ANALYSIS OF APRIL 8, 2021 SUPREME COURT OPINION AND ORDERS
(Posted April 8, 2021) The Supreme Court of Virginia decides one appeal by published opinion this morning. Bryant-Shannon v. Hampton Roads Community Action Program, Inc. rises from a defamation suit filed by a former executive-level employee of an organization that addresses poverty-related problems in the southeastern corner of the state.
The employee sued the organization based on statements placed in her personnel file and on statements made in a Virginia Employment Commission proceeding after her termination. The circuit court sustained a demurrer and dismissed the suit.
Today the Supreme Court unanimously affirms the dismissal. The court reviews the statements in the personnel record and agrees with the trial court that they don’t contain the requisite sting to maintain a defamation action. Here’s one example:
[O]n September 9, 2015, you . . . engaged in several email messages concerning the minutes of one of our board meetings. You also emailed Mrs. Ben Shalom about the status of one of the agency vans. You were engaging in these activities while you were on vacation. I am requesting that when you are on vacation, please refrain from any communication with staff unless it is an emergency.
The justices today hold that this isn’t defamatory; it’s a request for future actions.
The issue that probably gets this opinion published relates to the second class of claimed defamation, the statements in the VEC proceeding. A statute bars the use of information provided to the VEC in judicial or administrative proceeding. In a ruling of first impression at this level, the court holds that this statute confers absolute privilege to those statements.
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In an unpublished order, the Supreme Court also dismisses Sheehy v. Williams, an appeal that I discussed here back in November. There, a plaintiff got a money judgment for about $50,000. The defendant noted an appeal and got a writ. During the pendency of the appeal, the defendant sold her home. To enable her to convey good title, the settlement agent paid off the judgment, which would otherwise have impaired the buyer’s title.
The judgment creditor then moved the Supreme Court to dismiss the appeal as moot, because the appellant had paid the judgment voluntarily. Because these facts occurred after the record was finalized, the justices remanded the case to the circuit court for factfinding on what had happened.
The learned judge duly answered the justices’ questions. That told the Supreme Court that the appellant had known about the judgment payoff and hadn’t objected to it. The Supreme Court today rules that this indeed moots the appeal.
In another unpublished order, the justices address an unusual procedural quirk arising from a Batson challenge. In Bryant v. Commonwealth, the defendant demanded a jury trial on a charge of unreasonable refusal to take a breath test.
After voir dire and just before the jury was seated, Bryant’s lawyer noticed that the only black member of the venire had been struck by the prosecution, and requested the opportunity to make a motion outside the jury’s presence. The court accordingly directed the selected jurors to wait in the jury room and the other veniremen to wait in another area.
Bryant’s lawyer noted that his client was black, and the Commonwealth had removed the only black venireman with a peremptory strike. After argument, the court ruled that the strike was impermissible, but doubted that enough veniremen was present to start the selection process anew. Bryant’s lawyer told the court that the only remedy he sought was to restore the struck black venireman, expressly adding that the request didn’t include empaneling a new jury.
The court decided to fashion what it thought was an appropriate remedy: It added new veniremen and gave each party one more strike. The ensuing jury convicted Bryant.
After trial, Bryant’s lawyer renewed the motion to reseat the struck juror, this time arguing that the only legitimate option was to empanel a new jury. In oral argument, though, the lawyer only argued for reinstatement of the black venireman.
On appeal, Bryant urged the Supreme Court to hold that the circuit court should have either reinstated the struck venireman or empaneled a new jury. But because the lawyer had disavowed the new-jury alternative when it mattered – at the time of the Batson challenge – the justices refuse to consider it.
That means that the only issue on appeal is whether the court abused its discretion in using the approach described above. The justices today agree with the trial judge that merely reseating that venireman would be problematic because it was clear that she had initially been struck – remember, she was part of the group that had been set apart from the initially selected jury – and might foreseeably hold that against the Commonwealth in the trial.
In a footnote at the end of today’s order, the justices note that the question of whether the circuit court’s approach was proper or not isn’t before them, because no one assigned error to it. Today’s ruling is limited to the question whether the circuit court acted within the bounds of its discretion in not reseating the struck venireman.
NOTES ON AN EVENTFUL WEEK
(Posted April 2, 2021) As we endure one last assault from Old Man Winter – the temperatures here are typical of mid-January – let’s reflect on developments in an especially meaningful week in the Virginia appellate world.
An appellate revolution
It’s happening. On Wednesday, the Governor signed Senate Bill 1261, creating an appeal of right in all cases. Virginia has finally caught up with the rest of America after having been left behind for years.
Effective January 1, 2022, all appeals from Virginia courts of record will go directly to the Court of Appeals. The Supreme Court of Virginia will become a court of pure certiorari, reviewing CAV appellate decisions (with very few exceptions, such as attorney discipline proceedings). This is a massive change, at least as significant as the creation of the CAV back in the 1980s. It will require a host of new jurists – the plan adds six seats to the CAV – plus more support staff, assistant attorneys general, and so forth. It’s a good time to be an appellate lawyer in Virginia.
I’ve heard that CAV Chief Judge Marla Decker has asked that the General Assembly expand the court as of July 1, 2021, so the newly configured court can get up to speed. Some of the new appellate judges may come from trial benches, creating a ripple effect of new appointments downstairs, too. (Legislators love handing out robes.)
You should expect the newly elected judges to better reflect the diversity of Virginians as a whole. The current set of judges is overwhelmingly white (9 out of 10) and almost as male (7 of 10). Significant geographic areas of the state are underrepresented or wholly unrepresented; you should expect new judges from those areas.
The legislature will probably also seek more diversity in practice areas. Eight of the current judges are former Commonwealth’s Attorneys or AAGs; the other two handled insurance defense. There are no former public defenders, plaintiff’s tort lawyers, Workers’ Comp practitioners, divorce lawyers, condemnation lawyers; and the list goes on. That’s about to change.
The practice of appellate law will change, too. Getting an immediate merits review, without having to pursue a writ, will make appeals more attractive. You still won’t see a huge reversal rate, but the Supreme Court now grants so very few writs that most circuit court judges can feel confident now that the odds are small that their rulings will ever be reviewed on the merits. That, too, will change, as an appellee must deal with the fact that there’s going to be a written opinion in every case that’s appealed.
E-filing is here to stay
Yesterday the Supreme Court announced significant rule changes, effective June 1. The main thrust of them is that the courts will stop accepting paper filings of pleadings, briefs, and motions. Everything will be filed electronically now through VACES. The only exception is the trial-court record, and you as practitioners don’t have control of that anyway. Oh, you can get an exemption to file paper documents if you can convince the court to give you one, but don’t expect that. Inmates filing pro se can file by paper, but if you’re willing to commit a felony just to be able to file on paper, well …
This change is likely to reduce the costs of appealing. The current rules allow costs for brief printing, but what will those costs be now? Code §17.1-605 provides for taxation of costs for the actual cost incurred “in printing or otherwise reproducing” briefs and the appendix. SB 1261 didn’t change that; but where nothing actually gets printed, will the appellate courts allow anything?
If you’ve invested money in brief-printing consultants, it’s now too late to sell your stock; it’s probably already tanked. I strongly suspect that all such companies have reworked their billing model so that it’s no longer based on the number of pages printed. Those companies that still bill by the reproduced page will be scrambling now.
First Quarter David-Goliath Index
With three months in the books, it’s time to see how our little guys and big guys fared in Supreme Court litigation so far this year. The court handed down ten published or unpublished merits rulings that fit our criteria: an identifiable big guy/little guy dispute. That means no divorces, no intercorporate squabbles, and no boundary-line suits.
In published opinions, our Davids won twice and Goliaths four times. For unpubs, Goliath was undefeated, 4-0. That gives us an inaugural D-GI of 2021 of 20/80. David is off to a slow start, but with a small sample size like this, that could change. Back to you in early July.
ANALYSIS OF APRIL 1, 2021 SUPREME COURT OPINIONS
(Posted April 1, 2021) On this national holiday – it is a holiday for baseball fans, anyway – the Supreme Court of Virginia hands down rulings in seven argued appeals. Five of those are published opinions.
Cue the battalions! Line up the partisans on both sides! Today the Supreme Court decides City of Charlottesville v. Payne, the litigation over Charlottesville’s decision to remove statues from and rename parks dedicated to Generals Lee and Jackson, of Civil War fame. In such litigation, we may justifiably expect stirring discussions of political and military history and a highly charged discussion of the place of such monuments in modern society.
Well, actually, this ruling is about grammar. That’s all. No fireworks; no cannon; no stirring speeches.
After Charlottesville decided, in the wake of the August 2017 civil disturbance in the City, to remove the Lee and Jackson statues, several local citizens sued to enjoin the removal. They cited a 1997 statute that allows localities to erect war memorials, and bars anyone, including the locality itself, from disturbing or interfering with them thereafter. (Do you realize how hard it is to distinguish between statue and statute while typing? Gives me yet another round of respect for my capable legal assistant, the estimable Cathryn Chitty, who types my briefs and pleadings.)
The circuit court agreed with the plaintiffs; it declared the removal resolution to be in contravention of the 1997 statute, enjoined any removal or disturbance, and awarded the plaintiffs attorneys’ fees. The justices agreed to take a look at the case.
Justice Goodwyn pens today’s unanimous opinion. As noted above, the decision comes down to parsing the language of the statue – I mean, statute – and the court finds that all of the provisions therein are in the present tense. That means that the statute only applies prospectively: It only governs monuments erected pursuant to the statutory grant of authority.
The Jackson statue first rose in 1921; the monument to Lee came three years later. That means that the City isn’t bound by the 1997 act, at least for the purposes of these pre-1997 monuments. The court thus reverses and enters final judgment for the City.
You were expecting fireworks?
We’re all familiar with the American rule on fees. That rule states that each party generally must bear its own legal expenses. There are few exceptions: fee-shifting statutes or contract provisions, plus the occasional fraud award. Today the court considers whether to add another exception. The case is Bolton v. McKinney, and comes from Rockingham County.
The warring parties here are former business partners. When the relationship soured and they partners separated, McKinney filed lawsuits against Bolton. These actions led to the collapse of the business and Bolton’s bankruptcy.
In bankruptcy court, the two entered into an agreement. In exchange for $25,000, McKinney gave Bolton a covenant not to sue for any matters within the scope of the agreement.
That didn’t end well; McKinney sued Bolton anyway; three times, in fact. The courts dismissed those suits, citing the covenant. Bolton then sued McKinney for breach-of-contract damages. The damages that he claimed were his attorneys’ fees in defending the three actions.
A judge designate heard the matter and ruled that McKinney had indeed breached the covenant. But after pondering the matter, he ruled that the American rule barred an award of fees as damages. Bolton got a writ.
Justice Mims turns his efficient pen to the task of drafting today’s unanimous opinion. (Careful courtwatchers know that Justice Mims is one of the two most concise writers on the court, along with Senior Justice Russell.) The justices acknowledge that the question presented here – whether attorneys’ fees are recoverable as damages in a suit for breach of a covenant not to sue – is one of first impression in Virginia.
Courts elsewhere have come down on both sides of this question. Some rigorously apply the American rule, while others have held that in suits like this, fees are the damages; they’re the only thing that will make the wronged plaintiff whole. The Supreme Court today agrees with the latter approach, holding that attorneys’ fees may be awarded in suits like this. The court remands to circuit court for calculation of those damages – and, presumably, appellate attorneys’ fees.
One of the happiest aspects of an all-appellate practice is that I don’t have to fill out disclosures under pretrial scheduling orders. I’ve never prepared one in my entire career; nor have I ever litigated a John Crane motion. The disclosures of two experts form the backdrop for Galloway v. Northampton County, involving a challenge to real-estate tax assessments by a county and town.
Galloway owns property near the Town of Cape Charles, a beautiful spot off the shores of the Chesapeake Bay on Virginia’s Eastern Shore. The property spans the town/county line. Galloway sued both jurisdictions, claiming that they had overvalued his property in the wake of the 2008 recession and its concomitant depression of land values.
I tried a number of these challenges in my previous life in the City Attorney’s Office here in Virginia Beach, so I can tell you that you absolutely, positively need expert witnesses – specifically, real-estate appraisers – to prove your case. Galloway identified two, and the circuit court struck them both, leaving him powerless to prove his case. The court accordingly dismissed the lawsuit. Here’s what happened to prompt those rulings.
Galloway identified Expert #1 back in 2015, just before an unexplained three-year pause in the proceedings. He did so in interrogatory answers, specifying the expert’s name, credentials, opinions, and the basis for those views. This document was a unified response: It began with interrogatory answers, then set out responses to document requests. The client signed the interrogatory answers under oath, as required; the lawyer signed the RPD answers but not the interrogatories. He also signed the certificate of service at the very end.
Years later, just before trial, Galloway’s lawyer noticed that he hadn’t signed the interrogatory answers. Without prompting, he signed them and filed that. The circuit court ruled that his eleventh-hour signature made the disclosure of Expert #1 effective on that date, well beyond the 90-day disclosure deadline. The court accordingly excluded that expert.
The problem with Expert #2 was far simpler; Galloway first identified him roughly 100 days before trial, saying only that he would provide testimony details later. But he didn’t provide those details for two months, well after the 90-day cutoff. The court struck this expert, too.
On appeal, the Supreme Court analyzes the two exclusions separately. For Expert #2, the court has little trouble in affirming. The localities didn’t receive any details about the expert’s opinions until about a month before trial. Under circumstances like these, circuit courts have the discretion to exclude the witness, to avoid surprises just before trial.
Expert #1 is different. The localities knew four years before trial what he would say. The signature omission was a minor matter in circumstances like this. The justices note that the lawyer signed the discovery-response document elsewhere. This brings to mind the Supreme Court’s 2008 ruling in Hampton Roads Seventh Day Adventist Church v. Stevens, where the court ruled that a testator who forgot to sign the signature line on a will, but had signed the self-proving affidavit on the next age, had “subscribed” the will.
Today’s opinion also notes that the remedy for an unsigned document like this is that it must be corrected “promptly after the omission is called to the attention” of the party. Galloway’s lawyer corrected it before anyone else noticed.
This is a no-harm-no-foul situation, and the Supreme Court today reverses the exclusion of Expert #1, holding that the exclusion was an abuse of discretion. And because Galloway asserted that he could make out his case with either expert, that means the suit goes back to circuit court for trial.
As I’ve noted before, I always find it dismaying when you find the same surname on both sides of the v. in litigation. Plofchan v. Plofchan is a contest over the trust of a family matriarch. It’s a complex factual and procedural setup, so I’ll just focus on the key rulings. If you want more detail on the facts and posture, click on the link; Justice Goodwyn does a good job of spelling everything out in understandable, though necessarily lengthy, terms.
There are two primary issues here. First, the court addresses a collateral-estoppel challenge to the lawsuit. Similar legal proceedings had made their way through the New York court system, leading to a final judgment. Today, the justices rule that collateral estoppel doesn’t bar this action because the issues aren’t the same, and the issue in the Virginia case wasn’t specifically decided in the New York trial.
Second, the justices take up the always-touchy issue of standing. The plaintiffs in the suit were the named trustees of the trust. The settlor – that would be the matriarch – had terminated the trust and “fired” the trustees (two of her children). When they sued to enforce the trust, the matriarch filed a plea in bar asserting that since they had been fired and the trust terminated, they had no standing to sue. After a non-evidentiary hearing, the circuit court agreed and dismissed the suit.
The justices reverse this ruling, too. They turn to elementary pleading concepts to do so. Because the circuit court decided the plea without evidence, the Supreme Court accepts the facts as pleaded in the complaint. That pleading asserted that the plaintiffs were in “office” and had the right to enforce the terms of the trust. The trial court had to accept that in deciding the plea.
The justices accordingly return the matter to circuit court for further proceedings. Note that that’s not necessarily a trial; I suspect that the matriarch can employ other procedural tools to defend this case short of a trial.
The court announces one other published opinion and two unpublished orders today. Each of these appears to me to be highly fact-specific, with little in the way of general application. As such, I’ll list them here so you can review them if you want.
Stafford County v. D.R. Horton, Inc. is a land-use decision where the court rules that a county can require new planning commission approval for a revised cluster development.
Bustos v. Commonwealth addresses a criminal defendant’s request to instruct the jury that Virginia’s geriatric-release statute is so little used as to be essentially ineffective. Predictably, the justices refuse to require an instruction like that.
Jung v. Park leads to reinstatement of a jury verdict in a fraud case. The circuit court had set aside most of a jury’s award of damages. In my experience, setting aside a jury verdict is the surest way for a judge to draw appellate scrutiny.
A LOOK AT APPELLATE STATISTICS – PAST AND FUTURE
(Posted March 18, 2021) The Robes by the James have stiffed us for opinions for the third consecutive Thursday. Let’s look at some numbers instead. After all, there are three kinds of people in this world: those who can count, and those who can’t.
2020 SCV stats
My annual goodie bag has arrived – the Supreme Court of Virginia Statistical Report. It contains scads of details about the court’s operations. Here’s some of what it shows:
Filings are (unsurprisingly) down – SCV Clerk Doug Robelen opened 1,575 new files last year, down roughly 10% from 2019’s figure. I had expected a drop like that because of the pandemic. As appellate lawyers are well aware, circuit-court final judgments dropped off a cliff last year once the pandemic set in; we saw almost no circuit-court jury trials after the Ides of March, and they’re only starting to resume now.
Final judgments in those cases are the raw materials of an appellate practice. Until the trial courts resume something approximating their pre-pandemic pace, appellate courts will see depressed caseloads.
The pain of this reduction wasn’t felt across the board. Criminal appeals remained nearly constant – 831 in 2019 and 818 last year. There was a minor reduction in habeas cases, too. But almost all of the statistical decline came in civil cases: 496 in 2019, down to 360 in 2020 (-26%). The reason for that civil-criminal dichotomy is that the SCV gets criminal appeals only after a stop in the Court of Appeals. The halt in jury trials didn’t affect that pace last year, because the CAV kept on deciding appeals. Thus, The Robes continued to receive criminal appeals while the civil pipeline was mostly stopped up.
Decisions are down, too – The justices announced just 50 published opinions last year. That’s easily the smallest number in all the years for which I have court stats, and my records go back to 1965. I bet you can guess what year finished second-lowest by this metric: 2019, with 59 published opinions.
When you add in the cases decided by order (omitting those where the appellant withdrew the appeal, the parties settled, etc.), last year we got only 86 merits decisions.
Appellees are doing well – Again counting only those merits decisions where the court ruled, the court affirmed roughly 58% of the time. It reversed in whole or in part 41%. This is within what I consider to be the normal annual variance. Note that with a shrinking pool of decisions, we’re likely to see wider swings away from the 50% mean.
Of course, appellees always win when the court refuses or dismisses a petition for appeal. From all 398 civil appeals on which the court ruled last year, it granted 72 (18%), procedurally dismissed 86 (22%), and refused 237 (60%). Criminal appellants took a bludgeoning, as usual; the court granted only 19 writs out of the 794 criminal appeals, a grant rate of 2.4%.
OJ petitioners fare no better – The justices have an original-jurisdiction docket, too. These aren’t truly appeals, in that they’re originally filed in the Supreme Court. They represent things like mandamus and prohibition requests, habeas filings, and the occasional petition for a writ of actual innocence. In 2020 the justices awarded OJ relief to five petitioners out of the 250 filed. That’s 2%.
Last Chance Gulch: rehearings – I met an appellate lawyer from Montana last month, and he told me that Last Chance Gulch was the original name of Helena, the state capitol. (No, really.) That’s poetry, I thought. I decided that that would be a suitable title for the Hail Mary pass that is a petition for rehearing.
In the SCV, there are two types of rehearing petitions. You can seek rehearing after a panel refuses or dismisses your petition for appeal, of you can try it after the full court issues a decision on the merits. For the former type, called panel rehearings, the court granted relief three times and refused it 221 times. For session rehearings, all eleven petitioners struck out. (The last time the court granted a session rehearing was in 2018.)
A crystal-ball peek at 2022 stats
This retrospective-review stuff is too easy. Anybody with a head for numbers can look at what happened last year; the real skill is figuring out what’s going to happen next year. Given the tremendous changes that appear to be on the appellate horizon, let’s venture into the future and see what we can forecast.
First, a word about SB 1261. I’ve mentioned the progress of this bill on a few occasions, most recently on February 12. Both chambers passed versions of the bill, providing for an expanded Court of Appeals that would have original jurisdiction of almost all appeals, civil and criminal, on an of-right basis. The SCV would become a court of pure certiorari.
A conference resolved the differences, and both chambers then passed the legislation on a party-line vote. The bill will increase the size of the CAV to 17 judges effective January 1, 2022. It’s on the Governor’s desk, and he has until March 31 to act on it. I believe he’ll sign it.
This bill has become a political lightning rod, as Republican legislators claim that it’s a Democratic plot to stuff the court full of liberals. As I explained previously, the proposal itself is nonpartisan; also, there are ten judges that I think I can describe as all being fairly conservative on the court now, so the best the Democrats would be able to do is install a minority of liberal judges. In this analysis, I’ll leave the political squabbles to others. Let’s just focus on how the change would affect the courts’ caseload.
Changes in the CAV – I’m hearing Chicken Little warnings about how the Court of Appeals is going to be buried in new filings and won’t be able to keep up, even with a 70% increase in judicial talent. I firmly believe that that’s not true. Let’s look at the numerals. I’m going to use 2019 stats as a baseline here, because I want prepandemic figures for comparison’s sake.
Filtering out the cases filed mistakenly in the CAV, Clerk Cyndi McCoy opened about 2,000 new files in 2019. About 1,500 of those were in criminal appeals. Starting in January 2022, the court will now receive what’s now the SCV’s civil docket, too.
In 2019, SCV Clerk Doug Robelen opened 496 new civil files, a stat that I reported above. Let’s call it 500, and assume that the CAV gets them all. That’s a docket of 2,500.
Two factors will foreseeably cause these numbers to rise. First, the absence of a writ process may lead more disgruntled civil litigants – God, how I love disgruntled civil litigants – to roll the dice on an appeal. After all, if you have an appeal of right, why not take the chance? I believe that the increase in civil petitions will be on the order of 10-20%. But let’s be liberal with this estimate and call it 50%. That adds another 250, for a total docket of 2,750.
The next factor is one that has nothing to do with SB 1261: Virginia has dropped jury sentencing, effective July 1, 2021. This development promises to cause a spike in criminal jury trials across the Commonwealth, as defendants won’t be frightened into plea agreements by the prospect that a jury could send them to prison until the Gaga Administration, second term.
Again, this factor isn’t traceable to the expansion of the CAV, but let’s assume that another 33%, or 500 criminal appellants decide to try their hand with an of-right appeal. That increases the criminal docket from 1,500 to 2,000. Now the total CAV docket is around 3,250.
Right now, the court is handling a 2,000-appeal docket with ten judges. If my figures are right, the caseload will increase by a little over 60%. But the court is getting 70% more judges. I don’t see the crisis.
There’s more. Fifteen years ago, in 2006, guess how many appeals the CAV took in? I’ll spoil your surprise: it was 3,211. That’s roughly the number that I’ve estimated for 2022. And the court handled that larger docket with just eleven judges.
There are complicating factors in the details. Each criminal appellant will now get an oral argument before a three-judge panel instead of the initial one-judge review on the briefs alone. That might make for more work in some criminal appeals. But in my experience, in most appeals in which the one-judge per curiam order refuses the petition, the appellant currently seeks automatic review by a three-judge panel. That means that the overall workload won’t grow by an order of magnitude; you could even make a plausible argument that the total judicial work in the average criminal appeal will go down.
There will inevitably be growing pains in the first year, as former trial judges or practitioners adjust to life as an appellate jurist. But I don’t perceive that the sky’s falling here.
Changes in the SCV – Next year will bring a significant change for the justices. On January 1, 2022, the pipeline of civil appeals will shut off abruptly. Oh, the court will still get the occasional petition to review a CAV judgment in domestic-relations or Workers’ Comp decisions handed down by the Court of Appeals in late 2021. And the stream of unhappy criminal appellants will continue unabated. But for the first chunk of 2022 – my ballpark estimate is about eight months, from January through August – the court will see a noticeable downturn in incoming business.
Of course, we might not notice that downturn, given what 2021 is likely to provide. See above, where I described the effect of the now year-long shutdown of jury trials on the appellate dockets. Let’s just say that, as measured against prepandemic dockets, 2022 will bring a significant reduction in the Supreme Court’s caseload.
We’ll see the effects of this in the size of the SCV’s merits dockets. As noted above, criminal appeals enjoy a tiny rate of success at the petition stage. And over the past five years – from 2016-2020 – civil appeals have made up roughly ¾ of the merits docket. At some point in 2022, those appeals will simply vanish from the Supreme Court’s radar; they’ll be next door, in the Court of Appeals. This should last for about eight months, probably starting in mid-2022. You should expect to see some micro-dockets in 2023.
Differences for practitioners – It isn’t only the jurists who will have to adapt. If you practice in the appellate courts, you may never have to prepare another petition for appeal again – unless, of course, you don’t like the butt-kickin’ that the CAV just administered to you, and you’re hoping for succor from the Supreme Court.
If, like me, your practice is almost exclusively in the Supreme Court now, you’ll need to familiarize yourself with the slightly different rules in the Court of Appeals. (Here’s one, for starters: If you’re going straight to the Supreme Court now, you file your notice of appeal in the circuit court clerk’s office. In the CAV, you have to file that copy, but also another copy with the CAV Clerk. Omit this step at your peril.)
The Court of Appeals has different rules for many things, from appendix designations to rehearing procedures. You’ll need to bone up on those before the end of this year. You’ll also need to know how to identify by sight, and to pronounce the names of, a whole new bunch of judges, not even including the ones who are yet to be elected.
If all of this sounds revolutionary, that’s because it is. If you’re one of those lawyers who are allergic to change, you’re going to have to deal with it; if the Governor signs his name, these changes are coming. I personally regard this revolution as a wonderful development. Virginia now joins the other 49 states in providing a right that’s considered fundamental to a modern system of justice. Be ready.