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

On Friday, the Supreme Court of Virginia handed down 18 published opinions and two orders. As always, Steve Emmert has a witty write-up (along with a new photo on his web page--looking good, Steve). The VLW Blog also discusses some of the highlights. The bulk of January cases are either criminal appeals or habeas proceedings; I haven't done the math myself, but Emmert breaks it down to 15 criminal appeals/habeas proceedings and 5 civil matters.

As you might have noticed, I wasn't exactly on top of this breaking news--or much of anything else that happened over the past week, for that matter. Here's my excuse:

From January 8-14, I attended the the National Trial Advocacy College at the University of Virginia. It's off-topic, so I won't bore you with the details, but it was probably the best educational experience of my life. The faculty was spectacular, the exercises were demanding, and the feedback was brutally honest. Further, I got to spend a week with dozens of talented and motivated lawyers working to get better at their job. That was fun. It was also a neat reminder of how lucky we are to do what we do.

But it gets better. I capped that off with an oral argument before the Supreme Court on Friday. For obvious reasons, I can't discuss the case. But I really treasure the opportunities I get to argue before the Court. Oral argument is the reward for all of the hard work you put into briefing and preparing (although somehow, thinking of it that way doesn't make me any less nervous). Different people go to law school for different reasons. If you ask me, the coolest thing you can do with a JD is to have a conversation with the Commonwealth's highest court about what the law is (or should be), and help them get to a fair result that will justly govern future cases. It was a brilliant end to a perfect week.

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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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The Supreme Court has posted its November argument docket. The court will hear argument in 27 cases over five days. The 27 cases include

• 16 criminal cases;
• 11 civil cases;
• 2 cases in which Roanoke lawyers (not us) represent the appellee; and
• 1 case, Shapiro v. Younkin, argued pro se on both sides. Zoinks.

I'd originally had a civil case scheduled to be argued in November, but it was bumped. Any thoughts on the cases to watch now that I have a free week?

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On October 19th from 3:00-5:30 p.m., the VSB's Appellate Practice Committee will present a free appellate CLE at LeClair Ryan's Riverfront Plaza office in Richmond. The Committee's last CLE, or "symposium," was by all accounts a big hit. Justice (let's hope soon to be Judge) Keenan participated, and shared some sound observations and advice.

I expect the October 19 CLE to be every bit as good. My colleague, Monica Monday, is again running things. Monica is a wonderfully talented oral advocate, and she also puts on a good show. [DISCLAIMER: NOT ATTORNEY ADVERTISING. PAST RESULTS ARE NO INDICATION FUTURE PERFORMANCE.]

The CLE will include a mock writ argument, which should be instructive for all. And its timing is no accident. Not only is the VSB's mandatory CLE deadline creeping up on us, but the Supreme Court will be hearing writ arguments the following day. If you're scheduled to argue on the 20th anyway, the CLE will not only provide some timely tips--it will give you a good excuse to get to town early and meet some fellow members of the bar.

Finally, although the CLE is free, we do ask that you shoot Monica an email at monica_monday@gentrylocke.com if you are planning to attend. That way, she can keep a head count and make sure that the Committee accommodates all comers.

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The VLW Blog reports that Chief Justice Hassell was hospitalized recently with an infection and will not participate in the Supreme Court of Virginia’s oral argument session next week. The story is here. One of the Court's senior justices will likely sit in for him during his absence.

We wish the Chief a speedy recovery, and are glad to read that he is feeling better.

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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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The Supreme Court of Virginia has posted its September 2009 argument docket. The Court will hear argument in 31 cases. Here's the quick break down:

• 15 criminal cases;
• 9 civil cases;
• 5 State Corporation Commission cases;
• 1 original jurisdiction case; and
• 1 Judicial Inquiry and Review Commission case.

What are the arguments to watch this September? Let me know what you think.

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As a follow up to our earlier discussion about oral argument, here are some additional thoughts from around the web.

Eugene Volokh spent a few posts last week blogging on Mayer Brown's treatise on federal appellate practice, with items on oral argument here and here. These posts, and the comments they've generated, are worth your time. Two tips in particular get the De Novo (TM) seal of approval:

• Avoid dry mouth by popping a piece of hard candy while waiting your turn to argue (because water has unintended side effects); and
• When you have finished answering one judge's questions, signal closure by turning your gaze to one of her colleagues on the panel.

Volokh/Mayer Brown also offer this advice for dealing with a judge/justice who won't give up on a chain of questioning: "If, after several attempts to explain, the judge will not get off the issue, as a last resort, counsel can try 'I am sorry, your Honor, but I have given the best answer I have, which I hope the court will find satisfactory.'” If you're the appellant, you can also address this issue by explaining that you've given the best answer that you can, and offering to return to the point in rebuttal after checking the record/briefs/etc. Keeping in mind, of course, that the point of the entire oral argument exercise is to answer the Court's questions. 

Steve Emmert has a neat piece on oral argument, "What Not to Say." Caution: as the unofficial dean of the appellate bar, Mr. Emmert can get away with things that you cannot. But his advice here is solid.

Steve says that a good oral argument should be like a conversation. I'd be a little more specific: it should be like a conversation with a respected senior partner--one who knows more about the law than you do, but less about the facts of this particular case and/or specialized area of the law. (I think I stole that analogy from Scalia and Garner.) You wouldn't walk into a senior lawyer's office to read a prepared speech about the case you're working on, would you? No, you would not; if you did, he would know instantly that you are an idiot. Nor would you brush off his questions or tell him that you'll get to them "later." And you would probably make your presentation with the degree of deference and formality befitting an appellate oral argument. All in all, pretending that the Court can have you fired is a useful exercise.

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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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