CAV REVERSES OBSTRUCTION CONVICTION
(Posted July 16, 2019) The Court of Appeals of Virginia announces four published rulings today. Among them is a fascinating decision in a criminal appeal. Maldonado v. Commonwealth is the tale of a father who lied to investigating officers to protect his son. The son had borrowed his father’s truck one night for an evening at a bar in Cape Charles, in Northampton County. Leaving the bar after last call, the son drove the truck off the road where it hit a ditch and rolled over.
A deputy sheriff, dispatched to the scene, found the truck empty of occupants but discovered a cell phone inside. Minutes later, the owner’s daughter – this would presumably make her the son’s sister – showed up. She told the deputy that “someone took the truck” from her father’s home, and she wanted to know how to report it as stolen.
As you’ll readily appreciate, this is not headed in a good direction. Investigators came to the father’s home and spoke with him, but the record doesn’t include the contents of that discussion. A few hours later, a State Trooper visited the father and spoke with him at the door to his home. The father volunteered that his truck had been stolen, and pointed to an empty parking space. In response to a question about the son’s whereabouts, the father said he wasn’t at home.
That turned out not to be quite correct. After extended conversations lasting 40-45 minutes, the father went inside and brought the son out. The son initially denied being involved and said he hadn’t left home the previous evening.
Unfortunately, that all unraveled when the police discovered that that lonesome cell phone belonged to a person who had been a passenger in the truck, and was in a Norfolk hospital. That passenger sang like a whippoorwill to a deputy, blabbing in a way that led to an indictment of the father for making a false police report and obstruction of justice.
At a bench trial, the circuit court dismissed the false-report charge, but it convicted the father of obstruction and sent him to jail. Today a unanimous panel of the CAV reverses that and enters a judgment of dismissal. Relying on prior holdings on what constitutes obstruction, the court finds that the father’s actions may have made the investigators’ work less convenient, but it didn’t actually hinder them. The record doesn’t show that this 40-minute delay affected them in any meaningful way. Conceivably the first conversation, several hours earlier, might have done so; but as noted above, the record doesn’t indicate what the father said then.
NEW DAVID-GOLIATH INDEX
(Posted July 15, 2019) I’m a bit overdue in reporting on the justices’ voting patterns in the second quarter of 2019. This feature, which I instituted early last year, collects results from published rulings (opinions and published orders) from the Supreme Court of Virginia, where those appeals have an identifiable Big-Guy-vs.-Little-Guy dynamic. About 15 years ago, each side was winning roughly half of the time on appeal, which is the sort of distribution you’d expect. Trial judges aren’t perfect – a fact for which we appellate lawyers are profoundly grateful – and they’re as likely to err in favor of either side as the other.
But I noticed that the voting started to shift a few years ago, to the point that Goliath was winning far more than was David. I decided to keep track of the results and report them here. In 2016 and 2017, Goliath hit an admirable high-water mark, prevailing in over 80% of those published decisions. Last year, David did a little better, winning 31% of the time and losing 69%. In the first quarter of this year, the DGI was 27/73, meaning that Goliath was still winning far more than losing.
The numbers are in for the second quarter. I had to go back and check again before posting this, because the results surprised me: Goliath had an undefeated quarter, winning all ten decisions in April, May, and June. That raises the year-to-date DGI to 86/14 (18 wins for Goliath to 3 for David). That’s the greatest imbalance I’ve ever seen, though the year obviously isn’t over yet.
A LOOK AROUND THE APPELLATE LANDSCAPE
(Posted July 12, 2019) Despite the lack of summer court sessions, there’s still plenty going on in the appellate world.
Criminal appellate-practice seminar
The Fourth Circuit will sponsor a seminar for practitioners who handle criminal appeals. The program will convene Monday, October 28 and will run from 9:00 a.m. to 5:00 p.m. It’s free to members of the bar. Given the price, the relative paucity of appellate training, and the timing – three days before the MCLE deadline – I expect it to sell out. You can register here.
ABA Appellate Summit
Preparations proceed apace for the Appellate Judges Education Institute, known informally as the ABA Appellate Summit, in Washington DC November 14-17. Registration is now open through this link. The summit is the best annual nationwide gathering of appellate jurists, advocates, and staff attorneys. Yes, you will see me there; I seldom miss these terrific events, and if you’re serious about developing your appellate practice, you should make plans to attend, too. There’ll be four days of educational programming, plus social functions including a reception at the US Supreme Court. In the past, at least one of the Robes has attended those receptions. Next year’s summit will be in Texas, so this year you can attend without bringing your passport.
Road shows loom
Here’s this year’s reminder of the Supreme Court’s remote writ panels, known informally as the road shows. This is the only time all year when the court convenes outside Richmond. There will be one panel in the Supreme Court Building, on the afternoon of Wednesday, August 21. The next morning, another panel will convene in Fredericksburg, and that Friday morning, a third will meet in Grundy.
You should regard these as opportunities for free informal training. The sessions are open to the public, and you’ll likely find it enlightening to watch the court, and the lawyers practicing before it, in action. You’ll see some excellent arguments that can help you to improve your own presentations. You may even see some that will give you ideas on what not to do. If you practice anywhere nearby, make plans to go. If you stay for just 90 minutes, you can see perhaps ten or twelve writ arguments, and learn from each of them.
FOURTH CIRCUIT DECIDES EMOLUMENTS-CLAUSE APPEAL
(Posted July 10, 2019) In two cases with nationwide significance, a panel of the Fourth Circuit has handed the president a significant victory relating to the Emoluments Clause. The court rules that the State of Maryland and the District of Columbia don’t have standing to assert violations of the clause, so the court directs that the actions be dismissed. The court’s two orders are here and here.
These actions center on the president’s business activities, principally his hotels. The District and the State had argued that the Trump International Hotel in Washington “markets itself to the diplomatic community,” so that a stream of foreign dollars flows to the president. The opinion also mentions other aspects of the president’s financial dealings, such as a favorable decision from China on an intellectual-property matter and real-estate projects in Indonesia and the United Arab Emirates. There’s also the matter of the Mar-a-Lago Club in Florida, which the complaint asserts benefits from publicity from the Department of State and US embassies. The ultimate claim is that this setup gives the president’s properties a competitive advantage.
The problem with all this, today’s panel finds, is that neither the State nor the District has made a sufficient showing of Article III standing to bring an action like this. For example, the court rules today that “the link between government officials’ patronage of the Hotel and the Hotel’s payment of profits or dividends to the President himself is simply too attenuated.” The court also notes that any claimed violation may not be redressable in a legal action, adding this zinger:
[C]ounsel for the District and Maryland, upon being questioned, was repeatedly unable to articulate the terms of the injunction that the District and Maryland were seeking to redress the alleged violations. When plaintiffs before a court are unable to specify the relief they seek, one must wonder why they came to the court for relief in the first place.
The court also addresses parens patriae standing, the ability of the government to bring suit to redress harms to its citizens. It finds that the claimed harms here are “exactly the same” as the ones asserted under Article III, containing the same problem of an “attenuated chain of inferences.” And finally, the panel rejects claims based on “quasi-sovereign interests” arising from favoritism, finding this to be nothing more than “a general interest in having the law followed.”
Procedurally, the district court had rejected the president’s motion to dismiss and had deferred adjudicating his claim of absolute immunity. The court then refused to certify the case for an interlocutory appeal. The Fourth Circuit reverses that ruling, grants a writ of mandamus, and directs that the litigation be dismissed, without reaching the claim of absolute immunity. This is an unqualified win for the president.
Today’s opinion contains this remarkable paragraph, outlining how extraordinary this litigation is:
First, the suit is brought directly under the Constitution without a statutory cause of action, seeking to enforce the Emoluments Clauses which, by their terms, give no rights and provide no remedies. Second, the suit seeks an injunction directly against a sitting President, the Nation’s chief executive officer. Third, up until the series of suits recently brought against this President under the Emoluments Clauses, no court has ever entertained a claim to enforce them. Fourth, this and the similar suits now pending under the Emoluments Clauses raise novel and difficult constitutional questions, for which there is no precedent. Fifth, the District and Maryland have manifested substantial difficulty articulating how they are harmed by the President’s alleged receipts of emoluments and the nature of the relief that could redress any harm so conceived. Sixth, to allow such a suit to go forward in the district court without a resolution of the controlling issues by a court of appeals could result in an unnecessary intrusion into the duties and affairs of a sitting President. Accordingly, not only is this suit extraordinary, it also has national significance and is of special consequence.
Under these circumstances, the panel finds that the district court erroneously refused to certify the case for interlocutory appeal. As for the procedural posture, “rather than remand the case to the district court simply to have it pointlessly go through the motions of certifying, we will take the district court’s orders as certified and grant our permission to the President to appeal those orders ….” This marks today’s rulings as remarkable from a procedural perspective, not just for the political implications.
This leaves one unanswered question: Who can sue to halt a violation of the Emoluments Clause? Beyond doubt, that could be used as a ground for impeachment; but can the courts ever take up such a case? How would any party establish standing? We may get an answer to that in further proceedings; I strongly suspect that the State and the District will either petition the Fourth Circuit for en banc rehearing, or else seek certiorari. A cert grant would make 2020 even more interesting than it already promises to be.
A WELCOME RULE CHANGE
(Posted July 8, 2019) Last week, the Supreme Court of Virginia amended the rulebook, adding two new rules and tweaking a few more. The changes are effective September 1. I’m very pleased to see the new provisions, which clear up a troubling ambiguity.
Four years ago, I posted an essay on what jurisdiction remains in the circuit court when one party appeals. In my experience, lawyers and judges had imperfect understanding of how the docketing of an appeal affects the respective courts’ powers to act.
Now we have clear guidance. New Rule 1:1B sets out how the filing of a notice of appeal alters the courts’ powers. It confirms that the appellate court acquires jurisdiction with the filing of a notice of appeal – and not the petition for appeal, which had been the rule back in the 1980s. The trial court still has the authority to act in certain matters, such as setting an appeal bond, enforcing the final order if there’s no such bond, and deciding motions to stay.
Importantly, the trial court retains the authority to modify, suspend, or vacate a final order for a full 21 days, even if an aggrieved party notes an appeal on Day 12. If the trial court vacates the order within that 21-day period, then the notice of appeal fizzles into nothingness, and any aggrieved party must file a new notice after the eventual final judgment. In contrast, a timely order modifying or suspending the final judgment won’t require a new notice of appeal.
Rule 1:1C contains comparable provisions for interlocutory appeals. We’ll start with petitions for review of injunction orders under Code §8.01-626. There, the appellate court gets full control over the part of the case thus appealed, but the trial court still can act in any unappealed portion, absent a formal stay. In other interlocutory appeals, such as certified questions, the trial court can press on with the case unless one court or the other issues a stay.
But that’s not all, folks. The court also:
- Amends the uniform pretrial scheduling order to change from 15 to 30 days before trial the deadline to designate portions of depositions to be used at trial in lieu of live testimony. The 2018 Boyd Graves Conference recommended this change.
- Adds a sentence at the end of Rule 3:20, carrying out the statutory change allowing depositions in summary-judgment motions in certain business litigation.
- In inmate filings, eliminates the requirement that the inmate pay for first-class postage.
- Requires an appellee in the Court of Appeals to list assignments of cross-error when designating the appendix contents. This also carries out a Boyd Graves recommendation.
That, you will appreciate, is quite a haul. For trial practitioners, the most significant changes in this order are those relating to summary judgment and de bene esse depositions. But for appellate lawyers, this is a signal day for the end of the dual-jurisdiction conundrum and for making the process of designations in the CAV fairer.
ANALYSIS OF JULY 3, 2019 SUPREME COURT OPINION
(Posted July 3, 2019) As the Supreme Court will be closed tomorrow (and Friday, too), today is opinion day at Ninth and Franklin. The justices hand down a single published opinion, Young v. Commonwealth, which arrives by way of the Court of Appeals. While the overall subject is criminal procedure, the primary lesson of this opinion is preservation, always a topic of interest in the appellate world.
This is a case about Virginia’s speedy-trial statute. When a defendant is in custody before a felony trial, that act requires that the trial begin within five months from the date of indictment or preliminary hearing. If that doesn’t happen, the defendant is “forever discharged from prosecution for such offense.”
On occasion, the defense desires a continuance of a compliant trial date. If these situations, the time attributable to the defense request isn’t counted against the five months.
Young stood accused of several felonies. The court set a trial date one day before the expiration of the deadline. Reading between the lines a bit, I infer that three weeks or so (I’m guessing as to the exact date) before the trial, the prosecution metaphorically pulled a front-end loader up to the defense lawyer’s office and dumped 1,005 recorded phone calls, running to 225 hours.
Perhaps there was exculpatory information in there; maybe something inculpatory, too. The defense had no way to know other than assigning someone to listen to all 225 hours’ worth. Instead of that, the lawyer moved the court to dismiss the charges, claiming that this ninth-inning dump forced Young “to choose between his right to a speedy trial and the right to effective assistance of counsel.”
Well, now. The court convened two hearings, both before the original trial date, to consider what to do. The court eventually declined to dismiss the indictments, but imposed sanctions against the prosecution, barring it from using the materials and ordering it to supplement discovery by seven days after the scheduled trial date.
After? The defense lawyer indicated his dissatisfaction:
[We] don’t feel this should be a situation which Mr. Young has to forfeit his rights to a speedy trial in light of his rights to have the information that he’s entitled to, which again, once we move this court date will all but ensure we will be outside the speedy trial time.
The lawyer agreed to place the case on the scheduling calendar two weeks after the original trial date, but repeated that he wasn’t agreeing to a continuance past the speedy-trial deadline. He argued that attributing the continuance to Young “would be fundamentally unfair and quite frankly inappropriate,” adding that “this [added] time should be attributable to the Commonwealth.”
After the speedy-trial deadline passed, Young’s lawyer moved to dismiss. The prosecutor fired back that the defense lawyer had stated that he wouldn’t be ready to try the case on the original date. The judge took that argument and ran with it, ruling that while Young hadn’t moved for a continuance, he essentially consented to it. The court ruled that the prosecution hadn’t acted in bad faith, so it declined to dismiss the charges.
Young pleaded to one of the indictments. At a jury trial, the court dismissed two charges and sent the other two to the jury, which convicted Young. The Court of Appeals affirmed, holding that the continuance was court-ordered and not attributable to the Commonwealth. Since the finding of no bad faith wasn’t challenged on appeal, the time didn’t count against the five-month clock.
Today’s opinion, crafted by Justice Powell, acknowledges early on that the trial occurred well after the five-month deadline. But the court affirms on a ground I found surprising, holding that Young’s lawyer didn’t make an affirmative objection to the extension, so he can’t raise the bar of the statute.
I will confess to experiencing a “Wait; what?” moment upon reading this. What about those passages that I quoted a few paragraphs up? Today’s opinion of the court holds that there’s a word missing: objection. The Court of Appeals’ opinion in this case had observed that Young “repeatedly and emphatically stated at multiple stages of the proceeding that he was not waiving his speedy trial right.” Justice Powell confirms that that was the holding, but concludes that Young “reads too much into this statement.” She then writes that those things, vigorous as they may have been, did not amount to an objection: “While Young did not explicitly concur, agree to, or request a continuance, nowhere in the record is there an actual affirmative objection to the court-ordered continuance.”
This opinion is not unanimous, though the result is. Justice McCullough writes for Justice Mims, dissenting from the no-objection ruling – “The record is crystal clear that Young strenuously objected to any continuance counting against him for purposes of speedy trial” – but agreeing with an affirmance on the grounds set out in the CAV’s opinion.
There’s an important lesson here for trial practitioners: You should regard objection as a magic word. Here’s an illustration. You’re in the middle of a jury trial and your opponent adduces evidence that’s unmistakably hearsay. You stand and say, “Your honor, this evidence violates Rule 2:802; it’s clearly hearsay, as it’s offered to prove the truth of the matter asserted.” The judge disagrees and allows the evidence. Today we learn that a solid majority of the Supreme Court believes you can’t raise that issue on appeal, despite the specificity of your interjection, because you didn’t use the magic word.
To me, the majority’s approach is hypertechnical, and unfairly so. Young’s lawyer made his position abundantly clear, and the judge ruled against him. This outcome is the triumph of form over substance. Now, I recognize that form is important; I’m an appellate lawyer, after all. But I’m disappointed that the court used this approach to deny Young a decision on the merits.
One other angle here warrants mention. The speedy-trial doctrine has been seriously eroded by caselaw that allows exceptions to swallow this basic premise: The court needs to try a felony defendant quickly. The statute contains no bad-faith provision; jurists wrote that in, essentially amending the statute so that it operates in a more prosecution-friendly way. Is the denial of other procedural protections subject to bad-faith analysis? Can the prosecution deny the accused a court-appointed lawyer, and make him go to trial pro se, so long as it does so in good faith? How about the right to trial by a jury of one’s peers? There is, to my knowledge, no good-faith exception to the Seventh Amendment.
This suggests one other outcome in this appeal, one that none of the seven justices embrace: Reversed and indictments dismissed. If you read the speedy-trial act the way it’s written, Young was entitled to judgment in his favor. An affirmance is only possible because of the way judicial opinions have modified the statute.
I’m grateful for the chance to discuss these ideas today with a pal who deals with far more criminal appeals than I do. Thanks, Chris.
ANALYSIS OF JUNE 27, 2019 SUPREME COURT OPINIONS
(Posted June 27, 2019) Today is a busy appellate day. Across the Potomac, SCOTUS announces its final decisions of October Term 2018. We get a 5-4 ruling in the partisan gerrymandering cases out of Maryland and North Carolina (the bare majority rules that the redistricting litigation is a nonjusticiable political question, much to my chagrin) and a fractured ruling in the census-question appeal.
But we’re here to focus on developments by the rive gauche of the James. (If you want coverage of those SCOTUS rulings in depth, I heartily recommend SCOTUSblog. I may post a future essay discussing some of the more significant late-term SCOTUS rulings.) Today the Supreme Court of Virginia hands down two published opinions and one published order. Let’s dig in.
Post-trial proceedings in criminal cases carry some, but not all, of the procedural protections at trial. One difference is that some hearsay may be admissible against the accused. That’s the origin of Mooney v. Commonwealth, involving probation-revocation proceedings.
Having twice been convicted of grand larceny and given mostly suspended sentences, Mooney backslid and committed three violent felonies. A circuit court issued a show-cause order to revoke probation on the larceny convictions.
At that hearing, Mooney acknowledged the new convictions, but objected when the prosecutor read to the judge a newspaper account of the victim’s plight in the violent-felony case. The judge ruled that “this is a show cause hearing and hearsay is allowed.” The court then gave Mooney three years to serve. The Court of Appeals affirmed, ruling that the news account wasn’t testimonial hearsay.
Today, the justices affirm in a split decision. Justice McCullough, writing for the chief justice and Justices McClanahan and Kelsey, assumes without deciding that the evidence was improper, and holds that any such error was harmless as a matter of law. The trial judge knew of the violent felonies from the major violation report, and the court imposed far less prison time than it could have, and even less than what the prosecutor urged.
Justice Goodwyn pens a dissent on behalf of Justices Mims and Powell. He contends that while hearsay may be admitted at a hearing like this, that’s not the case for testimonial hearsay, and he feels that the news account was patently testimonial. If a court is going to admit hearsay, precedent commands it to set out the reasons why good cause exists to permit it. The trial judge didn’t do that here; the court merely asserted a blanket rule of admissibility.
As for the harmless-error angle, the dissent notes that all error is presumptively prejudicial. Justice Goodwyn opines that this record doesn’t show the extent to which the newspaper story affected the judge’s decision.
One last note: I always enjoy a good turn a phrase in judicial opinions, and there are some of those in today’s opinion. My favorite is from Justice McCullough’s pen, when he describes Mooney’s conduct after his latest probation release. Trial courts found that Mooney had violated probation six times in seven years, “which suggests a less than optimal adjustment to probation.”
Given the greater freedom that I have as an unofficial expositor, I might have described this as Mooney’s having accumulated a wealth of frequent-flyer miles in the criminal-justice system. But I like his way of phrasing the same thing.
There’s a whopper of a published order today in Sroufe v. Waldron, a libel judgment out of Patrick County. It’s not a whopper in length – at just six pages, it’s a quick read – but in terms of the message sent.
This is a dispute between an elementary-school principal and the superintendent of schools. The superintendent decided to remove the principal from her job and eventually reassign her to a teaching position. He told her that in person and followed it up with an explanatory letter. The letter recited the superintendent’s conclusion that the principal didn’t properly understand and apply the Virginia Alternative Assessment Program for students with disabilities.
Somehow, the local news media got a copy of the letter; today’s order doesn’t say how. It also doesn’t expressly say this, but the news must have published the letter. The teacher sued.
At a jury trial, the superintendent claimed that the statement wasn’t actionable for three reasons. It was either opinion, or true, or “lacked defamatory sting.” The superintendent raised these three arguments in a motion to strike after the teacher’s evidence and after all of the evidence. The judge sympathized, feeling that in light of the teacher’s on testimony that “reasonable people can disagree” on her adherence to the VAAP, this was indeed a matter of opinion.
But the court decided to let the full case unfold, to see what the jury would do. The jury decided to award the teacher half a million dollars, American money. The superintendent moved the court to set the verdict aside, raising the same three arguments.
As the saying goes, that’s where the trouble started. In a letter opinion, the judge agreed fully with the superintendent: “It is opinion; if it is not opinion, it is true; and if it is factual and false, it is too mild to be defamatory.” That bodes well for the superintendent. But somehow, this train jumped the tracks. The judge decided to enter judgment on the verdict, despite his affirmative knowledge that the superintendent was entitled to judgment:
Accordingly, and in light of the foregoing, and with the full expectation that I will be reversed by a unanimous Supreme Court of Virginia, I hereby affirm the verdict.
To no one’s surprise, a unanimous Supreme Court of Virginia reverses this remarkable order and enters final judgment for the superintendent. What may surprise careful courtwatchers is the tone of the order entered today. It’s sharply critical of the judge’s decision to abandon his role to ensure that his orders comport with the law to the best of his ability. Rather than quote it at length, I’ll commend it to you – as I noted above, it’s short and won’t take you long to read – to get a sense of how deeply upset the justices are with this court.
We don’t know who drafted today’s order; it is unsigned, as are virtually all dispositions by order. (On occasion, there’s a dissent from an order, and those carry the name of the author.)
Sexually violent predators
The newest entry in Virginia’s SVP caselaw arrives today. The court combines two appeals, each raising the same issue, into a single opinion styled Harvey v. Commonwealth. The issue is whether the Commonwealth must provide a psychological expert to the respondent in a proceeding to determine if a released SVP has violated the conditions of his release.
Here, I’ll cut straight to the ruling. Four justices rule today that the answer to the question above is no. If this were a criminal prosecution, SCOTUS precedent requires a state to furnish such an expert where, for example, the defendant’s sanity is in issue.
Today’s majority rules that while there are parallels, this isn’t a criminal prosecution, and a respondent in an SVP proceeding has a diminished liberty interest. Among other reasons, he’s already been adjudicated a sexually violent predator, and this detention is temporary – up to six months, until another evaluation takes place.
Three members of the court – interestingly, the same three justices who dissent in today’s Mooney decision – dissent here. Justice Mims writes an opinion that describes a psychiatric expert in this context as essential for the mounting of an effective defense. In the dissent’s view, “the appointment of a mental health expert is essentially an extension of the right to counsel,” and no one disputes the Commonwealth’s obligation to provide counsel.
This conclusion will resonate with many lawyers who know plenty about legal procedures and rules of evidence but not much about psychiatry. I’ve never handled SVP proceedings and don’t plan to start now, but I would have no clue how to evaluate psychiatric issues; nor would I know how to cross-examine a psychiatric expert effectively.
Because these appellants’ claims found support in the Due Process Clause, it’s foreseeable that we could read about a future appeal styled Harvey v. Virginia, back across the Potomac. This is one of those cases – unlike appeals involving purely state law – where a federal constitutional claim enables SCOTUS to review a decision from Virginia’s highest court.
HOW TO SPEAK TO AN APPELLATE COURT
(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.
A QUICK REPORT ON 2018 STATISTICS
(Posted December 31, 2018) Virginia’s appellate courts are closed today, so we have time for a quick look at what happened in 2018.
Decisions on the merits
I was worried for a time that we wouldn’t reach 100 merits decisions in the SCV, but the justices put together an admirable late push, handing down 14 published opinions and one published order in December to get us over the mark. The court gave us 74 published opinions and four published orders this year. It also reissued two corrected opinions from last year. Add those to the 24 unpubs we saw n 2018 and you get 104 merits decisions.
For comparison’s sake, in 2017 there were 79 published opinions and 111 merits decisions. In 2016, we got 78 opinions and 125 merits decisions. For those of us who make our living at the appellate lectern, 2018 continues a disheartening downward trend in business.
I promised you this as a recurring quarterly feature. Through the first half of 2018, David (the little guy in appeals, such as a defendant appealing a criminal conviction or an employee suing for wrongful termination) won about one out of three published rulings from the Supreme Court. But his third quarter was a disaster: one win and eight losses. A strong(-er) fourth quarter, where David won eight times and lost 13, brings our final David-Goliath Index to 31/69. That is, the little guy won 31% of the time and the big guy won 69% in 2018. Whether that’s a good sign or a bad one probably depends on which side of the litigation aisle you occupy.
CAV published opinions
By my preliminary count, the Court of Appeals of Virginia handed down 66 published opinions in 2018. That’s the same number as in 2016. I’ll have a fuller analysis of these figures when the court issues its full report in the spring.
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.