De Novo: A Virginia Appellate Law Blog

The Bathroom Rule and Other Reasons to Choose Experienced Counsel

Jay O'Keeffe — Wed, 16 May 2012 08:19:11 -0500

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.

I commend the whole piece to you--practically everything that Mark Hermann writes is wonderful--but there are two major takeaways I want to discuss.

First, Hermann reported Judge Easterbrook's story about the importance of unwritten local rules:

Judge Easterbrook explained that, as a young lawyer, he had sent a brief to the Third Circuit for filing. The clerk rejected the brief and mailed it back. Easterbrook called, and the clerk’s office explained that it had rejected the brief because the back cover was the wrong shade of blue — a shade specified by an unwritten local rule. Easterbrook asked if there were any other unwritten rules, and the clerk said he wasn’t sure. Easterbrook mailed a revised version of the brief, which the clerk’s office again rejected — this time for violating a different unwritten local rule. On the third try, the clerk’s office finally accepted the brief. Easterbrook swore that, if he were ever the chief judge of a circuit, all of the rules would be in writing. Easterbrook then told the assembled crowd that (1) the Seventh Circuit’s written rules are fairly comprehensive and (2) the clerk’s office is extremely helpful if you call for advice, so there’s no longer an excuse for not complying with appellate local rules.

Judge Easterbrook has a good point here--and he was apparently years ahead of the curve when it comes to the danger of unknown unknowns:

(That clip never gets old.)

Ms. Collette ran into the teeth of one of the more important unwritten rules in Virginia practice. And there are plenty other surprises awaiting the inexperienced advocate at 100 North Ninth Street.

Even the Fourth Circuit--with its published Rules, Local Rules, and Internal Operating Procedures; its customer-service surveys; and its super-helpful case managers--still has a few idiosyncrasies that you can't really anticipate or appreciate until you've been there a few times.

The second takeaway from Hermann's article was another Judge Easterbrook story, this time one that the Curmudgeon heard second-hand:

Judge Easterbrook often tells audiences that he expects different quality briefs from different authors — he excuses poorly written briefs filed by certain overworked government agencies or small and unknown law firms handling low-stakes cases that plainly won’t bear any substantial legal expense. But the judge expects different quality briefs in high-stakes cases being handled by nationally prominent firms.

Now, isn't that something? Courts expect different things from different lawyers. They probably expect (and hopefully get) more out of their interactions with established appellate lawyers.

So just as I was getting over my "aww, ain't that sweet" reaction to a young lawyer's first experiences in appellate court, the Curmudgeon drops at least two strong reasons why it's in the client's interest to use experienced counsel: they know the unwritten rules, and they raise the Court's expectations.

On the other hand, there is real value to letting new lawyers argue in the SCV, and the experience means a lot to many of them.

At least one obvious way to resolve this tension suggests itself: lawyers unfamiliar with an appellate court can associate more experienced appellate counsel for the appeal.

You get the benefit of our knowledge and credibility, and we can make sure that you don't get locked out of the courtroom.

Slow, Crapulous, and Right: Highlights from the VBA/VSB Appellate Summit

Jay O'Keeffe — Sun, 29 Apr 2012 09:20:53 -0500

The 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 the appellate bench maintained an extraordinarily strong representation throughout the day.

Numerous judges and justices took time out of their schedules to help improve the quality of appellate advocacy in Virginia.

In between, practitioners shared their thoughts on a variety of appellate topics.

All in all, it made for a uniquely helpful CLE.

Here are some of the highlights:

Chief Justice Kinser and Chief Judge Traxler both emphasized the relative youth of their courts. On the SCV, after the Chief and Justice Lemons, the next-most-senior justice has five years' experience, and the seven-member court added two new justices last fall. Similarly, the fifteen-judge Fourth Circuit has recently added five new members. This kind of turnover is really remarkable, and it necessarily affects the courts' institutional knowledge. From my own perspective, it also calls into question practitioners' understanding of the two courts. All of a sudden, we are seeing split opinions from the SCV, and the Fourth Circuit--having gone from 10 to 15 members--seems to be granting oral argument more often in civil cases. (This may just be my subjective impression; Chief Judge Traxler explained that the Fourth Circuit grants oral argument in 15% of cases and that he did not expect that stat to increase significantly, although he acknowledged that with more judges the court will have the ability to grant more hearings.)
The Chiefs generally agreed that oral argument is important, and can make an impact in a small but real set of cases. Chief Judge Traxler said that, 90-95% of the time, he goes into oral argument leaning one way or the other--but he allowed that, every so often, a lawyer will manage to snatch defeat from the jaws of victory at oral argument.
In a later panel, Justice Mims offered a wonderful quotation that he'd shared with the VTLA two years ago. Paraphrasing here, the general point was that it is the duty of the trial judge to be quick, courteous, and wrong. But it does not follow that the intermediate court of appeals should be slow, crapulous, and right, for that would usurp the role of the supreme court.
Here's a sobering stat for practitioners: Justice Mims estimated that the SCV hears about 30 cases a week when it is in session. To prepare, the justices will have to read 80-120 briefs over the course of 3-4 weeks. Which they do. Justice Mims reminded the bar that "[t]hey're called briefs for a reason," and suggested that there's rarely a need to use every page you're allotted.
Judge Frank recommended making it a Class 1 felony to use the word disingenuous in a brief. I can support that proposal.

Another of the summit's recurring themes was the use of technology. That merits (at least) its own post. It's worth noting, however, that Virginia's three appellate courts seem generally receptive to the use of technology in the courtroom, although they are moving forward at different rates. Chief Judge Traxler said that he would like to see lecterns expanded to facilitate the use of laptops or iPads, and Chief Justice Kinser noted that two justices on the SCV are using iPads.

Finally, many thanks to the organizers of the summit, and the jurists and presenters who worked so hard to make it a rousing success.

10 Questions You Must Be Prepared to Answer Before Oral Argument

Jay O'Keeffe — Fri, 13 Apr 2012 14:04:35 -0500

The most critical part of getting ready for oral argument is anticipating the questions that you will get from the bench and preparing to answer them effectively.

To do that, as soon as I start working on an appeal I create a list of "tough questions," which I continue to update through the date of oral argument. These are the questions that I expect (or am afraid) to get from the bench, based on the issues in the case and my experience with the jurists involved.

I also have a set of canned questions from Aldisert that I get ready to answer--not because anyone has ever asked me these questions in real life, but because thinking about them helps me to distill my argument.

In that vein, Colonel Louis J. Puleo has a neat article in the ABA Council of Appellate Lawyer's Spring 2012 newsletter, Appellate Issues, in which he discuses preparing for oral argument. (HT John Bratt at Baltimore Injury Lawyer Blog.) He includes a list of 10 questions that counsel must be prepared to answer.

With a few exceptions, I'd group these along with Aldisert's questions as things you should be prepared to answer not because you are likely to hear them at argument, but because if you can't answer them then you probably don't understand your argument.

Here are Col. Puleo's "necessary ten":

What is the standard of appellate review, and what does that mean for the court's review authority?
What is your strongest/best position? If there are competing grounds upon which to rule, which one would you want the court to adopt, and why?
What relief are you requesting, and what is the court's authority to grant that relief?
Is there a statutory or regulatory requirement or precedent compelling the court to adopt the position you're advancing?
(For government lawyers) Does your position require coordination with other agencies?
Who has the burden during the appeal?
What right/privilege has been infringed? Where does this right or privilege come from, and how has it been infringed?
What is the prejudice or lack of prejudice?
If you could write the opinion, what would it hold?
Has the claimed error been preserved, waived, or forfeited?

If you've done a good job on your briefing, then you probably know the answer to these questions already--but you'd be surprised what you can overlook in your preparations.

I couldn't tell you how many times I've sat on moot court panels, and thrown off an appellant with an even simpler version of 3: "What are you asking us to do?" Sometimes they don't even know; when they do know, you can have a lot of fun with this follow up: "Can we do that?"

Nobody who's practiced Co. Puleo's questions will be stumped by that one.

A Trial Judge Is Not a Potted Plant: Justice Millette's "Observations from a Trial and Appellate Judge"

Jay O'Keeffe — Sun, 01 Apr 2012 09:39:31 -0500

I'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 on the latter, here are a few of Justice Millette's observations:

Justice Millette stressed the importance of preparation and credibility. He noted that some lawyers appear frequently before the Court and have earned its trust through careful preparation and honest advocacy. Justice Millette called this "a great advantage."
In connection with that, he suggested that young lawyers come into court to watch other lawyers, good or bad; either way, the observer is likely to learn something. But you won't learn anything if you're sitting out in the hall.
Justice Millette estimated that 70-80% of cases are decided based on the briefs, although he acknowledged that the members of the Court debate the precise figure. He explained that, given the Court's busy schedule of hearing a round of cases roughly every 8 weeks, clarity is of paramount importance in brief writing.
To that end, Justice Millette recommended organizing a brief in a clear, outline format. I'd clarify that it's helpful to include descriptive subject headings that reflect the outline organization of the brief, so that the Court can turn quickly to a given section. This can be useful when a case presents multiple assignments of error and the Court wants to focus on one in particular.
One of the most interesting parts of the presentation dealt with preserving error, and in particular the trial judge's role in the process. Justice Millette stressed the importance of giving the trial judge a chance to make the correct ruling, and of ensuring that the record shows that the judge had that opportunity. He noted that waiver--and particularly the extent of the trial judge's responsibility--has been a point of contention on the Court, with Justice Koontz memorably insisting that a trial judge is not a potted plant.
Justice Millette is already on the record as politely suggesting that lawyers not refer to the Court as "you guys." He repeated that advice, noting that this form of address resonates particularly poorly with the female members of the Court.
Finally, Justice Millette cautioned against relying too heavily on the "right result, wrong reason" doctrine, explaining that the Court tries to use it sparingly.

Those are just the highlights from the talk. On the "you guys" point, remind me to tell you my "Don't tell the Court 'what's that'" story sometime. Worst day of writ arguments I've ever seen.

Lessons from Upcoming SCOTUS Health Care Arguments and Other Nerdiana

Jay O'Keeffe — Sun, 25 Mar 2012 09:41:11 -0500

There's too much going on this week to focus on work, so please indulge me if this post strays a little off topic.

On television, we welcome back the two best shows going, Mad Men and the absurdly NSFW Game of Thrones.

Over shady internet streams, we get to watch an uber-talented U.S. Olympic soccer team fight for its life in qualifying against a murderer's row of Cuba (6-0 US), Canada (2-0 CAN), and El Salvador (Monday night).

But none of that compares to what SCOTUS offers this week: a whopping six hours--six hours--of oral argument in the health care cases.

This offers a veritable wonderland for law geeks, as well as a great learning opportunity. (In fairness, both Mad Men and Game of Thrones also provide their share of life lessons. See, e.g., Stupid Ned Stark, source of the accompanying image.)

The WSJ's Washington Wire blog offers a schedule of what we can expect when:

On Monday, 90 minutes of argument about the effect of the Anti-Injunction Act.
On Tuesday, two hours of argument on the constitutionality of the individual mandate.
On Wednesday morning, 90 minutes of argument on what to do with the Act if the Court strikes down the individual mandate.
On Wednesday afternoon, an hour of argument on the Act's expansion of Medicaid.

The Court will release audio of the arguments immediately after these sessions.

Speaking of audio, the lead players in this week's drama will be Solicitor General Donald Verrilli and the smartest person I've ever seen in real life, former SG Paul Clement. Nina Totenberg did a charming profile on each of them for All Things Considered. Here's Verrilli, and here's Clement. Both are well worth your time.

Update: Adam Liptak has a cool piece in the NYT about the lawyers' preparation for this marathon argument, which includes numerous moot courts.

Finally, in a last-ditch attempt to squeeze something useful out of this post, I will direct you to Ross Guberman's site. Ross is a legal-writing expert and De Novo favorite for two reasons: first, he knows his stuff; and second, he backs it up with concrete examples from briefs by big-time lawyers. I love his book, Point Made, and I enjoy the the shorter pieces that he does on specific briefs.

In honor of this week's events, Ross has taken a fine-toothed comb to the Government's brief, to see whether--in his words--the Case of the Century inspired the Brief of the Century.

Spoiler: it didn't, at least from the Government.

But it's worth taking a look at Ross' piece to see some of the reasons why the Government's brief falls short of greatness. Seeing what a legal writing critic has to say about the work of extremely talented lawyers working on an impossibly high-profile case provides a great learning experience.After all, the SG's office is known for the consistently high quality of its briefing.

Good stuff. Now, if only Ross would give the same treatment to Paul Clement's brief.

Galumbeck v. Lopez: Supreme Court of Virginia Catches Some Waives

Jay O'Keeffe — Fri, 16 Mar 2012 13:50:50 -0500

The Supreme Court of Virginia handed down 20 published opinions and 1 published order last session.

One of those opinions, Galumbeck v. Lopez, contains enough waiver for the entire term. It's the most waiverlicious opinion I can remember seeing since Commonwealth Transportation Commissioner v. Target Corp., 274 Va. 341 (2007). Galumbeck suggests that, to borrow a phrase from Frank Friedman, we are living through a veritable waiver renaissance.

Exciting times, indeed.

And if trial lawyers are going to compete in this waive--err, brave--new world, they need to know the rules.

So, on that note, a quick stroll through some of the waiver issues in Galumbeck:

First, Galumbeck complains that he was not allowed to question witnesses about a surgical log or introduce that surgical log into evidence as a sanction for discovery misconduct.

Unfortunately, all of the relevant discussions were held in a sidebar conference.

It's a testament to how customs vary across the state that I literally did not know that people still held sidebars until reading this opinion. I thought that only happened in movies. And after reading Galumbeck, I'm pretty sure that sidebars should, in fact, only happen in movies.

But I digress.

The pertinent discussions all took place in a sidebar. It's well settled that the appellant has the burden of presenting a record sufficient to let the SCV resolve assignments of error. If he fails to do so, the Court will not consider the affected assignment of error. Rule 5:11(a)(1). After all, a trial court's judgment is presumptively correct.

Galumbeck tries to sidestep this rule by explaining that he proffered his objections. Wonderful things, proffers. Every time I do a CLE on preserving error, I recommend them.

But here's the trick: proffers only work if there is someone else in the courtroom to hear them.

And no, I don't just mean the court reporter. Galumbeck tried the "unilateral avowal of counsel" method to describe his objections and excluded evidence, but he waited to do so until after court had adjourned and opposing counsel had gone home. That doesn't count. Opposing counsel can't reasonably be understood to stipulate or acquiesce to things he's never heard. Either you actually get a witness to give testimony on the record, in the absence of the jury, or you get opposing counsel to stipulate or acquiesce to it. No sneaky stuff in between.

Because opposing counsel was not around to hear Galumbeck's statement, it did not count as a proffer, and he did not preserve the issue for appellate review.

Second waiver problem: Galumbeck objected to certain testimony in a motion in limine. But he failed to request a ruling on that issue. Thus, he waived it on appeal. Motions in limine can be tricky from a preservation perspective. I just did an article about that in the VTLA appellate journal. If you're interested, shoot me an email. I'm glad to forward you a copy.

Third waiver problem: Galumbeck objected to a part of one of the plaintiff's exhibits--but then he offered the same material in his case in chief. The SCV has made it clear that when a party unsuccessfully objects to material, then introduces the same evidence on his own behalf, he waives the objection.

To sum up, a few of the waiver lessons learned from Galumbeck:

No sidebars off the record
Proffers are good, but be sure you know what you are doing.
If you try to exclude evidence on a motion in limine, make sure that you get a ruling. (And it can't hurt to renew objections as the trial goes on, either).
Don't introduce the evidence you object to in your own case in chief.

Finally, if I'm not mistaken, Steve Emmert won both Galumbeck and Target on appeal. I am tempted to buy him a giant foam hand. For waving . . . nevermind.

Justice Sotomayor Visits Sesame Street

Jay O'Keeffe — Thu, 09 Feb 2012 12:13:01 -0500

Justice 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:

La Fin Absolue du CAV?

Jay O'Keeffe — Fri, 27 Jan 2012 14:34:57 -0500

Earlier 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 by a reliable source outside our firm that SB 630 is some kind of a statement being made by Senator Deeds, alone.

I am also told by sources closer to home that I should not make fun of legislators while Monica is a candidate for the Court of Appeals.

Ergo, I will not waste your time arguing against SB 630. (Although a person inclined to make such an argument might start with the caseload reports.)

Instead, secure in the knowledge that we’ve dodged intermediate appellate Armageddon for now, I will pass along some tips from the CLE after the jump.

The CLE’s presenters were Monica, Judge Petty, John Tucker, and Alice Armstrong. All were predictably strong. I've got the materials and I'm glad to share them if you're interested.

I found Judge Petty’s discussion of the behind-the-scenes mechanics of the Court of Appeals to be the highlight of the event.

This is not brown-nosing; since I don’t practice in the CAV very often, I'm less familiar with its internal workings, and have relatively little to gain from kissing up to its judges. (Put Chief Justice Kinser on a panel, by contrast, and watch me fawn embarrassingly over her.)

A few takeaways from Judge Petty’s talk:

The CAV is serious about Rule 5A:20’s requirement that the appellant note where an assignment of error was preserved in the record. It will dismiss an appeal under Rule 5A:18 if he fails to do so. The SCV is not so harsh; I’ve seen it completely ignore violations of its coordinate Rule 5:17(c).
When your appeal arrives in the CAV, the clerk’s office goes through the file with a checklist to ensure that it includes all required papers. This bears repeating: the very first thing that happens when your file arrives is that it’s scoured for procedural default. Judge Petty encourages lawyers to use similar checklists to ensure that things are in order.
Appeals of right are then reviewed by the staff attorney’s office. If the staff attorney recommends summary affirmance, the appeal will be forwarded to a standing panel of 3 judges. If any 1 of those 3 thinks it should go forward, the appeal will reach the merits stage. Otherwise, it will be affirmed summarily.
An appeal of right that survives this stage is then assigned to a panel of 3 judges. Each panel gets 18 cases. One judge is randomly assigned responsibility for each case; cases are assigned in alphabetical order as they come in.
Once a panel’s caseload is filled, the cases are sent to the judges assigned to sit on that panel. Seatings are decided in January but not announced until argument to discourage judge-shopping.
The judges get their cases about 60 days before oral argument. Only the judge assigned primary responsibility for the case receives the record; the other two work from the joint appendix, but can review the record if necessary. If you consider that each judge gets 18 cases, with primary responsibility for writing 6 opinions, this is a fairly tight time frame. It is therefore critical that your briefs are effective and to the point, and that your appendices are not overloaded with useless arcana.
Like other appellate courts, the CAV holds its decision conference immediately after oral argument. Oral argument can therefore make a big difference; it is the closest thing to a lawyer’s chance to participate in the decision conference.

Of course, things work slightly differently on the criminal side, where appeals are by petition.

Thanks to everyone in the VSB’s appellate section who worked hard to make this CLE a success.

Delegate Calls for Study of CAV's Jurisdiction

Jay O'Keeffe — Tue, 17 Jan 2012 12:27:56 -0500

Interesting news from Richmond: House Joint Resolution 111, sponsored by Delegate Sal Iaquinto (R-Virginia Beach--pictured), would direct the Judicial Council of Virginia to study the jurisdictional capacity of the Court of Appeals. HT: Peter Vieth at Virginia Lawyer's Weekly.

In particular, Joint Resolution 111 would tell the Judicial Council to review the respective capacities of the Supreme Court of Virginia and the Court of Appeals, and consider whether the quality of appellate review would be served by expanding the intermediate court's capacity.

The Resolution calls for the Judicial Council to complete its meetings for the first year on November 30, 2012, and its meetings for the second year on November 30, 2013. For each year, it would publish an executive summary and report of its findings.

Joint Resolution 111 has been referred to the Committee on Rules.

(I don't know what that means.)

In fact, I don't pretend to understand any of the mechanics or politics behind this at all--but I am certainly in favor of expanding the jurisdiction of the Court of Appeals for several reasons:

It would help with the development of the law in a broad array of areas. It's just not possible for the Supreme Court to hear enough cases each a year to fully flesh out the law. That leads to gaps in the law and uncertainty. As an overall matter of policy, Virginia tends to be business-friendly. But uncertainty is bad for business and expensive; it makes people have to employ the legal equivalent of belts-and-suspenders to protect their interests.
It would be fairer to litigants. The recitals to Delegate Iaquinto's Resolution state that "the caseload of the Supreme Court of Virginia continues to preclude it from granting petitions for appeals in many cases in which appellate review is sought." I don't know if that's right or wrong, but I do know that only about 1 in 5 civil petitions for appeal are granted. That means that about 80% of people who want appeals don't get them.* Giving everybody 1 appeal of right would let them feel like they've gotten a fair shake, and offer them recourse when trial judges get things wrong. (That's not meant as a shot at trial judges--somebody has to make the decisions, and questions with clear answers tend not to get litigated. See bullet point 1, above.)
It would force trial judges to be more careful. I've never been a trial judge, but I can't help but think that the looming prospect of an appeal of right would help focus my efforts on resolving the legal questions at hand. And I've practiced in many jurisdictions around the Commonwealth, where I've seen . . . things. In places. Which lead me to favor appeals of right for civil litigants. Let's leave it at that.

In short, I like the sound of this. I'll try to keep you posted on Joint Resolution 111.

* Don't think that I missed the counterargument that many of those petitions don't deserve to be granted. If that's true, then those appeals would be easily disposed as appeals of right. The Fourth Circuit, for example, hears appeals of right but brooks no foolishness from appellants.

January SCV Opinions by the Numbers

Jay O'Keeffe — Sun, 15 Jan 2012 12:38:17 -0500

The Supreme Court of Virginia handed down a remarkable bath of opinions on Friday.

The 20 opinions included 7 dissenting opinions, which is highly unusual for a court previous notable for its consensus.

Stranger still, the 12 civil cases generated all 7 dissenting opinions (one case, Weedon v. Weedon, generated two separate dissenting opinions).

It looks like things could get a little bumpy in the near future.

Here's a quick breakdown of who did what (including cases with concurrences as split cases):

Chief Justice Kinser

Votes Cast: 20
In Majority: 20
In Dissent: 0
In Majority in Split Cases: 7/7
Opinions Written: 2

Justice Lemons

Votes Cast: 19
In Majority: 18
In Dissent: 1
In Majority in Split Cases: 6/7
Opinions Written: 2

Justice Goodwyn

Votes Cast:18
In Majority: 18
In Dissent: 0
In Majority in Split Cases: 6/6
Opinions Written: 1

Justice Millette

Votes Cast: 20
In Majority: 19
In Dissent: 1
In Majority in Split Cases: 6/7
Opinions Written: 2

Justice Mims

Votes Cast: 17
In Majority: 16
In Dissent: 1
In Majority in Split Cases: 6/7
Opinions Written: 4 (including 1 dissent)

Justice Powell

Votes Cast: 14
In Majority: 12
In Dissent: 2
In Majority in Split Cases: 4/6
Opinions Written: 3 (including 1 dissent)

Justice McClanahan

Votes Cast: 14
In Majority:
In Dissent: 6 (including one concurrence, and counting opinions dissenting in part and concurring in part as dissents)
In Majority in Split Cases: 1/7
Opinions Written: 7 (including 5 dissents and 1 concurrence)

Senior Justice Carrico

Votes Cast: 2
In Majority: 2
In Dissent: 0
In Majority in Split Cases: n/a
Opinions Written: 2

Senior Justice Russell

Votes Cast: 4
In Majority: 4
In Dissent: 0
In Majority in Split Cases: n/a
Opinions Written: 2

Senior Justice Lacy

Votes Cast: 6
In Majority: 6
In Dissent: 0
In Majority in Split Cases: 1/1
Opinions Written: 1

Senior Justice Koontz

Votes Cast: 6
In Majority: 6
In Dissent: 0
In Majority in Split Cases: 1/1
Opinions Written: 2

It's dangerous to draw too many conclusions from a sample this small, but you can't ignore the number of Justice McClanahan's dissents and concurrences.

It will be interesting to see if this is just a matter of a new justice finding her voice and her place on the court, or if she will continue to use dissents and concurrences over time to stake out her own jurisprudence.

What's Weirder than an Unpublished Order?

Jay O'Keeffe — Thu, 05 Jan 2012 08:46:41 -0500

Here's a question: Is it stranger that the Supreme Court of Virginia decides some cases by unpublished order, or that it publishes any opinions at all?

A colleague and I were recently trying to track down a recent unpublished order from the SCV the other day. We weren't having much luck--we couldn't find it on Virginia Lawyer's Weekly, the SCOVA blog, or Steve Emmert's website.

That sparked a discussion about the utility of issuing unpublished orders in the first place. I tend to believe that, if a case is worthy of SCV review, then it is worthy of a published opinion that counts as precedent--particularly when the Court needs more than a page to explain its reasoning, or when it decides a case over a dissent.

But I've never been a judge, and I haven't spent much time thinking about the issue, so I could be persuaded otherwise.

What struck me the other day was, why publish opinions in hard copy at all?

It's incredibly weird that we still go through the ritual of publishing opinions in case reporters, as if people still used books to find cases. Relatively few people have access to the Virginia Reports. Practically everybody has access to the internet, and professionals these days use LEXIS, Westlaw and (increasingly) google scholar.

To wit: look at the chump in this picture. He's reading law books, and taking notes with a pen in a spiral bound notebook. Who does that?

Nobody, that's who.

Wouldn't it be cheaper and easier to finalize opinions and then post them on the Web, with some sort of generic citation? For old times sake, we could keep with volume numbers in the citation, or we could just do something like "2012 Va. 1."

Peter Martin recently wrote a thought-provoking piece on Arkansas' efforts to do just that. Peter W. Martin, Abandoning Law Reports for Official Digital Case Law, 12 J. App. Prac. & Process 25 (2011).

And when I say "thought-provoking," I mean that literally; it was Martin's hard work that got me thinking about these issues in the first place, and I don't make any claim to remotely original thought in this post--Arkansas has already put this into effect, for God's sake.

At any rate, Martin's article is thorough and well worth your time.

Right now, the SCV puts slip opinions up on the web. That is extraordinarily helpful and--from what I can tell--greatly appreciated by the bar. Imagine how easy it would be if the official "published" opinion followed shortly thereafter, on the web and freely available to all, in one central and easily searchable place?

When Will Somebody Update This Blog (Part 2)?

Jay O'Keeffe — Thu, 29 Dec 2011 17:54:03 -0500

About 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 picture of Jack and Caroline with Santa Claus. I love this picture. I plan to keep recycling it at least until Jack is a sophomore in college.

Anyway, here are some of the things I've been up this holiday season instead of generating decent content for this blog:

Working. Lots and lots of work, including an oral argument in the Fourth Circuit.
Drinking. More specifically, organizing a cocktail party for local lawyers who use iPads, so we could get together and share apps and thoughts about using the device. (If you live in a jurisdiction without a nearby Apple store, I highly recommend these meetings; we've done a few, and I've found them all to be terrifically informative.) Rob Dean, who blogs at Walking Office, was one of the lawyers who joined us. It was a pleasure to meet him. He was very impressive, and if you have any questions about Apple products I would refer you to him. Not me.
Talking. I was one of several legal bloggers who did an interview with Deborah Elkins of Virginia Lawyer's Weekly about the most important opinions of the year. If you want to better understand why it's a bad idea to speak off the cuff (and on the record) about opinions you haven't looked at for months, check out my quotes in this piece (subscription required).
Talking Some More. I also recorded a radio spot for St. Francis Service Dogs that is currently running on WFIR. St. Francis is an incredible Roanoke-based charity that trains service dogs for people with a variety of disabilities. The dogs are absolutely brilliant, and so are the people who run the operation. I encourage you to check out St. Francis' website, or their mascot's blog. (Full disclosure: I'm on the board of this organization.)
#losing. I spent more time than I should have playing Supervillain or Newt.

Thankfully--and also consistent with our holiday tradition--you have not been missing out on anything in my absence, because the one story I feel like blogging about is off limits. Last year, the big story that I couldn't comment on for a variety of reasons was the vacancy on the Supreme Court of Virginia.

This year, the big story that I can't comment on for a variety of reasons is the vacancy on the Court of Appeals.

Happy New Year. We'll be back next week with something useful to say.

Fourth Circuit Shifts to the Left? To the Left, to the Left?

Jay O'Keeffe — Wed, 23 Nov 2011 08:45:22 -0500

A 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 9 of the 14 sitting judges were appointed by Democrats, and 5 were appointed by Republicans;
Soundbites from a number of pundits, some of whom are extremely credible, and others who may be perhaps ever so slightly biased.

The article, while interesting, lacks force for three reasons:

First, it would be hard to get much more conservative than the Fourth Circuit of yore. The court really didn't have anywhere to go but left.

Cue cliched image of pendulum swinging.

Second, the Fourth Circuit typically sits in randomly selected panels of three judges. Further complicating matters, one of the three judges might be a judge who has assumed senior status, or it might be a district judge filling in. So it's still possible that you could show up at court and appear before two or three Republican-appointed judges.

Third, from a practitioner's perspective, the political affiliation of the president who appointed a particular judge is not necessarily the most salient thing you can know about that judge. Justice Stevens was appointed by Presidents Nixon and Ford, after all.

I Am John Roberts and So Can You, Part III: Video Proof

Jay O'Keeffe — Tue, 15 Nov 2011 15:03:09 -0500

We 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 don't know this, but you can actually fit Tom Goldstein in your pocket.)

In honor of ~~my long running man-crush on~~ Chief Justice Roberts, here is a link from the C-Span archives to a classic panel that he sat on in 1997. Here's the link.

This is truly amazing stuff.

You have John Roberts, Maureen Mahoney, Philip Lacovara, and E. Barrett Prettyman, Jr., discussing how to argue a case before SCOTUS. Bob Bennett moderates, apparently fresh from the late unpleasantness involving Paula Jones.

Half the fun of this video is people-watching for famous faces in the audience. I think I spotted pre-millennial versions of Delaware Supreme Court Justice Henry Ridgely; white-collar superlawyer Alan Kriegel; and Mark Stancil of Robbins Russell and UVA's Supreme Court clinic.

Enjoy.

Benchslapped by a Three-Justice Majority? Landrum v. Chippenham & Johnston-Willis Hospitals, and Other Oddities

Jay O'Keeffe — Mon, 07 Nov 2011 06:29:19 -0500

On Friday, the Supreme Court dropped 13 published opinions and 2 published orders. That's a bit surprising, because there were 29 cases listed on the September docket. Even counting the unpublished opinions that have come down in the meantime, we still have decisions in about 10 cases outstanding from September. (This is all back-of-the-envelope stuff; I'd welcome corrections.)

Another little anomaly: based on a quick flip through the opinions, it doesn't look like the Chief Justice wrote any of them.

I suspect that any weirdness is a combination of three factors: (1) the recent turnover at the Court; (2) Chief Justice Kinser's administrative responsibilities, particularly with regard to the rules of evidence and judicial realignment; and (3) luck of the draw.

At any rate, quality is far more important than quantity, and we picked up some fun opinions last week--even a rare dissent!

One of my early favorites is Justice Lemons' opinion in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc.

A little background: Justice Lemons is President of the American Inns of Court. He is unfailingly gracious, and probably takes civility and professionalism more seriously than anyone you will ever meet.

Also, Landrum looks to be a holdover from June, when the depleted five-member Court was hearing cases. In Landrum, we have a 3-justice majority and a 2-justice concurrence. That alone makes it something of a collector's piece.

Now back to our story. Landrum was represented by out-of-state counsel, who was pro hac vice. Kind of. The record lacked a motion by local counsel to associate him pro hac, or an order granting such a motion. Both are required by Rule 1A:4(3)(b)-(c). So he was clearly off to a good start.

But I digress. More importantly, so did the Court, in a footnote on the first page of the opinion.

This brings us to one of O'Keeffe's Immutable Rules of Legal Practice: if you have somehow managed to irritate Justice Lemons to the point that he (politely) goes out of his way to make you look like a fool on page one of a published opinion, you should probably just turn in your bar card.

It's the judicial equivalent of getting kicked in the nuts by Gandhi.

You must have done something horribly wrong to deserve that.

And indeed, Landrum (or more precisely, her Missouri counsel) did.

The defendants asked Landrum to identify her expert witnesses in discovery. She waited two months, until the expert disclosure deadline, to respond. Depending on where you practice, that might be okay. But she only sent them the names and addresses of two expert witnesses. That's not okay anywhere.

The defendants promptly moved to exclude the (for all intents and purposes, undisclosed) expert witnesses.

Upon learning of the motion, Landrum's out-of-state counsel forwarded the experts' reports, which the defendants received about two-and-a-half weeks after the expert disclosure deadline. Landrum never formally supplemented her expert designation to comply with Rule 4:1.

After a hearing, the trial court denied the defendants' motions and gave Landrum until January 28 to supplement. It explicitly warned Landrum that, if she failed to respond to the interrogatories "in the proper manner," the trial court would reconsider the defendants' motions.

On January 27, out-of-state counsel filed a supplemental designation. It was not signed by local counsel. In other words, it was a legal nullity, and not what you would necessarily call a response provided "in the proper manner."

At a subsequent hearing, Landrum's out-of-state lawyer conceded that he'd violated Rule 1A:4(2) by filing the document without local counsel's signature. Worse, he admitted that he'd filed many pleadings in the case in violation of the Rule, including his original designation.

But he argued that exclusion of the expert witnesses was unwarranted because he had remedied the violation by refiling the supplemental designation with local counsel's signature on February 17--that is, about 3 months after the expert disclosure deadline.

The trial court wasn't buying it. The court excluded the experts, and entered summary judgment in favor of the defendants.

Landrum filed a petition for appeal. The Supreme Court granted her appeal on five assignments of error. That was great news. But Landrum's lawyers rescued defeat from the jaws of victory, by making substantive changes to four of the five assignments of error. That's really, really not allowed. So the Court predictably struck those four assignments.

The remaining issue on appeal was whether the trial court had abused its discretion, a less than compelling appeal point. The legally correct answer is OF COURSE NOT!!! >:(

(Yes, that's right. I've taken to using emoticons instead of case citations. I've found that they're about equally effective about 85% of the time.)

Anyway, you can probably skip that part of the opinion.

But Landrum does include a terrific discussion of the abuse-of-discretion standard of review.

The majority adopts a standard under which an abuse of discretion can happen in three principal ways:

When the trial court does not consider a factor that should have been given significant weight;
When the trial court considers an improper or irrelevant factor, and gives it significant weight; and
When the trial court considers all proper factors, and no improper ones, but commits a clear error of judgment in weighing those factors.

Sounds good--but what about those cases that say that an error of law is, by definition, an abuse of discretion?

Justice Millette and Chief Justice Kinser concurred. They differed with the 3-justice majority on precisely that point: the new rule does not account for the principle that a trial court abuses its discretion by definition when it commits a legal error.

Finally, I had a blast in Richmond last week. It was great to see everybody. I'm headed up to DC at the end of the week for the AJEI conference, so please drop me a line if you're in town.

Bad News for Charles E. Friend, Good News for Virginia

Jay O'Keeffe — Mon, 17 Oct 2011 07:09:15 -0500

As you've likely heard, the Supreme Court of Virginia recently approved rules of evidence for the Commonwealth. The rules are modeled on the set drafted by the Boyd-Graves conference and published by Virginia CLE. They track and codify the existing common-law rules of evidence.

(You'll note that the VLW story I linked to above mentions submitting the rules to the Code Commission and getting approval from the General Assembly. More on that in a second.)

I was thrilled to hear the news. Our lack of rules of evidence is one of my well-documented pet peeves.

In fact, I'd just done a post complaing about that very topic. Virginia and Massachusetts are the only two states (technically, commonwealths) without rules of evidence. That's bad company. Massachusetts is a very silly state.

So, logically, I was about to crack open a nice box of wine and write a follow-up post taking credit for the new rules. After all, while they may have been in the works for a while, it was clearly the force of my rhetoric that put this thing over the top.

Then Chief Justice Kinser stopped by Roanoke last Tuesday.

Now, I defer to no one in my admiration for the Chief Justice. But sometimes she scares me. Usually, it's when she's asking me questions. On Tuesday, she did something even more fightening: She explained a little about the rules adoption process going forward.

In my simple-minded view of the world, I guess I'd figured that the Boyd-Graves conference would propose rules, the SCV would approve them, and all would be good. (This is what happens when you only read the VLW headline, and not the entire story.) After all, these seem like the folks best situated to tell us what the law of evidence in Virginia says. Please stop me if, at any point, I say something that isn't blindingly self-evident.

So imagine my surprise when the Chief Justice explained that the next step in the process involves sending the rules to the General Assembly.

Eep.

Let's set politics aside for a minute. Many rules of evidence don't make much sense on their own; you need context to understand them. A lot of context. (I'm looking at you, hearsay exceptions.)

There's something fundamentally horrifying about the idea of people, many of whom who have no background in law--and some of whom have a professional hostility to lawyers--sitting down to play with the rules of evidence. I mean, how much sense the limits on character and habit evidence make to you before you went to law school?

And half the time when we try to improve on the common law, we wind up screwing the whole thing up. We get things like the dead man's statute. Whether or not that statute makes policy sense as interpreted, it's completely incomprehensible as drafted.

Worse still is the potential for politicizing some of these rules. Like, how about we stick it to the greedy plaintiff's bar by saying that the dead man's statute doesn't apply to doctors, or tweaking the hearsay rule to help corporate defendants? We could make a real mess of oh, say, about 200 years of jurisprudence by horse trading rules and exceptions. That's not worth it.

So to those of you in the Boyd-Graves conference and on the SCV, hearty congrats on a job well done.

And to everybody else, please ask your friendly neighborhood legislators to pass the rules of evidence as presented, and as a package.

No rules are bad. But bad rules are worse.

Where is Last Week's Post?

Jay O'Keeffe — Sun, 25 Sep 2011 10:46:37 -0500

Loyal 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 the SCV's recent opinion in Bennett v. Sage Payment Solutions, Inc.

Bennett is a neat case about whether a defendant can assert repudiation as a defense to breach of contract, even after performance has begun. It's one of the more important business cases of the past year. (I know that because I am giving a talk on the most important business litigation cases of the past year at the annual VADA meeting, and I saw Bennett in my outline.)

The long answer is pretty much the same, but it includes a prolonged, vaguely self-pitying discourse on how busy I've been.

Not that I have any reason to complain. In the past two weeks, I've made two entirely stress-free trips to Richmond, both related to oral arguments someone else was giving, and a third trip to Richmond to speak at the Professional Development Conference put on by the Virginia State Bar's Young Lawyer's Division.

I had a blast at the PDC and really enjoyed talking to folks afterward. I won't drop any names (mostly because I don't want to embarrass anyone by associating them with this page without their express written consent), but that was a real highlight in a jam-packed week.

AME Financial Corp. and Abuses of Discretion

Jay O'Keeffe — Wed, 14 Sep 2011 12:31:01 -0500

I'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 do you do with that? When a decision is "committed to the sound discretion of the trial court," after all, it kind of sounds like the trial court can go either way. It can grant or deny the motion, admit or exclude the evidence.

That does not translate well into "reversible error." You really only get so much leeway to kvetch about trial management.

That's exactly why I always like a good treatment of abuse-of-discretion review.

Justice Goodwyn delivers one in AME Financial Corp. v. Kiritsis, Record No. 091244, handed down in March of this year. (Important note for appellants--the Court winds up affirming the circuit court.)

Here is a quick summary of what the Court had to say about abuse of discretion:

An appellate court should not simply rubber-stamp every discretionary trial court ruling. It has an obligation to review the record and to reverse the trial court if it finds a clear abuse of discretion.
Whether a trial court has abused its discretion is a fact-specific question.
In evaluating whether a trial court has abused its discretion, the appellate court does not substitute its judgment for that of the trial court. Instead, it considers only whether the record fairly supports the trial court's action.
Abuse-of-discretion review also includes review to ensure that the trial court's decision was not guided by erroneous legal conclusions.

There's enough useful stuff in there to draw the sting from the standard of review in most cases.

Finally, I was in Richmond yesterday to watch Monica's argument in Campbell County v. Royal, as well as the argument in the fascinating new noncompete case, Home Paramount Pest Control. It was great to see everyone in Richmond. Sorry it's taken me so long to update the blog.

The Five Best Parts of Virginia Law (or Practice)

Jay O'Keeffe — Mon, 29 Aug 2011 06:43:00 -0500

A 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. The Fourth Circuit hears oral argument in roughly 1 out of every 398,734 cases. The Supreme Court of Virginia hears oral argument in every single case.
Writ Arguments. Especially of the Traveling Variety. Even compared to a traditional oral argument, a writ argument is inherently fun; it's a ten-minute, unopposed argument before a panel of three justices. You only have to convince one. And the numbers are such that you have a very good chance of not having to argue before one of the Scary Justices. So the baseline hedonic calculus is pretty good. The Court's annual tradition of holding traveling writ panels--essentially bringing the appellate bench to the bar--adds to the fun, and sends a good message to us poor slobs schlepping briefs to the lectern.
Consensus. The proliferation of separate opinions and the (ahem) range of viewpoints on SCOTUS renders some of its decisions difficult to interpret and impossible to explain to non-lawyers. One of the refreshing things about state-court practice is the degree of consensus on the SCV. When the Court issues an opinion, you can generally understand what it means without counting justices for a future hypothetical case. And when one of the SCV justices does write a separate opinion (as, for example, the Great Concurrer is wont to do) there's usually a good reason. E.g., Evans v. Evans, 695 S.E.2d 173 (Va. 2010).
Collegialtiy. People* seem to be meaner to me in the federal system. Couldn't say why.
Trials. One of the great recent themes of Virginia jurisprudence is that of a court "increasingly confronted with appeals of cases in which a trial court incorrectly has short-circuited litigation pretrial and has decided the dispute without permitting the parties to reach a trial on the merits." Those aren't empty words. The Court is seriously interested in seeing citizens have their day in court, and it won't hesitate to bench-slap trial judges who are too quick to grant a demurrer, or a motion for summary judgment, or a motion to strike.

There's plenty more I could add, like the lack of Daubert motions, or the suits-and-sneakers bar exam uniform, or the quality of donuts at the Homestead (rightful home to all important gatherings of Virginia lawyers). But this seems like a decent start.

*Not including the Fourth Circuit case managers, who are immensely patient, helpful, and nice.

Emmert and Martingayle on the Successful-Appellant Trap

Jay O'Keeffe — Sun, 21 Aug 2011 09:21:53 -0500

I'm always on the lookout for new ways to lose an appeal.

Steve Emmert and Kevin Martingayle showed me one in their recent webinar, Preventing Nightmares: Preserving Issues and Avoiding Waiver.

They call it the "successful-appellant trap," and it's based on the Supreme Court of Virginia's recent holding in VMRC v. Clark, 281 Va. 679 (2011).

Clark involved an administrative law appeal that was prosecuted before the Marine Resources Commission, the circuit court, the Court of Appeals, and the Supreme Court of Virginia. A group of citizens challenged the Commission's issuance of a permit. The circuit court ruled that they lacked standing to object. They asked for leave to amend their complaint, which the circuit court denied.

The Court of Appeals reversed, agreeing with the citizens that it's unnecessary to allege standing in administrative law appeals. It did not reach the leave-to-amend issue.

The Commission appealed, and the SCV reversed on the standing issue, holding that standing is essential for any litigant. So far, so good.

But the SCV then refused to address citizens' claim that they should have an opportunity to amend to assert proper standing, because the citizens hadn't appealed the intermediate appellate court's failure to address that issue. The SCV therefore reversed and entered final judgment against the citizens.

If Clark actually means what it seems to say, then it's very bad news for folks like me. Its holding requires a successful litigant to appeal anything less than an unconditional victory in order to preserve points for appeal. That is, if you give the court five reasons why you should win, and the court sides your way on four of them but doesn't reach the fifth, under Clark you apparently need to cross-appeal its failure to reach that issue or waive the point for appeal. This is true even where the lower court had a perfectly good reason for not reaching the issue--e.g., where the first four rulings render the fifth point moot.

There are several problems with this rule:

First, it's inefficient. Clark requires a successful litigant to appeal everything that did not go her way, just to protect her position on appeal. That will require litigants to waste pages briefing against shadow arguments. Even worse from the system's perspective, somebody (ahem) is eventually going to have to read those briefs.
Second, what happened to the right result for the wrong reason? We just learned in Perry and Banks that the SCV will affirm a lower court that arrived at the correct disposition, even if its reasoning was incorrect, so long as the record supports the alternative ground for affirmance. Presumably, the record in Clark supported affirming the CAV's reversal and remand on the alternative ground that the trial court should have granted the citizens leave to amend. Why wasn't that good enough to save the citizens' case?
Third, this rule is very harsh on the citizens. It's one thing to require litigants to assign error to rulings that aggrieve them. But the CAV's ruling did not really aggrieve the citizens; it gave them what they asked for--reversal and remand--and did not reach their procedural argument about leave to amend, because it didn't have to. Requiring them to appeal that ruling is more than counter-intuitive. It is, as Martingayle and Emmert suggest, nothing less than a trap.
Fourth, the efficiency and fairness problems in Clark all flow from the Court's requirement of binding assignments of error, which we've complained about before. The successful-appellant trap would not arise in federal court.

With luck, the Supreme Court will distance itself from Clark--at least as it applies to points rendered moot by the lower court's ruling. Until then, appellants have one more reason to be wary.