senior Justice Lacy will present the judicial perspective on oral argument, and the CLE will close with a mock oral argument.

If you didn't sign up in time, you're in good company. I won't be able to make it, either, being once again tied up at my day job. I'll do my best to provide a useful second-hand write up, although I will be in trial most of next week.

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As every trial lawyer knows, judges are human. They will, from time to time, make mistakes. Often those mistakes will manifest themselves as mistaken evidentiary rulings. The judge may exclude a piece of evidence that should have come in, or allow the jury to hear something that it shouldn't.

Given the volume of evidentiary issues in the course of a normal trial--and the correspondingly vast potential for error--it's important for both trial and appellate counsel to be comfortable with the process of appealing evidentiary rulings. Thankfully, we don't need to reinvent the wheel; James Harris has written a fine article on the subject called "Appealing Evidence."

Here are some of his observations:

1. Preserve the record.

Every appeal starts in the trial court. It is trial counsel's obligation to make a record that will allow her client to succeed on appeal. This means giving the trial court a fair opportunity to rule intelligently on the evidentiary issue. If you are opposing a piece of evidence, object contemporaneously to its admission; if it is admitted, move to strike it from the record. And mention the specific basis of your objection. You don't have to give a dissertation on the origins of the hearsay rule, but a simple "Objection, hearsay" may prove quite helpful down the road.

On the flip side, if you are the proponent of a piece of evidence that is wrongfully excluded, object to the exclusion and make a proffer.

And in each case, get a ruling. You must give the appellate court something to work with, or your appeal may well be over before it begins. 

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The Supreme Court of Virginia's recent treatment of assignments of error has been inconsistent, and that makes life difficult for appellants and appellees alike.

Background: Supreme Court's Crackdown on Assignments of Error Alarms Appellate Practitioners

For the past year or so, the Supreme Court of Virginia has been getting increasingly demanding in its treatement to assignments of error. Steve Emmert contributed an excellent essay on this topic last summer. He pointed out a few specific instances in which the Court had found assignments of error lacking:

• At oral argument on June 4, 2008, the Chief Justice interrupted an AAG and asked her how her assignment of error was sufficient. The assignment read, essentially, “The trial court erred in excluding the expert testimony of [the Commonwealth's expert].”
• On June 10, 2008, the Court entered an order dismissing an appeal for an insufficient assignment of error in a legal malpractice case. The assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.”

This was troubling. Virginia case law has long required an appellant "lay his finger" on an error by pointing out the exact legal ruling he was challenging. That was the standard, and these lawyers seemed to have their fingers in the right place.

Worse, the second assignment of error was almost identical to one granted in 2006, which read: "The trial court erred in granting the defendant’s motion for summary judgment."

Emmert notes that the news alarmed--even stunned--experienced appellate practitioners, himself included. He determined that the best advice for appellants, which he attributed to an unnamed justice, was to include the word "because" in your assignments of error.

Emmert's observations match our experience here at the Firm on the Move (TM). For example, we represented the appellees in a recent case where one of the assignments of error cited an evidentiary issue, then stated that the trial court had erred by overruling the appellants' motion on that "and other grounds." The Supreme Court reached the merits of the evidentiary issue, but ruled as to the other grounds that it would not address such a general and unspecific assertion of error."

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The Court of Appeals of Virginia welcomes us back from summer vacation with a discussion of questions presented that will keep appellate specialists up at night in Carroll v. Commonwealth.

Facts

In 2007, Carroll was charged with raping his stepdaughter twenty-four years earlier. Carroll had initially been charged in 1983, but the case was nolle prossed--only to be reopened later, as the result of a separate rape allegation involving Carroll's sister. In 1984, the government destroyed specimens and other evidence obtained from a physical examination of the victim.

Despite the Commonwealth's evidentiary difficulties, Carroll entered an Alford plea. This allowed him to maintain his innocence while acknowledging that the Commonwealth had enough evidence to convict him. 

Carroll entered into a plea agreement with the Commonwealth, under which he did not admit that he committed the rape and, to the contrary, expressly claimed his innocence. The plea agreement provided that Carroll would satisfy the conditions of his probation, which included that he maintain good behavior, have no contact with the victim, and pay court costs. If he did so, his sentence would be continued while he was on probation, and upon satisfying probation, the government would ask the court to vacate his conviction and accept instead a guilty plea of assault and battery. The agreement included an integration clause: "I understand that the judge will not enforce any agreement not written down here." The plea agreement made no mention of sex-offender treatment.

The trial court accepted Carroll's plea and continued the case for 5 years. One of the conditions of the trial court's order was that Carroll would comply with all rules and requirements set by his probation officer.

Carroll's probation officer mandated that he attend sex-offender treatment, which required him to accept responsibility for his actions. Carroll refused, and was discharged from the program. The trial court issued a bench warrant. At the resulting hearing, Carroll argued that he had not violated his probation because the trial court had accepted his Alford plea. The trial court disagreed. It found that Carroll had violated his probation and convicted him of rape. It sentenced him to 5 years in prison, all suspended.

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William & Mary alum and Supreme Court Justice Lee Millette put in a star turn this afternoon at the Roanoke Bar Association's monthly meeting. In fairness, he had some pretty strong material to work with, having presided over the trials of John Wayne Bobbitt and John Allen Muhammad, among others, before joining the high court.

In addition to war stories, Justice Millette shared some insight about the inner workings of the Supreme Court:

• It's All Cyclical. The Court's year operates cyclically, with each cycle keyed to the week during which the Court hears oral argument. For example, the Supreme Court will hear oral argument next week. In preparation, the individual justices received "big bankers boxes full of" the briefs and the appendices for those cases in July. In August, an individual justice was randomly assigned responsibility for each case. Next week, the Court will hear argument in those cases each morning. In the afternoon, the justices will meet to decide the cases. They will literally sit around a table and address the cases serially, with each having an opportunity to offer an opinion as to how each case should be decided and, more specifically, how the opinion should be written. (In this regard, the Supreme Court differs from the Court of Appeals.) Having reached its decisions, the Court will draft and circulate opinions for comment; the justice assigned responsibility for a case typically will author the opinion. The Court will then will then issue final opinions on the Friday of the following session--in this case, November 6.
• Oral Argument Counts. Justice Millette indicated that something less than 80-90% of cases are decided on the basis of the briefs, although he did not give an exact figure. This suggests that oral argument matters in at least 1 out of 4 cases. When I spoke to him after the speech, he reiterated that he is a strong believer in oral argument.
• Answer the Questions. In that vein, Justice Millette stressed that, when a lawyer is asked a question at oral argument, he or she must answer it. This is true even if the Court is asking for a concession. If it does not receive a responsive answer, the Court will return to the issue. 
• A Bit of Comfort. Justice Millette explained that--perhaps in contrast to certain other appellate courts--the Supreme Court of Virginia does not set out to embarrass lawyers, and generally will not pick on a lawyer who is having a rough argument. He cited one case last year in which Justice Koontz cautioned his colleagues against picking on a lawyer who was clearly having a bad day. But if lawyers are to be treated respectfully, they need to return the favor. The Supreme Court is a formal court, and its justices are not to be referred to as "you guys," called by the wrong names, etc.
• Clarity is Key. With respect to briefs, Justice Millette referred to Chief Justice Roberts' recent comments at the Fourth Circuit Judicial Conference. He stressed the need for clarity in briefing. He cautioned that length does not necessarily translate into clarity.
• And Length Counts. Justice Millette noted that, when he picks up a brief, he flips to the last page to check its length. As another justice once pointed out, "Page limits are not goals."

Look for write up from Virginia Lawyer's Weekly in the near future--I sat at a table with Peter Vieth, and he seemed to be taking pretty good notes.

Update: You can link to the VLW Blog piece here.
 

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Here is something so enormously cool that I had to share it: a piece from the latest issue of the Harvard Journal of Law and Gender called "Remarks Commemorating Celebration 55: The Women's Leadership Summit."

Catchy title, I know, but bear with me. Celebration 55 was an alumnae event at Harvard Law School last fall, which celebrated the 55th anniversary of the school's first graduating class to include women. The remarks I've linked to include a conversation between Justice Ruth Bader Ginsburg ('56-'58) and then-Dean Elena Kagan ('86).

It's hard to wrap your head around the idea. At the time of the conversation, HLS had a 55-year record of graduating women. That's not a long time. It dates back to slightly before the Mad Men era.

Flash-forward to 2008, when you have this nice conversation between two of those graduates: the women's-rights hero turned Supreme Court Justice (and cancer survivor), and the school's blindingly effective Dean--who was soon to be appointed Solicitor General, and is currently a leading candidate to join Justice Ginsburg on the High Court's bench. That's, um, a lot of ground to make up in a half century. Score one for meritocracy.

The substance of the commentary itself is great. It really gives you a sense of just how tough and determined Justice Ginsburg is. That glass ceiling never had a chance. Without giving away any spoilers, the article's got:

• The story of Belva Ann Lockwood, the first woman to be admitted to the Bar of the SCOTUS, as well as the first woman to argue a case before the Court--and Justice Ginsburg's memento of one of the obstacles Lockwood faced;
• Justice Ginsburg's thoughts on her role on the Court and the proper use of foreign opinions;
• The absurd reason why she graduated with a law degree from Columbia, not Harvard. (Nice call, Dean Griswold); and
• At least one misspelling of the Justice's name (d'oh!).

The piece seems particularly timely, given the recent speculation about Justice Stevens--and the current gender breakdown on the High Court. I obviously got a kick out of it, and I hope you enjoy it as well.

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Apologies for the delay since my last post. I was tied up in trial for part of last week, and recovering for the rest of it. I was so busy, in fact, that I almost missed this post from the Volokh Conspiracy about Newman v. Commonwealth, 2009 Va. App. LEXIS 360, 2009 WL 2431289 (Va. Ct. App. Aug. 11, 2009).

Newman deals with a "satirical" question presented. It's as bad as it sounds. The actual question presented reads: 

Is it a violation of the Establishment Clause of the First Amendment to the Constitution of the United States when the manufacturer of the equipment used to test breath in driving under the influence cases refuses to divulge to any state or Federal agency, to any court, to any defendant, to any prosecutor or to any trier of fact the information programmed into the equipment and which controls the operation of and the results obtained from the equipment[?] Is it a further violation of law that the Commonwealth requires the courts, the prosecution, the defense and the triers of fact to take on faith alone that the information programmed into these machines is correct?

Crickets. The appellant had to defend this QP before a panel consisting of Chief Judge Felton and Judges Frank and Petty. One gathers that the argument did not go well:

At oral argument, appellant's counsel informed the Court that appellant's "question presented" concerning the Establishment Clause of the First Amendment to the United States Constitution was "satirical" in nature. Rule 3.1 of the Rules of Pro-fessional Conduct states, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."

For good measure, the Court explains that because "appellant's 'questions presented,' enumerated 1 through 5 in her opening brief and listed immediately below, fail to allege any trial court error, we will not consider them on appeal. See Rules 5A:12(c), 5A:20."

And we're still in the introduction. At least the opinion was unpublished.

A few lessons that we can draw from Newman:

1. The question presented/assignment of error is the most important part of your brief. Treat it that way. You should spend more time on this than any other part of the brief, because it can win or lose the whole appeal. And your QP/AE absolutely must explain what the trial court did wrong. I've found two approaches helpful in making sure that it does so. One is to set up your QP/AE as a short (< 75 word) syllogism, with a major premise (legal rule), minor premise (key facts), and a conclusion. Another is to write your QP/AE as the topic sentence of the opinion that you would like to receive: "The trial court erred by x because y."
2. Lawyers are not funny. Really. We're not even close. On the O'Keeffe scale of things that are terribly unfunny, lawyers fall somewhere between toxic mold and Norbit. And appeals are particularly serious. Newman, after all, was a criminal case, and one the defendant had lost below. Humor has no place whatsoever in an appellate brief or argument. Whenever I try to make this point, someone invariably brings up the story that Ted Olson said something funny in oral argument once. Two points in response. First, he's Ted Olson. Second, here's the joke he supposedly told: One of the justices prodded him to answer a question, saying something like, "It's an easy question, counselor." To which he responded: "I know, Your Honor. It's the answer that's difficult." There it is: the high-water mark of appellate humor.

Finally, although it's a little off-topic, I had a chance to grab a beer this weekend with my law-school classmate, the (urban) legendary Tom Cotton. Tom--Mr. Cotton to those of us in Section 1--was back from tours in Iraq and Afghanistan, and is finishing up his time on active duty. Congratulations, Tom, and thank you for your service. 

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My colleague and sometime coauthor, Travis Graham, is an eccentric civil procedure genius and all-around good guy. Among his other hobbies, Travis collects popular misconceptions of the law. He recently told me about a new urban legend making the rounds: the Nusbaum motion. As I understand it, there is a perception brewing in some corners of the bar that you need to file a dedicated pleading in order to protect against procedural default in the wake of Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007).

I have no idea whether this is true. (I've been burned before.) I hope that it's not--or if it is true, that people are just talking about a motion to reconsider. Barring extraordinary circumstances, there's no need to file a separate pleading to secure a ruling and avoid the Nusbaum waiver scenario.

Nusbaum is a fun case. Factually, it's pretty straightforward. Here, Buzz Aldrin re-enacts the pivotal event in the case:  

Buzz took some dramatic license there, but not much. In Nusbaum, the plaintiff's lawyer bumped or shoved opposing counsel in court, before the jury. The trial court immediately declared a mistrial and assessed costs against the plaintiffs.

A procedural nightmare ensued, as the parties debated sanctions for months. For our limited purposes, it is enough to note that Nusbaum failed to raise certain objections contemporaneously. He moved to reconsider, but told the judge that he was not asking the court to change its ruling. By doing so, he waived his argument for appeal.

Here's what you need to know about Nusbaum:

1. It's a waiver case. At bottom, Nusbaum is a waiver case. If you file a motion to reconsider to preserve a point for appeal, but then tell the trial judge that you don't actually want her to reconsider her ruling, you have not preserved your argument. You have waived it. Nothing groundbreaking here. That's because...
2. You always need to get a ruling on your objections. This is true, has always been true, and always will be true. The trial court is entitled to a fair opportunity to rule intelligently on your objections. Otherwise, you will not have anything to appeal. Therefore, you should bject during the proceeding, and later list your key objections on the face of the court's order. You might even consider adding language to the order itself, acknowledging and ruling on the parties' respective objections. If necessary, file a motion to reconsider. But unless something goes horribly wrong, you should not need to move the court to rule on your motions or avoid a waiver. 
3. Don't go overboard noting objections or doing things "for the record." The best thing you can do for your prospects on appeal is to win in the trial court. Do what's necessary in order to preserve error, but don't lose the case trying to win the appeal. And while we're on the subject, you should probably delete the phrase "for the record" from your trial vocabulary altogether. It's a lawyerism. Real people don't talk that way, unless they're being pretentious and/or trying to sound like lawyers. Beginning an argument with "for the record" can even suggest that you are just going through the motions to preserve an argument. That is not effective advocacy--and as Nusbaum shows, it may not be effective preservation of error.
4. It's better with Buzz. Frankly, I like the case better when it has Buzz Aldrin punching jerks in the face. (Thanks to my friend, Jerry, for pointing out the clip and sharing his insights, which have informed this post.)

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By all accounts, the Virginia State Bar's recent appellate symposium on oral argument was a big hit. Unfortunately, I wasn't able to attend--I was tied up at my day job, posing as a mild-mannered commercial litigator--but I've heard from folks who made the trip that Justice Keenan's talk was one of the highlights. Here are some of the key points that (I'm told) she made:

• During oral argument at the Supreme Court of Virginia, about half of the questions from the bench are designed to influence another justice.
• Oral argument changes the outcome of cases about 10% of the time.
• When asked, Justice Keenan disagreed with the statement that you can lose a case at oral argument, but you cannot win it. 
• Counsel's credibility is very important.
• Justice Keenan will prepare questions in advance for oral argument.
• In preparing for oral argument, Justice Keenan will read the briefs several times. If she is writing the opinion, she may read the briefs up to 10 times.
• She reads thousands of pages of briefs and appendices each term.

Because we are allotted so little time for oral argument, this sort of inside perspective is priceless. It allows us as practitioners to maximize our effectiveness by tailoring our approach to our audience.

What can we learn from Justice Keenan's presentation? Here are at least 5 points:

1. Prepare, prepare, prepare. And then prepare some more. If the Justices are reading the briefs ten times, you should as well. You need to know the law and the record cold.
2. Oral argument matters. It can change the outcome in one out of ten cases, and not only in a bad way. Don't phone it in. You still have a chance to affect the result in a positive way for your client.
3. But the briefs matter more. As Frank Friedman puts it, oral argument is fleeting, but the briefs linger. Justice Keenan spends a massive amount of time with the briefs, and reads thousands of pages a term. Assuming that she's remotely representative of her colleagues, we can derive two lessons from this. First, craft your briefs carefully, because they will be studied. And second, cut the unnecessary verbiage and weak arguments. Put yourself in the position of someone who has to read thousands of pages of legal writing. Wouldn't you appreciate focus, brevity, and clarity? And on the flip side, wouldn't you find repetitive or specious argument infuriating? (Related point: for Pete's sake, quit it with the needless appendix designations--the Court has the whole record.)
4. And reputation may matter still more than that. Take it from someone who heard it from someone who heard it from a Justice: credibility counts. Make a baseless or misleading argument today, and the Court will see you coming tomorrow.
5. Recognize the friendly question. As intimidating as it is on the bench--and is intimidating--the Court is trying to find the right legal answer to the question presented. Getting there is a collaborative process. You are part of that process. Sure, that last question might seem like a hardball. But in reality, it might be a lifeline--one Justice handing you your last and best chance to answer a colleague's legitimate concern. Take that chance. Don't dodge the question. Answer it directly, and swing for the fences.

Finally, many thanks to Justice Keenan for taking time out of her schedule to help educate the bar and improve the quality of appellate advocacy in Virginia. We wish her the best of luck with her confirmation. 

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Word on the street is that about thirty people, including Justice Keenan, have signed up for the oral argument symposium this Monday at the courthouse in Alexandria. Monica Monday is organizing it; I am sure that she will do a wonderful job. Contact her at monica_monday@gentrylocke.com if you are interested. Registration is required.

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Appellate texts and practice guides recite solemn homilies about the importance of the standard of review (and with good reason--but that's another post). We are told that that standard of review defines the strength of the lens through which the appellate court will review the lower court's decisions. Our standard of review should not be cut-and-pasted boilerplate, we are cautioned, but should be carefully crafted and woven throughout our argument.

Well, okay. But what does that mean? Let's say I'm an appellant. I've decided that I'd like to have the court use a microscope rather than a telescope. Now what?

The first step is understanding the basic framework. At the risk of gross oversimplification, here are the basic standards of review you might encounter in state court, in declining order of deference.

• Legal error: The appellate court undertakes de novo or plenary review, giving no deference to the trial court. This is a fresh look--and for the appellant, a fresh start.
• Abuse of discretion: Most decisions about how a trial is run (e.g., questions about the admission of evidence) are committed to the trial court's discretion. The appellate court will set them aside only if the trial court abused that discretion.
• Factual error: The trial court generally gets the last word on questions of fact. Its findings will be set aside only if plainly wrong or without evidentiary support. Va. Code Section 8.01-680.
• Area-specific standard: Some areas of law, like local government law or administrative law, have area specific standards like "fairly debatable." I'm not a specialist and will get myself in trouble if I try to explain them, but they tend to be awfully stringent.

These are the ground rules of appellate review. You can think of them as a ladder.

The appellant always wants to climb the ladder. She wants to be talking to the court about legal error--in no small part because the appellate court, by nature, also wants to talk about law. A clever appellant  will select her appeal points and frame her assignments of error accordingly. She will use the standard of review section of her brief as an advocacy tool.

For instance, an appellant challenging an evidentiary ruling may have to concede that an abuse of discretion standard applies--but she will remind the appellate court that an error of law is always an abuse of discretion. Then she can step up the ladder to talk about the trial court's legal mistakes. Similarly, to sidestep a bad fact finding, an appellant might challenge the trial court's application of the law to the facts. "Application of law" sounds like something a court might review de novo. (That's not entirely settled, but it's still better than challenging a fact finding.) Again, the appellant will try to pull herself up the ladder.

The appellant has a relative advantage: she gets to pick the assignments of error. The appellee has to play on her turf.

At the same time, the appellee will work to slide down the ladder. For instance, he may take every opportunity to show the court that the appellee is re-arguing questions of fact that were determined below. An appellee arguing an evidentiary point might remind the court that the appellant challenges questions committed to the trial court's discretion--that is, areas where either answer may be acceptable.

The appellee has his own advantage here: it is generally easier to slide down the ladder than it is to climb it. The appellate court will look to decide an issue on the narrowest possible ground, and a stringent standard of review will let it do so.

How does this work out in practice? Take a look at Gray v. Rhoads, 268 Va. 81, 597 S.E.2d 93 (2004), for an example.

George Somerville has put together an excellent outline on standards of review. It has helped to clarify my thinking on the topic, and has undoubtedly informed this post.

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The State Bar's Appellate Practice Committee has scheduled a free CLE for July 13th at 3:00-5:00 p.m. at the courthouse in Alexandria. The CLE will focus on oral argument and include an illustrative moot court. The timing is pretty convenient, because the Supreme Court will be hearing writ arguments in Alexandria the following day. And the price is right.

On the downside, the CLE is called a "symposium." I find that weirdly intimidating. Also, my toga is at the cleaners.

That said, I attended one of the group's CLEs last year. It was excellent. I would expect no less here--especially since my colleague, Monica Monday (a very experienced oralist in her own right) is organizing the event. Contact her at monica_monday@gentrylocke.com if you are interested. Registration is required.

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