Longtime readers know that I’m a huge fan of oral argument. Giving counsel a chance to address the Court’s questions before the decision conference strikes me as vital.
But for obvious reasons, recent events have complicated courts’ efforts to hold argument.
Chief Justice Lemons likes to say that an advocate develops three oral arguments in each case: the one they planned to give, the one they actually gave, and the one they wish they’d given.
Continue Reading Practical Legal Writing from the VTLA Annual Convention
The brief in opposition is one of the great underappreciated joys of Virginia appellate practice. It comes at the writ stage, when we’re just trying to convince the Supreme Court that it should/should not grant a petition for appeal. We’re not necessarily arguing the merits. Sometimes, the petitioner will not yet have hired specialist appellate counsel. Even when they do, some nominal appellate lawyers fail to appreciate this distinction.
Raffi Melkonian, an appellate lawyer from Texas and the dean of #appellatetwitter, has been working on what he considers the hardest problem at oral argument: the judge who has misunderstood something and is angry about it.
Confession time: I have a strong prejudice against the default writing style at most BigLaw firms. I’d like to think that my intolerance is mostly justified, but I recognize that it’s at least partly unfair.
As I’m writing this, I’m attending the VBA’s Appellate Summit, a fantastic CLE that comes around every three years. This year, the appellate council made asked me to moderate a 50-minute panel about brief writing. They won’t make that mistake again! Thankfully, the outstanding–dare I say heroic?–contributions of panelists Judge Robert Humphreys, Don Jeffrey, and Elbert Lin saved the session from disaster (nothing could save it from my dad jokes). It turns out that a panel that good can moderate itself.
Over the weekend, Official Friend of De Novo(TM) Ross Guberman posted a challenge on Twitter: Who could come up with a fresh way to convey the idea that opposing counsel is on a fishing expedition?
Continue Reading In Which the Author Goes Hunting and Very Nearly Catches a Woozle
We spent last post complaining about the difficulty of landing an assignment of error in the Goldilocks Zone. When I bring this up in real life, the response is usually that the Court solved this problem with Findlay v. Commonwealth, 287 Va. 111, 752 S.E.2d 868 (2014) .
Binding assignments of error are a disaster, which is probably why Virginia is one of only eight states that still require them.*
By way of background, Rule 5:17(c)(1) requires that
So we decided to send Jack to sleepover camp this year. You remember Jack, right?
Well, he’ a little older now. This is the first year that he’s eligible for camp, and he’s really been looking forward to it. We’ve been sending him letters every day, and we include the sports section from the local paper so he can keep up with the World Cup.
On Friday, about a week after dropping him off, we received his first letter:
Now, that letter might strike you as a little whiney (with a slight undercurrent of seething rage). Maybe you’re annoyed that I even made you read it in the first place. But you know what? It didn’t bother me when I read it for three reasons.
First, I know Jack pretty well, so I was prepared for something like this. He is, shall we say, an enthusiastic rule follower. When we watch soccer games, Jack doesn’t cheer for a team. He cheers for the referee.
Second, I love Jack unconditionally. So there’s that.
Third, I read and write legal briefs for a living. I’m used to bellyaching. Jack’s letter is maybe the third bitchiest thing I’ve read this week. Maybe.
Which raises the question: Is complaining effective advocacy? Probably not; your judges certainly don’t think of you like I think of Jack, and even he’s not making many friends in this post. (Which is more than a little unfair to him. Jack is a cool little guy.)
I’m not alone in this opinion. Ross Guberman surveyed a bunch of judges, and they gave him a list of terms that annoyed them:
Get the little man a thesaurus, and some of these show up in Jack’s letter.
Although I will admit I was surprised to see “without merit” on the list–it strikes me as pretty anodyne. A quick Lexis search said that the (very civil) Supreme Court of Virginia has used the phrase “without merit” in 1,465 opinions, and “disingenuous” in 19. When I asked Ross about this, he suggested that the objection has less to do with tone, and more to do with tedium.
That’s fair. The phrase can get old. Imagine if your life was spent reading that things lack merit 20 times a day.
As a service to the judiciary, then, here are some other ways to say “without merit;”
And, of course, the classic:
httpss://www.youtube.com/watch?v=Z1bbxzoG5Ek