Drafting a solid reply brief is one of the toughest appellate skills to master.

You want your reply to meet the substance of the appellee’s brief without letting him dictate the argument. You want to strike the right tone and cram a relatively significant amount of law-talking into relatively few pages (at least in state court) and on a tight turnaround (in every court). And for goodness sake, you don’t want to sound snarky.

All of which is easier said than done. Couple that with an unfortunate dearth of good resources on writing reply briefs,and you’ve got the makings of a real problem.

That’s why I was so excited to see Richard Kraus’s article, Crafting an Influential and Effective Reply Brief, in the latest edition of Appellate Issues. The article is worth reading in its entirety–it’s a quick 2-1/2 pages long–but here are a few of his tips:

  1. Reprise. A good reply brief should reprise the themes of the opening brief, using a short introduction to set the stage. That introduction is a handy place to point out arguments that the appellee fails to address, or concessions that he is forced to make.
  2. Only Hit the Highlights. One of the absolute hardest parts of writing a reply brief is knowing what to leave out. Lawyers tend to want to respond to every argument.  Discretion being the better part of valor, and page limitations being what they are, the real art in writing a reply brief is deciding what to ignore. Kraus recommends trying to identify which arguments will interest an appellate judge before starting your reply brief and letting the rest go. I concur; in fact, I try to do this even earlier in the process, when I am writing my opening brief.
  3. Don’t Let the Bad Guy Boss the Play. Kraus counsels against restating the appellee’s argument, then rebutting it. That just emphasizes the Bad Guy’s argument. He suggests starting paragraphs with sentences identifying the error in the appellee’s argument, rather than the argument itself–e.g., “Appellee’s extrinsic evidence cannot overcome the plain language of the contract.” This keeps the appellee’s argument from hogging prime real estate in your reply.

On point 3, Kraus’s sentiment is right but I’m not sure about his advice. It’s important to present the Bad Guy’s argument’s fairly, and it’s equally important to walk the reader through a coherent progression of logic. That might require spending a little time to restate the argument. When I’m reading non-legal persuasive writing, for example, I tend to find most compelling pieces that take the time to present the opposing position in the best possible light, then dismantle it.

That, however, is a minor quibble. Kraus’ article is excellent and well worth your time.

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 maybe even a month by now) since I read the book, and I’ve been meaning to do a review.

But I just can’t make myself do it. Because . . . meh.

The book’s just not that good.

It kills me to write that. I love the earlier Scalia/Garner effort, Making Your Case. I have three copies of it on my bookshelf right now, because I hand one out to every new associate who joins our firm.

I defer to no one in my regard for Garner. Alongside those copies of Making Your Case, I’ve also got at least Modern American Usage, Modern Legal Usage, The Winning Brief, The Redbook, The Winning Oral Argument, and Black’s Law Dictionary–maybe more; my eyes are bad. And Justice Scalia is maybe the best legal writer, ever.

But their latest work falls flat.

I don’t know why, exactly. I get the need for an accessible book on how to interpret legal documents. My law school provided little enough of that instruction, and from what I can tell from the briefs I read these days, it wasn’t alone.  I recently saw a brief in a noncompete case that didn’t even quote–never mind try to parse–the challenged language from the contract. I’ve also seen briefs in statutory interpretation cases that basically ignore the language of the statute, and not for any readily discernible tactical reason.

So I accept the idea behind Reading Law. I guess I just don’t enjoy the execution.

For starters, I didn’t feel like the book was speaking to me. Large chunks of it had less to do with the work of interpreting law and more to do with Justice Scalia settling old scores with justices, judges, academics, commentators, the media, the guy who cut him off on the Parkway, his Cub Scout leader–and if I recall correctly–Dahlia Lithwick.

Also–and maybe this is just me–when I apply the authors’ interpretive tools, I am not always inexorably led to their result. The textualist approach just strikes me as more manipulable than Scalia and Garner are willing to concede. So you can work your way through some of their examples, but never get the promised payoff. Given the subject matter, that can makes for a tedious read at times.

Finally, the structure of the book is just weird. It’s like a book on statutory interpretation sandwiched between two law review articles I would never, ever willingly read–one about why the textualists have been right all along (like, since the Middle Ages), and the other about how to use dictionaries. If I had to guess, I would say that Justice Scalia was largely the driving force behind the former, and that Garner was responsible for the latter.

That’s not to say that the book is all bad. Much of the meat of the book, which analyzes individual canons of interpretation in some detail, is quite good–especially if (like me) you have trouble remembering exactly what ejusdem generis means.

But overall, Reading Law is nowhere close to making my list of must-reads for new lawyers.

Our 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 . . .

. . . except that, as several readers(including Josh in the comments) have pointed out, I missed a step in the analysis: Rule 4:15(d) provides that “Oral argument on a motion for reconsideration . . . shall be heard orally only at the request of the court.”

In other words, under the terms of the Rule, Brandon couldn’t have brought her motion to reconsider on for a hearing.

Brandon has filed a petition for rehearing raising this argument. While I can see both sides of the issue, I have a definite opinion about how the petition for rehearing should be resolved.

Much as it pains me, I will keep that opinion to myself while the case is pending. Monday-morning quarterbacking is one thing, but I wouldn’t feel right commenting on an ongoing appeal. After all, I wouldn’t appreciate it if someone commented on my arguments (or my opponents) while the Court was still deliberating.

(And as a cynical practical matter, it’s much easier to critique arguments after the opinion comes down, when you have the benefit of hindsight.)

As a sidenote, the petition for rehearing does raise an interesting point about how practices differ across the state. I’ll admit that I’d completely forgotten about Rule 4:15(d)’s limitation on oral argument. I’m pretty sure that I’ve violated it at one point or another, and I’ve certainly seen other lawyers do so.

The provision limiting oral argument and with Rule 4:15(c)’s page limits for briefs seem to be more honored in the breach in some of the courts where I practice. On the other hand, judges around here take the reasonable-effort-to-confer provision quite seriously. Based on some of the stuff I’ve received from out-of-town lawyers, I suspect that judges in other jurisdictions may overlook that requirement.

Somewhere in there, you could probably find an argument about the importance of applying rules uniformly and as they are written. But as a confessed (if unwitting) rule-breaker, I’m hardly the person to make that point.

The SCV’s second waiver decision from last term, Brandon v. Cox, deals with two questions–one about the use of a motion to reconsider to preserve error (easy), and the other about applying the ends-of-justice exception to the contemporaneous-objection rule (much harder).

Brandon was a Section 8 tenant whose landlord withheld her security deposit without justification. The trial court ruled in favor of the landlord. On appeal, Brandon argued that the trial court had erred in ruling that the landlord and its management company could retain her security deposit to satisfy an alleged rent obligation of the housing authority.

The interesting question on appeal wasn’t whether that argument was right or wrong, but whether she’d properly raised it in the trial court in the first place.

There was no court reporter at trial, so Brandon prepared a written statement of facts. The written statement of facts did not contain any details about the parties’ arguments or the trial court’s rulings. Nor did the order or any written pleading from the trial.

Brandon did file a motion to reconsider advancing her appellate argument, but she didn’t request a hearing or get a ruling on the motion.

Of course, to preserve an issue for appeal, you always need to get a ruling. So why is this question even worth writing about?

Code Section 8.01-384(A), which abolishes exceptions and basically establishes that you only need to object once, provides that arguments made in writing at trial are preserved:

Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.

Brandon v. Cox presented a question of first impression: in light of this statute, does simply filing a written motion to reconsider after trial preserve an objection?

Stop me if you know the answer . . .

Continue Reading More on the Contemporaneous-Objection Rule: Brandon v. Cox

Two opinions from the SCV’s last session help to clarify a topic near and dear to our hearts: the contemporaneous-objection rule. We’ll address one decision this week, and take up the other one shortly.

To preserve an issue for appeal, a party has to object with reasonable certainty at the time of the trial court’s ruling. Rule 5:25. Basically, he or she has to give the trial court a fair opportunity to rule intelligently on the issue, at a time when the court can still fix any mistakes.

There are plenty of good policy reasons for this rule. Some of the most frequently cited include:

  1. Protecting the trial court from appeals on undisclosed grounds. If you think back to your days in school, it would hardly be fair if a teacher failed you for giving the wrong answer to a question that he never asked. The same rule works for judges.
  2. Preventing traps on appeal. Generally speaking, you don’t get to spring things on opposing counsel for the first time on review.
  3. Avoiding unnecessary reversals.

The first two are fairness concerns, and the last is a judicial economy issue.

When we are brought in as appellate counsel, one of the first things we look at is whether the appellant’s issues were properly preserved in the trial court. When we represent the appellant and we’re worried about preservation, we also consider whether we can fix any issues with a motion to reconsider, a motion for a new trial, or a similar pleading.

After all, an objection can still be “contemporaneous” so long as it is made when a trial court is still in a position to take corrective action.

But this analysis can get very tricky when a jury is involved. After a trial court has sent an issue to the jury, is it still in a position to take corrective action on points of law for purposes of the contemporaneous-objection rule (e.g., by setting aside a verdict or ordering a new trial)?

In other words, how contemporaneous does your objection really need to be, and how much can you fix if you, as appellate counsel, show up late to the party?

We get some clarity on these questions from Nolte v. MT Technology Enterprises, LLC. The facts of the case are waaay too complicated to recite here, but I commend the case to you. It has discovery hi jinks, heavy sanctions (including a bar on cross-examining opposing witnesses?!), and loads of business guys acting badly.

Sanctions, business torts, and business jerks? Why, yes, Justice Lemons did write the opinion. Why do you ask?

Continue Reading How Contemporaneous Does that Objection Really Need to Be? Nolte v. MT Technology Enterprises, LLC

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 read on the device.

But iPads have much more to offer lawyers. In fact, Kristian Brabander of McCarthy Tetrault is in the midst of a huge, possibly multi-year trial, and his entire trial team–even the really old senior lawyers–is using the iPad.

Kristian graciously agreed to do a guest post about his experience:

I have been a fan of the iPad since its inception. In fairness, I have been an Apple fan since, well, Apple. But the iPad really has changed things. Where I used to carry a briefcase or trial bag on wheels everywhere I went, I now carry only my iPad (and sometimes an accompanying Bluetooth keyboard). At this point most litigators will think: that’s all fine and dandy for everyday purposes but what happens when you get to trial?

The answer, as I have recently discovered, is that the iPad is every bit as useful as you hope it could be. Just as with anything else, however, it requires a bit of planning. The results are then spectacular.

I am currently involved in a massive civil trial. It is likely to last over a year and possibly more than two. The stakes are very, very high (even by whatever standards you use) and there are between 20 and 40 lawyers in the courtroom every day. I am only one of a team of lawyers representing a big commercial client.

Each member of our senior trial team is equipped with an iPad in court — and nothing else. (In fairness, this being a really big case, we also have a junior lawyer equipped with a laptop and an Internet connection to our document management system back at the office, just in case.) No huge collections of binders of documents, no stacks of note pads. This includes the really senior senior trial team members, the guys who still say things like, “Please take a letter” into a dictaphone.

Continue Reading Guest Post: Trial by iPad

I’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 at the Supreme Court of Virginia. I excused myself to use the restroom after an argument and discovered that you are not allowed back in the Court until after the argument is finished. I had to wait outside the courtroom and as soon as the doors opened, naturally the next case was mine.

Yikes! Experienced SCV advocates know that it’s critical to factor the Bathroom Rule into your argument prep. The bailiffs will literally lock the courthouse door.

Collette is also quite frank about how intimidating she found the Court, and about the sense of awe that she had about the experience.

Overall, she wrote a nice, feel-goody piece. I’ve always liked the way that writ arguments–and especially the annual traveling writ panel day–expose a range of lawyers to the Court, and there is something neat about hearing lawyers’ reactions to their first shot at appellate advocacy. This stuff is fun, after all.

But then I read the second article: the Curmudgeon’s Breakfast with Easterbrook.

Continue Reading The Bathroom Rule and Other Reasons to Choose Experienced Counsel

The 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 the appellate bench maintained an extraordinarily strong representation throughout the day.

Numerous judges and justices took  time out of their schedules to help improve the quality of appellate advocacy in Virginia.

In between, practitioners shared their thoughts on a variety of appellate topics.

All in all, it made for a uniquely helpful CLE.

Here are some of the highlights:

  • Chief Justice Kinser and Chief Judge Traxler both emphasized the relative youth of their courts. On the SCV, after the Chief and Justice Lemons, the next-most-senior justice has five years’ experience, and the seven-member court added two new justices last fall. Similarly, the fifteen-judge Fourth Circuit has recently added five new members. This kind of turnover is really remarkable, and it necessarily affects the courts’ institutional knowledge. From my own perspective, it also calls into question practitioners’ understanding of the two courts. All of a sudden, we are seeing split opinions from the SCV, and the Fourth Circuit–having gone from 10 to 15 members–seems to be granting oral argument more often in civil cases. (This may just be my subjective impression; Chief Judge Traxler explained that the Fourth Circuit grants oral argument in 15% of cases and that he did not expect that stat to increase significantly, although he acknowledged that with more judges the court will have the ability to grant more hearings.)
  • The Chiefs generally agreed that oral argument is important, and can make an impact in a small but real set of cases. Chief Judge Traxler said that, 90-95% of the time, he goes into oral argument leaning one way or the other–but he allowed that, every so often, a lawyer will manage to snatch defeat from the jaws of victory at oral argument.
  • In a later panel, Justice Mims offered a wonderful quotation that he’d shared with the VTLA two years ago. Paraphrasing here, the general point was that it is the duty of the trial judge to be quick, courteous, and wrong. But it does not follow that the intermediate court of appeals should be slow, crapulous, and right, for that would usurp the role of the supreme court.
  • Here’s a sobering stat for practitioners: Justice Mims estimated that the SCV hears about 30 cases a week when it is in session. To prepare, the justices will have to read 80-120 briefs over the course of 3-4 weeks. Which they do. Justice Mims reminded the bar that “[t]hey’re called briefs for a reason,” and suggested that there’s rarely a need to use every page you’re allotted.
  • Judge Frank recommended making it a Class 1 felony to use the word disingenuous in a brief. I can support that proposal.

Another of the summit’s recurring themes was the use of technology. That merits (at least) its own post. It’s worth noting, however, that Virginia’s three appellate courts seem generally receptive to the use of technology in the courtroom, although they are moving forward at different rates. Chief Judge Traxler said that he would like to see lecterns expanded to facilitate the use of laptops or iPads, and Chief Justice Kinser noted that two justices on the SCV are using iPads.

Finally, many thanks to the organizers of the summit, and the jurists and presenters who worked so hard to make it a rousing success.

The most critical part of getting ready for oral argument is anticipating the questions that you will get from the bench and preparing to answer them effectively.

To do that, as soon as I start working on an appeal I create a list of “tough questions,” which I continue to update through the date of oral argument. These are the questions that I expect (or am afraid) to get from the bench, based on the issues in the case and my experience with the jurists involved.

I also have a set of canned questions from Aldisert that I get ready to answer–not because anyone has ever asked me these questions in real life, but because thinking about them helps me to distill my argument.

In that vein, Colonel Louis J. Puleo has a neat article in the ABA Council of Appellate Lawyer’s Spring 2012 newsletter, Appellate Issues, in which he discuses preparing for oral argument. (HT John Bratt at Baltimore Injury Lawyer Blog.) He includes a list of 10 questions that counsel must be prepared to answer.

With a few exceptions, I’d group these along with Aldisert’s questions as things you should be prepared to answer not because you are likely to hear them at argument, but because if you can’t answer them then you probably don’t understand your argument.

Here are Col. Puleo’s “necessary ten”:

  1. What is the standard of appellate review, and what does that mean for the court’s review authority?
  2. What is your strongest/best position? If there are competing grounds upon which to rule, which one would you want the court to adopt, and why?
  3. What relief are you requesting, and what is the court’s authority to grant that relief?
  4. Is there a statutory or regulatory requirement or precedent compelling the court to adopt the position you’re advancing?
  5. (For government lawyers) Does your position require coordination with other agencies?
  6. Who has the burden during the appeal?
  7. What right/privilege has been infringed? Where does this right or privilege come from, and how has it been infringed?
  8. What is the prejudice or lack of prejudice?
  9. If you could write the opinion, what would it hold?
  10. Has the claimed error been preserved, waived, or forfeited?

If you’ve done a good job on your briefing, then you probably know the answer to these questions already–but you’d be surprised what you can overlook in your preparations.

I couldn’t tell you how many times I’ve sat on moot court panels, and thrown off an appellant with an even simpler version of 3: “What are you asking us to do?” Sometimes they don’t even know; when they do know, you can have a lot of fun with this follow up: “Can we do that?”

Nobody who’s practiced Co. Puleo’s questions will be stumped by that one.

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 on the latter, here are a few of Justice Millette’s observations:

  • Justice Millette stressed the importance of preparation and credibility. He noted that some lawyers appear frequently before the Court and have earned its trust through careful preparation and honest advocacy. Justice Millette called this “a great advantage.”
  • In connection with that, he suggested that young lawyers come into court to watch other lawyers, good or bad; either way, the observer is likely to learn something. But you won’t learn anything if you’re sitting out in the hall.
  • Justice Millette estimated that 70-80% of cases are decided based on the briefs, although he acknowledged that the members of the Court debate the precise figure. He explained that, given the Court’s busy schedule of hearing a round of cases roughly every 8 weeks, clarity is of paramount importance in brief writing.
  • To that end, Justice Millette recommended organizing a brief in a clear, outline format. I’d clarify that it’s helpful to include descriptive subject headings that reflect the outline organization of the brief, so that the Court can turn quickly to a given section. This can be useful when a case presents multiple assignments of error and the Court wants to focus on one in particular.
  • One of the most interesting parts of the presentation dealt with preserving error, and in particular the trial judge’s role in the process. Justice Millette stressed the importance of giving the trial judge a chance to make the correct ruling, and of ensuring that the record shows that the judge had that opportunity. He noted that waiver–and particularly the extent of the trial judge’s responsibility–has been a point of contention on the Court, with Justice Koontz memorably insisting that a trial judge is not a potted plant.
  • Justice Millette is already on the record as politely suggesting that lawyers not refer to the Court as “you guys.” He repeated that advice, noting that this form of address resonates particularly poorly with the female members of the Court.
  • Finally, Justice Millette cautioned against relying too heavily on the “right result, wrong reason” doctrine, explaining that the Court tries to use it sparingly.

Those are just the highlights from the talk. On the “you guys” point, remind me to tell you my “Don’t tell the Court ‘what’s that'” story sometime. Worst day of writ arguments I’ve ever seen.