The Fourth Circuit is notoriously stingy when it comes to granting oral argument. Last year (admittedly an odd year), CA4 terminated 696 private civil cases. It terminated 86 of them, or 12%, after oral argument. It reversed in 36 of them, or just over 5%. Steve Klepper has a nice essay from 2014 about all of this over at the Maryland Appellate Blog. He argues that given modern Fourth-Circuit practice, the statement concerning oral argument under Local Rule 34(a) is the most important part of a brief. Steve urges appellants and appellees alike to include a robust statement about the need for oral argument, drawing on the criteria for publishing opinions under Local Rule 36(a):

Opinions delivered by the Court will be published only if the opinion satisfies one or more of the standards for publication:
i. It establishes, alters, modifies, clarifies, or explains a rule of law within this Circuit; or
ii. It involves a legal issue of continuing public interest; or
iii. It criticizes existing law; or
iv. It contains a historical review of a legal rule that is not duplicative; or
v. It resolves a conflict between panels of this Court, or creates a conflict with a decision in another circuit.

This is great advice! I’ve cribbed it before. But why are we going back to the well now? Continue Reading Oral Argument and Revised Code Section 17.1-403

  1. Dharma Bums by Jack Kerouac.  “Kerouac” is a cool name, I guess. It has almost all the vowels. Why is this book supposed to be good?
  2. Making Your Case: The Art of Persuading Judges by Antonin Scalia and Bryan A. Garner. I read this every year with our federal litigation class. It’s my favorite book about how to practice law. The Curmudgeon’s Guide to Practicing Law by Mark Herrmann is a close second. And since we’ve somehow fallen into a best-of list, my favorite book on brief writing is probably The Winning Brief, also by Bryan Garner. But in fairness to Ross Guberman, I keep a tabbed copy of Point Made close at hand so I can find spicy verbs (pages 198-99) and smooth transitions (pages 274-77) when my brain fails. And I always use BriefCatch. As a practical matter, I rely on the Guberverse resoruces much more than Making Your Case or The Winning Brief. On the other hand, I also use Garner’s Redbook (a lot) and Modern American Usage (not so much). And Reading Law (whenever possible). And Black’s Law Dictionary, of course (you wouldn’t believe how often, yet somehow not as much as Webster’s Third). This is exhausting. What were we talking about?
  3. Would You Kill the Fat Man? by David Edmonds. Nope. I would not push a large man off a bridge and into an onrushing trolley’s path to save the lives of five people tied to the track. I am a moral monster. Edmond’s treatment of trolley problems is quick and fun, but I would have liked more depth.
  4. Leadership in Turbulent Times by Doris Kearns Goodwin. Okay, I actually read this last month but forgot to include it in the post. Leadership follows the careers of Lincoln, Teddy Roosevelt, FDR, and LBJ, pulling lessons from their performance. The first part of the project is fantastic; FDR’s hundred days and LBJ’s push for the Great Society read like science fiction today, and are a useful reminder that government can actually do stuff. The second part of the book–the leadership lessons–didn’t land as hard for me. There’s an awful lot of survivorship bias here. We’re talking about four of the most talented Americans who lived in the past two centuries. Looking at how they handled crises is interesting, but if we’re going to learn from them it would help to know if, say, 10 million less talented people tried the same strategies and failed.
  5. Ask a Pro by Phil Gaimon.  I’m not sure that this even counts as a book. It’s more like the cycling equivalent of that collection of golf jokes that every dentist keeps in their bathroom. Anyway, I liked it.
  6. Eats, Shoots & Leaves by Lynne Truss. An angry little book about punctuation. Too British. Otherwise good.
  7. Alexander and Caesar from Plutarch’s Lives. Alexander didn’t do that much for me, although it was interesting to learn how crosswise he got with Aristotle. Caesar, by contrast, was amazing. Imagine Game of Thrones but all about Tywin.
  8. Meno and Crito by Plato. Back to freshman year Intro to Western Philosophy. (Hi, Professor Fowler!) Meno is worse than I remember. Crito is way better: either persuade the law or obey it.
  9. The Story of Philosophy by Will Durant. There’s a lot in here that I liked–in particular, the good work Durant does placing great philosophers and their ideas in historical context, and tracing lines of thought and inquiry down through the ages. As a work of synthesis, this book is fantastic. Also, everybody’s favorite line from Aristotle–“[W]e are what we repeatedly do. Excellence, then, is not an act but a habit.”–isn’t Aristotle at all. It’s Durant talking about Aristotle in this book! And the the whole chapter about Voltaire is awesome (especially the bit about him making a fortune by being better at math than the Parisian bond lottery). That said, the book has more than its share of cringey moments; the author and his subjects were all, shall we say, creatures of their time.
  10. Opening the Hand of Thought: Foundations of Zen Buddhist Practice by Kosho Uchiyama Roshi. This is a refreshingly lucid explanation of zen sitting meditation, or zazen. It helps illuminate the differences between zen practice and generic  mindfulness exercises.

Last week, the Supreme Court of Virginia answered one of the great open questions in Virginia tort law when it clarified the availability of attorney’s fees under Prospect Development Co. v. Bershader, 258 Va. 75, 92 (1999).

A little background: Virginia follows the American Rule, which provides that without a statute or contract to the contrary, the prevailing party generally cannot recover attorney’s fees from the losing party. Historically, Virginia has recognized some exceptions, like false-imprisonment cases or situations “where a breach of contract has forced the plaintiff to maintain or defend a suit with a third person.” In 1999, the Supreme Court of Virginia added to this list with Bershader, holding that “in a fraud suit, a chancellor, in the exercise of his discretion, may award attorney’s fees to a defrauded party. When deciding whether to award attorney’s fees, the chancellor must consider the circumstances surrounding the fraudulent acts and the nature of the relief granted to the defrauded party.” Bershader‘s facts were pretty bad, as the chancellor found that the defendants had “engaged in callous, deliberate, deceitful acts that the chancellor described as a pattern of misconduct” that misled the plaintiffs and others. The chancellor felt that if he did not award attorney’s fees, the plaintiffs would have won a hollow victory.

That’s all fine as far as it goes, but it left open at least two questions: (1) Are attorney’s fees available only in equity, and (2) are they available only when the defendant has engaged in egregious misconduct? Continue Reading SCOVA Clarifies Availability of Attorney’s Fees Under Prospect Development Co. v. Bershader

As I’m working my way through my Good Will Hunting library-card master’s program,* I had the chance to revisit Crito. This is a great dialogue! It’s only about 15 pages long. Socrates is in prison awaiting execution. His friend Crito shows up and tries to talk him into escaping into exile. Socrates is having none of it.

And the leads to this amazing exchange: Continue Reading Crito: Persuade the Laws or Obey Them

I’m a sucker for a good summary-judgment opinion, and the Fourth Circuit delivered last week with Sedar v. Reston Town Center Property, LLC. Sedar transparently applies the summary-judgment to a straightforward slip-and-fall fact pattern, offering real guidance to the bench and bar.

First, the facts: Sedar was walking out of a parking garage with two colleagues when she fell down a flight of stairs. She was knocked unconscious and broke her elbow. Sedar does not remember the fall, and neither of her friends saw exactly what happened–though they could describe Sedar’s general path of travel. Though their testimony differed, both colleagues placed her over loose bricks at the top of the stairs. Other friends soon arrived and took photographs and video. When Sedar came to, she noticed a scuff mark on the top of her shoe. She later hired a structural engineer. He determined that evidence showed unstable bricks and caulk, which constituted a hazard and violated the building and maintenance codes. The engineer concluded that this most likely caused Sedar to fall.

Sedar sued. After discovery, the defendants moved for summary judgment. They also asked the district court to exclude Sedar’s expert.

The district court granted summary judgment, holding that Sedar had produced no evidence that the defendants had actual or constructive notice of the defect. It also noted that Virginia law does not impose liability to fix sidewalk irregularities that are less than an inch or two in size. Finally, the district court concluded that even if Sedar had presented enough evidence of negligence, she’d produced no evidence that the defects caused her fall.

As it turned out, the district court was wrong on each point.

Continue Reading What’s a Scintilla? Sedar v. Reston Town Center Property, LLC

I’m still trying to keep myself honest. For the second month in a row, we get swordfighting Lesbians (although they were way funnier in Gideon than Thucydides):

  • The Landmark Thucydides: A Comprehensive Guide to the Pelopennesian War by Thucydides. This is the text of Thucydides’s classic history, with tons of explanatory extras–maps, cross-references, explanations, timelines, etc. The text is remarkably dense and hard to follow; I’m pretty sure that I would have found it unreadable without the Landmark edition. Except for the prose, which is atrocious, the book feels surprisingly modern. Lots of attention paid to alliances, propaganda, betrayals, logistics–and, of course, the plague that hit Athens. Recommended but only in this version. (Also, in candor, I did not read all the appendices and I skipped sections of the text that were not included in the St. Johns syllabus because holy hell you would understand if you tried to read it.)
  • The Psychology of Money by Morgan Housel. A fantastic collection of essays that anecdotes to illustrate some basic principles about our relationship with money. If I had to distill a theme: Nobody’s crazy–we’re all viewing the world from different perspectives, with different goals in mind. Luck and risk are real, and results are not correlated with effort.
  • How to Be Free: An Ancient Guide to the Stoic Life by Epictetus, translated by Anthony Long. Super accessible new translation of the Encheiridion and related reflections from the Discourses. I got more out of the latter than the former but ymmv.
  • The Way to Love: The Last Meditations of Anthony de Mello by Anthony de Mello S.J. A thoughtful dispatch from somewhere around the intersection of Jesuit, Stoic, and Buddhist thought. De Mello presents some very challenging ideas, many of which I don’t agree with–I get the basic critique of attachments but I have a  hard time applying it to, say, your spouse and kids. Still, plenty worth pondering in here.
  • Careless People: Murder, Mayhem, and the Invention of the Great Gatsby by Sarah Churchwell. A fascinating book about a fascinating book. Churchwell interweaves four basic threads: (1) the story of the Fitzgeralds’ lives while Scott was writing Gatsby, (2) a chapter-by-chapter literary analysis of Gatsby, (3) a description of the United States in 1922 (the year Gatsby takes place), and (4) the story of a highly publicized double murder in New Jersey from 1922. Each thread comments on the others. Fitzgerald’s writing was so tied to the moment that some of the details and meanings have gotten lost. For example, when reading Gatsby, it’s very helpful to know what, say, a green light meant to a motorist in NYC or Long Island in 1922 (usually but not always go, resulting in fatal accidents!). And the details of the Fitzgeralds’ lives are really something. Dry February is looking better all the time.
  • The Great Gatsby by F. Scott Fitzgerald. You don’t need me to tell you about this. One of my favorite books ever, and I couldn’t not read it after Careless People. 
  • The Miracle of Mindfulness by Thich Nhat Hanh. Another re-read. This is a how-to meditation guide by the famous Buddhist monk and peace activist. Highly recommended if you like this sort of thing.

As for online essays, I loved Ideas that Changed My Life by Morgan Housel. Also, The Friend by Matthew Teague (and let’s throw in Can You Say Hero? by Tom Junod from a month or two ago). Yes, I realize that the latter two are Esquire essays from a million years ago that have been turned into movies. But they’re good! And it’s hardly Tom Junod’s fault that I’m shallow and late to the party.

I’m working my way through Leadership in Turbulent Times by Doris Kearns Goodwin, which distills leadership lessons from the careers of Abraham Lincoln, Teddy Roosevelt, FDR, and LBJ. Solid read so far.

One of the highlights is the section where a chastened Lincoln responds to his failed stint in congress (following his failed stint in the Illinois state legislature) by deciding to become an elite trial lawyer:

The half-decade that followed Lincoln’s brief and unhappy tenure in Congress is often depicted as a period of withdrawal from public life. He himself claimed that he “was losing interest in politics.” Although one might suspect his claim, it is undeniable that he practiced law more assiduously than ever before. Furthermore, this waiting period was anything but a passive time; it was, on the contrary, an intense period of personal, intellectual, moral, and professional growth, for during these years he learned to position himself as a lawyer and a leader able to cope with the tremors that were beginning to rack the country.

So how did our nation’s most celebrated Vampire Hunter transform himself into a Super Lawyer? Continue Reading Abraham Lincoln: Super Lawyer

Tim Ferriss had an amazing conversation with Jerry Seinfeld that covers Seinfeld’s writing process, the importance of systems, and life. It’s probably the best podcast I’ve every listened to.

Here’s the takeaway: Your brain is a lump of meat in your skull. It responds to rules, rewards, and routines, so you can train it like a schnauzer. If you want to consistently succeed in a difficult field, you have to train it this way. To illustrate, Seinfeld goes through some of his routines for writing, fitness, and meditation.

That is a gross oversimplification. The whole podcast is well worth your time. I’ve pulled out a few highlights below. Continue Reading Jerry Seinfeld on Writing, Systems, and Life

Good stuff out of the Fourth Circuit this week–the Court published an opinion addressing two delightfully nerdy topics, Rule 59 motions and the mandate rule, JTH Tax, Inc. v. Aime

Full disclosure: Before reading this opinion, I did not know that the mandate rule was a thing.

I mean, I could have derived it–it seems like a bad idea to ask a lower court to overrule a higher court’s opinion earlier in the exact same case?–but I didn’t know there was actually a rule saying that you can’t do that. Now I do. So I am literally a better lawyer than I was when I started the opinion. Read on if you are dumb like me and could use a powerup.
Continue Reading CA4 on Mandate Rule and Rule 59