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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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?
- 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]