[Posted February 3, 2010]  The Court of Appeals has stiffed us on published opinions this week, so this looks like a suitable occasion to post something on the difference between courts of certiorari and courts of error correction. This topic is steeped in appellate-geekdom, but I’’ll try to avoid jargon and keep it lively.

A court of error correction is one that will accept just about any appeal (assuming it has appellate jurisdiction and the issues are properly preserved) in which it perceives that a materially erroneous ruling may have been made. A court of certiorari only accepts appeals that present significant issues for decision, such that the court decides it would be useful to take the case and issue a definitive ruling.

The best example of a court of certiorari is the Supreme Court of the United States. That court often refuses petitions for cert in cases in which some or perhaps all of the justices think that the ruling below was just plain wrong, but the issue isn’’t important enough to merit space on the court’’s crowded argument docket. In contrast, a court of error correction may accept even routine legal issues if it perceives that the court below reached an incorrect result.

So what do we have around here? Well, the Fourth Circuit really is a sort of court of error correction, but that’’s a bit misleading, because it’’s also a court in which the appellant has an of-right appeal. That is, a litigant who’’s dissatisfied with a ruling in US District Court can appeal the judgment to the court of appeals without having to persuade a panel of judges to take the case. The Fourth will decide the merits of all sorts of appeals, without regard to whether the judges think the district court got it right or wrong, and regardless of whether there’’s a significant legal issue. This discussion relates only to appeals in which the appellant has to get permission to present the case on the merits. This process is called certiorari in the federal system and seeking an appeal or a writ (the two terms are synonymous) in the state system.

The Court of Appeals of Virginia is a hybrid of sorts:– you have to petition for a writ in criminal and traffic cases, but all other appeals are of-right. Thus, a losing domestic-relations litigant can get a full review on the merits, while someone convicted of arson has to ask permission to present the merits of the case to a panel of the court. The Supreme Court of Virginia is technically a hybrid, because a very few proceedings are of-right. But those few exceptions are so rare and limited (primarily death sentences, SCC appeals, and attorney-disciplinary proceedings) that we can regard the court as being one in which a writ is required in just about every case.

So how do you classify the two state appellate courts? Once upon a time, I regarded the SCV as largely a court of error correction. My exhibit A would probably be a contract or will case with very peculiar language, of the type unlikely to recur; in a situation like that, the court’’s interpretation of the document wouldn’’t say much to those litigants looking for precedential guidance (which is why the court publishes opinions in the first place). I’’d point to something like Heron v. Transportation Cas. Ins. Co. from 2007, or Harbour v. SunTrust Bank, decided last November. Exhibit B would be a dispute involving very few dollars, such as the jury costs involved in last year’’s ruling in Martin v. Duncan.

But upon thinking about this some more, I tend to regard the SCV as having a combination of certiorari and error-correction functions. A closer look at Martin v. Duncan, for example, made me realize that the court took this case (involving just a few hundred dollars) because it was necessary to emphasize to the bench and bar that a plaintiff can’’t be punished for exercising his right to a first nonsuit. The significant number of nonsuit cases in the past few years (bringing to mind the spate of sanctions cases a couple of years ago) make it clear that the court is taking pains to define the contours of nonsuit law, not because it always perceives error, but because these rulings affect so many cases. I see a few other hints in other cases that tell me that while the court still corrects errors, it also affirmatively looks for suitable cases in which to make a statement.

I think the CAV is generally a court of error correction. By far, most of the court’’s opinions are unpublished, meaning that the court doesn’’t perceive that there is any significant precedential value to the decision. But in the minority of opinions that wind up getting published, it’’s a different story. The court generally publishes opinions if there is (1) a conflict in previous decisions, or (2) a new statute that hasn’’t been commented upon in the court’’s previous jurisprudence. The court also publishes all en banc rulings, and those can be either error-correction or certiorari; but the first two categories are pure cert.

Now, then: How can the Big Supremes in Washington get away with rejecting an error-correction function?  I’’ll leave aside the simplistic answer (“Because they’’re appointed for life; that’s why”), because the more nuanced answer is the one you need to know about. In every case that’’s presented in Washington, there has already been one round of error-correction review. That round weeds out pretty much all of the trial-court error, leaving the justices free to select the cases that will enable the court to do the most good (or harm, depending on your point of view).

Here in Virginia, most types of appeals go straight to the Supreme Court, so there is no intervening layer of error-correction review. That’’s why the SCV is at least largely a court of error correction. If it were a court of certiorari, then the poor litigant who lost a mundane but case-dispositive ruling wouldn’’t be able to get an appellate court’’s attention.

Here’’s why this should matter to you. If you’’re seeking a writ in any appellate court, you need to keep in mind what kind of court it is. Presenting error-correction arguments in Washington is going to fall flat, because merely giving them an incorrect ruling to review isn’’t remotely good enough. Even contending that the issue is a matter of first impression (which sounds like a good certiorari approach) is just about guaranteed to get the petition for cert dunked quickly at the law-clerk stage. (The justices allow the courts of appeal to analyze the issue first, and only then take a case if there is a meaningful split in the circuits.)

But in the other appellate courts, you can offer both rationales in support of your request for a writ. Showing the SCV or the CAV that the trial court plainly violated a statute or a clear previous appellate ruling is likely to work immediately, and that’’s the approach most appellants take at the petition stage. But don’’t ignore the value of a cert argument; the court might see it as an opportunity to decide an issue of first impression.

One special note for appellees in the state courts:  If you have a victory in your pocket, the safe thing to do is always to oppose a petition for a writ. After all, when the court refuses petitions for appeal, the appellees’’ winning percentage is 1.000. But if you’’re very confident of your legal position and your client is reasonably risk-tolerant, you might want to think about filing a brief in response to the petition for appeal that urges the court to take the case, in order to establish a statewide precedent. If the Supreme Court refuses the appellant’’s petition, you win one case. If the court grants it and affirms, you and your legal kin will win 1,000 cases off into the future. This is one instance in which the court’’s certiorari function overtakes error correction in the decision-making process, with dramatic results.

This approach is very rare; I have only seen it once in the cases I’ve handled. Most appellants would be delighted to get a brief in opposition that’’s actually a brief in support, because for the appellant, any spark of hope is a chance for new life. The key for the appellee’’s lawyer is having a client who’’s willing to take that risk. Most clients are result-oriented, and will want you to take the approach that’s likely to advance their private interests, not the common cause they share with others in their position. But forward-thinking appellees, too, can use the courts’’ certiorari function to great effect, even if it’’s just to see the word affirmed.