On Wednesday, the Supreme Court of Virginia heard oral arguments on petitions for appeal, or “writ arguments.” Writ arguments give the appellant a chance to explain, in person, why the Court should grant his or her petition. The appellant has 10 minutes to argue before a panel of 3-4 justices. The appellee does not get to respond.

Yes, it’s as much fun as it sounds.

I didn’t get a chance to argue this time around. But I spoke with a lawyer who did, and who also watched a number of other petitioners over the course of the day. He shared some observations, which I thought were quite helpful. Sadly, our anonymous observer was not interested writing a guest post. He did, however, give me a page of handwritten notes–or what the Colonel would call an “anablog”–which I’ve stolen translated into the digital medium for your benefit:

  • Write a good petition for appeal. It’s amazing how the rest of the process falls into place if you get this step right.
  • Show up in person. Rule 5:17(g) allows you to do a writ argument by telephone. That doesn’t make it a good idea to do so. If at all possible, show up in person. You communicate much more effectively when you are able to see the justices’ facial expressions, body language, and other nonverbal cues.
  • Keep your eye on the ball. The goal of your argument is to convince one justice to take your appeal. You don’t have to convince the whole panel. And you don’t even have to convince your one justice that you are right–it can be sufficient at this stage in the process to show that your petition presents an important question of law.
  • Get to the point. Tell the Court who you are, what the issue is, and why it should take the appeal. Here’s a handy little script: “May it please the Court, may name is x, and I represent y. This is a case about z. The trial court erred because a. The Court should grant this appeal because b.” Boring? Sure, but it does the trick and keeps you on message.
  • But don’t actually use a script. A good oral argument is like a conversation with a senior partner about a case. You don’t actually script those meetings, but you do go into them with a pretty firm idea about what you’d like to say.
  • Answer the panel’s questions. The best way to do this is to think about those questions–and your answers–in advance.

I hope you enjoyed the Anablogger’s input as much as I did. I have forwarded him a mimeographed copy of this post. If he has any comments, I will include his telegram in a future entry.

The image above is Joe Mabel’s photograph of an electric analog computer built circa 1953 at Boeing. The computer is on display at the Museum of History and Industry in Seattle, and the image is used under the GDFL.

This morning, the Supreme Court of Virginia approved changes to Rules 5 and 5A, which govern appellate practice in state courts. [Hat tip to Official Friend of De Novo (TM) Steve Emmert.]

The new rules will take effect July 1st. We will talk about them in the coming weeks, but wanted to give you all a heads up.

Also, please be prepared for some light blogging ahead–jury trial next week, followed by some oral arguments and briefing deadlines. Gotta pay the bills somehow.

Deadlines are an important part of my practice. You wouldn’t believe how much time I spend re-reading rules I could practically recite by heart and counting days. Monks have their rosaries, and I have my calendar.

That’s because appellate courts are sticklers for deadlines. I’ve heard plenty of complaints and conspiracy theories over the years, but the reason why is simple: the ability to know that you’re done with litigation, and to put the matter behind you and move on with your life, is a valuable right. It’s the prize you get for winning a trial.

Appellate courts guard that right jealously, and they do so to protect appellees—not to hurt appellants or manage their own case loads. Furthermore, appellate deadlines are, for the most part, straightforward. Everyone is on notice of them. Miss them at your peril.

Does that sound like a transparent attempt to scare you into hiring me? It’s not. Here’s why: The first appellate deadlines come in trial court. In that sense, we’re all appellate lawyers, and we’re all responsible for meeting these deadlines.

By way of illustration, here are the key appellate deadlines through the filing of the petition for appeal:

  • An objection must be raised with reasonable certainty at the time of the ruling. Otherwise, the Court will not consider an error except for good cause shown or to attain the ends of justice—which is to say that, as a practical matter, they won’t consider it. Va. Sup. Ct. R. 5:25.
  • A trial court retains jurisdiction to modify, suspend, or vacate a final judgment for 21 days after the date of entry. Va. Sup. Ct. R. 1:1.
  • A notice of appeal must be filed within 30 days of entry of final judgment. Va. Sup. Ct. R. 5:9.
  • A transcript must be filed within 60 days of final judgment to be made part of the record. If the appellant fails to ensure that the record contains transcripts necessary to permit resolution of appellate issues, the Court will refuse to consider any assignments of error affected by the omission. Va. Sup. Ct. R. 5:11.
  • A petition for appeal must be filed within 3 months of the entry of the order appealed from. Va. Sup. Ct. R. 5:17.

These are the big five deadlines, and trial lawyers typically take care of at least the first two. I’ve worked on an appeal where the trial team handled the first four steps. But every appeal starts in trial court–and unless you want it to end there, you have to meet these deadlines.

In our never-ending quest to add value, we once again respond to your questions and feedback. The bold headings below are actual search terms that have led to this site.

  • Virginia legal blogs. There are actually quite a few these days. Virginia Lawyers Weekly maintains a list of 34 Virginia legal blogs, with links. That list is by no means exhaustive. I’ve spoken with the folks at VLW, and if you’ve got a blog that’s not on their list, they’d love to hear from you.
  • va de novo review definition. De novo review is non-deferential. The appellate court takes a fresh look at the matter. In his Dictionary of Modern Legal Usage, Bryan Garner explains that when de novo is used as an adverb, it means “anew”–e.g., “We review a grant of summary judgment de novo.” If you are looking for a formal definition to insert into the standard of review section of a brief, save yourself the effort. The court knows what you are talking about. It’s sufficient to say, for example, that your assignment of error presents a question of statutory interpretation, which is a question of law that the court will review de novo.
  • “kelly hart” naked. Really? First of all, I don’t even know who Kelly Hart is. Second, look around. Does anything on this page remotely suggest pornography?
  • One reader wrote in to observe that, traveling by car, it is farther from Virginia Beach to Justice Kinser’s chambers in Pennington Gap (the short way–i.e., Route 460), than it is from Dover, England to Mannheim, Germany–even though one passes through the United Kingdom, France, Belgium, the Netherlands, Luxembourg, and Germany. Door-to-door, still taking 460, it is farther from the SCV in Richmond than it is from Dover to Saarlouis, a suburb of Saarbruecken, Germany, taking the same route as far as Luxembourg. Two thoughts in response: First, Virginia is a very big place. It’s very diverse geographically, socially, and economically. Second, does anyone else now associate Justice Kinser with a certain globe-hopping amnesic assassin?

I swear to God, if she even feels you dodging a question, there is no measure to how fast and how hard she will bring this fight to your doorstep.

  • Another reader wrote in to ask about the required notice of intent to file a petition for rehearing. We provided a notice that we’d used in another case as a template. I don’t think there’s any magic to the notice. It’s just a matter of carefully following Rules 5:39 and 5:39A. (Of course, I’ve been wrong before.) We’re glad to help out any way we can, and if we’ve got a pertinent model document we’re happy to share.

Finally, it looks like the folks at LexBlog liked our post about court reporters. Thanks for the shout, guys.

There are a lot of weird things that you don’t know about me. One of them is that I love appellate records. I think they’re neat. Few parts of my job are as entertaining as reading through pleadings and transcripts to reconstruct what happened in the trial court and find points for appeal. The record tells a story. It’s kind of like reading Faulkner. And anything that is not in the record is not part of the story.

This leads to Step 2 in our guide to preserving error: Hire a court reporter.

The importance of Step 2 cannot be overstated (but that won’t stop me from trying). Generally speaking, an appellate court will not consider anything outside the record. That means that, if an exchange or concession did not appear in the record, for all practical purposes it did not happen. You need a court reporter to document what happens in court.

This leads to a corollary point: Once you have hired a court reporter, bring him or her with you everywhere. Think of the area within the court reporter’s earshot as the green zone. The court reporter keeps opposing counsel honest and the judge polite. It’s very dangerous to leave the green zone.

Now, be prepared: The judge–and sometimes opposing counsel–will try to trick you. They will try to lure you out into the hall or back into chambers, to discuss a few “housekeeping matters” outside the presence of the jury. The judge may offer you candy. Don’t take it. It’ s a slippery slope. If you’re not careful, by the end of trial they’ll have you back there talking about jury instructions off the record. (I am 98% sure they teach this move in judge school.)

It’s all very collegial, and your failure to get your objections into the record will have the added benefit of insulating the trial court’s ruling from appeal.

Don’t fall for it. Here are some practice pointers:

  •  If a matter is important enough to require a court hearing, it is important enough to require a court reporter. Think of it as a cost of doing business.
  • Find a court reporter that you can trust, and cultivate a relationship. Be a good customer. Ask for him or her by name. Steve Emmert has a fine article on this called something like “On the Care and Feeding of Court Reporters.” Highly worth reading, and I wish I could find a copy. Update: here is a link to Steve’s essay, “The Practitioner’s Guide to the Care and Feeding of Court Reporters,” which ran in the Summar 2009 VBA Journal.
  • Do not let the judge lure you back into his den chambers without your trusty court reporter.
  • If you do get tricked into discussing something important off the record, remember to state your objections on the record later. As an aside, that’s why it’s so dangerous to talk about jury instructions off the record. As a practical matter, it’s almost  impossible to recite all of your objections accurately at the end of a long day of trial. Don’t put yourself in that situation.
  • Do not skimp on the court reporter because you assume that, if anything important happens, you can submit a written statement of facts. That strategy is fraught with peril for many reasons.
  • Make the transcript part of the record. In Virginia state court, that means filing it within 60 days after entry of judgment. E.g., Va. Sup. Ct. R. 5:11(a).

Those are our thoughts on court reporters. Anything you’d add?

It’s time for another trip to the virtual mailbag. Here are some recent searches that led to this site, and my best shot at answering the questions they raise:

  • elena kagan appellate opinions. You won’t find any. I love Solicitor General Kagan as a SCOTUS pick for a lot of reasons, and that is one of them. Unlike, oh, say, Chief Justice Roberts and Justices Stevens, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, and Sotomayor, General Kagan hasn’t sat on a federal circuit court. That’s about as much as we can hope for in the way of experiential diversity these days. Orin Kerr makes a hilarious counterargument at the Volokh Conspiracy, pointing up her sterling academic credentials, SCOTUS clerkship, and executive branch experience. Fair enough. Wanna know how a nominee without those qualifications would do? Ask Harriet Miers.
  • what’s an appellant? That’s what they call a “plaintiff” in the Fourth Circuit.
  • appellate oral argument outline. I can’t really provide a sample, but I can tell you what I do. I am quite happy with this process, which I stole from Greg Haley and Mark Hermann. First, I treat an oral argument as a conversation with the Court, and one in which the best thing I can do is to answer the Court’s questions. I will therefore need to be flexible, and will have relatively little control over the structure of the coversation. As a result, I make several outlines. One is a list of the hardest questions I can think of. I start this list at the beginning of the appeal, and update it constantly. I also make a list of the 5-10 key cases, and brief the really important ones so that I am fully conversant with them. Next, I make a detailed outline of the facts of the case, with dates and citations to the Joint Appendix. Finally, I draft an outline of the argument. The outline itself is short, but I put it in enormous 14-point Century Schoolbook for ease of reading. The Court can probably read along with me from the bench.
  • twiqbal. I offer my limited and not-terribly-insightful thoughts on the new federal pleading standards; I’m no civ pro expert. That is not to say that I haven’t contributed to the debate. It’s entirely possible that I coined the term “Twiqbal.” Specifically, the first time I used it, I wasn’t borrowing it from anyone, but I have no idea if I was actually the first person to use the term. Why do I mention this? Because someone credited me with coining the term at a CLE, which generated the most hilarious piece of hate mail I’ve every received (names redacted):

In case you can’t read it, here’s what the email says: “I would have called the doctrine announced in those cases the ‘Craunching Marmoset Rule.’ I am so stupid. Could you help me come up with words for the following? 1. the post a lamp sits on (I suggest ‘illumo-stickster’) 2. the port in which you park an automobile (‘car-hole’?) 3. the pants that are blue and made out of material that jeans are made of (which I now call ‘blue ass-hat leg tubes’). Just joking. We all know Tommy Strelka came up with ‘Twiqbal.'”

Well played, Tommy Strelka’s mom.

If you’ve got any questions you’d like to see answered–or if you just want to call me names–please shoot me an email or post a comment. And don’t forget that tomorrow is opinion day from the SCV. Update: The Court released its opinions today, a day early. Check out Steve Emmert’s website for his opinion summaries.

When we talk to trial lawyers at bar events or CLEs, they almost invariably raise two concerns–even fears–about appellate practice. One is missing an arcane deadline, and the other is failing to preserve an issue for appeal. This suggests that our marketing strategy is working we can add value by clarifying some of these issues.

As for the deadlines, those ought to be easy enough to deal with, at least in theory. All you need is a copy of the rules, a checklist, and a calendar. As a responsible grownup, you ought to be able to track down a copy of the rules and a calendar on your own. I am glad to provide a model checklist. Just shoot me an email. See? That wasn’t so hard.

Preserving error, though . . . that’s another matter. My partner, Monica Monday, and I have put our heads together and come up with a ten-step guide to preserving issues for appeal. We”ll be sharing those steps in a series of posts, starting today.

Step 1: Develop an Appellate Strategy

Plaintiffs’ lawyers, pay attention: Despite everything you’ve been led to believe, your case does not end at verdict.

If you face a determined opponent, the final order only marks halftime.

So catch your breath, grab an orange slice, and listen up.

The goal isn’t just to win in the trial court. Tricking the jury into awarding your client a bajillion dollars using those Jedi mind tricks that they teach you at the VTLA is useless if you can’t defend that verdict on appeal. Also, you never know when a trial judge is going to do something wacky, like take your case away from the jury. And, of course, there’s always the slim chance that you will lose, and find yourself as the appellant.

For all of those reasons, it’s important to take steps in the trial court to position yourself for appeal.  Here’s how you get started:

  • Analyze your case early. In particular, identify the key legal issues, and elements of claims and defenses–both your own, and your adversary’s. By and large, it’s the legal issues that will carry the day on appeal.
  • Make a checklist. You’re going to find that we’re big on lists and calendars. One of the most useful lists that you can make tracks the elements of proof, both for your case and your opponent’s. Write down what you need to prove to establish your claims and defenses, and what witnesses and exhibits you will use to do so. Do the same thing for your opponent’s claims and defenses.
  • Plan–and calendar–your attack and defense. Review your checklists critically. Is a key element of your opponent’s proof vulnerable? Plan a motion in limine to exclude it. Is proof of an element wholly absent? Move for summary judgment. Even if you have no chance of prevailing on a motion in front of a given judge, a motion can still serve a valuable purpose–it can be a marker that sets out your position, and preserves it for appeal later. If a key piece of your evidence is excluded, be prepared to make a proffer at trial.
  • Get on file. Once you’ve decided which motions you’e going to file to preserve legal issues for appeal, check the scheduling order and calendar them. Commit yourself to getting them on file.
  • Win. While it is important to plan your trial strategy with an eye towards a potential appeal, winning in the trial court is, generally speaking, the best thing you can do for your chances on appeal. Emmert tells me that over the last few years, the Supreme Court of Virginia has granted, about 1 in 5 civil petitions for appeal. Of the appeals granted, about 3 in 5 result in reversals. The actual reversal rate is about 13%. Of course, not all wins are created equal–a victory on a demurrer or a motion to strike is not nearly as secure as a jury verdict. But it’s still better than losing.

That, in a nutshell, is step one. If you’ve got other tips for planning an appellate strategy, please share them. Otherwise, it’s on to Step 2 . . .

One of the neat features of blogging is that I get to see the searches that brought people here.

It recently occurred to me that I can wield this power for good or evil–good, if I choose to engage your questions, and provide useful information; or evil, if I should expose the bizarre and disturbing questions that keep you up at night. (That’s right–I can see what the time you time you ran those searches, too.)

Now, how should we play this one?

Here are some of the questions that have recently led people to this blog, and my answers to them. All of the questions–and their bizarro internet spellings and grammatical innovations–are real:

  • did james o’keeffe go to law school? Yes. I went to law school in Boston. Well, not in Boston, but nearby. No, not Tufts . . .
  • when do Virginia supreme court opinions get released? Generally, on the last day of the next session after the case was argued. Based on the Court’s 2010 calendar, we can expect opinions on April 16, June 11, September 17, and November 5.
  • Snyder V. Phelps. Wow. The more offensive this case gets, the more people love it. Here’s what I’ve got. Also, folks seem incited to a frothing, bloodthirsty rage by interested in the Fourth Circuit’s award of costs to the church. That’s not particularly unusual or malicious. Federal Rule of Appellate Procedure 39 provides that, when a judgment is affirmed, costs are taxed against the appellant unless the law provides or the court orders otherwise. Finally, it sounds like the missionaries from the Westboro Baptist Church are headed to Virginia Tech to, err, spread the Word.
  • 10 ways to ruin a good horse. I have 13. Give me a call.

That’s all for today, but I hope to make the Thursday Q&A a recurring feature. In the meantime, feel free to shoot me an email or post a comment if you’ve got a topic that you’d like to see addressed.

The cruelest month gets off to an entertaining start, as the Supreme Court of Virginia releases its April argument docket. From April 12-16, the Court is set to hear six criminal cases, one VSB disciplinary board case, and 21 civil cases.

Of particular note, the Court will hear a pair of cases about the ownership of church property in Northern Virginia. I gather from the news coverage that the cases involve property held by parishes that left the Episcopal church, and challenge the constitutionality of Virginia’s unique “division statute,” Code Section 57-9(A). The Diocese of Virginia has put the briefs up on its website, but I am lazy I’ve been busy and have not yet had a chance to read them.

How cool are these cases? In one of them, George Somerville–he of standard-of-review fame–Troutman Sanders, and Professor Howard square off against . . . well, roughly everyone else with a law license. Here are the counsel in Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, et al., Record No. 090682:

  • For the appellant, Bradfute W. Davenport, Jr.; George A. Somerville; Mary C. Zinsner; Joshua D. Heslinga; A.E. Dick Howard; Troutman Sanders.
  • For the appellees, Gordon A. Coffee; Gene C. Schaerr; Steffen N. Johnson; Andrew C. Nichols; Scott J. Ward; George O. Peterson; Tania M.L. Saylor; Mary A. McReynolds; James A. Johnson; Paul N. Farquharson; Scott H. Phillips; James E. Carr; E. Andrew Burcher; R. Hunter Manson; Kenneth T. Cuccinelli II, Attorney General; Charles E. James, Jr., Chief Deputy Attorney General; E. Duncan Getchell, Jr., State Solicitor General; Stephen R. McCullough, Senior Appellate Counsel; William E. Thro, Special Counsel; Winston & Strawn; Gammon & Grange; Peterson Saylor; Semmes, Bowen & Semmes; Carr & Carr; Walsh, Collucci, Lubeley, Emerick & Walsh.

And if that’s not enought, amici abound; there’s even a brief co-authored by Ken Starr.

Church and state? One-of-a-kind statutes? Publicly available briefs from a all-start lineup of advocates? It’s all almost too good to be true.

I spent the weekend in chilly Williamsburg, attending my first VTLA convention. The convention featured two appellate presentations, one from John Davidson and another from Roger Creager. Both were excellent. John probably had a slight advantage, because his came with lunch, but I’d like to pick up on a point that Roger made: the winner in the trial court wins on appeal in the vast majority of cases.

Using statistics available on the Supreme Court’s website, Roger calculated that, in 2008 (the most recent year for which statistics are available), 416 civil petitions for appeal were filed. Of those, only 108 appeals, or 26%, were granted. I’d quibble with Roger’s exact figures–for example, I don’t think they account for petitions that were dismissed on procedural grounds–but his basic point is sound: the party who won below has a huge systemic advantage on appeal. If an appeal is not granted, for any reason, it’s game over–and the appellee wins by definition.

In fact, Roger understates his point by not including petitions dismissed on procedural grounds. Using the same caseload statistics, I’d put the figure for civil petitions for appeal granted at about 19% (assuming that the Court’s figures account for petitions that were withdrawn, granted on a petition for rehearing, etc.) This means that appellees won 4 of 5 appeals right out of the gate.

And things weren’t all that much better once an appeal was granted. That’s to be expected, because the Supreme Court of Virginia is not solely a court of error correction. Of the 124 cases decided by opinion in 2008, 54–or 43.5%–affirmed the decision below. Another 81 cases were decided by orders. We don’t know how those came out, but it’s reasonable to assume that they basically tracked the split for cases decided by opinion.

By Roger’s figures, this means that the party who won in the trial court won on appeal 7 out of 8 times in 2008. My figures are even more favorable to appellees. By my count, they won about 92% of the civil appeals in 2008.

The point of this exercise is that it pays to be a winner in the trial court. If 4 out of 5 petitions for appeal never make it to the merits stage, then a good result below gives you a little margin for error.