APPELLATE MUSINGS ON A SIGNAL DAY

(Posted March 28, 2024) The weather here in Tidewater is dreary; an enduring, driving rain with no meaningful sign of Apollo all day. But it’s still a happy day because several men around the continent will utter the priceless phrase “Play ball!” today. My beloved Dodgers entertain a certain avian group from eastern Missouri. I know better than to start dreaming of the postseason already; I’m just delighted that baseball is back.

I’ve long thought that Opening Day should be a national holiday. I infer that The Robes have declared an informal one, because we have nothing new today out of the Supreme Court of Virginia. Let’s take a look at some other happenings in our field.

Whither 302 Va.?

Some of us dinosaurs still subscribe to print editions of Virginia Reports. I prefer to read cases in a physical book, and you have to admit that a bookcase full of the reporters looks prettier than its cyber-parallel, whatever that is.

In addition to getting the hardbound volumes, we also receive their paperback predecessors: the advance sheets. These are preliminary publications that give you an early look at the reporter’s paginations for the reported cases. Traditionally, three sets of advance sheets make up a single hardback volume.

I’m now wondering whether the most recent sets of advance sheets have fallen into the Appellate Bermuda Triangle. My office has received the hardbound volume 301 of Virginia Reports, but no advance sheets for anything since. The most recent reported decision we have is Arch Insurance v. FCVbank, 301 Va. 503, decided December 29, 2022 – fifteen months ago.

Several years ago, the former publisher of the advance sheets abruptly stopped publishing them. We subscriber/dinosaurs were left in limbo for a time, but Thomson Reuters picked up the contract and has published them ever since. Now I’m wondering if something comparable has happened.

Before posting a bold note of warning like this, I decided to check another source to be sure. I ran a Lexis search for “302 Va. 1” but got no results. That tells me that there’s no official-reporter pagination yet for the first case decided in 2023, Forness v. Commonwealth, handed down January 19 of that year. Even if you solely use online legal research, the best you can do for that case now is to cite it as 882 S.E.2d 201.

If any of my readers are heading off on a cruise to Bermuda anytime soon, I’d be grateful if you’d keep an eye out for those missing advance sheets. Tell them I miss them.

Update April 2: Never doubt the potential for a well-timed VANA post to shake up the powers that be. Four days after I posted this note, Advance Sheets #1 for 302 Va. arrived. I, of course, take full credit. Sure enough, the volume begins with Forness; it includes the first 11 published decisions of last year, running through Suffolk School Board v. Wahlstrom, decided April 27, 2023.

This raises the question of how many months’ worth of decisions volume 302 will contain. In recent years, we’d get two hardbound volumes per year. My best guess right now is that 302 Va. will cover all 28 of the published opinions released in 2023. How rare is it to get a full year’s’ worth of opinions in a single volume of the reporter? Once upon a time — specifically, from the late 1950s through 1981 — it happened quite frequently But starting with 222 Va., the reporter segregated a year’s worth of rulings into two volumes. A peek at the hardbound volumes on the library shelf will tell you why: The books were getting so large as to be unwieldy. Volumes 219 through 221 averaged over 1,200 pages per book.

First Quarter D-GI

New year; new David-Goliath Index. The quiet passing of today’s opinion day means that we have three months’ worth of decisions in the books. (Given the note immediately above this one, I use the term books loosely.) It’s time to see how our familiar litigation adversaries have done in the first quarter.

Among the published and unpublished decisions of the Supreme Court this year, I count three wins for our Davids and five for our Goliaths, for a very preliminary D-GI of 37/62. I offer three observations about this: Goliath is still winning most of the SCV appeals; David is doing a little better than usual, in that he isn’t losing quite as often as before; and you can’t draw any meaningful conclusions where the sample size is just eight decisions. This last point essentially erases the first two. Let’s see how things develop as the year unfolds.

State court stats are out

I am, as usual, very grateful to the clerks of the two Virginia appellate courts – Muriel Pitney in the SCV and John Vollino in the CAV – for sending me copies of the courts’ year-end statistical reports, now hot off the electronic presses. For a stats geek like me, this is a wonderful trove of analytical goodies. I’ll take the time to go through them, glean what I can, and post a plain-English report here in the coming days.