There’s too much going on this week to focus on work, so please indulge me if this post strays a little off topic.

On television, we welcome back the two best shows going, Mad Men and the absurdly NSFW Game of Thrones. 

Over shady internet streams, we get to watch an uber-talented U.S. Olympic soccer team fight for its life in qualifying against a murderer’s row of Cuba (6-0 US), Canada (2-0 CAN), and El Salvador (Monday night).

But none of that compares to what SCOTUS offers this week: a whopping six hours–six hours–of oral argument in the health care cases.

This offers a veritable wonderland for law geeks, as well as a great learning opportunity. (In fairness, both Mad Men and Game of Thrones also provide their share of life lessons. See, e.g., Stupid Ned Stark, source of the accompanying image.)

The WSJ’s Washington Wire blog offers a schedule of what we can expect when:

  • On Monday, 90 minutes of argument about the effect of the Anti-Injunction Act.
  • On Tuesday, two hours of argument on the constitutionality of the individual mandate.
  • On Wednesday morning, 90 minutes of argument on what to do with the Act if the Court strikes down the individual mandate.
  • On Wednesday afternoon, an hour of argument on the Act’s expansion of Medicaid.

The Court will release audio of the arguments immediately after these sessions.

Speaking of audio, the lead players in this week’s drama will be Solicitor General Donald Verrilli and the smartest person I’ve ever seen in real life, former SG Paul Clement. Nina Totenberg did a charming profile on each of them for All Things Considered. Here’s Verrilli, and here’s Clement. Both are well worth your time.

Update: Adam Liptak has a cool piece in the NYT about the lawyers’ preparation for this marathon argument, which includes numerous moot courts.

Finally, in a last-ditch attempt to squeeze something useful out of this post, I will direct you to Ross Guberman’s site. Ross is a legal-writing expert and De Novo favorite for two reasons: first, he knows his stuff; and second, he backs it up with concrete examples from briefs by big-time lawyers. I love his book, Point Made, and I enjoy the the shorter pieces that he does on specific briefs.

In honor of this week’s events, Ross has taken a fine-toothed comb to the Government’s brief, to see whether–in his words–the Case of the Century inspired the Brief of the Century.

Spoiler: it didn’t, at least from the Government.

But it’s worth taking a look at Ross’ piece to see some of the reasons why the Government’s brief falls short of greatness. Seeing what a legal writing critic has to say about the work of extremely talented lawyers working on an impossibly high-profile case provides a great learning experience.After all, the SG’s office is known for the consistently high quality of its briefing.

Good stuff. Now, if only Ross would give the same treatment to Paul Clement’s brief.

The Supreme Court of Virginia handed down 20 published opinions and 1 published order last session.

One of those opinions, Galumbeck v. Lopez, contains enough waiver for the entire term. It’s the most waiverlicious opinion I can remember seeing since Commonwealth Transportation Commissioner v. Target Corp., 274 Va. 341 (2007). Galumbeck suggests that, to borrow a phrase from Frank Friedman, we are living through a veritable waiver renaissance.

Exciting times, indeed.

And if trial lawyers are going to compete in this waive–err, brave–new world, they need to know the rules.

So, on that note, a quick stroll through some of the waiver issues in Galumbeck:

First, Galumbeck complains that he was not allowed to question witnesses about a surgical log or introduce that surgical log into evidence as a sanction for discovery misconduct.

Unfortunately, all of the relevant discussions were held in a sidebar conference.

It’s a testament to how customs vary across the state that I literally did not know that people still held sidebars until reading this opinion. I thought that only happened in movies. And after reading Galumbeck, I’m pretty sure that sidebars should, in fact, only happen in movies.

Continue Reading Galumbeck v. Lopez: Supreme Court of Virginia Catches Some Waives

Earlier 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 by a reliable source outside our firm that SB 630 is some kind of a statement being made by Senator Deeds, alone.

I am also told by sources closer to home that I should not make fun of legislators while Monica is a candidate for the Court of Appeals.

Ergo, I will not waste your time arguing against SB 630. (Although a person inclined to make such an argument might start with the caseload reports.)

Instead, secure in the knowledge that we’ve dodged intermediate appellate Armageddon for now, I will pass along some tips from the CLE after the jump.

Continue Reading La Fin Absolue du CAV?

Interesting news from Richmond: House Joint Resolution 111, sponsored by Delegate Sal Iaquinto (R-Virginia Beach–pictured), would direct the Judicial Council of Virginia to study the jurisdictional capacity of the Court of Appeals. HT: Peter Vieth at Virginia Lawyer’s Weekly.

In particular, Joint Resolution 111 would tell the Judicial Council to review the respective capacities of the Supreme Court of Virginia and the Court of Appeals, and consider whether the quality of appellate review would be served by expanding the intermediate court’s capacity.

The Resolution calls for the Judicial Council to complete its meetings for the first year on November 30, 2012, and its meetings for the second year on November 30, 2013. For each year, it would publish an executive summary and report of its findings.

Joint Resolution 111 has been referred to the Committee on Rules.

(I don’t know what that means.)

In fact, I don’t pretend to understand any of  the mechanics or politics behind this at all–but I am certainly in favor of expanding the jurisdiction of the Court of Appeals for several reasons:

  • It would help with the development of the law in a broad array of areas. It’s just not possible for the Supreme Court to hear enough cases each a year to fully flesh out the law. That leads to gaps in the law and uncertainty. As an overall matter of policy, Virginia tends to be business-friendly. But uncertainty is bad for business and expensive; it makes people have to employ the legal equivalent of belts-and-suspenders to protect their interests.
  • It would be fairer to litigants. The recitals to Delegate Iaquinto’s Resolution state that “the caseload of the Supreme Court of Virginia continues  to preclude it from granting petitions for appeals in many cases in which appellate review is sought.” I don’t know if that’s right or wrong, but I do know that only about 1 in 5 civil petitions for appeal are granted. That means that about 80% of people who want appeals don’t get them.* Giving everybody 1 appeal of right  would let them feel like they’ve gotten a fair shake, and offer them recourse when trial judges get things wrong. (That’s not meant as a shot at trial judges–somebody has to make the decisions, and questions with clear answers tend not to get litigated. See bullet point 1, above.)
  • It would force trial judges to be more careful. I’ve never been a trial judge, but I can’t help but think that the looming prospect of an appeal of right would help focus my efforts on resolving the legal questions at hand. And I’ve practiced in many jurisdictions around the Commonwealth, where I’ve seen . . . things. In places. Which lead me to favor appeals of right for civil litigants. Let’s leave it at that.

In short, I like the sound of this. I’ll try to keep you posted on Joint Resolution 111.

* Don’t think that I missed the counterargument that many of those petitions don’t deserve to be granted. If that’s true, then those appeals would be easily disposed as appeals of right. The Fourth Circuit, for example, hears appeals of right but brooks no foolishness from appellants.

The Supreme Court of Virginia handed down a remarkable bath of opinions on Friday.

The 20 opinions included 7 dissenting opinions, which is highly unusual for a court previous notable for its consensus.

Stranger still, the 12 civil cases generated all 7 dissenting opinions (one case, Weedon v. Weedon, generated two separate dissenting opinions).

It looks like things could get a little bumpy in the near future.

Here’s a quick breakdown of who did what (including cases with concurrences as split cases):

 

Chief Justice Kinser

  • Votes Cast: 20
  • In Majority: 20
  • In Dissent: 0
  • In Majority in Split Cases: 7/7
  • Opinions Written: 2

 

Justice Lemons

  • Votes Cast: 19
  • In Majority: 18
  • In Dissent: 1
  • In Majority in Split Cases: 6/7
  • Opinions Written: 2

 

Continue Reading January SCV Opinions by the Numbers

Here’s a question: Is it stranger that the Supreme Court of Virginia decides some cases by unpublished order, or that it publishes any opinions at all?

A colleague and I were recently trying to track down a recent unpublished order from the SCV the other day. We weren’t having much luck–we couldn’t find it on Virginia Lawyer’s Weekly, the SCOVA blog, or Steve Emmert’s website.

That sparked a discussion about the utility of issuing unpublished orders in the first place. I tend to believe that, if a case is worthy of SCV review, then it is worthy of a published opinion that counts as precedent–particularly when the Court needs more than a page to explain its reasoning, or when it decides a case over a dissent.

But I’ve never been a judge, and I haven’t spent much time thinking about the issue, so I could be persuaded otherwise.

What struck me the other day was, why publish opinions in hard copy at all?

It’s incredibly weird that we still go through the ritual of publishing opinions in case reporters, as if people still used books to find cases. Relatively few people have access to the Virginia Reports. Practically everybody has access to the internet, and professionals these days use LEXIS, Westlaw and (increasingly) google scholar.

To wit: look at the chump in this picture. He’s reading law books, and taking notes with a pen in a spiral bound notebook. Who does that?

Nobody, that’s who.

Wouldn’t it be cheaper and easier to finalize opinions and then post them on the Web, with some sort of generic citation? For old times sake, we could keep with volume numbers in the citation, or we could just do something like “2012 Va. 1.”

Peter Martin recently wrote a thought-provoking piece on Arkansas’ efforts to do just that. Peter W. Martin, Abandoning Law Reports for Official Digital Case Law, 12 J. App. Prac. & Process 25 (2011).

And when I say “thought-provoking,” I mean that literally; it was Martin’s hard work that got me thinking about these issues in the first place, and I don’t make any claim to remotely  original thought in this post–Arkansas has already put this into effect, for God’s sake.

At any rate, Martin’s article is thorough and well worth your time.

Right now, the SCV puts slip opinions up on the web. That is extraordinarily helpful and–from what I can tell–greatly appreciated by the bar. Imagine how easy it would be if the official “published” opinion followed shortly thereafter, on the web and freely available to all, in one central and easily searchable place?

About 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 picture of Jack and Caroline with Santa Claus. I love this picture. I plan to keep recycling it at least until Jack is a sophomore in college.

Anyway, here are some of the things I’ve been up this holiday season instead of generating decent content for this blog:

  • Working. Lots and lots of work, including an oral argument in the Fourth Circuit.
  • Drinking. More specifically, organizing a cocktail party for local lawyers who use iPads, so we could get together and share apps and thoughts about using the device. (If you live in a jurisdiction without a nearby Apple store, I highly recommend these meetings; we’ve done a few, and I’ve found them all to be terrifically informative.) Rob Dean, who blogs at Walking Office, was one of the lawyers who joined us. It was a pleasure to meet him. He was very impressive, and if you have any questions about Apple products I would refer you to him. Not me.
  • Talking. I was one of several legal bloggers who did an interview with Deborah Elkins of Virginia Lawyer’s Weekly about the most important opinions of the year. If you want to better understand why it’s a bad idea to speak off the cuff (and on the record) about opinions you haven’t looked at for months, check out my quotes in this piece (subscription required).
  • Talking Some More. I also recorded a radio spot for St. Francis Service Dogs that is currently running on WFIR. St. Francis is an incredible Roanoke-based charity that trains service dogs for people with a variety of disabilities. The dogs are absolutely brilliant, and so are the people who run the operation. I encourage you to check out St. Francis’ website, or their mascot’s blog. (Full disclosure: I’m on the board of this organization.)
  • #losing. I spent more time than I should have playing Supervillain or Newt.

Thankfully–and also consistent with our holiday tradition–you have not been missing out on anything in my absence, because the one story I feel like blogging about is off limits. Last year, the big story that I couldn’t comment on for a variety of reasons was the vacancy on the Supreme Court of Virginia.

This year, the big story that I can’t comment on for a variety of reasons is the vacancy on the Court of Appeals.

Happy New Year. We’ll be back next week with something useful to say.

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:

  1. 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;
  2.  The fact that 9 of the 14 sitting judges were appointed by Democrats, and 5 were appointed by Republicans;
  3. Soundbites from a number of pundits, some of whom are extremely credible, and others who may be perhaps ever so slightly biased.

The article, while interesting, lacks force for three reasons:

First, it would be hard to get much more conservative than the Fourth Circuit of yore. The court really didn’t have anywhere to go but left.

Cue cliched image of pendulum swinging.

Second, the Fourth Circuit typically sits in randomly selected panels of three judges. Further complicating matters, one of the three judges might be a judge who has assumed senior status, or it might be a district judge filling in. So it’s still possible that you could show up at court and appear before two or three Republican-appointed judges.

Third, from a practitioner’s perspective, the political affiliation of the president who appointed a particular judge is not necessarily the most salient thing you can know about that judge. Justice Stevens was appointed by Presidents Nixon and Ford, after all.

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 don’t know this, but you can actually fit Tom Goldstein in your pocket.)

In honor of my long running man-crush on Chief Justice Roberts, here is a link from the C-Span archives to a classic panel that he sat on in 1997. Here’s the link.

This is truly amazing stuff.

You have John Roberts, Maureen Mahoney, Philip Lacovara, and E. Barrett Prettyman, Jr., discussing how to argue a case before SCOTUS. Bob Bennett moderates, apparently  fresh from the late unpleasantness involving Paula Jones.

Half the fun of this video is people-watching for famous faces in the audience. I think I spotted pre-millennial versions of Delaware Supreme Court Justice Henry Ridgely; white-collar superlawyer Alan Kriegel; and Mark Stancil of Robbins Russell and UVA’s Supreme Court clinic.

Enjoy.