A friend recently pointed out something that should have been obvious, but wasn’t. Like many other appellate courts, the Court of Appeals of Virginia holds its decision conference immediately after oral argument.

I knew this, but I don’t think I appreciated what it meant until we started taking about it. Obviously, appellate judges are well-prepared. That’s why we don’t waste their time going over background information, and that’s why they have so many questions. So very many questions. But I’ve never really spent much time thinking about the psychology of that dynamic from the judge’s perspective. It’s probably very stressful! All things being equal, any given judge is probably way more concerned about the impression she makes on her colleagues than the impressions she makes on, like . . . me? And so she’s come into the argument armed not just with an understanding of the facts and the law, but actually prepared to vote and defend that vote to her colleagues. She is committed.

And so does that mean when the judge asks a hostile question? First, that she’s thought this through, and could well be committed to this position. Second, if she is, she’s giving you a fair chance to answer the question. Third, this is the last chance that you or anyone else will have to answer the question before she casts her preliminary vote. An appellate judge not a trial judge, who can take the matter under advisement and rule after revisiting the briefs and mulling things over in the fullness of time.* She will have to vote before they let her go home! The other day, I heard a very good lawyer crack a joke along the lines of, “That’s a great question. And like any good appellate lawyer, I’m going to answer not the question you asked but the question I want to answer.” I don’t think that’s the right tack here. I think you engage the hostile question, at least the first 2-3 times that you get it.

The response, I guess, would be that we have limited time, the hostile judge has flagged that she is committed to a hostile position, and there’s still a potential of persuading the other judges by reiterating talking points. All fair. But how is ducking the question going to persuade them? (Again, at least the first 2-3 times you get it. If the judge is just being mean, then by all means, disengage.)

All of which is a roundabout way of reiterating the most basic piece of good advice an appellate lawyer can get: answer the question.

*I mean, sure, if she gets assigned to write the opinion, she will be mulling things over for weeks. But she’ll be doing that after casting her vote and locking herself in before her colleagues. So a reversal at that point would presumably be awkward. There’s just got to a be a lot of psychological inertia there.

Over the last two months, the Court of Appeals has issued almost 160 opinions. The vast majority of those opinions are unpublished; the court is issuing about 7 unpublished opinions for every published opinion. So the default rule seems to not to publish opinions.

This is interesting for several reasons. First, Code § 17.1-413(A) says that “[o]pinions designated by the Court of Appeals as having precedential value or as otherwise having significance for the law or legal system shall be expeditiously reported in separate Court of Appeals Reports . . . .” (That said, even unpublished opinions remain useful. Under Rule 5A:1(f), “[t]he citation of judicial opinions, orders, judgments, or other written dispositions that are not officially reported, whether designated as ‘unpublished,’ ‘not for publication,’ ‘non precedential,’ or the like, is permitted as informative, but will not be received as binding authority.”) It’s not at all clear that the court’s unpublished opinions lack “significance for the law or legal system.” Some of them are interesting![1] Some of them have dissents! One recent opinion rejected a party’s effort to rely on decisions out of Oklahoma and New Hampshire interpreting the Uniform Trust Code when he could not find Virginia authority on point. We could solve that problem by publishing this opinion!

Second, this whole published/unpublished dichotomy is weird and archaic. I can find unpublished opinions just as easily as published ones on Lexis and Westlaw. For non lawyers, both published and unpublished opinions are accessible from the same page of the court’s website. That one group of these opinions will be published in a bound reporter some years from now and placed on a bookshelf in a library makes about zero practical difference to a modern researcher. Nobody uses the reporters.

Third, I can’t figure out why “unpublished” would be the default choice. Isn’t it fun to make law and publish things? Here are my hypotheses, none of which are totally convincing:

  • The unpublished opinions lack precedential value or significance for the law (“These opinions are boring, and that makes sense because most of the court’s work is boring.”). This is certainly true for some of the opinions, but others seem pretty interesting. It’s hard to see how a case with a dissent, or an opinion noting a lack of Virginia authority on a point lacks significance for the law. Also, while there may not be anything legally groundbreaking in, say, an opinion applying the parol-evidence rule or the standards for expert witness testimony, just seeing those rules applied across a broad run of cases has value to practitioners. So I’d consider them significant for the law, if only because they save me from citing cases from the Kennedy and Johnson administrations.
  • Workflow management (“The judges are lazy!”). Well, no. It looks like they’re putting as roughly as much work into a lot of the unpublished opinions as the published ones. These aren’t all 3-page per curiams.
  • Vulgar legal realism (“This is all just an exercise of power in accordance with our priors, so no sense pinning ourselves down if we don’t have to!”) Yeah, probably not. But it’s nice to know that Duncan Kennedy is still kicking around in the back of my brain somewhere.
  • Interpanel accord (“We’re pretty sure that we’re right but we don’t want to bind those other judges without giving them a say.”) Maybe? Under the interpanel-acord doctrine, only the court sitting en banc or the Supreme Court of Virginia can overturn a panel decision. This rule applies both to the literal holding of  the case and to its essential rationale. So you can imagine a norm developing under which a panel is hesitant to issue a published opinion that will bind the other judges who haven’t weighed in on the issue. This would be especially plausible where, as here, a large percentage of judges are relatively new to the court.

[1] Some of them, of course, are routine and tedious–for example, dismissals for procedural defaults.

Every Tuesday, the Court of Appeals hands down its published and unpublished opinions. And every Tuesday, those unpublished opinions seem to include a least a case or two where the court summarily affirms because the appellant has failed to ensure that the record includes a transcript or written statement of facts.

Now, some of these results I can understand. If you’re appealing an evidentiary ruling without a transcript or written statement, then good luck proving that the trial court abused its discretion. And I suspect that the CAV sees a healthy number of hopeless pro se appeals in which an incomplete record is the least of the appellant’s concerns.

But sometimes, the court will use this basis affirm a purely legal ruling like a judgment sustaining a demurrer or granting summary judgment, in a case with grown up lawyers. In fact, they did just that last Thursday in Oliver v. Kimberly A. Pinchbeck, P.C.

Oliver affirmed a grant of summary judgment in favor of the plaintiff, and it did so without oral argument because the appellant had not filed a transcript or written statement of facts. Now, as the Oliver court rightly observes, it’s the appellant’s burden to provide the court with a record sufficient to determine if the trial court erred. And as the CAV points out, Rule 5A:8(b)(4)(ii) says, “When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission will not be considered.”

So leaning on these principles, the Oliver court held that “[t]o conduct a de novo review of summary judgment, this Court must review both the written pleadings and the positions asserted at oral argument.” That was because

The circuit court heard argument on summary judgment on November 2, 2022. Oliver did
not provide a transcript or a written statement of facts regarding what specific arguments the parties presented to the circuit court and what legal authority supported their positions. In rendering judgment, the circuit court relied upon not only the pleadings and briefs, but also the arguments and evidence presented at that hearing.

The reference to “evidence presented” at a summary judgment hearing has me lost; that’s not really how I understand summary judgment hearings to work. So maybe something bonkers took place that justifies the result.

But let’s bracket any procedural shenanigans for now and look at the rest of the argument, because I just don’t buy it. That is, I’m not convinced that to review a judgment granting summary judgment de novo, the court needs a transcript or written statement outlining the arguments that the parties made at the hearing.

Now, it certainly might need that information, if (say) the appellant were relying on a position she took at oral argument. But I don’t think that it’s categorically necessary. The briefs and pleadings should usually be sufficient to show that the appellant gave the trial court a fair chance to rule intelligently on the issue. After all, the CAV’s job isn’t to decide if the trial court was right to rely on an argument that the appellee made at the hearing. It’s to decide whether the result below was correct, period. If the trial court is right for the wrong reason, it still gets affirmed.

The typical rejoinder is that the court needs a transcript or written statement to be sure that the appellant didn’t concede her case away at oral argument. That seems a bit of a stretch. The motions and briefing offer prima facie evidence of the parties’ arguments below. It’s unreasonable to infer from a missing transcript that the appellant affirmatively waived those points. If you can see from the material already in the record that the appellant preserved her appeal points, that should be sufficient unless the appellee argues affirmative waiver (consistent with 8.01-271.1., of course). And even then, I’m not sure that the burden shouldn’t be on the appellee to come forward with a written statement supporting what is, in essence, an affirmative defense.

This isn’t just a theoretical issue. Lots of experienced lawyers will tell you that you don’t need a court reporter for a hearing on a purely legal issue like a demurrer or a motion for summary judgment.* Under the CAV’s current practice, they’re wrong. Twice in the past year, I’ve come in on appeal had to file written statements saying things like “there were some unreported hearings and stuff, but everyone argued consistent with their written pleadings and no evidence was taken.” I’m not sure that added much to the analysis. Given the procedural headaches written statements entail, it certainly cost my clients a nontrivial amount of money.

But as long as CAV maintains its current approach, I don’t have a better solution.

* This is a longstanding urban legend of Virginia law. For God’s sake, people, if a matter is important enough to merit a hearing, it’s important enough to hire a court reporter.

At the VBA’s summer meeting last month, Judges Ortiz and Martin presented their annual review of civil decisions from the Supreme Court of Virginia. Judge Ortiz shared a few eye-opening statistics:

  • In 2022, the CAV heard 553 civil appeals
  • Through the first six months of 2023, the CAV heard 392 civil appeals
  • In 2022, SCOVA granted 29 civil writs
  • Through the first six months of 2023, SCOVA granted 4 civil writs

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!


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!