At the VTLA’s annual meeting earlier this month, Kyle McNew moderated an appellate panel featuring Justice Mann and Judges Malveaux and Ortiz. High-level takeaways:

  • Letting Judge Ortiz respond to a moderator opens the door for some quality shithousing. This probably only works with a quick moderator like Kyle, but more bar associations should try it.
  • Judge Malveaux explained that in the CAV, a substantive motion will be decided by the same panel that ultimately hears your case. That makes sense, but I was never clear how motions practice works.
  • Judge Ortiz said that the amount of time between the end of briefing and oral argument varies by region, but it is typically somewhere between 90 and 150 (or even 180) days.
  • Justice Mann dropped a few gems. First, he said that if courts don’t want to get reversed, they shouldn’t do wonky things. So if you get a wonky opinion from the CAV, ask for a writ. Fair enough. But a few minutes later, he recommended that lawyers arguing before SCOVA pick up a copy of Blackstone’s Commentaries on the Law’s of England and nurture a familiarity with English Common Law. Showing up at SCOVA without Blackstone, he said, would be like showing up in trial court without the rules of evidence. This comment alone moved the Overton window for wonkiness in Virginia court. Pray for the CAV.

The Court of Appeals of Virginia recently handed down its opinion in Tatusko v. Commonwealth, 79 Va. App. 721 (2024). It’s a reckless-driving case where the defendant was clocked doing 103 in a 60 mph zone. Tatusko doesn’t strike me as especially interesting on the merits; many of the issues raised were discretionary rulings, and none of them really move me.

But here’s the thing: The case had 18 assignments of error. Eighteen! Is it even possible to get that many important things wrong in a speeding case?*

Judging from Tatusko, no. It is not. More important for our appellate purposes, though, the CAV was super impressed with the volume of assignments of error. Here’s the first paragraph of the opinion:

Appellate courts have sometimes lamented that “the number of claims raised in an appeal is usually in inverse proportion to their merit.” Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1140 (Pa. 1993). As Judge Kethledge observed, “When a party comes to us with nine grounds for reversing the [trial] court, that usually means there are none.” Fifth Third Mortg. Co. v. Chi. Title Ins., 692 F.3d 507, 509 (6th Cir. 2012). Those predictions have been borne out here. Konradt Tatusko assigns 18 errors to his reckless-driving conviction. Finding that none has merit, we affirm the judgment below.

(More cases should cite Kethledge opinions.) The CAV also offered this advice to practitioners:

“While criminal defendants often believe that the best way to pursue their appeals is by raising the greatest number of issues, actually, the opposite is true: selecting the few most important issues succinctly stated presents the greatest likelihood of success.” Ellis, 626 A.2d at 1140. We recognize that criminal defendants may sometimes insist that their lawyers raise as many arguments as possible, including arguments that, even though not frivolous, have virtually no chance of succeeding. But as we have noted, “‘[w]hile “the accused has the ultimate authority” to decide whether to “take an appeal,” the choice of . . . arguments to make within that appeal belongs to appellate counsel.'” Hammer v. Commonwealth, 74 Va. App. 225, 242, 867 S.E.2d 505 (2022) (quoting Garza v. Idaho, 139 S. Ct. 738, 746, 203 L. Ed. 2d 77 (2019)). “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal.” Id. (quoting Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1987)).

Anyway, recommended throughout. If you only read one reckless-driving case this year, this should be it.

*Assuming, of course, that you are working in good faith. If you are the sort of evil mastermind judge who inhabits law-school thought experiments, then of course you can get more than 18 things wrong as you work to defeat the cause of justice. But if you are just a normal judge trying to do the right thing–you know, the sort of jurists Court of Appeals judges deal with in real life–I’m not sure you can miss the boat this badly.

Jesse Wegman has an editorial in The New York Times about the challenges of teaching constitutional law in the current environment. This should give you a flavor of the proceedings:

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party.

And that has made it impossible for many professors to teach in the familiar way.

“Teaching constitutional law today is an enterprise in teaching students what law isn’t,” Leah Litman, a professor at the University of Michigan law school, told me.

Rebecca Brown, at the University of Southern California, has been teaching constitutional law for 35 years. “While I was working on my syllabus for this course, I literally burst into tears,” she told me. “I couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I’m feeling very depleted by having to teach it.”

At least she’s still trying. Larry Kramer, a widely-respected legal scholar and historian who was my constitutional law professor at N.Y.U. 20 years ago, called it quits in 2008, on the heels of the Supreme Court’s divisive decision in District of Columbia v. Heller, which struck down decades of precedent to declare for the first time that the Second Amendment protects an individual right to bear arms. Many observers felt that Heller’s majority opinion, by Justice Antonin Scalia, intentionally warped history to reach a preordained result.

Professor Kramer was the dean of Stanford law school at the time, but after the Heller ruling, he told me recently, “I couldn’t stand up in front of the class and pretend the students should take the court seriously in terms of legal analysis.” First-year law students, he felt, “should be taught by someone who still believed in what the court did.”

It’s interesting, I guess, but it would have been far more compelling if Wegman had checked in with some of the smart originalists (e.g., William Baude, Lawrence Solum) to get their take. They teach Con Law too! And we’re layering it on a little thick. It’s tough to take those sob stories seriously when literally thousands of qualified people would happily swap jobs with these professors.

UPDATE: The smart originalists have thoughts! William Baude posted an essay at Reason, basically cribbing from a paper he wrote, Teaching Constitutional Law in a Crisis of Legitimacy. You should definitely read the whole paper–it’s barely eight pages long, and characteristically insightful throughout. But if you want the top-line takeaway, here’s what Baude would have told Jesse Wegman:

There is a perception that there is something different, something more challenging, about teaching constitutional law today because the Supreme Court has been doing so many things, so quickly, that are so hard to justify.

This perception is wrong. You have always been teaching law in a time of a crisis of judicial legitimacy. The Supreme Court has never been the same thing as the Constitution. It has never been infallible at interpreting the Constitution. It has long been engaging in awe-inspiring power grabs. DobbsBruen, and Bush v. Gore have nothing on Cooper v. AaronMiranda v. ArizonaBaker v. Carr and Reynolds v. SimsGideon v. WainwrightThe School Prayer CasesThe School Busing Cases, Roe v. Wade and Planned Parenthood v. CaseyBoumediene v. Bush, and Obergefell v. Hodges. If you were asking yourself just two years ago how we can still teach our students about constitutional law . . . then you have not been teaching them very well until now.

In sum, the Court has always been making questionable calls in high-profile cases, likely for a mix of political reasons and genuine differences of opinion about the nature of the Constitution. What has really changed is not that the Court is newly imperial, or newly lawless, or newly political. What has changed is that many more folks inside the Ivory Tower have noticed, and no longer see their values and ways of thinking represented as often by the Court. That reflects a change in what the Court thinks the law is, to be sure. But it does not reflect a change in whether the Court is doing law.

. . . .

I am not naïve enough to think that the solution to the legitimacy crisis will arrive anytime soon, and indeed I can’t guarantee that anybody who needs to hear these admonitions will listen to them. But at least listen when I say this: There are lots of people, and even lots of law students, outside the bubble. And they can hear you.

Josh Chafetz also has a thoughtful thread on this that’s worth reading.

I am an introvert and a try-hard. This makes me a lot of fun at parties. (Just kidding I never get invited to parties.) It also means that I encounter most of the words I see in print as opposed to real life. So I’m not always 100% sure about how they are supposed to sound. And then sometimes I look words up, only to learn that while I may not know how these words are supposed to sound, they are definitely not supposed to sound like that.

With all that in mind, here is a list of words that I am afraid to say at oral argument because I don’t want to sound like a cretin:

  • Amicus. A-MEE-kus, a-MI-kus, and AM-uh-kus can all work, depending on who you ask. So, you are guaranteed to draw at least judge who thinks you’re saying it wrong.
  • Bona fides: Only a short-fingered vulgarian would make this rhyme with sides. But if we get fancy, my four years of high-school Latin makes me want to say bona FEE-days. Even if I could push past that, my four years of high-school lunch makes me think bona FIE-deez is just a setup to bona FIE-deez nutz, which is altogether unacceptable.
  • Certiorari. At this point in the decline of Western civilization I think we can all agree to say “cert.”
  • Daubert. Sounds lowbrow, but it’s pronounced dow-bert.. Except that every CA4 panel in a Daubert case will have a district judge siting by designation who will insist on Frenchifying it. So you can’t win.
  • Err: Garner insists that it rhymes “purr.” Merriam-Webster says I can pronounce it “air,” but Garner says that I can’t.
  • Gravamen: Gra-VAY-men? No, that can’t be right. And the plural is gravamina? Pass.
  • Heytens. I just have a weird mental block on pronouncing Judge Heytens’s last name. “Your Honor” will work at court–and I haven’t argued in from of him yet anyway–but I’m certain that I’m going to blow this one at a CLE or bar event.
  • Ideologue. Eye-dee-a-log. But I always want to say id-dee-a-log.
  • Primer. The short informative book is a PRIMM-er, while the first coat of paint is a PRIME-er.
  • Voir dire. It’s a trap, Tex.

The Court of Appeals of Virginia handed down its opinion in Ho v. Rahman today. Ho is an adverse-possession case and a published opinion, but I’m not so interested in the merits. I’m much more interested in the opinion’s treatment of a preservation question.

As a threshold matter, the court addressed the appellee’s claim that the appellant had waived her appeal by signing the trial court’s order “Seen and Objection.” On the appellee’s account, this was insufficient to preserve a point for appeal under Rule 5A:18.

The court summarized its case law, on this point, which generally holds that endorsing an order “seen and objected to” is not specific enough to satisfy Rule 5A:18. That endorsement can be sufficient, however, if the trial court’s order was narrow enough to make the basis of the objection clear.

Here, the CAV found, the trial court’s order addressed only a single issue: the appellee’s plea that the 15-year adverse-possession clock had not yet run. Both parties had briefed the issue. So the basis of the appellant’s objection was clear and her appeal was not procedurally defaulted.

This was the right result, but the court’s reasoning was mistaken. The Supreme Court of Virginia addressed this exact question more than a decade ago in another adverse-possession case, Helms v. Maniple, 277 Va. 1 (2009). In Helms, like Ho, the parties had briefed the issues. In Helms, like Ho, the appellant received an adverse ruling and signed the order “Seen”–which is, if anything, even weaker than Ho‘s “Seen and Objection.” In Helms, like Ho, the appellee contended that this was insufficient to preserve the point for appeal.

But that is where the opinions diverge. Because in Helms, the Supreme Court of Virginia cited Code Section 8.01-384 for the proposition that a party only needs to object once to preserve a point for appeal. That objection came in the brief. After that, the point is preserved for appeal unless affirmatively waived. Signing an order “Seen” does not constitute waiver. And if there was any conflict between Rule 5:25 and Code Section 8.01-384, the statute controlled the rule.

So unless I’m missing something, Ho’s analysis is incorrect. What’s more, the endorsement cases Ho relies on all predate Helms. I haven’t gone back to read them, but I doubt that they remain good law for this line of analysis.

Until CAV gets this sorted out, the safest thing to do is endorse orders “Seen and objected to for the reasons stated in the record, including (1) [first appeal point] and (2) [second appeal point].” This is, of course, a silly waste of time. The trial court has already reviewed and rejected these arguments. It’s not going to change its mind based on your signature block, and you are not adding anything meaningful to the record. But as long as there are opinions like Ho coming out of the CAV, better safe than sorry.

Last week, the VBA’s appellate practice section put on a top-notch panel on perspectives in appellate advocacy. The panelists were Judge Friedman of the CAV, Erin Ashwell, and Matt McGuire, with Kendall Burchard moderating.

Judge Friedman, in particular, stressed a few themes:

  • Competition for judges’ time and attention. Judge Friedman reported that the CAV has 49 panels set for 2024, not counting en bancs, standing panels, and bond reviews. Each panel handles about 18 cases, give or take. That is a seriously heavy workload for each judge. So they greatly appreciate clear and direct writing.
  • Writing for multiple audiences. That said, bear in mind that you are writing briefs for different audiences. Most of the judges on your panel are just trying to get to the right result, and they’d like the cleanest route to get there. So they love efficiency. But one of the judges on your panel has to get to the right result and figure out how to write the opinion. So that judge would appreciate a little more detail. And then there are are the clerks, who are bright and motivated but usually not that far out of law school. One solution is to run a tight argument in the main text, dropping occasional footnotes for the benefit of the judge writing the opinion and all the poor clerks wrestling with your argument.
  • Tone. Judges perceive a belligerent tone as disrespectful. That’s true in general, and especially when the trial judge was the target of your ire.

Big thanks to Erin for organizing this excellent panel.

Christmas is always a super-stressful time of year for me, but not for any of the normal reasons that plague sane people. My problem is that the people who know and love me tend to get me books–which makes sense, because books and bicycles are basically the twin obsessions of my sad life. The trouble comes when I get a bunch of books during the last week of the year. Receiving and opening them is pure joy. My friends and family like me! They get me!

But this elation soon descends into pure terror. The piles of books feel usher in the creeping dread of unfinished homework over a holiday break. Tim Urban pops up in my subconscious to remind me that I’ll probably die before finishing them. Carrie somehow finds more books in the laundry room that she meant to give me. I panic. I stop reading.

Anyway, here’s what I got through before my most recent meltdown:

Levels of the Game by John McPhee. Sporty McPhee is the best McPhee. I’ve long harbored suspicions that half his books result from weird bets with coworkers. This one was somebody at The New Yorker challenging him to write a 150-page play-by-play of the 1968 U.S. Open semifinal between Arthur Ashe and Clark Graebner that explains class and race in America. If he lost he’d be exiled to Alaska.

I Wear the Black Hat by Chuck Klostner. Absolutely wonderful. The villain is the person who knows the most and cares the least (with one notable exception).

Animal Liberation Now by Peter Singer. He’s not wrong.

Divided by God: America’s Church-State Problem–and What We Should Do About It by Noah Feldman. Great summary of the development of law on this topic through 2005 or so.

For Profit: A History of Corporations by William Magnuson. Not precisely what the title promises–it’s more a series of historical anecdotes illuminating particular aspects of the modern corporate form–but still terrific, and marvelously executed.

Exodus from the Alamo: The Anatomy of the Last-Stand Myth by Phillip Thomas Tucker. A great idea–a history of the Alamo crediting Mexican and Tejano sources, which reads as revisionist history in our tradition–poorly executed. Repetitive and speculative, but the underlying stuff is worth it.

Democracy and Distrust: A Theory of Judicial Review by John Hart Ely. A friend gave me this. Loved it. Ely is more convincing in his critiques of rival theories than his defense of his own, but the same could be said of literally any legal academic writing.

The Exorcist Legacy: 50 Years of Fear by Nat Setaloff. Don’t judge me. It’s a fascinating movie. Still a miracle that they pulled it off.

The Thomas Sowell Reader by Thomas Sowell. Based on what I’d heard of Sowell from smart people I disagree with I thought this would be more persuasive? Seventy-five percent of it reads like an uncharitable, bitter rant. (I suspect these were newspaper columns that haven’t aged that well?) The other 25% is thought-provoking, though.

The Killing Floor by Lee Child. Smart people seem to love Jack Reacher. WaPo ran a terrific piece on the series a few months back, which made it seem commercial almost to the point of being cynical. After reading this first entry in the series, I see the point. But it’s also a brilliantly executed piece of commercial fiction. The craft that went into it is impressive, with one exception: The British spelling, locating, and punctuation, all of which is hopelessly distracting. In no universe does Jack Reacher ‘take a decision’ about how to handle goons in a neighbouring jail cell or talk smack inside single quotation marks.

An anonymous reader asks if Virginia’s appellate courts are ratcheting down on the use of motions to reconsider to preserve error.

Here’s the background: Traditionally, appellate counsel have used motions to reconsider to clean up the record and preserve new arguments for appeal. It was fairly normal for an appellate lawyer to be hired after a disappointing trial result, spot an issue that wasn’t properly raised, move to reconsider on that basis, lose, appeal, and then ultimately win on appeal on that exact point.

Enter Wal-Mart Stores East, LP v. State Corp. Commission, 299 Va. 57 (2020). There, after receiving an unfavorable ruling from the SCC, Walmart moved to reconsider, seeking relief that it had not previously requested.[1] The SCC denied the motion, and the Supreme Court affirmed. It explained that a motion to reconsider ordinarily asks a court to revisit a holding because it was mistaken. Walmart’s motion, by contrast, did not ask the SCC to do that; instead, it was “a request to consider for the first time something the movant had not never before specifically sought.” The Court specified that it did not “mean to suggest that the Commission had no discretion to grant the motion to reconsider.” Instead, it was reviewing the SCC’s denial for an abuse of discretion, and it concluded that denial was within the range of available choices:

We do not mean to suggest that the Commission had no discretion to grant the motion to reconsider. It did. See 5 VAC § 5-20-120(C) (authorizing the Commission to “accept, modify, or reject the hearing examiner’s recommendations in any manner consistent with law and the evidence”). HN15 We review the Commission’s decision to deny the motion to reconsider under an abuse-of-discretion standard. “The abuse of discretion standard draws a line — or rather, demarcates a region — between the unsupportable and the merely mistaken, between the legal error . . . that a reviewing court may always correct, and the simple disagreement that, on this standard, it may not.” Reyes v. Commonwealth, 297 Va. 133, 139, 823 S.E.2d 243 (2019) (citation omitted). “Only when reasonable jurists could not differ can we say an abuse of discretion has occurred,” Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493 (2016) (citation omitted), because only then does a discretionary decision exceed the “outermost limits of the range of choice available,” Reyes, 297 Va. at 140. Viewed under this deferential standard, the Commission did not abuse its discretion in denying Walmart’s motion to reconsider.

In other words, Wal-Mart held that requesting new relief is a permissible basis for denying a motion to reconsider. Wal-Mart did not say that this mandated denial. In fact, the Court bent over backwards to clarify that it didn’t.

And all that’s fair enough. “You didn’t ask for it until now, so you lose” is a little harsh but hardly beyond the scope of the SCC’s discretion.

The trouble comes in how Wal-Mart has been cited. Let’s see what the Supreme Court did with it in Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 95 (2021)

. . . Wal-Mart Stores, 299 Va. at 76-77 (concluding that a motion for reconsideration “may . . . challenge a tribunal’s failure to rule on an issue properly presented to it, particularly a timely but unadjudicated lesser-included claim,” but that it may not “request to consider for the first time something the movant had never before specifically sought”).
Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 95

Nope. That’s not what Wal-Mart said.

Has the Court of Appeals done any better? Let’s look at Page v. Portsmouth Redevelopment & Housing Auth., 2023 Va. App. LEXIS 407, *10 n.5 (June 20, 2023):

“A motion to reconsider ordinarily asks a court to reconsider a holding because, in the opinion of the movant, the holding was erroneous.” Wal-Mart Stores E., LP v. State Corp. Comm’n, 299 Va. 57, 76, 844 S.E.2d 676 (2020). A motion to reconsider may not “request [the circuit court] to consider for the first time something the movant had never before specifically sought.” See id. (holding that the SCC did not abuse its discretion in denying Walmart’s motion to reconsider because “Walmart’s motion . . . did not ask the Commission to reconsider its holding denying Walmart’s request for permission to aggregate the load of a specific number of customers” but instead, “Walmart argued that the Commission should consider whether authorizing some load less than Walmart requested in its Aggregation Petitions would satisfy Code § 56-577(A)(4)” (internal quotation marks omitted)).


Closer, but that’s still not quite it.

Let’s hope that some of our robed friends clean this up before we mis-cite our way out of a key tool for preserving error.

[1] More precisely, when the SCC denied Walmart’s requests to aggregate the loads of a specific number of customers (Walmart’s petitions sought to aggregate 120 customers totaling 70.52 megawatts of load and 44 customers totaling 20.57 megawatts of load), Walmart moved to reconsider, arguing that the SCC should take into account whether authorizing some load less than Walmart had requested in its aggregation petitions would satisfy Code Section 56-577(A)(4). Glad we could clear that up.

Happy Thanksgiving! In no particular order, here are a few things I’ve been enjoying:

  • Hyemin Han’s play-by-play of the D.C. Circuit argument in the Trump gag order case. Credit to longtime De Novo favorite Judge Millett for this hypo: ““Okay. But he can’t say that that person is an ‘un-truth speaker’?”
  • Jeannie Suk Gersen’s take on SCOTUS’s Code of Conduct: “It is not a set of rules designed to redress past ethical breaches and prevent future ones but rather a defense brief arguing that there have been no ethical breaches to redress and prevent.” It was also fun to watch Brother Emmert’s enthusiasm for the Code of Ethics to slowly drain out of his post.
  • Noah Feldman’s Divided By God: America’s Church-State Problem–And What We Should Do About It. This 2006 book is a little dated, but it offers a great overview of church and state law through the turn of the century. Would love to see an update covering the past few decades.
  • John Hart Ely’s Democracy and Distrust. A friend gave me this book. It’s very persuasive in tearing down theories of constitutional interpretation, maybe a little less so in building one up.
  • The debate over critical race theory seems to have summoned Duncan Kennedy back from his parallel universe? Here he is on a podcast that sounds like it was recorded in the phantom zone. Whatever. My UVA kids will still have to read A Semiotics of Legal Argument next semester.
  • Tyler Cowen’s interview with Chuck Klosterman. I listened to this when it first came out (because The Nineties: A Book is amazing) and revisited it recently. To borrow a phase from Cowen, the interview is wonderful throughout, but it has one of my favorite thoughts from the whole year: the real risk you need to hedge against is premature death.

KLOSTERMAN: It might be, though, just what your personality is like. There’s a certain personality whose goal seems to be to make more money, and my personality is, “Don’t lose the money you’ve made.” I seem so lucky to have had things work out the way they have. My fear always is that, in the end, I’m going to have nothing again. Somehow, I’m going to have put all this time in, and done all of these things to accumulate this wealth that seemed absolutely unfathomable to me for most of my life, but somehow, I’m going to end up exactly the way I started.

COWEN: It’s not going to happen unless you blow it through some weird addiction. I would say high-quality real estate and cheap hobbies[1] — I’m sure you have at least one of those right now, probably both — are the best hedges. You’ve got them. Take more risk.

KLOSTERMAN: Okay.

COWEN: You are human capital, right? No one can touch that, short of you destroying yourself or just dying. The more money you spend . . . like spending money is insuring against an early death, because if I hit 96 years old and I’m broke, I’m like, “Oh my goodness. I made it to 96. I can at least read Wikipedia every day. This is still pretty awesome.”

KLOSTERMAN: Do you have kids? Oh, you did, you said that.

COWEN: Yes. She’s a huge fan of yours. She just had a daughter, a baby girl — beautiful. I can enjoy her for free. I’m hedged. The real risk is premature death, in my view. You want to do things that are fun now, so if you die when you’re 63, you still will feel, “I got my stuff in,” whatever that’s going to be, and I bet you do that.

Here’s to real estate and cheap hobbies! Happy Thanksgiving, everyone.

[1] Elsewhere in the podcast: “You can have cheap hobbies, watch basketball, enjoy the internet, listen to your music till you die.”

A friend recently pointed out something that should have been obvious, but wasn’t. Like many other appellate courts, the Court of Appeals of Virginia holds its decision conference immediately after oral argument.

I knew this, but I don’t think I appreciated what it meant until we started taking about it. Obviously, appellate judges are well-prepared. That’s why we don’t waste their time going over background information, and that’s why they have so many questions. So very many questions. But I’ve never really spent much time thinking about the psychology of that dynamic from the judge’s perspective. It’s probably very stressful! All things being equal, any given judge is probably way more concerned about the impression she makes on her colleagues than the impressions she makes on, like . . . me? And so she’s come into the argument armed not just with an understanding of the facts and the law, but actually prepared to vote and defend that vote to her colleagues. She is committed.

And so does that mean when the judge asks a hostile question? First, that she’s thought this through, and could well be committed to this position. Second, if she is, she’s giving you a fair chance to answer the question. Third, this is the last chance that you or anyone else will have to answer the question before she casts her preliminary vote. An appellate judge not a trial judge, who can take the matter under advisement and rule after revisiting the briefs and mulling things over in the fullness of time.* She will have to vote before they let her go home! The other day, I heard a very good lawyer crack a joke along the lines of, “That’s a great question. And like any good appellate lawyer, I’m going to answer not the question you asked but the question I want to answer.” I don’t think that’s the right tack here. I think you engage the hostile question, at least the first 2-3 times that you get it.

The response, I guess, would be that we have limited time, the hostile judge has flagged that she is committed to a hostile position, and there’s still a potential of persuading the other judges by reiterating talking points. All fair. But how is ducking the question going to persuade them? (Again, at least the first 2-3 times you get it. If the judge is just being mean, then by all means, disengage.)

All of which is a roundabout way of reiterating the most basic piece of good advice an appellate lawyer can get: answer the question.

*I mean, sure, if she gets assigned to write the opinion, she will be mulling things over for weeks. But she’ll be doing that after casting her vote and locking herself in before her colleagues. So a reversal at that point would presumably be awkward. There’s just got to a be a lot of psychological inertia there.