The Supreme Court has posted its November argument docket. The court will hear argument in 27 cases over five days. The 27 cases include

  • 16 criminal cases;
  • 11 civil cases;
  • 2 cases in which Roanoke lawyers (not us) represent the appellee; and
  • 1 case, Shapiro v. Younkin, argued pro se on both sides. Zoinks.

I’d originally had a civil case scheduled to be argued in November, but it was bumped. Any thoughts on the cases to watch now that I have a free week?

Over the years, I’ve come up with a few heuristics to quickly gauge the strength of an opponent’s case. An obvious one is body language. A little further down the list is ease or difficulty in getting opposing counsel on the phone or into court–generally, the harder it is to track opposing counsel down, the easier your case will be.

But my absolute favorite is the level of civility in opposing counsel’s briefing (and, to a lesser extent, argument). The Colonel and I did a piece on civility earlier this year, in which we interviewed a number of judges and justices. The Robes uniformly told us that uncivil or personal argument does not work, and some of them even take it as a sign of weakness in the underlying argument. In other words, needless bluster either dilutes your argument (which is bad) or affirmatively signals its weakness to the court (which is worse).

My unscientific study over the twelve months or so since those interviews bears this out.Civility of tone and strength of legal argument are strongly correlated. In hindsight, that shouldn’t be surprising. As Judge Weckstein told us, he assumes that if a lawyer has the goods, he’ll go with the goods instead of resorting to invective. I am fast adopting his worldview. It’s gotten to the point now where I am pleasantly surprised when I open a brief to find an adverb-laden account of why my arguments are a desperate, disingenuous 11th-hour attempt to divert the Court’s attention from the fatal defect in my client’s case. That means that I’m winning.

Effective lawyers gain credibility with the court by providing useful information in a manner that is helpful and respectful of the court’s time. That means carefully organized briefs without

  • personal attacks,
  • needless (ad)verbiage,
  • string cites for uncontroversial propositions, and
  • overly clever word choices and rhetorical flourishes.

It’s the tight, well-structured brief that gives me pause these days. And when I can tell that my opponent was writing with a smile on his or her face, I really start to get worried.

Sorry for the lack of substantive posts recently. I have a four-day jury trial this week.

I will return to the blogosphere as soon as possible.

We blogged a few weeks ago about the VSB’s free appellate CLE on October 19th in Richmond. Monica tells me that the CLE has reached capacity, and is now turning away registrants. For those lucky enough to get in, the program promises to be a treat. It will open with an hour-long discussion of effective oral advocacy in Virginia’s appellate courts. Next, Senior Justice Lacy will present the judicial perspective on oral argument, and the CLE will close with a mock oral argument.

If you didn’t sign up in time, you’re in good company. I won’t be able to make it, either, being once again tied up at my day job. I’ll do my best to provide a useful second-hand write up, although I will be in trial most of next week.

Careful readers will notice that the right side of the blog looks slightly different. That’s because the geniuses at lexBlog have built in some cool new social media tools.

If you scroll down slightly, you will see Facebook and LinkedIn badges on the right side of the website. You can click on them to access my profile and friend me or add me to your network. Also handy for some light internet stalking, but I don’t think that you’re going to find anything too juicy on me.

The real gem is a the Twitter module just below the badges, which shows my most recent Twitter posts. You’ve gotta check this thing out. If you’re not on Twitter, you are missing out. It’s a tremendous information-sharing tool.

I was skeptical at first, too. As much as 140 characters about what THE_REAL_SHAQ ate for lunch might interest some people, it didn’t seem like my cup of tea. But I sucked it up and gave it a shot, and it turns out Twitter is a tremendous way to gather and disseminate information. Look at the posts in my module. As I’m writing this, they include:

  • a link to Dahlia Lithwick’s hilarious write-up of the oral argument in U.S. v. Stevens;
  • a note about Hollins soccer’s game tonight (longtime readers know that my wife, Carrie, coaches the team);
  • a link to a video of the Federalist Society’s OT SCOTUS preview;
  • a link to ATL’s interview with Justice O’Connor; and
  • a link to SCOTUSblog’s preview of Salazar v. Buono.

If you’re reading this blog in the first place, at least four of those are worth your time. None would merit a whole blog post.

Twitter lets me get that information out efficiently to the people who are following me. They’re basically a self-selected group who share my interests. If they like the stuff I’ve posted, they can retweet it to their followers, and disseminate the information further. If they don’t, they can ignore it. And if you’re on Twitter, you get the benefit of dozens of people with similar interests culling and transmitting relevant information. What a simple but amazing tool.

I strongly encourage you to sign up for Twitter if you’re not using it already. If you’re on the fence, use this blog as a trial run. Check out what pops up on the Twitter module and see if it interests you.

 

Justice Keenan, who has been nominated for a seat on the 4th Circuit, will appear before the Senate Judiciary Committee on Wednesday at 4:00 p.m. Our friends at The VLW Blog report that the entire nomination hearing will be webcast.

Yesterday, Virginia Lawyer’s Weekly reported that eight candidates have alerted the Virginia State Bar that they would like to be considered for the vacancy that Justice Keenan’s appointment to the 4th Circuit would create. They candidates interested in the potential opening are:

  • Virginia Court of Appeals Judge Robert J. Humphreys;
  • State Sen. John S. Edwards of Roanoke;
  • Petersburg Circuit Judge Pamela S. Baskervill;
  • Loudoun County Circuit Judge Thomas D. Horne;
  • Alexandria Circuit Judge Lisa B. Kemler;
  • Fairfax Circuit Judge Jane M. Roush;
  • Stuart A. Raphael, a partner in the McLean and Washington offices of Hunton & Williams; and
  • Elwood E. Sanders Jr., an attorney with Lantagne Legal Printing in Richmond.

The VSB’s judicial nominating committee recently vetted Senator Edwards and Judges Humphreys and Horne, so it will not reinterview them. It will meet with the remaining candidates on October 12.

Of course, the candidates may be in for a long wait. As an editorial in this morning’s Baltimore Sun notes, President Obama nominated Judge Andre Davis for another opening on the 4th Circuit. The Senate Judiciary Committee approved Judge Davis 16-3 in June, but he is still awaiting a vote on his nomination.

On October 19th from 3:00-5:30 p.m., the VSB’s Appellate Practice Committee will present a free appellate CLE at LeClair Ryan’s Riverfront Plaza office in Richmond. The Committee’s last CLE, or “symposium,” was by all accounts a big hit. Justice (let’s hope soon to be Judge) Keenan participated, and shared some sound observations and advice.

I expect the October 19 CLE to be every bit as good. My colleague, Monica Monday, is again running things. Monica is a wonderfully talented oral advocate, and she also puts on a good show. [DISCLAIMER: NOT ATTORNEY ADVERTISING. PAST RESULTS ARE NO INDICATION FUTURE PERFORMANCE.]

The CLE will include a mock writ argument, which should be instructive for all. And its timing is no accident. Not only is the VSB’s mandatory CLE deadline creeping up on us, but the Supreme Court will be hearing writ arguments the following day. If you’re scheduled to argue on the 20th anyway, the CLE will not only provide some timely tips–it will give you a good excuse to get to town early and meet some fellow members of the bar.

Finally, although the CLE is free, we do ask that you shoot Monica an email at monica_monday@gentrylocke.com if you are planning to attend. That way, she can keep a head count and make sure that the Committee accommodates all comers.

As every trial lawyer knows, judges are human. They will, from time to time, make mistakes. Often those mistakes will manifest themselves as mistaken evidentiary rulings. The judge may exclude a piece of evidence that should have come in, or allow the jury to hear something that it shouldn’t.

Given the volume of evidentiary issues in the course of a normal trial–and the correspondingly vast potential for error–it’s important for both trial and appellate counsel to be comfortable with the process of appealing evidentiary rulings. Thankfully, we don’t need to reinvent the wheel; James Harris has written a fine article on the subject called “Appealing Evidence.”

Here are some of his observations:

 

1. Preserve the record.

Every appeal starts in the trial court. It is trial counsel’s obligation to make a record that will allow her client to succeed on appeal. This means giving the trial court a fair opportunity to rule intelligently on the evidentiary issue. If you are opposing a piece of evidence, object contemporaneously to its admission; if it is admitted, move to strike it from the record. And mention the specific basis of your objection. You don’t have to give a dissertation on the origins of the hearsay rule, but a simple “Objection, hearsay” may prove quite helpful down the road.

On the flip side, if you are the proponent of a piece of evidence that is wrongfully excluded, object to the exclusion and make a proffer.

And in each case, get a ruling. You must give the appellate court something to work with, or your appeal may well be over before it begins. 

Continue Reading Appealing Evidentiary Rulings

The Supreme Court of Virginia’s recent treatment of assignments of error has been inconsistent, and that makes life difficult for appellants and appellees alike.

Background: Supreme Court’s Crackdown on Assignments of Error Alarms Appellate Practitioners

For the past year or so, the Supreme Court of Virginia has been getting increasingly demanding in its treatement to assignments of error. Steve Emmert contributed an excellent essay on this topic last summer. He pointed out a few specific instances in which the Court had found assignments of error lacking:

  • At oral argument on June 4, 2008, the Chief Justice interrupted an AAG and asked her how her assignment of error was sufficient. The assignment read, essentially, “The trial court erred in excluding the expert testimony of [the Commonwealth’s expert].”
  • On June 10, 2008, the Court entered an order dismissing an appeal for an insufficient assignment of error in a legal malpractice case. The assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.”

This was troubling. Virginia case law has long required an appellant “lay his finger” on an error by pointing out the exact legal ruling he was challenging. That was the standard, and these lawyers seemed to have their fingers in the right place.

Worse, the second assignment of error was almost identical to one granted in 2006, which read: “The trial court erred in granting the defendant’s motion for summary judgment.”

Emmert notes that the news alarmed–even stunned–experienced appellate practitioners, himself included. He determined that the best advice for appellants, which he attributed to an unnamed justice, was to include the word “because” in your assignments of error.

Emmert’s observations match our experience here at the Firm on the Move (TM). For example, we represented the appellees in a recent case where one of the assignments of error cited an evidentiary issue, then stated that the trial court had erred by overruling the appellants’ motion on that “and other grounds.” The Supreme Court reached the merits of the evidentiary issue, but ruled as to the other grounds that it would not address such a general and unspecific assertion of error.”

Continue Reading What’s an Appellant (or Appellee) to Do? Supreme Confusion Over Assignments of Error