In Part III of our continuing series, former Supreme Court of Virginia clerk Tommy Strelka shares some things he learned during his recent clerkship. Today, Tommy attacks considers oral argument:

  • This ain’t no jury trial. It’s just you, the other attorney, and the Court. And though there may be several Judges or Justices, they are not a jury. So for the love of Learned Hand, don’t speak to them as if they were. In appellate practice, you are not presenting your case to people off the street. You will be speaking with highly educated and experienced legal thinkers—and you won’t win any style points for rhyming or reducing your themes to clever catchphrases. Be a professional, not a showman.
  • Be respectful. Respect the Court by not wasting time on things outside of the record or irrelevant to the points on appeal. Do not argue with the Justices or refer to them familiarly. You may respectfully disagree with the Court and (hopefully) produce points to bolster your argument, but do not spar with the Justices. Never interrupt a member of the Court, and always try to answer his or her questions as specifically—and strategically—as possible.
  •  It’s called “rebuttal,” not “repeattal.” Rebuttal is a free shot at the bad guys. Take it, and do some damage. Do not repeat everything you said earlier with some different adverbs. Crush your enemy, see him driven before you, and hear the lamentations of the Court. By the time you get to rebuttal, the Court already knows your position. Take the opportunity to point out the weaknesses in your opponent’s. Did one of the Justices ask a question that the appellee couldn’t answer? Go ahead and answer it. Did opposing counsel gloss over a weak spot? Remind the Court–or better yet, attack the weak spot. Did the Court hint at its concerns during the appellee’s arguments? Use your remaining time to address them. This is your opportunity to poke holes in stab giant, blood-gushing wounds in your opponent’s contentions. Make the most of it.

In fairness to Tommy, I have edited this entry quite heavily. The original contained descriptions of bloodletting on a near-Tarantinoid scale. If nothing else, Mr. Strelka has certainly put the “arg!” back in “oral argument.”

Don’t look now, but the Supreme Court of Virginia may have just redefined clarified the way you argue a motion to strike at the close of all of the evidence. Trial types may want to take some time to read over one of last session’s most important opinions, United Leasing Corporation v. Lehner Family Business Trust.

United Leasing is a breach of contract case. The plaintiff, the Lehner Family Business Trust, was not actually a party to the contract; one of the parties attempted to assign its claims to the Trust, and the validity of that assignment would play a major role in the litigation.

The parties went to trial before a jury. At the close of the Trust’s case in chief, United Leasing moved to strike on two grounds:

  • The Trust had failed to prove an assignment; and
  • The Trust had failed to prove damages.

The trial court overruled United Leasing’s motion to strike. United Leasing put on its own evidence, and the Trust presented evidence in rebuttal. After the jury retired at the close of all of the evidence, counsel for United Leasing stated:

Renew my motion to strike. For the record, I wanted to renew my motion to strike.

Instead of addressing the motion to strike, the trial court spoke to counsel for a while about exhibits and jury instructions. After closing argument and after the jury began its deliberations, the trial court asked United Leasing about its renewed motion. At that point, United Leasing argued only that the Trust had failed to prove damages. It did not reargue the assignment issue.

The jury returned a $1.1 million verdict for the Trust. United Leasing appealed, arguing that the Trust had failed to prove an assignment.

Continue Reading United Leasing Corp. v. Lehner Family Business Trust: When Renewing Your Motion to Strike, Do Not Renew Your Motion to Strike

Yesterday afternoon, the General Assembly unanimously elected William C. Mims to the Supreme Court of Virginia, effective April 1. The VLW Blog has the story, as does WaPo’s Virginia Politics Blog. The Richmond Times-Dispatch has a blurb, and carried a short editorial about Mims a few days ago. That editorial read, in part:

Mims has earned the commonwealth’s trust. He has served ably not only in the attorney general’s office, but in the legislature. An individual with principles, Mims possesses a judicial temperament. We cannot think of a more fitting choice for the state’s highest court.

High praise, indeed. Congratulations, Justice Mims.

Our friends at the VLW Blog are reporting that William C. Mims will replace departing Justice Barbara Milano Keenan on the Supreme Court of Virginia. Mims was introduced to a joint meeting of the House and Senate Courts of Justice Committees. Each committee must certify a candidate before that candidate can be considered by the respective houses. Mims was the only person interviewed for the SCV opening, removing any doubt that he would replace Justice Keenan.

A quick Wikipedia check (I don’t pretend to know this stuff) shows that Mims is a Republican who’s served in both the House of Delegates (1992–98) and the Senate (1998–2006). He was Bob McDonnell’s Chief Deputy Attorney General. When McDonnell resigned as Attorney General to campaign for governor in February 2009, the General Assembly picked Mims to finish McDonnell’s term. Mims did not run for a full term as Attorney General.

In September, we wrote about Snyder v. Phelps, the funeral-picketing case out of the Fourth Circuit.

Yesterday, the Supreme Court granted cert in Snyder. The case is getting plenty of attention from the mainstream media, as well as some treatment on De Novo favorites SCOTUSblog, the Volokh Conspiracy (which had roughly a bajillion posts about the case yesterday), and Above the Law.

The Court will consider Snyder in the fall. This should be interesting. Stay tuned.

One of the themes that we harp on here at De Novo is the importance of answering the Court”s questions. That usually comes up in oral argument, but sometimes, the Court is so kind as to direct the parties to brief certain issues.

That was the case in Roberson v. Commonwealth, handed down last session. Roberson and its companion case, Ghameshlouy v. Commonwealth, address some interesting but fairly esoteric questions of appellate jurisdiction, procedural defects, and waiver.

And in Roberson, it sounds like the Court really wanted to talk about waiver. At issue in the case was who was the proper appellee, the Commonwealth or the City of Virginia Beach. In its order granting the appeal, the Court directed both entities to appear, and specifically directed the City to address the question of whether it had made an appearance before the Court of Appeals. That could bear on whether it had waived its objection to the any procedural defect in the notice of appeal.

Continue Reading Roberson v. Commonwealth, or Will Somebody Please Answer Justice Koontz’s Question?

Ross Guberman of Legal Writing Pro has a fun piece, Five Ways to Write Like John Roberts, that’s worth checking out. In the essay, Guberman distills five writing lessons from Roberts’s brief in Alaska v. EPA. Those lessons are:

  1. Let your facts “show, not tell.”
  2. Add speed through short and varied transitions.
  3. Add elegance and clarity through parallel constructions.
  4. Add interest through short sentences, examples, and figures of speech.
  5. End with a bang.

Sure, you’ve heard it all before. But Guberman’s vivid discussion and well-chosen examples bring these points to life. And frankly, the quotation from Roberts’s statement of the case alone makes the essay worth reading.

There hasn’t been much news on Justice Keenan’s nomination to the Fourth Circuit recently. But yesterday, the VLW Blog reported that Virginia’s two Democratic Senators, Jim Webb and Mark Warner, invoked their Republican Governor, Robert McDonnell, in urging their Senate colleagues to act on her nomination.

According to the VLW Blog, Sens. Webb and Warner note that Justice Keenan has been a trailblazer for female jurists. She passed the Judiciary Committee by a unanimous voice vote in October. And, as further evidence of her bipartisan support, Webb and Warner point out that McDonnell had requested that she swear him in as governor.

That’s an interesting point. There was some commentary on the interwebs to the effect that Justice Keenan was a “relative moderate” without a real track record on LGBT issues. To the author’s way of thinking, she’s ruled the correct way in two LGBT cases on the SCV, but only for procedural reasons.

Leaving aside the merits of that position, at least it sounds like there’s general agreement that Justice Keenan calls balls and strikes. Isn’t there something about “being an umpire” in her job description? Yes, I’m certain I remember reading that somewhere once.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

That’s right. Thank you, Mr. Chief Justice.

All true. And to that I would add that Justice Keenan an excellent judge. It may be only marginally relevant to the political process, but she does a terrific job on the SCV and will do equally well on the Fourth Circuit. So let’s get on with it.

We’re back with the second in our series of guest posts from recent Supreme Court of Virginia clerk and avid water skier Tommy Strelka. Today, Tommy shares some more things that his clerkship taught him about brief writing:

  • Ditch the hyperbole. Your appeal from your client’s sixth conviction of shoplifting probably does not amount to “a case of extreme jurisprudential and meritorious weight.” Don’t oversell. You will lose credibility.
  • Use the correct number of assignments of error. A petition for appeal with forty-five assignments of error is either a petition for appeal from a death penalty sentence or it is a poorly written brief. Most cases on appeal have only a handful of truly relevant and contested issues of law. You can obscure the main thrust of your argument by addressing far too many issues.
  • Craft your assignments of error with care. You define the scope of your client’s appeal. When you submit an assignment of error or question presented, you are effectively setting the bounds of your argument. But be sure not to paint yourself in a corner. Every word matters in an assignment of error. Ask yourself, “What is the real legal issue at the heart of my case?” Boil it down to a single statement and write it down. If you knew nothing about this case and another attorney read this statement, would that attorney still understand the argument of law?

I’m enjoying Tommy’s guest posts, and I hope that you are as well. Clerks have the ear of justices, and they are a primary audience for our briefs. It helps to know what they find persuasive and annoying.

Also, I like the goofy pictures he comes up with.