TIME TO RETHINK THE CRACKDOWN?
SUPREME COURT LIGHTENS UP ON ASSIGNMENTS[Posted March 14, 2011] Almost three years ago, I noticed an alarming development in Supreme Court practice here in Virginia; it prompted me to post a Paul-Revere essay entitled, “Caveat Appellant: Supreme Court Cracks Down on Insufficient Assignments of Error.” (Here; I’ll prove it to you.) I noticed that the time-honored practice of specifically identifying the precise alleged error, and nothing more, in assignments of error was producing some very surprising procedural dismissals, as the justices found the wording of the assignments to be insufficient to apprise the court and the appellee of what, exactly, the appellant was appealing.
This came as a big surprise to me, and it was a far worse surprise to the unfortunate appellants whose appeals got prematurely dunked because they employed a practice that had seemingly served the court and the bar well for generations. After all, the only thing I thought a lawyer was required to do was “lay his finger on the error”; after that, he could argue whatever he wanted, as long as it fit within the contours of the assignments.
This sudden shift prompted me to advise appellants to add more detail to their assignments, to make clear not only the fact of the error, but also the reasons behind it. I passed along some advice I received from a member of the court, to use the word because in your assignments. That forces the advocate to do more than list a terse statement claiming error, and then move on to the statement of facts.
I was glad to notice this shift early, and to provide the warning note. But predictably, some lawyers overreacted, just as they did in 1991 in response to Lee v. Lee, in which the Court of Appeals held that endorsing an order with the previously acceptable “Seen and objected to” was not enough to preserve error. After Lee, hyper-conservative lawyers began crafting novellas to attach to the backs of judgment orders, to ensure that no appellate issue got waived. The legislature rode to the rescue within a few months, amending Code §8.01-384 to override Lee. (It’s a good thing, too. In my humble opinion, Lee was wrongly decided; the fact that the legislature added a clause that the new statutory language was “declarative of existing law” probably adds just a touch of credence to this view.)
The overreaction to the 2008 “crackdown” was a tad subtler; there were no novellas this time, but one could thumb through appellate briefs in late 2008 and see half-page-long assignments as lawyers strove to avoid procedural dismissals that can be a pox upon one’s State Bar record. Assignments may not have become clearer, but they certainly got longer. Full disclosure: I took my own advice, and my post-crackdown assignments were probably twice as long as they had been beforehand.
I began to receive anecdotal evidence the next year that the court’s insistence on detail was short-lived. An appellate pal told me of a merits argument where he appeared as an appellee, and began his oral presentation with the happy argument that the appellant’s assignments lacked the necessary detail. To his dismay, Justice Kinser told him, “That’s for the argument section of the briefs. Let’s hear your argument on the merits.” Basically, Forget the cheap victory, Bub; you’re going to have to do this the hard way.
In the intervening months, I had seen some assignments, quoted in opinions, that seemed to be a lot shorter than I would have thought safe. I still wasn’t sure. But in the opinions released ten days ago, I got some fairly conclusive evidence that the crackdown is now really-most-sincerely dead. Exhibit A is the following language in Lee v. City of Norfolk, Record No. 092385:
“Lee appeals the various adverse rulings and assigns error, without elaboration as to the nature of the error, as follows (verbatim):
1. The trial court erred in dismissing Lee’s due process claim.
2. The trial court erred in dismissing Lee’s inverse condemnation claim.
3. The trial court erred in dismissing Lee’s property damage claim.”
You’ll note the phrase without elaboration as to the nature of the error there, which signals ominously that the court views these assignments as too sketchy. Face it: The author of these assignments clearly was not heeding any advice that I gave in 2008 on this subject. As I read this opinion, I expected a rebuke from the court and a formal admonition in this published opinion that inadequate assignments would still get the appellate death penalty. But I was wrong.
Let me repeat that language, as The Boss often asks me to do when I use that phrase at home: I was wrong. Instead of dismissing the appeal, or even chiding the appellant, the court proceeds to address the issues of all three assignments on their merits. The appellant loses on those merits; but the court gives no hint that the simplicity of the assignments themselves played any part in the outcome.
There is but one conclusion to draw from this: The Supreme Court has backed off its prior insistence that assignments must include more detail than the nature of the assigned error. I’m very happy to report this development, as I saw the previous move as a shift in a troublesome direction. (Think novellas.) It was particularly problematic for the poor lawyer who first got a dismissal order in 2008, since that thunderbolt came out of a blue sky.
Now for one last surprise: I still plan to include a bit more detail in my assignments than I had pre-2008. Why would I still follow advice that has been overtaken by events? Because it forces me to be a better advocate, by focusing my argument on what’s wrong with the ruling. It can also be more persuasive. Here’s one example of what I mean: I’ll set out two possible wordings for an assignment of error, and you tell me which one leaves you leaning in my client’s direction.
Choice A: The trial court erroneously permitted Expert Witness Jones to testify.
Choice B: The trial court erroneously permitted Expert Witness Jones to testify, because she was never identified in response to specific discovery requests.
There’s one last fringe benefit of including the additional detail. Just in case I’m reading the tea leaves incorrectly, or just in case there’s a resurgence of the court’s preference for detail, I’m covered. Sometimes, a wee bit of defensive lawyering makes sense.