Earlier this week, we hosted the Virginia State Bar Appellate Section’s CLE on practicing before the Court of Appeals. The event was a success, but its timing was unfortunate: as James Markels noted in a comment to an earlier post, Senator Creigh Deeds just introduced SB 630, a bill to abolish the CAV.
I am told by a reliable source outside our firm that SB 630 is some kind of a statement being made by Senator Deeds, alone.
I am also told by sources closer to home that I should not make fun of legislators while Monica is a candidate for the Court of Appeals.
Ergo, I will not waste your time arguing against SB 630. (Although a person inclined to make such an argument might start with the caseload reports.)
Instead, secure in the knowledge that we’ve dodged intermediate appellate Armageddon for now, I will pass along some tips from the CLE after the jump.
The CLE’s presenters were Monica, Judge Petty, John Tucker, and Alice Armstrong. All were predictably strong. I’ve got the materials and I’m glad to share them if you’re interested.
I found Judge Petty’s discussion of the behind-the-scenes mechanics of the Court of Appeals to be the highlight of the event.
This is not brown-nosing; since I don’t practice in the CAV very often, I’m less familiar with its internal workings, and have relatively little to gain from kissing up to its judges. (Put Chief Justice Kinser on a panel, by contrast, and watch me fawn embarrassingly over her.)
A few takeaways from Judge Petty’s talk:
- The CAV is serious about Rule 5A:20’s requirement that the appellant note where an assignment of error was preserved in the record. It will dismiss an appeal under Rule 5A:18 if he fails to do so. The SCV is not so harsh; I’ve seen it completely ignore violations of its coordinate Rule 5:17(c).
- When your appeal arrives in the CAV, the clerk’s office goes through the file with a checklist to ensure that it includes all required papers. This bears repeating: the very first thing that happens when your file arrives is that it’s scoured for procedural default. Judge Petty encourages lawyers to use similar checklists to ensure that things are in order.
- Appeals of right are then reviewed by the staff attorney’s office. If the staff attorney recommends summary affirmance, the appeal will be forwarded to a standing panel of 3 judges. If any 1 of those 3 thinks it should go forward, the appeal will reach the merits stage. Otherwise, it will be affirmed summarily.
- An appeal of right that survives this stage is then assigned to a panel of 3 judges. Each panel gets 18 cases. One judge is randomly assigned responsibility for each case; cases are assigned in alphabetical order as they come in.
- Once a panel’s caseload is filled, the cases are sent to the judges assigned to sit on that panel. Seatings are decided in January but not announced until argument to discourage judge-shopping.
- The judges get their cases about 60 days before oral argument. Only the judge assigned primary responsibility for the case receives the record; the other two work from the joint appendix, but can review the record if necessary. If you consider that each judge gets 18 cases, with primary responsibility for writing 6 opinions, this is a fairly tight time frame. It is therefore critical that your briefs are effective and to the point, and that your appendices are not overloaded with useless arcana.
- Like other appellate courts, the CAV holds its decision conference immediately after oral argument. Oral argument can therefore make a big difference; it is the closest thing to a lawyer’s chance to participate in the decision conference.
Of course, things work slightly differently on the criminal side, where appeals are by petition.
Thanks to everyone in the VSB’s appellate section who worked hard to make this CLE a success.