APPELLATE MYTHS AND LEGENDS

(And a Few Facts)

 

 
[Posted December 21, 2011] I’ve always loved legends and mythology; the goings and doings of the Greek and Roman pantheons have afforded me considerable enjoyment over the course of my life. While reading about classical Roman history has always been a passion, I’ve secretly enjoyed even more the legends surrounding the founding and rise of Rome – the whole Romulus-and-Remus thing, followed by the story of the Sabine women, the early kings, the Oath of the Horatii, the courage of their descendant Horatius Cocles at the Sublician Bridge, and all the rest. The same thing goes for the Greek myths. I know they’re not literally true, but neither are the adventures of Robin Hood or Huck Finn or Leopold Bloom, and those can still enrich us.

 

In recent years, I’ve made a point of passing this love along to my daughter, to be sure that she would be no stranger to these great stories. While growing up, instead of Goldilocks and the Three Bears, she got to hear about the judgment of Paris (she always rooted for Aphrodite to win, so she liked hearing that story over and over). When a storm raged here at the Virginia Beach oceanfront, I explained to her, “Poseidon is angry today.” She learned about Prometheus and Echo and Narcissus and even Cerberus, the three-headed dog. As a result, when her English classes turned to mythology, she probably figured it was an easy A.

 

Now that she’s nearly grown, I’ve looked for myths and legends in today’s world, and I’m happy to report that I’ve found them, in spades. Lawyers have heard tall tales about appellate courts that they’ve taken to heart. As with many legends, such as that of Theseus slaying the Minotaur, there’s often a kernel of truth in their core; but most of these perceptions are just myths. Here are a few of the most prominent and persistent ones, along with their more prosaic explanations.

 

Myth #1: If more than a week passes after you’ve argued a petition for appeal in the Supreme Court, and you still haven’t heard from the court, it means you won’t get your appeal. The court issues its writs-granted orders first, and then it prepares the orders refusing petitions.

The amount of time between argument date and the date of the writ depends on a couple of factors, but the outcome of the case isn’t one of them. Those factors are (a) how busy the Clerk’s staff is in the days after writ panels, and (b) dumb luck, measured by how far down the stack of files your case is when it’s dropped off at the Clerk’s Office. Trust me, before you get back to your office, the court has already decided whether to grant you a writ or not. The writ panels rule on petitions the same day they’re argued. If there’s a backlog in the Clerk’s Office, and you’re near the bottom of the stack, your decision may take three or even four weeks to arrive. At the other end of the spectrum, you might see your ruling within two or three days if you’re near the top.

Incidentally, this is one side of a double myth. The other side is, “Gee, it’s been a couple of weeks since my opponent argued for his writ, and we still have no word. That must mean that the justices are thinking about granting it.” And an old Virginia lawyer’s joke goes, “My oral argument went so poorly, the order denying my writ was waiting for me when I got back to the office.” These reciprocal myths reflect pessimism, not reality. You just have to wait your turn.

 

Myth #2: I can almost always get my trial judge to grant a deadline extension, but appellate deadlines are set in stone.

In most instances, you can get an extension of an appellate deadline as long as you have a decent reason, and as long as you ask properly. I can’t give you a rock-solid list of acceptable reasons, but if you genuinely have a reason to ask, file a motion under Rules 5:4(a) or 5A:2(a). Here are a few suggestions and one major caveat:

            (A) File the motion as soon as you perceive that you’ll need the relief. Don’t file it the day before the deadline; and for Pete’s sake, don’t wait until the deadline has already expired.

            (B) You’re required by the rules to notify your opponent in advance that you intend to file the motion. If she consents to the relief requested, be sure to state that prominently in your motion. (“Counsel for the appellee has been advised of the intended filing of this motion, and has indicated her consent to the relief requested herein.”) Consent motions are more likely to be granted, as long as you’re not asking for some extraordinary relief.

            (C) There’s nothing wrong with asking for an extra four or five days when your briefing deadline will fall near a two-week jury trial, or during your previously planned trip to Aruba. The justices understand that lawyers have lives, too, and you aren’t required to drop everything in order to meet appellate deadlines. That being said, you should temper your expectations; don’t try to ask for four or five weeks unless you have a truly extraordinary cause.

            (D) Explain why you want the extra time, even if your opponent consents. The justices will want to know the reason behind your request, even if it doesn’t involve life and death.

            (E) Now for the caveat: Don’t ask the justices to extend mandatory, jurisdictional deadlines, because they can’t do it. Those are set by statute, and even the Supreme Court can’t override a statutory mandate.

 

Myth #3: If you file your petition for appeal or opening brief in the wrong appellate court, it’s time to call the malpractice carrier, because you’re dead.

No, you’re quite alive, and you can put the phone down. By statute, if an appeal is filed in the wrong appellate court, it’s simply transferred to the correct one. Code §8.01-677.1. Now, if you mistakenly file your petition for appeal in the trial court on the last possible day, pick up the phone. The statute doesn’t cover situations like that.

 

Myth #4: Appellate jurists love catching lawyers in procedural errors and dismissing appeals on technicalities.

Conceivably they do; but if so, they’re all lying to me when they uniformly tell me that they hate procedural dismissals. (I choose to believe that they’re telling the truth.) The justices on the Supreme Court and the judges on the Court of Appeals far prefer that appeals be decided on their merits instead of based on defaults. But they have rules to follow, and those rules require litigants to preserve issues for appellate review, to file transcripts and briefs on time, and so forth. It wouldn’t be fair to appellees to allow appellants a free pass on violating those rules.

 

Myth #5: The Supreme Court almost always rules in favor of the government (state or local).

I can tell you that private-sector lawyers earnestly believe this myth to be true, while public-sector lawyers often believe the converse to be true (they think that the court almost always rules against the government). I’m a former government attorney, and from what I can tell, neither is true; the court gives both sides a fair shake. There are two things that might engender this perception, though. First, the separation-of-powers doctrine requires the courts to afford enormous deference to the legislature on judgment calls on legislation; indeed, the courts can’t even touch political questions, such as whether a given statute or ordinance is wise, or efficient. If you’re appealing an issue like that, you’re destined to lose. Second, in one sense the government wins the majority of the appeals in which it’s involved, because so many appeals come in criminal cases. Virginia’s two appellate courts affirm most of the criminal-law appeals they see, but that isn’t because of bias; it’s because the appellants take up cases that have no business being appealed. Of course, when you’re serving two consecutive ten-year prison terms, you’ve got plenty of time on your hands to craft a petition for appeal.

 

Myth #6: The justices don’t grant writs in small-dollar cases.

I’ve written on several occasions in the past to debunk this legend. While a very large amount in dispute might help a little in getting a writ, the justices have shown no reluctance to take cases involving very small dollar amounts. Perhaps the best recent example is Martin v. Duncan, 277 Va. 204 (2009), where the Supreme Court reversed a ruling that required the plaintiff to pay the cost of the jury – $540 – upon taking a nonsuit. I could offer plenty of examples of appeals over four-figure disputes in just the past six years. Of course, if you’re paying a lawyer to handle your appeal, it may be wholly uneconomical to take up a tiny claim; but the justices won’t refuse to consider it merely because the dollars are relatively insignificant.

 

Myth #7: Going in for oral argument is a painful, embarrassing, grueling ordeal.

This is one where there’s a kernel of truth behind the myth, but the problem is easy to avoid. You’re generally in for that merciless grilling only if you bring it down upon your own head. There are several ways to do this; the most effective is to misstate the record in your brief. Appellate jurists don’t appreciate that, because it looks like you’re lying to them in an effort to purloin a victory. Repeatedly failing to answer questions directly when they’re put to you can also get you in hot water (though the first time will generally earn you only a restatement of the unanswered question). But the overwhelming majority of appellate arguments go by without an embarrassing incident or a fiery confrontation. You should expect to receive tough questions (for which you should have prepared in advance, of course); but with the current set of appellate jurists here in Virginia, you’ll virtually never get an unfair or mean-spirited question.

 

Myth #8: Appellate jurists take three months off during the summer.

Mention this one to one of the justices or judges and the reaction will be anywhere from resentment to outright laughter. It’s true that the Supreme Court’s term ends with the June Session and the next one starts with the September Session, just over three months later. And the Court of Appeals convenes its last argument panels of the term in June, before a three-month hiatus over the summer. But the judges and justices work just as much when the sun is warm as they do during the autumn, winter, and spring. Petitions for appeal don’t stop coming into the Clerk’s Offices over the summer, and someone has to read those in preparation for the next writ panels. (The Supreme Court actually convenes writ panels in mid-July and in late August.) Over the summer, the justices are writing opinions for cases from the June argument docket. And of course, both courts are gearing up for the first arguments of the next term.

 

Myth #9: Petitions for appeal should be printed and bound.

            This one is sort of a myth. The rules don’t require that petitions be bound; you can just staple them in the upper left-hand corner and send them in. Rules 5:6(b) and 5A:4(b), which require binding, only apply to briefs and appendices (plus petitions for rehearing in the Court of Appeals), not to the initial petition for appeal.

            That being said, I always bind my petitions, because I think the resulting appearance is more professional-looking. But you don’t have to do that, and in truth, the content of your petition is vastly more important than the type of binding in determining whether you’ll get your writ.