UPDATE ON APPELLATE DEVELOPMENTS

 

[Posted September 16, 2013] Several interesting things have caught my eye lately:

 

A retroactive grant

Last Wednesday, after arguing one of my cases, I stuck around to watch the arguments in a couple of cases that interested me. One was Webb v. Virginian-Pilot Media, an appeal of a defamation case from down here in Tidewater. The case was argued quite well on both sides, although the appellant’s lawyer did commit one cardinal sin when he used all of his argument time without reserving anything for a response to the appellee. Still, it was a very interesting case that presented some intriguing legal issues.

 

Friday, I learned of a development in the case that I’ve never seen before. Ever. After Wednesday’s oral argument, the justices retroactively granted two assignments of cross-error, directing the filing of supplemental briefs and placing the case on the October argument docket. The appellee’s assignments of cross-error had been refused by the writ panel, and per the court’s Rules 5:20 and 5:20A, that’s the end of the road for the appellee; only an appellant can file a petition for rehearing. I understand that this appellee filed a motion seeking reconsideration, but that was refused.

 

Yet something in the argument triggered a sense of “justice’s remorse,” leading to Thursday’s unprecedented (I think) writ. The only bad news for the appellee is that the ultimate resolution of this case will come in mid-January instead of late October, but that’s not enough to dampen the importance of this action by the court.

In my view, those two rules ought to be amended to permit an appellee to seek rehearing; at least where an appellant gets a writ and cross-error is refused. There’s no good reason why this playing field should be thus imbalanced. But in any event, this appellee has beaten some long odds.

 

Judge Elder to retire

This has been reported extensively elsewhere, but the occasion is worth noting. Judge Larry Elder has announced his retirement from the Court of Appeals, effective October 1. He’ll be taking a great deal of seniority, and plenty of accumulated experience, with him. Judge Elder has been an incisive questioner, and he possesses a wry wit that occasionally surfaces in the courtroom, and regularly surfaces on social occasions. The Governor will appoint an interim successor in the next two or three weeks; that successor will be subject to ratification (actually, election) by the General Assembly this winter. Fair winds and following seas, your honor.

 

First read on computers in the courtroom

As I reported here recently, the Supreme Court has for the first time permitted the use of laptops and tablet computers by counsel while they’re arguing their cases. As far as I can tell, the first run of this change went off without a significant hitch during last week’s session; I haven’t been made aware of any confiscations, or even dirty looks from the bench, for transgressions of the new rules.

 

Those rules, by the way, are fairly restrictive. As I noted before, you can’t use your computer to polish your speech while the immediately preceding case is being argued. That’s because until your appeal is called, the computer has to be stowed away in a case.

 

I was interested to see how one patent ambiguity would play out. The policy states that the computer is permitted “solely for use during the presentation of oral argument,” and “The computer must be kept in a case when not being used during counsel’s argument.” The ambiguity lies in the definition of “during oral argument” and “during counsel’s argument.”

 

Does that mean that you can use your computer at any time during the 30 minutes while the case is being argued, or does it mean that you can use it only during the 15 minutes while you’re arguing? In the latter event, you’d have to put the thing back in its case while your Bad Guy is speaking, and then take it out for your response if you’re the appellant. That would make the device fairly useless for note-making in preparation for that response. (This is the triumph of the neo-Luddites like me, who use three-ring binders, fully approved for appellate consumption in all circumstances and all courts.)

 

But perhaps the court is taking the looser approach. I did see one laptop on an appellant’s table, fully opened and operating, while the appellee argued. No lightning bolts descended from the bench; indeed, no one on the court seemed to take any particular notice. It would appear that you’ll have full use of the gadget during the time that you and your adversary are arguing.

 

Of course, this observation is always subject to being modified without notice. After all, I’m just reporting what I saw, and the justices have seven more votes than I do on this. If you get permission to bring a laptop or tablet into the court, I strongly recommend that you make its presence as unobtrusive as possible; don’t flash it around, and for goodness’ sake, don’t type on a keyboard that makes any noise whatsoever. If it becomes distracting, that’s when you’re likely to get called down on it.

 

The summit draweth nigh

My AJEI brochure has arrived. That’s the initialism for Appellate Judges Education Institute, more commonly known as the ABA’s Appellate Summit. This year’s summit will be in San Diego, from November 14-17. This is the best annual gathering of the nation’s appellate bar; the program offers plenty of CLE on advanced appellate-advocacy topics. Dean Erwin Chemerinsky of UC-Irvine’s Law School will again offer two reviews – 90 minutes apiece – of the October 2012 Term of the Roberts Court; one for civil cases and the other for criminal appeals. If he does as he has in the past (and I strongly suspect that he will), he’ll deliver the entire three hours of detailed commentary without notes of any kind, a prodigious feat of memory and absolute mastery of the subject.

 

There are separate track programs geared toward appellate jurists, appellate practitioners, and appellate staff attorneys, and several plenary sessions of common interest. For practitioners, there’s an hour on appellate ethics and a separate hour on “Handling the Difficult Oral Argument,” plus a program on “Effectively Using Standards of Review.” You can fulfill your entire year’s worth of MCLE requirements (except for a second hour of Ethics, which you’ll have to find elsewhere) in one enjoyable extended weekend.

 

If you’ve never been to a summit, the experience is terrific. You get to rub elbows and share ideas with appellate colleagues from across the nation. Thursday evening’s dine-around (where you sign up to go to a particular restaurant, and you have no idea who’ll show up to join you) is a wonderful innovation that I may have to steal when the time comes to plan the next Virginia Appellate Summit.

 

If you don’t want to go to San Diego because fabulous weather turns you off, you might be inclined to wait until the 2014 summit. If tradition holds, that one will be held in the District of Columbia; it’s been there every third year for some time now, and the last one in DC was 2011. I promise the weather in Washington in November 2014 will be worse than it is in San Diego.

 

Here’s a link to the AJEI website, where you can review a copy of the brochure, and register.