De Novo: A Virginia Appellate Law Blog

VLW Blog: Mims to Get Virginia Supreme Court Seat

Jay O'Keeffe — Tue, 09 Mar 2010 08:29:21 -0500

Our friends at the VLW Blog are reporting that William C. Mims will replace departing Justice Barbara Milano Keenan on the Supreme Court of Virginia. Mims was introduced to a joint meeting of the House and Senate Courts of Justice Committees. Each committee must certify a candidate before that candidate can be considered by the respective houses. Mims was the only person interviewed for the SCV opening, removing any doubt that he would replace Justice Keenan.

A quick Wikipedia check (I don't pretend to know this stuff) shows that Mims is a Republican who's served in both the House of Delegates (1992–98) and the Senate (1998–2006). He was Bob McDonnell's Chief Deputy Attorney General. When McDonnell resigned as Attorney General to campaign for governor in February 2009, the General Assembly picked Mims to finish McDonnell's term. Mims did not run for a full term as Attorney General.

Update: SCOTUS Grants Cert in Snyder v. Phelps

Jay O'Keeffe — Tue, 09 Mar 2010 08:10:11 -0500

In September, we wrote about Snyder v. Phelps, the funeral-picketing case out of the Fourth Circuit.

Yesterday, the Supreme Court granted cert in Snyder. The case is getting plenty of attention from the mainstream media, as well as some treatment on De Novo favorites SCOTUSblog, the Volokh Conspiracy (which had roughly a bajillion posts about the case yesterday), and Above the Law.

The Court will consider Snyder in the fall. This should be interesting. Stay tuned.

Roberson v. Commonwealth, or Will Somebody Please Answer Justice Koontz's Question?

Jay O'Keeffe — Sun, 07 Mar 2010 19:37:56 -0500

One of the themes that we harp on here at De Novo is the importance of answering the Court''s questions. That usually comes up in oral argument, but sometimes, the Court is so kind as to direct the parties to brief certain issues.

That was the case in Roberson v. Commonwealth, handed down last session. Roberson and its companion case, Ghameshlouy v. Commonwealth, address some interesting but fairly esoteric questions of appellate jurisdiction, procedural defects, and waiver.

And in Roberson, it sounds like the Court really wanted to talk about waiver. At issue in the case was who was the proper appellee, the Commonwealth or the City of Virginia Beach. In its order granting the appeal, the Court directed both entities to appear, and specifically directed the City to address the question of whether it had made an appearance before the Court of Appeals. That could bear on whether it had waived its objection to the any procedural defect in the notice of appeal.

Justice Koontz, writing for the Court, never gets to answer this question. He winds up affirming the Court of Appeals, which had dismissed Roberson's appeal, albeit for a different reason. Fair enough. But he begins his discussion with this remarkable footnote:

Despite our direction that this issue would be addressed in the appeal, Roberson did not file a reply brief responding to the arguments of the City and the Commonwealth. Moreover, when during the oral argument of this appeal the Court attempted to elicit the views of Roberson’s counsel on the question of the Court of Appeals’ jurisdiction over the appeal and, if so, whether the City might have waived its objection to not being named as the appellee in the notice of appeal, Roberson’s counsel stated that he did not "think it was a waiver question." Rather, Roberson continued to maintain that the issue was one of "fairness" as to whether he should have been required to determine that the City was the prosecuting authority by "ferreting out some piece of paper that says City on it."

Really?

When the Court asks a question at oral argument, it is giving you a gift. It is letting you in on its thought process, and giving you a chance to share your views. It's like the Court is making you a part of its decision conference.

When the Court identifies an issue in the order granting the appeal, so that you have time to research and brief the issue in advance, it's being so generous that my metaphor breaks down. Maybe they wrapped the gift up in a purple Cadillac full of money (which is, by the way, how one of my partners rolls).

You have to take those opportunities. It doesn't matter if you don't think it's a waiver issue--Justice Koontz might, and he gets to write the opinions.

Senate Confirms Justice (Now Judge) Keenan By 99-0 Vote

Jay O'Keeffe — Tue, 02 Mar 2010 16:08:50 -0500

Virginia Lawyer's Weekly reports that the U.S. Senate has unanmiously confirmed Justice Keenan for a seat on the Fourth Circuit. The Senate voted for cloture on her nomination this afternoon, then confirmed her by a 99-0 vote. Great news, and congratulations to the new Judge.

Now, about those other three vacancies . . .

Legal Writing Tips: I Am John Roberts and So Can You!

Jay O'Keeffe — Tue, 02 Mar 2010 08:06:24 -0500

Ross Guberman of Legal Writing Pro has a fun piece, Five Ways to Write Like John Roberts, that's worth checking out. In the essay, Guberman distills five writing lessons from Roberts's brief in Alaska v. EPA. Those lessons are:

Let your facts "show, not tell."
Add speed through short and varied transitions.
Add elegance and clarity through parallel constructions.
Add interest through short sentences, examples, and figures of speech.
End with a bang.

Sure, you've heard it all before. But Guberman's vivid discussion and well-chosen examples bring these points to life. And frankly, the quotation from Roberts's statement of the case alone makes the essay worth reading.

Keenan Nomination Watch: Virginia Senators Invoke McDonnell on Nominee's Behalf

Jay O'Keeffe — Fri, 26 Feb 2010 08:12:29 -0500

There hasn't been much news on Justice Keenan's nomination to the Fourth Circuit recently. But yesterday, the VLW Blog reported that Virginia's two Democratic Senators, Jim Webb and Mark Warner, invoked their Republican Governor, Robert McDonnell, in urging their Senate colleagues to act on her nomination.

According to the VLW Blog, Sens. Webb and Warner note that Justice Keenan has been a trailblazer for female jurists. She passed the Judiciary Committee by a unanimous voice vote in October. And, as further evidence of her bipartisan support, Webb and Warner point out that McDonnell had requested that she swear him in as governor.

That's an interesting point. There was some commentary on the interwebs to the effect that Justice Keenan was a "relative moderate" without a real track record on LGBT issues. To the author's way of thinking, she's ruled the correct way in two LGBT cases on the SCV, but only for procedural reasons.

Leaving aside the merits of that position, at least it sounds like there's general agreement that Justice Keenan calls balls and strikes. Isn't there something about "being an umpire" in her job description? Yes, I'm certain I remember reading that somewhere once.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

That's right. Thank you, Mr. Chief Justice.

All true. And to that I would add that Justice Keenan an excellent judge. It may be only marginally relevant to the political process, but she does a terrific job on the SCV and will do equally well on the Fourth Circuit. So let's get on with it.

Tips from Tommy, Part II: Recent SCV Clerk Shares More Thoughts on Brief Writing

Jay O'Keeffe — Thu, 25 Feb 2010 13:36:59 -0500

We're back with the second in our series of guest posts from recent Supreme Court of Virginia clerk and avid water skier Tommy Strelka. Today, Tommy shares some more things that his clerkship taught him about brief writing:

Ditch the hyperbole. Your appeal from your client’s sixth conviction of shoplifting probably does not amount to “a case of extreme jurisprudential and meritorious weight.” Don’t oversell. You will lose credibility.
Use the correct number of assignments of error. A petition for appeal with forty-five assignments of error is either a petition for appeal from a death penalty sentence or it is a poorly written brief. Most cases on appeal have only a handful of truly relevant and contested issues of law. You can obscure the main thrust of your argument by addressing far too many issues.
Craft your assignments of error with care. You define the scope of your client’s appeal. When you submit an assignment of error or question presented, you are effectively setting the bounds of your argument. But be sure not to paint yourself in a corner. Every word matters in an assignment of error. Ask yourself, “What is the real legal issue at the heart of my case?” Boil it down to a single statement and write it down. If you knew nothing about this case and another attorney read this statement, would that attorney still understand the argument of law?

I'm enjoying Tommy's guest posts, and I hope that you are as well. Clerks have the ear of justices, and they are a primary audience for our briefs. It helps to know what they find persuasive and annoying.

Also, I like the goofy pictures he comes up with.

Supreme Court of Virginia February Argument Docket

Jay O'Keeffe — Mon, 22 Feb 2010 10:40:56 -0500

The Supreme Court of Virginia is in session this week. Here's the argument document, which includes four criminal and thirty-four civil appeals. Good luck to everyone who is arguing.

Also, the Court will be handing down opinions on Thursday, instead of Friday. (Mental note: check Emmert's website on Thursday.) Friday will be devoted to hearing writ arguments rescheduled from the most recent snowpocalypse. Those writ arguments had originally been pushed back to March 31, so this is a positive development.

Tips from Tommy, Part I

Jay O'Keeffe — Wed, 17 Feb 2010 17:51:21 -0500

Welcome to De Novo's inaugural guest post. Today, Tommy Strelka shares a few things that he learned during a recent clerkship with the Supreme Court of Virginia. This will be the first of several visits from Mr. Strelka, who has promised to provide us no fewer than ten--TEN!--tips.

Tommy is currently a trial lawyer at Strickland, Diviney & Strelka in Roanoke. A Mary Washington and Richmond Law grad, he's also clerked for Judge Turk in the Western District of Virginia. The opinions and practice tips expressed in this post are solely those of the author. They do not represent the opinions of any member of the Supreme Court of Virginia or any other Court--or, for that matter, any right-thinking person.

And now, a word from Thomas:

Clerking for a Justice of the Supreme Court of Virginia was a wonderful experience that opened my eyes to appellate practice. One of my favorite aspects of the job was the knowledge that many of the attorneys who filed briefs and argued before the Court were bringing their A-game. While skill, raw talent, and experience levels varied greatly, most attorneys stepped up to the plate and gave it their best shot. That best shot might have been an incredibly polished and persuasive brief or it might have been the world’s greatest thirty-second rebuttal. But no matter what form their work product manifested, the good attorneys always oozed preparedness. With that tenet in mind, I have compiled a list of traits or practices used by the attorneys who I felt, knocked it out of the park.

On Brief

Acknowledge Weaknesses. In their quest for appellate justice, some attorneys spend a great deal of time waving their banners and thumping their chests. They will proudly file a brief that is far too one-sided. Even the best arguments have holes. If an attorney consistently pronounces the strengths of his or her argument while glossing over the weak points, her brief can come across as disingenuous and uninformed. That brief does not reflect the case, only a few facets of it. Leave the one-sided claims to the folks in advertising. Better briefs illuminate the entire case by spotlighting the argument’s weak points while simultaneously explaining how these points are not nearly as detrimental as the current case law would have the Court believe. The best briefs do this while acknowledging and attacking the arguments of the opposing party.

Be Aware of the Size, Ratio, and Placement of Your Arguments. Try to think of your brief as a used car lot. Your six worthwhile legal arguments are six cars, any one of which the Court could decide to buy. But some of your cars have problems. Your hearsay model has a broken reliability clutch and all three of your fraud roadsters have serious issues. But you also have a shiny new Lamborghini Negligencio fully equipped with a hand-built V12 Sufficiency of the Evidence Engine. This is the car that you showcase. It should sit at the front of your lot, bathed in spotlights, while the others remain neatly displayed some distance away. Your best argument should be similarly displayed. Highlight it with size and prominence. Make it leap off of the page. If your case has six arguments, then these arguments should be prioritized. If all of your arguments are crafted and presented in the same fashion, your stronger contentions may suffer as they bear the same packaging as your weakest contention. Proudly assert your best argument. Keep it at the front of your brief and make sure your thoughts and theories are clearly stated on the page.

That's all for today. Stay tuned for further tips from Tommy.

Differences Between Trial and Appellate Practice

Jay O'Keeffe — Thu, 11 Feb 2010 11:12:48 -0500

As you've probably gathered by now, my job isn't exactly rocket science. I read some pleadings, read some transcripts, read some statutes, read some cases, and then shout an argument into a dictaphone to be transcribed in 14-point type. In between, I drink lots of coffee.

My colleagues who do "real work" here at the Firm on the Move (TM) sometimes give me a hard time about this. But there are legitimate differences between trial and appellate practice, and the two disciplines require different approaches.

A trial judge is trying to get to the right result in one specific case. He will get there by making fact findings and ~~excluding all of your good evidence~~ discretionary rulings. Over the lifespan of a case, trial lawyers will have numerous opportunities to present their theory of the case to the court. Further, trial courts are bound by precedent; for them, the law is pretty much set. Accordingly, legal argument in a trial court will proceed by analogy, applying and distinguishing existing cases, usually on the facts. Trial judges want to hear about the facts and fairness. They want to know what the law is, not what it should be. And they don't set policy

Appellate courts set policy:

The Wise Latina has a point. Appellate courts don't just decide cases one at time; because their decisions are binding on courts and panels of coordinate or lower jurisdiction, they have to formulate rules of law that will work fairly going forward. And at least in theory, they have little room to work with the facts. By the time your case goes up on appeal, the facts are settled. Depending on the result below, the standard of review will essentially dictate that one side or the other will win the fact arguments. A key appellate practice skill is accepting those facts, and working with or around them.

Finally, and perhaps most importantly, a lawyer has a very limited opportunity to convince an appellate judge of her theory of the case. Appellate briefs are subject to strict word and page limits, and oral argument time is strictly limited. Every word counts.

So what does that mean for a practitioner?

Know your audience, and tailor your presentation accordingly;
Argue facts and fairness in trial court;
Argue law and policy in appellate courts;
Remember that you have very little time to make your point to an appellate court, so every word counts.

Enough of that. Time for a coffee break.

February Writ Arguments Postponed

Jay O'Keeffe — Tue, 09 Feb 2010 13:46:56 -0500

Steve Emmert reports that today's writ arguments before the Supreme Court of Virginia have been postponed. The Chief Staff Attorney's office advises that appellants are being given the choice of arguing by telephone tomorrow, waiving oral argument, or arguing in person at a later date. (As a fairly obvious practice point, it's never a good idea to waive a writ argument and I have trouble imagining a situation in which doing one by phone makes sense.)

The next writ panel is scheduled for March 31.

Fourth Circuit Adopts Last-Served Defendant Rule; Plaintiffs Despair

Jay O'Keeffe — Thu, 04 Feb 2010 17:13:41 -0500

Civil procedure nerds and defense counsel, rejoice! (I am looking at you, Travis.) In Barbour v. International Union, a fun--if dense--opinion handed down on Thursday, the Fourth Circuit adopts the "last-served defendant" rule for removal. Or in geekspeak, it takes a district court up on its invitation "to clarify whether the 'first-filed' 'dictum' in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992), means what it actually seems to say."

Short answer: it doesn't. But before we get there, the Fourth Circuit walks us through some removal case law, considers the extent to which earlier panel decisions are binding, and honors the nerdly virtues of close reading and careful research.

A quick refresher, for those of us who slept through civ pro: under 28 U.S.C. 1446, a defendant has 30 days in which to file a notice of removal. But what if there are multiple defendants, and they are served more than 30 days apart? That's what happened to the defendant unions in Barbour. All three defendants filed a joint notice of removal. They filed it more than 30 days after the first defendant was served, but less than thirty days after the second defendant was served, and before the third defendant was even brought into the case. Was the notice of removal timely?

Turns out there's a Circuit split on that point. The Fifth Circuit applies a "first-served defendant" rule: in cases involving more than one defendant, the thirty days starts running when the first defendant is served. The Fifth Circuit reasons that, since all served defendants must join in the removal petition, the failure of the first defendant to remove within 30 days defeats removal altogether.

The Sixth, Eighth, and Eleventh Circuits, by contrast, apply a "last-served defendant" rule. Those jurisdictions give each defendant 30 days in which to file a notice of removal.

By all appearances, the Fourth Circuit had found a middle ground. Footnote 3 in the McKinney opinion states that, if the first-served defendant does not petition for removal within 30 days of service, the case may not be removed. But if the first-served defendant does petition for removal within 30 days, a later-served defendant may join in the petition or move for remand.

Seems pretty clear-cut, right? Here, the first defendant did not petition for removal within 30 days of service, so removal was not permitted.

No so fast.

Writing for the court, Judge (and former SCV Justice) Agee determines that the McKinney footnote is non-binding dicta--actually, in a flourish that ought to win him a sponsorship from Shephard's, he calls it "dicta citing dicta that is no longer good law." In fairness, other judges, including one who sat on the McKinney panel, had arrived at the same result. Further, a subsequent SCOTUS opinion, while not dispositive, undermines the validity of the McKinney footnote.

In that absence of statutory guidance or controlling caselaw, Judge Agee looks to basic fairness: a defendant is not involved in a lawsuit until she is served. It is fundamentally unfair to allow her procedural right to removal to be defeated by an earlier-served defendant's failure to act before she was even part of the case.

We therefore join the Sixth, Eighth and Eleventh Circuits in adopting the last-served defendant rule and hold that in cases involving multiple defendants, each defendant, once served with formal process, has thirty days to file a notice of removal pursuant to 28 U.S.C. § 1446(b) in which earlier-served defendants may join regardless of whether they have previously filed a notice of removal.

Barbour is well-reasoned, and it gets to the right result.

The fun in the case comes courtesy of Judge Hamilton, who sat on the panel that decided McKinney. He fires off a nasty dissent. Judge Hamilton points out (correctly) that a subsequent panel is not empowered to overrule an earlier panel's decision; only the Supreme Court or the Court of Appeals sitting en banc can do that. His dissent even takes a shot at the majority for eroding respect, collegiality, and uniformity in the Circuit by showing insufficient deference to the McKinney panel's decision. The majority fully engages the dissent's points and ultimately gets the better of the argument.

That's only half the decision. After resolving the removal issue, the court dives into preemption and determines that the district court lacked subject matter jurisdiction. But that's an issue for another post.

Takeaways from Barbour:

The Fourth Circuit follows the last-served defendant rule.
Barbour has a strong discussion of the binding effects of earlier panel decisions.
Only SCOTUS or the full Fourth Circuit sitting en banc can overrule an earlier panel's decision.
It is truly a glorious time to be a defendant in Virginia's federal courts. Between Barbour, Twiqbal and sons, and The Real Truth About Obama, the folks on the wrong side of the "v" are on a real tear in the Fourth Circuit. I'm definitely going to make sure that more of my clients get sued.

Finally, in case you've been wondering about the lack of activity around here, I dropped by Real Lawyers Have Blogs last week to do a Q&A. Yes, I really am that lame in real life.

Please Ignore Shapiro v. Younkin. There Is a Monster at the End of This Opinion.

Jay O'Keeffe — Fri, 22 Jan 2010 06:33:02 -0500

Last Friday, the Supreme Court of Virginia handed down a batch of eighteen opinions and two published orders. One of them, Shapiro v. Younkin, provides a lucid, well-reasoned treatment of the rules regarding transcripts and written statements of fact.

Please ignore it in its entirety. To paraphrase one of Caroline's favorite writers, there is a monster at the end of this opinion.

Background

At issue in Shapiro was whether the circuit court erred by dismissing a plaintiff's appeal from the general district court because the plaintiff had failed to secure a court reporter, in violation of the circuit court's rule requiring that a court reporter be present at the trial of all civil cases.

Shapiro brought a landlord-tenant suit against Younkin in general district court, proceeding pro se. He lost and appealed to the circuit court, where he also appeared pro se. The court's local rules required that a court reporter be present at all civil trials, and that a party appealing a GDC case arrange to have a court reporter present at the circuit court trial.

Shapiro failed to arrange for a court reporter, so the circuit court dismissed his appeal with prejudice. Later that day, Shapiro submitted a written statement of facts. The trial court declined to enter the statement. Instead, it wrote on the face of the document that the statement did not accurately reflect the events at trial, which were noted in the court's order.

[Are you still reading? Because there is a monster at the end of this opinion.]

Shapiro--still proceeding pro se--appealed to the Supreme Court. He argued that the dismissal of his case violated Code Section 17.1-128, which provides that the failure to secure a court reporter will not affect the proceeding or trial. He also claimed that the court violated Rule 5:11 by failing to certify his written statement of facts.

Holding

The Supreme Court agreed. It reversed the trial court's judgment and remanded the case, holding that the trial judge had violated both Code Section 17.1-128 and Rule 5:11.

Justice Millette, writing for the Court, had little trouble with the first point. The trial court's dismissal of the action pretty clearly runs afoul of Section 17.1-128's rule that the failure to secure a court reporter won't affect the trial.

As to Rule 5:11, the Court walked through the requirements of Rule 5:11(c) and (d), which govern the preparation of a written statement of facts. It explained that those rules exist "to provide an appellant a means to establish a record for appellate review without incurring the substantial expense of obtaining a transcript, which for some appellants may prevent their ability to appeal from an adverse judgment."

[Perhaps you do not understand. There is a monster at the end of this opinion.]

Under Rule 5:11, a trial judge is authorized to correct errors or deficiencies in the written statement on her own initiative. A trial judge may not, however, simply refuse to certify a proposed written statement of facts. The trial judge must try to create a record for appellate review that contains a fair statement of facts by making reasonable changes to the written statement, or it must certify how the record is incomplete. If all else fails, the proper remedy is to order a new trial so that a proper transcript or written statement can be prepared.

That all seems reasonable, doesn't it?

But then you try it yourself and . . . procedural default!

[I told you there was a monster at the end of this opinion.]

What You Need to Know About Shapiro:

Don't Believe a Word of It. All of the law in Shapiro is right, but it will lead you astray. From a practitioner's standpoint, the written statement of facts is a trap. For the statement to work, it needs to show that you raised your appeal points at trial--in other words, you get a second shot at a procedural default. And then you get a third shot: check out Rule5:11(c)'s crazy notice and presentation deadlines:

[W] ithin 55 days after entry of judgment a copy of such statement is filed in the office of the clerk of the trial court. A copy must be mailed or delivered to opposing counsel accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing . . .

Scheduling Difficulties Will Arise. That 15-20 span inevitably will fall over a holiday. The court will be open for a half day during the entire five-day window. Opposing counsel will be in trial, and your judge will be in Grand Cayman. Luckily, the the trial judge can endorse a statement signed by all counsel "forthwith upon its presentation to him," and the trial court's signature on the written statement will count as certification that the procedural requirements of Rule 5:11 have been met. So maybe you can finesse this and do it all by mail . . .
Opposing Counsel Will Object. But then you get yet another shot at a procedural default: opposing counsel objects. Objection? Now what? According to the Rule:

Notice of such objection specifying the errors alleged or deficiencies asserted shall be filed with the clerk of the trial court . . . within 15 days after the date the notice of filing the written statement (subsection (c) of this Rule) is filed in the office of the clerk of the trial court or, if the transcript or written statement is filed before the notice of appeal is filed, within 10 days after the notice of appeal has been filed with the clerk of the trial court.

Aack! And the trial court needs to rule within 10 days of the objection--10 days?! AACK!! (The trial court does have the ability to correct errors in the transcript after notice and a hearing, so long as the record remains in the trial court.) All of which leads to O'Keeffe's First Law of Virginia Practice:
If it's worth going to court, it's worth getting a court reporter. Always. Consider it a cost of doing business. If something isn't in the record, then it never happened. If it never happened, then why did you bother going to court?

If you take nothing else away from our time together, please remember this: for the sake of your lovable, furry old ~~malpractice carrier~~ appellate counsel, please hire a court reporter. And let's just pretend this whole Shapiro thing never happened.

Supreme Court of Virginia Releases January Opinions

Jay O'Keeffe — Mon, 18 Jan 2010 08:04:54 -0500

On Friday, the Supreme Court of Virginia handed down 18 published opinions and two orders. As always, Steve Emmert has a witty write-up (along with a new photo on his web page--looking good, Steve). The VLW Blog also discusses some of the highlights. The bulk of January cases are either criminal appeals or habeas proceedings; I haven't done the math myself, but Emmert breaks it down to 15 criminal appeals/habeas proceedings and 5 civil matters.

As you might have noticed, I wasn't exactly on top of this breaking news--or much of anything else that happened over the past week, for that matter. Here's my excuse:

From January 8-14, I attended the the National Trial Advocacy College at the University of Virginia. It's off-topic, so I won't bore you with the details, but it was probably the best educational experience of my life. The faculty was spectacular, the exercises were demanding, and the feedback was brutally honest. Further, I got to spend a week with dozens of talented and motivated lawyers working to get better at their job. That was fun. It was also a neat reminder of how lucky we are to do what we do.

But it gets better. I capped that off with an oral argument before the Supreme Court on Friday. For obvious reasons, I can't discuss the case. But I really treasure the opportunities I get to argue before the Court. Oral argument is the reward for all of the hard work you put into briefing and preparing (although somehow, thinking of it that way doesn't make me any less nervous). Different people go to law school for different reasons. If you ask me, the coolest thing you can do with a JD is to have a conversation with the Commonwealth's highest court about what the law is (or should be), and help them get to a fair result that will justly govern future cases. It was a brilliant end to a perfect week.

I stuck around on Friday to hear the rest of the arguments. Here are some observations and practice pointers:

Open clearly. I've had the opportunity to listen to a lot of oral arguments. Nothing is more frustrating than an opening that keeps you in suspense while the appellant drones on about facts and law out of context. Hunton's Mike Shebelskie solved this problem with a perfect appellant's opening: "May it please the Court, my name is Mike Shebelskie. I represent BigCorp. The trial court's judgment should be reversed because ___________." Sexy? No. But it's crystal clear and perfectly efficient. It's also polite, in that Shebelskie introduces himself. I wish people would memorize this formulation and use it unless they have an absolutely killer opening.
Slow down. I speak quickly when I get excited, too. Get over it. No one can follow a legal argument delivered by the Micro Machines guy.

Don't interrupt the justices. Ever. Chief Justice Hassell had to interrupt a lawyer who kept trying to talk over Justice Keenan. He politely instructed the lawyer to let Justice Keenan finish. Yikes. The goal is to persuade, not berate.

Hope that salvaged a little value for the post.

Supreme Court of Virginia January Argument Docket

Jay O'Keeffe — Thu, 07 Jan 2010 13:04:32 -0500

Here's the merits argument lineup for next week in the Supreme Court of Virginia. Civil cases follow after the jump.

We'll be in Richmond on Friday. Give me a shout if you will be in town and would like to grab lunch.

Criminal Cases

Record Number	Style of Case	Appellants' Counsel	Appellees' Counsel	Appealed From
090526	Segretto v. Commonwealth	Kevin L. Leahy; Weimer & Boyce	William C. Mims, Attorney General; Leah A. Darron, Senior Assistant Attorney General	Court of Appeals of Virginia
090813	Neria, etc. v. Commonwealth	Patrick M. Blanch; Elders & Zinicola	William C. Mims, Attorney General; Jennifer C. Williamson, Assistant Attorney General	Court of Appeals of Virginia
090979	Jones v. Commonwealth	Cassandra M. Hausrath, Assistant Public Defender	William C. Mims, Attorney General; Leah A. Darron, Senior Assistant Attorney General	Court of Appeals of Virginia
091015	Fullwood v. Commonwealth	Charles E. Haden	William C. Mims, Attorney General; Jennifer C. Williamson, Assistant Attorney General	Court of Appeals of Virginia
091031	Friend v. Commonwealth	Joseph A. Sadighian, Senior Assistant Appellate Defender	William C. Mims, Attorney General; Benjamin H. Katz, Assistant Attorney General	Court of Appeals of Virginia
091120	Ghameshouly, etc. v. Commonwealth	Justin W. Esworthy, Assistant Public Defender	William C. Mims, Attorney General; Eugene Murphy, Senior Assistant Attorney General; Mark D. Stiles, City Attorney; Christopher S. Boynton, Deputy City Attorney; Natalie P. Mann, Assistant City Attorney	Court of Appeals of Virginia
091299	Roberson v. Commonwealth	John D. Hooker, Jr.; Steven P. Letourneau; Hooker & Associates	William C. Mims, Attorney General; Virginia B. Theisen, Senior Assistant Attorney General; Mark D. Stiles, City Attorney; Christopher S. Boynton, Deputy City Attorney; Natalie P. Mann, Assistant City Attorney	Court of Appeals of Virginia
091177	Harris v. Commonwealth	Joseph T. Brown; Rebecca K. Glenberg	William C. Mims, Attorney General; Susan M. Harris, Assistant Attorney General	Court of Appeals of Virginia

Civil Cases

Record Number	Style of Case	Appellants' Counsel	Appellees' Counsel	Appealed From
091376	Weatherbee v. Virginia State Bar, etc.	Michael L. Rigsby	William C. Mims, Attorney General; Maureen Riley Matsen, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General; Stephen M. Hall, Assistant Attorney General	Circuit Court of Arlington County Horne, Ledbetter, and Vieregg, Judges
091524	Shurtz v. Virginia State Bar, etc.	Michael L. Rigsby	William C. Mims, Attorney General; Christy W. Monolo, Assistant Attorney General	Circuit Court of Arlington County Kemler, Ledbetter, and McGrath, Judges
090041	Hollingsworth v. Norfolk Southern Railway Company	Raphael E. Ferris; Lenden A. Eakin; Richard M. Thomas; Gregory Tobin; Robert W. Schmieder; Ferris, Eakin & Thomas; Pratt & Tobin	Bradley W. Fitzgerald; Frank K. Friedman; Patice L. Holland; Woods Rogers	Circuit Court of the City of Roanoke Broadhurst, Judge
090043	Marble Technologies, Inc., et al. v. City of Hampton, et al.	Brett A. Spain; Willcox & Savage	Bryan K. Meals; Davey & Brogan	Circuit Court of the City of Hampton Taylor, Judge
090110	C. Porter Vaughan, Inc., Realtors v. DiLorenzo, Bishop, etc.	Joseph E. Blackburn, Jr.; Blackburn, Conte, Schilling & Click	William F. Etherington; Leslie A. Winneberger; Beale, Davidson, Etherington & Morris	Circuit Court of the City of Richmond Snukals, Judge
090143	Sales v. Kecoughtan Housing Company, et al.	Kevin E. Martingayle; Stallings & Bischoff	Herbert V. Kelly, Jr.; Joseph F. Verser; Jones, Blechman, Woltz & Kelly	Circuit Court of the City of Hampton Lerner, Judge
090193	Rascher v. Friend	James J. O'Keeffe IV; Monica Taylor Monday; Anthony M. Russell; Gentry Locke Rakes & Moore	Michael E. Thorsen; Dana L. Tubb; Trichilo, Bancroft, McGavin, Horvath & Judkins	Circuit Court of Prince William County Whisenant, Judge
090222	Strawbridge v. Bullock	Gregory S. Larsen; Kevin M. Kennedy; Roy, Larsen, Carnes & Romm	John C. Lynch; Jason E. Manning; Andrew B. Pittman; Troutman Sanders	Circuit Court of the City of Chesapeake Smith, Judge
090247	Miller v. Dogwood Valley Citizens Association, Inc.	Pro se	George H. Dygert; Dygert, Wright, Hobbes and Heilburg	Circuit Court of Greene County Harkrader, Judge
090250	Ligon v. County of Goochland	James B. Thorsen	Jim H. Guynn, Jr.; Guynn, Memmer & Dillon	Circuit Court of Goochland County Sanner, Judge
090254	United Leasing Corporation v. The Lehner Family Business Trust	Michael R. Shebelskie; Kimalee C. Cottrell; Karen S. Elliott; Hunton & Williams; Sands Anderson Marks & Miller	Todd M. Ritter; Daniels & Morgan	Circuit Court of the City of Richmond Stout, Judge
090271	Bosco v. Chavez	Richard W. Driscoll; Cara L. Griffith; Driscoll & Seltzer	Michael E. Thorsen; Dana L. Tubb; Lewis D. Morris, Jr.; Trichilo, Bancroft, McGavin, Horvath & Judkins; Davis & Associates	Circuit Court of Fairfax County Schell, Judge
090283	Cotton Creek Circles, et al. v. San Luis Valley Water Co., et al.	W. Jeffery Edwards; Edward P. Noonan; Thomas K. Cauley, Jr.; Jennifer E. Novoselsky; Hunton & Williams; Sidley Austin	Charles G. Meyer III; Douglas M. Palais; Lisa J. Chadderdon; John D. Mereness; Barry A. Schwartz; LeClairRyan; Kamlet Reichert	Circuit Court of the City of Richmond Snukals, Judge
090303	Scialdone v. Commonwealth	Marvin D. Miller; Heather Golias	William C. Mims, Attorney General; Donald E. Jeffrey III, Senior Assistant Attorney General; Gregory W. Franklin, Assistant Attorney General	Court of Appeals of Virginia
090305	Taylor, et al. v. Commonwealth	Marvin D. Miller; Heather Golias	William C. Mims, Attorney General; Donald E. Jeffrey III, Senior Assistant Attorney General; Gregory W. Franklin, Assistant Attorney General	Court of Appeals of Virginia
090313	School Board of the City of Newport News v. Commonwealth	Joseph M. DuRant, Deputy City Attorney	William C. Mims, Attorney General; Maureen Riley Matsen, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General; Paul Kugelman, Jr., Assistant Attorney General	Circuit Court of the City of Newport News Conway, Judge
090328	W&W Partnership v. Prince William County Board of Zoning Appeals, et al.	James P. Franca	Angela Lemmon Horan, County Attorney; Jeffrey R.B. Notz, Assistant County Attorney	Circuit Court of Prince William County Whisenant, Judge
090670	Addison v. D'Amour	Edwin Gadberry III; Saunders, Cary & Patterson	Erin M. Sine; McGuireWoods	Circuit Court of Chesterfield County Hauler, Judge
090881	Boyce v. Commonwealth	Michael T. Soberick; Dusewicz & Soberick	William C. Mims, Attorney General; James W. Hopper, Deputy Attorney General; Pamela A. Sargent, Senior Assistant Attorney General; Angela Boice Axselle, Assistant Attorney General	Circuit Court of Gloucester County Stephens, Judge
091119	Lawrence v. Commonwealth	Michael F. Devine; Devine, Connell, Sheldon & Flood	William C. Mims, Attorney General; James W. Hopper, Deputy Attorney General; Pamela A. Sargent, Senior Assistant Attorney General; Angela Boice Axselle, Assistant Attorney General	Circuit Court of Fairfax County Bellows, Judge

The Curmudgeon Argues

Jay O'Keeffe — Tue, 29 Dec 2009 18:35:15 -0500

And we're back after a short holiday break. I hope that you all were able to take a little time out of your schedules to enjoy the season.

For Christmas this year, Carrie got me The Curmudgeon's Guide to Practicing Law by Mark Herrmann. It's just perfect. If you haven't read the book, I highly recommend it. Herrmann, of course, was until just recently one of the authors of the Drug and Device Law Blog and a partner at Jones Day. All of that pales in comparison to the sheer brilliance of The Curmudgeon's Guide.

One of the book's highlights is its chapter on preparing for oral argument. In just 10 pages, it offers as good a treatment of the topic as I've ever read. Many of Herrmann's thoughts apply just as well to motions argument in trial court as they to oral argument in an appellate court.

So how does Curmudgeon prepare for an argument?

He drafts four outlines:

A 1-2 page chronology of key facts. Curmudgeon does a chronology of key events in the case, with dates. He can use this as a study guide, and also to fact-check the other side's argument from counsel table.
An outline of key cases, with summaries of each. These are just the key cases--the ones the court might actually want to talk about--not all of the cases. There will rarely be more than 5-10 key authorities in a case, and they should be apparent from the briefs. Curmudgeon tries to limit his description of each to 6-8 words.
A list of hard questions. Curmudgeon works up a list of the hardest questions about his case, irrespective of whether he can answer them. Then he works on the answers. It can be a big time investment, but it pays off when one of the questions comes up in argument, and he can answer--citing the JA chapter and verse, and even throwing in the odd quotation.

"They all think I'm Einstein, when all I am is Curmudgeon."

A 1-page outline of his argument. With very few words.

Armed with these outlines, Curmudgeon rehearses his argument, several times, from his 1-page summary. He typically reserves "moot courts" for his more complicated arguments. When it's time to deliver his argument, Curmudgeon brings only his 1-page outline with him to the lectern.

This is a fine way to prepare. I use many of the same outlines, although I incorporate them into my process at an earlier stage. For instance, I start my list of hard questions as soon as I start working on a case; I save it on as a Word document, and add to it as things occur to me. Similarly, I do my outline of key cases as part of my brief-writing process. In fact, I brief the really key ones at some length, law-school style, while I'm writing to make sure that I understand them.

And I confess that I'm not yet at the stage where I'm comfortable arguing with only a single sheet of paper in front of me. I like to prepare a large binder with everything I need, including my argument outline (as well as briefs, cases, the JA, and other outlines). I often bring that monster up to the lectern with me. It's almost a sight gag, but it certainly conveys the impression that I am prepared.

I do two additional outlines that did not make Curmudgeon's list: I like to summarize the 3-5 best arguments for either side. Doing this honestly helps my with my list of tough questions, and it also lets me anticipate where the other side's argument may go.

10 Ways to Ruin a Perfectly Good Brief

Jay O'Keeffe — Wed, 16 Dec 2009 16:37:42 -0500

Happy families are all alike; every unhappy family is unhappy in its own way. ~~Leo Tolstoy~~ I wrote that. With briefs, it's the opposite: Good briefs are unique, but miserable ones have an awful lot in common. My job has given me the opportunity to read (and, unfortunately, write) more than my share of bad briefs. Through careful study, I've distilled a list of 10 foolproof ways to turn a good brief bad:

Take shortcuts. Here's how you write a brief: brainstorm, research, brainstorm, outline, draft, revise, cite check. Skipping any of these steps to save time will backfire. If you don't outline, it will take you twice as long to write, and your brief will likely be poorly structured and repetitive. If you don't brainstorm, then you may miss a key point. If you don't cite-check, you will be embarrassed sooner or later. And if you don't research or revise, then may God have mercy on your soul.
Keep the court in suspense. On brief and in argument, get straight to the point. Your audience should understand the crux of your argument within 60 seconds. Don't keep the court in suspense by backing into things with an atmospheric statement of the case. Remember: Michael Bay, not Alfred Hitchcock.
Argue too many issues. There should not be more than 3 assignments of error/questions presented/major issues in any appellate brief. Aim for the jugular and let the rest go--a cheerful holiday thought from Justice Holmes, one of the cuddliest jurists to grace the bench. If you're not going to win on your strongest points, then you will certainly lose on your weaker ones. Some lawyers have told me that there is no harm in throwing in another argument or appeal point to see if it sticks. That's wrong. Judges have limited time to devote to your case, and you have few words in which to convince them. Excess argument dilutes your brief and erodes your credibility. As Justice Scalia likes to say, anything that doesn't help, hurts.
Ignore the other side's best arguments. The point of writing a brief is to help the judge arrive at the correct conclusion (i.e., the one you're advocating). You cannot do that without addressing the other side's best arguments. Those arguments will come out eventually, and the judge will have to grapple with them. Give her the tools to do so. Ignoring the other side's best points suggests that (i) you cannot rebut them or (ii) you were not clever enough to see them coming. Neither is an impression that you want to create. The only thing worse than ignoring the other side's best arguments is caricaturing them.
Call the other side names. Okay, so I might have brought this up once or twice in the past. Let the pony do his trick. Judges are trying to arrive at the legally correct result in a given case. That rarely has anything to do with opposing counsel, no matter how desperate, disingenuous, obfuscatory, or prevaricose he or she may be. (If prevaricose isn't a word, it should be.)

More after the jump . . .

Repeat yourself. I know a lawyer who likes to tell judges what he's going to tell them, tell them, and then tell them what he's told them. End result: his brief is 3 times as long as it should be, and a real pleasure to read. You can get the same benefit in 1/3 the time by (1) framing the questions presented, (2) making your arguments well once, (3) giving the reader descriptive headings and subheadings and (4) providing a conclusion that states the specific relief sought. Say it once, clearly.
Use nominalizations. Somewhere in law school, we picked up the weird habit of taking verbs--those actions words literate people use--and turning the into Latinate "tion" nouns. The new nouns then require their own set of verbs, articles, and preposition, all of which complicates structure, and encourages wordiness and passive sentence construction. For instance, normal person Joe Smith might "evaluate his options." A lawyer, by contrast, might "find it notable that an evaluation of his options was undertaken by Joe Smith (the "Evaluator" or "Mr. Smith")."
Drop copious footnotes. If it's not important enough to go in the text, it's not important enough to go in the brief. The only exceptions are (i) when you have a minor subject that you have to address in candor to the court or (ii) citations, which are acceptable in footnotes if they would break the flow of your writing in the text.
Quote with abandon. Block quotes are hard to read. That's bad. Splicing quotations from case law into sentences is harder to read. That's worse--especially if you are a fan of the "[a]wkward bracket and . . . ellipse technique . . . ." And burying your argument in a string of parentheticals is just brutal. It makes the reader work way too hard. You are the author. Exercise dominion over your brief. Discuss your authorities. Paraphrase them and weave them into your argument.
Take unreasonable positions. The most elegant argument in the world won't do you any good if it is advanced in support of an untenable position.

There you go. What do you think--have I left out any of your pet peeves, or condemned a perfectly acceptable technique?

Tom Goldstein Issues Public Apology

Jay O'Keeffe — Wed, 16 Dec 2009 07:57:09 -0500

Stunning news from ~~Yorba Linda~~ Washington, DC: appellate superstar and SCOTUSblog mastermind Tom Goldstein has issued a shocking public apology:

It's hard not to like the guy, but I am reserving judgment until I see the text messages.

Tribe with Feathers After All?

Jay O'Keeffe — Tue, 08 Dec 2009 10:25:20 -0500

All productive work at the Firm on the Move (TM) instantly ground to a halt today when the VLW reported the finalists in the William & Mary mascot search. The W&M website has pictures of the finalists. I'd post them, but I'm not sure about the trademark implications and I think that I'm still bound by the honor code.

Here are the finalists and our thoughts:

The Griffin. What's that, a nod to our Quidditch team? No D&D mascots, thanks. Nerds.
King and Queen. Wow, that's creative. We'd definitely be the first school in the Old Dominion to use Monarchs as a mascot. On the other hand, the transgender queen is a nice touch.
The Phoenix. Crap.
The Pug. Dogcrap.
The Wren. I guess this one has potential. We'd get our Tribe with Feathers after all, that late unpleasantness with the NCAA notwitshtanding. And the Wren actually has a connection to the school. (Ahem, Griffin.) It looks like we have a winner by default--although it really is a shame that not everyone can lose.

And now back to our regularly scheduled programming.

Fourth Circuit Clarifies Twiqbal; Plaintiffs Despair

Jay O'Keeffe — Mon, 07 Dec 2009 05:51:47 -0500

Last week's post briefly noted Francis v. Giacomelli, the Fourth Circuit's new opinion clarifying federal pleading standards under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Francis merits further discussion, as it may prove to be one of the most influential civil procedure decisions to come out of the Fourth Circuit in years.

Background

Twombly and Iqbal--collectively, Twiqbal--are, of course, the Supreme Court's landmark recent opinions on federal pleading standards. To put them in their proper context, I Shephardized the decisions, along with a few less important opinions to use as benchmarks:*

	Bell Atlantic v. Twombly, 550 U.S. 544 (2007)	Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)	Marbury v. Madison, 5 U.S. 137 (1803)	Brown v. Bd. of Education, 347 U.S. 483 (1954)
Total citations	29,939	4,165	11,969	13,224
Citations in the 4th Circuit	1,177	252	81	227
Citations in Virginia state court	0	0	28	7

These results suggest that Twiqbal ranks somewhere between the Bible and the Magna Carta in terms of its importance to Western law (though Virginia state courts remain unmoved, implying that the new standard has not yet crept into state-court practice). The Fourth Circuit's substantive take on Twiqbal will, therefore, prove important to practitioners.

Francis v. Giacomelli

And what a take it is. Francis grows out of a staggeringly ugly employment dispute. The Mayor of Baltimore fired the City's Police Commissioner and two of his top deputies. The Mayor then sent the police to retrieve from the Commissioner and his deputies their badges, firearms, police ID, and other official property, and to escort them from their offices.The Commissioner and his deputies sued the Mayor and City Council in state court. The Maryland Court of Appeals ultimately decided that the Commissioner had not been discharged in accordance with Baltimore law, which required cause--even though the Commissioner's contract allowed the Mayor to fire him without cause.

The Commissioner and his deputies also sued the Mayor, the City Solicitor, and several members of City Council in federal court. The defendants moved to dismiss, and the district court granted their motion.

The Fourth Circuit affirmed, ruling that the complaint failed to state any claim for legal relief that was plausible on its face. In the course of its ruling, the Fourth Circuit also provided a detailed discussion of post-Twiqbal pleading standards. It's easy to see why the court felt a need to do so. Twiqbal's evident popularity notwithstanding, the plaintiffs invoked the Conley's "any set of facts" standard--the standard that Twombly expressly retired.

Doh sound bite Homer Simpson sound bites

The Fourth Circuit explained that a motion to dismiss tests the legal sufficiency of a complaint, assuming that all facts alleged are true. The legal sufficiency of a complaint, in turn, is measured by the standards in Rules 8, 9, 10, 11, and 12(b)(6).

In light of these rules, the Fourth Circuit declined to characterize the federal rules as a "notice pleading" regime. Instead, it stated:

Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints.

The court cautioned that characteriizing the federal scheme as a "notice pleading" scheme may be "too simplistic," as it fails to acknowledge the Rules' provisions allowing courts to evaluate a complaint's sufficiency early in the litigation. Reviewing some of those provisions, the Fourth Circuit detected a "countervailing policy that plaintiffs may proceed into the litigation process only when their complaints are justified by both law and fact." In light of this policy, and against a backdrop of "strike suits" and skyrocketing litigation costs, the court recited the now-familiar Twiqbal plausibility standard.

The Fourth Circuit applied these principles aggressively in affirming the district court's ruling. As to the facts, although the court evaluated only the allegations in the complaint, it opted to "understand" those allegations "in the context of the facts alleged in the state court complaint and restated by the Maryland Court of Appeals . . . ." The plaintiffs, for their part, conceded that this was the proper context in which to consider their allegations.

Further, in Count II of their Complaint, the plaintiffs claimed that the defendants discriminated against them on the basis of their race. Their complaint, however, only alleged that two of the three plaintiffs were African-American. On brief, the defendants contended that the third was white--a claim that they had also made in their motion to dismiss. Because the district court had accepted this assertion and the plaintiffs did not dispute it, the Fourth Circuit considered it in affirming the dismissal of Count II.

Finally, to add insult to injury, the plaintiffs had requested leave to amend in the event that the district court granted the defendants' motion to dismiss. But the local rules required them to attach a copy of the proposed amended pleading, and they failed to do so. As a result, the Fourth Circuit ruled that the district court had not abused its discretion by denying the motion to amend.

Some Lessons from Francis:

Notice pleading is not the rule. The Fourth Circuit recognizes a countervailing policy in the Rulles that protects defendants. "[U]adorned allegations of wrongdoing" are not enough to state a claim, no matter what Rule 84 or Civil Form 11 may appear to say.
Defendants: file your motions to dismiss. After this case, filing a motion to dismiss in the Fourth Circuit will be almost a matter of minimal professional competence.
Plaintiffs: plead carefully. Know the elements of your claims, and be sure to allege facts--not just conclusions of law--to support each. In the wake of Francis, it looks like more investigation will be required on the front end.
Don't make unnecessary concessions. One of the interesting facets of the opinion is the Fourth Circuit's consideration of facts from the companion state court case, as well as the defendants' filings. The plaintiffs conceded that the former were properly considered. It would be interesting to know under what circumstances they made that concession. As a general rule, I try to concede everything that must be conceded on brief (when I have time to think through the implications), and avoid making any concessions in the heat of oral argument. Easier said than done, but it avoids the risk of making a concession that you then read about in a published opinion.
Know the local rules. When I was at Skadden, Rich Brusca gave all the new litigation associates a set of 11 rules called "Brusca's Guide to a (Relatively) Stress-Free Life for Litigation Associates." I still have mine hanging on the wall. Brusca's prime directive: "Know the rule--Local, Federal, Civil, Evidence, Ethics." Here, the plaintiffs may have lost a shot at amending their complaint because they failed to follow the local rules.

Finally, on the exceedingly remote chance that (i) you care about soccer and (ii) Friday's post left you on the edge of your seat, the U.S. landed in a group with England, Slovenia, and Algeria. As Alexi Lalas put it, if you can't find a way to beat Slovenia and Algeria, you don't deserve to advance.

* I chose these cases to make a point, not because they present the best benchmarks. For a fairer (but less funny) comparison, Anderson v. Liberty Lobby, 477 U.S. 242 (1986), has been cited 163,574 times by all sources. It has been cited 8,103 times in the Fourth Circuit and four times in Virginia state courts. Joking aside, while Twiqbal poses no real threat to devour all of federal case law in the near future, it does represent an important doctrinal shift.