VANA AT THE TEN-YEAR MARK
[Posted January 14, 2015] I’m not ashamed to admit it. I was scared.
Somewhere around mid-2003, I was becoming perfectly miserable as a trial lawyer. I grew to dread trial dates – unlike oral argument dates, when I couldn’t wait to get to the lectern. One day, when my alarm clock went off on the morning of a jury trial, I reached over to turn it off and thought to myself, “Gee, maybe one of the witnesses will be ill and they’ll have to continue the case…”
This is what’s called “a sign.” It was a message from myself, to myself, telling me that I needed to find a way out of trial practice. I loved appellate work, but I’d always been told, by sensible older lawyers who advised me in my legal youth and adolescence, that a purely appellate practice was impossible. I had never questioned their judgment before. But this idea offered me a glimmer of hope as to how I could come to enjoy the practice of law again.
I studied. I planned. I interviewed five generous lawyers whom I esteemed – each a worthy AV – and got valuable advice from each of them. I still have that advice in a book that I consult from time to time. I hired a media consultant – Dave Rourk, who’s been with me for over ten years now – and have long regarded that as one of the smartest things I’ve ever done for the development of my career. I developed a sensible business plan that had every chance of working.
And still, I was scared. As far as I knew, no one had ever done this before in Virginia. But I was ready to try. I had to try.
I made one dumb mistake: I didn’t do it ten years earlier. The earliest published appellate decision in one of my cases goes back to 1989 –CUNA Mutual Insurance v. Norman, 237 Va. 33, if you want to know. But I date the beginning of my practice’s appellate focus to ten years ago today, January 14, 2005, when I launched this website with analysis of that day’s Supreme Court opinions. I continued to handle some trial work for another two years before I gave it up and became 100% appellate as of January 1, 2007. Now, that was a red-letter day. But the January 14 date has always been magic to me, since it’s when I started to make myself happy in my career.
Much has happened in the appellate world in the last decade. Let’s start with the turnover on the Supreme Court of Virginia. Of the court’s seven members in January 2005, only one remains on active status today – the court’s newest chief justice, Donald Lemons. In 2005, the SCV took in 2,697 new cases, granted 182 writs, and issued 105 opinions. In 2013, the last year for which I currently have numbers, those numbers were 2,050, 112, and 64, respectively.
One important development that’s worth noting is the court’s docket pace. Several years ago, the Supreme Court was so backlogged that it took almost a year and a half to get from circuit-court judgment to Supreme Court opinion in a granted case. But the court has been proactive about moving things along, and nowadays, that gap is on the order of ten or eleven months.
The Court of Appeals of Virginia has seen the retirements of several long-tenured judges over the years, including Chief Judge Walter Felton and Judge Robert Frank just two weeks ago. Those two vacancies, plus one on the Supreme Court, will be filled in the next month or so by the General Assembly. In October, the CAV elected Judge Glen Huff ofVirginia Beach as its newest chief judge. If you want to compare caseloads at this level, the 2005 Court of Appeals took in 3,184 new cases and decided 924 cases on the merits. 2013 saw just 2,471 new filings and 752 decisions on the merits. (It’s looking like this may not be much of a growth industry.)
The Fourth Circuit was, at one point, down five judges from its allotment of 15. It’s now up to full strength, in part by having purloined two of its judges – Agee and Keenan – from the Supreme Court of Virginia. As for a caseload comparison: In 2005, 5,307 new cases arrived at the Fourth, and it took, on average, 8.0 months to get from the filing of the notice of appeal to final appellate decision. That eight-month gap was the shortest for any circuit in the nation. In 2013, the court took in 5,061 new cases and again led the nation with a median disposition time of just 5.0 months.
We’ve seen technological changes, too. Now all three courts post online the audio recordings of oral argument. Very recently, iPads were unwelcome in the appellate courts; now technophiles can approach the lectern carrying the entire record, plus all of the briefs and all of the caselaw, in one hand, in a tablet computer. It’s still a three-ring binder for me. I’ve never had a battery die or a screen freeze on my three-ring binder.
Most important, we’ve seen the rise of an appellate bar in Virginia – a welcome change that can only help the development of Virginia’s jurisprudence. A better-prepared advocate makes the jurists’ job easier and leads to sounder results. (At least, that’s the theory. Don’t ask any losing litigants for their opinions on this.)
Change has come to this website, too. My earliest opinion-day analysis is still available on the archive pages. I smile a little, and cringe a little, when I go back to review it and consider how scant was my first coverage of that day’s batch of opinions. Since then, I’m confident that I’ve posted well over a million words of commentary. I covered my sixty-first SCV opinion day last week, and have posted perhaps 200 essays and appellate updates, most of which are still available in the archives.
I’ve heard your suggestions, too. A few years ago I added a word-search feature, so if you want to find my analysis of the seminal Cowznofskidecision from several years ago, you can do that without even knowing the decision date. Several of you have suggested an RSS feed. If I can figure out how to do that without giving you a false ping every time I go in to correct a typo, I’ll do that.
I’ve had more than one request for more coverage of important SCOTUS decisions. I do rarely venture across the Potomac, but I’d need another life to do that on a consistent basis. Besides, SCOTUSblog does a fabulous job of covering the court, and I don’t propose to regularly post analysis that’s based on my relative unfamiliarity with that court.
I’ve heard your views about your favorite essays. “What Not to Say,” from way back in 2006, seems to be one of the favorites, or at least the most useful. I’m probably proudest of “On Professionalism” from 2009. So far no one has written to tell me that my prose needs polish, or that my advice is all wet. That’s reassuring.
I’ve received questions, too – a lot of them. As you know, I occasionally compile some of them into a “FAQs” post. Probably the most frequent question about the site itself is, “How do you find time to write as much as you do?” [I budget the time in advance.]
Five years ago today, in another milestone essay, I noted that I had no plans to charge a subscription fee or accept advertising. That’s still true today, as is my 2010 report that “I plan to keep this up as long as I enjoy it, which I emphatically do right now.”
One last point here, and it relates to something that you’ve probably overlooked. On every page on this site, consistently since Day One, the word benignitas has appeared in the left margin, just under the navigation box. Maybe you thought that was the name of the company that built the website. If you saw it, you shrugged and glanced away.
Benignitas is a treasured word for me, and it was important for me to ensure that the website features it, as a sort of motto. It’s the Latin word for kindness, which I consider to be one of the two most important human qualities.
I am grateful for your continued kindness to me over the past ten years. Thank you for making this website a success.