Gemini tells me that in the last year, SCOTUS has granted summary reversal in seven cases:
Five of these were from circuit opinions, and three were from the Fourth Circuit.
Judge Gregory wrote the majority opinion in each of those cases, in each case over a dissent (from Judges Richardson, Niemeyer, and Quattlebaum, respectively).
From time to time, we appellate lawyers may find ourselves in the position of arguing from someone else’s brief. Now, to be clear: The brief itself may be effective. It may even be good. But it’s not ours. Every lawyer has their own style. As Brother Emmert can attest, I take a maximalist approach to these things. For example, I like to cover as much as possible in the briefs, for any number of strategic reasons. I tend to anticipate and rebut arguments that I think the other side might raise. I also favor bright colors, shrieking italics, and lots of pictures. If appellate lawyers were movie directors, I’d be downright Tarantinoid.
Most briefs (probably to their credit) are not that.
To prep to argue from someone else’s brief, you have to recreate the record review and legal research that would have gone into writing the thing in the first place. So it takes a bit longer than usual (which, depending on billing arrangements, can be bad or worse). All that is fair enough, I guess, but then, once you figure out how you want to present the arguments, you have to go back and make sure that you can fairly tie them to the brief to avoid bad-brief waiver and recriminations. All in all, this can be a heavy lift.
But then you get to the argument itself. Now, one of the benefits of a maximalist brief is that it tees up a minimalist oral argument: Having said all that you want in the briefing, if the court seems to get your argument, you can just sit down. And you should sit down! But what if you haven’t had a chance to say everything you want, like setting up and knocking down the steel-man version of the other side’s argument? God forbid a clever clerk comes along with a strong argument for the other side that you haven’t had a chance to address. In the interest of completeness, you may find yourself arguing against yourself at the podium, so you can then go back and argue for yourself. Your client wonders, not without reason, if you have lost your mind. And the judges gaze at you quizzically, wondering why you can’t take yes for an answer. You become tedious. None of this is ideal.
Does this mean that I won’t argue someone else’s brief? Not exactly, but I’ll definitely factor in the degree of difficulty and strong potential for embarrassment.
In Mary Washington Healthcare v. Costello, the CAV holds that a trial court certifying an issue for interlocutory appeal does not have to explicitly make the four-part finding laid out in Code § 8.01-675.5.
Code § 8.01-675.5, you will recall, requires that a would-be appellant ask the court to certify in writing that an order meets four qualifications. Within 15 days of entry of a written order granting such certification, the appellant may file a petition for appeal:
The motion shall include a concise analysis of the statutes, rules, or cases believed to be determinative of the issues and request that the court certify in writing that the order or decree involves a question of law as to which (i) there is substantial ground for difference of opinion; (ii) there is no clear, controlling precedent on point in the decisions of the Supreme Court of Virginia or the Court of Appeals of Virginia; (iii) determination of the issues will be dispositive of a material aspect of the proceeding currently pending before the court; and (iv) it is in the parties’ best interest to seek an interlocutory appeal. If the request for certification is opposed by any party, the parties may brief the motion in accordance with the Rules of Supreme Court of Virginia.
Within 15 days of the entry of an order by the circuit court granting such certification, a petition for appeal may be filed with the Court of Appeals. …
Here, the trial court’s order said, “Based on the arguments, authorities, and representations of counsel, the [m]otion to [c]erify [for interlocutory appeal] is GRANTED and, pursuant to [Code] § 8.01-675.5, the [c]ourt CERTIFIES for interlocutory appeal [p]art I [of the plea in bar order]. The transcript of the hearing on the [m]otion to [c]ertify is incorporated by reference into this order.” Despite the incorporation of a transcript, none was ever filed.
The CAV found that this language was enough to satisfy Code § 8.01-675.5, and that a transcript was unnecessary because “the order suffices.”
This holding is notable because it departs from federal practice, where simply citing the interlocutory-appeal statute does not meet the certification requirement under 28 U.S.C. 1292. Hewitt v. Joyce Beverages of Wisc., 721 F.2d 625, 627 (7th Cir. 1983). Instead, the court “should state the reasons that warrant appeal as a guide to the court of appeals.” 16 Fed. Prac. & Proc. Juris. § 3929 (3d ed.). “Merely stating that the ruling is certified ‘pursuant to section 1292(b)’ may imply that the district court concluded an interlocutory appeal was appropriate, but standing alone, it does not clearly demonstrate an actual belief that the specific statutory requirements were satisfied.” Hewitt, 721 F.2d at 627.
The Court of Appeals handed down its ruling in the latest episode in the ongoing Galiotos saga earlier this week. I can’t really improve on the summary that the panel provides in its introduction:
These five appeals arise from a longstanding dispute among three brothers—Stavros (“Steve”), Paul, and Tasos Galiotos—over the division of business assets held in trusts for which the brothers are both co-trustees and equal beneficiaries. In Galiotos v. Galiotos, 83 Va. App. 206 (2024) (Nos. 0068-24-1 & 0077-24-1), we affirmed the chancellor’s final order that (i) required a pro-rata distribution of each asset and (ii) rejected a proposal by Steve and Paul for a non-pro-rata distribution that the chancellor found unfair to Tasos. To stay execution of the judgment pending appeal, the chancellor required security of $1 million and imposed conditions to protect the parties’ interests and the trust assets that Steve and Paul continued to manage as majority co-trustees.
After Steve posted the $1 million security, however, Paul insisted that he was not bound by the stay conditions because he was not asking for the judgment to be stayed as to him. The trial court issued an order to clarify that the stay conditions applied to all three brothers. Paul appeals that ruling, arguing that the trial court lost jurisdiction to extend the stay conditions to him. The trial court subsequently entered four contempt orders against Paul for continuing to disobey the stay conditions. Paul separately appealed each of those contempt orders.
We find appellate jurisdiction lacking in two of the appeals but affirm the judgments in the other three. In doing so, we make clear that Rule 1:1B(a)(3) gives trial courts concurrent jurisdiction with the appellate court to address the conditions for a stay pending appeal. We clarify that Code § 8.01-676.1(E) requires a party aggrieved by a trial court’s stay-pending-appeal ruling to seek review of that ruling before the appellate panel hearing the appeal, rather than by filing an independent appeal, as Paul tried to do here. And we clarify the rules for determining when a contempt order is appealable.
The whole opinion is worth reading, but it has a few points of particular interest for appellate lawyers.
First, the opinion explains concurrent jurisdiction under Rule 1:1B and stays pending appeal. Reviews of stay/security decision must be sought in the pending appeal, not a new one.
Second, the opinion address five appeals. The motions panel had earlier denied Tasos’s motion to dismiss one of them for lack of appellate jurisdiction. But the merits panel vacated that decision and dismissed the claims for lack of jurisdiction. So filing a motion to dismiss maybe got Tasos a second bite at the apple? File that away for later.
Third, the court denies counsel’s motion to withdraw as counsel in four of the five appeals:
Three weeks before oral argument, two of Paul’s three lawyers moved to withdraw as counsel in four of the five cases on appeal, Record Nos. 1953-24-1, 1661-24-1, 0124-25-1, and 0370-25-1. No motion to withdraw was filed in Record No. 1045-24-1, in which Paul’s counsel less than two weeks earlier had completed supplemental briefing requested by the panel on whether we have jurisdiction over the appeal. The motion to withdraw in the four cases in which it was filed alleged that Paul “has failed to meet his contractual obligations to [his lawyers] and there has been a significant breakdown in communication over the past several months.” The motion to withdraw omitted reference to a third lawyer from the same firm who has also entered an appearance in each of the appeals. Given the considerable judicial resources already invested in evaluating these five appeals, the fact that the withdrawal motion was filed in only four of the five appeals, the imminence of oral argument, and the obvious prejudice to Paul if all of his lawyers withdrew without substitute counsel’s entering an appearance (assuming the motions are construed to mean that all of his lawyers seek withdrawal in each of the five appeals), we denied the motion to withdraw in the four appeals in which it was filed.
If you find yourself needing to withdraw close to argument, keep these factors—late timing, uneven coverage across the five appeals, substantial judicial resources already invested, and the risk of prejudice—in mind.
I’ve been experimenting with using ChatGPT to prep for oral argument. I always do the thinking myself first, putting together my silly lists, outlines, and tough questions. But then I’ve been using AI to backstop or refine my work. It’s pretty good!
Here’s the basic process: First, I tell the client what I’m planning to do and why, and I get their consent. Second, I create a project and upload the briefs, the key cases, and maybe parts of the record. Third, I write a pretty detailed prompt explaining what I’m trying to accomplish (e..g,, “I am counsel for the appellant, and I am preparing for oral argument …”). Generally, and this is just me, I like appellate output in the voice of Elena Kagan, John Roberts, our Paul Clement–both because they’re good, and they seem to have a sufficient corpus of work for the AI to play with. I haven’t tried Elizabeth Prelogar yet.
Then I ask it questions along the following lines (these are not the actual prompts, but the general topics; no sense spelling out the actual prompts, because the AI would love to help you optimize them):
Obviously, the answer is going to vary by case.But as a default, I’ve settled on four minutes. Here’s why:
Every appellate CLE stresses the importance of reviewing the record as soon as possible, particularly if you are the appellant. This is especially important in state court because (1) you run up against deadlines quickly once the record lands in CAV, and (2) PACER works, but OCRA . . . kinda works sometimes?
And at every appellate CLE, this leads to the question: What do I do if a document is missing from the record?
Real life answer: Call the CAV clerk’s office, explain the situation, and stand back. CAV will call the trial court clerk’s office. The lower court clerk will submit an amended record, which the parties and CAV will use, and life will be good. See Va. Sup. Ct. R. 5:15(a).
Formal legal answer: File a petition for a writ of certiorari under Code Section 8.01-673.
This explanation typically leads to confused looks and deep questions about why big-boy SCOTUS uses cert petitions to exercise discretionary review of intermediate appellate court errors, while SCOVA uses cert petitions to plug holes in the record.
SCOVA’s recent opinion in Eckard v. Commonwealth sheds some light on these imponderables. Eckard is basically a juror misconduct case with documents missing from the record that went up to CAV–namely, a written proffer and the Commonwealth’s objection. Eckard discussed the proffer in his principal brief in CAV, even supplying a record cite (R. 294, in case you were wondering). Because this is a missing-documents case, of course, there was no proffer at R. 294. The Commonwealth politely–ever so politely–pointed this out. Eckard declined to file a reply brief. The panel asked about the whole kerfuffle at oral argument, but Eckard didn’t have great answers. CAV predictably affirmed the trial court in an unpublished order, refusing to consider the missing proffer.
Eckard then petitioned for appeal to SCOVA. Again, he referenced the written proffer, again citing R. 294. SCOVA granted the petition, and Eckard filed a petition for writ of certiorari to add the written proffer and the Commonwealth’s objections to the record.* The Commonwealth objected under Rule 5:15(a), which says that the record on appeal from CAV “consists of the record as filed in the office of the clerk of” CAV, along with all other documents filed with the clerk.
SCOVA decided that it could not consider the proffer and the Commonwealth’s objections to it. Rule 5:15(a) explains that the record on appeal to SCOVA is the record from CAV, which did not include these documents. The court stressed Eckard’s “exclusive duty” to make sure that the record was sufficient to review any alleged error.
The court was not inclined to enlarge the record by granting Eckard’s cert petition. It explained that “Code § 8.01-673(A) codifies an ancient writ issued by common-law courts.” (Why yes, Justice Kelsey did write this opinion, why do you ask?) Certiorari is an “extraordinary remedy” that historically applied to all manner of defects in lower court cases where the procedure did not accord with common law. “At common law when not ancillary to other process, certiorari is in the nature of a writ of error. It has the same functions to inferior tribunals whose proceedings are not according to the course of common law as the writ of error has to common-law courts.” That said, modern Virginia practice uses the writ only to secure a complete record.
The court characterized Rule 5:15’s statement about the record as “descriptive,” explaining that if it “has any prescriptive effect, it governs only the litigants and by implication forbids them from unilaterally adding anything to the appellate record so defined.” It does not limit an appellate court’s common-law power to issue a writ of certiorari. That said, nothing in the common law or the statute requires the appellant to issue the writ. SCOVA thus declined to do so, explaining that there was “no defect in the justice administered” by CAV: “The judges of that court cannot be faulted for not considering documents never presented to them.” if there was any error in the CAV proceeding, SCOVA concluded, it was Eckard’s.
*These documents were part of an amended trial court record that was transmitted to SCOVA the day before Eckard filed his cert petition. This suggests that Eckard called at least one of the clerk’s offices (SCOVA or trial court), and got them to “fix” the problem. The trouble is that the fix came too late, because the document wasn’t part of the CAV record–either formally, under Rule 5:15, or in real life. So he couldn’t fault the CAV panel for not reviewing it. The short cut of calling the clerk’s office works only if you do it immediately in the Court of Appeals.
I was reading through CA4’s recent opinion in Le Doux v. Western Express, Inc., ___ F.4th ___ (4th Cir. 2025), when I came across this footnote:
Western Express and Worthy contend that we review the decision for plain error because Le Doux never briefed or argued in the district court whether Virginia law permits a negligent hiring claim to proceed where the employer has conceded its employee acted within the scope of their employment. That’s an odd contention, for two reasons. First, plain error review applies only in criminal cases. See United States v. Lavabit, LLC (In re Under Seal), 749 F.3d 276, 285–86 (4th Cir. 2014) (comparing the “fundamental error” standard in civil cases with the “plain error” standard we apply in criminal cases). But more importantly, the reason Le Doux never addressed the issue was that Western Express and Worthy never pursued it in the district court; in fact they disclaimed it. J.A. 465. The district court decided on its own. And Le Doux subsequently objected. J.A. 629. That’s enough to preserve the issue. “Lawyers and clients need not pursue the persistent strategies of rebuffed suitors in Victorian courtship novels.” Ward v. Soo Line R.R., 901 F.3d 868, 882 (7th Cir. 2018).
Brutal. But what, exactly, is the difference between these two standards? I posed that question to Westlaw’s AI assistant, and this is what it told me:
The “plain error” standard of review and the “fundamental error” standard of review are distinct in their application and criteria.
The “plain error” standard of review is applied in criminal cases when an error was not raised at trial. Under this standard, an appellate court may correct an error if the following four conditions are met: (1) there is an error, (2) the error is plain, (3) the error affects substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings (In re Under Seal, 749 F.3d 276 (2014))[1], (U.S. v. Robinson, 460 F.3d 550 (2006))[2]. This standard is codified in Federal Rule of Criminal Procedure 52(b) (Federal Rules of Criminal Procedure, Rule 52)[3].
In contrast, the “fundamental error” standard of review is more stringent and is typically applied in civil cases. This standard allows an appellate court to consider issues raised for the first time on appeal only if the error is “plain” and if refusal to consider the error would result in a denial of fundamental justice. The error must be so serious and flagrant that it goes to the very integrity of the trial (Snyder v. Ridenour, 889 F.2d 1363 (1989))[4]. The fundamental error standard is more limited than the plain error standard applied in criminal cases (In re Under Seal, 749 F.3d 276 (2014))[1].
In summary, the plain error standard is used in criminal cases to correct unpreserved errors that meet specific criteria, while the fundamental error standard is used in civil cases for errors that are exceptionally serious and affect the integrity of the trial.
The above response is AI-generated and may contain errors. It should be verified for accuracy.
Not bad.
Sometimes I worry that AI is going to replace lawyers. And then the universe hands me an opinion like Llewellyn v. Fechtel, showing that nothing that able to pass the Turing test could ever do our jobs.
Llewellyn is a trusts-and-estates case; basically, Fechtel claimed the Llewellyn breached her fiduciary duties as trustee. The trial court granted partial summary judgment against Llewellyn on two issues. It got flipped on each, with Judge Lorish writing for a panel that included Judges O’Brien and Ortiz. (As an aside, this is a very fun panel. Credit to the algorithm for putting it together.)
First, the trial court relied on Llewellyn’s interrogatory responses to conclude that she’d admitted to borrowing about $75K of trust assets from a personal bank account. The Court of Appeals reversed, pointing out that interrogatory answers are not binding admissions and must be read together with a party’s explanations. Because Llewellyn maintained that the personal joint account was not necessarily funded with trust money, the Court found that genuine factual disputes remained and that summary judgment on this first issue was unwarranted.
Second–and much more hilariously–the trial court deemed thousands of Llewellyn’s responses to requests for admission as admissions that she’d misused another $235,346.35 from the trust. Except the RFAs had nothin to do with the authenticity of particular documents and really just boosted the plaintiff’s theory of the case. For context, Fechtel served 8,984 RFA spanning thousands of pages, of which 8,920 addressed 446 identified transactions. (Why even try to do this?) CAV concluded that the trial court had erred by failing to recognize the limits set by Rule 4:11(e), which caps RFAs at 30, with an exception for verifying the genuineness of documents. Most of Fechtel’s 8,984 requests sought facts and legal conclusions about the source and legitimacy of transactions, not the authenticity of any single document. To illustrate, the Court quoted RFA 337 (!) in its entirety, including all 20 subparts (!!). (Again, WHY EVEN TRY TO DO THIS?!) So the Court held that the vast majority of those requests exceeded the permissible scope and could not be used to support summary judgment.
Terrific opinion, with a helpful treatment of summary-judgment and discovery rules–all of which work only when courts enforce them. That’s actually the answer to “Why even try to do this,” right? Because maybe the trial court will let you get away with it. (And 5 years ago, maybe you evade discretionary appellate review.) Glad to see CAV shut this abusive silliness down.
Senator Surovell has introduced SB999, which would change the CAV’s standards for granting oral argument to track federal practice. Specifically, it would make these changes to Code Section 17.1-403:
The Supreme Court shall prescribe and publish the initial rules governing practice, procedure, and internal processes for the Court of Appeals designed to achieve the just, speedy, and inexpensive disposition of all litigation in that court consistent with the ends of justice and to maintain uniformity in the law of the Commonwealth. Before amending the rules thereafter, the Supreme Court shall receive and consider recommendations from the Court of Appeals. The rules shall prescribe procedures (i) authorizing the Court of Appeals to prescribe truncated record or appendix preparation and (ii) permitting the Court of Appeals to dispense with oral argument if the parties agree that oral argument is not necessary or if the panel has examined the briefs and record and unanimously agrees that oral argument is unnecessary because (a) the appeal is wholly without merit
or; (b) the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed; or (c) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
This change will sunset on June 30, 2027 unless reenacted by the 2027 General Assembly. SB990 would also specify that the amount of a suspension bond would be the principal amount of the judgment plus 2.5 years’ interest.
For comparison, Federal Rule of Appellate Procedure 34(a)(2) says:
Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:
(A) the appeal is frivolous;
(B) the dispositive issue or issues have been authoritatively decided; or
(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
I don’t see much daylight between “wholly without merit” (in Code Section 17.1-403) and “frivolous” (in FRAP 34). Black’s Law Dictionary defines “frivolous” as, among other things, “[l]acking a legal basis or legal merit; manifestly insufficient as a matter or law.” So let’s consider these standards equivalent.
The question becomes whether adopting the federal standard is a good idea. Anyone with a substantial civil CAV practice will tell you that things are moving slowly through that court at the moment, and I have it on pretty good authority that oral argument is a major bottleneck. Under the current version of 17.1-403, it’s hard to avoid scheduling a case for argument. So a rule intended to give the judges more flexibility in scheduling seems like a good idea.
The immediate objection, of course, is that the Fourth Circuit is notoriously stingy with oral argument. Here’s a table from Allison Orr Larsen and Neal Devine, Circuit Personalities, 108 Va. L. Rev. 1315, 1325 (2022):*
We don’t want the CAV to be like the Fourth Circuit! So we shouldn’t adopt the federal standard.
But the standard SB999 incorporates is from Rule 34, which applies to all federal circuits, even the oral-argument friendly ones. And to keep the bars above in perspective, the Seventh Circuit–with an oral argument rate of somewhere around 45%–grants oral argument in just about every case with a lawyer on both sides. That seems like a good standard! Also, culturally, the Fourth Circuit values efficiency–it’s home to the Rocket Docket, after all–and in a lot of ways, it is built for speed. None of that is necessarily true of the CAV. I wouldn’t expect a court full of judges who came through the Virginia state court system, which grants oral argument in every case, to start denying oral argument in ~90% of cases like some of their neighbors.**
Finally, if the CAV just immediately stops granting argument as a docket-control mechanism, then the General Assembly can just let the changes to 17.1-403 expire in 2027.
Best of luck to SB999, and a robust and speedy oral argument docket.
* Circuit Personalities is excellent.
** One article clocked CA4’s oral argument at 8%. Eight percent!!