A REVIEW OF OLD WISHES

 

 

(Posted January 20, 2020) Last week, as I reviewed my posts for a few 15-year highlights, I came across this post from just over ten years ago, in which I crafted a fanciful list of wishes for the appellate system. Why not review those now, and see how many came true?

 

  1. Action on the Lemons Commission. This one came true, as the Supreme Court implemented most if not all of the commission’s recommendations to streamline the appellate process.
  2. The rise of technology. Appellate proceedings still aren’t broadcast, but the courts now commendably post online their oral-argument audios from merits sessions. That’s a positive step, and probably all we’re likely to see anytime soon.
  3. Fourth Circuit vacancies. Happily all filled now. The court has been at full strength, except for short periods between a retirement and a confirmation, for almost the entire ten years. The President is making it a priority to fill as many vacancies as possible, so I don’t expect another problem like this soon. The Senate did, of course, confirm the two nominees whose names were in the hopper back then – now-Judges Barbara Keenan and Jim Wynn.
  4. Two-sided brief printing. No dice. While appendices are printed two-sided, the appellate courts still require that briefs be printed on one side of the page only. That being said, the rules now require far fewer paper copies of briefs and vastly fewer copies of appendices, so perhaps we’ve spared the trees after all.
  5. Appellate specialization. There was a small step of progress here, as lawyers can now describe their practices as “specialized,” though they still can’t call themselves experts. There still has been no movement to certify appellate advocates, as other states do, but anything’s possible with a wish list.
  6. New (or renovated) digs for the CAV. The Court of Appeals hasn’t moved to nicer facilities, and I don’t know if the dreadful condition I saw back then still exists, or has been ameliorated by renovations.

In all, that’s not a bad success rate. How about now? I mused awhile over what items I might wish for today. Here are a few ideas.

  1. Emulate the Hoosiers. The State of Indiana has a program in its intermediate appellate court that brings the judges to the people. This article from an ABA publication describes the program with the alluring name Appeals on Wheels, and it looks terrific. According to the article, the court had convened in 84 of the state’s 92 counties by the middle of last year, and by now, they may have met at least once in all of them. The Court of Appeals of Virginia approximates this by holding court in several cities in four regions; but they’ve never come close to covering the whole state. The Supreme Court convenes two remote writ panels per year, in late summer, in varying locations. These “road shows” generate tremendous goodwill with the host localities. I believe that both courts should consider expanding the number of sites for arguments, for all the reasons spelled out in the article.
  2. More writs, anyone? The justices have reined in sharply the number of appeals they award. That results in spectacles such as this month’s micro-session, with just nine appeals argued. The justices spent just 4 ½ hours in the courtroom this month. Part of this is due to a decline in new filings, though the caseload indicators show signs that that decline may have bottomed out. Even so, the decline in the number of writs is steeper than the drop in new business, so there’s an external factor at work. That factor may be a conscious desire to reduce the court’s merits docket; I have no way of knowing. My wish here is for more grants of appeals, so the bench, the bar, and the public get more input on the law.
  3. An appellate bench-bar conference. If your local jurisdiction convenes a bench-bar conference, you already know how valuable this is. The opportunity to meet your jurists face-to-face and talk informally is a boon for everyone. On a national scale, the ABA’s Council of Appellate Lawyers, of which I’m an executive board member, is in effect such a conference, and our annual appellate summits are priceless opportunities. Why not create one for the Virginia appellate bar and benches? The triennial (or so) Virginia Appellate Summit is the closest we come to this concept, but in my experience, most jurists who attend will give their presentations and then leave. We can do better to encourage camaraderie.
  4. An appellate rulebook. This is a minor request, but other states do it and we should, too. My copy of the Rules of Supreme Court of Virginia, which covers every court proceeding from juvenile courts to the Supreme Court, runs to one thousand two hundred pages, and that doesn’t include the 200-page pocket part. The rulebook is unwieldy, but it can easily be separated into trial-court rules and appellate rules, as the other states have done.
  5. Focus orders. I’ve written about this previously, too: If the appellate court were to send lawyers an order a couple of weeks before argument, specifying which issues the court finds particularly important, it would enable the lawyers to be better prepared for those. Right now, oral argument is a pop quiz, and the appeal can go to the party whose lawyer thinks better on her feet, instead of the side that ultimately should prevail. Really, would you rather have the best impromptu answer, or the best answer?
  6. No more drive-by oral arguments. Here’s a pet peeve that I’ve ranted about – well, okay, I was more polite than that – that I’ve discussed. Just over 50 years ago, each side in an appeal got one hour to argue a merits appeal. That number dropped to 40 minutes in 1969 and to 30 minutes in 1971. Ten years ago, the Supreme Court cut that in half, to 15 minutes per side. When trial lawyers go to argue their first appeals, the typical reaction is, I had no idea that 15 minutes would go by so fast; I didn’t get to make the arguments I wanted to raise. The ever-downward trend in argument time is not, in my view, a good idea. Sure, the court can grant extra time in certain appeals, and death-sentence reviews always get more. But the last death review was several years ago; meanwhile, litigants with eight-figure judgments have to get by on a quarter-hour. My final wish is for the court to restore the 30-minute limit for most appeals, subject to the court’s occasional provision of more or less time in more or less complicated appeals.

If the experience of my last set of wishes is any indication, then given time, many or even most of these wishes might come true. And if I’m still at the keyboard ten years from now, maybe we’ll revisit this newest list then.

[Addendum: I’ve realized that the “Appeals on Wheels” article is behind a paywall. If you’d like to read it, send me a note. SE]

 


SCV RULES ON CAPITOL SQUARE GUN BAN

 

 

(Posted January 17, 2020) I don’t know if the Eastern District has pondered securing protection for the term Rocket Docket®, but today the Virginia courts are showing that they belong in the conversation, too. In litigation that has raced through the court system, the Supreme Court of Virginia today issues a ruling in a lawsuit that didn’t exist three days ago. The case is Gun Owners of America, Inc. v. Northam, and addresses the Governor’s emergency temporary ban on firearms in Capitol Square.

If you’ve followed the news this week, you know that next Monday is the planned date for a Capitol Square rally by the Virginia Citizens Defense League. They call it Lobby Day, when members come to Richmond to urge legislators to protect Second Amendment rights. To the best of my knowledge, all previous such rallies have been peaceful.

This year, the Governor has received word that trouble might be on Monday’s agenda. Citing what he called credible reports that alarmed him – word that thousands of persons, some from outside the state, were coming to Richmond on Monday, and not all of them had a peaceful demonstration in mind. This Wednesday, January 15, he decided to act to stem what he feared would become a tragedy.

That day, the Governor issued an executive order that bans weapons from Capitol Square for a period from 5:00 p.m. today, January 17, to next Tuesday, the day after the planned rally. In response, two organizations and three individuals filed suit the next day, January 16 – note that that’s yesterday – to enjoin the order as unconstitutional and in violation of Virginia statutory law.

The circuit court didn’t sit on the matter; a judge convened a hearing on the request for a temporary injunction at 1:30 p.m. the same day. In truth, this was the full trial; once next Tuesday dawns, the whole matter will be moot. The petitioners squared off against Solicitor General Toby Heytens, and the two sides presented their cases and their arguments.

Realizing that quick action was essential, the circuit court judge issued an opinion and order around 4:30 p.m. yesterday, denying the requested injunction. How’s that for speed? Filing, hearing, and decision all in the space of one business day.

You think that’s fast? We’re just getting started. The petitioners, in what I see as a herculean briefing effort, filed an emergency petition for review under Code §8.01-626, and got it to the Supreme Court Clerk while the calendar still showed January 16. That is, the petitioners appealed less than 15 hours after initially filing suit. They served the Solicitor by e-mail. I’ve read the petition; it’s quite well written.

Not to be outdone, the Solicitor filed a brief in opposition this morning. I don’t know if he and his staff pulled an all-nighter, or if they had some previous research handy. But they filed a forceful, well-researched response perhaps ten or twelve hours after getting the petition for review. The brief is 22 pages, beyond the 15-page limit in Rule 5:17A; the Solicitor simultaneously moved for leave to exceed the page limits, pointing out that he hadn’t had time to file anything at all in the circuit court.

We’re not done with the briefing magic: The petitioners managed to file a reply brief, either late this morning or early this afternoon. It’s eleven pages long and replies directly to points made in the brief in opposition. They prepared that brief in perhaps a couple of hours.

Folks, when it comes to briefwriting, I can crank ‘em out quickly; but this was greased lightning work on both sides. I’ve read all three briefs, and they’re quite good; well written and chock full of relevant case citations. I won’t close this paragraph without expressing my appellate admiration for Toby and his staff, plus the three lawyers for the petitioners: David Browne of Richmond and Robert and William Olson of Winchester.

Perhaps you’ve noticed that today is a state-government holiday. The courts are closed, and you can’t get into the building. But with a time-critical issue like this, the parties managed to file briefs and get them into the hands of the SCV Clerk, Doug Robelen. How does one do that when the doors are locked? The best answer I can give you is advance communication. I posted an essay in late 2018 on how to handle emergency appeals, and one bit of advice there is to let the SCV Clerk know in advance that you might have an emergency filing that can’t wait until the next business day. I haven’t spoken with the petitioners’ lawyers, but I’d wager three dollars and eighty-five cents, American money, that they did just that. This procedure allows the Clerk to establish a mechanism for a form of e-filing.

It also enables the Clerk to notify the chief justice, who can assign three justices – or, if he chooses, the entire Supreme Court – to receive the pleadings electronically to permit a quick evaluation, maybe a phone discussion, and a vote. Rule 5:17A(f) allows a single justice to consider and decide the petition, but in practice the court always refers these to at least a three-justice panel.

This evening, six of the seven justices hand down a two-page order that refuses the petition, for a painfully familiar reason. Petitions for review have to be accompanied by the entire trial-court record. This came down Ninth Street so fast that the petitioners didn’t have time to prepare a full record. That means that the justices had no information about any evidence that may have been taken; no idea who said what. The court is left only with “pleadings accompanied by cursory attachments.” The court thus resolves the appeal without confronting the truly difficult issues involved. The gun ban remains in place.

 


ANALYSIS OF JANUARY 16, 2020 SUPREME COURT OPINION

 

 

(Posted January 16, 2020) We have our first published opinion of the New Year from the Supreme Court of Virginia. Today, in Cromartie v. Billings, the justices take up civil rights claims in a false-arrest lawsuit.

Our story begins simply enough: A Petersburg police officer, Billings, stopped a car for speeding. The driver, Cromartie, was a small 56-year-old woman with numerous health issues. When she stopped her car, she started to get out, but Officer Billings told her to get back inside. She complied. The officer, despite having seen her size, decided to wait for a backup officer before approaching her car. (In fairness to him, this might be department policy; the opinion doesn’t address this and I have no way of knowing.)

When the second officer arrived, Officer Billings approached Cromartie’s car. He saw her sitting in the driver’s seat, talking on a cell phone. The car’s engine was off. He knocked on her window. Cromartie looked up from her phone call and said “What” through the window. She then went back to her phone conversation as Officer Billings said, “I need you to roll down your window.” She gave no indication of having heard him, so after a few seconds, he knocked again.

Three seconds later, this minor encounter went south in a hurry. Officer Billings opened the door, grabbed Cromartie by the arm, and yanked her out of the car. He forced her face-down onto the pavement, placing his weight on her back – and inflicting several injuries in the process. He and his backup officer handcuffed her, stood her up, and placed leg shackles on her. They then sat her on the curb near her car.

It gets worse. Officer Billings, evidently knowing little about search-and-seizure law, went twice into Cromartie’s car and started searching her purse. Cromartie asked why he was doing so. He answered that she was under arrest and he needed her identification. It evidently did not occur to him to ask her for her name and license.

An ambulance crew soon arrived, and an emergency medical technician asked Cromartie where her identification was. She gave the EMT the requested information and her correct name. This was the first time anyone had asked for it.

In his second search of Cromartie’s car, Officer Billings found a small metal container. Today’s opinion states that Officer Billings believed that it might contain residue of marijuana or cocaine. That prompted a trip to the magistrate’s office. There, Officer Billings gave the magistrate a sanitized version of his actions, and obtained warrants charging Cromartie with possession of marijuana and obstruction of justice.

How do we know that the officer’s sanitized version wasn’t true? Because of the wonders of modern technology: a body camera. Officer Billings knew that he was recording the entire incident, yet he still chose to spin the events in his favor. But I digress.

At the ensuing criminal trial, Cromartie’s lawyer moved to suppress the fruits of the search of Cromartie’s purse and car. The prosecutor chose not to oppose that motion, so the court dismissed the possession and obstruction charges and tried Cromartie for speeding.

This litigation ensued. Cromartie sued Officer Billings, asserting numerous claims including assault, battery, and malicious prosecution. She also stated §1983 claims for unreasonable force and false arrest, plus a state-law statutory claim for an unlawful search. At a jury trial, the judge struck the last three claims, based on immunity. The jury then decided the remaining common-law claims in Cromartie’s favor, awarding her damages of about $23,000.

Cromartie appealed the dismissed counts. Today, the Supreme Court unanimously reverses – but that’s only half the story.

The court first takes up the unlawful-search claim. Virginia has a statute that permits a civil action for such a search, because mere exclusion of the evidence – assuming the search turns up any evidence – isn’t likely to fully compensate someone whose right have been violated. The trial court held that sovereign immunity shielded the officer from liability, but today the justices rule that his actions constituted wanton and willful misconduct, so the immunity won’t help him.

Next, the court discusses the §1983 claims. Those are subject to qualified-immunity analysis, and again, the trial court had ruled that that doctrine protected Officer Billings from liability. But that doctrine, too, has important limits. It applies unless a reasonable officer wouldn’t have been aware that he was violating clearly established rights.

The original basis of the traffic stop, speeding, isn’t a crime but a traffic offense, so there was no cause to arrest her or search her car and purse for that. As the chief justice notes in today’s opinion, a search incident to a lawful arrest has to be for evidence of the crime, and one would not expect to find evidence of speeding inside a lady’s purse. As for the second, merely declining to roll down one’s window after having been asked once isn’t obstruction of justice under clear precedent.

The Supreme Court rules today that no immunity protected the officer from liability, so it sends these three claims back for trial. But when addressing the scope of the retrial, the justices note that the jury has already resolved the underlying facts, in Cromartie’s favor. Officer Billings didn’t appeal that judgment, so the jury’s findings are the law of the case. That means that liability is established, so the retrial will be on the issue of damages only.

This matters a great deal, because one of the remedies for violation of civil rights is §1988 attorneys’ fees. Billings is going to have to pay Cromartie’s lawyer, in addition to any other damages the second jury may award.

I’ll offer three closing notes about this remarkable ruling. First, the opinion describes Officer Billings as “a former police officer.” I have no idea whether this incident led to his former-officer status; the City may have fired him or he may have resigned or retired for unrelated reasons. But if he was terminated, the City may not be indemnifying him for the damages and fees that Cromartie is entitled to. He was represented in this appeal by a lawyer in private practice, not a City Attorney, though that might be a nod to specialized legal expertise.

Second, the closing lines of today’s opinion state that while retrial will focus on damages only, “we note that evidence ordinarily presented for liability purposes may also be relevant to the question of compensatory and punitive damages, an award of costs, interest, attorneys’ fees, and such other damages as Cromartie sought in her complaint.” That means that the second jury will get to hear the whole story; not just a dry recitation of Cromartie’s injuries and medical costs.

Third, if this case were in the federal system, the officer would likely serve a Rule 68 offer of judgment on Cromartie, to try to limit his liability. But we’re in state court, and Virginia doesn’t have a Rule 68 equivalent. There’s no way for Billings to make this case go away now, except to pay what Cromartie demands. I suppose Chapter 7 is an option, though I don’t know if intentional-act liability like this can be discharged in bankruptcy.

In my previous gig in Virginia Beach City Hall, I defended numerous §1983 suits. We had an excellent set of risk managers, and I had a terrific boss who understood which cases we could try and which ones we had to settle. Thankfully, we almost never had to try a case with as much merit as this one has.

 


NOTES ON A NEW MILESTONE

 

(Posted January 14, 2020) Today marks 15 years from the date when I launched this website. No, I didn’t envision back then publishing for 15 years. But when I was growing up in the 60s and 70s, the year 2020 was a component of science fiction; I never was much good at seeing far into the future. I sometimes succumb to the common human fault of envisioning too short a timeline when making plans.

I decided that the best way to mark this occasion is to look back at some of the most significant posts over the life of this site. In a very real sense, that gives short shrift to what I regard as the most important feature of this site — the same-day opinion analyses. I may mention one or two here, but by a wide margin, those daily essays dominate the word count over VANA’s history. But it would be hard to say that one day’s “Analysis of [date] Supreme Court Opinions” was more momentous than any other — with the possible exception of January 14, 2005, of course.

These, then, are the essays that seem most significant to me, along with a couple that I regard as my personal favorites.

 

What Not to Say (posted 2006). This is, by a comfortable margin, the single post that I send most often to lawyers. I frequently get a call or an e-mail from someone saying, “I’ve got an appearance before a writ panel on Tuesday. Do you have any tips for me?” My standard reply is to send out a hyperlink to this essay, along with an invitation to call me if any questions linger. I’m happy to report that I almost never get follow-up questions. One bit of information in that essay is now obsolete: In the past, a single justice could grant a writ, even over the opposition of her two colleagues. This carries out the statutory mandate that if there’s any disagreement among the writ panel, the matter shall be heard and decided by the full court. But the justices decided a while back that they didn’t like that arrangement, so they decided internally to require two votes for a writ. (How can they just ignore a statute, you ask? Well, who’s going to reverse them? More important, the voting on petitions is secret, so you’d never know if you lost by a 2-1 vote.)

The Top Ten Ways to Lose Your Appeal (posted 2005). For this essay, I decided to publish the rough script of an MCLE presentation that I had delivered a couple of times. It’s half serious and half comedy routine. I prepared it that way because I don’t like boring CLE programs, so I figure my audience won’t, either. After I posted this, an amused reader sent me a link to an essay titled, “The Wrong Stuff” by Ninth Circuit Judge Alex Kozinsky, making many of the same points. My reader was being complimentary, but I was horrified by the thought that someone would perceive that I had plagiarized the judge’s work. I decided to take the step of writing to the judge, pointing out what I had done in ignorance of his work, and offering to take down my post along with an apology. His honor wrote back, a singularly gracious note that I’ve kept all these years. He said that there were significant differences between the two, and he complimented me on it and urged me to retain it.

Interviews with Sun Tzu, Cicero, Hemingway, and Casanova (posted on various dates in 2005-07). I’ve always regarded publishing this website as a fun project; as my creative-writing outlet. These four fanciful “interviews” were among the most enjoyable to compose. I got the idea from reading The Art of War by Sun Tzu, and seeing parallels to the decidedly more peaceful arena of appellate advocacy. That led me to post advice on appellate strategy and tactics (Sun Tzu), oral argument (Cicero), legal writing (Hemingway), and even persuasion (Casanova), imagining what each expert would say about his field. The very end of the Casanova interview is among my favorite lines on this site, and I’ve been assured by an appellate jurist – whom I trust – that it’s true.

Occasional forays across the Potomac (various dates). As I’ve often observed, I don’t usually cover the Supreme Court of the United States because I’d need another life to do that. SCOTUSblog does a marvelous job there, and I commend the site to you. But on a few occasions, I’ve posted commentary on major rulings — you know, the ones that generally come down right at the end of June, just as the Robes are getting out of Dodge for the summer. I remember in particular my musings on Boumedienne v. Bush, involving the civil rights of accused terrorists or enemy combatants in U.S. custody; about how Chief Justice Roberts’s 5-4 majority opinion in the Affordable Care Act litigation required him to straddle the fence on whether the individual mandate imposed a tax or not; how the court got away with deciding U.S. v. Windsor without a true appellant. While these are fun excursions, I’m sticking with my day job, eyeing developments on the banks of the James.

The Practitioner’s Guide to the Care and Feeding of Court Reporters (posted 2009). I posted this because I felt that too many trial lawyers took court reporters for granted. Appellate lawyers realize that reporters are absolutely essential for appellate practice; they’re occasionally the most important person in the trial courtroom. This essay is a guide to how to make the reporter’s job easier. After I published it, I started getting enormously heartwarming notes of appreciation from court reporters, and not just those in Virginia. Someone reposted the essay to a publication dedicated to the reporting profession. From their reaction, you’d think that I was the first person to think of treating court reporters as fellow professionals. I’m not; I just happened to be the first to write about it.

On Professionalism (posted 2011). I received an invitation from the Wiggins School of Law in North Carolina to deliver one of their periodic professionalism lectures; this was a rough transcript of my remarks. Of all the essays I’ve posted, I’m probably proudest of this one.

Nine Reasons Why Appellate Practice Is Better than Trial Practice (posted 2013). When my trial-lawyer pals tell me their tales of woe about this nasty deposition or this interminable trial, I never cease to take a perverse pleasure in sending them a link to this humorous (but true!) essay, which explains why we in the appellate bar have it much better. Come on over to the Dark Side

Does Noting an Appeal Deprive the Trial Court of Jurisdiction? (posted 2015). Once upon a time, this was a real open question. But in July 2019, the Supreme Court added Rules 1:1B and 1:1C, laying out precise rules for who can do what, when. Because it was four years between my post and the rule change, I can’t say that the one influenced the other, but I like to think it helped a bit.

The Evolution of Appellate Oral Argument (posted 2016). This was more history project than current-events report. But I found the changes in oral advocacy over the centuries to be fascinating (and a little alarming, given the clear downward trend in argument times).

Supreme Court Grants Rare Mandamus Writ (posted 2016). I have to assure some of my readers that I’m not a court insider and never have been, and I have no secret pipeline to information that isn’t available to the public. Exhibit A to that assurance is the Supreme Court’s lightning resolution of Howell v. McAuliffe, the appeal over the Governor’s effort to “re-enfranchise” 200,000 convicted felons with a single stroke of a pen. The justices entertained a historic oral argument in the summer, on July 19, 2016. I attended, not wanting to miss history unfolding, and then blithely went about my travel plans later that week. To my astonishment, I learned during that trip that the Robes had handed down 63 pages’ worth of opinions – a majority and two separate dissents – just three days after the echoes died from the last argument. That required a lot of quick reading, a placeholder essay of a few paragraphs that evening, and a lengthier analysis the following week. No, folks, I don’t know what they’re going to hand down, or when.

ROBOLAWYERS? REALLY? (posted 2016). Please, no. Not while I’m still practicing.

On Language and Diplomacy in the Appellate World (published 2018). I got a particularly gratifying number of comments, all positive, on this essay about how life in some appellate courts can turn nasty, and how glad I am that that doesn’t happen here.

Emergency Appeals: A How-to Guide (posted 2018). When I agreed to give a CLE presentation on this topic, I looked and found nothing, nothing at all, written on this subject in Virginia. I figured that while you might never get an appeal where hours mattered, it might be comforting to have some guidance out there.

 

Thank you, my readers, for making this site a success, and for your kind words over the years. We start Year 16 now; opinions on Thursday, anyone?

 


A LOOK AT RECENT APPELLATE DEVELOPMENTS

 

 

(Posted January 7, 2020) Here’s a quick look at a few things happening now in the appellate world.

 

The appellate bar gets smaller – in a good way

Virginia Attorney General Mark Herring announced yesterday that he’s chosen Roanoke appellate lawyer Erin Ashwell as his new chief deputy. The current chief, Cynthia Hudson, will leave next month after six years on the job; she’s reportedly going to return to the private sector. Erin is a terrific lawyer and a delightful person; the AG has chosen wisely.

 

The incredible vanishing docket

Back on December 19, the Supreme Court announced its January session schedule, featuring just eleven appeals. The first session of the calendar year is usually the smallest; for the prior two years, the court calendared just 13 arguments each, and it was 12 in 2017. Eleven is a step down, though still in the same ballpark.

But that was then. Last Friday, the court issued a revised schedule featuring just ten arguments. As of this morning, we’re down to nine.

I don’t know about you, but I regard the shrinking merits docket with alarm. The justices are granting fewer writs than at any time since I began publishing this website. That means fewer arguments to keep appellate lawyers from getting bored. More important, it means fewer published opinions to guide bench and bar. This is not a good sign.

 

A painful ruling from the CAV

This one’s a real head-scratcher: The Court of Appeals today agrees with an appellant that the trial court mistakenly applied Rule 1:1 to bar consideration of her post-trial motions. There’s no suggestion that the error was harmless. And yet the court affirms. How did this happen? Let’s look into Nelson v. Commonwealth to find out.

This is a prosecution for embezzlement. A trial judge convicted Nelson after a bench trial in September 2017. A few days later, in early October, the court entered a conviction order that directed preparation of a presentence report.

Three and a half months later, while we’re presumably still waiting for the report, Nelson’s lawyer filed a motion for a new trial, citing an allegedly erroneous evidentiary ruling. The prosecution replied that this motion came too late, since it was more than 21 days after trial.

That reply is, to put it diplomatically, deficient in the merit department. Okay, I’ll say it candidly: It’s flat-out wrong. Rule 1:1 starts operating when the court enters a final order. In criminal prosecutions, that’s the sentencing order. And the trial court hadn’t entered one of those. The motion was perfectly timely.

Alas, that fact escaped the attention of the defense lawyer. Perhaps he read the prosecution’s reply, checked the rule, and caved, figuring that a career prosecutor wouldn’t get this wrong. The defense lawyer stated orally to the judge that the motion was, indeed, untimely and the court didn’t have jurisdiction to consider it. The court entered a consent order – a consent order! – denying the motion on jurisdictional grounds.

We now jump forward to September 2018, almost a year after trial. The defense lawyer filed yet another new-trial motion, this time alleging a violation of Brady v. Maryland. The prosecution again asserted the bar of Rule 1:1. The court denied the motion without explanation and finally, in December 2018, entered a sentencing order.

We now have an obvious problem: The trial court was patently wrong in its ruling, but it entered an agreed order to carry it out. Nelson’s appellate counsel asserted the unmistakable error in the Court of Appeals, and unsurprisingly a panel of that court today agrees with the defense’s analysis: the trial court got it wrong. But the panel declines to address that error, finding that Nelson’s lawyers have approbated and reprobated – said one thing in the trial court and the opposite on appeal. It also declines to apply the ends-of-justice rule, because that provides an exception for failure to preserve error; not for a waiver like this.

Nelson has one other appellate contention, urging reversal to correct a hearsay ruling. Today’s opinion contains this tragic trial-transcript excerpt:

[DEFENSE COUNSEL]: Okay. Did you hear him say anything about that check?

[COMMONWEALTH ATTORNEY]: Your Honor, I’m going to object. That’s trying to get out hearsay, but just not asking for the specific [sic] of it.

JUDGE: Mr. Tyler.

[WITNESS]: I heard him say . . .

JUDGE: Whoa, whoa, ma’am. Hang on. [Defense Counsel].

[DEFENSE COUNSEL]: I withdraw the question.

JUDGE: Okay.

(Sigh.) I have no way of knowing, without more context, whether the question was improper or not. But I can tell you, with 100% certainty, that the defense waived the objection. Trial lawyers often want to be seen as reasonable, or perhaps curry favor with trial judges, by withdrawing objections. That may or may not prove ingratiating, but from an appellate standpoint, this is always fatal; you can’t appeal a ruling that the judge never made.

I’ve included some editorial comments here that make it appear that I’m rooting for Nelson. That’s not quite true; I don’t know if she’s truly guilty or not. What I mourn is the tragic loss of appellate issues to entirely avoidable trial mistakes. Nelson may be able to state an ineffective-assistance claim under Strickland v. Washington, but this direct appeal is going nowhere; the CAV panel affirms the conviction.

 

A new Wellness Coordinator

The Supreme Court announces today the hiring of a Wellness Coordinator to serve in the Office of the Executive Secretary. The justices import Margaret Hannapel Ogden from the Commonwealth of Pennsylvania as the first occupant of this office. The announcement describes her duties as to provide “education of, and assistance to, judges, lawyers, and law students regarding professional health and wellness initiatives, with a focus on improving mental health and addressing substance abuse in the legal profession.”

I’ve been very pleased to see the new emphasis on lawyer wellness in the past year or two. Most of you have seen the reports that our profession suffers disproportionate rates of substance abuse, depression, and suicide. The old approach has been for lawyers to feel they have to suck it up and accept these risks as part of the price of being in this profession. I’m glad we’ve moved past that.

This initiative comes too late to help a couple of my lawyer pals – one of whom was an appellate attorney like me – who chose to end their lives. I’ll be thinking of you, my brethren Tom and Gray, as I follow the progress of this new program.

 


NOTES ON THE CLOSE OF 2019

 

 

(Posted December 31, 2019) The year 2019 is in the books – at least as far as the appellate courts are concerned; the rest of you still have a few hours left in which to misbehave – and it’s time to take a quick look back. I’ll follow this up a bit more expansively in a couple of weeks when I mark yet another milestone on this site.

 

Supreme Court final numbers

The justices of the Supreme Court of Virginia handed down 77 published opinions and published orders this year, to go with 31 unpublished orders. The court entertained oral argument in 106 merits appeals, up slightly from the 100 arguments in 2018.

 

David-Goliath Index

I’ve reported recently on the rate at which the “big guy” in litigation wins against his smaller adversary. I’ve defined the terms before, and have noted that there is at least a small amount of judgment involved, so I won’t repeat that; instead, we’ll go straight to the bottom line. The year ends with another strong showing by Goliath. At year’s end, I count 39 wins for Goliaths in published rulings against just 11 wins for our Davids, for a final D-GI of 22/78. That is, the little guy won 22% of such appeals and – well, let’s be positive and say “took home the silver medal” 78% of the time. Goliath did a little better this year than last year, when the D-GI was 31/69. That 78% figure is also the approximate aggregate D-GI over the past four years.

 

Court of Appeals of Virginia opinions

The CAV issued 86 published opinions this year, a significant increase from last year’s 66. Perhaps this is the growth industry for the appellate bar. Business has been down in the Supreme Court for a number of years now, though there was a slight uptick in new filings in the latter court this year.

 

CAV criminal reversals

Two years ago I recounted a fun anecdote from my bar-exam prep course, where the professor teaching us criminal procedure encouraged us to regard that in close calls, a tie always goes to the Commonwealth. He explained that that’s because “This is Vir-gi-ni-a. The defendant is guilty.” The CAV’s disposition of criminal appeals bore that out in 2019. The court handed down 55 published opinions in criminal appeals, and the criminal appellant secured a reversal only seven times. Seven! While that represents a success rate of a meager 12.7%, keep in mind that even that figure is, in a very real sense, inflated. That’s because those 55 opinions don’t reflect the enormous number of appeals where the court refuses a petition for appeal. The effective reversal rate for all appeals is tiny, though I won’t have an exact figure until I get the court’s annual stats report in the spring.

 


HOW TO SPEAK TO AN APPELLATE COURT

PART 1

 

 

(Posted January 22, 2019) It’s been quite a while since I’ve addressed the topic of oral advocacy. While there are numerous speaking styles, and no one of them is definitively correct, here are some notes on the way I do things.

Part 1 – How to Speak

This section is simultaneously breathtaking in its scope and dangerous in its connotation. The topic of how to speak is immense; the study of rhetoric and oratory goes back at least to Aristotle and Demosthenes. And tackling the task of telling people – educated people, at that – how to do something as basic as talking risks giving offense. After all, while we may realize that we’re not very good at painting portraits or singing or ballet, everybody perceives that he or she can talk well. You do, right?

As for the scope, I won’t try to be comprehensive here. I couldn’t possibly set out in an essay everything I’ve learned about public speaking since I was 13 years old and received my first training in it. It’s far too voluminous, and besides, there are some things that I don’t even realize that I know; they just come naturally after a lifetime of practice.

As for giving offense, please be assured that I’m not here to insult anyone. One of my primary goals in publishing this website is to help you to become a better appellate advocate. But even professionals who are highly skilled in their chosen craft may not know how to convey ideas clearly, forcefully, and persuasively. Here are a few basic suggestions.

CLICK HERE to continue

 


 

EMERGENCY APPEALS: A HOW-TO GUIDE

(Posted October 15, 2018) I’ll confess that I’ve tended to take a lighthearted view of what I’ve described as “omigod appeals,” where a party just has to have immediate review of a trial court’s ruling. I’ve given the example of, “You’re litigating over an ice cream truck, and it’s 97 degrees outside.” I never really gave much thought to when a real need for such an appeal might arise, or how I would go about pursuing one.

All that changed recently when I was asked to speak at an upcoming conference. My topic is how to appeal in denial-of-care cases. Yet another confession: My immediate reaction to that request was, “What’s a denial-of-care case?” I really have lived a sheltered life.

I soon found out that these cases are nothing to take lightly. They refer to the circumstance where a hospital denies medical care needed to preserve someone’s life. There may be squabbling family members, and maybe even a do-not-resuscitate provision in an advance medical directive. In these cases, if a circuit court issues an order allowing or directing the hospital to deny care, and a family member wants to appeal, the normal appellate process is out of the question. These days, it takes well over a year to get from circuit-court judgment to Supreme Court opinion, and most patients in that circumstance don’t have anywhere near that much time. For these folks, there has to be a faster way.

CLICK HERE to continue…