UPDATE ON RECENT (AND UPCOMING) APPELLATE DEVELOPMENTS
(Posted September 23, 2016) Now that the rains have stopped here in soggy Tidewater, let’s raise the periscope and see what’s going on in the appellate world.
Decline in cert grants
I’ve written previously about the fact that the Supreme Court of Virginia has cut back sharply on the number of appeals it awards. (That being said, there are already 14 from the writ panels three weeks ago.) While incoming petitions in Richmond are definitely down, the number of writs is noticeably lower than caseload factors alone would explain.
But our court isn’t the only one where the justices are being more selective. At One First Street, the cert-granted rate at SCOTUS has been “sluggish,” according to an essay on the website Empirical SCOTUS. The Big Supremes have granted only 29 cert petitions for October Term 2016, leaving “over half of the Court’s merits docket still open.”
For those of us who make our livings in the appellate arena, the decline in business is alarming. For trial lawyers, the takeaway is a little different; this underscores the bon mot that the best appellate strategy is usually to win the case in the trial court. With fewer grants, there are correspondingly fewer reversals, in both courts.
Oral argument hell
I received from a pal this link to the oral-argument audio in a Seventh Circuit case involving a policy decision by Indiana Governor and Veep wannabe Mike Pence, prohibiting Syrian refugees from settling in the Hoosier State. The audio is at times painful to listen to, not because the argument is poor, but because of the bludgeoning that the court administers to an experienced appellate lawyer: Indiana Solicitor General Thomas Fisher. His tormentors are Judges Richard Posner, Frank Easterbrook, and Diane Sykes.
I won’t editorialize and spoil the plot; I’ll save the freshness of the content for your ears. All I’ll say is that if an appellate jurist ever says to me as I stand at the lectern, “Honestly, you are so out of it,” it’ll be time to hunt up a new career. (If you’re curious but you don’t have half an hour to spend listening, here’s written coverage of the argument from The Indiana Lawyer.)
Some non-VANA writing
In the hope that you like the prose you find here, I’ll give you links to a couple of articles I’ve written that have been published recently elsewhere. The first is a book review I wrote for the State Bar’s magazine, Virginia Lawyer. The second is a fun historical piece I wrote for the ABA Council of Appellate Lawyers; its publication Appellate Issues is hot off the press, released just this week. (You’ll need to scroll all the way down to page 46 for my essay.)
By the way, I invite you to check out the entire issue of CAL’s journal; it’s a terrific resource. I heartily endorse your joining the organization if you have an appellate practice. One extra perk: CAL members automatically get the annual law review, Journal of Appellate Practice and Process; no extra charge.
One last plug for AJEI
The ABA Appellate Summit, formally known as the Appellate Judges Education Institute, draweth nigh. It’s November 10-13 in Philadelphia. I’m going, and so are hundreds of other appellate judges and lawyers from across the nation. The CLE programming is top-notch, and you’ll get to rub elbows with, and share ideas with, appellate lawyers from elsewhere.
One of the summit’s regular features is the Friday morning roundtable discussions. The organizers pick half a dozen or so topics, set up that many tables, and invite anyone who’s interested to come, ask questions, offer advice, and learn from your appellate colleagues in a laid-back, small-group setting. I’ll be leading the discussion entitled, “Solo and Small Firms: Latest Challenges in Managing a Small Appellate Practice.”
But don’t come only on my account. Want to hear an informal conversation with Justice Kagan? How about a preview of next year’s SCOTUS Term (incomplete as it is right now, there will surely be more grants by November) featuring Paul Clement? You can be dazzled by Dean Erwin Chemerinsky’s unbelievable memory for details during his two hour-long programs discussing OT15 decisions, both of which speeches he delivers entirely without notes. You can learn how writing in the digital age is different from what you learned in law school. There’s even an hour of ethics credit to be claimed, if you need that.
I’ve been to five previous ABA Appellate Summits, and have always found the program to be well worthwhile. Next year’s program might be on the West Coast, so here’s your chance to attend one without flying back and forth across the North American continent.