It’s not often that I admit that I’ve been wrong (because I’m not often wrong) but I’ll admit it here: I have been mistaken in my approach to petitions for rehearing in the Supreme Court of Virginia.
For a long time, I didn’t take petitions for rehearing seriously. Statistically, petitions for rehearing in merits cases have been all but worthless. Over the past 25 years, the Court has issued something like 18 opinions or orders related to petitions for rehearing, which is well under one a year. I didn’t think much more of petitions for rehearing at the writ stage.
A pair of recent articles make a fairly compelling case that I was wrong.
The first, a piece by Peter Veith in Virginia Lawyers Weekly (subscription required), reports on a presentation that Chief Justice Kinser, Justice McClanahan, and Judge Chafin recently spoke at a Virginia State Bar Solo and Small-Firm Practitioner Forum in Abingdon.
As Vieth notes, that talk came just days after the Court had agreed to hear appeals in two high-profile cases that were initially rejected by the Court. It granted petitions for rehearing in both the Virginia Tech shooting case and the dissolution of The Disthene Group, Inc. (Full disclosure: our firm is involved in other matters concerning The Disthene Group, but is not handling this appeal.)
Anecdotally, I undertand that other lawyers have also been having some luck with petitions for rehearing at the writ stage. Justice Mims gave Steve Emmert credit for successfully using them when he spoke at the VTLA a few years ago.
Anyway, as Vieth reports, Chief Justice Kinser and Justice McClanahan suggest that a petition for rehearing “is nearly always worth a try.” That’s because a petition for appeal is submitted to a panel of three or four justices. A petition for rehearing, by contrast, is circulated to the entire Court. Since you only need to convince a single justice to have an appeal granted, it’s better to share your arguments with seven justices than three.
In fact, Vieth quotes Justice McClanahan as saying: “I can’t think of any reason not to [seek rehearing] if you believe you have a reason to do it.”
I think that Justice McClanahan is correct. I also think that, if you are filing a petition for appeal in the first place, then you should “believe that you have a reason” to file a petition for rehearing.
Going forward, I’ll be filing petitions for rehearing as a matter of course in cases where my initial petition for appeal is unsuccessful.
But petitions for rehearing at the merits stage are another matter altogether, right?
Well, maybe not.
As noted above, petitions for rehearing at the merits stage have historically presented a low-percentage shot. But the Court has been more amenable to them in recent years. Brian Schneider and C. Stinson Mundy have an article in the Winter 2012-2013 issue of Civil Litigation that addresses petitions for rehearing at the merits stage called “‘Rehear Ye, Rehear Ye’: The Supreme Court of Virginia and Petitions for Rehearing under Rule 5:37.”
Schneider and Mundy report the terrifying historical statistics about merit-stage petitions for rehearing. But they also point out that, since 2008, the makeup of the Court has changed dramatically; only two of the seven justices who served as recently as the 2008 term remain on the Court.
By Schneider and Mundy’s count, over the past 12 to 18 months, the Supreme Court has granted rehearing in 5 different cases. That number might actually be even higher, because it doesn’t look like they’re counting Brandon v. Cox. Of the 6 rehearings granted, all have resulted in opinions. By my back of the envelope calculations, this recent activity represents about a third of the Court’s rehearing activity over the last 25 years. That suggests a significant change in the Court’s approach.
In sum, I underestimated the utility of petitions for rehearing. Going forward, I will employ them as a matter of course at the writ stage, and I will seriously consider them when things go badly at the merits stage.
Update: An informed reader points out that the justices granted four writs on PFRs last week alone. In addition to the two cases discussed above, they also granted Simpson v. Roberts (med mal) and Webb v. Virginia-Pilot (defamation). Simpson in particular bears watching, as it challenges the application of Virginia’s med-mal cap.