The Court of Appeals handed down Theologis v. Weiler today, a fun opinion in a defamation and business-conspiracy case. The whole opinion is highly recommended. Summary below, but here are the points of greatest interest to appellate practitioners:
Here’s a question that has come up often enough that I suppose it merits its own post: What happens if the Clerk of the Court of Appeals does not properly notify the appellant of the filing of the transcript?
(Disclaimer: The Clerk’s office does a wonderful job! They are great to deal with! They probably
Adam Liptak reports on a new study showing that an undergraduate degree from Harvard, Princeton, or Yale significantly boosts an applicant’s chances of landing a SCOTUS clerkship.
Per Liptak, the study found that during the 40 years leading up to 2020, more than 2/3 of SCOTUS clerks came from just five law schools. (Yes, the
Rule 5A:8(c)’s written statement of facts is one of the absolute nightmares of Virginia appellate practice.
The underlying notion seems simple enough: If an important hearing or trial took place but there’s no transcript, the appellate court needs something to review; otherwise, it’s just going to affirm, because the trial court’s judgment is presumptively correct.
As the great and the good work on revising the rules for the expanded Court of Appeals of Virginia, I have a question: Should the Court of Appeals have binding assignments of error?
The current rules, of course, require assignments of error, and a key part of the revision project is minimizing any unnecessary changes.
I’m working my way through Leadership in Turbulent Times by Doris Kearns Goodwin, which distills leadership lessons from the careers of Abraham Lincoln, Teddy Roosevelt, FDR, and LBJ. Solid read so far.
One of the highlights is the section where a chastened Lincoln responds to his failed stint in congress (following his failed stint in the Illinois state legislature) by deciding to become an elite trial lawyer:
The half-decade that followed Lincoln’s brief and unhappy tenure in Congress is often depicted as a period of withdrawal from public life. He himself claimed that he “was losing interest in politics.” Although one might suspect his claim, it is undeniable that he practiced law more assiduously than ever before. Furthermore, this waiting period was anything but a passive time; it was, on the contrary, an intense period of personal, intellectual, moral, and professional growth, for during these years he learned to position himself as a lawyer and a leader able to cope with the tremors that were beginning to rack the country.
So how did our nation’s most celebrated Vampire Hunter transform himself into a Super Lawyer?
Continue Reading Abraham Lincoln: Super Lawyer
Good stuff out of the Fourth Circuit this week–the Court published an opinion addressing two delightfully nerdy topics, Rule 59 motions and the mandate rule, JTH Tax, Inc. v. Aime.
Full disclosure: Before reading this opinion, I did not know that the mandate rule was a thing.
I mean, I could have derived it–it seems like a bad idea to ask a lower court to overrule a higher court’s opinion earlier in the exact same case?–but I didn’t know there was actually a rule saying that you can’t do that. Now I do. So I am literally a better lawyer than I was when I started the opinion. Read on if you are dumb like me and could use a powerup.
Continue Reading CA4 on Mandate Rule and Rule 59
Just finished reading Five Chiefs: A Supreme Court Memoir by Justice Stevens. Okay, not great. My primary takeaway is that when SCOTUS is on the bench, “each justice also has a metal spittoon next to his or her chair . . . .” Big if true.
Here are a few other less important points from the book:
Continue Reading Five Chieves
SCOVA recently granted an appeal in Norton v. Board of Supervisors of Fairfax County, Record No. 201028. Here are the assignments of error:
1. The trial court erred in dismissing Count VIII of the Second Amended Complaint because the Airbnb Hosts produced probative evidence that the Board’s adoption of the STL Zoning Ordinance was unreasonable, arbitrary and capricious where the Board failed to give reasonable consideration for the existing use of property as required by Virginia Code § 15.2-2284 and where the Board offered no evidence (and there was no evidence) of reasonableness to make the issue fairly debatable.
2. The trial court erred in dismissing Counts IV and V of the Second Amended Complaint because the Board’s STL Zoning Ordinance is unconstitutionally vague and violates the Airbnb Hosts’ procedural and substantive due process rights under the Due Process Clause of the United States Constitution, as incorporated by the Fourteenth Amendment, by allowing short-term residential occupancy as a by-right use without a permit but also characterizing short-term residential occupancy as an accessory use subject to mandatory permitting requirements.
3. The trial court erred in dismissing Count III of the Second Amended Complaint because the Board’s adoption of the Transient Occupancy Tax Amendment violates Dillon’s Rule because Virginia Code § 58.1-3819 does not authorize the Board to tax the short-term residential occupancy of a dwelling.
Why is this interesting? Three reasons (none of which have anything to do with Airbnb).
Continue Reading Appeals Granted: Norton v. Board of Supervisors of Fairfax County
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.
Continue Reading Dead Man Walking