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
By Jay O'Keeffe on Posted in Appellate PracticeHere’s a very basic, very depressing rule of thumb: roughly nine out of ten cases get affirmed. The exact figures vary by court, and we can certainly debate the utility of macro and micro figures, but the basic disparity is there. Part of it has to be a result of the appellee having a decent case;… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeHandling appeal and suspension bonds correctly is one of the more technical but nonetheless important parts of prosecuting an appeal. We often get questions about this stuff. In fact, a discussion on suspension bonds sprang up on the VTLA listserv last Friday. So it’s important to talk about bonds, even they ultimately prove goatless in comparison to the normally thrilling… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticePeople sometimes send us their final orders for review before submitting them to opposing counsel or the trial court. We’re always glad to help, but I find that I’m often giving the same 3-5 comments over and over again. In fact, those 3-5 comments are probably the only remotely intelligent things that I have to say on the subject. Here they… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeIt’s not often that I admit that I’ve been wrong (because I’m not often wrong) but I’ll admit it here: I have been mistaken in my approach to petitions for rehearing in the Supreme Court of Virginia. For a long time, I didn’t take petitions for rehearing seriously. Statistically, petitions for rehearing in merits cases… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeHere’s a common problem that plaintiffs face: they assert multiple claims and the trial court dismisses one, but not all, of them before trial. That can be especially painful when the dismissed claims form the heart of the suit, and it’s not worth the plaintiff’s time to pursue the remaining claims without them. State and federal… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeI’m having a real problem with this blog post. As you’ve probably heard, Justice Scalia and Bryan Garner have a new book out, Reading Law: The Interpretation of Legal Texts. Inveterate Garnerphile that I am, I grabbed a copy as soon as it was available and dove in. And . . . meh. It’s been weeks (or… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeOur last post discussed Brandon v. Cox. The basic question in Brandon was whether an appellant had preserved an argument for appeal by raising it in a motion to reconsider that she filed but did not notice for hearing. The Supreme Court of Virginia held that she hadn’t, which seems like a reasonable ruling . . . .… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeA few weeks ago, Rob Dean and I hosted a CLE about using iPads in a law practice. We had a blast; Apple technology is famously fun to use. More to the point, state and federal appellate jurists are increasingly integrating iPads into their workflow. It’s worth learning to use this stuff if only to understand how judges are experiencing the briefs they… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeI’ve enjoyed reading two short pieces in the past few days. The first was a charming article that Shelly Collette wrote about her experiences as a young lawyer appearing in two cases before the Supreme Court of Virginia. She writes very honestly about the experience–case in point: I was almost physically ill my first time… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeThe Virginia State Bar and the Virginia Bar Association teamed up last week to present a stellar appellate CLE in Richmond. The day started out with a panel of the chief jurists from Virginia’s appellate courts–Chief Justice Kinser of the SCV, Chief Judge Traxler of the Fourth Circuit, and Chief Judge Felton from the CAV–and… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeI’m fresh from the VTLA’s annual meeting at the Greenbrier, in all its seizure-inducing, Technicolor grandeur. The event is always terrific and this year’s slate of speakers did not disappoint. Appellate topics included a panel discussion on petitions for rehearing and Justice Millette’s observations from his time on both the trial and appellate bench. Focusing… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeJustice Sonia Sotomayor dropped by Sesame Street the other day to hear a dispute between Goldilocks and Baby Bear. Enjoy. Thiis may be as close to cameras in the SCOTUS courtroom as we are going to get: … Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeEarlier this week, we hosted the Virginia State Bar Appellate Section’s CLE on practicing before the Court of Appeals. The event was a success, but its timing was unfortunate: as James Markels noted in a comment to an earlier post, Senator Creigh Deeds just introduced SB 630, a bill to abolish the CAV. I am told… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeAbout a year ago, I did a holiday post apologizing for the recent lack of substantive posts, and explaining what I’d been doing instead. This year, I decided to make that sort of post a De Novo holiday tradition, for two reasons. First, it just gets really busy around here during the holidays. Second, redoing the post lets me reuse this… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeA piece in the Baltimore Sun last week makes the case that the traditionally conservative Fourth Circuit is becoming increasingly progressive. The primary support for the argument appears to be: Results in about a half dozen recent opinions, including a series of defendant-favorable Fourth Amendment holdings and the court’s rejection of challenges to the Affordable Care Act; The fact that… Continue Reading
By Jay O'Keeffe on Posted in Appellate Practice,Oral ArgumentWe have a real treat for you today. A major highlight of last week’s AJEI Summit was a surprise appearance by Chief Justice Roberts, who dropped in on our Thursday-night reception. In person, the Chief is ever so dreamy, though perhaps not quite as tall as you might have expected. (Shortness is endemic in appellate circles; most people… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeLoyal readers are no doubt wondering what happened to last week’s post; I know that many of you plan your week around the sunbursts of appellate goodness that rarely regularly shine forth from these pages. The short answer is that it’s hiding. Last week I did a guest post at Chris Hill’s blog, Construction Law Musings, about… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeI’m a sucker for a good standard of review. As the Curmudgeon likes to say, the standard of review decides cases. And sometimes, unfortunately, that standard of review is abuse of discretion. See, e.g., John Crane, Inc. v. Jones, 650 S.E.2d 851 (2007) (affirming trial court’s exercise of discretion; accidentally starting inexorable urban legend about expert disclosures). What… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeA few weeks ago, we welcomed Virginia’s new justices and appellate judges with a piece about the five worst parts of Virginia law. In hindsight, that was probably a little rude: “Welcome to your new job. Here’s why it sucks.” To make amends, here is a list of the five best parts of Virginia law (or, maybe more precisely, practice): Oral Argument.… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeOn Friday, Virginia appellate lawyers breathed a sigh of relief as the powers that be filled a crucial vacancy–and not a moment too soon. I think I speak for all of us when I say that we congratulate Jurgen Klinsmann on being named the 35th coach of the U.S. National Team, and look forward to his tenure. Also, the General Assembly elected some judges… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeAccording to a piece on the WSJ’s opinion page this morning, Bond v. United States may be the most important SCOTUS opinion of the year. David Rivkin and Lee Casey read Bond’s unanimous reaffirmation of dual sovereignty as an existential threat to the Patient Protection and Affordable Care Act (or “ObamaCare,” depending on your political perspective). We have… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeApologies for the light blogging recently. I’ve been tied up with other pursuits–which, as its turns out, may inure to your benefit: Last week, I spent some of my (increasingly limited) nonbillable time on a webinar for Virginia CLE called “Blogging 101: Legal, Practical, Ethical, and Evidentiary Issues for Lawyers and Clients.” I learned that the webinar is a… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeJustice Mims stole the show at this year’s VTLA convention, sharing his reflections on his first year on SCOVA a year to the day after he was sworn in. For some reason, most speakers at the convention chose to focus on the unpleasant, pre-appeal formalities–all that stuff that happens in the trial court with the evidence, the witnesses, the shouting, and the jurors. Not… Continue Reading
By Jay O'Keeffe on Posted in Appellate PracticeThe VTLA’s annual convention starts this afternoon at the Homestead. In a remarkable error of judgment, they’ve invited me to speak on a panel about statements of facts in appellate briefs. It should be a fun talk. Roger Creager is moderating the panel, and David Hargett and Steve Garver are the real other panelists. I’m excited… Continue Reading
