A NEW PROTOCOL FOR “OPINION DAY”
[Posted September 11, 2015] The news has been racing around the appellate bar today. At first I couldn’t imagine its being true; but I’ve checked on the Supreme Court’s website, and there it is: Opinion Day as we know it is no more at Ninth and Franklin.
For generations – at least as long as I’ve been practicing law, and probably many decades before that – the Supreme Court of Virginia has handed down its published opinions on the final day of the next session. For example, the cases argued in the April session are decided by published opinion on the last day of the June session. As I noted in a recent post here, there’s a nice ceremonial touch where each justice, in turn, announces the result of a given appeal and then literally hands the slip opinion down to the Clerk of Court, who stands below in the well of the court.
No more. Effective immediately, the court will no longer “hand down” decisions on a specific day. Starting with next week’s opinion da- I mean, next Thursday, the court will post published opinions on its website, on a rolling basis. The court won’t hold them for simultaneous release, as it’s always done before; whenever the opinion is ready, the court will post it, usually on Thursdays.
In making this change, the Supreme Court has adopted the practice of the Court of Appeals of Virginia, which posts its opinions, published and unpublished, each Tuesday, without actually “handing” anything down.
As Donald Trump would say, “This is huge.”
I’ll take a moment here to mention how this change will affect you. If you’ve argued a merits case, in the past you always knew that the opinion would likely come down on a specific day, seven weeks thence. It’s always been possible for it to be sooner (in the case of unpubs, which can arrive any Friday) or later (if the court passes the case to the next session). But in the majority of appeals, you could look to a specific date for a resolution.
Now, there’s no specific time frame for a ruling. It could come in a week or in ten; there’s no way to predict it. That’s an additional element of uncertainty. It won’t really affect the way you handle your appeals, but it’ll affect the way in which you keep your clients informed.
There’s one group for which this change may bring welcome relief: those attorneys who argue merits cases in the June and November sessions. Previously, those two groups had to wait longer than anyone else for a resolution of their cases. That’s because the next session after the November docket is in mid-January, a delay of about ten weeks; while the next session after June is a brutal 3 1/2 months later, in mid-September. Presumably those litigants will get a decision earlier than they would have under the old system, perhaps reasonably close to the old seven-week system.
The change may also help the justices. A rigid seven-week turnaround can be a bit tight with a complex case, or one where someone’s crafting a lengthy dissent. In the past, if the case needed more work, the court had two choices: rush the opinion to the Clerk, or else pass it and delay the ruling by another seven weeks or more. Now, if it takes nine weeks for the justices to polish their opinions, they can do that without any pressure.
In addition, this may make the Clerk’s life (and those of her staff) easier. It takes a considerable effort to coordinate the simultaneous release of 20 opinions – not that we’ve seen 20 in a day in a while – and this process of rolling release should make the release day more manageable.
This change will have one massive impact, and that’s on me. For over ten years now, I’ve planned my schedule carefully, blocking out the entire day on opinion day, and expecting to spend the whole day (and usually part of the next day) reading the new decisions and posting analysis. No one could interrupt me on opinion day. I accepted no appointments. I shut off my office phone; even The Boss had to call me on my cell so she could tell me what to pick up at the grocery store on the way home.
As it says above, no more. Instead of six predictable opinion days a year, now I have to plan for fifty. Not that it’s all bad; on some Thursdays I may only have one new opinion to cover. That means I can get the full day’s analysis posted here in an hour or two. And of course, some days there’ll be none.
Even so, there will be logistical difficulties. It’s easy to plan your schedule around six days a year, but now I have to block out every Thursday morning. Perhaps some of the justices are chuckling at my new predicament.
This is a good occasion to remind you of a new feature of this newly updated website. If you’d like a quick note from me whenever I’ve posted a new essay or case analysis, I can make that easy for you. Near the upper-right corner of each page on this site, you’ll find a link (in red letter) that’ll allow you to sign up for that. I’ll keep the sign-up list entirely private.
You’ll have to excuse me now; I have some “huge” changes to make in my calendar.