The Court of Appeals handed down Theologis v. Weiler today, a fun opinion in a defamation and business-conspiracy case. The whole opinion is highly recommended. Summary below, but here are the points of greatest interest to appellate practitioners:
Here’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
Handling 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
People 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
It’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 have been all but worthless. Over the past 25 years, the Court has issued something like 18 opinions or orders related to petitions for rehearing, which is well under one a year. I didn’t think much more of petitions for rehearing at the writ stage.
A pair of recent articles make a fairly compelling case that I was wrong.
The first, a piece by Peter Veith in Virginia Lawyers Weekly (subscription required), reports on a presentation that Chief Justice Kinser, Justice McClanahan, and Judge Chafin recently spoke at a Virginia State Bar Solo and Small-Firm Practitioner Forum in Abingdon.
As Vieth notes, that talk came just days after the Court had agreed to hear appeals in two high-profile cases that were initially rejected by the Court. It granted petitions for rehearing in both the Virginia Tech shooting case and the dissolution of The Disthene Group, Inc. (Full disclosure: our firm is involved in other matters concerning The Disthene Group, but is not handling this appeal.)
Anecdotally, I undertand that other lawyers have also been having some luck with petitions for rehearing at the writ stage. Justice Mims gave Steve Emmert credit for successfully using them when he spoke at the VTLA a few years ago.
Anyway, as Vieth reports, Chief Justice Kinser and Justice McClanahan suggest that a petition for rehearing “is nearly always worth a try.” That’s because a petition for appeal is submitted to a panel of three or four justices. A petition for rehearing, by contrast, is circulated to the entire Court. Since you only need to convince a single justice to have an appeal granted, it’s better to share your arguments with seven justices than three.
In fact, Vieth quotes Justice McClanahan as saying: “I can’t think of any reason not to [seek rehearing] if you believe you have a reason to do it.”
I think that Justice McClanahan is correct. I also think that, if you are filing a petition for appeal in the first place, then you should “believe that you have a reason” to file a petition for rehearing.
Going forward, I’ll be filing petitions for rehearing as a matter of course in cases where my initial petition for appeal is unsuccessful.
But petitions for rehearing at the merits stage are another matter altogether, right?Continue Reading Rehearing Aid? Supreme Court of Virginia Warms Up to Petitions for Rehearing
Here’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 rules provide some relief from this problem, as both allow for entry of an appelable partial final judgment. See Fed. R. Civ. P. 54(b); Va. Sup. Ct. R. 5:8A.
But what’s a plaintiff to do when partial final judgment is not available?
Well, some get creative and dismiss the remaining claims with or without prejudice, thereby creating a final, appealable judgment–they hope. We discussed some of the potential problems with this approach a few years back, calling it the “finality trap.”
Bennett Evan Cooper has a short piece on this phenomenon in the Fall 2012 issue of the ABA Appellate Practice Committee Newsletter, called “‘Manufactured Finality’ and the Right to Appeal in Federal Courts.”Continue Reading The Finality Trap Revisited
I’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
Our 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
A 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 read on the device.
But iPads have much more to offer lawyers. In fact, Kristian Brabander of McCarthy Tetrault is in the midst of a huge, possibly multi-year trial, and his entire trial team–even the really old senior lawyers–is using the iPad.
Kristian graciously agreed to do a guest post about his experience:
I have been a fan of the iPad since its inception. In fairness, I have been an Apple fan since, well, Apple. But the iPad really has changed things. Where I used to carry a briefcase or trial bag on wheels everywhere I went, I now carry only my iPad (and sometimes an accompanying Bluetooth keyboard). At this point most litigators will think: that’s all fine and dandy for everyday purposes but what happens when you get to trial?
The answer, as I have recently discovered, is that the iPad is every bit as useful as you hope it could be. Just as with anything else, however, it requires a bit of planning. The results are then spectacular.
I am currently involved in a massive civil trial. It is likely to last over a year and possibly more than two. The stakes are very, very high (even by whatever standards you use) and there are between 20 and 40 lawyers in the courtroom every day. I am only one of a team of lawyers representing a big commercial client.
Each member of our senior trial team is equipped with an iPad in court — and nothing else. (In fairness, this being a really big case, we also have a junior lawyer equipped with a laptop and an Internet connection to our document management system back at the office, just in case.) No huge collections of binders of documents, no stacks of note pads. This includes the really senior senior trial team members, the guys who still say things like, “Please take a letter” into a dictaphone.Continue Reading Guest Post: Trial by iPad
I’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 at the Supreme Court of Virginia. I excused myself to use the restroom after an argument and discovered that you are not allowed back in the Court until after the argument is finished. I had to wait outside the courtroom and as soon as the doors opened, naturally the next case was mine.
Yikes! Experienced SCV advocates know that it’s critical to factor the Bathroom Rule into your argument prep. The bailiffs will literally lock the courthouse door.
Collette is also quite frank about how intimidating she found the Court, and about the sense of awe that she had about the experience.
Overall, she wrote a nice, feel-goody piece. I’ve always liked the way that writ arguments–and especially the annual traveling writ panel day–expose a range of lawyers to the Court, and there is something neat about hearing lawyers’ reactions to their first shot at appellate advocacy. This stuff is fun, after all.
But then I read the second article: the Curmudgeon’s Breakfast with Easterbrook.Continue Reading The Bathroom Rule and Other Reasons to Choose Experienced Counsel