The VTLA just wrapped up another terrific annual meeting at the Homestead. I learned many things during the CLE sessions, including that I would like to be Mike Imprevento when I grow up.
But one of the absolute highlights of the meeting was a session called “Supreme Court Thoughts and Muses,” in which Jeffrey Breit moderated a panel made up of Justice Lemons, Justice McClanahan, and Justice Powell.
One of Breit’s best questions was something along the lines of: “When we are arguing before a writ panel, how do we get the Court to want to grant our appeal?” This is a particularly timely question, given the impending appellate apocalypse in Virginia state courts.
Justice Lemons responded that appellate arguments are all about keeping score, and that during the writ stage, you need to convince only one justice to grant your appeal.That’s it. Just one. (The merits stage demands multivariable calculus by comparison; it usually requires you to count all the way to four.) Although a writ panel is made up of three or four justices, the petitioner can always force the entire Court to review his argument by filing a petition for rehearing. But he still needs to convince only one justice. Not having to assemble a majority, or even convince more than a single person, should allow the petitioner to tailor his or her argument to a justice who is likely to be sympathetic to the petitioner’s arguments, based on past jurisprudence.
Justice Powell added that, at the writ stage, the fact that a case is one of first impression will often get her attention and make her more likely to grant the appeal. Justice McClanahan amplified that answer, noting that it’s necessary to convince the Court both that your case is one of first impression and that it’s a case worth the Court’s time to hear. The focus at the writ stage is on why the Court should take the case in the first place, not why the petitioner should have won below. Justice McClanahan also warned listeners that if they assert multiple assignments of error, the Court will want to know if it needs to grant all of them. That is a common query at the writ argument. Petitioner’s counsel should come in ready to respond.
On the subject of oral argument, Breit asked the justices whether they discuss cases before oral argument.
Justice Lemons offered a historical perspective. When he first came to the Court, those discussions did not take place. The Court’s culture at the time forbade discussions of cases before oral argument. The first conversation about the case took place at the decision conference after oral argument. That is no longer true. Now, the justices talk to each other by e-mail and telephone, discussing things like how they feel about particular issues, or whether they believe points were preserved for appeal. Justice Lemons urged the lawyers in the audience to remember this image: When they stand at the lectern, they are enjoying their first and only chance to participate in the Court’s discussion of the case. He noted that anecdotal evidence shows that nationwide, the outcomes of 15 to 20% of cases are affected by oral argument.
Another interesting tidbit from the panel: Justice Powell is the only member of the panel who reads like a normal human being. From start to finish. More specifically, she reads the briefs in the order in which they are submitted, starting with the opening brief of the appellant, moving on to the appellee’s brief, and finishing with the reply brief.
Justice McClanahan, on the other hand, starts with the reply brief, because when it is done well it will go directly to the flashpoint of contention in the case. (Also, when done poorly, the reply brief just regurgitates the arguments from the opening brief–but it does so in 15 pages instead of 50.) There is a certain logic to this approach. I’ve heard of other judges reading this way, so I do try to start my reply briefs with an introduction that recalibrates the arguments after the appellee’s offensive.
And then there’s Justice Lemons, who employs a method that is somewhat more difficult to anticipate. He waits until all of the briefs are in. Then he starts by reading the summary of the appellant’s case. (Important note to appellants: Please include a summary of your argument for Justice Lemons. You’re welcome.) Having been at this game for a while, Justice Lemons knows what the Court has decided, what it hasn’t, and what areas of the law he feels that it needs to develop. So after reading the summary of the appellant’s case, he goes directly to the portions of the brief that are interesting to him and reads them piecemeal. He does the same thing with the appellee’s brief.