As a follow up to our earlier discussion about oral argument, here are some additional thoughts from around the web.

Eugene Volokh spent a few posts last week blogging on Mayer Brown’s treatise on federal appellate practice, with items on oral argument here and here. These posts, and the comments they’ve generated, are worth your time. Two tips in particular get the De Novo (TM) seal of approval:

  • Avoid dry mouth by popping a piece of hard candy while waiting your turn to argue (because water has unintended side effects); and
  • When you have finished answering one judge’s questions, signal closure by turning your gaze to one of her colleagues on the panel.

Volokh/Mayer Brown also offer this advice for dealing with a judge/justice who won’t give up on a chain of questioning: “If, after several attempts to explain, the judge will not get off the issue, as a last resort, counsel can try ‘I am sorry, your Honor, but I have given the best answer I have, which I hope the court will find satisfactory.’” If you’re the appellant, you can also address this issue by explaining that you’ve given the best answer that you can, and offering to return to the point in rebuttal after checking the record/briefs/etc. Keeping in mind, of course, that the point of the entire oral argument exercise is to answer the Court’s questions.

Steve Emmert has a neat piece on oral argument, “What Not to Say.” Caution: as the unofficial dean of the appellate bar, Mr. Emmert can get away with things that you cannot. But his advice here is solid.

Steve says that a good oral argument should be like a conversation. I’d be a little more specific: it should be like a conversation with a respected senior partner–one who knows more about the law than you do, but less about the facts of this particular case and/or specialized area of the law. (I think I stole that analogy from Scalia and Garner.) You wouldn’t walk into a senior lawyer’s office to read a prepared speech about the case you’re working on, would you? No, you would not; if you did, he would know instantly that you are an idiot. Nor would you brush off his questions or tell him that you’ll get to them “later.” And you would probably make your presentation with the degree of deference and formality befitting an appellate oral argument. All in all, pretending that the Court can have you fired is a useful exercise.

A few posts back, we talked about the Supreme Court of Virginia’s Fultz case, and discussed the relative evolution of state and federal pleading standards. Mack Sperling wrote in to note a recent case, Holleman v. Aiken, in which the North Carolina Court of Appeals declined to follow Twombly, stating that it lacked authority to adopt a new standard of review for motions to dismiss.

Mack’s post on the topic is here. It’s worth checking out for a number of reasons:

  • The case itself is spectacular. It involves, among many other things, defamation claims brought against one Clayton Holmes Aiken for his failure to endorse and promote an unauthorized biography, Out of the Blue…Clay it Forward–How One Man & His Fans Are Changing the World. The relief sought included an injunction that Aiken help sell the plaintiff’s book. As it turns out, North Carolina courts “cannot be used to force celebrities or their family and friends into making endorsements for another person’s profit.”
  • Apparently, the plaintiff argued that the court should apply Twombly‘s plausibility standard, rather than existing (and presumably more lenient) North Carolina law that approximates Conley‘s “no set of facts” language. The Court of Appeals declined to do so, because another panel of the court had already decided the issue of the proper standard of review for a motion to dismiss.
  • While it’s a little off-topic, a North Carolina appellate decision declining to apply Twombly in the state court context is still persuasive authority over here.
  • Finally, Holleman shows what we’re missing out on by not having an intermediate appellate court of general jurisdiction.

Here’s a scary new Supreme Court opinion: Whitehead v. Commonwealth. The facts of the case are depressing. Whitehead’s  boyfriend was breaking into cars and storing his pilfered goods at her apartment, while helping her pay rent and support their daughter.  Danville’s finest intervened, and Whitehead was convicted of receiving stolen property based on a theory of “constructive receipt.” The Court of Appeals affirmed her conviction in an unpublished opinion.

The Supreme Court has little trouble reversing on this point, as it has never recognized a theory of constructive receipt for this offense. So far, so good–but there’s more. The Commonwealth argued, for the first time on appeal, that Whitehead received the stolen property under a theory of constructive possession. The Court was having none of that.

Justice Lemons, writing for a unanimous Court, acknowledged that the Supremes will affirm a lower court ruling that arrived at the right result for the wrong reason in a proper case. But he explained that cases in which the appellee failed to present the argument in the trial court, so that the trial court did not have an opportunity to rule on the argument, are not proper cases. And he specified that this principle applies in civil, as well as criminal, cases. Because the Commonwealth did not argue constructive possession before the trial court or the Court of Appeals, the Supreme Court declined to consider it. The Court also chastised the Court of Appeals for considering an argument about the concealment of stolen property that the Commonwealth raised in the intermediate appellate court, but not at trial.

All in all, the Supreme Court reversed the judgment of the Court of Appeals affirming Whitehead’s 32 convictions for receiving stolen property, dismissed the indictments, and entered final judgment. It remanded for a new hearing on the revocation of Whitehead’s previously suspended sentences. (There’s a twist to the revocation issue, too, but that’s for another post.)

What you should know about Whitehead:

  • It’s tough on appellees. On a practical level, Whitehead seems to make things awfully hard for appellees. After all, they are the folks who won below. As I read the opinion, it requires appellees to raise all of the arguments that they might want to use on appeal before the trial court. Query how that will play out in practice. Does it mean that, even if your first point is dispositive and you win on it, you still need to raise the other five to preserve them for appeal? After all, the appellate court might disagree with the trial court on your first argument. And if so, do you also need to get a ruling on each of your arguments to preserve them (a la Nusbaum v. Berlin)?
  • It’s tough on trial courts. On a structural level, Whitehead doesn’t seem to give enough deference to trial courts. The lower court is presumptively correct on appeal, and it is the appellant’s burden to show otherwise. Just as the a standard of review will often favor the appellee, procedural default rules shouldn’t necessarily apply equally to both parties. It sounds like the Commonwealth has raised a variant of this argument.
  • It reviews an unpublished opinion. The Court of Appeals affirmed a 32-count conviction on the basis of a novel legal theory that the Supreme Court has never recognized–and it did so in an unpublished opinion. It seems like Whitehead probably should have made it into the reporter. Commentators have noted the intermediate appellate court’s increased disposition of cases via unpublished opinion, and this is a particularly notable example of the trend.
  • It’s not a done deal…yet. Virginia Lawyers Weekly reports that the Commonwealth has filed a petition for rehearing, using “almost apocalyptic language.” I’m sympathetic to the Commonwealth’s position (although overblown language in a petition for rehearing is always a recipe for disaster). In the meantime, this is a case worth watching. If anyone out there has access to a copy of the petition for rehearing that they’re willing to share, you know where to find me.

By all accounts, the Virginia State Bar’s recent appellate symposium on oral argument was a big hit. Unfortunately, I wasn’t able to attend–I was tied up at my day job, posing as a mild-mannered commercial litigator–but I’ve heard from folks who made the trip that Justice Keenan’s talk was one of the highlights. Here are some of the key points that (I’m told) she made:

  • During oral argument at the Supreme Court of Virginia, about half of the questions from the bench are designed to influence another justice.
  • Oral argument changes the outcome of cases about 10% of the time.
  • When asked, Justice Keenan disagreed with the statement that you can lose a case at oral argument, but you cannot win it.
  • Counsel’s credibility is very important.
  • Justice Keenan will prepare questions in advance for oral argument.
  • In preparing for oral argument, Justice Keenan will read the briefs several times. If she is writing the opinion, she may read the briefs up to 10 times.
  • She reads thousands of pages of briefs and appendices each term.

Because we are allotted so little time for oral argument, this sort of inside perspective is priceless. It allows us as practitioners to maximize our effectiveness by tailoring our approach to our audience.

What can we learn from Justice Keenan’s presentation? Here are at least 5 points:

  1. Prepare, prepare, prepare. And then prepare some more. If the Justices are reading the briefs ten times, you should as well. You need to know the law and the record cold.
  2. Oral argument matters. It can change the outcome in one out of ten cases, and not only in a bad way. Don’t phone it in. You still have a chance to affect the result in a positive way for your client.
  3. But the briefs matter more. As Frank Friedman puts it, oral argument is fleeting, but the briefs linger. Justice Keenan spends a massive amount of time with the briefs, and reads thousands of pages a term. Assuming that she’s remotely representative of her colleagues, we can derive two lessons from this. First, craft your briefs carefully, because they will be studied. And second, cut the unnecessary verbiage and weak arguments. Put yourself in the position of someone who has to read thousands of pages of legal writing. Wouldn’t you appreciate focus, brevity, and clarity? And on the flip side, wouldn’t you find repetitive or specious argument infuriating? (Related point: for Pete’s sake, quit it with the needless appendix designations–the Court has the whole record.)
  4. And reputation may matter still more than that. Take it from someone who heard it from someone who heard it from a Justice: credibility counts. Make a baseless or misleading argument today, and the Court will see you coming tomorrow.
  5. Recognize the friendly question. As intimidating as it is on the bench–and is intimidating–the Court is trying to find the right legal answer to the question presented. Getting there is a collaborative process. You are part of that process. Sure, that last question might seem like a hardball. But in reality, it might be a lifeline–one Justice handing you your last and best chance to answer a colleague’s legitimate concern. Take that chance. Don’t dodge the question. Answer it directly, and swing for the fences.

Finally, many thanks to Justice Keenan for taking time out of her schedule to help educate the bar and improve the quality of appellate advocacy in Virginia. We wish her the best of luck with her confirmation.

The Supreme Court of Virginia pulls off a neat trick in Fultz v. Delhaize America, Inc. It hands down an opinion that’s factually and doctrinally unremarkable–even boring–on its own terms, yet fascinating in the broader context of the current state of the law.

Doris Fultz, accompanied by her 3-year-old grandson, visited a grocery store’s ATM. The ATM was bordered by horizontal metal bars about 5 inches off the ground, apparently to protect it from grocery carts. While Fultz was at the ATM, her grandson darted out. She reached for him and tripped over the bars, breaking her elbow.

Fultz sued the store’s parent company, Delhaize. Delhaize contended that she was contibutorily negligent for failing to see an open and obvious hazard. The trial court agreed, and granted summary judgment in its favor.

Pretty standard stuff so far. And folks who have been paying even marginal attention to the Court for the past few years should have a pretty good idea where it’s going with this one. Summary judgment for contrib as a matter of law? 7-0 reversal and remand, with another great warning about short-circuiting litigation.

 

So why is Fultz interesting?

  • It may help you dodge the ol’ Twiqbal. The Court handed Fultz on June 4th–just over two weeks after we received the Supreme Court of the United States’ remarkable opinion in Ashcroft v. Iqbal, which further “clarified” (read: heightened) federal pleading standards in the wake of Twombly. Iqbal is a huge deal. It explains Twombly, a 2007 case that has already been cited so many times that you can’t Shephardize it. (You just get the “more than 20,000 hits–please restrict your search” message.) One of the trends to watch over the next few years will be the extent to which Twombly and Iqbal seep into state court trial practice and effectively heighten state court pleading standards, as crafty defense attorneys cite cases applying them to state court judges (such maneuver, to be known as a “Twiqbal“). And immediately on the heels of Iqbal, we get a stern opinion from the Supreme Court of Virginia cautioning trial courts about short-circuiting litigation. Of course, Fultz was decided on summary judgment, not demurrer. But it sure suggests that the evolution of these cases over the next few years will be fun to watch.
  • It’s another arrow in the quiver. On a more practical level, Fultz is another case in the CaterCorp line. It gives us more language about how the Court is increasingly confronted with appeals in which a trial court short-circuited litigation. It also reiterates that summary judgment is a “drastic remedy.” Fultz offers another tool for trial counsel resisting dispositive motions, and appellate counsel seeking to reverse summary dispositions.
  • Trial court reaction. Finally, as Steve Emmert notes, trial courts will probably react to Fultz by refusing to grant summary judgment in all but the most obvious cases. As he explains, that is consistent with Supreme Court case law, in which summary judgment is disfavored. Fultz will likely further erode the utility of summary judgment as a procedural tool in Virginia.

 

Appellate texts and practice guides recite solemn homilies about the importance of the standard of review (and with good reason–but that’s another post). We are told that that standard of review defines the strength of the lens through which the appellate court will review the lower court’s decisions. Our standard of review should not be cut-and-pasted boilerplate, we are cautioned, but should be carefully crafted and woven throughout our argument.

Well, okay. But what does that mean? Let’s say I’m an appellant. I’ve decided that I’d like to have the court use a microscope rather than a telescope. Now what?

The first step is understanding the basic framework. At the risk of gross oversimplification, here are the basic standards of review you might encounter in state court, in declining order of deference.

  • Legal error: The appellate court undertakes de novo or plenary review, giving no deference to the trial court. This is a fresh look–and for the appellant, a fresh start.
  • Abuse of discretion: Most decisions about how a trial is run (e.g., questions about the admission of evidence) are committed to the trial court’s discretion. The appellate court will set them aside only if the trial court abused that discretion.
  • Factual error: The trial court generally gets the last word on questions of fact. Its findings will be set aside only if plainly wrong or without evidentiary support. Va. Code Section 8.01-680.
  • Area-specific standard: Some areas of law, like local government law or administrative law, have area specific standards like “fairly debatable.” I’m not a specialist and will get myself in trouble if I try to explain them, but they tend to be awfully stringent.

These are the ground rules of appellate review. You can think of them as a ladder.

The appellant always wants to climb the ladder. She wants to be talking to the court about legal error–in no small part because the appellate court, by nature, also wants to talk about law. A clever appellant  will select her appeal points and frame her assignments of error accordingly. She will use the standard of review section of her brief as an advocacy tool.

For instance, an appellant challenging an evidentiary ruling may have to concede that an abuse of discretion standard applies–but she will remind the appellate court that an error of law is always an abuse of discretion. Then she can step up the ladder to talk about the trial court’s legal mistakes. Similarly, to sidestep a bad fact finding, an appellant might challenge the trial court’s application of the law to the facts. “Application of law” sounds like something a court might review de novo. (That’s not entirely settled, but it’s still better than challenging a fact finding.) Again, the appellant will try to pull herself up the ladder.

The appellant has a relative advantage: she gets to pick the assignments of error. The appellee has to play on her turf.

At the same time, the appellee will work to slide down the ladder. For instance, he may take every opportunity to show the court that the appellee is re-arguing questions of fact that were determined below. An appellee arguing an evidentiary point might remind the court that the appellant challenges questions committed to the trial court’s discretion–that is, areas where either answer may be acceptable.

The appellee has his own advantage here: it is generally easier to slide down the ladder than it is to climb it. The appellate court will look to decide an issue on the narrowest possible ground, and a stringent standard of review will let it do so.

How does this work out in practice? Take a look at Gray v. Rhoads, 268 Va. 81, 597 S.E.2d 93 (2004), for an example.

George Somerville has put together an excellent outline on standards of review. It has helped to clarify my thinking on the topic, and has undoubtedly informed this post.

The State Bar’s Appellate Practice Committee has scheduled a free CLE for July 13th at 3:00-5:00 p.m. at the courthouse in Alexandria. The CLE will focus on oral argument and include an illustrative moot court. The timing is pretty convenient, because the Supreme Court will be hearing writ arguments in Alexandria the following day. And the price is right.

On the downside, the CLE is called a “symposium.” I find that weirdly intimidating. Also, my toga is at the cleaners.

That said, I attended one of the group’s CLEs last year. It was excellent. I would expect no less here–especially since my colleague, Monica Monday (a very experienced oralist in her own right) is organizing the event. Contact her at monica_monday@gentrylocke.com if you are interested. Registration is required.

For years, the Supreme Court of Virginia has enforced Rule 5:25, its contemporaneous objection rule, with a rigor that has terrorized even the most careful appellants. But the Court recently handed down a gift to the folks in front of the “v” in Helms v. Manspile, 277 Va. 1, 671 S.E.2d 127 (2009), an opinion worth filing away in your appellate notebook.

Helms is the sort of adverse possession case that only a dirt lawyer could love. We’ll skip the facts, which involve fences and decades of mowing grass. At the close of evidence, the circuit court told the parties to submit written memoranda that included their closing arguments. The Helms’ memorandum argued, among other things, that they owned a disputed tract of land by adverse possession. The trial court disagreed, and entered an order ruling that they had not established their claim. The Helms’ counsel signed the order as “seen.”

The Helms appealed. The Manspiles argued that the Supreme Court should dismiss the appeal because they had not objected to the trial court’s ruling.

Citing Code Section 8.01-384, the Supreme Court held that the Helms had preserved their adverse possession argument. That statute provides that objecting once is sufficient to preserve an issue for appeal. The Court explained that, once a party has stated an objection, it will waive it only where the record affirmatively shows that the party has abandoned the objection, either expressly or through its conduct. The Court found that the Helms’ memorandum was “[c]learly” sufficient to preserve their right to appeal; the trial court was well aware of their arguments, which they neither withdrew nor waived.

The Court acknowledged Rule 5:25, but it held that Code Section 8.01-384(A) “is controlling over Rule 5:25, and we must apply the statutory provision.”

Why this decision is important:

  • Simply put, Helms makes it a little easier to appeal.
  • It expressly states that Code Section 8.01-384 is controlling over Rule 5:25, and explains that, once stated, an objection will not be waived unless withdrawn or abandoned.
  • It shows that simply endorsing an adverse order as “seen” is not enough to expressly waive an objection.

But before you rely too heavily on Helms:

  • Note that the opinion does not discuss the Court’s scarier preservation of error cases, such as Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d 555 (2004), which arguably make it necessary to object twice, at least in certain contexts.
  • Why not head off the whole waiver argument by endorsing adverse orders more carefully? It does not take much effort to sign an order “seen and objected to for the reasons stated in the pleadings, memoranda, at on the record at oral argument,” or to recite your objections on the face of the order. And it avoids risking an argument with some of the Court’s procedural sticklers about whether you actually objected to the trial court’s ruling but failed to make an exception (which Code Section 8.01-384 allows), or whether you mentioned an abstract principle of law but never actually objected to the ruling below. I’ve seen these discussions at writ arguments, and they aren’t pretty.