Juli Porto has an article in this morning’s VTLAppeal, Is There a New Sheriff in Town Named “A.H. Tingler”?, analyzing SCOVA’s subtle importation of Twiqbal through A.H. v. Church of God in Christ, Inc. and Tingler v. Graystone Homes, Inc. Thoughtful and recommended. Among other things, Juli notes that the Court cited Twiqbal in A.H., then cited A.H. in Tingler as if it had always been Virginia law. She points out:
Quick Report From a Pair of Telephone Oral Arguments at SCOVA
By Jay O'Keeffe on
Posted in Oral Argument
I had my first two two telephone oral arguments in the Supreme Court of Virginia this morning. Merits arguments at that. They were weird! How so? Glad you asked:
Continue Reading Quick Report From a Pair of Telephone Oral Arguments at SCOVA
Oral Argument During the Pandemic
By Jay O'Keeffe on
Posted in Oral Argument
Longtime readers know that I’m a huge fan of oral argument. Giving counsel a chance to address the Court’s questions before the decision conference strikes me as vital.
But for obvious reasons, recent events have complicated courts’ efforts to hold argument.
Practical Legal Writing from the VTLA Annual Convention
By Jay O'Keeffe on
Posted in Uncategorized
Chief Justice Lemons likes to say that an advocate develops three oral arguments in each case: the one they planned to give, the one they actually gave, and the one they wish they’d given.
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Dead Man Walking
By Jay O'Keeffe on
The brief in opposition is one of the great underappreciated joys of Virginia appellate practice. It comes at the writ stage, when we’re just trying to convince the Supreme Court that it should/should not grant a petition for appeal. We’re not necessarily arguing the merits. Sometimes, the petitioner will not yet have hired specialist appellate counsel. Even when they do, some nominal appellate lawyers fail to appreciate this distinction.
The Hardest Problem at Oral Argument
By Jay O'Keeffe on
Posted in Oral Argument
Raffi Melkonian, an appellate lawyer from Texas and the dean of #appellatetwitter, has been working on what he considers the hardest problem at oral argument: the judge who has misunderstood something and is angry about it.
Mind-Bending Intergalactic Writing Tips
By Jay O'Keeffe on
Posted in Writing
Confession time: I have a strong prejudice against the default writing style at most BigLaw firms. I’d like to think that my intolerance is mostly justified, but I recognize that it’s at least partly unfair.
Live Blogging the VBA Appellate Summit
By Jay O'Keeffe on
Posted in Uncategorized
As I’m writing this, I’m attending the VBA’s Appellate Summit, a fantastic CLE that comes around every three years. This year, the appellate council made asked me to moderate a 50-minute panel about brief writing. They won’t make that mistake again! Thankfully, the outstanding–dare I say heroic?–contributions of panelists Judge Robert Humphreys, Don Jeffrey, and Elbert Lin saved the session from disaster (nothing could save it from my dad jokes). It turns out that a panel that good can moderate itself.
In Which the Author Goes Hunting and Very Nearly Catches a Woozle
By Jay O'Keeffe on
Posted in Uncategorized
Over the weekend, Official Friend of De Novo(TM) Ross Guberman posted a challenge on Twitter: Who could come up with a fresh way to convey the idea that opposing counsel is on a fishing expedition?
Continue Reading In Which the Author Goes Hunting and Very Nearly Catches a Woozle
Findlay is Not the Answer
By Jay O'Keeffe on
Posted in Appellate Practice, Briefs
We spent last post complaining about the difficulty of landing an assignment of error in the Goldilocks Zone. When I bring this up in real life, the response is usually that the Court solved this problem with Findlay v. Commonwealth, 287 Va. 111, 752 S.E.2d 868 (2014) .