Our Thanksgiving was marred by some terrible news–leading Texas appellate lawyer and rising star of the SCOTUS bar Gregory S. Coleman has died in a plane crash. How Appealing aggregates a number of reports.

Coleman argued Switzer v. Skinner in October, and in 2009 he handled–and won–what the Legal Times’ Tony Mauro called two of the Court’s most important cases in recent years: Northwest Austin Municipal Utility District No. 1 v. Holder and Ricci v. DeStefano, better known as the New Haven firefighter case. See also SCOTUSBlog (Holder was “one of the most important civil rights cases in years“).

A few years ago, we had the privilege of working with Coleman’s firm on a few cases. They were top-notch lawyers and unbelievably nice guys; gracious and smart, smart, smart. This is really awful news, and we hope that you’ll keep everyone involved in your thoughts and prayers.

The Supreme Court of Virginia handed down 19 opinions in November. 17 were unanimous, one was split 4-3 (Cordon v. Commonwealth) and the other was split 5-2 (Town of Leesburg v. Giordano).

For those who are interested–namely, me–here is a quick breakdown of the November opinions by justice:

Chief Justice Hassell

  • Votes cast: 17
  • In majority: 17 (100%)
  • In majority in split cases: 1/1 (100%)
  • Opinions written: 1 (Heinrich Schepers GmBH & Co. v. Whittaker)

Continue Reading November SCV Opinions By the Numbers

I received this email the other day:

I may search your archives, but if you’re casting about for blog post ideas, I’d love to see a post geared toward those who are about to take the plunge for the first time on (or are otherwise new to) handling an actual appellate oral argument.

Challenge accepted. Here are ten things I wish that someone had told me before my first oral argument:

1. Answer the damn questions.

The single best use of your time at oral argument is answering the Court’s questions. The Court is deciding your case. What interests the Court is of primary importance to you by definition. Further, nothing seems to irritate a court more than ignoring a question. As Judge Kozinski famously noted, there’s really no substitute for annoying the people who control your fate.

On that note, I wish that someone had told me not to worry about sticking to my outline, couching my answers in terms of my themes, controlling the discussion, and so forth. Seasoned jurists will see through that anyway. Just answer the Court’s questions as directly, honestly, and concisely as possible.

Hopefully, that will be no more complicated than a yes, no, or JA citation. If the answer requires qualification then, as John Davidson likes to say, “Answer first, and then explain.” In other words, “Yes, unless . . .” or “No, except that . . .”

Everything else on my list is subsidiary to this point.

Continue Reading 10 Things I Wish I’d Known Before My First Oral Argument

From an appellate lawyer’s perspective, one of the trickiest parts of trial practice is preserving issues for appeal.

And one of the most difficult–and, unfortunately, the most common–variations of the problem arises when the trial court does something important off the record. That can happen in chambers, at sidebar, in the hall, or practically anywhere. The only limitations are the scope of the judge’s imagination and the architecture of the courthouse.

The obvious solution is to bring the court reporter along whenever it looks like something good is about to happen. (If you’ve been reading this blog, you know better than to go to court without a court reporter. Ever.)

But what can you do when the judge indicates that he or she wants to talk to counsel in chambers, without the court reporter?

That’s a tough one. As a trial lawyer, you never want to irritate a judge. Here’s a tool you can use to help address the situation: Code Section 8.01-420.3. It says, in part:

The court shall not direct the court reporter to cease recording any portion of the proceeding without the consent of all parties or of their counsel of record.

That’s powerful stuff, and it may be enough to get the judge to back down and let the court reporter in on the action.

Of course, it doesn’t solve the whole problem; citing the Code section may still tick the judge off. Whether it’s worth doing so is a judgment call the trial lawyer has to make. But at least Code Section 8.01-420.3 provides some legal cover for the argument, and a justification for insisting that information be put into the record.

Even though I’ve started compiling the definitive Trial Lawyer’s Guide to Preserving Error in Virginia, I confess that I didn’t know this statute existed until Frank Friedman pointed it out to me the other day at a CLE. Frank is a great guy, and a brilliant* appellate lawyer. I’m sure that he’ll be glad to help you appeal any contempt citations that might result from this post.

 

*With the exception of one or two pending cases, where he is clearly wrong.

Here are more of the questions and searches that have led people to De Novo, and our feeble attempts to address them:

Cufflinks at oral argument?

No.

Noting objections on a final judgment order in Virginia.

Generally a good idea, espcially if the trial court is still in a position to take corrective action. The more specific your objections, the better.

A few cases that you may want to check out include:

  • Helms v. Manspile, 277 Va. 1, 6-7, 671 S.E.2d 127, 129-30 (2009) (where defendants argued in written closing that they owned a parcel of land by adverse possession, endorsing final order as “seen” did not waive their argument and preserved their adverse possession claim for appeal);
  • Scialdone v. Commonwealth, 279 Va. 422, 440, 689 S.E.2d 716, 726 (2010) (“[W]here a party makes his objections known to the court prior to or at the time of entry of a final order or decree and does not specifically disclaim the desire to have the court rule on those objections, entry of a final order or decree adverse to those objections constitutes a rejection of them and preserves them under [the contemporaneous objection rule] for purposes of appeal.”);
  • Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44, 56 n.4 (2008) (later filing written objections to trial court’s ruling from the bench satisfied Rule 5:25);
  • Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736 (1991) (objecting generally to an order will not suffice to preserve for review errors not raised in the record).

Is Cynthia Kinser a Federal Judge in Virginia?

No, she is the Chief Justice-elect of the Virginia Supreme Court. Thanks for your loyal readership.

Virginia appellate brief example?

The merits briefs from the Episcopal church property dispute are online here. That should get you started. Also, we’re generally glad to share examples of our work from decided cases. Just send me an email or give me a call.

Law of hitting a cow in a vehicle in VA?

What is your cow doing in a car? If you are talking about hitting a cow with a vehicle, the law is surprisingly well developed. I recommend Browning v. East.

She lawyer “martial arts”.

Joss Whedon is working on the pilot even as we speak. It can’t be worse than Dollhouse.

Remember: None of this is legal advice. We are not your lawyers. If you are coming here for legal advice, then you’ve got bigger problems than we can solve in a blog post.

The Supreme Court of Virginia dropped a pair of decisions on us last month that highlight the wisdom of Mr. Baldwin’s* worldview–although, oddly enough, neither came up in the context of contracts. Read together, the holdings in Aguilera v. Christian and Shipe v. Hunter make it clear that when the Code or the Rules require a lawyer to sign a pleading, they mean that the lawyer has to physically sign the pleading.

In Aguilera, the Court held that a pro se litigant could not authorize a person who wasn’t authorized to practice law in Virginia to sign a pleading on his behalf.

Aguilera asked his neighbor, who was licensed to practice in DC but not Virginia, to sign a complaint. It appears that he did so on the day before the two-year statute of limitations on his claim ran.

The trial court dismissed the case, and the Supreme Court affirmed. It held that Aguilera’s complaint was a nullity because it was not signed by the party or a lawyer licensed to practice in Virginia.

Shipe is marginally more interesting. It addressed the related question of whether a lawyer who’s licensed in Virginia may authorize a lawyer who is licensed elsewhere, but not in Virginia, to sign a pleading on the Virginia lawyer’s behalf.

The answer, as you’ve surely guessed, is no. The trial court held that the complaint was a nullity, entered summary judgment in favor of the defendant, and dismissed the case with prejudice.

Continue Reading Only One Thing Counts in This World: Get Them to Sign on the Line Which is Dotted

Our office has been in the midst of a debate about moot-courting appellate arguments.

Some lawyers think that it’s invaluable; a moot court allows you to test themes and arguments, and exposes you to lines of questioning that you wouldn’t have otherwise anticipated. Others find it costly and excessive. They rarely if ever moot their own cases, and grouse when asked to sit on a panel.

For a long time, I thought that this was a matter of personal preference based on speaking style and training. But then I noticed the following item from Aldisert’s oral argument checklist in Winning on Appeal:

Mandatory office moot court. If the case is important enough to appeal, it is important enough to rehearse the oral argument in your office. Enlist partners and associates (preferably those who are somewhat detached) to read the briefs and assume the roles of judges and your adversary. Have them pepper you with questions. Rehearsing your argument is as important as any other billable hour.

There you have it. Aldisert is binding authority when it comes to appellate practice. In the face of Aldisert, there can be no matters of personal preference. There is only “Aldisert” and “wrong.” As such, the value of moot court is no longer open to debate at the Firm on the Move (TM).

A few weeks back, I did a post on a day in the life of an appellate lawyer. I was delighted to find a (somewhat more restrained) companion piece in Leesburg Today, which ran a Q&A with Justice Mims last Friday.

Justice Mims answered a number of questions, including “Describe a typical day in the life of a Supreme Court justice.” His response:

There are many days that are typical for different reasons. We hear cases on their merits six times each year for one week. So, during a one-week period we will hear more than two dozen cases. During the days, or for the better part of a month prior to those court weeks, most of our time is spent reading the briefs, reviewing the documents in the appellate record and doing our own legal research based upon what we have learned from the briefs and record. When those cases are argued we know the facts and the law quite well and consequently the argument moves very quickly during the 30 minutes that are allotted to each of the cases. For weeks after the case is argued we are writing our opinions. Typically a justice has three opinions to write on average following each court week. That is a lengthy and careful process. Each opinion will go through multiple drafts before being released, typically about two months after the case is argued. That process of preparation, argument and opinion writing takes up most of our time but we also have to decide which cases to hear on the merits. We will read briefs and hear in summary fashion more than 100 cases in order to decide which two dozen or so will be briefed fully and argued on their merits. That is known as the writ process because the document which is filed by the appellant is a writ of appeal and we have to review that writ and hear a short argument from the appellant in order to decide whether to grant the writ and hear the appeal on its merits. There are hundreds of cases that pass by the court each year in order to determine the 150 or so that will ultimately be decided on the merits. Additionally, there are motions to re-hear from those whose writ was not granted or whose appeal was denied. And likewise there are a small number of cases that come to the court as part of its original jurisdiction. Those are cases involving what are known as writs of mandamus and writs of prohibition and also writs of habeas corpus in criminal matters. Finally there are administrative responsibilities. The court has administrative oversight responsibilities for the local court system so there are responsibilities that are administrative in nature as well as disciplinary proceedings that come to us and various other matters that fill up the day and the week.

Administrative oversight responsibilities? Disciplinary proceedings? Frankly, my day sounds like more fun.

But it’s not all bad on the high court. The substantive work is quite appealing, and it clearly comprises the bulk of the job. Further, when Justice Mims was asked what’s been the biggest surprise for him, he said that nothing was particularly surprising–but he did find “most notable” “the quality of the legal arguments that are made, both in briefs and in oral arguments. The issues are extraordinarily well developed and asserted.”

After more than 40 years on the bench and service at every level of the Virginia judiciary, Justice Koontz has run up against the mandatory retirement age. Earlier this week, he took the time to speak about his career with his former clerk (and my current partner) Monica Monday at a meeting of the Ted Dalton American Inn of Court.

In the wide-ranging conversation, Justice Koontz came off as charming, thoughtful, and funny. A few highlights that may be of interest to appellate practitioners:

  • Justice Koontz still believes that oral argument is valuable–though I got the sense that some of his colleagues may differ with him on that point. He’s been keeping an “unscientific survey” since he joined the Court of Appeals as a charter member in 1985. Over those 25 years, he estimates that oral argument changed the court’s thinking in 25-30% of the cases he heard.
  • In terms of practical advice, Justice Koontz suggests that at oral argument, advocates pick their single most compelling point–the one issue that tips the scales in their favor–and plan to spend their time discussing that issue. There’s just not enough time to do much else effectively. The one exception, he noted, is when the other side has a particularly strong argument, which must be disarmed.
  • From my perspective, the most interesting exchange of the evening came when Monica asked Justice Koontz to explain the different between trial and appellate judges. For Justice Koontz, who’s sat on both benches–and who has been a judge much longer than I’ve been alive–the difference comes down to credibility: The trial judge weighs the credibility of witnesses, while the appellate judge works hard not to.
  • Finally, Justice Koontz noted that he is seeing an increase in personal attacks and hyperbole in briefs. He flatly stated that this is not effective advocacy.

I understand that Justice Koontz officially steps down in January 2011. We’d love to hear any of your thoughts about how to give him a proper Web 2.0 sendoff.

My dad retires this month after 32 years of public service as a tax lawyer for the State of New York. I still have no idea what he does on a daily basis. I understand that it involves numbers.

My brother, Patrick, also works with numbers. They must be different numbers, because he doesn’t know what Dad does for a living, either. Pat had just sent me an email about how strange that is when I noticed that the the following search had brought a reader to the blog:

day in the life of an appellate lawyer

How about that for an opportunity? I could answer a reader’s question, and at the same time make sure that my own kids can answer the questions that were puzzling my brother and me. (As you can see from their picture, they are terribly bothered by such concerns.)Daddy's job is funny!

So what is a day in the life of an appellate lawyer like?

Pretty much like a day in the life of any other lawyer. Except awesome.

As a former philosophy major and ginormous nerd, I may be a little biased. But as far as I can tell, my job lets me focus on all of the good parts of being a lawyer (legal analysis, writing, argument) while ignoring the downside (discovery, PowerPoint, cufflinks) and actually contributing to the development of the law.

The highlight of my job is when I get to do an oral argument–really, to have a conversation with judges or justices about what the law is and how it should work. Those discussions are enormously fun and rewarding. But they don’t come every day, or every week, or sometimes even every month; they’re special, and they are the reward for all of the hard work we’ve put in on an appeal.

But the lower-key stuff can be be pretty interesting, too. Some days, I get to research and just think about legal issues for hours. Other days, I bounce from case-to-case working with trial counsel on legal issues. There’s really no such thing as a “normal” day in my practice. That said, here’s something pretty close to typical, based on an amalgation of some recent days:

  • 6:05 Wake up. Feed dog. Water children. Peruse internet. Seek coffee.
  • 7:15 Get dressed. This merits discussion. For some reason, adding the word “appellate” to my job description means that I am allowed–even expected–to dress like something out of Louis Auchincloss. (Case in point, my sartorial soulmate and fellow appellate lawyer, Kendall Gray.) Bowties, striped ties, pocket squares, and button-down collars are de rigueur. If I felt like pushing the envelope, I could probably get away with either a pocket watch or a pipe. But not both.
  • 7:30: Brutal 15-minute door-to-door commute.
  • 7:45 Arrive at office. Tend to obsessive-compulsive need to check deadlines, maintain inbox-zero. More coffee.
  • 8:12 Continue researching obscure point of appellate jurisdiction for brief. Ponder legal framework, policy concerns, and doctrinal underpinnings of same. Sketch whirlybird diagram mapping connections. Begin outlining brief. Scrap outline. More research.
  • 12:00 Lunch at desk. Skim RSS feeds for interesting news. Find some, but cannot share because Tweetdeck is not working.
  • 12:10 Try to update Tweetdeck for the 74th time. Fail.
  • 12:13 Beg IT for help with Tweetdeck. Fail again.
  • 1:00 Go to court to support trial counsel at hearing on post-trial motions. Help preserve points for appeal. Ensure that record reflects opposing counsel’s waiver of key objection. Effectively win appeal in trial court. Don’t say a single word on the record. Pass notes like giddy schoolgirl.
  • 2:45 More coffee.
  • 3:00 Attend moot court for partner’s oral argument before Supreme Court of Virginia. Appoint self chief justice. Dominate questioning. Unintentionally anticipate line of inquiry Justice Mims would actually raise later at argument. Argue structural justifications for fairly debatable standard of review. Declare self “winner” of moot court.
  • 4:30 Back to researching jurisdiction. Brainstorm with senior partner. Not profitable.  Imagine results of LEXIS search for “brain w/s ‘senior partner'”.
  • 4:45 Continue research. Minor breakthrough. Re-map argument and begin outlining brief.
  • 7:00 10-minute commute home.
  • 7:30 Dinner with wife. Discuss kids’ day and her soccer team.
  • 8:30 Walk dog. Discuss appellate jurisdiction.
  • 10:00 Go to bed. Ponder own lameness.
  • 10:15 Get out of bed, find blackberry, email self argument outline.
  • 10:22 Call work, leave self voicemail to ignore email, outline better argument. Irritate dog, who suspects that it is time for breakfast.
  • Sometime thereafter: Go to sleep.

It’s a wonder that I get paid to do this.