Our last post discussed Brandon v. Cox. The basic question in Brandon was whether an appellant had preserved an argument for appeal by raising it in a motion to reconsider that she filed but did not notice for hearing.
The Supreme Court of Virginia held that she hadn’t, which seems like a reasonable ruling . . .
. . . except that, as several readers(including Josh in the comments) have pointed out, I missed a step in the analysis: Rule 4:15(d) provides that “Oral argument on a motion for reconsideration . . . shall be heard orally only at the request of the court.”
In other words, under the terms of the Rule, Brandon couldn’t have brought her motion to reconsider on for a hearing.
Brandon has filed a petition for rehearing raising this argument. While I can see both sides of the issue, I have a definite opinion about how the petition for rehearing should be resolved.
Much as it pains me, I will keep that opinion to myself while the case is pending. Monday-morning quarterbacking is one thing, but I wouldn’t feel right commenting on an ongoing appeal. After all, I wouldn’t appreciate it if someone commented on my arguments (or my opponents) while the Court was still deliberating.
(And as a
cynical practical matter, it’s much easier to critique arguments after the opinion comes down, when you have the benefit of hindsight.)
As a sidenote, the petition for rehearing does raise an interesting point about how practices differ across the state. I’ll admit that I’d completely forgotten about Rule 4:15(d)’s limitation on oral argument. I’m pretty sure that I’ve violated it at one point or another, and I’ve certainly seen other lawyers do so.
The provision limiting oral argument and with Rule 4:15(c)’s page limits for briefs seem to be more honored in the breach in some of the courts where I practice. On the other hand, judges around here take the reasonable-effort-to-confer provision quite seriously. Based on some of the stuff I’ve received from out-of-town lawyers, I suspect that judges in other jurisdictions may overlook that requirement.
Somewhere in there, you could probably find an argument about the importance of applying rules uniformly and as they are written. But as a confessed (if unwitting) rule-breaker, I’m hardly the person to make that point.