I had the pleasure of watching a day of oral argument at the Supreme Court of Virginia recently.

Because I was second-chairing an argument that my partner, Monica Monday, delivered, I was actually able to relax and pay attention to the other arguments.

Here are a few lessons that I gleaned:

  1. Don’t Milk the Billy Goat. The theme of one appellee’s argument is that the opponent was trying to milk a billy goat and make the Court hold the strainer. Or maybe the appellee had the strainer. I’m not really sure. “Milking the billy goat” is, of course, a reference to Kant’s Critique of Pure Reason. It’s the only joke in the treatise, and Kant stole it from Demonax of Cyprus (in violation, one assumes, of the categorical imperative). The gist of the reference is that asking an absurd question that doesn’t admit of a rational answer embarrasses both the questioner and the respondent. You knew that, right? I didn’t. I had to look the phrase up after the argument. At the time, I wasn’t thinking, “Wow, what a smart lawyer.” I was thinking something more along the lines of, “What the s*%#?” The line completely took me out of the flow of the argument, and left me pondering the mysteries of zoology rather than counsel’s logic. (And seriously . . . what’s the strainer for?) Judging from some bemused comments I heard from others in the courtroom, I wasn’t the only one led astray. And thus the lesson: when in doubt, make your point in plain English.
  2. Know When to Stop Talking. This falls into the “easier-said-than-done” category, but I saw a number of lawyers who were winning their oral argument try to make one point too many, only to draw an unnecessary question from the Court. When you’ve said what you have to say to win, and it’s clear that the Court understands your position, it’s okay to stop talking. In fact, it probably conveys confidence in your position to sit down without using up every last minute of your time.
  3. Be Yourself. No need to impress people with, say, obscure references to Enlightenment philosophers. You don’t need to convince the Court that you are smart, or a great orator to win. You don’t even need to be particularly polished. You just need to have a pleasant, professional conversation about the case. Be yourself.
  4. Unless You’re a Jerk. Of course, if being yourself requires you to take unnecessary jabs at opposing counsel (like pointing out that he’s being paid by his client–yep, saw that one), or to talk over the justices, or to gesticulate wildly, you might consider being someone else. Paul Clement and Ted Olson would be good choices.
  5. Speak Up. The microphone in the SCV courtroom is for recordation, not amplification.
  6. Keep the Next Case in Mind. The justices will often ask hypothetical questions to test the limits of the rule you’re advocating. That’s because while they’re deciding this case, they’re already thinking about how your rule will apply in the next case. That’s one of many, many reasons why it’s always good to articulate a limiting principle for any rule that you propose. Also, it’s not helpful to explain that the Court’s hypothetical does not describe this case. That’s what makes it hypothetical.
  7. Recognize Different Types of Questions. Different judges have different questioning styles. Justice Lemons favors questions that crystallize positions, either by testing them with hypotheticals or phrasing them in a pithy manner. Justice Mims will often ask direct questions that essentially articulate a position (presumably his position) to other members of the Court. Chief Justice Kinser tends to ask procedural questions about the mechanics of the appeal. These different types of questions need to be approached differently, as they present different opportunities and challenges for the advocate.

Finally, I’d be remiss if I didn’t pass along congratulations to VSB/VBA member Patty Millett on her nomination to the D.C. Circuit. I had the pleasure of serving on a VBA committee with her a few years ago. She’s eminently qualified and surprisingly funny.

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 are, in no particular order:

  1. Make sure that the order is final. Generally speaking, a final order disposes of the whole subject, gives all of the relief contemplated, and leaves nothing to be done by the trial court–except, maybe, to attend ministerially to the execution of the order. E.g., Comcast of Chesterfield County, Inc. v. Bd. of Supervisors, 277 Va. 393, 301, 672 S.E.2d 870, 873 (2009). This rule can lead to some weird results. An order that merely sustains a demurrer without dismissing the case, for example, is not a final order. Bibber v. McCreary, 194 Va. 394, 395, 73 S.E.2d 382, 383 (1952). Also, it doesn’t hurt to clearly label the order “Final Order.”
  2. Where appropriate, attach the transcript or letter opinion and incorporate it by reference. If your order concerns a ruling that the trial court made from the bench or in a letter opinion, consider attaching the relevant pages to the order and incorporate them by reference, or quoting the pertinent language in the order. Any other process risks devolving into a competition where you and counsel each try to “improve” the trial judge’s wording.
  3. Beware of trial judges bearing gifts. Trial judges sometimes try to accommodate counsel by attempting to stop the running of certain appellate deadlines. There’s an entire jurisprudence full of these failed efforts. I’ll save you some reading: all that a trial court can really do to toll the running of the notice of appeal deadline is to modify, vacate, or suspend a final order within 21 days of its entry. If you ask the judge to do that, make sure that he or she uses the magic words from Rules 1:1 and 5:5(b).
  4. Preserve everyone’s objections. Although it’s not strictly necessary, I generally include language either in the text of the order or above the endorsements of counsel making it clear that all parties have preserved their objections. This saves time by heading off frivolous arguments that someone has waived an appeal point because his lawyer did not place the magic language above her signature. (Obviously, if your opponent’s case has a legitimate waiver issue, you might want to tread carefully here.)
  5. Set up the suspension bond. I also like to include language putting the parties on notice that the losing party in the trial court can file a suspension bond and setting the amount of that bond. See Va. Code Sec. 8.01-676.1. A year’s worth of interest on the judgment at 6% seems like a reasonable amount to me, although I could see an argument for 18 months of interest. Again, this is not strictly necessary, but it saves trouble down the line.

See? That’s not so bad . . . and it only took me 11 years of getting this stuff wrong to write that list.

It’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 have been all but worthless. Over the past 25 years, the Court has issued something like 18 opinions or orders related to petitions for rehearing, which is well under one a year. I didn’t think much more of petitions for rehearing at the writ stage.

A pair of recent articles make a fairly compelling case that I was wrong.

The first, a piece by Peter Veith in Virginia Lawyers Weekly (subscription required), reports on a presentation that Chief Justice Kinser, Justice McClanahan, and Judge Chafin recently spoke at a Virginia State Bar Solo and Small-Firm Practitioner Forum in Abingdon.

As Vieth notes, that talk came just days after the Court had agreed to hear appeals in two high-profile cases that were initially rejected by the Court. It granted petitions for rehearing in both the Virginia Tech shooting case and the dissolution of The Disthene Group, Inc. (Full disclosure: our firm is involved in other matters concerning The Disthene Group, but is not handling this appeal.)

Anecdotally, I undertand that other lawyers have also been having some luck with petitions for rehearing at the writ stage. Justice Mims gave Steve Emmert credit for successfully using them when he spoke at the VTLA a few years ago.

Anyway, as Vieth reports, Chief Justice Kinser and Justice McClanahan suggest that a petition for rehearing “is nearly always worth a try.” That’s because a petition for appeal is submitted to a panel of three or four justices. A petition for rehearing, by contrast, is circulated to the entire Court. Since you only need to convince a single justice to have an appeal granted, it’s better to share your arguments with seven justices than three.

In fact, Vieth quotes Justice McClanahan as saying: “I can’t think of any reason not to [seek rehearing] if you believe you have a reason to do it.”

I think that Justice McClanahan is correct. I also think that, if you are filing a petition for appeal in the first place, then you should “believe that you have a reason” to file a petition for rehearing.

Going forward, I’ll be filing petitions for rehearing as a matter of course in cases where my initial petition for appeal is unsuccessful.

But petitions for rehearing at the merits stage are another matter altogether, right?

Continue Reading Rehearing Aid? Supreme Court of Virginia Warms Up to Petitions for Rehearing

Recently, I’ve been experimenting with the way I prepare for oral argument. After reading David Frederick’s outstanding book, Supreme Court and Appellate Advocacy, I’ve followed his advice and taken to making argument blocks.

What are argument blocks? They’re really just a table summarizing my 3-5 key affirmative points and my responses to opposing counsel’s 3-5 best points. They summarize, in free-verse bullet points, everything important that I have to say, with cites to the joint appendix and pages of case law.

Here is a sample block of affirmative points:

FMVSS should not be admitted

·         Minimum performance in front impact collisions. This is rear impact.

·         Physics different. JA 701-02.

·         Compliance not relevant—Uxa, Malcolm

·         Restatement 4(b): product’s compliance with reg relevant to whether product defective with regard to risks sought to be reduced by reg

·         Close case. JA 1837.

·         Relevance outweighed by danger of unfair prejudice

·         D: Government certified product as safe. ECF 311 @71-72

·         MIL: JA 169

·         NHTSA certified copy of NHTSA test of compliance. JA 1294-95

·         Mentioned NHTSA 15x

FMVSS Jury Instruction

·         Compliance “does not exempt a person from liability at common law.” 49 U.S.C. 30103(e)

·         “compliance with SS is not to be a defense or otherwise affect the rights ot the parties under common law….” H.R. No. 1776 at 24 (1966)

·         Preserves state sovereignty

·         DX39: FMVSS 213 protects against unreasonable risk of death or injury. JA 1120

·         Instruction: can consider, does not require you find one way or another. JA 1660

·         Pl. 27: compliance not a defense. JA 1248

·         Pl. 28: Compliance not evidence that gov’t certified as safe. JA 1249

·         NHTSA found HBB “reasonably safe and not unreasonably dangerous.” ECF 311 at 71-72

Instruction 16 (JA 1659)

·         Based on cases where sophisticated consumer elects not to have optional safety feature. Austin, Butler.

·         No such choice here

·         Mom no role in designing product

·         Bought retail at big-box store. JA 644

·         Did not see much selection. JA 645.

·         No seats with larger wings. JA 649.

·         Not VMJI

·         Neither SCV nor 4th Cir. has ever approved in this context

Instruction 16 (JA 1659)

·         In retail context, always safer product

·         Q: was HBB unreasonably dangerous?

·         Distracts jury

·         Inverts legal principle, makes consumer justify purchase of anything but safest possible product

·         As written, assumes choice was reasonable—central issue in case

Continue Reading Good Ideas That I Stole From Smart People: Argument Blocks

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 rules provide some relief from this problem, as both allow for entry of an appelable partial final judgment. See Fed. R. Civ. P. 54(b); Va. Sup. Ct. R. 5:8A.

But what’s a plaintiff to do when partial final judgment is not available?

Well, some get creative and dismiss the remaining claims with or without prejudice, thereby creating a final, appealable judgment–they hope. We discussed some of the potential problems with this approach a few years back, calling it the “finality trap.”

Bennett Evan Cooper has a short piece on this phenomenon in the Fall 2012 issue of the ABA Appellate Practice Committee Newsletter, called “‘Manufactured Finality’ and the Right to Appeal in Federal Courts.”

Continue Reading The Finality Trap Revisited

The Supreme Court of Virginia livened up the lull between Christmas and New Year’s with an order vacating the preliminary injunction in Dietz Development, LLC v. Perez. Dietz has everything–First Amendment Issues, appellate procedure, and a sexy social media angle.

Background

It’s probably the latter that first got Dietz into the Washington Post. In short, Perez, a homeowner, was dissatisfied with Dietz’s work as a contractor, so she posted negative reviews on the online forums Yelp and Angie’s List. She also accused the firm of invoicing her for work that it hadn’t done, and intimated that it may have been involved in stealing her jewelery.

Dietz sued for defamation and asked for an injunction directing Perez to remove the negative postings and preventing her from making similar statements in the future.

Dietz sought a preliminary injunction. The trial court heard evidence and issued an injunction directing Perez to remove or modify certain posts.

Facepalm.

First Amendment.

This is going to get ugly.

And so it came to pass. Perez got some help from the ACLU and Public Citizen. She filed a petition for review on her behalf under Code Section 8.01-626, which basically allows immediate review of orders granting or denying an injunction. The statute says that petitions for review are directed to a single justice, but in practice they’re reviewed by panels of three justices.

Perez assembled a very persuasive petition for review, arguing principally that (1) the trial court’s ruling was a constitutionally impermissible prior restraint, and (2) equity will not enjoin a libel.

Perez filed her petition on December 26. Two days later, the Supreme Court of Virginia vacated the injunction. Think about that: two days, starting on the day after Christmas, to review the record, consider the law, and issue a ruling. As a person who’s colossally unproductive during the holidays (witness my blog output), I stand in awe.

Anyway, back to the action. Justices Lemons, Goodwyn, and Powell ruled that the circuit court’s order was defective because it did not specify the time during which the injunction would be effective, as required by Code Section 8.01-624. The Court also ruled that Dietz had an adequate remedy at law.

So what can we take away from Dietz?

Continue Reading Yelp! Dietz Development, LLC v. Perez

Here’s a fun procedural question for appellate geeks: Can an equally divided Court of Appeals, sitting en banc, reverse a judgment previously entered by a panel of that court?

It seems like the answer ought to be a simple no; when an appellate court is evenly divided, the default result is affirmance. But in Conley v. Commonwealth,  things get a little complicated.

Conley was convicted of two misdemeanor DUIs, then a third felony offense, DUI after being twice convicted of the same offense within 10 years. His direct appeals foundered, but he was eventually able to habeas his way out of the second conviction.

That left a problem: Conley’s third-offense DUI was really a second offense, even though he’d suffered the heightened penalties.

Conley filed a petition for a writ of actual innocence in the Court of Appeals of Virginia.

A divided panel granted his petition and remanded the case for resentencing. The Commonwealth asked for a rehearing en banc.

The Court of Appeals heard argument sitting en banc with 10 judges, and split evenly. It entered an order stating: “Upon rehearing en banc, the petition for writ of actual innocence is dismissed without opinion by an equally divided Court. Accordingly, the order previously entered by a panel of this Court . . . is withdrawn.”

What a minute . . . isn’t that the opposite of what’s supposed to happen?

Continue Reading Conley v. Commonwealth–Reversal by an Evenly Divided Court?!

One of the side benefits of my job is that every now and then, for reasons I can’t begin to understand, legal-writing books just show up in the mail. Sometimes they come to me, and sometimes they go to our librarian. Either way, I am compelled to drop everything I’m doing to read them immediately.

This happened again the other day. A little book called The Seven Deadly Sins of Legal Writing by Theodore Blumberg showed up in the mail. And when I say little, I mean tiny: it’s 34 pages long (with some practice exercises appended).

I don’t know where it came from. I don’t know who Theodore Blumberg is . . . but I like him.

His book is terrific. I’m not going to give you all seven of Blumberg’ sins; that wouldn’t be fair. Instead, I will share three tips and observations from the book that resonated with me, and leave it to you to decide whether it’s worth the investment ($7.95 on Amazon) to get all of the seven deadlies.

  1. Blumberg’s Rule of Infliction. Judges read briefs because they have to. They feel about briefs the way that students feel about homework–basically, that briefs them away from the rest of their life. As a result, a brief that’s 10 pages long will be received more favorably–and read more carefully–than one that’s three times as long. So everything we write should be as tight as possible. According to Blumberg and his sources, most first drafts can be cut in half without losing any meaning. He encourages multiple rounds of edits to eliminate needless words. I’m going to take him up on that advice. Having recently gone back to review some of my briefs to prepare for a few arguments, I’ve been embarrassed at how flabby sections of them were.
  2. Adverbs insult your reader’s intelligence. They basically tell the reader how to react to your statement. If your writing’s sound, then your reader’s already there and doesn’t need (or appreciate) the help. Adverbs also rob your writing of force by giving away the punchline of every sentence. For example, the surest way to undermine a sentence about something tragic is to start out with the word, “tragically.” At the same time, you can use an adverb to temper the force of a verbal blow: A products-liability defendant might write something like, “Tragically, the infant plaintiff was crippled in the resulting collision.” (Also note how the use of the passive voice deflects responsibility.)
  3. Lawyers used to be paid by the word. Really. At least according to Adam Smith, who’s never been wrong about anything. As Blumberg puts it: “Now I suspect that our fondness for pleonasm and verbosity is a holdover. Whatever the origin, it’s a habit to be shaken.”

Did you have to look up “pleonasm”? I did. I’m not proud.

Seven Deadly Sins is beautifully written. You can read it in about the time it takes to drink a cup of coffee, and it costs less than a decent cocktail. I can’t imagine a lawyer not liking this book.

Over the summer, we did a couple of posts on Brandon v. Cox, a case that’s important to appellate practitioners who use motions to reconsider to clean up the record before appeal.

In Brandon, you’ll recall, the plaintiff raised an argument in her motion for reconsideration that did not appear elsewhere in the record. There was no evidence that she ever brought that motion on for a hearing.

The Court determined that this was insufficient to preserve the point for appeal. It faulted Brandon for not filing a notice of hearing to definitively place the matter before the trial court or obtaining a ruling on her motion.

Nothing surprising so far.

But Brandon filed a petition for rehearing, pointing out that she couldn’t bring her petition on for a hearing. Under Rule 4:15(d), oral argument is heard on a motion for reconsideration only at the request of the court.

Although Brandon was pro se in the trial court, she had top-notch appellate counsel for her petition for rehearing, which was a strong piece of work–and just over 5 pages long.

The Supreme Court granted rehearing, although it declined to request additional briefing or argument. And on September 24, the Supreme Court handed down a revised opinion in Brandon.

Or rather, as my daughter might say, it handed down a revised opinion. Ish.

The result is exactly the same: a 6-1 affirmance. There appear to be 2 substantive changes to the majority opinion. The first is the deletion of the line faulting Brandon for not filing a notice of hearing. The second is a change to a footnote, which adds language stating: “Although Rule 4:15(d) provides for a hearing only at the request of the court, it is incumbent upon the party seeking an appeal to provide us with a record that shows, beyond the mere filing in the clerk’s office, that the court had an opportunity to rule.”

That’s harsh, because the Court doesn’t explain what a party is required to do “beyond the mere filing in the clerk’s office” to preserve a point for appeal. That leaves lawyers in a lurch; especially when you are first retained on appeal, a motion for reconsideration is a very useful tool to make sure that the record is in decent shape. It’s necessary to know what steps to take to do so effectively–or if that’s even possible.

While the majority opinion in Brandon remains largely unchanged, Justice Mims’ dissent is expanded to point out the problem the majority creates. He notes–quite sensibly–that parties who file motions generally do so with the intention that the court will rule on them. (The exception being the Nusbaum situation, where counsel raises an issue “just for the record.”)

For Justice Mims, the filing of a motion is proof that the movant requested a ruling. I don’t disagree. At least in the case of motions for reconsideration, the dissent would consider the “mere filing” of a document with the clerk’s office to preserve a point for appeal. That strikes me as a reasonable rule.

Justice Mims then goes a little further than I would, essentially arguing that a party has no effective recourse beyond just filing a motion for reconsideration. He points out that a letter to the clerk is likely to receive the same treatment (crickets) as the motion itself. A phone call or letter to chambers, by contrast, might be more effective, but it would be unlikely to appear in the record.

But these steps aren’t mutually exclusive. There’s no reason why you can’t correspond with chambers, copying the clerk to ensure that your letter makes it into the record. You can even apprise chambers of the 21-day rule, and explain that any failure to rule (or to suspend, modify, or vacate the final order) would effectively be a denial of your motion. To which you would, of course, object.

Is that a perfect solution? Hardly. As one of my pen pals noted, any number of bad things could happen to put a crimp in my plan. The judge could be on vacation. Opposing counsel could come down with the flu. The Supreme Court could decide that, even if you did everything I said, you still didn’t effectively object to the trial court’s denial of your motion to reconsider.

All that, and worse, could happen. That said, Justice Mims gave the VTLA some sound advice once: “When in danger, when in doubt, run in circles, scream and shout.”

In the wake of Brandon v. Cox (revisited), that’s the best plan I’ve got for preserving a point in a motion for reconsideration.

One of the perennial challenges of being an appellate lawyer is dealing with nerves at oral argument.

The only thing worse than nerves at oral argument is the stress of preparing for oral argument. As part of the process, you try to anticipate and plan a response to every killer question that might be headed your way until your brain gets caught in an endless feedback loop and you wake up at 3 in the morning thinking of answers to questions about the standard of review that will never be asked–questions that in any kind of sane world, should never be asked.

Books and CLEs offer all kinds of advice on this point; without getting into specifics, let’s just say that it’s of widely varying quality. Worse, a lot of the advice is repetitive. It’s rare to find stress-management tips that are original or particularly effective.

But local favorite Justice Kagan has come through once again, describing a new technique in the interview she granted Bryan Garner for the ABA Journal (emphasis added):

G: Was your very first oral argument in the U.S. Supreme Court?

K: My very first appellate argument was in the U.S. Supreme Court.

G: Wow! That’s incredible!

K: It was even worse than that really: it was in the U.S. Supreme Court and it was the Citizens United case.

G: That was your first oral argument?

K: It was my first oral argument. It was an important argument. For those who don’t know, it was a case that had been argued the prior term. The Court had decided to re-argue it and had set a couple of questions for re-argument on whether the Court should reverse its precedents in a couple of important cases. It was pretty clear to people that the Court was ready to do something significant—to reverse those cases. So it was nerve racking to do an argument of that importance for my first one. But every time I got too nervous about it, I would say it’s okay because we know which way this is going to come out. You’re going to lose. They basically announced that by re-arguing the case in this way. But that said, it was a nervous-making kind of argument.

Somewhere, Herm Edwards is rolling in his grave . . .

Continue Reading Dealing with Nerves at (and Before) Oral Argument: Some Advice from Justice Kagan