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.

The Supreme Court of Virginia is in session this week. Here’s the argument document, which includes four criminal and thirty-four civil appeals. Good luck to everyone who is arguing.

Also, the Court will be handing down opinions on Thursday, instead of Friday. (Mental note: check Emmert’s website on Thursday.) Friday will be devoted to hearing writ arguments rescheduled from the most recent snowpocalypse. Those writ arguments had originally been pushed back to March 31, so this is a positive development.

Welcome to De Novo’s inaugural guest post. Today, Tommy Strelka shares a few things that he learned during a recent clerkship with the Supreme Court of Virginia. This will be the first of several visits from Mr. Strelka, who has promised to provide us no fewer than ten–TEN!–tips.

Tommy is currently a trial lawyer at Strickland, Diviney & Strelka in Roanoke. A Mary Washington and Richmond Law grad, he’s also clerked for Judge Turk in the Western District of Virginia. The opinions and practice tips expressed in this post are solely those of the author. They do not represent the opinions of any member of the Supreme Court of Virginia or any other Court–or, for that matter, any right-thinking person.

And now, a word from Thomas:

Clerking for a Justice of the Supreme Court of Virginia was a wonderful experience that opened my eyes to appellate practice. One of my favorite aspects of the job was the knowledge that many of the attorneys who filed briefs and argued before the Court were bringing their A-game. While skill, raw talent, and experience levels varied greatly, most attorneys stepped up to the plate and gave it their best shot. That best shot might have been an incredibly polished and persuasive brief or it might have been the world’s greatest thirty-second rebuttal. But no matter what form their work product manifested, the good attorneys always oozed preparedness. With that tenet in mind, I have compiled a list of traits or practices used by the attorneys who I felt, knocked it out of the park.

On Brief

  • Acknowledge Weaknesses. In their quest for appellate justice, some attorneys spend a great deal of time waving their banners and thumping their chests. They will proudly file a brief that is far too one-sided. Even the best arguments have holes. If an attorney consistently pronounces the strengths of his or her argument while glossing over the weak points, her brief can come across as disingenuous and uninformed. That brief does not reflect the case, only a few facets of it. Leave the one-sided claims to the folks in advertising. Better briefs illuminate the entire case by spotlighting the argument’s weak points while simultaneously explaining how these points are not nearly as detrimental as the current case law would have the Court believe. The best briefs do this while acknowledging and attacking the arguments of the opposing party. 

Continue Reading Tips from Tommy, Part I

As you’ve probably gathered by now, my job isn’t exactly rocket science. I read some pleadings, read some transcripts, read some statutes, read some cases, and then shout an argument into a dictaphone to be transcribed in 14-point type. In between, I drink lots of coffee.

My colleagues who do “real work” here at the Firm on the Move (TM) sometimes give me a hard time about this. But there are legitimate differences between trial and appellate practice, and the two disciplines require different approaches.

A trial judge is trying to get to the right result in one specific case. He will get there by making fact findings and excluding all of your good evidence discretionary rulings. Over the lifespan of a case, trial lawyers will have numerous opportunities to present their theory of the case to the court. Further, trial courts are bound by precedent; for them, the law is pretty much set. Accordingly, legal argument in a trial court will proceed by analogy, applying and distinguishing existing cases, usually on the facts. Trial judges want to hear about the facts and fairness. They want to know what the law is, not what it should be. And they don’t set policy

Appellate courts set policy:

 

The Wise Latina has a point. Appellate courts don’t just decide cases one at time; because their decisions are binding on courts and panels of coordinate or lower jurisdiction, they have to formulate rules of law that will work fairly going forward. And at least in theory, they have little room to work with the facts. By the time your case goes up on appeal, the facts are settled. Depending on the result below, the standard of review will essentially dictate that one side or the other will win the fact arguments. A key appellate practice skill is accepting those facts, and working with or around them.

Finally, and perhaps most importantly, a lawyer has a very limited opportunity to convince an appellate judge of her theory of the case. Appellate briefs are subject to strict word and page limits, and oral argument time is strictly limited. Every word counts.

So what does that mean for a practitioner?

  • Know your audience, and tailor your presentation accordingly;
  • Argue facts and fairness in trial court;
  • Argue law and policy in appellate courts;
  • Remember that you have very little time to make your point to an appellate court, so every word counts.

Enough of that. Time for a coffee break.

Steve Emmert reports that today’s writ arguments before the Supreme Court of Virginia have been postponed. The Chief Staff Attorney’s office advises that appellants are being given the choice of arguing by telephone tomorrow, waiving oral argument, or arguing in person at a later date. (As a fairly obvious practice point, it’s never a good idea to waive a writ argument and I have trouble imagining a situation in which doing one by phone makes sense.)

The next writ panel is scheduled for March 31.

Civil procedure nerds and defense counsel, rejoice! (I am looking at you, Travis.) In Barbour v. International Union, a fun–if dense–opinion handed down on Thursday, the Fourth Circuit adopts the “last-served defendant” rule for removal. Or in geekspeak, it takes a district court up on its invitation “to clarify whether the ‘first-filed’ ‘dictum’ in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992), means what it actually seems to say.”

Short answer: it doesn’t. But before we get there, the Fourth Circuit walks us through some removal case law, considers the extent to which earlier panel decisions are binding, and honors the nerdly virtues of close reading and careful research.

A quick refresher, for those of us who slept through civ pro: under 28 U.S.C. 1446, a defendant has 30 days in which to file a notice of removal. But what if  there are multiple defendants, and they are served more than 30 days apart? That’s what happened to the defendant unions in Barbour. All three defendants filed a joint notice of removal. They filed it more than 30 days after the first defendant was served, but less than thirty days after the second defendant was served, and before the third defendant was even brought into the case. Was the notice of removal timely?

Turns out there’s a Circuit split on that point. The Fifth Circuit applies a “first-served defendant” rule: in cases involving more than one defendant, the thirty days starts running when the first defendant is served. The Fifth Circuit reasons that, since all served defendants must join in the removal petition, the failure of the first defendant to remove within 30 days defeats removal altogether.

The Sixth, Eighth, and Eleventh Circuits, by contrast, apply a “last-served defendant” rule. Those jurisdictions give each defendant 30 days in which to file a notice of removal.

By all appearances, the Fourth Circuit had found a middle ground. Footnote 3 in the McKinney opinion states that, if the first-served defendant does not petition for removal within 30 days of service, the case may not be removed. But if the first-served defendant does petition for removal within 30 days, a later-served defendant may join in the petition or move for remand.

Continue Reading Fourth Circuit Adopts Last-Served Defendant Rule; Plaintiffs Despair

Last Friday, the Supreme Court of Virginia handed down a batch of eighteen opinions and two published orders. One of them, Shapiro v. Younkin, provides a lucid, well-reasoned treatment of the rules regarding transcripts and written statements of fact.

Please ignore it in its entirety. To paraphrase one of Caroline’s favorite writers, there is a monster at the end of this opinion.

Background

At issue in Shapiro was whether the circuit court erred by dismissing a plaintiff’s appeal from the general district court because the plaintiff had failed to secure a court reporter, in violation of the circuit court’s rule requiring that a court reporter be present at the trial of all civil cases.

Shapiro brought a landlord-tenant suit against Younkin in general district court, proceeding pro se. He lost and appealed to the circuit court, where he also appeared pro se. The court’s local rules required that a court reporter be present at all civil trials, and that a party appealing a GDC case arrange to have a court reporter present at the circuit court trial.

Shapiro failed to arrange for a court reporter, so the circuit court dismissed his appeal with prejudice. Later that day, Shapiro submitted a written statement of facts. The trial court declined to enter the statement. Instead, it wrote on the face of the document that the statement did not accurately reflect the events at trial, which were noted in the court’s order.

[Are you still reading? Because there is a monster at the end of this opinion.]

Shapiro–still proceeding pro se–appealed to the Supreme Court. He argued that the dismissal of his case violated Code Section 17.1-128, which provides that the failure to secure a court reporter will not affect the proceeding or trial. He also claimed that the court violated Rule 5:11 by failing to certify his written statement of facts.

Holding

The Supreme Court agreed. It reversed the trial court’s judgment and remanded the case, holding that the trial judge had violated both Code Section 17.1-128 and Rule 5:11.

Continue Reading Please Ignore Shapiro v. Younkin. There Is a Monster at the End of This Opinion.

On Friday, the Supreme Court of Virginia handed down 18 published opinions and two orders. As always, Steve Emmert has a witty write-up (along with a new photo on his web page–looking good, Steve). The VLW Blog also discusses some of the highlights. The bulk of January cases are either criminal appeals or habeas proceedings; I haven’t done the math myself, but Emmert breaks it down to 15 criminal appeals/habeas proceedings and 5 civil matters.

As you might have noticed, I wasn’t exactly on top of this breaking news–or much of anything else that happened over the past week, for that matter. Here’s my excuse:

From January 8-14, I attended the the National Trial Advocacy College at the University of Virginia. It’s off-topic, so I won’t bore you with the details, but it was probably the best educational experience of my life. The faculty was spectacular, the exercises were demanding, and the feedback was brutally honest. Further, I got to spend a week with dozens of talented and motivated lawyers working to get better at their job. That was fun. It was also a neat reminder of how lucky we are to do what we do.

But it gets better. I capped that off with an oral argument before the Supreme Court on Friday. For obvious reasons, I can’t discuss the case. But I really treasure the opportunities I get to argue before the Court. Oral argument is the reward for all of the hard work you put into briefing and preparing (although somehow, thinking of it that way doesn’t make me any less nervous). Different people go to law school for different reasons. If you ask me, the coolest thing you can do with a JD is to have a conversation with the Commonwealth’s highest court about what the law is (or should be), and help them get to a fair result that will justly govern future cases. It was a brilliant end to a perfect week.

Continue Reading Supreme Court of Virginia Releases January Opinions

Here’s the merits argument lineup for next week in the Supreme Court of Virginia. Civil cases follow after the jump.

We’ll be in Richmond on Friday. Give me a shout if you will be in town and would like to grab lunch.

Criminal Cases

Record Number

Style of Case

Appellants’ Counsel

Appellees’ Counsel

Appealed From

090526

Segretto v. Commonwealth

Kevin L. Leahy; Weimer & Boyce

William C. Mims, Attorney General; Leah A. Darron, Senior Assistant Attorney General

Court of Appeals of Virginia

090813

Neria, etc. v. Commonwealth

Patrick M. Blanch; Elders & Zinicola

William C. Mims, Attorney General; Jennifer C. Williamson, Assistant Attorney General

Court of Appeals of Virginia

090979

Jones v. Commonwealth

Cassandra M. Hausrath, Assistant Public Defender

William C. Mims, Attorney General; Leah A. Darron, Senior Assistant Attorney General

Court of Appeals of Virginia

091015

Fullwood v. Commonwealth

Charles E. Haden

William C. Mims, Attorney General; Jennifer C. Williamson, Assistant Attorney General

Court of Appeals of Virginia

091031

Friend v. Commonwealth

Joseph A. Sadighian, Senior Assistant Appellate Defender

William C. Mims, Attorney General; Benjamin H. Katz, Assistant Attorney General

Court of Appeals of Virginia

091120

Ghameshouly, etc. v. Commonwealth

Justin W. Esworthy, Assistant Public Defender

William C. Mims, Attorney General; Eugene Murphy, Senior Assistant Attorney General; Mark D. Stiles, City Attorney; Christopher S. Boynton, Deputy City Attorney; Natalie P. Mann, Assistant City Attorney

Court of Appeals of Virginia

091299

Roberson v. Commonwealth

John D. Hooker, Jr.; Steven P. Letourneau; Hooker & Associates

William C. Mims, Attorney General; Virginia B. Theisen, Senior Assistant Attorney General; Mark D. Stiles, City Attorney; Christopher S. Boynton, Deputy City Attorney; Natalie P. Mann, Assistant City Attorney

Court of Appeals of Virginia

091177

Harris v. Commonwealth

Joseph T. Brown; Rebecca K. Glenberg

William C. Mims, Attorney General; Susan M. Harris, Assistant Attorney General

Court of Appeals of Virginia

Continue Reading Supreme Court of Virginia January Argument Docket

And we’re back after a short holiday break. I hope that you all were able to take a little time out of your schedules to enjoy the season.

For Christmas this year, Carrie got me The Curmudgeon’s Guide to Practicing Law by Mark Herrmann. It’s just perfect. If you haven’t read the book, I highly recommend it. Herrmann, of course, was until just recently one of the authors of the Drug and Device Law Blog and a partner at Jones Day. All of that pales in comparison to the sheer brilliance of The Curmudgeon’s Guide.

One of the book’s highlights is its chapter on preparing for oral argument. In just 10 pages, it offers as good a treatment of the topic as I’ve ever read. Many of Herrmann’s thoughts apply just as well to motions argument in trial court as they to oral argument in an appellate court.

So how does Curmudgeon prepare for an argument?

He drafts four outlines:

  1. A 1-2 page chronology of key facts. Curmudgeon does a chronology of key events in the case, with dates. He can use this as a study guide, and also to fact-check the other side’s argument from counsel table.
  2. An outline of key cases, with summaries of each. These are just the key cases–the ones the court might actually want to talk about–not all of the cases. There will rarely be more than 5-10 key authorities in a case, and they should be apparent from the briefs. Curmudgeon tries to limit his description of each to 6-8 words.
  3. A list of hard questions. Curmudgeon works up a list of the hardest questions about his case, irrespective of whether he can answer them. Then he works on the answers. It can be a big time investment, but it pays off when one of the questions comes up in argument, and he can answer–citing the JA chapter and verse, and even throwing in the odd quotation.

“They all think I’m Einstein, when all I am is Curmudgeon.”

  1. A 1-page outline of his argument. With very few words.

Armed with these outlines, Curmudgeon rehearses his argument, several times, from his 1-page summary. He typically reserves “moot courts” for his more complicated arguments. When it’s time to deliver his argument, Curmudgeon brings only his 1-page outline with him to the lectern.

Continue Reading The Curmudgeon Argues