I’m fresh from the VTLA’s annual meeting at the Greenbrier, in all its seizure-inducing, Technicolor grandeur.

The event is always terrific and this year’s slate of speakers did not disappoint. Appellate topics included a panel discussion on petitions for rehearing and Justice Millette’s observations from his time on both the trial and appellate bench.

Focusing on the latter, here are a few of Justice Millette’s observations:

  • Justice Millette stressed the importance of preparation and credibility. He noted that some lawyers appear frequently before the Court and have earned its trust through careful preparation and honest advocacy. Justice Millette called this “a great advantage.”
  • In connection with that, he suggested that young lawyers come into court to watch other lawyers, good or bad; either way, the observer is likely to learn something. But you won’t learn anything if you’re sitting out in the hall.
  • Justice Millette estimated that 70-80% of cases are decided based on the briefs, although he acknowledged that the members of the Court debate the precise figure. He explained that, given the Court’s busy schedule of hearing a round of cases roughly every 8 weeks, clarity is of paramount importance in brief writing.
  • To that end, Justice Millette recommended organizing a brief in a clear, outline format. I’d clarify that it’s helpful to include descriptive subject headings that reflect the outline organization of the brief, so that the Court can turn quickly to a given section. This can be useful when a case presents multiple assignments of error and the Court wants to focus on one in particular.
  • One of the most interesting parts of the presentation dealt with preserving error, and in particular the trial judge’s role in the process. Justice Millette stressed the importance of giving the trial judge a chance to make the correct ruling, and of ensuring that the record shows that the judge had that opportunity. He noted that waiver–and particularly the extent of the trial judge’s responsibility–has been a point of contention on the Court, with Justice Koontz memorably insisting that a trial judge is not a potted plant.
  • Justice Millette is already on the record as politely suggesting that lawyers not refer to the Court as “you guys.” He repeated that advice, noting that this form of address resonates particularly poorly with the female members of the Court.
  • Finally, Justice Millette cautioned against relying too heavily on the “right result, wrong reason” doctrine, explaining that the Court tries to use it sparingly.

Those are just the highlights from the talk. On the “you guys” point, remind me to tell you my “Don’t tell the Court ‘what’s that'” story sometime. Worst day of writ arguments I’ve ever seen.