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

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.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In Howell v. Sobhan, the Supreme Court of Virginia clarifies the law of proximate cause and gives us a new opinion replete with appellate practice pointers.

The Case

The plaintiff, Esther Howell, went to a gastroenterologist for a colonoscopy. He found 3 polyps in her colon, but was only able to remove one. The gastroenterologist sent Howell in for a "probable subtotal colectomy"--yes, it's as bad as it sounds. Before surgery, the gastroenterologist determined that her polyp was benign.

Not that it mattered.

Howell's surgeon, Dr. Sobhan, removed almost all of her colon, reattaching it to her small intestine through an anastomosis. After she was discharged from the hospital, Howell developed a fistula, or leak, that was penetrating her abdomen and coming through her wound. While she was in the emergency room, the incision in her abdomen split open, and "the bowel contents came out" through her incision.

This led to two more surgeries, and ultimately a suit against Dr. Sobhan for removing too much of her colon and using inappropriate anastomosis techniques.

At trial, Howell produced two experts. Both testified that Dr. Sobhan breached the standard of care by removing too much of her large intestine.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.)

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

For years, the Supreme Court of Virginia has enforced Rule 5:25, its contemporaneous objection rule, with a rigor that has terrorized even the most careful appellants. But the Court recently handed down a gift to the folks in front of the "v" in Helms v. Manspile, 277 Va. 1, 671 S.E.2d 127 (2009), an opinion worth filing away in your appellate notebook.

Helms is the sort of adverse possession case that only a dirt lawyer could love. We'll skip the facts, which involve fences and decades of mowing grass. At the close of evidence, the circuit court told the parties to submit written memoranda that included their closing arguments. The Helms' memorandum argued, among other things, that they owned a disputed tract of land by adverse possession. The trial court disagreed, and entered an order ruling that they had not established their claim. The Helms' counsel signed the order as "seen."

The Helms appealed. The Manspiles argued that the Supreme Court should dismiss the appeal because they had not objected to the trial court's ruling.

Citing Code Section 8.01-384, the Supreme Court held that the Helms had preserved their adverse possession argument. That statute provides that objecting once is sufficient to preserve an issue for appeal. The Court explained that, once a party has stated an objection, it will waive it only where the record affirmatively shows that the party has abandoned the objection, either expressly or through its conduct. The Court found that the Helms' memorandum was "[c]learly" sufficient to preserve their right to appeal; the trial court was well aware of their arguments, which they neither withdrew nor waived.

The Court acknowledged Rule 5:25, but it held that Code Section 8.01-384(A) "is controlling over Rule 5:25, and we must apply the statutory provision."

Why this decision is important:

• Simply put, Helms makes it a little easier to appeal.
• It expressly states that Code Section 8.01-384 is controlling over Rule 5:25, and explains that, once stated, an objection will not be waived unless withdrawn or abandoned.
• It shows that simply endorsing an adverse order as "seen" is not enough to expressly waive an objection.

But before you rely too heavily on Helms:

• Note that the opinion does not discuss the Court's scarier preservation of error cases, such as Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d 555 (2004), which arguably make it necessary to object twice, at least in certain contexts.
• Why not head off the whole waiver argument by endorsing adverse orders more carefully? It does not take much effort to sign an order "seen and objected to for the reasons stated in the pleadings, memoranda, at on the record at oral argument," or to recite your objections on the face of the order. And it avoids risking an argument with some of the Court's procedural sticklers about whether you actually objected to the trial court's ruling but failed to make an exception (which Code Section 8.01-384 allows), or whether you mentioned an abstract principle of law but never actually objected to the ruling below. I've seen these discussions at writ arguments, and they aren't pretty.

• Email This
• Print
• Comments
• Trackbacks
• Share Link