It's hard to type with this law hammer.
It’s hard to type with this law hammer.

Congratulations to our new Chief Justice Donald Lemons and to the jurists recently elected to Virginia’s appellate courts–SCV Justice-elect Arthur Kelsey and CAV Judges-elect Richard Atlee, Mary Grace O’Brien, and Wesley Russell. All begin their terms on February 1. (And no, I have no idea if “Justice- or Judge-elect” is actually the proper term for a new member of the court between election and investiture.) 

Intrepid reporter and longtime friend of De Novo Peter Vieth (@Peter_Vieth) recently interviewed the new Chief Justice, and you can read some of the highlights in this week’s Virginia Lawyer’s Weekly.

One exchange in particular caught my eye: Vieth asked Lemons about the changes that he’s witnessed since joining the Court in 2000. The Chief Justice explained that, when he started, it was “unheard of” for the justices to talk about the substance of cases before the conference following oral argument. Now, by contrast, the justices are “constantly in contact with one another about the substantive questions that are before the court.”

Lemons surmised that this early communication could be playing a role in the decline in appeals granted. “The rule remains that it takes only one justice to accept an appeal. Nowadays, however, by the time a writ is considered, it’s likely that the court has already discussed whether there is a need to fix a trial court error or clarify the law, Lemons said.”

That’s an interesting thought. I’m not sure quite what to do with it.

On the one hand, you can hardly fault the Court for improved communication or efficiency.

On the other, I’m not a big fan of the decline in appeals granted–either from the selfish perspective of business development, or from the broader view of developing the law or correcting trial-court error. So I don’t relish the idea of the justices getting together online and talking themselves out of taking a case. That’s particularly true if some or all of them haven’t had the benefit of oral argument, and maybe haven’t heard the best explanation of the petitioner’s case.

(Of course, that’s easy for me to say–I’m not the person who has to work through all of the writ arguments.)

But despite the flourish about technology, I think that the ultimate takeaway from the Chief Justice’s comments is actually pretty old-fashioned: the briefing in an appeal is critically important. Particularly if your argument is going to be relayed to a justice by a staff attorney in a bench memo or another justice via email, you want the key points to get through. An introduction or preliminary statement, or even a well-framed assignment of error, can go a long way toward achieving that goal.