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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Fourth Circuit Shifts to the Left? To the Left, to the Left?

Posted in Appellate Practice
A piece in the Baltimore Sun last week makes the case that the traditionally conservative Fourth Circuit is becoming increasingly progressive. The primary support for the argument appears to be: Results in about a half dozen recent opinions, including a series of defendant-favorable Fourth Amendment holdings and the court’s rejection of challenges to the Affordable Care Act;  The fact that… Continue Reading

I Am John Roberts and So Can You, Part III: Video Proof

Posted in Appellate Practice, Oral Argument
We have a real treat for you today. A major highlight of last week’s AJEI Summit was a surprise appearance by Chief Justice Roberts, who dropped in on our Thursday-night reception. In person, the Chief is ever so dreamy, though perhaps not quite as tall as you might have expected. (Shortness is endemic in appellate circles; most people… Continue Reading

Where is Last Week’s Post?

Posted in Appellate Practice
Loyal readers are no doubt wondering what happened to last week’s post; I know that many of you plan your week around the sunbursts of appellate goodness that rarely regularly shine forth from these pages. The short answer is that it’s hiding. Last week I did a guest post at Chris Hill’s blog, Construction Law Musings, about… Continue Reading

AME Financial Corp. and Abuses of Discretion

Posted in Appellate Practice
I’m a sucker for a good standard of review. As the Curmudgeon likes to say, the standard of review decides cases. And sometimes, unfortunately, that standard of review is abuse of discretion. See, e.g., John Crane, Inc. v. Jones, 650 S.E.2d 851 (2007) (affirming trial court’s exercise of discretion; accidentally starting inexorable urban legend about expert disclosures). What… Continue Reading

The Five Best Parts of Virginia Law (or Practice)

Posted in Appellate Practice
A few weeks ago, we welcomed Virginia’s new justices and appellate judges with a piece about the five worst parts of Virginia law. In hindsight, that was probably a little rude: “Welcome to your new job. Here’s why it sucks.” To make amends, here is a list of the five best parts of Virginia law (or, maybe more precisely, practice): Oral Argument.… Continue Reading

The Five Worst Parts of Virginia Law

Posted in Appellate Practice
On Friday, Virginia appellate lawyers breathed a sigh of relief as the powers that be filled a crucial vacancy–and not a moment too soon. I think I speak for all of us when I say that we congratulate Jurgen Klinsmann on being named the 35th coach of the U.S. National Team, and look forward to his tenure. Also, the General Assembly elected some judges… Continue Reading

Guest Post: Eric Reed on Bond v. United States

Posted in Appellate Practice
According to a piece on the WSJ’s opinion page this morning, Bond v. United States may be the most important SCOTUS opinion of the year. David Rivkin and Lee Casey read Bond’s unanimous reaffirmation of dual sovereignty as an existential threat to the Patient Protection and Affordable Care Act (or “ObamaCare,” depending on your political perspective). We have… Continue Reading

The Finality Trap and Other Drinking Games

Posted in Appellate Practice
Apologies for the light blogging recently. I’ve been tied up with other pursuits–which, as its turns out, may inure to your benefit: Last week, I spent some of my (increasingly limited) nonbillable time on a webinar for Virginia CLE called “Blogging 101: Legal, Practical, Ethical, and Evidentiary Issues for Lawyers and Clients.” I learned that the webinar is a… Continue Reading

Musings of a Rookie Justice: Justice Mims Reflects on His First Year on the Supreme Court of Virginia

Posted in Appellate Practice
Justice Mims stole the show at this year’s VTLA convention, sharing his reflections on his first year on SCOVA a year to the day after he was sworn in. For some reason, most speakers at the convention chose to focus on the unpleasant, pre-appeal formalities–all that stuff that happens in the trial court with the evidence, the witnesses, the shouting, and the jurors. Not… Continue Reading

Appeals Granted

Posted in Appellate Practice
SCoVA recently granted a pair of criminal appeals in two cases, each styled Myers v. Commonwealth, which appear to raise similar issues about the correction of typographical errors in teh recod. Details at the Court’s website, and summaries after the jump.… Continue Reading

DRI 2011 Appellate Advocacy Seminar

Posted in Appellate Practice
DRI is holding its Appellate Advocacy Seminar in Orlando on March 10-11. The advance registration deadline is February 18. I’ve never been to the program (and unfortunately I won’t be able to make it this year), but I have heard excellent things about it. The program looks like will have a good Virginia presence this year. Senior Justice Lacy will… Continue Reading

Appeals Granted

Posted in Appellate Practice
In a slow week, SCOVA granted just one appeal (and reportedly on a petition for rehearing at that): a parol evidence/statute of frauds/estoppel case out of Williamsburg. As a bit of a contract junkie, I’ve got to admit that I’m interested. Also, Joe Rainsbury and Steve Emmert are involved, so the issues will be presented… Continue Reading

Good Ideas That I Stole From Smart People: Narrate the Facts Found, Not the Evidence Presented

Posted in Appellate Practice
I was flipping through my copy of Aldisert this afternoon and, as often happens, I came across a gem: in your statement of facts, narrate the facts found, not the evidence presented. As the judge explained: I repeat for emphasis that what counts are the facts found by the factfinder. When a jury determines the facts, the appellate… Continue Reading

Appeals Granted

Posted in Appellate Practice
Each Tuesday, the Supreme Court of Virginia posts information about the petitions for appeal that it has granted over the previous week. The Supremes heard writ arguments last week (h/t to Emmert–and, by extension, Alan Cooper–for that link to the writ docket), and have since granted one petition for appeal: MORRIS v. CHEDDA, Record No. 101277, on appeal… Continue Reading

When Will Somebody Update This Blog?

Posted in Appellate Practice
It’s like a ghost town around here. How long can we make readers wait for a halfway-decent substantive post? Unfortunately, the drought continues. I have been busy. Very, very busy. In addition to my day job–which has been crazy, though that’s never really an excuse for not posting–I have spent the time that could have gone to creating… Continue Reading

Thursday Q&A

Posted in Appellate Practice
Here are more of the questions and searches that have led people to De Novo, and our feeble attempts to address them: Cufflinks at oral argument? No. Noting objections on a final judgment order in Virginia. Generally a good idea, espcially if the trial court is still in a position to take corrective action. The more… Continue Reading

Good Ideas That I Stole From Smart People: Mandatory Office Moot Court

Posted in Appellate Practice
Our office has been in the midst of a debate about moot-courting appellate arguments. Some lawyers think that it’s invaluable; a moot court allows you to test themes and arguments, and exposes you to lines of questioning that you wouldn’t have otherwise anticipated. Others find it costly and excessive. They rarely if ever moot their own cases, and grouse when… Continue Reading

Justice Koontz Speaks to Ted Dalton Inn of Court

Posted in Appellate Practice
After more than 40 years on the bench and service at every level of the Virginia judiciary, Justice Koontz has run up against the mandatory retirement age. Earlier this week, he took the time to speak about his career with his former clerk (and my current partner) Monica Monday at a meeting of the Ted Dalton American Inn of Court. In the… Continue Reading

A Day in the Life of an Appellate Lawyer

Posted in Appellate Practice
My dad retires this month after 32 years of public service as a tax lawyer for the State of New York. I still have no idea what he does on a daily basis. I understand that it involves numbers. My brother, Patrick, also works with numbers. They must be different numbers, because he doesn’t know what Dad does for a living, either. Pat had… Continue Reading

Thursday Q&A

Posted in Appellate Practice
It’s time for another round of the increasingly bizarre searches that lead people to this blog, and our responses: can appellee attend argument on petition in virginia? Yes, appellees can and often do attend writ arguments. They just don’t get to argue themselves. See Va. Sup. Ct. R. 5:17(j)(i). Supreme Court of Virginia did not… Continue Reading

Blogging the Revisions to Virginia’s Appellate Rules: Rule 5:17

Posted in Appellate Practice
Rule 5:17, which governs petitions for appeal, includes a few important changes that practitioners should note. First, Rule 5:17(c)(1) clarifies what you need to include in your assignments of error: Under a separate heading called “Assignments of Error,” the petition must list, “clearly and concisely without extraneous argument” the specific errors in the rulings below upon which… Continue Reading