APPELLATE NEWS ITEMS
(Posted May 24, 2024) It’s another quiet week at the Supreme Court of Virginia, so let’s look around for other newsworthy items.
June argument docket
The SCV’s June session schedule is out:
Wednesday, June 5, 2024 9:00 a.m.
230606 Crumpler v. Stark, et al. (30 minutes)
230483 King v. Commonwealth (30 minutes)
230599 Durham v. Commonwealth (30 minutes)
As the saying goes, “That’s it; that’s the list.” The Supreme Court will convene for 90 minutes on a single day in two weeks to hear three arguments, and then adjourn for the summer. The court’s next session is in September.
Looking back at the list of writs granted, and considering the usual gestation period for a merits appeal, my best guess is that the September session – which was once the busiest on the court’s calendar – will have something like six appeals on it this year. If that estimate bears out, the court will have heard 32 merits arguments by the time the September session ends with just one more gathering left in 2024, right around Hallowe’en.
In case you’re wondering, no; this isn’t the smallest docket we’ve seen in the recent collapse of the writ market. The June 2023 argument docket featured just two cases.
Good news and bad news
Last week I received a copy of the alumni magazine from my law school, which shall remain nameless, but it’s U.Va. There’s a nice cover story about the dean, Risa Goluboff, who’s stepping aside in favor of Prof. Leslie Kendrick, a recent (2006) graduate of the law school.
Quickly skimming the table of contents, my eyes stopped when it promised a story on p. 32, “Preparing Students for Appellate, Supreme Court Practice.” I turned immediately to that one to see how the school is polishing the next-next generation of appellate lawyers.
The story reported two students’ success in a Ninth Circuit immigration appeal. They filed an opening appellant’s brief seeking remand, and that was evidently enough to convince the government. Instead of a brief of appellee, they got the government’s consent to remand.
Touchdown, right? Time to line up for the extra point? Yes, absolutely; but something about the story made me gasp audibly. Here’s a sentence from a caption accompanying a photo of the two successful students and their faculty adviser: “The team filed a 14,000-word opening brief and began preparing for the next steps ….”
Fourteen thousand words? Why on Earth would you do something like that? The simplistic answer may be that the Ninth Circuit’s local rules permit you to file a principal brief of that length. The Federal Rules of Appellate Procedure contain a shorter limit of 13,000 words – FRAP 32(a)(7)(B)(i) – but the Ninth is a more forgiving place, it would seem.
And yet appellate lawyers must, must pause to consider whether doing something that the rules permit is a good idea. I recognize that that may sound counterintuitive. In one sense, it certainly looks like a green light from the court: The rule permits you to do that, so you can’t get in trouble for obeying the rule.
But if you talk to enough appellate jurists about this topic, you’ll soon gather a consensus: Briefs, in their view, should be shorter than they are. I’ve talked to dozens and dozens of them, have asked questions like that, and have received a uniform answer: Lawyers’ briefs are too long. If your job is to persuade the consumer of your briefs, why wouldn’t you give that consumer what she wants? What she says openly that she wants?
I’ll quickly add that one appellate jurist of my acquaintance – I’ll go ahead and say that he’s a learned judge; you know what that term means here at VANA – prefers more fulsome briefs that flesh out every possible issue, leaving him to decide which aspects are crucial to the case. If you want to write long briefs to please that one judge, go ahead. But his colleagues, all of them, are silently begging you to file short briefs.
Again, I’m very happy for these students. The brief that they filed was enough to convince a government lawyer and his or her supervisor, in this one case. But if the law school is teaching them that it’s good advocacy to file page-limits briefs, then it’s failing them in their practical education. That isn’t the way things work in the real appellate world.
If you want to please a law professor, then go ahead and file the long one. But if you want to please a judge, you must learn the self-discipline of paring your argument down so that it’s as concise as it is clear. Page limits are for suckers, and a 45-page brief is not three times as persuasive as a 15-pager.
The CAV says, “Tough”
My appellate pals Juli Porto and John Koehler reported last month about a published opinion from the Court of Appeals that contains a troubling ruling. The issue in Sidar v. Doe is when and how a party must file a Rule 1:1A fee petition. Here’s the setup:
Doe secured a sanction award in circuit court. Sidar appealed but lost in the Supreme Court. That court issued the standard writ-refusal order. Within 30 days thereafter, Doe’s lawyer showed up in the circuit court clerk’s office to file a petition for appellate legal fees – now, there’s a sweet three-word phrase for you – under Rule 1:1A.
The local clerk looked at the court’s file and noticed that the record was still in Richmond. “You can’t file this yet,” the clerk told Doe’s lawyer. “You have to wait until we get the record back.” The lawyer evidently shrugged and said, “Okay; I’ll see you then.”
The record arrived a couple of weeks later, and Doe refiled the fee petition within 30 days after that. The circuit court awarded Doe $35,000 in fees. Sidar appealed.
On April 16, a panel of the Court of Appeals unanimously reversed the award, holding that the petition had to be filed within 30 days after the writ-refusal order. You’ll recall that the winning appellant litigant set out to meet that deadline, only to be stymied by a clerk who didn’t know what he didn’t know, and insisted on enforcing his own misunderstanding of the law.
The CAV panel isn’t heartless; it acknowledges that the clerk’s error “created a substantial hardship for Doe.” That’s the empathy. The next sentence delivers the bad news: “The unfortunate circumstances, however, do not entitle her to relief in this Court.”
What’s a litigant to do? The CAV isn’t touching that problematic query. John Kohler’s essay opines that the lawyer “should have insisted that the clerk accept the filing”; Juli Porto’s recommends pointing out to the clerk the mandatory language of Rule 3:3(a) (“The clerk must receive and file all pleadings when tendered, without order of the court.”).
That’s all correct advice, of course; but what happens if the clerk is both wrong and intransigent? Don’t think for a moment that that doesn’t happen. I’ve experienced it personally, though without the fatal consequences that Doe suffered. For an easy example, one of the local circuit court clerks here in Tidewater demands a personal appearance by the appellant for the filing of an ordinary appeal bond. This is despite the unambiguous language in Code §8.01-676.1(I) to the contrary (“It shall be sufficient if the bond … when executed as required, is filed with the trial court … and no personal appearance in the trial court … shall be required as a condition precedent to its filing.”). When I’m filing a bond in that jurisdiction, I suck it up, climb into my Pony, and drive out there to file the bond personally.
The lesson of the previous paragraph is easy. If the clerk insists on doing it his way, you can choose to duke it out in a legal proceeding, or else let the lord of the manor win the small dispute in his own fiefdom even though you know he’s wrong, and find another way to accomplish your task.
I shouldn’t end this essay without spelling out what your recourse is if you find yourself at a complete impasse with an elected clerk of court in a situation such as Doe’s. Here are the steps that I recommend:
- Do not blow your cool. If you get angry, the person you’re dealing with is likely to get defensive. A pleasant approach might convince that person to at least listen to your reasons.
- Don’t do anything on the last possible day. If you know you’re going to file something – especially a jurisdictional something – there’s almost never an excuse for doing it on the deadline day. File it early! That leads to …
- If a clerk is flatly refusing to do something like this, you may need to get a judge involved. That may involve communicating with a law clerk or a docket clerk in chambers to tell the court that your client is about to lose a legal right because the clerk of court is mistaken on the law. If you start this process before the last day, you can make a record of your attempts to meet the deadline. If the judge won’t intervene, you can undertake to appeal that ruling.
- Get to know the clerks of court in the jurisdictions where you typically practice. If you’ve met with the clerk personally, and have asked her what she sees as the best ways to handle your docket most efficiently and how you can make her staff’s life easier, that clerk may well recognize that you’re not just another demanding lawyer who insists that mere functionaries must do as he or she directs. You’re catching flies with honey instead of vinegar, and doing so in advance. Don’t scoff at this advice; just do it.
- In a true emergency, where you just hit a brick wall, consider a petition for a writ of mandamus to require the clerk to accept the filing. The language of Rule 3:3(a) is plainly mandatory; the clerk has no discretion to refuse your pleading. The Court of Appeals may well issue a writ to the clerk, who may no longer like you, but will have to accept your filing.
There may be another method or two that you can use in these situations. If any of my readers have a simple, effective approach, please send ‘em in and I’ll update this essay.
