Apologies for the delay since my last post. I was tied up in trial for part of last week, and recovering for the rest of it. I was so busy, in fact, that I almost missed this post from the Volokh Conspiracy about Newman v. Commonwealth, 2009 Va. App. LEXIS 360, 2009 WL 2431289 (Va. Ct. App. Aug. 11, 2009).

Newman deals with a “satirical” question presented. It’s as bad as it sounds. The actual question presented reads:

Is it a violation of the Establishment Clause of the First Amendment to the Constitution of the United States when the manufacturer of the equipment used to test breath in driving under the influence cases refuses to divulge to any state or Federal agency, to any court, to any defendant, to any prosecutor or to any trier of fact the information programmed into the equipment and which controls the operation of and the results obtained from the equipment[?] Is it a further violation of law that the Commonwealth requires the courts, the prosecution, the defense and the triers of fact to take on faith alone that the information programmed into these machines is correct?

Crickets. The appellant had to defend this QP before a panel consisting of Chief Judge Felton and Judges Frank and Petty. One gathers that the argument did not go well:

At oral argument, appellant’s counsel informed the Court that appellant’s “question presented” concerning the Establishment Clause of the First Amendment to the United States Constitution was “satirical” in nature. Rule 3.1 of the Rules of Pro-fessional Conduct states, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

For good measure, the Court explains that because “appellant’s ‘questions presented,’ enumerated 1 through 5 in her opening brief and listed immediately below, fail to allege any trial court error, we will not consider them on appeal. See Rules 5A:12(c), 5A:20.”

And we’re still in the introduction. At least the opinion was unpublished.

A few lessons that we can draw from Newman:

  1. The question presented/assignment of error is the most important part of your brief. Treat it that way. You should spend more time on this than any other part of the brief, because it can win or lose the whole appeal. And your QP/AE absolutely must explain what the trial court did wrong. I’ve found two approaches helpful in making sure that it does so. One is to set up your QP/AE as a short (< 75 word) syllogism, with a major premise (legal rule), minor premise (key facts), and a conclusion. Another is to write your QP/AE as the topic sentence of the opinion that you would like to receive: “The trial court erred by x because y.”
  2. Lawyers are not funny. Really. We’re not even close. On the O’Keeffe scale of things that are terribly unfunny, lawyers fall somewhere between toxic mold and Norbit. And appeals are particularly serious. Newman, after all, was a criminal case, and one the defendant had lost below. Humor has no place whatsoever in an appellate brief or argument. Whenever I try to make this point, someone invariably brings up the story that Ted Olson said something funny in oral argument once. Two points in response. First, he’s Ted Olson. Second, here’s the joke he supposedly told: One of the justices prodded him to answer a question, saying something like, “It’s an easy question, counselor.” To which he responded: “I know, Your Honor. It’s the answer that’s difficult.” There it is: the high-water mark of appellate humor.

Finally, although it’s a little off-topic, I had a chance to grab a beer this weekend with my law-school classmate, the (urban) legendary Tom Cotton. Tom–Mr. Cotton to those of us in Section 1–was back from tours in Iraq and Afghanistan, and is finishing up his time on active duty. Congratulations, Tom, and thank you for your service.