AN APPELLATE WISH LIST[Posted December 4, 2009] In past Decembers, I have posted year-end lists of what I found to be the year’s most significant appellate developments. Last year, it was divided by month; in previous years, it was set out as a top-ten list. This year, I thought I’d try something a bit different.
For years, Santa Claus has been bringing me the same thing every Christmas: Half a ton of anthracite and a big bundle of switches. I converted my home’s heating system to a coal-burning furnace a few years back, so I actually look forward to getting the coal now. But this year, I have tried to be extra-good – it’s been an effort – and I hold out some hope of getting lots of goodies instead of the usual delivery. Here’s the list I sent to Santa, all in the hopes of creating a better appellate system around here:
1. Action on the Lemons Commission recommendations already. The Appellate Rules Advisory Committee’s final report was released in June 2008, but a year and a half later, the Supreme Court has yet to take action on it. Since the report was released, babies have been conceived and born (and the smarter ones are starting to learn French); empires have crumbled; the Phillies have made it to two World Series; entire generations of cell phones have been released and have already become obsolete; heck, we even have a new president and a new governor-elect. Still, the report is just a set of inchoate recommendations. In fairness, the court was scheduled to take up the matter at a recent business meeting, but that was cancelled when the chief justice was hospitalized. I’m hoping that Santa will bring speedy action on the report, especially my favorite recommendation of all: The one that would eliminate the need to cite S.E.2d in briefs. I figure that’ll knock a page off the length of many of the briefs the justices have to wade through each session.
2. The rise of technology in a neo-Luddite environment. As you read here last month, I attended the 2009 Appellate Summit in Orlando. Virginians would be astounded at how appellate technology has advanced in more progressive parts of the nation. Why, I learned that in many states, appellate oral arguments are videotaped – even broadcast on TV! Think of the opportunity for training appellate lawyers that’s being forgone here. Rookie lawyers (or not-so-rookies who don’t have much appellate experience) could watch part of a session to see what the experienced appellate lawyers are doing, and they might even be able to avoid a few oral-argument train wrecks when they take their turn at the lectern. Why don’t we have recorded oral arguments here in Virginia? As it has been explained to me, the primary reason is that it wasn’t done that way in the 18th and 19th centuries, so it would be simply wrong to do it now; after all, this is Virginia, home of old-school tradition. Okay; I’m exaggerating. But not by much. Supreme Court oral arguments actually are recorded (audio only), but the recordings are available only to the justices; not to the lawyers, and not to those of us who would like to get our hands on them for training purposes. I’m hoping that Santa will persuade the justices to be a bit more open to embracing technological change.
3. Fill ‘er up. I’m referring to the Fourth Circuit here. Long the most-understaffed circuit court in the federal system, the court got by with just 2/3 of its full complement of judges for years. The Senate has approved the nomination of Judge Andre Davis of Maryland to get the number of judges up to 11, and it has the opportunity to push it to 12 by confirming the eminently-qualified Justice Barbara Keenan of Virginia. Other qualified nominees can and should be promptly evaluated so the court won’t have to rely so heavily on senior judges, visiting judges from other circuits, and district judges sitting by designation. I got to meet one nominee, Judge Jim Wynn of the North Carolina Court of Appeals, when I was in Orlando, and found him to be delightful. I recognize that the Senate doesn’t base its votes on “delightful,” but swift action on those nominated would be in everyone’s interest. Maybe Santa can do a little arm-twisting on his trip through Capitol Hill.
4. Save the trees. This one is decidedly low on the appellate politico-meter, but I think it would be a useful change to the way briefs are prepared. Why not allow litigants to use both sides of the paper when printing briefs? We already do so in appendices, so why should briefs be any different? It would shrink the physical size of the briefs by half (though it wouldn’t make them shorter, which is what the jurists really crave) and cut down on paper use accordingly. It would enable a creative lawyer to place a relevant exhibit, diagram, or photograph on (or directly opposite) the page where the accompanying text rests. In that way, the reader could look back and forth seamlessly from the text to the visual aid; it would be like looking at a picture or a chart in a newspaper or magazine. Now, I like trees. If I hadn’t become a lawyer, I would have loved to be a forester (or a history teacher, but that’s another story). The problem, of course, is that once again, This Isn’t How It’s Always Been Done Around Here. Other potential objections might be the possibility that the ink would bleed through and make the two sides of the page hard to read, or perhaps the jurists like to make notes on the blank side of the paper, for when they want to bedevil lawyers during oral argument. I think that the former objection can be easily overcome by a rule on the kind of paper to use, while the latter, if it’s really a problem, can be addressed creatively.
5. And now for something really special . . . We in Virginia aren’t supposed to use the S-word (specialize), except in very limited, sharply-controlled circumstances like patent law or admiralty. But a couple of years ago, I read an article in the Journal of Appellate Practice and Process that called for a number of changes to promote better appellate advocacy. One of the recommendations was the creation of an appellate certification, similar to what exists for civil trial advocates, for those lawyers who specialize in handling appeals. It isn’t hard at all for me to see how this would improve appellate advocacy in Virginia. Some lawyers will want the certification, and will work to improve themselves in order to earn it. Others will know that they’re in over their heads in an appellate setting, and will be able to turn to a bank of qualified lawyers for guidance, or better yet, association. I mentioned this article in a meeting of the State Bar’s Litigation Section board a couple of years ago, and was told that the idea had been pitched to the justices a few years back, and it was shot down more or less immediately. I don’t know the reason why, but I suggest that we round up the usual suspects, starting with the familiar we-don’t-do-things-that-way-in-Virginia. Well, why not? If it improves the system that so many appellate jurists complain is cranking out poor advocacy – and they’re all saying that, quite loudly – why wouldn’t you want to create a program like that? It may take some Santa-magic to overcome Old Vuh-ginia inertia, but if anybody can do it, he can.
6. A Miracle on 8th Street. Remember the end of the movie, Miracle on 34th Street? I’m not talking about the climactic courtroom scene, when the judge declares that Mr. Kringle is the Santa Claus; I mean the denouement, when John Payne and Maureen O’Hara find the house of their dreams – and it’s for sale. Well, someone among us needs a new home, or at least a substantial renovation of the existing one, and it’s the Court of Appeals of Virginia. Earlier this year, I got a tour of the facility in Richmond, and was appalled at what I saw. The ceilings are crumbling, to the point that some of the deputy clerks have erected impromptu tents over their desks, so they won’t get bits of plaster in their computers, or in their hair. The file storage area is subject to flooding when it rains, because the walls leak. And don’t get me started on the intentionally-constrained courtroom. It’s a poorly-kept secret that when the court was created in the mid-80’s, it suffered from the disdain and even antipathy of a certain Supreme Court justice, now deceased, who evidently felt it necessary to ensure that the CAV was a truly inferior court by placing it in these substandard digs. Well, the current set of justices – a majority of whom served on the Court of Appeals before being elevated — isn’t bound by that antipathy. But the solution to the problem has shifted across 9th Street, to the General Assembly. And you know how difficult it will be to get funding for any sort of improvement. But that improvement desperately needs to occur, so I’m turning to the Big Guy for help.
How’s that for a modest wish list? I doubt that I’ve been a good enough boy this year to expect to receive all of these presents; but if Santa sees fit to bring me even a few of them, then all that good behavior will have been well worth it.
Health and happiness to each of you in this holiday season.