FROM THE APPELLATE BENCH

[Posted March 28, 2008]  This morning, at the VTLA Annual Convention in Hot Springs, Justice G. Steven Agee addressed the convention with remarks entitled, “Appellate Practice for the Trial Lawyer.”  Here are some highlights of his address:

• Read the rules.  This concept is fundamental, but is often ignored by lawyers who know the trial system, but seldom venture into appellate courts.

• Remind the trial court about any unresolved motions or objections.  Remember, appellate courts review trial courts’ rulings; they can’t act if the trial court never reached an issue.  If the trial court still doesn’t rule, you can (and usually should) assign error to the trial court’s failure to rule.

• Make a proffer.  If your evidence is excluded, the appellate court can’t evaluate your case unless it knows what was held out.

• Hire a court reporter.  Using a written statement might occasionally be appropriate, but those occasions are rare, usually limited to situations where the dispositive issue is exclusively legal.  There’s no reason to rely on your fallible memory when a transcript can conclusively establish what happened.

• Prepare your brief in opposition with care.  This is usually the appellee’s best opportunity to win the case.  If the appellant has made a fatal mistake, don’t assume that the court will find that mistake on its own; you should point it out and bring it to the court’s attention.  The court’s caseload is such that you should make it easy for the court to rule in your favor.

• Get a second set of eyes and ears.  The lawyer who tried the case is often so deeply involved in the proceedings that he cannot see the issues in the detached way that another lawyer could.  Getting someone else to review your petition or brief can give you a great perspective on ways in which it can be improved.

• Oral argument matters.  Don’t assume that the case is always decided on the briefs.  Remember that the court will decide the case – either at the petition stage or on the merits – the same day that it hears the argument. You want to leave the court with the impression that your view of the case is the correct one.

• Appear in person, if at all practical, to argue your petition.  There is a qualitative difference between presentations that are live and those that are heard over the phone.

• Don’t spend oral argument time on the facts. You should assume that the court knows the facts, so just proceed with your argument.  One effective way to begin is by telling the court, “Unless the court has any particular questions about the facts, I will address them only as they relate to a particular assignment of error.”  The court prefers this approach to an unnecessary factual recitation.

• Confront adverse authority, preferably right away.  If you’re at the merits stage, and your appellee has raised a new Supreme Court case that seems to fit your fact pattern, you’d better address that case in your reply brief.  If you don’t, then you will address it involuntarily during oral argument, instead of arguing the points you want to make.

• Identify your case-dispositive issues, and argue those first in oral argument.  If you assign error to several issues, decide in advance which ones are most important to your case, and rely on your brief for the other ones.  Otherwise, you might get tied up with questions on less important points, and never get to your crucial issue before your time expires.

• Heed the recent explosion in petitions for rehearing.  The court grants such petitions roughly 1% of the time.  [Note:  Recent statistics show the grant rate in PFR’s to be roughly 5%, but I don’t have 2007 figures yet.  In addition, the statistics I have are not segregated into writ stage and merits stage, so Justice Agee may have been referring exclusively to PFR’s after published opinions.  In that sense, I suspect 1% is probably correct, and may even be generous.]

• Where the court grants some but not all of your assignments, the PFR is a useful tool to point out where a rejected assignment is, in fact, foundational for another assignment on which a writ was granted.  If that’s the case, then a rehearing petition may persuade the court to grant the writ on the other issues, too.