William & Mary alum and Supreme Court Justice Lee Millette put in a star turn this afternoon at the Roanoke Bar Association’s monthly meeting. In fairness, he had some pretty strong material to work with, having presided over the trials of John Wayne Bobbitt and John Allen Muhammad, among others, before joining the high court.

In addition to war stories, Justice Millette shared some insight about the inner workings of the Supreme Court:

  • It’s All Cyclical. The Court’s year operates cyclically, with each cycle keyed to the week during which the Court hears oral argument. For example, the Supreme Court will hear oral argument next week. In preparation, the individual justices received “big bankers boxes full of” the briefs and the appendices for those cases in July. In August, an individual justice was randomly assigned responsibility for each case. Next week, the Court will hear argument in those cases each morning. In the afternoon, the justices will meet to decide the cases. They will literally sit around a table and address the cases serially, with each having an opportunity to offer an opinion as to how each case should be decided and, more specifically, how the opinion should be written. (In this regard, the Supreme Court differs from the Court of Appeals.) Having reached its decisions, the Court will draft and circulate opinions for comment; the justice assigned responsibility for a case typically will author the opinion. The Court will then will then issue final opinions on the Friday of the following session–in this case, November 6.
  • Oral Argument Counts. Justice Millette indicated that something less than 80-90% of cases are decided on the basis of the briefs, although he did not give an exact figure. This suggests that oral argument matters in at least 1 out of 4 cases. When I spoke to him after the speech, he reiterated that he is a strong believer in oral argument.
  • Answer the Questions. In that vein, Justice Millette stressed that, when a lawyer is asked a question at oral argument, he or she must answer it. This is true even if the Court is asking for a concession. If it does not receive a responsive answer, the Court will return to the issue.
  • A Bit of Comfort. Justice Millette explained that–perhaps in contrast to certain other appellate courts–the Supreme Court of Virginia does not set out to embarrass lawyers, and generally will not pick on a lawyer who is having a rough argument. He cited one case last year in which Justice Koontz cautioned his colleagues against picking on a lawyer who was clearly having a bad day. But if lawyers are to be treated respectfully, they need to return the favor. The Supreme Court is a formal court, and its justices are not to be referred to as “you guys,” called by the wrong names, etc.
  • Clarity is Key. With respect to briefs, Justice Millette referred to Chief Justice Roberts’ recent comments at the Fourth Circuit Judicial Conference. He stressed the need for clarity in briefing. He cautioned that length does not necessarily translate into clarity.
  • And Length Counts. Justice Millette noted that, when he picks up a brief, he flips to the last page to check its length. As another justice once pointed out, “Page limits are not goals.”

Look for write up from Virginia Lawyer’s Weekly in the near future–I sat at a table with Peter Vieth, and he seemed to be taking pretty good notes.

Update: You can link to the VLW Blog piece here.

Here’s some exciting news: the Supreme Court will release the audio from Wednesday’s argument in Citizens United v. Federal Election Commission “shortly after the conclusion of the argument.” SCOTUSblog has the scoop, as well as an argument preview.

Citizens United is a major campaign-finance case with potentially serious constitution implications. You might remember it as the case about Hilary: The Movie–apparently either a feature-length documentary about Secretary Clinton’s run for the presidency or the world’s longest attack ad, depending on your point of view.

Here’s the trailer. It works better if you say “From the producers of South Park” just before you hit play:

 

 

Did I hear “venal” in there? That’s a little harsh.

Somehow along the way, Citizens United has morphed into a case about the extent to which corporations enjoy the free-speech protections that the constitution offers to individuals in the context of modern campaigns.

In addition to fine cinema and free speech issues, Citizens United offers many enticements to the appellate geek. Wednesday’s argument will mark the high court debuts of Associate Justice Sonia Sotomayor and Solictor General Elena Kagan. The Court’s Day Call boasts an all-star lineup for the oral argument:

  • Ted Olson, arguing for 30 minutes on behalf of Citizens United;
  • Floyd Abrams, arguing for 10 minutes in support of Senator Mitch McConnell, as an amicus in support of Citizens United;
  • General Kagan, arguing for 30 minutes on behalf of the FEC; and
  • Seth Waxman, arguing for 10 minutes on behald of Senator McCain and others as amici in support of the FEC.

This could be one for the case books, if not the history books. We’ll keep you posted.

A little something to tide you over until the Supreme Court of Virginia hands down its next set of opinons on September 18th: on Friday, the Court unpublished orders in two cases. One, D.R. Horton, Inc. v. Zambrana, deals with prejudgment interest. The other, Higgs v. Director, Dep’t of Corrections, is a habeas case.

Credit to Steve Emmert, who has the write-up here.

Here is something so enormously cool that I had to share it: a piece from the latest issue of the Harvard Journal of Law and Gender called “Remarks Commemorating Celebration 55: The Women’s Leadership Summit.”

Catchy title, I know, but bear with me. Celebration 55 was an alumnae event at Harvard Law School last fall, which celebrated the 55th anniversary of the school’s first graduating class to include women. The remarks I’ve linked to include a conversation between Justice Ruth Bader Ginsburg (’56-’58) and then-Dean Elena Kagan (’86).

It’s hard to wrap your head around the idea. At the time of the conversation, HLS had a 55-year record of graduating women. That’s not a long time. It dates back to slightly before the Mad Men era.

Flash-forward to 2008, when you have this nice conversation between two of those graduates: the women’s-rights hero turned Supreme Court Justice (and cancer survivor), and the school’s blindingly effective Dean–who was soon to be appointed Solicitor General, and is currently a leading candidate to join Justice Ginsburg on the High Court’s bench. That’s, um, a lot of ground to make up in a half century. Score one for meritocracy.

The substance of the commentary itself is great. It really gives you a sense of just how tough and determined Justice Ginsburg is. That glass ceiling never had a chance. Without giving away any spoilers, the article’s got:

  • The story of Belva Ann Lockwood, the first woman to be admitted to the Bar of the SCOTUS, as well as the first woman to argue a case before the Court–and Justice Ginsburg’s memento of one of the obstacles Lockwood faced;
  • Justice Ginsburg’s thoughts on her role on the Court and the proper use of foreign opinions;
  • The absurd reason why she graduated with a law degree from Columbia, not Harvard. (Nice call, Dean Griswold); and
  • At least one misspelling of the Justice’s name (d’oh!).

The piece seems particularly timely, given the recent speculation about Justice Stevens–and the current gender breakdown on the High Court. I obviously got a kick out of it, and I hope you enjoy it as well.

You won’t see it cited too often, but Rule 5:6 is without a doubt one of the most revolting recent developments in Virginia appellate practice. It’s the Supreme Court rule that says, “Except by leave of Court, all pleadings and briefs, including footnotes, must be in at least 14 point type, [and] must use Courier, Arial, or Verdana font….”

The resulting product is visually abhorrent. A brief in 14-point Arial looks kind of like what my daughter might put together with her markers–the major difference being that paper is not Caroline’s medium of choice.

It’s difficult to understand the logic behind Rule 5:6. If shorter briefs are the goal, then it seems like the right move would be to limit length, like Federal Rule of Appellate Procedure 32(a)(7)–not to mess with fonts. If the rule is aimed at legibility, on the other hand, it could have required 14-point type, but given lawyers their choice of fonts. I’m far from sold on the readability of the sans serif fonts, and Courier is garbage. Also, it’s worth asking why, if the Century fonts are good enough for the SCOTUS…

Anyway, Rule 5:6 is on my mind today because I’ve been working on a Fourth Circuit brief. One of the relative pleasures of practicing in the Fourth Circuit, as opposed to the Supreme Court of Virginia, is the opportunity to make reasonable design choices and put together a more professional-looking piece of work.

Not that I’m any sort of an expert. But there are plenty of resources available for lawyers looking to learn about basic typography for briefs and filings. One of my favorites is this guide, which is available on the Seventh Circuit’s website. It convinced me to stop using Times New Roman. (Times New Roman was originally designed to allow the reader to skim quickly over words. That’s not what you’re looking for in a brief–you want the reader to linger.)

The Seventh Circuit also offers this law review article. It’s long, but there’s some good stuff in there. Finally, Bryan Garner offers some characteristically good advice in The Winning Brief. Some of his tips for designing text:

  • Put a little more white space above a heading than below it;
  • Use a 13-point serifed typeface (14-point in federal court);
  • Set tabs at the equivalent of 5 characters for the first inch, .15 inches after that;
  • Set margins at 1.2 inches on the side, and 1 inch on the top and bottom;
  • Leave the right margin ragged (not justified) for greater readability; and
  • Avoid all-caps text, which is basically impossible to read.

And this brings us full circle. I was at one of Garner’s CLEs last summer, and I mentioned Rule 5:6 to him. He looked at me like–well, see the above photo.

The VLW blog reports that the Western District of Virginia dismissed a state-law slip-and-fall case on a Twiqbal motion yesterday. The court’s opinion, in a case styled Branham v. Dolgencorp, is here.

It’s not too surprising that the Western District would apply the new federal pleading standard—it is, after all, a federal court. But Branham is worth noting for a few reasons:

  • It was originally filed in Amherst County Circuit Court, so it at least started life as a state-court case.
  • In her 1-page complaint, Branham alleges that the defendant negligently failed to remove a liquid from its its floor or warn her of its presence, She specifically alleges that the defendant and its employees breached their duty to warn her of the dangerous wet floor. As a result, Branham alleges, she fell and was severely injured. I am hardly an expert in premises liability cases, but I would have guessed that this makes out a prima facie case under Virginia law. It certainly compares favorably to the Complaint for Negligence in Form 11 of the Federal Rules of Civil Procedure.
  • At points, the district court’s opinion reads more like a disposition on summary judgment than a motion to dismiss. In particular, some of the substantive Virginia law it cites seems like it would be more appropriately applied at a later stage in the case.
  • The trial court looks very closely at the complaint, finding that “the Plaintiff has failed to allege any facts that show how the liquid came to be on the floor, whether the Defendant knew or should have known of the presence of the liquid, or how the Plaintiff’s accident occurred.” That’s a lot to ask before discovery.

All in all, it seems like Branham sets the bar awfully high for plaintiffs at the pleading stage. Let’s see if the state courts follow suit. Finally, it’s good to see that the Twiqbal shorthand is spreading. Nice work, Mr. Vieth!

The Fourth Circuit’s recent decision in The Real Truth About Obama, Inc. v. FEC, which adopts a new standard for issuing preliminary injunctions, will have serious implications for parties seeking temporary injunctive relief in Virginia’s state and federal courts.

Background

For the past three decades, a plaintiff trying to secure a preliminary injunction in the Fourth Circuit–and, as a practical matter, in the Virginia state courts–had to satisfy the balance-of-hardship test set out in Blackwelder Furniture Co. of Statesville v. Selig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977).

Under Blackwelder, the first step in the court’s analysis is to balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant. If that results in an imbalance in the plaintiff’s favor, the court moves on to determine whether the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation.

Blackwelder allows for a “flexible interplay” among these elements. The upshot of its approach is that, if the balance of the hardships falls in the plaintiff’s favor, he need not show a likelihood of success. It might be enough to show a substantial question. In fact, the Blackwelder court expressly held that the district court had erred by requiring the plaintiff to show a likelihood of success on the merits.

Blackwelder has proven to be a peculiarly influential federal decision. That’s because, while the Fourth Circuit has a robust body of temporary injunction case law, the Supreme Court of Virginia has very little. As a result, Virginia trial courts have adopted the Blackwelder test.

The Real Truth About Obama, Inc. v. FEC

For a long time, that was the state of things–although, as Steve Emmert notes in his excellent analysis, Blackwelder certainly had its critics.

Late last year, however, the Supreme Court of the United States clearly articulated the elements necessary to support a preliminary injunction in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365. Primary among these was a likelihood of success on the merits. This was, to say the least, bad news for Blackwelder, which allowed plaintiffs faced with serious harm to elide this requirement.

And so, earlier this month, the Fourth Circuit retired Blackwelder in a case styled The Real Truth About Obama, Inc. v. FEC.

The opinion is not nearly as interesting as it sounds, largely because the appellants had no apparent interest in discussing the real truth about President Obama:

 

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They just wanted to talk about election regulations.

Continue Reading Bye-Bye, Blackwelder

Apologies for the delay since my last post. I was tied up in trial for part of last week, and recovering for the rest of it. I was so busy, in fact, that I almost missed this post from the Volokh Conspiracy about Newman v. Commonwealth, 2009 Va. App. LEXIS 360, 2009 WL 2431289 (Va. Ct. App. Aug. 11, 2009).

Newman deals with a “satirical” question presented. It’s as bad as it sounds. The actual question presented reads:

Is it a violation of the Establishment Clause of the First Amendment to the Constitution of the United States when the manufacturer of the equipment used to test breath in driving under the influence cases refuses to divulge to any state or Federal agency, to any court, to any defendant, to any prosecutor or to any trier of fact the information programmed into the equipment and which controls the operation of and the results obtained from the equipment[?] Is it a further violation of law that the Commonwealth requires the courts, the prosecution, the defense and the triers of fact to take on faith alone that the information programmed into these machines is correct?

Crickets. The appellant had to defend this QP before a panel consisting of Chief Judge Felton and Judges Frank and Petty. One gathers that the argument did not go well:

At oral argument, appellant’s counsel informed the Court that appellant’s “question presented” concerning the Establishment Clause of the First Amendment to the United States Constitution was “satirical” in nature. Rule 3.1 of the Rules of Pro-fessional Conduct states, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

For good measure, the Court explains that because “appellant’s ‘questions presented,’ enumerated 1 through 5 in her opening brief and listed immediately below, fail to allege any trial court error, we will not consider them on appeal. See Rules 5A:12(c), 5A:20.”

And we’re still in the introduction. At least the opinion was unpublished.

A few lessons that we can draw from Newman:

  1. The question presented/assignment of error is the most important part of your brief. Treat it that way. You should spend more time on this than any other part of the brief, because it can win or lose the whole appeal. And your QP/AE absolutely must explain what the trial court did wrong. I’ve found two approaches helpful in making sure that it does so. One is to set up your QP/AE as a short (< 75 word) syllogism, with a major premise (legal rule), minor premise (key facts), and a conclusion. Another is to write your QP/AE as the topic sentence of the opinion that you would like to receive: “The trial court erred by x because y.”
  2. Lawyers are not funny. Really. We’re not even close. On the O’Keeffe scale of things that are terribly unfunny, lawyers fall somewhere between toxic mold and Norbit. And appeals are particularly serious. Newman, after all, was a criminal case, and one the defendant had lost below. Humor has no place whatsoever in an appellate brief or argument. Whenever I try to make this point, someone invariably brings up the story that Ted Olson said something funny in oral argument once. Two points in response. First, he’s Ted Olson. Second, here’s the joke he supposedly told: One of the justices prodded him to answer a question, saying something like, “It’s an easy question, counselor.” To which he responded: “I know, Your Honor. It’s the answer that’s difficult.” There it is: the high-water mark of appellate humor.

Finally, although it’s a little off-topic, I had a chance to grab a beer this weekend with my law-school classmate, the (urban) legendary Tom Cotton. Tom–Mr. Cotton to those of us in Section 1–was back from tours in Iraq and Afghanistan, and is finishing up his time on active duty. Congratulations, Tom, and thank you for your service.

My colleague and sometime coauthor, Travis Graham, is an eccentric civil procedure genius and all-around good guy. Among his other hobbies, Travis collects popular misconceptions of the law. He recently told me about a new urban legend making the rounds: the Nusbaum motion. As I understand it, there is a perception brewing in some corners of the bar that you need to file a dedicated pleading in order to protect against procedural default in the wake of Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007).

I have no idea whether this is true. (I’ve been burned before.) I hope that it’s not–or if it is true, that people are just talking about a motion to reconsider. Barring extraordinary circumstances, there’s no need to file a separate pleading to secure a ruling and avoid the Nusbaum waiver scenario.

Nusbaum is a fun case. Factually, it’s pretty straightforward. Here, Buzz Aldrin re-enacts the pivotal event in the case:

 

Buzz took some dramatic license there, but not much. In Nusbaum, the plaintiff’s lawyer bumped or shoved opposing counsel in court, before the jury. The trial court immediately declared a mistrial and assessed costs against the plaintiffs.

A procedural nightmare ensued, as the parties debated sanctions for months. For our limited purposes, it is enough to note that Nusbaum failed to raise certain objections contemporaneously. He moved to reconsider, but told the judge that he was not asking the court to change its ruling. By doing so, he waived his argument for appeal.

Here’s what you need to know about Nusbaum:

  1. It’s a waiver case. At bottom, Nusbaum is a waiver case. If you file a motion to reconsider to preserve a point for appeal, but then tell the trial judge that you don’t actually want her to reconsider her ruling, you have not preserved your argument. You have waived it. Nothing groundbreaking here. That’s because…
  2. You always need to get a ruling on your objections. This is true, has always been true, and always will be true. The trial court is entitled to a fair opportunity to rule intelligently on your objections. Otherwise, you will not have anything to appeal. Therefore, you should bject during the proceeding, and later list your key objections on the face of the court’s order. You might even consider adding language to the order itself, acknowledging and ruling on the parties’ respective objections. If necessary, file a motion to reconsider. But unless something goes horribly wrong, you should not need to move the court to rule on your motions or avoid a waiver.
  3. Don’t go overboard noting objections or doing things “for the record.” The best thing you can do for your prospects on appeal is to win in the trial court. Do what’s necessary in order to preserve error, but don’t lose the case trying to win the appeal. And while we’re on the subject, you should probably delete the phrase “for the record” from your trial vocabulary altogether. It’s a lawyerism. Real people don’t talk that way, unless they’re being pretentious and/or trying to sound like lawyers. Beginning an argument with “for the record” can even suggest that you are just going through the motions to preserve an argument. That is not effective advocacy–and as Nusbaum shows, it may not be effective preservation of error.
  4. It’s better with Buzz. Frankly, I like the case better when it has Buzz Aldrin punching jerks in the face. (Thanks to my friend, Jerry, for pointing out the clip and sharing his insights, which have informed this post.)