The Virginia State Bar and the Virginia Bar Association teamed up last week to present a stellar appellate CLE in Richmond.
The day started out with a panel of the chief jurists from Virginia’s appellate courts–Chief Justice Kinser of the SCV, Chief Judge Traxler of the Fourth Circuit, and Chief Judge Felton from the CAV–and the appellate bench maintained an extraordinarily strong representation throughout the day.
Numerous judges and justices took time out of their schedules to help improve the quality of appellate advocacy in Virginia.
In between, practitioners shared their thoughts on a variety of appellate topics.
All in all, it made for a uniquely helpful CLE.
Here are some of the highlights:
- Chief Justice Kinser and Chief Judge Traxler both emphasized the relative youth of their courts. On the SCV, after the Chief and Justice Lemons, the next-most-senior justice has five years’ experience, and the seven-member court added two new justices last fall. Similarly, the fifteen-judge Fourth Circuit has recently added five new members. This kind of turnover is really remarkable, and it necessarily affects the courts’ institutional knowledge. From my own perspective, it also calls into question practitioners’ understanding of the two courts. All of a sudden, we are seeing split opinions from the SCV, and the Fourth Circuit–having gone from 10 to 15 members–seems to be granting oral argument more often in civil cases. (This may just be my subjective impression; Chief Judge Traxler explained that the Fourth Circuit grants oral argument in 15% of cases and that he did not expect that stat to increase significantly, although he acknowledged that with more judges the court will have the ability to grant more hearings.)
- The Chiefs generally agreed that oral argument is important, and can make an impact in a small but real set of cases. Chief Judge Traxler said that, 90-95% of the time, he goes into oral argument leaning one way or the other–but he allowed that, every so often, a lawyer will manage to snatch defeat from the jaws of victory at oral argument.
- In a later panel, Justice Mims offered a wonderful quotation that he’d shared with the VTLA two years ago. Paraphrasing here, the general point was that it is the duty of the trial judge to be quick, courteous, and wrong. But it does not follow that the intermediate court of appeals should be slow, crapulous, and right, for that would usurp the role of the supreme court.
- Here’s a sobering stat for practitioners: Justice Mims estimated that the SCV hears about 30 cases a week when it is in session. To prepare, the justices will have to read 80-120 briefs over the course of 3-4 weeks. Which they do. Justice Mims reminded the bar that “[t]hey’re called briefs for a reason,” and suggested that there’s rarely a need to use every page you’re allotted.
- Judge Frank recommended making it a Class 1 felony to use the word disingenuous in a brief. I can support that proposal.
Another of the summit’s recurring themes was the use of technology. That merits (at least) its own post. It’s worth noting, however, that Virginia’s three appellate courts seem generally receptive to the use of technology in the courtroom, although they are moving forward at different rates. Chief Judge Traxler said that he would like to see lecterns expanded to facilitate the use of laptops or iPads, and Chief Justice Kinser noted that two justices on the SCV are using iPads.
Finally, many thanks to the organizers of the summit, and the jurists and presenters who worked so hard to make it a rousing success.