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

Live Blogging the VBA Appellate Summit

Posted in Uncategorized

As I’m writing this, I’m attending the VBA’s Appellate Summit, a fantastic CLE that comes around every three years. This year, the appellate council made asked me to moderate a 50-minute panel about brief writing. They won’t make that mistake again! Thankfully, the outstanding–dare I say heroic?–contributions of panelists Judge Robert Humphreys, Don Jeffrey, and Elbert Lin saved the session from disaster (nothing could save it from my dad jokes). It turns out that a panel that good can moderate itself.

The day’s leadoff session was a real highlight, featuring an insightful discussion among Official Friend of De Novo (TM) Stuart Raphael, Chief Judge Roger Gregory of the Fourth Circuit, and Chief Judge Glen Huff of the Court of Appeals of Virginia. Here are some takeaways:

  • Chief Judge Huff appreciates a detailed table of contents. He does not appreciate hyperlinks in a table of contents. Chief Judge Huff reads cases and annotates cases in pdf, and hyperlinks complicate that process.
  • Chief Judge Gregory is funny! He had a great way of suggesting that lawyers home in on key points: “When you’re on your way to victory, don’t throw stones at every barking dog. You’ll get them on the way back home.”
  • Chief Judge Huff is not looking to be wowed when he reads a brief. He just wants concise, simple statements without spin.
  • Chief Judge Gregory, who writes plays in his spare time, is looking to be wowed. For him, the wow factor comes from story. He compared oral argument to a party, and he said that writing a brief is “writing to be invited to the party.”
  • Judges on the Fourth Circuit typically don’t discuss cases before oral argument.

Stuart closed with a great question: What do the Chief Judges know now that they wish they’d known when they were practitioners? Both pointed to the outcome-dispositive force of the standard of review.

And back to the CLE . . .

In Which the Author Goes Hunting and Very Nearly Catches a Woozle

Posted in Uncategorized

Over the weekend, Official Friend of De Novo(TM) Ross Guberman posted a challenge on Twitter: Who could come up with a fresh way to convey the idea that opposing counsel is on a fishing expedition?

This tweet yielded some fun responses, like “Plaintiff is on a snipe hunt” and “Plaintiff is running crab traps in a frog pond.”

Let me add my humble suggestion: “Plaintiff has very nearly caught a woozle.”

When I tweeted this line, I got some live feedback suggesting that it was too obscure. Wrong. Anyone who finds this obscure has no soul. Just consider what happens when we drop the line Gorsuch style:

Plaintiff has very nearly caught a woozle. That is to say, his own herculean efforts in discovery have convinced him of the rightness of his theory despite all evidence to the contrary. In A.A. Milne’s 1926 classic Winnie the Pooh, Pooh and Piglet track some footsteps through the snow around a spinney of trees. They suspect that they may be tracking a mythical beastie known as a “woozle.” As the hunters continue around the spinney, the number of tracks increase. They surmise that the woozles are gathering may have been joined by a wizzle. They also begin to wonder if their prey may have hostile intent, and Piglet grows worried enough to abandon the search. Just then they spot Pooh’s friend, Christopher Robin, sitting a tree. Christopher Robin points out that Pooh and Piglet have been walking in circles around the trees. Pooh belatedly realizes what has been going on: He and Piglet were just following their own tracks. “I have been Foolish and Deluded,” said he, “and I am a Bear of No Brain at All.” Indeed, no less an authority than Wikipedia recognizes “[t]he Woozle effect, also known as evidence by citation, or a woozle, [which] occurs when frequent citation of previous publications that lack evidence misleads individuals, groups, and the public into thinking or believing there is evidence, and nonfacts become urban myths and factoids.” So too here, the Plaintiff’s own spirited pursuit itself–not any underlying facts–has satisfied him of the truth of his position, blinding him to the obvious countervailing proof.

“Woozle hunt” is a 100% valid alternative to “fishing expedition.” Fight me.

Findlay is Not the Answer

Posted in Appellate Practice, Briefs

We spent last post complaining about the difficulty of landing an assignment of error in the Goldilocks Zone. When I bring this up in real life, the response is usually that the Court solved this problem with Findlay v. Commonwealth, 287 Va. 111, 752 S.E.2d 868 (2014) .

I disagree, for at least three reasons. But first, a little background: In Findlay, the defendant was convicted of possessing child pornography. He sought review in the Court of Appeals, asserting this assignment of error:

The Petitioner/Appellant assigns as error the trial court’s denial of his Motion to Suppress all of the seized videos that came from the defendant’s computer, and his computer hard drive, and all derivatives thereof.

The Court of Appeals held that this assignment was insufficient because it failed to list any specific error in the rulings below. It therefore dismissed Findlay’s appeal. The Supreme Court reversed 5-2, finding that this assignment was adequate. Justices Powell and McClanahan dissented. They would have required the petitioner to explain in his assignment of error why the trial court was mistaken.

So why doesn’t Findlay end the discussion about how specific an assignment of error needs to be? A few reasons.

1. Findlay will remain good law only so long as it commands a majority. Findlay was a 5-2 decision. Justice Mims wrote for a majority that included Chief Justice Kinser, then-Justice Lemons, Justice Millette, and Justice Goodwyn. Since then, Chief Justice Kinser has retired and Justice Millette has taken senior status. Their seats are now held by Justice McCullough and Justice Kelsey. My best guess is that if Findlay were decided today, it would come down 4-3  based on those changes in personnel alone–and that’s assuming that none of the remaining members of the majority have adopted a harder line on assignments of error in the past four years.

2. Findlay‘s reasoning is less than helpful. Though I like Findlay‘s result, I don’t love the way that the Court got there. The majority first reviews the relevant parts of Rule 5A(12)(c), which governs assignments of error in the Court of Appeals:

Under a heading entitled “Assignments of Error,” the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely. . . . An assignment of error which does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence, is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed.

It then  explains the purpose of this rule, as set out in the case law:

The purpose of assignments of error is to point out the errors with reasonable certainty in order to direct this court and opposing counsel to the points on which [the] appellant intends to ask a reversal of the judgment, and to limit discussion to these points. Without such assignments, [the] appellee would be unable to prepare an effective brief in opposition to the granting of an appeal, to determine the material portions of the record to designate for printing, to assure himself of the correctness of the record while it is in the clerk’s office, or to file, in civil cases, assignments of cross-error.

Thus, the appellant must “lay his finger on the error,” and not invite the appellate court “to delve into the record and winnow the chaff from the wheat.” Findlay’s assignment did this; it pointed to a specific ruling, and it didn’t just say that the result in the trial court was contrary to the law and the evidence. The Commonwealth’s attorney understood Findlay’s argument well enough to prepare a focused brief in opposition. The majority specifically rejected the dissent’s argument that an assignment of error has to explain why the trial court was mistaken, because in many cases that would be impossible. Sometimes, for example, the trial court will simply fail to explain its reasoning. The majority also noted that the Court had, in he past, reviewed assignments of error roughly as detailed as Findlay’s.

What’s wrong with that? A few things. First, as the dissent points out, the Rule doesn’t say that the petition shall list the erroneous ruling below. It says that the petition shall list “the specific errors in the ruling below.” This implies that the assignment needs to explain why the ruling below was mistaken. By its plain terms, that seems to favor the dissent’s reading over the majority’s.

Second, the case law’s explanation of an assignment of error’s purpose is nuts. As the Findlay Court points out, an assignment is supposed to identify the point on which the appellant seeks reversal and to limit discussion to that point, because otherwise the appellee would be unable to (1) prepare an effective brief, (2) designate an appendix, (3) confirm the correctness of the record, or (4) file an assignment of cross-error.

This makes little sense, at least against the backdrop of modern appellate practice. On points (1) and (2), a petition for appeal in the Court of Appeals can be 12,300 words long. Findlay’s assignment of error runs to 34 words. So nothing in the remaining 12,266 words in the petition could give the Commonwealth any clue what the appeal might be about, leaving it unable to prepare an appellate brief? That seems implausible, especially since the contemporaneous-objection rule creates a closed universe of possible appeal points: On appeal, we’re only allowed to argue about something that we raised with the trial court below. As to point (3), the correctness of the record  has nothing to do with assignments of error. The records is either correct, or it is not, irrespective of the appellant’s complaints about the trial court’s rulings. And on point (4), an appellee who was materially harmed by a mistake in the trial court should probably  assign cross-error.

To be clear, this is not meant as a criticism of the majority’s reasoning; Justice Mims was quoting from precedent, and he is bound by stare decisis. He still managed to get the majority to a fair and reasonable result. It’s not his fault that the case law on this point leaves something to be desired.

3. The Court can always tweak the rules. Findlay interprets the Rule 5A:12. Even if a majority of justices does not drift away from the ruling itself, the Court could still tweak the text of Rules 5A:12 and 5:17 to ratchet down assignments of error. Article VI, Section 5 of the Constitution of Virginia empowers the Supreme Court of Virginia to make rules governing appeals and civil procedure. Code § 8.01-3 also addresses the Court’s rule-making authority.

Binding Assignments of Error

Posted in Uncategorized

Binding assignments of error are a disaster, which is probably why Virginia is one of only eight states that still require them.*

By way of background, Rule 5:17(c)(1) requires that

Under a heading entitled “Assignments of Error,” the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely, or the specific existing case law that should be overturned, extended, modified, or reversed. An exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken shall be included with each assignment of error.

The case law amplifies this rule, teaching us that an appellant must use the assignment of error to “lay his finger on the error” in the ruling below; it’s not enough to simply say that the judgment was contrary to the law or the evidence.

The penalty for an insufficient assignment of error is dismissal. And the Court does in fact terminate appeals for problems with assignments of error–sometimes because the assignments of error are too general, and sometimes because they’re too narrow. The advocate’s challenge is to find what my pal Steve Emmert calls “The Goldilocks Zone,” where the assignment is specific enough to be viable, but not so narrow as to hamper review.

This is easier said than done, particularly since you face the death penalty for getting it wrong. And not all the justices view these standards the same way.

Case in point: The Court granted three petitions for appeal in the past week. This implies that, for each appeal, at least two justices on the panel of three (or four) justices (and senior justices) that heard each writ argument felt that the assignments were appropriate.

So let’s take a look at this week’s assignments.

The first case, Cuff v. Commonwealth, turns on one assignment of error:

The Court of Appeals erred in finding Cuff’s guilty pleas were not coerced, where his trial attorney admitted he threatened to withdraw from Cuff’s case if Cuff did not accept the Commonwealth’s plea agreement.

The second case, Meade v. Bank of America, N.A., asserts two:

1. The Circuit Court of Chesterfield County, Virginia (“the trial court”) erred in its order entered on May 1, 2017 sustaining the pleas in bar filed by appellees Bank of America, N.A.
(“Bank of America”) and Carrington Mortgage Services, LLC (“Carrington Mortgage”) holding that the complaint filed by the appellant Mary Harris Meade (“Meade”) seeking rescission of a foreclosure and foreclosure deed of her home (“the home”) located at 2541 Grassy Knoll Lane, North Chesterfield, Virginia 23236 was barred by the five year statute of limitations of Va. Code Ann. Section 8.01-246(2); and ordering dismissal with prejudice of Meade’s complaint, in which she pled Bank of America breached a prohibition against acceleration of the note and foreclosure under the deed of trust absent compliance with a face-to-face FHA regulatory requirement incorporated into the note and deed of trust. The May 1, 2017 order was based on the trial court’s holding that Meade’s cause of action accrued when Bank of America first failed to comply with the FHA face-to-face regulatory requirement (“the face-to-face regulation”) and that, on that basis, her complaint was filed past expiration of the aforesaid five-year statute of limitations. This was error because Meade had no cause of action when Bank of America first failed to comply with the FHA face-to-face regulatory requirement because there is no private right of action for breach of an FHA regulation. Meade’s cause of action first accrued upon acceleration of the note in breach of prohibitions against acceleration in the face-to-face regulation incorporated into the note and deed of trust and upon foreclosure of the home in breach of prohibition against foreclosure in the deed of trust absent compliance with the face-to-face regulation. Because the foreclosure occurred on March 13, 2014, less than five years before Meade’s complaint filed on December 7, 2016 and because there was no evidence of the date of
Bank of America’s acceleration of the note, the trial court erred in ruling that the statute of limitations had expired before Meade filed suit and erred in ordering dismissal with prejudice of her complaint.

2. The trial court erred in its final order entered on November 20, 2017 reaffirming the trial court’s May 1, 2017 order granting the pleas in bar of Bank of America and Carrington and
dismissing with prejudice Meade’s complaint as against all parties on grounds that the complaint was filed after expiration of the five-year statute of limitations in Va. Code Ann. Section 8.01- 246(2). This was error because no cause of action averred in the complaint accrued on breach of the FHA face-to-face regulatory requirement, rather the accrual of any cause of action on behalf of Meade involved in her complaint did not first accrue until the lender first accelerated the note, and foreclosure on the home and there was no evidence as to the date of acceleration and the foreclosure occurred on March 13, 2014, less than five years before the complaint filed December 7, 2016.

And the third, Gordon v. Kiser, blitzes us with these:

1. The Wise Court erred in not granting my motion for a nonsuit of this case.
2. The Wise Court erred in not stating at least one reason for not granting me a nonsuit of this case.
3. The Wise Court erred in not holding a hearing on my motion for a nonsuit of this case as I requested.
4. The Wise Court erred in finding that my Complaint failed to state a claim for injunctive relief.

. . .  still going . . .

5. The Wise Court erred in finding that Article I, § 1 of the Constitution of Virginia does not entitle me to safe dental treatment as a matter of right.
6. The Wise Court erred in finding my Complaint is frivolous.
7. The Wise Court erred in not following Tolbert v. Stevenson, 635 F.3d 646, 649 (4th Cir. 2011), when assessing strikes against me for cases dismissed only in part for failure to state
8. The Wise Court erred in not granting me time in which to file a declaration in opposition to Defendants’ demurrer and motion to dismiss.

. . . we’re not done yet . . .

9. The Wise Court erred in assessing strikes against me for cases dismissed upon grant of summary judgment.
10. The Wise Court erred in imposing overly broad sanctions on me that encompasses non in forma pauperis filed cases.
11. The Wise Court erred in imposing sanctions on me pursuant to Va. Code § 8.01-271.1.

Today’s cases, in short, offer widely varying interpretations of Rule 5:17(c). It remains to be seen which interpretation(s) get(s) the blessing of a majority of the justices.

To be clear, I’m not posting these assignments to fault any of them (or the lawyers who wrote them). Far from it: Cuff may stand out as Goldilocks in this set, but if you asked me whether, say, each assignment in Gordon identified the specific errors in the rulings below to the satisfaction of four justices, or if the assignments in Meade were clear and concise and without extraneous argument, I couldn’t tell you with any certainty. I don’t know. I can also imagine a situation where the assignment from Cuff backfires. And in all candor, I’ve gotten these calls wrong myself in the past.

Now compare this mess with the questions presented that you find in SCOTUS briefs, which are generally elegant, persuasive, and focused. SCOTUS Rule 14(1)(A) requires petitioners to identify questions presented for review, and assures them that “any question presented is deemed to comprise every subsidiary question fairly included therein.”

A similar assurance in the Rules of the Supreme Court of Virginia could assuage a lot of concerns.

And before you @me with Findlay v. Commonwealth, 287 Va. 111 (2014), we’ll use the next post to discuss why that case is not as instructive as people think.


* The other seven offenders are Louisiana, Nebraska, Ohio, Oklahoma, Oregon, Washington, and West Virginia.

Letters from Camp

Posted in Briefs, Uncategorized, Writing

So we decided to send Jack to sleepover camp this year. You remember Jack, right?

Well, he’ a little older now. This is the first year that he’s eligible for camp, and he’s really been looking forward to it. We’ve been sending him letters every day, and we include the sports section from the local paper so he can keep up with the World Cup.

On Friday, about a week after dropping him off, we received his first letter:

Now, that letter might strike you as a little whiney (with a slight undercurrent of seething rage). Maybe you’re annoyed that I even made you read it in the first place. But you know what? It didn’t bother me when I read it for three reasons.

First, I know Jack pretty well, so I was prepared for something like this. He is, shall we say, an enthusiastic rule follower. When we watch soccer games, Jack doesn’t cheer for a team. He cheers for the referee.

Second, I love Jack unconditionally. So there’s that.

Third, I read and write legal briefs for a living. I’m used to bellyaching. Jack’s letter is maybe the third bitchiest thing I’ve read this week. Maybe.

Which raises the question: Is complaining effective advocacy? Probably not; your judges certainly don’t think of you like I think of Jack, and even he’s not making many friends in this post. (Which is more than a little unfair to him. Jack is a cool little guy.)

I’m not alone in this opinion. Ross Guberman surveyed a bunch of judges, and they gave him a list of terms that annoyed them:

  1. disingenuous
  2. clearly wrong
  3. baseless
  4. specious
  5. without merit
  6. frivolous
  7. unfortunately for [the other side]
  8. sanctionable

Get the little man a thesaurus, and some of these show up in Jack’s letter.

Although I will admit I was surprised to see “without merit” on the list–it strikes me as pretty anodyne. A quick Lexis search said that the (very civil) Supreme Court of Virginia has used the phrase “without merit” in 1,465 opinions, and “disingenuous” in 19. When I asked Ross about this, he suggested that the objection has less to do with tone, and more to do with tedium.

That’s fair. The phrase can get old. Imagine if your life was spent reading that things lack merit 20 times a day.

As a service to the judiciary, then, here are some other ways to say “without merit;”

  • wrong
  • mistaken
  • incorrect
  • inaccurate
  • not so
  • nope
  • unlikely
  • implausible
  • off-target
  • off-base
  • faulty
  • flawed
  • illogical
  • non sequitur
  • imprecise
  • fallacious
  • argle-bargle
  • balderdash
  • horsefeathers
  • a bit of a stretch
  • wide of the mark

And, of course, the classic:



Legal Technology Update from VTLA Annual Convention

Posted in Uncategorized

I was lucky enough to spend the weekend in lovely Williamsburg, Virginia, home to this year’s VTLA annual convention. The highlights of the convention included (1) Justice Mims’s interview of Anne Marie Slaughter, (2) Anne Marie Slaughter’s brother‘s interview of Chief Justice Lemons, and (3) Kenneth Polite‘s talk on the power of the legal profession. All were full of moments poignant and profound.

Are we going to share any of them?

You know that we are not.

Let’s consider instead an anecdote that the Chief Justice shared. In the course of explaining that the Court used videoconferencing to connect justices who are dispersed across the state, he noted that he once had to deal with a justice who refused to use email. The Chief reported that he won that battle. Being a gracious sort, when he received the other justice’s first email, he called to congratulate him.

The justice was taken aback: “Oh my God–it got there that fast?”

Indeed it did, the Chief assured him.

“You must have one of these things on your end?”


“Does yours have a cupholder?”

This one threw the Chief Justice.

The other justice continued: “It’s just like my Lexus. You push a button and it slides out. I had to use the big coffee cup, though, because the small one doesn’t fit.”

And then it dawned on the Chief. “XXXXXX, please tell me that you’re not using the DVD drive as a cupholder.”

“Oh, is that what that’s for?”

We are in good hands.

Writing with Style(s)

Posted in Briefs

True story: Last year, I had to spend one of the warm-weather Monday holidays working on a brief that was due the following Tuesday. (I can’t remember if it was Memorial or Labor Day, but that doesn’t matter to the story.)

I spent the weekend revising and polishing the brief.

Then I remembered about the Table of Contents and Table of Authorities.

In our office, the tables traditionally presented a labor-intensive slog. My assistant would scroll through the brief on her first monitor, cutting-and-pasting headings and citations into a separate document on her second monitor. The human error inherent in that process, coupled with my penchant for last-minute revisions, made this quite an ordeal.

But this time, I had no assistant. She was out of the office until Tuesday, like any sane person on a holiday weekend.  And I didn’t have the time to manually prepare the tables myself. Things were looking dire, There was really only one thing to do:

I drafted/begged/pleaded with/cajoled Carrie to come in on Labor Day to handle the tables while I finalized the rest of the brief.*

So without getting into the details, let’s just say spousal secretarial labor under deadline on a holiday weekend is not a recipe for domestic bliss. It is, in fact, a bad idea. A bad, bad idea that must never be repeated. (Although Carrie did do a great job with the tables).

By now, tech-savvy readers are either yelling at their screens or they have checked out entirely.

That’s because Word will do all of this for you. Joe Rainsbury patiently explained this to me over lunch, while trying not to laugh. If you draft your brief using Styles:

  1. You can easily make global formatting changes;
  2. Word will automatically generate an outline of your document to facilitate navigation;
  3. Word will automatically generate a Table of Contents;
  4. With a little bit of effort, Word will generate a Table of Authorities;
  5. You can design a cover that looks better than the one your printer uses; and
  6. You can save your document as a template to streamline future projects.

I’m sure that there are other benefits as well, but these were the most obvious to me. (And, again, I know that none of this is new. At least half of you know this already. But it’s a hugely powerful tool, and I suspect that there are Word users out there every bit as ignorant as I am.)

Is it hard to learn how to use Styles? No, it is not. Deborah Savadra has put together an amazing tutorial at Lawyerist. (See screenshot above.) It’s brilliant. Even I could follow it. It’s probably going to be assigned reading for our Federal Litigation class this spring. Technologically inept as I am, there were only two points in the whole piece where I could have used a little clarification:

  • When you are marking citations for your Table of Authorities, the long citation is the one that appears in the automatically generated table; and
  • After the new updates to Word 2016, to create a template you “Save a Copy” as a .dotx file.

But that’s it. The piece if remarkably well done.

If you are new to Styles, you can just follow along with Savadra’s tutorial the next time you write a brief. If I can do this, you can do this. And you should; it will make your life easier. Heck, it may even save your marriage.


*Or Memorial Day? Whatever.

I Wrote a Thing

Posted in Uncategorized

Always keep your Law Hammer handy when writing words.

Hard as it may be to believe, I was actually writing stuff during the downtime between posts. People who ought to know better were kind enough to publish two of my articles:

You can read them if you’re bored.

United States v. Carthorne: The Standard of Review (and Good Lawyering) Decide Cases

Posted in Opinions and Analysis, Standards of Review

This is how we’re drawing a standard of review today.

United States v. Carthorne is one of my favorite recent opinions. It turns on whether the standard for showing plain error is the same as the standard for proving ineffective assistance of counsel. That’s a perfectly nerdly and compelling question in its own right, but it’s not why I like the opinion. Carthorne is a winner for me for two reasons. First, it shows that brilliant lawyering on appeal can (sometimes) redeem dreadful lawyering in the trial court. And second, it reinforces one of our favorite mantras around here: the standard of review decides cases.

Here’s the story: Our hero, Jolon Carthorne, pleaded guilty to illegally possessing drugs and a firearm. His probation officer recommended that he be designated a “career offender” under the Sentencing Guidelines based on two prior convictions. One of those convictions was for assault and battery of a police officer under Virginia law. The probation officer concluded that this qualified as a crime of violence under the Sentencing Guidelines.

Carthone’s trial lawyer did not object to the career-offender designation. The district court sentenced Carthorne to 300 months’ imprisonment. Without the career-offender designation, his Sentencing Guidelines range would have been between 181 and 211 months’ imprisonment.

In other words, the career-offender designation cost Carthorne an additional seven-to-ten-years’ imprisonment

Carthorne appealed, arguing that assault and batter of a police officer was not, in fact, a crime of violence under the Sentencing Guidelines. The Fourth Circuit reviewed his claim for plain error because Carthorne hadn’t raised the argument below. It held that Carthorne was right: Assault and battery of a police officer doesn’t qualify as a crime of violence under the Sentencing Guidelines. But it also held that the district court did not plainly err because existing precedent didn’t compel that conclusion. At the time of the district court’s opinion, the circuits were actually split on the question. So the Fourth Circuit affirmed the judgment.

That’s the force–and the subtlety–of plain-error review: The district court was wrong, but it wasn’t plainly wrong.

Carthorne then asked the district court to vacate his sentence under 28 U.S.C. § 2255 for ineffective assistance of counsel because his trial lawyer hadn’t objected to the career-offender designation. The magistrate judge concluded that Carthorne’s lawyer was sufficiently effective “essentially for the same reasons that the Fourth Circuit found no plain (i.e., obvious) error on direct appeal.”  The district court adopted the magistrate judge’s recommendation and denied the motion.

Carthorne appealed, arguing that the district court had confused two distinct standards of review. The Fourth Circuit agreed, concluding that “the plain error and ineffective assistance of counsel standards do not necessarily generate identical outcomes with respect to the same alleged error.”

A few points here. First, the Fourth Circuit gives us a nice treatment of plain-error review:

If counsel fails to raise a contemporaneous objection to a potential issue or error, the authority of an appellate court to remedy that problem is “strictly circumscribed.” Puckett, 556 U.S. at 134. A litigant failing to object to an error generally forfeits his claim to relief on account of that error. Id. at 134–35. Federal Rule of Criminal Procedure 52(b) recognizes only a limited exception to this rule of forfeiture, allowing appellate courts to review “a plain error that affects substantial rights.” See also Puckett, 556 U.S. at 135; United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004) (noting plain error relief is “difficult to get, as it should be”). The plain error standard therefore reflects the view that the primary responsibility for protecting a defendant’s interests at trial lies with his attorney, not with the court.

An error can be “plain” only on the basis of settled law. See Carthorne I, 726 F.3d at 516 & n.14 (noting that error is plain “if the settled law of the Supreme Court or this circuit establishes that an error has occurred” or if other circuits are unanimous on the point (citation omitted)). When neither the Supreme Court nor this Court has addressed a legal issue directly and a circuit split exists, “a district court does not commit plain error by following the reasoning of another circuit.” United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012); Carthorne I, 726 F.3d at 516–17 (holding that the absence of binding precedent in conjunction with disagreement among circuits prevented us from finding plain error). Moreover, the determination whether an error is plain is made at the time of review by an appellate court, not at the time that the error is committed. Henderson v. United States, 568 U.S. 266, 279 (2013).

Second, the court’s refusal to hyphenate phrasal adjectives would never fly on #appellatetwitter. Never.

Third, this case is really making me question my Rule Against Acronyms. Lord, am I getting tired of typing “ineffective assistance of counsel” and “assault and battery of a police officer.”

But I digress.

The Carthone court contrasted plain-error review with a claim for ineffective assistance of counsel, which requires a showing that counsel’s performance fell below an objective standard of reasonableness. While both standards require a showing of prejudice, their specific inquiries diverge. Among other things, plain-error review requires settled precedent before a defendant is granted relief, while the ineffective-assistance standard may demand that a lawyer raise material issues even without decisive precedent. The inquiries also differ in their chronological focus: Ineffective assistance is judged in light of the time of the allegedly deficient performance, while plain error applies authority existing at the time of appellate review.

After distinguishing the two standards, the Fourth Circuit concluded that Carthorne’s trial counsel was indeed ineffective. Eliding the gory details, it held that “counsel’s failure to demonstrate a grasp of the relevant legal standards, to conduct basic legal research relating to those standards, and to object to the sentencing enhancement (even though there was a strong basis for objection), taken collectively, constituted deficient performance.” It vacated the district court’s judgment and remanded for resentencing. That is a fantastic result.

Fun footnote: Carthone’s lawyer on appeal was one Katherine Mims Crocker. Longtime readers will wonder: Might this be the person who gave Justice Mims his famous nickname? Further research is needed. Ms. Crocker had help on brief from Ben Hatch, pipeline defender and gentleman of Harvard. Click on the links to their bios sometime when you want to feel bad about your life choices.

VLW Drops the Ball on 10 Steps for Oral Argument Prep

Posted in Oral Argument

Have you seen this week’s Virginia Lawyer’s WeeklyFirst page, above the fold, is an article called “10 Steps for Preparing for an Appellate Argument” by Dawn Solowey, a tall-building lawyer from Boston. As longtime readers know that I’m a sucker for these articles.

Unfortunately, this one is an exception. It’s bad–preposterously bad, really, given the subject matter. And “bad” is a charitable description. We’re talking New York Jets bad. The Dark Tower trailer bad. Season 4 Sandsnakes bad.

It is, in short, the Jurgen Klinsmann of the appellate-advice genre.

Let’s start by unpacking the list. Here are the 10 steps:

  1. Review the briefs for what’s in them–and what’s not.
  2. Research the panel.
  3. Read your judges’ other opinions.
  4. Update your research.
  5. Read the key cases and have them at your fingertips.
  6. Prepare a longer-form outline.
  7. Prepare a list of “must-make” points.
  8. Anticipate the hardest questions.
  9. Get to know your clerk.
  10. Put yourself in the judges’ shoes.

The article elaborates on each point, but not in the depth that you’d expect.

First observation: This list leaves out moot courts and argument blocks, which are literally the two most helpful things that you can do to prepare for an oral argument. (The discussion of Step 8 does close with “Consider holding a ‘moot court’ with colleagues to practice answering difficult questions on your feet.” That’s not good enough. Yes, by all means, if you would like to win, consider mooting your argument. And you don’t do it get time on your feet. It’s a little late for that. You hold a moot court to get different perspectives, hear different questions, and sharpen your answers.)

Of those steps actually included on the list, Step 10: Put yourself in the judges’ shoes is the most important. The whole point of oral argument is to help the judges get to the correct result, and to do that you have to see things from their perspective. Everything else flows from this. It’s such a crucial part of the process that it’s worth starting your prep by sitting down a making a list called “Things That Will Bother a Judge About This Case.” How on earth is this Step 10?

Step 1: Review the briefs for what’s in them–and what’s not. Meh. I agree that it’s useful to study the briefs and to critically assess each side’s strengths and weaknesses. I disagree that you should “[t]ake detailed notes as you review the briefs, and use them to develop themes and an outline for oral argument.” Relying too heavily on your brief is a mistake. A brief is a written position statement. An oral argument is a conversation with some thoughtful men and women in robes. Though the two exercises share the same goal, they are necessarily and fundamentally different in terms of structure, emphasis, and even sometimes theme.

Steps 2 and 3 almost boil down to internet-stalking your panel and tailoring your presentation to them. That’s exactly why the Fourth Circuit doesn’t announce its panels before the day of argument. The Supreme Court of Virginia doesn’t tell you who will be on your writ panel before he day of argument, either. So from the outset, this is deeply weird advice to be giving Virginia practitioners. But even if these two steps were actionable in real life, I’m still not sure that they would be good idesa. Instead of trying to game the panel, aren’t you better off having a big-picture view of the judges and focusing your argument on the substance?  I know that I’m happier going into an argument knowing my case and finding out on the day that my panel is made up of “Talky Originalist,” “Quiet Normalguy,” and “Funny Lady Murder Question,” for example, than being able to tell you in advance that, say, both Clinton and Bush appointed Chief Judge Gregory, who will be on my panel, or that panelist Chief Justice Lemons once spoke to Mick Jagger on the phone. (Okay, I lied. That last one makes me really happy. But you get the point.)

Also, trying to pitch your argument to the panel can backfire. Solowey recommends considering “whether there is language or a theme from a prior opinion of one or more of the judges that might make sense to highlight at argument.” But if that language or theme wasn’t highlighted until now and you’re using it primarily (or exclusively?) because of who wrote it, this could come off as gross pandering.

Step 4: Update your research. Well, yeah. You should update your research.  If you need someone to tell you that, maybe appeals aren’t going to be your thing.

Step 5: Read the key cases and have them at your fingertips. Ditto. 

Step 6: Prepare a longer form outline. I mean, I guess? Can’t hurt, might help. Oh, wait–it can hurt, because the last thing in the world that you want to do is to read an outline, even to a cold bench. So maybe Step 6 is not the absolute best use of your time.

Step 7: Prepare a list of must-make points. Absolutely. This should be a bit higher up the list, no? And wouldn’t these points be an order of magnitude or two more useful if they were arranged as argument blocks–with case/JA cites and snippets of key language from them? And wouldn’t it be even more helpful if we devoted one page to the affirmative points that you need to make and another to your counters to the Bad Guy’s best points, so you could see both at once in a helpful graphical layout?

Or, you know, you could make a list.

Step 8: Anticipate the hardest questions. Or anticipate all of the questions that you’re likely to face, and work on some razor-sharp answers to them that work back to one or more of your main themes. This, again, is part of the utility of a moot court.

Step 9: Get to know your clerk. No. Wrong. This is not a step in oral argument prep.

Worse, consider some of the pressing questions that Solowey suggests that you pose to the clerk: “How long will each side have for argument? If you are the appellant, can you reserve rebuttal time?” If you don’t know the answers to these and similar questions, you really ought to consider associating competent local appellate counsel.

This list is just depressing. Here are some better ideas about preparing for oral argument. Perhaps one day I will summon the energy to present them in listicle form.