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

Dead Man Walking

Posted in Appellate Practice, Preservation of Error, Writing

The brief in opposition is one of the great underappreciated joys of Virginia appellate practice. It comes at the writ stage, when we’re just trying to convince the Supreme Court that it should/should not grant a petition for appeal. We’re not necessarily arguing the merits. Sometimes, the petitioner will not yet have hired specialist appellate counsel. Even when they do, some nominal appellate lawyers fail to appreciate this distinction.

So how do we dissuade the Court from granting an appeal? Well, you have the usual arguments:

  • This is a fact-bound case.
  • This is an idiosyncratic issue that is unlikely to recur.
  • There’s no split below, nor any indication that the bench and bar need guidance on this issue.
  • This case is a poor vehicle for reaching an issue that may interest the Court.

That last one is key. Virginia has a robust procedural default jurisprudence. Trial counsel tend to be aware of this in principle, but they get a little hazy on the specifics. The specifics are all that matter here.

Off the top of my head, I’ve regurgitated a totally underinclusive list of 20 waiver/forfeiture/procedural default traps to look for at the writ stage. Any one of them can kill an appeal point:

  1. Failing to preserve a point by contemporaneously objecting with reasonable specificity. Rule 5:25.
  2. Objecting “just for the record” and not requesting a ruling under Nusbaum v. Berlin, 273 Va. 385 (2007).
  3. Objecting to evidence but introducing evidence of the same character in your case-in-chief. Drinkard-Nuckols v. Smith, 269 Va. 93 (2005).
  4. Failing to get a ruling on an objection.
  5. Failing to ensure that the record contains everything necessary to let the Court evaluate and resolve the assignment of error. Rule 5:11(a).
  6. Failing to proffer excluded evidence. Graham v. Cook, 278 Va. 233 (2009).
  7. Confusing objections to the admissibility of the evidence and the sufficiency of the evidence. See Bitar v. Rahman, 272 Va. 130 (2006).
  8. Failing to move for a mistrial at the close of all the evidence.
  9. Attempting to “renew” a motion to strike at the close of all the evidence instead of raising a new one (when the distinction matters).
  10. Agreeing (or failing to object) to a jury instruction that kills your theory.
  11. Relying on a naked case citation or a rejected jury instruction to preserve an argument not explicitly raised at trial.
  12. Objecting to a closing argument but not simultaneously asking for a curative instruction or a mistrial.
  13. Approbating and reprobating–that is, taking inconsistent position in successive phases of litigation.
  14. Law of the case.
  15. Inviting error.
  16. Right result/other reason.
  17. Failing to assign error to an independent basis for affirmance. Manchester Oaks Homeowners’ Ass’n v. Batt, 284 Va. 409 (2012).
  18. Assigning error to a ruling that the trial court never made. Martin v. Lahti, 295 Va. 77 (2018).
  19. “Bad brief” error–failing to argue an assignment of error as required by Rule 5:17, stashing an underdeveloped argument in a footnote, etc.
  20. Harmless error under Code § 8.01-678.

One of the wits on #appellatetwitter called an appellant boldly pushing a forfeited theory “dead man walking.” That seems about right.

And one last point, just to be clear: As a policy matter, I disagree with the emphasis that the Supreme Court placed on procedural defaults from, say, 2000-2015. I think it’s bad and wrong. I would much prefer that the Court address substantive issues. But we go to war with army we have

The Hardest Problem at Oral Argument

Posted in Oral Argument

Raffi Melkonian, an appellate lawyer from Texas and the dean of #appellatetwitter, has been working on what he considers the hardest problem at oral argument: the judge who has misunderstood something and is angry about it.

It’s a great thread. I Twittered some half-baked thoughts at Raffi, but this problem merits a more thorough take.

First, in an appellate oral argument, you have very limited time. An angry judge will burn it up. At best, the exchange will be a stalemate. But it’s much more likely to play out badly–think somewhere between “affirmatively counterproductive” and “total disaster.” So you must disengage as soon as possible. This problem will not solve itself.

Your method of disengagement will vary based on the nature of the confusion, but here are a few moves:

  • If the confusion is factual: “Your Honor, JA 759 clarifies this point.” An angry judge will usually flip or scroll to JA 759. That breaks break the rhythm and creates a pause, letting you can finish your thought. Even if the target judge doesn’t flip, one of his colleagues probably (on a 3-judge panel) or surely (en banc) will. If you’re right, they may help you disengage.
  • If the confusion has to do with a legal theory: “I’m sorry, Your Honor, this point wasn’t clear from the briefing. We’re not arguing that BigCorp couldn’t reasonably rely on the bring-down certificate as a matter of law. We’re pointing out that, on this Record . . .”
  • If you need a complete reset: “I apologize, Your Honor, I wasn’t clear. Our point is that . . .”

The key takeaway here is that some phrases will usually defuse an angry judge and get the Court’s attention: “JA ___,” “this point wasn’t clear from the briefing,” and “I apologize.” That’s because judges want to get the right answer. They don’t want to be confused or made to look foolish by misreading an argument or missing a record cite. And they don’t particularly want to make you look foolish either (although they will if they have to).

Moot courts are a great time to identify confusing points about your argument and practice these escapes.

Second, don’t abuse this move. Always keep in mind your goals for the argument. They’ll usually include (1) advancing your client’s theory, (2) addressing the Court’s questions, (3) clarifying lingering confusion from the briefs, and (4) building credibility with judges and clerks. Using a reset to shut down a productive line of inquiry undermines each goal. It also gobbles up time. Disengage and reset only when the line of questioning is clearly counterproductive–that is, when a justice is both confused and angry, and continuing the conversation on her terms will hurt your argument.

Third, be mindful of the culture of your court. The Supreme Court of Virginia and the Court of Appeals of Virginia are gracious to the point of being courtly. You will rarely need to shut down a line of questioning in one of those courts. As a matter of tradition and culture, the justices/judges will let you explain yourself. They will rarely get visibly angry. (If they do, you’ve got a bigger problem than a blog post can solve.)

The Fourth Circuit, on the other hand, tends to be more rough and tumble. Expect a questioning at a higher velocity and, um . . . emotional intensity? Bring some moves.

Mind-Bending Intergalactic Writing Tips

Posted in Writing

Confession time: I have a strong prejudice against the default writing style at most BigLaw firms. I’d like to think that my intolerance is mostly justified, but I recognize that it’s at least partly unfair.

To understand why, remember that I started my career at a BigLaw firm. I had a great experience working with talented lawyers on exciting cases. But I faced one major hiccup along the way. Early in my tenure, I was assigned to a project with some corporate-governance types. We had to analyze a potential securities-fraud issue for some client or another. The project was staffed in typical BigLaw style: partner, senior counsel, counsel, senior associate, and me.

As the babiest of the baby lawyers, I won the honor of taking the first cut at the memo summarizing our analysis of the issue. This meant that I had come up with our analysis of the issue. Never mind that I didn’t know the first thing about securities fraud.

In my memory, at least, this was a heavy lift, which resulted in hefty, detailed memo–maybe 35 pages, single spaced. I did a ton of research and worked through the weekend to finish it early. The senior associate helped out. She loved the draft. We passed it along to the counsel. Let’s call him “Sid.” (I’ve changed names and, in some cases, genders to protect the innocent.)

Sid hated my memo. He wouldn’t even redline it; he said that it was hopeless and told me to start over.

So I did. I pulled an all nighter and delivered a new document at about 6 a.m. the next morning. I worked insanely hard on that thing.

If Sid hated version 1, he absolutely loathed version 2. He called me into his office and  told me that he had real concerns about my writing. It wasn’t just subpar for a first-year associate; it was totally, hopelessly unacceptable at a Firm of Our Stature. Sid suggested that I pursue remedial writing instruction. In the meantime, he was going to give me one more chance. If I couldn’t deliver a minimally acceptable product by the morning, he would get a more capable lawyer involved.

This time, at least, Sid did me the courtesy of marking up my introduction. As I recall, my sentences were too short; I did not use enough romanettes; and I deployed too many verbs.

Also, through three rounds of “edits,” I had yet to receive a substantive suggestion about the analysis. That’s possibly because nobody on the bottom rungs of the case team knew anything about securities fraud, either.

Another revision. Another all nighter. Another 6 a.m. delivery. I took Sid’s comments to heart. I wrote sentences that went on for paragraphs, and paragraphs that went on for days.

Yet version 3 was, somehow, even worse. Sid pulled in a senior associate, the senior associate wrote some argle-barle that had almost nothing to do with the facts of the case–he cut-and-pasted whole sections from a law-review note–and I was cast off to remedial legal-writing land.* The memo wound up costing more than most people make in a year. It was trash. The relationship partner never sent it to the client. Sid still has the same role at the same firm, lo these many years later. And I’m doing blog posts about legal writing.

So that’s where I’m coming from.

Now, you may have noticed that some BigLaw work product recently made the news. The DC District Court slammed some fancy BigLaw lawyers representing Concord Management and Consulting for writing ludicrously over-the-top briefs. In a public hearing, District Judge Dabney Friedrich reportedly said “I found your filings, in particular your reply brief filed Friday, unprofessional, inappropriate and ineffective.” News reports noted that the suspect briefs quoted Looney Toons and a profane (if slightly sanitized) quip from Animal House. Judge Friederich “made it clear that she was not amused by what she called the ‘clever quotes.’ She also chastised” counsel for “ad hominem” attacks on opposing counsel. She said that the quotations were “undermining [counsel’s] credibility in this courthouse. I’ll say it plain and simple: Knock it off.”

Now, to be clear, this wasn’t my BigLaw firm. But it was a BigLaw firm, so my schadenfraude kicked in. And so did my curiosity; I couldn’t believe that some of the quotations from the briefs were accurate.

But they are. They’re real, and they’re spectacular.

I pulled two of the briefs from PACER. I read them. And I have thoughts!

First, people have different philosophies about writing briefs. My goal in writing a brief is to advance my client’s cause by providing helpful information to the court (and its clerks) in a useful package. Secondary to that, I want to build credibility with the court and opposing counsel.

Second, if I write a brief that makes me feel smart or funny, or that says mean things about the other side, I am almost guaranteed to alienate my readers. That’s counterproductive, as it undermines these goals.

Third, the only people in the world who can make legal writing funny are

  • Elena Kagan
  • Mark Hermann
  • Elie Mystal
  • Don Willett
  • The Guy from Popehat
  • Drew Magary (probably?)

That’s it. When I feel like writing something clever, I check to see if I am one of these people. Usually I’m not.

Fourth, if all else fails, at the very least I want to minimize unnecessary and work (and suffering) for my reader.

So with that in mind, let’s have some fun with some snippets:

This intro rocks. I was wondering if we were going to call the Defendant “Defendant” or not. Sometimes I like to call the defendant “Gertrude,” just to mix things up.

Also, when you have a catchy title like “DEFENDANT CONCORD MANAGEMENT AND CONSULTING LLC’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL DISCOVERY FROM THE UNITED STATES,” it’s best to repeat that title in the first sentence of your brief. Verbatim, if possible. That grabs the reader’s attention. They love to read extra words that don’t convey additional information.

If you’re going to use an expletive from Animal House, own it and type out the work “fuck.” Also, why are we using an expletive from Animal House? The quotation isn’t an argument. It doesn’t add to the argument. It’s not inherently funny, and it feels forced because it doesn’t neatly fit the facts presented in the memo. You could save the reader some time by just writing “Special Counsel, BOO!”

Or use the GIF of Belushi with the mashed potatoes.

Does this sentence even have a subject? I got tired and had to stop reading. I do appreciate the double-indent on the first line, though. That communicates authority.

So, “the Court” is actually the person that we’re addressing. If I were the Court, I might find this sentence . . . whiny? Accusatory? That’s not how we make friends.

And on to the next brief:

Another whiz-bang introduction. Like Hamlet, Moby Dick, and 67% of the Great Works in the Western Canon, Concord opens with the phrase “pursuant to.” This reels the reader in.

Also, “To summarize: WRONG ANSWER.” is an arrogant and off-putting way to summarize your position. We’re trying to help the Court get to the right answer. Picking on opposing counsel doesn’t move that ball forward.

Intergalactic, planetary, planetary, whiplash fashion . . .

So, here’s the thing about jokes: If you have to explain them, they’re not jokes. You can make the Tweety Bird reference. Everyone over 35 will get it (which maybe excludes clerks, which maybe suggests that it’s not the awesomest pop-culture reference to drop into a brief. But I digress.)

But if you have to drop a footnote explaining  Tweety’s catchphrase, your reference stops being funny. You haven’t fully Gorsuched it, I guess, but it’s still mostly dead. (See what I did there? With the reference?)

This is . . . a conclusion? It wouldn’t hurt to restate the relief sought. I think the second sentence is supposed to explain why that relief is appropriate. Yet there are many words and ideas in that sentence. Some of them might grow up and get their own sentence some day. Just a thought.


*We quickly diagnosed the main problem with my writing, which was Sid.

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.