ANOTHER YEAR, ANOTHER MILESTONE
(Posted January 14, 2019) This is always an important date on my calendar: Today marks 14 years since I launched this site. This is a good time to take a moment or two to reflect on how things have changed in the appellate world.
Perhaps the most obvious change is in court personnel. Of the seven active justices on the Supreme Court of Virginia in January 2005, only one remains: Chief Justice Don Lemons. Similarly, of the eleven judges on the 2005 Court of Appeals, only Judge Bob Humphreys is still on the court. The Fourth Circuit has a bit more continuity because of lifetime tenure. Six of the current 15 judges have been on the court for more than 14 years.
In contrast, the Clerk’s Offices have been stable, at least in the corner offices. Trish Harrington, Cindi McCoy, and Pat Connor have managed to stick around for half a generation, though Trish is retiring at the end of this month.
Next we’ll look at how the caseloads have changed. In 2005, there were just under 2,700 new filings in the SCV. I remember noting that with a bit of alarm, as it represented a sudden 10% dropoff from the previous norm of about 3,000 per year. That alarm seems quaint now, as incoming business has fallen of a cliff. I don’t have final figures yet from any of the courts for 2018, but I believe the total in the SCV will fall just shy of 1,700. That means that incoming appeals in that court are off by more than 40% in the time I’ve been publishing.
This dynamic has produced a predictable effect: There were 172 merits decisions (opinions or orders) in 2005, and just 104 last year. If you look to Virginia Reports for legal guidance, you’re getting less of it, mostly because there are fewer appeals. The secondary cause is that the justices are getting pickier about granting writs.
How about the Court of Appeals and the Fourth? I don’t have the same level of detail yet for the CAV, but it issued 127 published opinions in 2005 and just 66 last year. The Fourth Circuit terminated – that’s a foreboding word for decided – 4,307 appeals in the year ending June 30, 2018, down about 10% from the 2005 number.
But let’s not get bogged down in numbers. The past 14 years have seen several significant changes in the courts and their procedures. Nowadays, you can click on a link for each court and listen to audio recordings of oral arguments. You can now use an online case-management system – indeed, e-filing is now mandatory for some documents in the state system and all filings in the Fourth. The courts’ electronics policies have evolved from the neo-Luddite days of 2005, when, for example, you couldn’t use a tablet or pad to give an oral argument. (Apple introduced the iPad in 2010, so that wasn’t an option when I began publishing.)
From my perspective, perhaps the biggest change in the appellate courts’ procedures came in September 2015, when the SCV shifted to rolling release dates, making each Thursday a presumptive opinion day. Previously, there were six predictable opinion days per year, so planning was simple: I walled off my schedule on those days, knowing that I’d be reading and publishing analysis all that day and usually most or all of the next. Now we have fifty-two potential opinion days a year. One other casualty of this switch was that the justices stopped the generations-old practice of literally handing down opinions in open court. I always appreciated the ceremonial feel of that. But now, they just appear prosaically on the court’s website.
There have been other subtle changes. The CAV used to convene in just four courthouses: Chesapeake, Salem, Alexandria, and Richmond. The court has now added sittings in Norfolk, Lexington, and Fredericksburg. In the Supreme Court, session week used to begin on Monday and run through Friday. Now the justices begin hearing arguments on Tuesday, and it’s a rare session week when the arguments extend past Thursday. The court heard Friday arguments only twice in the six sessions last year, after convening on five Fridays in 2017.
Things have changed a bit on this end of the keyboard, too. Once upon a time, I had the leisure to follow all CAV opinions fully, as I do with the SCV. A number of years ago, that became too unwieldy and time-consuming, so I’ve reduced sharply my coverage of that court. That’s something that I regret greatly, because it largely eliminates my coverage of Workers’ Comp and domestic-relations appeals, and sharply reduces criminal-law discussion. But it has become a practical necessity, because I have a law practice, and the justices expect me to file my briefs on time.
This publishing experience has made me a better lawyer. I know about changes in caselaw immediately, of course. But it also greatly aids one’s understanding of the law to (1) read every opinion and (2) write an essay that explains that opinion to others. I suspect that doing this has also helped to improve my writing.
In 2015, we upgraded the website to make it compatible with mobile screens. There’s a new hosting company as of a couple weeks ago. You should know that managing the tech details are beyond my ability, but I’m grateful that Dave Rourk and Rick Vidallon have always been there to manage things for me. All I have to do is write and upload the content.
Today thus begins my 15th year in this project. I have no plans to stop anytime soon, because I enjoy this. If you have any ideas or suggestions, please don’t worry that I’ll be resentful if you contact me about them; I want to hear what you have to say. Now let’s see if the justices have any love letters for us this Thursday.