De Novo: A Virginia Appellate Law Blog

De Novo: A Virginia Appellate Law Blog

Jay O’Keeffe practices with Johnson, Rosen & O’Keeffe LLC. in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more

Category Archives: Appellate Practice

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Dead Man Walking

Posted in Appellate Practice, Preservation of Error, Writing
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.… Continue Reading

Findlay is Not the Answer

Posted in Appellate Practice, Briefs
We spent last post complaining about the difficulty of landing an assignment of error in the Goldilocks Zone. When I bring this up in real life, the response is usually that the Court solved this problem with Findlay v. Commonwealth, 287 Va. 111, 752 S.E.2d 868 (2014) . I disagree, for at least three reasons. But first,… Continue Reading

What’s the Right Number of Assignments of Error?

Posted in Appellate Practice
Here’s one of the philosophical disagreements that make my life interesting: Is it better to include more assignments of error in a petition for appeal, or fewer? Obviously, there’s no one-size-fits-all answer. I bet that there are some cases out there that warrant nine assignments of error. And there are surely some that merit zero. That said, over… Continue Reading

The Art of Appellate Advocacy

Posted in Appellate Practice
You may have heard that William and Mary Law School did this thing where they sent a professor into a room with six justices from the Supreme Court of Virginia, asked them questions, taped the conversation, and put the video on the web. I fail to see why this is a big deal. I routinely enter a room with not six… Continue Reading

Hicks v. Commonwealth: For the First Time Ever, SCV Applies “Good-Cause” Exception to Contemporaneous-Objection Rule

Posted in Appellate Practice, Opinions and Analysis, Preservation of Error
Frequent fliers in the Supreme Court of Virginia are all too familiar with Rule 5:25, the Court’s contemporaneous-objection rule. The rule is straightforward: No ruling of the trial court, disciplinary board, or commission before which the case was initially heard will be considered as a basis for reversal unless an objection was stated with reasonable… Continue Reading

Adding Insult to Injury? Virginia Code Section 8.01-682 and the Mysterious $250 in Damages

Posted in Appellate Practice, Uncategorized
We get questions about this a lot. When the Supreme Court of Virginia issues a mandate affirming a judgment, it will sometimes include this line: ‘The appellant shall pay to the appellee two hundred and fifty dollars damages.”   Occasionally, the appellee maybe curious about his unexpected windfall. But when you’re on the wrong end of one… Continue Reading

Seven Appellate Tips from a Seventh Circuit Judge

Posted in Appellate Practice, Briefs, Oral Argument
I was flipping through the latest volume of The Scribes Journal of Legal Writing when I came across  an interview that Bryan Garner did with (then-Chief) Judge Frank Easterbrook of the Seventh Circuit back in 2007. Bryan A. Garner, Interview with Judge Frank H. Easterbrook, 13 Scribes J. Legal Writing 1 (2013). Inveterate Garnerphile that I… Continue Reading

Boringest Post Ever Lulls Readers to Sleep with Discussion of Appeal and Suspension Bonds

Posted in Appellate Practice
Handling appeal and suspension bonds correctly is one of the more technical but nonetheless important parts of prosecuting an appeal. We often get questions about this stuff. In fact, a discussion on suspension bonds sprang up on the VTLA listserv last Friday. So it’s important to talk about bonds, even they ultimately prove goatless in comparison to the normally thrilling… Continue Reading

Five Thoughts on Final Orders

Posted in Appellate Practice
People sometimes send us their final orders for review before submitting them to opposing counsel or the trial court. We’re always glad to help, but I find that I’m often giving the same 3-5 comments over and over again. In fact, those 3-5 comments are probably the only remotely intelligent things that I have to say on the subject. Here they… Continue Reading

The Finality Trap Revisited

Posted in Appellate Practice
Here’s a common problem that plaintiffs face: they assert multiple claims and the trial court dismisses one, but not all, of them before trial. That can be especially painful when the dismissed claims form the heart of the suit, and it’s not worth the plaintiff’s time to pursue the remaining claims without them. State and federal… Continue Reading

Reading Law and Other Problems

Posted in Appellate Practice
I’m having a real problem with this blog post. As you’ve probably heard, Justice Scalia and Bryan Garner have a new book out, Reading Law: The Interpretation of Legal Texts. Inveterate Garnerphile that I am, I grabbed a copy as soon as it was available and dove in. And . . . meh. It’s been weeks (or… Continue Reading

Guest Post: Trial by iPad

Posted in Appellate Practice
A few weeks ago, Rob Dean and I hosted a CLE about using iPads in a law practice. We had a blast; Apple technology is famously fun to use. More to the point, state and federal appellate jurists are increasingly integrating iPads into their workflow. It’s worth learning to use this stuff if only to understand how judges are experiencing the briefs they… Continue Reading

A Trial Judge Is Not a Potted Plant: Justice Millette’s “Observations from a Trial and Appellate Judge”

Posted in Appellate Practice
I’m fresh from the VTLA’s annual meeting at the Greenbrier, in all its seizure-inducing, Technicolor grandeur. The event is always terrific and this year’s slate of speakers did not disappoint. Appellate topics included a panel discussion on petitions for rehearing and Justice Millette’s observations from his time on both the trial and appellate bench. Focusing… Continue Reading

La Fin Absolue du CAV?

Posted in Appellate Practice
Earlier this week, we hosted the Virginia State Bar Appellate Section’s CLE on practicing before the Court of Appeals. The event was a success, but its timing was unfortunate: as James Markels noted in a comment to an earlier post, Senator Creigh Deeds just introduced SB 630, a bill to abolish the CAV. I am told… Continue Reading

When Will Somebody Update This Blog (Part 2)?

Posted in Appellate Practice
About a year ago, I did a holiday post apologizing for the recent lack of substantive posts, and explaining what I’d been doing instead. This year, I decided to make that sort of post a De Novo holiday tradition, for two reasons. First, it just gets really busy around here during the holidays. Second, redoing the post lets me reuse this… Continue Reading