SIGN OF THE TIMES[Posted March 28, 2014] My readers have seen my recent alarmist ramblings about the falling number of writs granted by the Supreme Court of Virginia. I’m still waiting for the current State of the Judiciary report, which will give me statistical details to back up (or disprove) my description of this situation as the “collapse of the writ market.”
Today I got word of the newest sign of the appellate apocalypse. The April argument docket is out, and it’s the shortest one I’ve ever seen: Just nine appeals, spread over two days; opinion day will be Thursday, April 17. Arguably it’s only eight cases, as two of the appeals are companion cases under the ironic name of Herring v. Commonwealth and Commonwealth v. Herring. (For those of you who have been stashed away in the Maldive Islands for half a year, the Commonwealth will be represented in both cases by a lawyer who’s employed by the Attorney General, whose name is Herring. No relation, I’m confident.)
You could even make a case for its being 7 1/2 appeals, as in one case (Harman v. Honeywell International), the court won’t allow the appellee to argue, since the company evidently didn’t file a rules-compliant brief by the filing deadline. I infer this because under Rule 5:26(i), if a party doesn’t file a brief that complies with the rules, that party “will not be heard orally, except for good cause shown.”
I’ve warned before that if these shadows remain unaltered by the future (forgive me for purloining a phrase from Dickens’s shortest masterpiece), those of us who make a living at Ninth and Franklin are in for a hard time. We count on a steady stream of disgruntled litigants, emerging from trial courts vowing to appeal; but we also earn the rent money by getting writs when we seek them. These days, there are far fewer of those to go around. To be sure, the court has always handed out writs with tweezers; but in the past two years, the pace has slowed dramatically.