Effective July 1, 2025, Code Section 17.1-403(ii)(c) expanded the CAV’s authority to dispense with oral argument. Before that date, the statute directed the Supreme Court to adopt rules allowing the CAV to dispense with oral argument “if the parties agree that oral argument is not necessary or if the panel has examined the briefs and
Affirm, Reverse, Vacate, and Remand
Over at SCOTUSblog, Stephen Wermiel has a short post about judgments and mandates, and in particular the difference between reversing and vacating a judgment. By statute, SCOTUS has the power to the power to “affirm, modify, vacate, set aside or reverse any judgment” of a lower court, and “remand the cause and direct the
Arguing from Someone Else’s Brief
From time to time, we appellate lawyers may find ourselves in the position of arguing from someone else’s brief. Now, to be clear: The brief itself may be effective. It may even be good. But it’s not ours. Every lawyer has their own style. As Brother Emmert can attest, I take a maximalist approach to
Mary Washington Healthcare v. Costello–CAV on Interlocutory-Appeal Certifications
In Mary Washington Healthcare v. Costello, the CAV holds that a trial court certifying an issue for interlocutory appeal does not have to explicitly make the four-part finding laid out in Code § 8.01-675.5.
Code § 8.01-675.5, you will recall, requires that a would-be appellant ask the court to certify in writing that an
Galiotos v. Galiotos (again)
These five appeals arise from a longstanding dispute among three brothers—Stavros (“Steve”), Paul, and Tasos Galiotos—over the division of business assets
Using AI to Prep for Oral Argument
I’ve been experimenting with using ChatGPT to prep for oral argument. I always do the thinking myself first, putting together my silly lists, outlines, and tough questions. But then I’ve been using AI to backstop or refine my work. It’s pretty good!
Here’s the basic process: First, I tell the client what I’m planning to
How Much Time Should You Reserve for Rebuttal in the CAV?
- In my experience, most panels that eat into your rebuttal time in your opening give that time back in your rebuttal. I haven’t done a systematic study of this, but I’m fairly confident in the anecdata–confident
What do you do when a document is missing from the record?
Every appellate CLE stresses the importance of reviewing the record as soon as possible, particularly if you are the appellant. This is especially important in state court because (1) you run up against deadlines quickly once the record lands in CAV, and (2) PACER works, but OCRA . . . kinda works sometimes?
And at
“Plain Error” versus “Fundamental Error”
Western Express and Worthy contend that we review the decision for plain error because Le Doux never briefed or argued in the district court whether Virginia law permits
Llewellyn v. Fechtel: Do you think 8,984 RFAs are enough?
Sometimes I worry that AI is going to replace lawyers. And then the universe hands me an opinion like Llewellyn v. Fechtel, showing that nothing that able to pass the Turing test could ever do our jobs.
Llewellyn is a trusts-and-estates case; basically, Fechtel claimed the Llewellyn breached her fiduciary duties as trustee. The