A FEW MORE FAQ’s

 

[Posted February 15, 2010]  Time for another dip into the e-mailbag to see what questions I’m getting these days, starting with one that’s particularly timely:

 

I’m appealing a civil case to the Supreme Court of Virginia.  The judgment order was entered on November 30.  I know that I get three months, not 90 days, but what’s three months after November 30?  February only has 28 days.  Should I assume that the petition is due March 2?

 

A classic conundrum.  You’re right; it’s tough to calculate what date is exactly three months after November 30.  This situation comes up regularly (annually, even), and the court has always interpreted the rule to mean that your brief is due on February 28 (or the 29th on leap years).  In years such as 2010, when the 28th falls on a weekend, you do get the extra day, of course.  By the way, in case you’re feeling cheated out of the extra two days, count ‘em up:  From November 30 to February 28 is exactly 90 days.  Don’t feel so bad.

 

I have a writ argument coming up soon, and my opponent has assigned cross-error.  Will he get to argue his assignments to the writ panel?

 

No; only the appellant gets to argue to a writ panel, even if the appellee has assigned cross-error.  The only way for him to get a writ argument is for him to file his own appeal of the judgment.

 

I’m in the Court of Appeals of Virginia in a criminal case.  I listed three questions presented, and the court granted me a writ, but it’s limited to just one of my questions.  Does that mean they won’t consider arguments related to the other two?  And if I want to appeal to the Supreme Court of Virginia, do I have to appeal the two refused questions within 30 days of the denial, or do I wait until the court rules on the one question they took?

 

If the CAV only accepted one of your three QP’s, then it won’t do you any good to argue the other two; the merits panel won’t listen to you.  One thing you should look into immediately is whether the issues in your successful question depend in part on the issues in the other ones.  If adjudication of Issue #1 depends in part on Issue #2, you should file a petition for rehearing in which you point this out.  As for an appeal on to the Supreme Court, you can appeal all three of your QP’s to the Supreme Court at the conclusion of the case in the CAV; indeed, you can’t appeal before then.  See the published order in Headley v. Commonwealth, 231 Va. xix (1986).

 

I’m getting ready to order the transcript of my trial so I can file it.  What risk do I run if I decide to omit parts of it?

 

The ultimate risk is that if you omit something that’s essential for the court to adjudicate the appeal, you’ll find your appeal dismissed.  But if you’re confident that a given part of the transcript wouldn’t be material to your case, you can safely omit that.  For example, in a jury trial if there are no issues relating to jury selection (say, there were no Batson challenges or motions to strike a venireman for cause), you can tell the reporter that you don’t need a transcript of jury selection.

 

I represent an appellant in the Supreme Court.  I just got my opponent’s brief in opposition, and he has assigned cross-error.  I know I can respond to his assignments without waiving my right to oral argument, and I want to do that in a reply brief.  The problem is time:  Rule 5:19 only gives me seven days from the date he files his brief, and I know I don’t get an extra thee days because he mailed it.  The rascal filed his brief and mailed my copy on a Friday, and Monday was a holiday, so it looks like I only have three days to file my reply brief.  I don’t think that’s fair.

 

I agree with you; you only have three days to put together your reply brief.  And I also agree with you that this situation isn’t fair, particularly since you had no idea until Tuesday what issues the “rascal” was going to appeal himself.  Expecting anyone to read and analyze an appellate brief, and then research, draft, edit, and file a cogent reply in 72 hours is a tall order.  Here’s what I suggest:  Contact your opponent and ask him to consent to a short extension of time for your reply brief.  (Now aren’t you sorry you called him a rascal?  It’s hard to make nice to someone after you just got through dissing him.)  If he says yes, you should file a motion under Rule 5:4(a) for that extension, and recite in it that your opponent has given his consent.  Be sure to file the motion before the original deadline, and in your cover letter to the Clerk, mention that you will need to get this motion to one of the justices quickly because the deadline draweth nigh.

 

What if he says no?

 

File the motion anyway, and tell the truth:  You asked your opponent for his consent, and he flatly turned you down.  My experience is that if you (1) have at least a decent reason, (2) file the motion as soon as possible after you perceive the need (before the original deadline, of course), (3) don’t ask for more than a few days, and (4) don’t routinely ask for extra time, the court will almost always grant the motion.  In addition, the justices on the motion panel will see that your opponent was an obstructionist on what should be a routine motion, and that can’t hurt you, now, can it?

 

The Court of Appeals has granted me a writ in my criminal appeal.  I’m working on the brief of appellant now, and I think I’d like to rephrase the questions presented.  Is that okay?

 

No, it’s not okay.  Once the court takes the case, the issue has been framed, and you would need leave of court to reframe it.  The same thing goes for assignments of error in the Supreme Court.  Those are like the allegations in a complaint in the trial court; they define and limit what the court will adjudicate. Note that in the Supreme Court, you may rephrase the questions presented, which serve as adjuncts to the assignments.  As for getting leave, I’d suggest that you use great caution in deciding whether to make that motion.  Leave will probably be granted to correct a typographical error, for example; but it would be much harder to get leave to substitute one appellee for another one where you initially listed the wrong one.

 

Rules 5:32(c)(1) and 5A:25(c)(1) require me to include in the appendix, “the basic initial pleading (as finally amended).”  I understand that in a civil case, but I have a felony appeal.  Do they mean the arrest warrant?

 

I don’t know of a specific case interpreting this part of the rules, but in a criminal case I regard the indictment as “the basic initial pleading.”

 

How long does it take the appellate courts to rule on cases after oral argument?

 

That varies widely by court.  Let’s start with the Fourth Circuit, which is the easiest to answer, because the answer is, “No one knows.”  You might get a ruling six weeks after oral argument, or a year later.  (Year-long delays are rare, but it happens sometimes.)

 

In the Court of Appeals, you should see a ruling within about 60 days after the date you argue the case.  In some cases it might take a little longer; but you won’t see a year-long delay except in a truly extraordinary situation.

 

In the Supreme Court, the standard answer is that published opinions are handed down on the final day (which is usually a Friday) of the next session.  Sessions are scheduled six times per year, and those weeks are shown on the calendar page of the court’s web site.  The most frequent separation between sessions is seven weeks; it’s a little more before the January session, and a lot more before the September session.  If the court decides the appeal by unpublished order, that could come down on any Friday after the argument.  In fewer than 5% of the cases argued, the decision will be held over to the next session; in that event, it could be 14 weeks or more to get your decision.  (The worst feeling of all is to argue your case in April, and then get passed over in June, meaning you have to wait roughly five months to get your ruling.)
 

What’s the one thing I can do to most improve my winning percentage in appeals?

 

Okay; I can tell you, but I’ll warn you:  You’re not going to like the answer.  It’s case selection.  Appellants pursue lots of meritless appeals, simply because they’re disappointed.  Even the best appellate lawyers can’t turn a dead-solid loser of an appeal into a miraculous victory.  Of course, since they’re the best appellate lawyers, they know not even to try.  This approach has a subtle benefit beyond merely removing a lot of L’s from your column – it lets the judges and justices know that when your name appears on a petition for appeal, it’s unlikely to be one of those dead-solid losers.

 

That’s fine advice for civil appeals.  But if my client wants to appeal a felony conviction and I’m court-appointed, I don’t have a choice, do I?

 

True; in a criminal case you have to pursue an appeal if the client directs you to do so, although you can always file an Anders brief if it’s utterly hopeless.  Beyond that, you can use my approach, which is clean living and thinking only pure thoughts.
 
You’re no fun.
 
I used to hear that a lot, back when I was single and dating.