(Posted November 18, 2020) Let’s take a few moments to see where the Virginia appellate courts are in processing incoming appeals.

I’ll admit to experiencing a few Chicken Little moments over the past several months. The primary raw materials of an appellate caseload are final circuit-court judgments. As every Virginia lawyer knows, those aren’t coming down at the same pace this year because of the judicial emergency, including the paucity of jury trials. At this writing, 28 circuit courts across the state have received green lights to resume trying cases by jury.

That stat is just about the end of the good news. The bad news includes:

  • Ninety-two circuit courts are still not approved
  • The 28 that have reopened must give priority to criminal appeals, so civil cases will languish awhile
  • Those 28 courts are processing trials very slowly
  • A recent spike in Covid cases has led the Governor to tighten restrictions on gatherings

For the second bullet point above, there’s a wide disparity between circuits. Norfolk held its first civil jury trial yesterday. Fairfax probably won’t start until 2022; that court expects to take all of 2021 to clear out the backlog in the criminal trial docket.

On the fourth point, my fear is that the Supreme Court may follow the Governor’s lead if the spike continues; the justices may suspend new approvals or reverse previous ones. That’s conjecture for now, but if the contagion expands here, I wouldn’t be stunned to see that kind of retrenchment.

I decided to look into what may be the best indicator of appellate business, new appellate filings. Yesterday, SCV Clerk Doug Robelen opened Record No. 201382. The first two digits are the year; the next four represent the ongoing count. The court has received and processed 1,382 appeals (including original-jurisdiction filings) since January 1.

I was initially surprised to find that the Clerk opened the 1,382nd record last year on October 15, about a month earlier. That was reassuring – while filings are down, it isn’t the catastrophic collapse that I had feared. But I suspect that this year’s filings, particularly in the past several months, are disproportionately in criminal appeals from the CAV, where there’s no moratorium on the process. I suspect that when we get the annual statistical report early next year, we’ll see a significant drop in the number of civil appeals. That, too, is speculative for now, but I believe that the stats report will bear this out.

In the Court of Appeals, Clerk Cyndi McCoy has opened 1,299 files through yesterday; she reached that number last year in mid-August. This is where the real slowdown shows up.

Time to translate those stats into English: In the Supreme Court, filings are about a month behind where they were last year, leading me to guess that the year-end figure will be down by something on the order of 10% from last year’s 1,730. The CAV is three months behind, so that court might only see about 1,600 filings this year, down 500 or so from last year’s total of 2,090. That’s a drop of almost a quarter.

Let’s take the next step and project what may happen in 2021. The Supreme Court’s caseload includes direct appeals from circuit courts in most civil cases, and secondary appeals from the CAV in criminal and domestic-relations appeals. (The CAV also processes Workers’ Comp appeals, but Deputy Commissioner Debbie Blevins’s mediation crew is so dag-blasted effective that there are relatively few of those to appeal these days.) The criminal/domestic appeal pipeline will slow somewhat, based on what we’re seeing in the CAV. The civil supply has already slowed to a trickle, to the point that I fear several micro-dockets in merits sessions in the middle of next year.

The Court of Appeals will probably see an uptick in its 2021 caseload, as more and more circuit courts reopen and prioritize criminal trials. But I don’t expect 2019 levels anytime soon; it may be a couple more years for that.

In sum: We appellate lawyers are not in a growth industry right now. There’s a good possibility that more and more litigants will turn to ADR, especially those facing delays into 2022. I sometimes offer a good-natured curse to successful mediators, since nobody appeals a settlement, and appellate lawyers gotta eat, too. But the judicial system exists to supply a meaningful and peaceful alternative to violent dispute resolution, and it’s plainly impaired in that function now, through no fault of the judiciary. To many litigants, ADR is looking better than ever.