A SCAN OF THE APPELLATE LANDSCAPE

(Posted August 19, 2021) Looks like no new opinions from the Robes by the James today, so let’s scan the horizon to see what’s happening in the appellate world.

More remote arguments

No doubt courtesy of the Delta variant of Covid, all three appellate courts that convene in Virginia will continue to receive oral arguments remotely for now. A couple of months ago, I entertained hopes that the courtroom doors might reopen for the argument dockets in September. In the interim, an undeniable spike in the pandemic, here in Virginia and elsewhere, has made that hope a fleeting dream.

The Court of Appeals of Virginia – with seven new judges – will continue remote writ arguments through the end of the year. That court’s June 29 order states that it will try to convene in-person merits arguments depending on a number of factors, specifically including the availability of courthouse space in the southwest, northern Virginia, and Tidewater. I haven’t seen a more recent order that modifies that, but at this point, I seriously doubt that we’ll see in-person arguments on Tuesdays starting September 14.

The Fourth Circuit and the Supreme Court of Virginia have recently confirmed by orders that advocates in the September sittings will have to log in and argue remotely.

I long for a return to in-person arguments. Arguing to a camera feels different, and I miss the majesty of the columns and the drapes and the arced bench in the SCV’s main courtroom.

New acting Solicitor General

I missed this press release when it arrived two weeks ago: Virginia Solicitor General Toby Heytens, recently nominated for a seat on the Fourth Circuit, has stepped down as SG to return, for now, to his previous teaching gig at my alma mater, U.Va. Law. His deputy, Michelle Kallen, will serve as Acting SG for now. The release notes that Virginia now has, for the first time, an all-female Office of the Solicitor General.

This is a big deal. I’m fond of noting that there are no schnooks at the Solicitor General’s Office. I’m usually referring to the one in Washington, but it’s true in Richmond, too. The Solicitor is the highest-ranking practicing lawyer in government. The only higher-ranking lawyers are the Attorney General and the Chief Deputy AG, and both of those are administrators. The Solicitor is the one who advances to a lectern – assuming we ever get to approach a lectern again; see the previous entry here – and says, “May it please the Court …”

If you follow matters of sex diversity, you’ll note that this continues a now-obvious trend. In addition to Michelle, you’ll find a woman as acting Clerk of the Supreme Court (Muriel Pitney), as Clerk of the Fourth Circuit (Pat Connor), and as Clerk of the CAV (Cyndi McCoy, who will retire next month in favor of her long-time chief deputy, John Vollino). Four of the newly elected CAV judges are women. And in Washington, the President has nominated Elizabeth Prelogar as Solicitor General of the United States. She’s currently filling that role in an acting capacity, but I expect the Senate to confirm her.

Appellate training

Looking to up your game? Are you interested in becoming one of the 50 or so new appellate lawyers that Virginia will need by the end of the year, if not sooner, but you want a bit more training? If that strikes you as interesting, now’s your time. Here’s what’s coming up:

September 8 – The Fourth Circuit will present a three-hour webinar on appellate practice. Bad news: The seminar is now fully subscribed, so you can no longer register. Good news: The court indicates that it will post online the course materials and recordings of the first two hours.

September 9 – The fifth Virginia Appellate Summit will convene in Richmond, live for now. This is the preeminent gathering of Virginia’s appellate bench and bar; if you miss this one, you’ll have to wait another three years or so. Discounted early-bird registration ends August 31.

November 11-14 – The ABA Appellate Summit, formally known as the Appellate Judges Education Institute, will meet in Austin, Texas. This is the biggest and best nationwide gathering in the appellate realm. As with its Virginia cousin, the current plan is to meet in-person, subject to pandemic developments between now and November. Reduced-cost registration is available until September 30, but I wouldn’t wait; the last Summit, held in Washington DC in 2019, sold out and registration was cut off.

New home for JAPP

Here’s another instance of my being late to the party. For years now, I’ve been a member of the ABA’s Council of Appellate Lawyers. I’m on the national Executive Board, but somehow, important news about one of my favorite CAL perks had escaped me.

For many years, each member of CAL received a free subscription to the Journal of Appellate Practice and Process, published at the law school at the University of Arizona Little Rock. We only got two issues a year, Spring and Fall, but for appellate geeks, there’s always something cool to read.

Because it came so seldom, I hadn’t noticed that I hadn’t received a new issue in almost three years. In that time, the journal found a new home, at the University of Arizona. There’s more: The new publishers decided to end the printed copies I had been used to receiving, and go fully online.

And there’s even more: The new publishers have decided to abandon the subscription model. The journal is now available online to anyone, free, at this link. Fair warning: If you’re part of the appellate guild, you need to be careful lest the journal become a time vampire for you. There’s so much great stuff there, you can get sucked in and lose contact with real life. You have been warned.

A horror story from the commonwealth to our west

This one comes courtesy of my pal Steve Minor, the Sage of Bristol. The Kentucky Supreme Court has dismissed an appeal of a $1.2 million judgment against Metropolitan Louisville. A police lieutenant obtained the judgment against the municipality in a case involving a “sexting” text from another lieutenant.

Louisville appealed to Kentucky’s intermediate court, which affirmed. The county attorney decided to appeal onward, seeking discretionary review in the state supreme court. He prepared the motion and an office manager dropped the package off in a FedEx pickup box before the June 1 filing deadline.

Alas, FedEx delivered the package on June 3. In Kentucky, no deadline extensions are available in discretionary-review appeals. Because the motion hit the clerk’s office two days late, the supreme court summarily dunked the case.

At the risk of having half of you accuse me of plagiarizing my own previous posts, today’s lesson is that you must never play around with jurisdictional deadlines. Always assume that something will go wrong, even in a ministerial process, and plan for that.

The county attorney here figured it would be safe to assume that all processes would flow smoothly, and got caught when one of them didn’t. The article mentions near the end that two easy means were available to ensure a timely filing. One is registered mail, which under state law means the document is considered filed on the day of mailing. The article doesn’t disclose why the attorney eschewed this safe method.

The other safe approach is hand-delivery in the clerk’s office. That is, someone in the office gets into a car and drives the 50 miles to the state capital and walks the motion up to a counter; that person walks away with a date-stamped copy that should be ironclad dismissal insurance. This time, we have an explanation why no one did that: The county attorney’s office forbids its law clerks to make such deliveries because of limitations in auto-liability insurance.

Isn’t this one of the reasons why God invented brief-printing consultants? Here in our Commonwealth, several such vendors, skilled professionals all, maintain offices within a three-block walk of the Supreme Court Building. In a pinch, any of them (this one’s mine) will send a courier to hand-file a document that isn’t required to be e-filed. I’d wager a modest sum, American money, that consultants are similarly available in Frankfort; but no one thought to use one.

Don’t let this be you. File early, as early as practicable. Use a means that assures you of proof of timely filing. Now you can get a good night’s sleep.