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
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Findlay is Not the Answer
Posted in Appellate Practice, BriefsWe 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 PracticeHere’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 PracticeYou 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
Screen Reading on the Rise at the Supreme Court of Virginia?
Posted in Appellate PracticeLook: I like toys. I work in a paperless law office. My enthusiasm for PDFs has rocketed to near-Svenson levels. I am a huge fan of tablets, and I probably do as much screen reading as any lawyer you’ll meet. Even so, I’m a little concerned about a pair of orders that the Supreme Court of Virginia… Continue Reading
Supreme Court Thoughts and Muses from the VTLA’s Annual Meeting
Posted in Appellate Practice, Oral Argument, UncategorizedJust about everyone who’s argued before the Supreme Court of Virginia has tortured him- or her-self with the same mind game at one point or another. It usually starts with a chain of thought that goes something like this: Wow, that was an intense argument. Justice X seemed really hostile. He was asking a ton of… 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 ErrorFrequent 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, UncategorizedWe 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
Legal Research: How Do You Know When Enough Is Enough?
Posted in Appellate Practice, UncategorizedI’ve never been any good at figuring out when I’m done with a legal research project. This will come as absolutely no surprise to those who know my many personality flaws and obsessions. For most questions, I can get the right answer in less than two hours, a definitive answer in less than two days, and… Continue Reading
Seven Appellate Tips from a Seventh Circuit Judge
Posted in Appellate Practice, Briefs, Oral ArgumentI 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
5 Reasons Why Appellees Win All the Time (And How You Can, Too)
Posted in Appellate PracticeHere’s a very basic, very depressing rule of thumb: roughly nine out of ten cases get affirmed. The exact figures vary by court, and we can certainly debate the utility of macro and micro figures, but the basic disparity is there. Part of it has to be a result of the appellee having a decent case;… Continue Reading
Boringest Post Ever Lulls Readers to Sleep with Discussion of Appeal and Suspension Bonds
Posted in Appellate PracticeHandling 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 PracticePeople 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
Rehearing Aid? Supreme Court of Virginia Warms Up to Petitions for Rehearing
Posted in Appellate PracticeIt’s not often that I admit that I’ve been wrong (because I’m not often wrong) but I’ll admit it here: I have been mistaken in my approach to petitions for rehearing in the Supreme Court of Virginia. For a long time, I didn’t take petitions for rehearing seriously. Statistically, petitions for rehearing in merits cases… Continue Reading
The Finality Trap Revisited
Posted in Appellate PracticeHere’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 PracticeI’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
Mea Culpa (in Which I Do NOT Comment on a Pending Petition for Rehearing)
Posted in Appellate PracticeOur last post discussed Brandon v. Cox. The basic question in Brandon was whether an appellant had preserved an argument for appeal by raising it in a motion to reconsider that she filed but did not notice for hearing. The Supreme Court of Virginia held that she hadn’t, which seems like a reasonable ruling . . . .… Continue Reading
Guest Post: Trial by iPad
Posted in Appellate PracticeA 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
The Bathroom Rule and Other Reasons to Choose Experienced Counsel
Posted in Appellate PracticeI’ve enjoyed reading two short pieces in the past few days. The first was a charming article that Shelly Collette wrote about her experiences as a young lawyer appearing in two cases before the Supreme Court of Virginia. She writes very honestly about the experience–case in point: I was almost physically ill my first time… Continue Reading
Slow, Crapulous, and Right: Highlights from the VBA/VSB Appellate Summit
Posted in Appellate PracticeThe Virginia State Bar and the Virginia Bar Association teamed up last week to present a stellar appellate CLE in Richmond. The day started out with a panel of the chief jurists from Virginia’s appellate courts–Chief Justice Kinser of the SCV, Chief Judge Traxler of the Fourth Circuit, and Chief Judge Felton from the CAV–and… Continue Reading
A Trial Judge Is Not a Potted Plant: Justice Millette’s “Observations from a Trial and Appellate Judge”
Posted in Appellate PracticeI’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
Justice Sotomayor Visits Sesame Street
Posted in Appellate PracticeJustice Sonia Sotomayor dropped by Sesame Street the other day to hear a dispute between Goldilocks and Baby Bear. Enjoy. Thiis may be as close to cameras in the SCOTUS courtroom as we are going to get: … Continue Reading
La Fin Absolue du CAV?
Posted in Appellate PracticeEarlier 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 PracticeAbout 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