The brief in opposition is one of the great underappreciated joys of Virginia appellate practice. It comes at the writ stage, when we’re just trying to convince the Supreme Court that it should/should not grant a petition for appeal. We’re not necessarily arguing the merits. Sometimes, the petitioner will not yet have hired specialist appellate counsel. Even when they do, some nominal appellate lawyers fail to appreciate this distinction.

So how do we dissuade the Court from granting an appeal? Well, you have the usual arguments:

  • This is a fact-bound case.
  • This is an idiosyncratic issue that is unlikely to recur.
  • There’s no split below, nor any indication that the bench and bar need guidance on this issue.
  • This case is a poor vehicle for reaching an issue that may interest the Court.

That last one is key. Virginia has a robust procedural default jurisprudence. Trial counsel tend to be aware of this in principle, but they get a little hazy on the specifics. The specifics are all that matter here.

Off the top of my head, I’ve regurgitated a totally underinclusive list of 20 waiver/forfeiture/procedural default traps to look for at the writ stage. Any one of them can kill an appeal point:

  1. Failing to preserve a point by contemporaneously objecting with reasonable specificity. Rule 5:25.
  2. Objecting “just for the record” and not requesting a ruling under Nusbaum v. Berlin, 273 Va. 385 (2007).
  3. Objecting to evidence but introducing evidence of the same character in your case-in-chief. Drinkard-Nuckols v. Smith, 269 Va. 93 (2005).
  4. Failing to get a ruling on an objection.
  5. Failing to ensure that the record contains everything necessary to let the Court evaluate and resolve the assignment of error. Rule 5:11(a).
  6. Failing to proffer excluded evidence. Graham v. Cook, 278 Va. 233 (2009).
  7. Confusing objections to the admissibility of the evidence and the sufficiency of the evidence. See Bitar v. Rahman, 272 Va. 130 (2006).
  8. Failing to move for a mistrial at the close of all the evidence.
  9. Attempting to “renew” a motion to strike at the close of all the evidence instead of raising a new one (when the distinction matters).
  10. Agreeing (or failing to object) to a jury instruction that kills your theory.
  11. Relying on a naked case citation or a rejected jury instruction to preserve an argument not explicitly raised at trial.
  12. Objecting to a closing argument but not simultaneously asking for a curative instruction or a mistrial.
  13. Approbating and reprobating–that is, taking inconsistent position in successive phases of litigation.
  14. Law of the case.
  15. Inviting error.
  16. Right result/other reason.
  17. Failing to assign error to an independent basis for affirmance. Manchester Oaks Homeowners’ Ass’n v. Batt, 284 Va. 409 (2012).
  18. Assigning error to a ruling that the trial court never made. Martin v. Lahti, 295 Va. 77 (2018).
  19. “Bad brief” error–failing to argue an assignment of error as required by Rule 5:17, stashing an underdeveloped argument in a footnote, etc.
  20. Harmless error under Code § 8.01-678.

One of the wits on #appellatetwitter called an appellant boldly pushing a forfeited theory “dead man walking.” That seems about right.

And one last point, just to be clear: As a policy matter, I disagree with the emphasis that the Supreme Court placed on procedural defaults from, say, 2000-2015. I think it’s bad and wrong. I would much prefer that the Court address substantive issues. But we go to war with army we have