De Novo: A Virginia Appellate Law Blog

De Novo: A Virginia Appellate Law Blog

Jay O’Keeffe practices with Johnson, Rosen & O’Keeffe LLC. in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more

What’s the Right Number of Assignments of Error?

Posted in Appellate Practice


Here’s one of the philosophical disagreements that make my life interesting: Is it better to include more assignments of error in a petition for appeal, or fewer?

Obviously, there’s no one-size-fits-all answer. I bet that there are some cases out there that warrant nine assignments of error. And there are surely some that merit zero.

That said, over the broad run of cases, I suspect that most appellate practitioners (and all appellate judges, ever) will go with “fewer.” But a surprising number of trial lawyers–and a huge number of clients–seem inclined to take the “more is more” route. I tend to disagree, for a few reasons:

  1. You get limited space to develop an argument on appeal. A petition for appeal in the Supreme Court of Virginia is limited to 35 pages; a merits brief is capped at 50 pages. And those aren’t real pages–they’re 14-point double-spaced Arial/Verdana/Courier pages. It’s tough to lay out the necessary background and develop more than 3-5 arguments in that space.
  2. Appellate judges have limited time and energy to devote to any particular brief. They already do way too much reading . They’re on record, over and over again, screaming from the mountain tops that they appreciate tight and efficient briefs. It’s probably worth taking them at face value on this one.
  3. Generally, anything in a brief that doesn’t help, hurts. It dilutes the force of your best arguments and strains the reader’s focus. It also increases the likelihood that you’ll say something stupid. This is a lesson that I have learned (and forgotten and relearned) many times over the course of my career.
  4. It’s difficult, but not impossible, to convince one judge that another judge made 2 or 3 outcome-determinative mistakes during the course of a trial. It’s a bit harder to convince one judge that another judge made 17 real mistakes during the course of a summary judgment hearing.
  5. If you can’t win with your best points, then you will probably lose with your weaker stuff. As the crusty old bastard said, one has to try to strike the jugular and let the rest go.

But you don’t have to take my word for it; longtime readers know better than to do something like that. Instead, you can remember this handy table that Judge Aldisert created:

No. of Issues Judge’s Reaction
3 Presumably arguable points. The lawyer is primo.
4 Probably arguable points. The lawyer is primo minus
5 Perhaps arguable points. The lawyer is no longer primo.
6 Probably no arguable points. The lawyer has not made a favorable initial impression
7 Presumptively, no arguable points. The lawyer is at an extreme

disadvantage, with an uphill battle all the way.

8 Strong presumption that no point is worthwhile


Slightly off topic, but . . .

Posted in Uncategorized
Not the same greenway that we're talking about, but you get the idea.

Not the same greenway that we’re talking about, but you get the idea.

The scariest moment in my life happened a few years ago. I’d taken Caroline and Jack down to the greenway, Roanoke’s riverside mixed-use path. It was a bright, cold day. Caroline was rambling along on her ridiculous Dora the Explorer bike, which was already two sizes too small. Jack had outgrown his balance bike but wasn’t yet comfortable enough to ride his bmx in traffic, so he was driving some scooter thing. I was bringing up the rear. The kids were, for the most part, under control and sticking to the right side of the path.

We were headed along a straightaway when Jack started to veer onto the left side of the path–and directly into the path of a large man on a road bike. You can probably see him already in your mind: spandex head to toe, like he was ready for the Tour. Maybe he felt like he was in the Tour, because it looked like he was pushing 20-25 mph. And he wasn’t slowing down. That didn’t really matter, because given the speeds and distances involved, he wasn’t going to be able to slow down. I caught Jack and dragged him out of the guy’s path just in time. If they’d collided, I swear the rider would have cut Jack in half.

Now, I say this as an avid cyclist and runner who uses the greenway on a regular basis: That rider was a clown. I know that Jack should have been on the right side of the path. So what? He was three or four years old and maybe 35 pounds. The cyclist had a duty to pay attention and keep his bike under control.

It still burns me up just thinking about it.

So fast forward to last week, when the Roanoke Times ran this article about a cyclist who won a $300,000 verdict after colliding with a runner. You can imagine that I was primed to have a negative reaction. But I read the article and didn’t see much of anything to get upset about.

Then I checked out the comments.

You should check out the comments. They’re nuts. Here’s a personal favorite:


Here’s another:

This makes me sad. Sad for this poor man. Sad that savvy bloodthirsty attorneys have the know how to pick out and seat the dumbest, most incopetant, and gullible juries; and guarantee an unjust verdict. I’m disgusted.

To be sure, these are some of the more strident comments. They’re not fairly representative of all of the comments in tone, but they do highlight some themes that run through a lot of the responses–and some of the comments I’ve heard on the street over the past week or so.

I’m afraid that the people raising these complaints are missing a few key points. In no particular order:

First, they don’t know anything about the case. That’s not their fault. One of the most notable features of the article is that it doesn’t summarize the evidence the jury heard. The reporter cites pleadings, motions, and out-of-court statements by the lawyers. But that wasn’t the case the jury heard. As a result, there’s nothing in the article that can fairly be read to suggest that the jury made a mistake, let alone that the jurors was incompetent or gullible. For example, the commentariat seems skeptical that the runner turned without looking. One commenter even thinks that the plaintiff should be held in contempt for lying on this point. But let’s give the jury a little credit. For all we know, the runner admitted that he turned without looking. People do have a refreshing tendency to tell the truth under oath.

It’s clear that plenty of people are upset about this result. But they’re upset about a mental picture that they’ve created about the case, without hearing the evidence. The case they’re complaining about may have little in common with the one that the jury actually heard.

Second, the lawyers involved in this case aren’t bottom feeders or monsters. I know  both of them. In fact, when I had to arrange a CLE  for the local Inn of Court a few years ago, I lined the two of them up to deliver a mock motions argument. I did that because they’re experienced and respected advocates. In particular, I’m confident that nobody in this case tricked the jury, packed it with fools, or snuck anything by defense counsel. The defendant’s lawyer is an AV-rated former president of the Virginia State Bar and a permanent member of the Fourth Circuit Judicial Conference. He is not, as they say, a potted plant.

Third,  there was a judge in the courtroom. He does this stuff for a living. Turns out that I know him, too. (Lots of name dropping in this post.) He is an excellent judge and, like defense counsel, he is not shrubbery. The article specifically notes that the judge found sufficient evidence of negligence to submit the case to the jury. This implies that the defense tested that evidence with a motion to strike. If so, the plaintiff’s case made it by both the defense and the judge on its way to the jury–which suggests that there was something to it.

Fourth, let’s be clear about what the jury found, and let’s try to put it in plain English. This appears to have been a straightforward negligence case with a contributory-negligence defense. As far as we can tell from the story, after hearing the evidence, the jury concluded that:

  1. The runner probably acted in an unreasonably dangerous manner (apparently by failing to keep a proper lookout);
  2. The runner’s (probably unreasonable) actions probably caused injury to the cyclist; and
  3. $300,000 was a reasonable estimate of the injuries that the cyclist suffered.

Also, the runner did not convince the jury that it was more likely than not that the plaintiff behaved unreasonably, and that her unreasonable behavior caused her damages. That’s it. The jury did not find that the runner was a bad person. It did not impose a per se rule that will make the greenway wildly dangerous for pedestrians or cause insurance premiums to skyrocket. It just listened to the evidence in this case, heard some instructions from the judge, and reached a few factual conclusions.

Nothing about those conclusions strikes me as offensive or wildly improbable.

The comments include sentiments like “I find it odd that a jury would be able to be convinced beyond a shadow of a doubt that the cyclist in no way contributed to her injuries.” That very well might be odd, but there’s no indication that it happened here. This wasn’t a criminal case. Nobody tried to prove anything beyond a reasonable doubt. The cyclist had to prove that the runner owed her a duty to exercise reasonable care, that he breached that duty, and that his breach of the duty caused her injury. She didn’t have to disprove the defendant’s assertions; the defendant had the burden of proving them. And when we talk about “proof” in a civil case like this, we’re just talking about proving that something is probably true–think “more likely than not,” rather than “beyond the shadow of a doubt.” When you think about what the jury actually did, it’s hard to get all that worked up.

Fifth, many of the comments suggest that somebody (or everybody) is acting in bad faith. The plaintiff’s lawyers put her up to it. Or she’s just out for the money. Or she’s lying. I don’t accept that, at all. In a PI case like this, both the plaintiff and the defendant are trying to work through one of the worst days of their respective lives.  They both hire lawyers to help them through the process, and they bring their claims to a judge and jury. These are all ordinary folks just trying to do the best they can in a difficult situation. Nobody is there for fun. The $300,000 the plaintiff won is not a jackpot; it’s compensation for damages that she actually suffered and proved to the jury–things like medical bills, lost wages, and pain and suffering. (Again, we don’t know the specifics because we don’t know the facts of the case.) It’s just intended to get her back to zero after the losses she suffered.

tl;dr This a lousy situation. But it’s not a lousy situation because someone won money, or because lawyers are vampires, or because your insurance rates will go up (they won’t), or because you can’t use the greenway anymore (you can). It’s a lousy situation because two people had a really bad day and someone got hurt. They hired lawyers, who worked the case up and brought it to a judge and jury. The members of the jury took two days out of their lives–away from their families, jobs, and friends–to listen to the evidence and deliver a verdict. There’s no indication that they did anything other than they best they could, given the situation. And like everyone else involved in the case, they deserve better than the treatment they’re getting.

The Art of Appellate Advocacy

Posted in Appellate Practice

You may have heard that William and Mary Law School did this thing where they sent a professor into a room with six justices from the Supreme Court of Virginia, asked them questions, taped the conversation, and put the video on the web. I fail to see why this is a big deal. I routinely enter a room with not six but seven justices. And I don’t get to ask the questions–I have to answer them, which is a heckuva lot harder if you think about it. While no one has yet videotaped that process (which is a shame from a business-development perspective), the audio is posted online for all of the world to hear.

And so I ask again: What’s the big deal here?

I’m kidding, of course. The William and Mary video, called “The Art of Appellate Advocacy,” is wonderful. Professor Laura Heymann moderated a two-hour long conversation with then-Chief Justice Kinser and Justices Lemons, Goodwyn, Millette, Mims, and Powell; Justice McClanahan wasn’t available for the taping, and Justice Kelsey was not yet on the Court at the time. The video of the full conversation is available here, and you can also watch various snippets organized by justice or topic area.

The content is fascinating (said the dork who runs an appellate blog.) The various justices discuss their views of judging, the mechanics of reviewing briefs and drafting opinions, their life experiences, and their reactions to oral argument. You can watch the entire two-hour conversation, or you can watch excerpts relating to a particular justice or topic area.

Here are a few of my quick reactions to watching the video:

  • It is now my life’s goal to get a beer with S. Bernard Goodwyn.
  • For a while there, it seemed like Professor Heymann really wanted to talk about legislating from the bench. Maybe not the most explosive topic, given the modest view that the SCV takes of its role vis-a-vis the legislature. In fact, I think Chief Justice Lemons characterized the Court’s approach as “minimalist.” No Herculean pretensions here.
  • Justice Millette identified some areas of law that need to be developed: Defamation in the employment context and multiple causation in asbestos cases. So, free pass at the writ stage if you can find one of those issues in your case?
  • Chief Justice Lemons mentioned that he’d like to think that the SCV is a very user friendly court. I’d say yes and no. Yes, in that the justices are very respectful of litigants and positions, both at oral argument and in their written opinions and orders.* This makes oral argument fun, which is a point that I should stop bringing up because it’s bad for business. But there’s a part of the process that it is not fun, and not user friendly, and that is the Court’s extremely strict approach to waiver doctrines and deadlines. Now, I get the arguments in favor of those positions (if you don’t, Justice Kelsey has a great article on them), but here’s my counter: The Fourth Circuit and its staff approach these issues in a much more flexible manner, and the sky hasn’t fallen at 1100 East Main Street. In my experience, the Fourth Circuit is a far more user friendly court than the SCV from the time a case is filed until the start of oral argument. After that, the SCV has a clear edge.
  • I like the video’s insight into the mechanics of drafting opinions. The basic process seems to be review briefs –> oral argument –> decision conference –> draft opinion –> circulate draft –> opinion conference after next writ argument –> revise opinion –> hand down decision at the end of the next court week.
  • Justices Millette, Mims, McClanahan and Kelsey all had the good sense to attend William and Mary (either undergrad or law school–or, in Justice Millette’s case, both). Tribe pride. Also, a tip of the cap to their fellow alum Jill Ellis ’88, who guides the USWNT into their quarterfinal matchup against China on Friday.

I’ll give you the link to the video again, because it really is worth watching.


* If you try hard enough, you may be able to imagine an alternate universe where justices occasionally behave in a less professional–and sometimes even appalling–way. Or you can just go here:

Legal Writing Tip: Focus Before Detail

Posted in Writing


Getting paid to write is, at least for me, the best part of being a lawyer. But while I may be, strictly speaking, a “professional writer,” I’m very much aware of my shortcomings in that field. And I’ve got plenty, as illustrated by the fact that–not to put too fine a point on it–nobody actually wants to read the stuff that I get paid to write. Judges and opposing counsel read my work because they have to; that certainly doesn’t mean that they like it. My clients read it because they’ve already paid for it. And my partners read my stuff primarily to make sure that our firm doesn’t get sued for defamation. Aside from that, there’s really not much of a reader base for my legal writing. If you don’t believe me, check the Amazon sale rankings.

So long story short, plenty of room for improvement here. That’s why I’m always on the lookout for ways to better the quality of my writing.

This brings us to last week’s Appellate Advocacy in Virginia seminar, which was presented by the Appalachian School of Law and Virginia Tech’s Science, Technology, and Law Program. The program offered tons of great content, including candid advice from Chief Justice Lemons, Justice McClanahan, Chief Judge Huff, Monica Monday, Frank Friedman, and Trish Harrington. (Maybe we’ll reward their candor by spilling their secrets in the weeks to come.) Jeffrey Breit gave us a sneak preview of the William & Mary School of Law’s video project, The Art of Appellate Advocacy, which will be unveiled next week at the state bar meeting. It looks fascinating.

Among the highlights of the strong program was Professor Timothy Terrell‘s discussion of legal writing. Professor Terrell is a co-author of Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing. (Amazon Best Sellers’ Rank: 168,037 in Books, 46 in Books > Law > Legal Education > Legal Writing. Clearly I can learn from this man.)

I haven’t read Professor Terrell’s book and was unfamiliar with his work going into the seminar. One of his major arguments seems to be that most technical writing (including legal writing) fails at the macro level because it dumps too much information onto the reader without offering any context or structure. His basic analogy is that if the information in a writer’s head is a liquid, too many legal writers just pour that information out directly onto their reader, without giving the reader a container in which to collect it. Thus, Professor Terrell stresses the need for “meta-information” in legal text–signposting, structural cues, and the like. The trick to good technical writing, in his view, is to make very complicated information seem straightforward and accessible. One of his mantras is “focus before detail”: Let the reader understand what it is that we’re discussing before going in for the deep dive.

Of course, you’ve heard advice like that before. And that last paragraph came at such a high level of abstraction that it provided exactly zero useful tips for actually improving your writing. What does Terrell’s advice look like in practice? How would we write a paragraph or two that gives a reader “focus before detail”?

Glad you asked, Imaginary Argumentative Reader.

Professor Terrell would direct you to do three things in your introduction, and really throughout your document:

  1. Make your reader smart.
  2. Make your reader attentive.
  3. Make your reader comfortable.

First, make your reader smart: Before digging in, forecast the information that you’re about to provide. This can be done in several ways:

  • Label: Tell the reader what the document is about, so she can put it in  context. For example, “This is a breach of contract case that turns on a single issue: Whether the trial court erred by admitting parol evidence of blah blah blah . . . .”
  • Map: Preview the document’s structure. For example, “Summary judgment is appropriate for three reasons. First, blah blah blah. . . .”
  • Point: Let the reader know what she should be looking for as she makes her way through the document.

Second, keep your reader’s attention. Professor Terrell offers two basic tricks here:

  • Bottom Line: Tell the reader how your document will help her in real life. Your powerful, syllogistic reasoning compels a certain result. Help the reader to understand why that result is important. Connect it to the reader’s circumstances. For example, “If the Court upholds this sanction, it will effectively eliminate blah blah blah . . . .”
  • Efficiency: Show the reader that you will not waste her time. Don’t be repetitive or verbose. Don’t present irrelevant information.

Third, make your reader comfortable.

  • Language: Using plain English and a classic prose style will show your reader that you are a normal person who occasionally interacts with other humans in their natural habitat. This is surprisingly important.
  • Ethos: Show why the result you seek is just and fair; this is far more compelling than bare legal argument. Also, show by your content, tone, and word choice that you are not an asshole. (Pro tip: If you are using adverbs to characterize your opponent’s actions, you are being an asshole. Trust me on this one.) These steps will suggest to your reader that you share some basic assumptions and worldviews, and help to put her at ease.

Overall, I found Professor Terrell’s presentation engaging, and I look forward to reading his book.

Screen Reading on the Rise at the Supreme Court of Virginia?

Posted in Appellate Practice

Woman Holding Traditional Book And E-book Reader

Look: I like toys. I work in a paperless law office. My enthusiasm for PDFs has rocketed to near-Svenson levels. I am a huge fan of tablets, and I probably do as much screen reading as any lawyer you’ll meet.

Even so, I’m a little concerned about a pair of orders that the Supreme Court of Virginia handed down on April 10.

One order establishes new Rule 5:13A, which will let the trial court prepare and transmit an electronic record, rather than a paper record, when a party notes an appeal. Perfectly reasonable.

The other order amends Rules 5:26 and 5:32 to save trees. Right now, the parties have to file one electronic copy and 15 paper copies of their briefs. The appellant also has to file either 15 paper copies or 10 electronic copies and 10 paper copies of the appendix. (Why ten PDFs instead of one? And can there be 10 PDFs instead of one, if there is only one appendix? Truly, these are questions for the philosophers.)  The parties need to serve their opponents with three paper copies of their briefs, and the appellant must serve the appellee with two paper copies (and possibly an electronic copy) of the appendix.

Effective July 1, the parties will file one electronic copy and 10 paper copies of their briefs, and they will serve only electronic copies. The appellant will file three paper copies and one electronic copy of the appendix, and it will serve only an electronic copy.

(Longtime readers will also note that that Supreme Court of Virginia has doubled down on its inexplicable fixation with 14-point Courier, Arial, and Verdana. H/t John O’Herron. Butterick weeps.)

Typgraphy aside, these changes signal a move toward reading briefs and appendices on the screen. That’s good for a lot of reasons; searchability, portability, and efficiency spring to mind. On balance, it is almost certainly the right move. But it’s not an exclusively positive development.

That’s because screen readers handle text differently than paper readers, as Robert Dubose explains. In general, paper readers study text, while screen readers skim it. Paper readers generally read from left to right, reading every word. Screen readers scan in an F-shaped pattern, scanning for visual cues like headings and bullet points, and they do not read every word. Paper readers generally enjoy better reading comprehension than screen readers. Screen readers generally face more distractions than paper readers. It’s generally easier to navigate a document in paper, although PDF does have the advantage of a word-search function.

As Greg May points out, facts like this mean that a shift toward reading briefs on the screen may not be a super-great development for the lawyers writing those briefs. As I writer, I’d prefer that my readers process every word; I’ve usually put them there for a reason, purple monkey dishwasher. As an advocate, I’m certainly in favor of reading comprehension. It helps to get my point across. And as a citizen, I’d prefer that the justices read briefs in a medium that encourages quiet contemplation, as opposed to one that seems designed to maximize distraction.

That said, there are certainly strategies you can employ to maximize the effectiveness of your writing for screen writers. And iPads are fun and portable and they blur the line between work and play. If electronic filing will trick a justice into spending time with my brief that he or she would otherwise devote to real life, who am I to complain?

How Not to Write an Appellate Brief, by George R. R. Martin

Posted in Uncategorized
Winter is coming. That sixth book? not so much.

Winter is coming. That sixth book? Not so much.

Today’s post considers the writing process of one of the most successful authors alive.

But first, a confession: Big nerd here. I could not be more excited for the new season of Game of Thrones that starts on Sunday. To get ready, I reviewed the Washington Post‘s interactive murderlog to catch up on relevant deaths. I binge-read Leigh Butler’s amazing Read of Ice and Fire for the first four books, in case the show forgot to kill anyone important. I watched Seth Meyers’ doomed dinner party with Jon Snow, just because it’s hilarious:

(Wait a minute . . . Robb Stark wasn’t stabbed at his own wedding. He was murdered at the Red Wedding, where Edmure Tully married Roslin Frey. You know nothing, Jon Snow!)

And in the course of my exhaustive preparation, I came across a blog post that makes a scientific wild-ass guess about Martin’s progress on The Winds of Winter, the long-awaited sixth book in his series. The post itself serves as prima facie evidence that, as big a tool as I am, I barely register on the SF geekdom spectrum.

More important for our purposes, though, the post includes a link to a summary of Martin’s writing process. Here’s the short version of that process:

  1. Martin does not have a hard outline for his seven-book series. He knows basically where the story is headed, and he lets it evolve organically. He ends each book when it gets too long, or when he reaches a natural breaking point.
  2. Martin writes lots and lots of draft chapters, then eventually finalizes them. He also writes partial chapters and fragments when ideas grab him.
  3. Martin does not write in a linear order. Instead, he occupies a particular character’s headspace and stay there for weeks, writing a series of point-of-view chapters for that character. This can result in timeline problems, and it can also cause him to write way too much material for a character just because he’s fun to inhabit (ahem, Tyrion).
  4. At the end of the writing process, Martin murders every character you love and throws in a scene where starving children fight over a half-cooked puppy. (Okay, I made this one up.)

This really struck me, because it’s just about the opposite of the way that you’d approach an appellate brief.

Now, I recognize that epic fantasy and appellate advocacy are about as distinct as any two genres can get. And I appreciate that Martin is a super-genius writing the great fantasy epic of our time, while I’m just a hack with a blog. Even so, his organic writing process is basically a recipe for missing deadlines and overshooting page limits. That’s generally okay, if you’re the American Tolkien putting together work that people will be reading fifty years from now.* It’s somewhat less okay if you’re bound by deadlines and strict word counts, and your readership has very limited time and patience. Martin’s writing process is an object lesson in what not to do as an appellate lawyer.

So how could we clean it up to make it work for us?

  1. Brainstorm, and hash out all of your ideas in the beginning of the process.
  2. Draft a hard outline. Explain your ideas in full sentences. Follow the outline.
  3. Write in a linear manner, from start to finish. That is how your reader will approach the document.
  4. Edit mercilessly. Aim to cut 50% of your first draft, and to file a brief that comes in at 50% of the page or word limit.
  5. Never kill off Oberyn Martell.

This may take some of the fun out of the process, but it also makes things a lot more efficient and predictable.

*Actually, no. Even then, it’s not okay. It leads to soggy filler like A Feast for Crows, a bloated travelogue wherein all of the characters we don’t care about wander about in the rain thinking sad thoughts.

Image of George R. R. Martin by David Shankbone (Own work) [CC BY 3.0 (], via Wikimedia Commons

Supreme Court Thoughts and Muses from the VTLA’s Annual Meeting

Posted in Appellate Practice, Oral Argument, Uncategorized
My mother in law has a hat just like this in black.

My mother-in-law has a hat just like this.

Just about everyone who’s argued before the Supreme Court of Virginia has tortured him- or her-self with the same mind game at one point or another. It usually starts with a chain of thought that goes something like this:

Wow, that was an intense argument. Justice X seemed really hostile. He was asking a ton of questions. I wonder if he’s been assigned the opinion? After all, he usually gets the corporate-law cases.  But Justice Y seemed most familiar with the record. None of the briefs mentioned the colloquy at JA 1227. She wouldn’t have known to ask about it unless she’d gone through the entire record with a fine-toothed comb. And she wouldn’t have done that unless she’d been assigned the case. And Justice Y was friendly! If she’s got the opinion, then maybe there’s hope after all . . . 

This internal monologue can kill time on the drive back from Richmond. And in the odd case it can even be fun. But it’s ultimately pointless for a number of reasons–several of which were illustrated by a terrific panel discussion that Jeffrey Breit moderated at this weekend’s VTLA annual meeting. The panel included Chief Justice Lemons, Justice Goodwyn, and Justice Mims, and its topic was “Supreme Court Thoughts and Muses.”

(Fun fact about each panelist that may or may not be true: !1) Mick Jagger once left a message for Chief Justice Lemons’ daughter on the home answering machine. (2) Like Tommy Lee Jones, Justice Goodwyn played football at Harvard but lacked the good sense to drop out and start a tech company. (3) Justice Mims’ middle name is “Cleveland.”).

So what did we learn from the panel?

Well, among many other things, the panelists gave us a behind-the-scenes look at the Court’s mechanics. The Chief Justice explained that he doesn’t really “assign” opinions. Instead, the justices fill a hat with slips of paper. Most are blank, but one is marked with an “x.” They pass the hat in order of seniority. The justice who draws the “x” is assigned the first opinion, and the rest of the opinions follow in order of seniority.

Until convinced otherwise, I will assume the justices perform this ritual by candlelight in full judicial regalia, including robes, and that the hat looks exactly like the Sorting Hat from Harry Potter.

Anyway, this ritual has two major implications: First, going into court week, each opinion has been assigned to a justice. And second, the popular conception that Justice So-and-So gets all of the opinions dealing with a certain topic is probably incorrect; if it’s true, then it’s totally by chance, and the Justice’s past assignments have little predictive value when it comes to forecasting her future assignments.

This leads back to our primary question: Is the most inquisitive justice at a given oral argument probably the one who has been assigned the opinion? As Justice Goodwyn explained, not necessarily. The Court’s internal processes add another layer of diabolical complication. After each day’s arguments, the Court holds a conference to discuss each case and vote on it. But here’s the catch: the person sitting to the right of the justice who has been assigned the opinion is the first to speak at the conference. Then the Court goes around the table, with each justice giving his or her thoughts. The justice assigned the case is the last to speak. By the time his turn comes around, he will know how everyone else on the Court voted.

So while Justice X may have been assigned your case, if Justice Y sits to his right in conference, then she may be your primary interlocutor at oral argument, human nature being what it is, because she has to speak first at conference.

Does this mean that you can game the system by looking at seating assignments on the bench? No, that would be too easy. Although the panel didn’t reach the point, it’s my understanding that the justices sitting next to each other on the bench are not the justices who will be sitting next to each other in conference. But that, I’m afraid, is a topic for another day.

New Paper: Appellate Experience is Correlated with Success on Appeal (at least for Appellees’ Counsel)

Posted in Uncategorized

I just finished reading a thought-provoking law review article summarizing a multiple regression analysis of a sample set of 200 Ninth Circuit opinions handed down between 2010 and 2013.

No, really, it’s true. The study is Sisk, Gregory C. and Heise, Michael, ‘Too Many Notes’? An Empirical Study of Advocacy in Federal Appeals (February 17, 2015). 12:3 Journal of Empirical Legal Studies (2015, Forthcoming). (H/T Kim Keller.)

Here are some of the authors’ findings:

  • For appellants, brief length was highly significant and in a positive direction–that is, longer briefs were positively correlated with a greater likelihood of success on appeal.
  • For appellees, lawyer experience was statistically significant, and in the expected direction: more experienced lawyers were more likely to win.
  • Oral argument was also highly significant as an independent variable. The authors caution that correlation does not mean causation: “The panel’s decision not to hear oral argument in an appeal does not so much ’cause’ a loss for the appellant as offer an early signal that such a loss is likely impending.” We’ve discussed the importance of oral argument before.
  • Procedural issues were correlated with higher reversal rates. This makes sense, the authors point out, as procedural issues often involve questions that can be reviewed de novo.

The study as a whole is pretty cool. It’s worth you time to check it out.

To an extent, the authors’ finding about brief length seems to cut against conventional wisdom; judges in particular are forever advocating for shorter briefs. But Sisk and Heise don’t actually argue that longer is categorically better. Instead, their suggestion is more nuanced:

[T]he right length of a brief should turn on the substance of the individual case and the nature of the winning argument. While brevity has its place and tighter writing remains an essential part of the set of skills for a persuasive writer, the greater priority for the civil appellate brief-writer is persuasive completeness.

It’s tough to argue with a concept like “persuasive completeness.” And to to put things in context, the study’s data set included a group of briefs that were not just concise or pithy, but stupidly short. Like, “Pass the crayons–I need to file something today avoid a bar complaint” short. Nobody should be surprised that the win rate for federal appellate briefs of 0-1,000 words is lower than the win rate for briefs of 10,001-11,000 words.

And don’t let the phrase “regression analysis” throw you off. The paper is anything but bland. Sisk and Heise pepper their analysis with some very enjoyable soundbites from respected lawyers and judges about the proper length of briefs. Suffice it to say that the views of the bench and bar are less than perfectly aligned on this point.

(Somehow, I got through all of that without making a single “size matters” joke. Strong.)

Equally helpful–at least from a marketing perspective–was Sisk and Heise’s conclusion about lawyer experience:

Does greater experience in federal appellate work by a lawyer make that lawyer’s client more likely to prevail on appeal? The short answer from our study of civil appeals appears to be “yes,” at least for one side of the adversarial divide (appellees). Based on this intriguing finding and prior work by other scholars, the evidence grows that attorney experience matters in general and attorney experience in appellate work matters in particular.

I couldn’t have said it better myself. (Actually, I could have–and in fewer words, too. But I’m still putting the blurb up on our website.)

So what do you think–are longer briefs better for appellants? Does it make sense to higher an experienced appellate lawyer, even if you are an appellant?

Hicks v. Commonwealth: For the First Time Ever, SCV Applies “Good-Cause” Exception to Contemporaneous-Objection Rule

Posted in Appellate Practice, Opinions and Analysis, Preservation of Error
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Frequent fliers in the Supreme Court of Virginia are all too familiar with Rule 5:25, the Court’s contemporaneous-objection rule.

The rule is straightforward:

No ruling of the trial court, disciplinary board, or commission before which the
case was initially heard will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or
to enable this Court to attain the ends of justice. A mere statement that the judgment or
award is contrary to the law and the evidence is not sufficient to preserve the issue for
appellate review.

It’s also almost invariably fatal. A quick Lexis search shows that Virginia courts have cited “Rule 5:25” in 463 cases. That suggests that the rule has killed more appeals than Chuck Norris and my own incompetence combined. So, scary stuff there.

“But wait,” the naive client or novice appellate lawyer in my head sometimes argues, “doesn’t the rule have two exceptions–‘except for good cause shown or to enable this Court to attain the ends of justice’?”

That’s technically correct, imaginary voice in my head, but those exceptions have historically been very, very limited. Habeas cases aside, I’m not sure that I’ve ever seen the ends-of-justice exception applied in a civil case. And until last Thursday, I’d never seen the good-cause exception at all. If you’d asked me a week ago, I would have told you that it didn’t really exist; it was a collection empty words on a page. I’d have advised you to put your faith in Bill Belichick’s ethics unicorns over that particular bit of verbiage.

But that was all a week ago. Then came the SCV’s latest batch of opinions. The set included Hicks v. Director, Department of Corrections, which applied the ends-of-justice–excitement enough for an appeals geek (and Hicks is discussed at length on Steve Emmert’s blog). Just a little further down the list, I found Toghill v. Commonwealth.

And there it was: The unicorn. The white whale. The watchable network drama.

An opinion applying the good-cause exception to Rule 5:25.

So let’s have as much fun with this opinion as we can, because who knows when another will show up.

We’ll start with the facts. Our story begins, as stories so often do, with Mr. Toghill, “an adult, engaged in an email exchange with a law enforcement officer posing as a minor wherein Toghill proposed that the two engage in oral sex.” Toghill was tried and convicted in 2012 of soliciting sodomy from a minor. He did not argue at trial that the underlying statute supporting his conviction, Code § 18.2-361(A), was unconstitutional.

The next year, in a separate case, the Fourth Circuit concluded that  Code § 18.2-361(A) was facially unconstitutional in light of Lawrence v. Texas in MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013). So Toghill appealed to the Court of Appeals of Virginia, adopting the Fourth Circuit’s rationale and candidly admitting that he’d raised Code § 18.2-361(A)’s constitutionality for the first time on appeal.

Unfortunately for Toghill, the SCV had previously held that Code § 18.2-361(A) was constitutional as applied to oral sex between an adult and a minor in McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007) . And so the CAV affirmed the trial court, and Toghill appealed to the SCV.

The Commonwealth argued that Toghill was procedurally barred from raising the argument because he did not raise it in the trial court. The Court considered Rule 5:25, and acknowledged that it had held that it could not reverse a trial court on a ground never raised below–and that it did so in the specific context of a challenge to the constitutionality of Code § 18.2-361(A). But the Court reviewed the timeline:

  • In 2007, the Court held that Code § 18.2-361(A) was constitutional in McDonald;
  • In 2012, Toghill was convicted;
  • In 2013, the Fourth Circuit held that Code § 18.2-361(A) was unconstitutional in MacDonald.

The Court acknowledged that its cases have not applied the good-cause exception. But given those facts, it held that “the conflict created by the Fourth Circuit’s subsequent opinion is good cause under Rule 5:25 to consider the error alleged by Toghill regarding the constitutionality of Code § 18.2-361(A).” It stressed that the exception applied in “this narrow instance.”

(Okay, quick Zack Morris timeout: As a lawyer who regularly represents appellants, and as an observer who suspects that the Court’s waiver jurisprudence may have grown, um, excessively robust, I like this result. But as an objective observer, I have to admit that it’s surprising for several reasons. First, the Court acted sua sponte; Toghill never even asked it to apply the good-cause exception. And why would he? The Court itself had never applied the exception. Second, as Justice Mims points out in his concurrence, the majority approach “creates the precedent that an appellant may raise an issue for the first time on appeal simply because a federal court addressed it in a non-binding opinion after the state court has concluded its proceedings . . . .” I’m told that it’s not hard to find recent cases where the Court declined to reach issues under these circumstances, but I haven’t done the research. Third, what conflict did the Fourth Circuit’s opinion create? It was non-binding.)

Back to the main plot: In the end, none of this helps Toghill. The five-justice majority concludes that the Fourth Circuit got it wrong in MacDonald. Justices Mims and McClanahan concur separately. Neither would have applied the good-cause exception, and both would have affirmed. So Toghill gets shut out.

So what can we take away from Toghill?

  1. Toghill holds that the conflict created by an intervening, nonbinding opinion can qualify as “good cause shown” under Rule 5:25, allowing the Court to reach an issue that wasn’t raised below. Nothing necessarily limits this principle to intervening Fourth Circuit opinions on constitutional issues.
  2. It’s clear from the Court’s opinion that it is concerned with conflicts in the law. You can leverage this concern to your advantage in other contexts. For example, if you want your Petition for Appeal to grab the Court’s attention, you might play up a conflict between the state trial courts, or a doctrinal detour that the federal courts took.
  3. The Toghill Court stressed that the good-cause exception applied in this “narrow instance.” The SCV will sometimes be a little more forgiving with preservation issues in criminal cases. I wouldn’t necessarily expect a Toghill argument to work in a civil appeal. In fact, I wouldn’t necessarily expect it to work anywhere, ever. Raise your appeal points in trial court.

Lessons from Baca v. Adams: Video Breakdown of a Ninth Circuit Beatdown

Posted in Oral Argument, Uncategorized

Ever want to see the appellate equivalent of torture porn? Here’s a video that’s making the rounds of an oral argument from the Ninth Circuit in a case called Baca v. Adams:

Skip ahead to 16:03, and be sure to watch all the way to the end. Otherwise, you’ll miss the part where Judge Kozinski stops flogging the poor lawyer and actually starts flaying him alive. It’s as brutal a thing as I’ve ever seen in a courtroom.

And yet, we might be able to turn it into a teachable moment. My buddy, Kyle McNew, shared this video on Facebook along with a few thoughts. One of them is a question that he’s been asking himself: “Self, is there anything the dude from the AG’s office could have done to avoid that, short of just not standing up to argue at all?”

Let’s take a careful look at the video and try to answer Kyle’s question. Out of empathy for said dude from the AG’s office, we won’t use his name. We’ll just call him “Counsel.”


This is an appeal from the denial of a habeas petition, so it’s pretty far outside my wheelhouse. To simplify things for our exercise (and because I don’t understand the nuances of habeas law), let’s say that the government sent a bad man to jail for first-degree murder on the basis of false testimony–specifically, false testimony from a jailhouse informant and a prosecutor to the effect that the informant did not receive any benefit for his testimony in the case. Let’s say that both the California Court of Appeal and the district court concluded that this testimony was false. Let’s also say that the State had other strong evidence. For purposes of our exercise, we will assume that Counsel had useful arguments to make on appeal about prejudice, harmless error, and deference to state courts.

(This summary is what I gleaned from the argument; it might not be totally accurate. I’m interested in the appellate lessons from the argument, not the underlying facts of the case. Scott Greenfield has a good discussion of the substance of the case from a criminal law perspective here:

With those assumptions, we can pick out a few spots where Counsel could have saved himself some pain:

Before Argument

We have to acknowledge at the outset that the real problem here is one of strategy, not execution. The State made a tremendously bad call by fighting to hold onto a conviction that it obtained on the basis of false testimony. It doesn’t matter if they had clever technical or jurisdictional arguments for preserving the result. The whole endeavor was morally abhorrent. In my experience, if you try to use a clever, technical argument to make a court do something obviously unjust, the court will punish you. Maybe the AG’s missed the forest for the trees, or maybe it fell victim to some sort of bureaucratic inertia that drove it to keep defending its result. But whatever happened, any error that we pick out below flows from this fundamental mistake of judgment.


Counsel starts his argument by saying that “[a] number of things happened that should have not happened, and we’re not here to defend them.” That invites Judge Fletcher to probe the extent of that concession, and he immediately asks if Counsel concedes that the prosecutor lied below. Counsel tries to defend the prosecutor; while he’s forced to acknowledge that the prosecutor testified untruthfully, Counsel suggests that he may have been confused and that’s “not clear” that he lied.

No! Don’t do it! Don’t poke the bear. Don’t challenge Judge Fletcher right out of the box. And don’t burn your credibility on a point that you can’t–and don’t have to–win. Of course the prosecutor lied (at least, on this record and for purposes of this appeal). Admit it, but explain that it’s irrelevant because the question in the case is harmless error/prejudice. Counsel gets to that point eventually, at around 17:12, but he manages to annoy panel on the way.


Judge Fletcher asks if the court should go ahead on the assumption that the prosecutor lied, as the California Court of Appeal found. Counsel unhelpfully clarifies that the Court of Appeal used the word “fantasy.”

Here we go again. For purposes of this appeal, the prosecutor lied. Give up the point and get out of there. By this point, Counsel has burned two minutes and an awful lot of argument time to little effect.


Judge Kozinski asks if the prosecutor has been prosecuted for perjury. Counsel says that he hasn’t. Why not? Counsel doesn’t know, and Judge Kozinski explains that he has to “doubt the sincerity of the State” when it says that this was all a big mistake. Judge Kozinski suggests that the first thing to do in a situation like this normally would be to prosecute the witness for perjury.

Counsel challenges Judge Kozinski’s premise that perjury occurred. Judge Wardlaw promptly smacks him with the record, reminding him that the state Court of Appeal determined that it had. Counsel agrees. He tries to push back, but it’s too late–Judge Kozinski asks about the lawyer who put on all the false evidence. Turns out he wasn’t disciplined. Judge Kozinski asks why not, and what message that sends young prosecutors. Counsel tells Judge Kozinski that, “when this matter wraps up,” he intends to speak with the new district attorney in Riverside and alert him to the severe criticism that his office has received from the magistrate judge. Judge Kozinski asks why he can’t do that right now. Counsel admits that nothing prevents him from bringing it to the DA’s attention immediately.

Again, Counsel is wasting credibility and time on the perjury issue. His expressed intent to speak with the Riverside DA is not very compelling, and it unnecessarily–and unhelpfully–gives him a personal role in the train wreck. About which more later. Neither of these points were worth making, and both drew the panel’s ire.


After a relatively smooth stretch, Judge Fletcher methodically walks Counsel into an ambush. He gets Counsel to expressly concede that the California Court of Appeal stated a standard for prejudice and applied that standard to the Petitioner’s Napue claim. Judge Fletcher then explains to him that if that’s true, then the state court got the standard wrong. Counsel immediately reverses his position, without explanation, and argues that the state court actually applied the correct standard, without discussing it or apparently even mentioning the standard.

Do you smell that? Those are the smoldering ashes of Counsel’s last ounce of credibility with this panel. Listen to the questions. Think about your answers and their implications, and answer carefully. The inquiry about standards was easy to anticipate, particularly after watching the Appellant’s argument, and it was pretty clear where Judge Fletcher was headed.


Judge Wardlaw explains at length why the case seems so fundamentally unfair. Counsel agrees that the prosecutor’s conduct was “improper,” which doesn’t exactly assuage her concerns. Judge Kozinski chimes back in, pointing out that the government’s lack of a response suggests that this is just the way things are done in Riverside; “it’s not a reassuring picture.”

For some reason, Counsel disagrees. This does not sit well with Kozinski, who runs through a counterfactual list of things that would have shown sincerity on the State’s part. Counsel gallantly tries to defend not the prosecutors, but the courts involved, saying that it’s quite clear that they did not “condone” the conduct. Judge Wardlaw explains that it’s actually not that clear, because while the courts acknowledge that the prosecutor lied and bolstered the credibility of another lying witness, they found that it didn’t matter because there was other evidence. That, as she points out, is condoning the conduct.

When prepping for the argument, Counsel should have identified the smallest set of points he needed to establish to win. At argument, he should have gone after those points and nothing else. Tangling with the panel on irrelevancies is not productive.


And then things get personal. Judge Kozinski points out that Counsel works for the AG, who has prosecutorial authority. He asks if the AG is aware of the situation. It turns out that Counsel has not provided her a report. Judge Kozinski directs Counsel to provide this information to her in the next forty-eight hours. He then asks if an investigation has been conducted, or any other steps taken to show that California does not condone prosecutors getting on the stand and lying to the jury. Counsel says that, other than the criticism from the Court of Appeal, California’s got nothing. Kozinski notes that the Court of Appeal does not work for the AG. Kozinski asks if there is any particular reason why this has not happened.

Counsel then unnecessarily injects himself into the case, explaining that the reason he personally has not conducted an investigation is that he does not believe that the proof shows that the prosecutor who put on the false evidence knew that it was false (even the prosecutor who lied on the stand worked in the same office). This only baits Judge Kozinski to further badger Counsel.


Judge Fletcher points out that the AG’s office fought “tooth and nail” to keep the sentencing transcript–which evidently showed that the informant and prosecutor were lying–away from the Court of Appeal. Counsel agrees that this “does not look good.” Fletcher clarifies that it looks terrible. Counsel tries to explain why this was nonetheless an appropriate legal position. Judge Wardlaw asks why the Petitioner’s counsel should have had to fight tooth and nail for the transcript. Counsel responds that Petitioner’s counsel had the transcript from the beginning, which is too clever by half and unresponsive to the question. The issue, as Judge Fletcher points out, is whether the Court of Appeal could see that transcript–and that it’s hard to see the AG’s efforts as anything other than an attempt to keep inculpatory evidence away from the Court of Appeal.

Judge Kozinski observes that this “[l]looks sort of bad–and would look terrible in an opinion when we write it up and name names.” He asks Counsel if his name will be in the opinion–that is, if he was involved with the effort to keep the transcript out of the Court of Appeal. He was not. Kozinski asks who was, and gets an answer. Judge Kozinski suggests that that lawyer may be seeing his name in an opinion.

Judge Kozinski then hits the deep issue in this appeal: “Is this the kind of thing you really want to press here?” He gives Counsel a week to talk to his supervisor to see if he can work anything out with opposing counsel that will avoid the need for the Ninth Circuit to decide the case. “Get ahold of the Attorney General, get ahold of your supervisor, and see whether they really want to stick by a conviction that was obtained by lying prosecutors and that was maintained in the Court of Appeal after the Attorney General’s office fought tooth and nail to keep out a transcript that would have shown the perfidy of the prosecutors, and whether having that documented in Fed Third is really going to further the interests of justice in California. Do you understand the question?”

Surely, by that point, he did. If the AG’s office had appreciated the issue earlier, we might have avoided this display.

Finally, careful watchers will note that the argument took place on January 8, and that more than a week has passed. On January 15, the State asked for more time, and the Ninth Circuit gave the AG until January 29 to update the court on the status of discussions.