APPELLATE MYTHS AND LEGENDS
(And a Few Facts)
In recent years, Ive 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
Now that shes nearly grown, Ive looked for myths and legends in todays world, and Im happy to report that Ive found them, in spades. Lawyers have heard tall tales about appellate courts that theyve taken to heart. As with many legends, such as that of Theseus slaying the Minotaur, theres 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 youve argued a petition for appeal in the Supreme Court, and you still havent heard from the court, it means you wont 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 isnt one of them. Those factors are (a) how busy the Clerks 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 its dropped off at the Clerks 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 theyre argued. If theres a backlog in the Clerks Office, and youre 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, its 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
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 cant 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 youll need the relief. Dont file it the day before the deadline; and for Petes sake, don’t wait until the deadline has already expired.
(B) Youre 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 youre not asking for some extraordinary relief.
(C) Theres 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
(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 doesnt involve life and death.
(E) Now for the caveat: Dont ask the justices to extend mandatory, jurisdictional deadlines, because they cant do it. Those are set by statute, and even the Supreme Court cant override a statutory mandate.
Myth #3: If you file your petition for appeal or opening brief in the wrong appellate court, its time to call the malpractice carrier, because youre dead.
No, youre quite alive, and you can put the phone down. By statute, if an appeal is filed in the wrong appellate court, its 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 doesnt 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, theyre all lying to me when they uniformly tell me that they hate procedural dismissals. (I choose to believe that theyre 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). Im 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 cant even touch political questions, such as whether a given statute or ordinance is wise, or efficient. If youre appealing an issue like that, youre destined to lose. Second, in one sense the government wins the majority of the appeals in which its involved, because so many appeals come in criminal cases.
Myth #6: The justices don’t grant writs in small-dollar cases.
Ive 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 youre paying a lawyer to handle your appeal, it may be wholly uneconomical to take up a tiny claim; but the justices wont 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 theres a kernel of truth behind the myth, but the problem is easy to avoid. Youre 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 youre lying to them in an effort to purloin a victory. Repeatedly failing to answer questions directly when theyre 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
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. Its true that the Supreme Courts 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 Clerks 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 dont 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.