Here’s the last paragraph from Grant Gilmore’s The Ages of American Law:

Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed.

Reuters reports that the Third Circuit changed its local rules to require most briefs and court documents to be filed by 5:00 pm on the day they are due. The story explains that the proposal “comes after the court’s chief judge Michael Chagares pushed for years for the whole judiciary to rollback deadlines to improve attorneys’ work-life balance.”

And then Reuters drops this deadpan gem:

The court adopted the new rule despite opposition from bar associations and other lawyer groups that said an earlier filing deadline could exacerbate pressure on lawyers and sow confusion among attorneys from other parts of the country who do not often practice in the court.

So . . .CA3 adopted a rule to improve attorneys’ work-life balance over the objections of those attorneys? That’s funny. At this point, I feel compelled to make a confession: I am an appellate attorney. I like my life. I am in favor of things improve my work-life balance!

However.

It is not immediately clear to me that changing a midnight deadline to a 5:00 pm deadline would do much for my quality of life? After all, federal appellate courts don’t exactly spring these deadlines on you. You get weeks and weeks to file stuff under the Federal Rules of Appellate Procedure! And you can get extensions! So shortening the 40-day deadline for an appellant’s principal brief by seven hours isn’t going to make me sleep better at night. It’s actually not going to have any effect at all, because I don’t wait until the last seven hours to file case-dispositive documents, because I am not a lunatic. This points up another fun feature of the FRAP: You are allowed to file things early.

But even if tweaking a deadline by 00.73% could somehow marginally improve a lawyer’s quality of life, wouldn’t you, like, extend thedeadline if you wanted to improve quality of life?

All of this made me quite curious. So I pulled CA3’s public notice of the amendment. Here are the reasons listed as “supporting the amendments”:

  • permitting the Court’s Helpdesk personnel to assist electronic filers with technical and other issues when needed during regular business hours and permitting other Clerk’s Office personnel to extend current deadlines (the average non-extended filing period is thirty days) in response to a party’s motion or for up to fourteen days by telephone, during regular business hours. In addition, the amendments permit judges to read and consider filings at an earlier hour.
  •   insofar as over half of the Court’s litigants are pro se, many of whom cannot or will not use the Court’s CM/ECF system (and attorneys must use the system), the rule largely equalizes the filing deadlines for pro se litigants and attorneys.
  •   consistent with the collegiality and fairness the Court encourages, the rule ends the practice by some of unnecessary late-night filings intended to deprive opponents from hours that could be used to consider and formulate responses to such filings. Further, the rule obviates the need by opposing counsel to check whether opposing papers were filed throughout the night. About one-quarter of the Court’s filings are currently received after business hours.
  •   alleviating confusion by equalizing the filing deadlines for electronically filed and non-electronically filed documents in most cases.

Five observations.

First, maybe I missed the reference to quality of life?

Second, the Helpdesk. Figures.

Third, “the amendments permit judges to read and consider filings at an earlier hour”? I call shenanigans.

Fourth, “the rule obviates the need by opposing counsel to check whether opposing papers were filed throughout the night”? I promise you that I am not checking whether opposing papers were filed throughout the night.

Fifth, “the rule ends the practice by some of unnecessary late-night filings intended to deprive opponents from hours that could be used to consider and formulate responses to such filings.” This is a shame. The unnecessary late-night filers are assholes. If they want to immiserate themselves to try to get an advantage in litigation that doesn’t actually exist, then by all means we should indulge them.

Today’s Fourth Circuit opinion in Laufer v. Naranda Hotels, LLC, is worth a look. The Court held the plaintiff’s allegation of an informational injury was enough to confer Article III standing. Here is the intro:

Deborah Laufer, the plaintiff in this civil action on appeal from the District of

Maryland, is a self-professed “tester” who has filed hundreds of similar lawsuits throughout the country under Title III of the Americans with Disabilities Act (the “ADA”), see 42 U.S.C. §§ 12181-12189. Laufer complains of hotel reservation websites that do not allow for reservation of accessible guest rooms or provide sufficient accessibility information. Here, the defendant is Naranda Hotels, LLC, as the owner of the Sleep Inn & Suites Downtown Inner Harbor in Baltimore.

For reasons explained in its Memorandum Opinion of December 2020, the district court dismissed Laufer’s ADA claim against Naranda for lack of Article III standing to sue. See Laufer v. Naranda Hotels, LLC, No. 1:20-cv-02136 (D. Md. Dec. 16, 2020), ECF No. 26 (the “Dismissal Opinion”). In so doing, the court followed local precedents that had been established in separate District of Maryland actions initiated by Laufer. Meanwhile, other district courts and courts of appeals have confronted Laufer’s lawsuits and likewise concluded she could not proceed. Additional federal courts, however, have seen things differently and recognized Laufer’s Article III standing to pursue her ADA claims. Upon careful consideration of the competing views, we are satisfied to join the latter group and thus vacate the district court’s judgment and remand for further proceedings.

The Court of Appeals handed down Theologis v. Weiler today, a fun opinion in a defamation and business-conspiracy case. The whole opinion is highly recommended. Summary below, but here are the points of greatest interest to appellate practitioners:

  • Right Result/Different Reason. The Court can affirm a judgment sustaining a demurrer only on a ground raised by the defendant in the trial court. See Code § 8.01-273(A). So those judgments differ from other appeals in which the right-result-different-reason doctrine would let the appellee run a new legal argument on appeal.
  • What Do We Say About Written Statements? The five defendants raised different (though sometimes overlapping) arguments in their demurrers. The trial court entered a final order saying, “Defendants’ demurrers are sustained with prejudice for the reason(s) stated by the Court at the hearing . . . , which are incorporated herein by reference.” The parties then disagreed over the accuracy of Theologis’s proposed written statement of facts. So the trial court entered a “written statement of facts” rejecting Theologis’s proposed statement as “inaccurate” and clarifying that the court had sustained the demurrers on the grounds raised by each defendant.
  • Oral Argument. Theologis alleges 26 (!) defamatory statements. At oral argument, the CAV asked him to pick his top five, which it then addresses in the text. The Court relegates the remaining 21 statements to a footnote.
  • Ouch. The Court also got off a few zingers. A case in point:

We have an “obligation to decide cases on the best and narrowest grounds available.” Esposito v. Va. State Police, 74 Va. App. 130, 134 (2022). Given the large number of issues presented here, we look for the best and fewest grounds on which to resolve this appeal.

  • Ask for Leave to Amend. The trial court sustained the defendants’ demurrers to Theologis’s complaint with prejudice. Theologis complained on appeal that he should have been granted leave to amend. But the record contained not evidence that he sought leave to amend. So he could not raise that argument.

Again, the opinion is terrific throughout. If you’re still reading, here’s a quick summary:

Facts: Theologis sued several of his fellow townhome-association members after they publicly criticized his performance as the association’s president. Four defendants wrote a letter saying (among many other things!) that Theologis had “made repeated efforts to impose far more restrictive policies than provided for in the Covenants & By-Laws” and that he had “usurp[ed] the authority granted to the Board as a whole via the Covenant & By-Laws.” A fifth defendant wrote a social-media post urging a fellow townhome resident to voice her concerns about the association’s operations, writing that “Theologis is capricious in his enforcement of [HOA] policy (even as he has broken our HOA bylaws).” The defendant added that Theologis “should be leaving the board . . .  and you should have more reasonable people on the review board.” Theologis’s three-count complaint asserted claims of defamation and business conspiracy based on the letter and post. All the defendants demurred, and the trial court sustained the demurrers for the reasons stated by the defendants. The wrinkle is that not all the defendants asserted the same arguments. 

Issue: Did the trial court err by sustaining the demurrers to Theologis’s defamation and business conspiracy claims?

Holding: No. Affirmed. The defamation claim fails against all defendants because the statements lack the requisite “sting” to harm Theologis’s reputation. Here, Theologis’s alleged misapplication of the association’s governing documents just isn’t enough to support a defamation claim. Because the defamation claims fail, the business-conspiracy claims lack a predicate tort, so they necessarily fail as well. 

Here’s a question that has come up often enough that I suppose it merits its own post: What happens if the Clerk of the Court of Appeals does not properly notify the appellant of the filing of the transcript?

(Disclaimer: The Clerk’s office does a wonderful job! They are great to deal with! They probably did not make a mistake in your case! See below!)

Normally, the Clerk’s office receives the record and shoots everyone an email notification. This sets the deadlines running–in particular, the deadlines for filing assignments of error and the opening brief. Here are the relevant rules:

  • Rule 5A:10(d) directs the clerk of the trial court to transmit the record to the Court of Appeals “forthwith” after 21 days have passed since the filing of the transcript or written statement (or the notice of appeal, if neither of those will be filed), and in all events within 3 months of entry of judgment.
  • Rule 5A:10(e) says, “The clerk of this Court must promptly notify all counsel of the date on which the record is filed in the office of the clerk of this Court.”
  • Rules 5:25(a) and (d) provide that the assignments of error (and appendix designation, if applicable) are due “15 days after the filing of the record with this Court.”
  • Rule 5A:19(b)(1) says, “The appellant must file the opening brief in the office of the clerk of this Court within 40 days after the date of the filing of the record in such office.”

That seem easy enough.

But sometimes, we get questions about what happens when the record has been transmitted to the Court of Appeals, but the parties have not received notice or the appellant has missed these deadlines.

I have three thoughts.

First, it’s probably not the Clerk’s fault! Remember that there is a difference between “receipt” of the record and “filing” of the record. Sometimes the Clerk’s office receives the record from the trial court but has to send it back for more work (for example, because of a noncompliant condensed transcript). With the uptick in civil appeals after the expansion of the court’s jurisdiction, it’s reasonable to expect to see more of this as trial-court clerk’s offices with less experience handling civil appeals navigate the rules. The CAV Clerk’s office doesn’t have to notify counsel–and the deadlines don’t start to run–until the record is filed.

Second, and I cannot stress this enough, the Clerk’s office does a wonderful job! They are great to deal with! They probably did not make a mistake in your case! But they too are navigating a brand new system and a growing workload. So mistakes are possible. If the Clerk’s office did make a mistake, count on the Clerk’s office and/or the Court to fix it, and to do so fairly. So if the Clerk didn’t provide the required notice and the appellant missed the deadlines, the fix probably will not be dismissal of the appeal. It will more likely be a prompt notice to the appellant, which will start the deadlines running (effectively giving the appellant a deadline extension, which, you know . . . fair?).

Third, if you are the appellant, just calendar these deadlines and check up on things. You don’t need to wait for the formal notice. If you have a question, just call the Clerk’s office. They do a wonderful job! See above!

Adam Liptak reports on a new study showing that an undergraduate degree from Harvard, Princeton, or Yale significantly boosts an applicant’s chances of landing a SCOTUS clerkship.

Per Liptak, the study found that during the 40 years leading up to 2020, more than 2/3 of SCOTUS clerks came from just five law schools. (Yes, the five you are thinking of.)

But then comes the kicker:

The study, which considered 22,475 Harvard Law graduates, took account of three data points: where they went to college, whether they qualified for academic honors in law school (graduating cum laude, magna cum laude or summa cum laude) and whether they obtained a Supreme Court clerkship.

About half of the graduates had attended one of 22 selective undergraduate institutions, and more than a fifth of the graduates had gone to college at Harvard, Yale or Princeton. Both of those groups graduated with honors from Harvard Law at above-average rates.

But here is the key point: Even controlling for achievement in law school as measured by academic honors, members of the two groups were more likely than their peers to obtain Supreme Court clerkships. And most of the difference could be traced to students who had gone to college at Harvard, Yale or Princeton.

They were three times as likely to get clerkships as those who had gone to the other 19 undergraduate institutions when graduating with cum laude honors and 50 percent more likely when graduating with magna cum laude honors. Both differences were statistically significant. (Summa cum laude honors were very rare and very often led to clerkships regardless of undergraduate institution.)

Here is the study’s abstract:

The most elite and scarce of all U.S. legal credentials is serving as a justice on the U.S. Supreme Court. A close second is clerking for a justice. Only 36 serve each year. Most of the 36,000 law students who graduate each year dream of doing so. A Court clerkship is considered a prize as well as a ticket to future success. Rich accounts about clerking – including by clerks – fill bookshelves and journal pages. Yet, we lack a clear story about who wins the 1-in-1000 clerkship lottery. For this Essay, we seek to provide that story. Our analysis relies on new datasets of all clerks who served between 1980 and 2020, including the details of their path to the high court and their road after. We amend and expand on theories of success in this important labor market. We find that educational pedigree, as opposed to academic performance or any other qualification, has an overwhelming impact on attainment. The Court clerkship selection process proves to be a blend of status and merits where status often prevails. Our analysis does not end there, however. We go on to look at where this forty-year cohort is currently working and confirm that once attained, a Court clerkship does lead to a bounty of opportunities including a return to the Court as a justice. Thus, the Court clerkship lottery is an important labor market not only to lawyers but also to society writ large. In the elite legal labor market, some people are, in fact, more equal than others.

Rule 5A:8(c)’s written statement of facts is one of the absolute nightmares of Virginia appellate practice.

The underlying notion seems simple enough: If an important hearing or trial took place but there’s no transcript, the appellate court needs something to review; otherwise, it’s just going to affirm, because the trial court’s judgment is presumptively correct. So Rule 5A:8 lets the appellant draft and file a written statement of facts, testimony, and other incidents of the case within 60 days of final judgment. When the appellant serves the other parties, it also provides notice that they will present the statement to the trial judge no earlier than 15 days nor later than 20 days after filing. When that happens, and when the trial judge signs the statement, it becomes part of the record. The rules, of course, allow the appellee to object. If they do, they judge has to resolve the objections. On the other hand, if the statement is signed by counsel for all parties, “the judge may sign the statement forthwith upon its presentation to him . . ..” (That “him” hasn’t aged well.)

By this point, you probably see the potential for mischief; any number of steps are outside the appellant’s control. I mean, what if . . .

  • The clerk’s office rejects the initial filing of the written statement because it is not signed by the judge?
  • Chambers insists that the trial judge does not have any available dates within 15-20 days of filing?
  • Nobody really disputes what happened, but opposing counsel won’t cooperate or insists on a bunch of silly changes to the document before they sign?
  • Despite the appellant’s best efforts, the judge just does not sign the written statement?

This stuff really matters. If you should happen by the CAV’s unpublished opinions page, you will see that they kill a healthy number of appeals every month for lack of a transcript or written statement.

Thankfully, the CAV has at least a partial fix: Under Proctor v. Town of Colonial Beach, 15 Va. App. 608 (1993), if an appellant has complied with the first two elements of Rule 5A:8(c)–that is, if she has timely filed a written statement and provided opposing counsel notice that it will be presented within 15-20 days–then she has established prima facie compliance with the rule. The trial court must then sign or correct the written statement or, in a really extreme case, order a new trial.

But in all events, the CAV will not dismiss an appeal once the appellant has established prima facie compliance. Instead, it will remand the case to the trial judge for appropriate action under Rule 5A:8(c)(2) or (d). The CAV explained that Rule 5A:8 is supposed to ensure a complete record, not let a trial court thwart an appeal:

The requirement that the trial judge sign the statement of facts is designed to ensure an accurate and complete statement of the facts and procedural history of the proceeding in the trial court. This requirement does not provide a means by which the trial judge, through design, inattention or inadvertence, may thwart an appeal by neglecting or refusing to sign the statement of facts.

Proctor is still good law. The CAV cited it in an unpublished per curiam opinion earlier this week.

Takeaways:

  • Just hire a court reporter in the first place! If something is important enough to merit a hearing, then the hearing merits a court reporter. Saving the court-reporter fee is the worst kind of false economy now that we have appeals of right, because someone more expensive than a court reporter is going to have to go back and reconstruct what happened in a written statement.
  • Read and comply with Rule 5A:8 . . . especially that bit about notice.
  • File the notice! In fact, make a record memorializing all your efforts to get the trial judge to do the right thing.
  • And remember that the deadlines are part of the rule.

The Washington Post has a piece about Judge Luttig, opening with a lovely anecdote involving Justice Scalia. (But are we sure that Judge Luttig “clerked for [Scalia] at the federal district court in Washington?”) [Update: He did not! The Post has corrected this in its story. Also, autocorrect got me the first time around, changing “Luttig” to “Cutting.” I fixed that, and I am dead certain that Judge Cutting never clerked for Justice Scalia on D.D.C.]

Judge Luttig holds a special place in my heart for writing one of the best and clearest opinions on the implied duty of good faith and fair dealing in Virginia, Virginia Vermiculite, Ltd. v. W.R. Grace & Co., 156 F.3d 565 (4th Cir. 1998)–for trivia buffs, a case argued by Professor Elhauge. Contra the implications in the Post story, Virginia Vermiculite is short and to the point.

Let’s start with the punchline from Hawkins v. Town of South Hill: Merely stating an objection above your endorsement to an order is not enough to preserve the objection for appeal. You must object with reasonable certainty, giving the court a chance to rule intelligently on your issue, and the court must in fact make a ruling.

Hawkins is a FOIA case. Hawkins, a lawyer, submitted several FOIA requests to the Town. The town responded, but Hawkins believed that its responses were incomplete. So he filed a petition asking the trial court to compel the Town to produce the requested documents. FOIA allows the court to award attorney fees and costs when (1) the court finds a FOIA violation and (2) the plaintiff substantially prevails on the merits of its case.

The trial court granted FOIA petition in part, but it did not address the issue of attorney fees. Nor did it determine whether Hawkins had substantially prevailed. Just the opposite, the court asked the Town to draft an order memorializing its rulings, because the court “agreed with the Town’s position more than it did not.”

The Town moved for entry of an order, advising the court that the plaintiff “want[ed] to address the issue of attorney’s fees.” Hawkins did not oppose the Town’s motion. He endorsed the order, specifically objecting to the court’s failure to award attorney fees or hold that he was a prevailing party under FOIA.

Hawkins then appealed the court’s rulings on the merits, as well as its failure to award attorney fees or hold that he was a prevailing party. We’ll skip the merits and focus on preservation.

Justice Mann, writing for a unanimous court, reminded the parties of Rule 5:25–SCOVA’s contemporaneous-objection rule–which says: “No ruling … will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling . . ..” A party satisfies this rule when they give the trial court a chance “to rule intelligently on the issue.” If they don’t give the court that chance, then “there is no ruling by the trial court on the issue, and thus no basis for review or action by this Court on appeal.”

Here, the trial court did not rule on on the attorney-fees or prevailing-party issues. The Supreme Court explained that this was because the court had not been given a fair chance to rule on them:

The absence of a ruling on either issue is understandable because Hawkins did not present either issue to the circuit court. He did not request fees and costs in his opposition to the Town’s demurrer, or in his response to the Towns’ log of documents. Hawkins did not raise the issue of fees at all during either of his hearings before the circuit court. Even when the Town moved for entry of a final order, Hawkins did not raise a request for fees or file any response. The only mention of fees occurred in the Town’s motion, where it stated that “[Hawkins] wants to address the issue of attorney’s fees.” Hawkins endorsed the order with objections but did not notice a hearing or request that the circuit court revise its order to address either issue. Because Hawkins failed to obtain a ruling on the prevailing party issue or the issue of attorney’s fees, we find there is no ruling to address on appeal, and consequently affirm the circuit court on both assignments.

So what are the takeaways from Hawkins?

First, the old preservation formula still holds: object while the court remains in a position to take corrective action, get a ruling, and make a record. Simply appending objections to a final order is not sufficient.

Second, if you find yourself at the end of the case with objections you’d still like to make, try a motion to reconsider. An appellate court can hardly fault you for trying that in light of Lucas v. Riverhill Poultry, Inc. Or you could follow Justice Mann’s implicit advice in Hawkins and notice a hearing and ask the court to revise its order in light of your objections. (Better yet, both. As Justice Mims used to say, “When in danger, when in doubt . . ..”)

Third, I’m sympathetic to the plaintiff in this case. His mistake is understandable and not remotely unusual. In my practice, I see cases from around the Commonwealth, and endorsement practices vary by region and by judge. I also have the general impression that more senior lawyers and judges may tend to put more stock in endorsements. But in light of Hawkins, Cashion v. Smith, and Rule 1:13, I’d give them little weight going forward.