(*But Were Afraid to Ask)

[Posted May 15, 2012] Okay, so rehearings aren’t as sexy as the original subject of the book from which I purloined the title for this essay. But still, appellate lawyers need to know these things.

Unless you win all of your appeals, you’ll need to consult the rules governing petitions for rehearing from time to time, if only to be able to advise your unfortunate client to forget it. There are two provisions for petitions for rehearings in the Supreme Court and Court of Appeals of Virginia, depending on which stage of the case you find yourself in. And one of those just got amended, very quietly, at least in the Supreme Court.

As we all know, losing is almost never the end of the road; that’s why they invented appellate courts in the first place. But when an appellate court turns you down, and no higher court has jurisdiction, you need to know how to ask the court to reconsider, and how to do it diplomatically. Let’s start by walking through the basics.

Petition stage
At the petition stage in both courts, an unsuccessful appellant has the right to file a petition for rehearing, asking the full court to consider granting a writ. The relevant rules at the petition stage are 5:20 and its close cousin, 5:20A, in the Supreme Court; and 5A:15 and 5A:15A in the CAV. Since the process is different, we’ll take these one at a time. Note that the deadline for filing a PFR in both courts is the same – 14 days from the date of the order you’re seeking to reverse.

Supreme Court
When a writ panel refuses your petition for appeal, the rules permit you to ask the full court to consider a petition for rehearing. The panel probably comprised two active justices and one senior justice; the PFR will be presented to all seven active justices. That means that your case will be viewed by five new sets of eyes, any one of whom can grant your writ.

Some members of the court are probably going to glare at me for writing this, but really, why would you not at least try a PFR at this point? There’s no down side to doing so aside from the time you’ll spend preparing it, and accepting the refusal means you will have lost the appeal without exhausting your available avenues of relief. I can think of few circumstances in which you would be justified in declining to file a PFR at the petition stage.

Unless you fall into one of two exceptions, you must file your petition electronically, as a PDF attachment to an e-mail sent to the Clerk. That isn’t as hard as it sounds, and your word-processing experts can convert a Word document to an Adobe PDF with a mouse click. If your heart soared at the mention that there are exceptions, I recommend that you lower your expectations. One is for those petitioners who get leave of court. This provision is probably in Rule 5:20(c) and 5:20A(a) to accommodate long-long-long-time members of the Bar who are still stuck in the Nineteenth Century and can persuade the court to allow them to file paper briefs as the sun sets on a glorious legal career. I don’t know of anyone who has obtained leave, and I know better than to ask for it for one of my appeals.

That leaves one other exception, but you’re not going to like it: pro se prisoners are allowed to use the old-fashioned paper method. If you’re thinking of getting locked up in order to avoid the PDF route, you are a serious techno-phobe. Trust me; the instructions in the rule are simple and user-friendly.

Court of Appeals
First, keep in mind that in the CAV, all appeals are of-right except for criminal and traffic appeals. For domestic relations, Workers’ Comp, and admin-law appeals, there is no petition stage, so this discussion doesn’t apply at all.

When you file a criminal/traffic petition, the first thing that will happen is that it will be referred to a single judge for review. That judge can grant the petition or refuse it in a short per curiam order that explains why. If your petition is refused, you can demand consideration by a three-judge panel, and you get that, of right. All you have to do is set forth in a short memo the reasons why you think the per curiam order is wrong. Once that happens, you get a live hearing, just for the asking, before three members of the court.

If that panel refuses your petition, you can petition for rehearing. The most valuable approach, in my view, is to ask for en banc rehearing, so the entire court will consider your appeal. You can also ask the original three-judge panel to rehear the matter, but that’s a particularly low-percentage play, in my opinion; you want the opportunity to convince judges who haven’t already ruled against you.

As with the Supreme Court, petitions for rehearing must be filed electronically, unless you meet one of the same two exceptions.

Merits stage
Supreme Court
If you were fortunate enough to get your writ but the full Supreme Court has turned you down (or if you were an appellee and the justices reversed your judgment), there’s a related, but distinct, procedure for seeking rehearing. This includes the recently amended rule that I mentioned above.

The relevant rule here is 5:37. It contains the same requirements for electronic filing, and the same two forlorn exceptions. In order to get your petition granted, you’re going to have to persuade at least one of the justices who voted against you to change his or her mind – or at least ask for another look at the case. You don’t get oral argument; you just wait for a decision.

Until recently, when the court decided to grant your petition for rehearing, your opponent got to file a short response to your petition, and the case was automatically placed on the next session’s argument calendar, where it occupied a privileged position on the docket. Perhaps because of the recent noticeable increase in the number of grants of rehearings, the court has reexamined this provision, and starting on June 13, the rule will now provide that additional briefing and even oral argument will be at the discretion of the justices. That means that the court can grant rehearing without binding itself to reading a new round of briefs and listening to another round of arguments.

Court of Appeals
When a panel of the CAV has ruled against you, you may seek rehearing in the same manner as you did with the denial of a writ in a criminal/traffic appeal. As before, you can ask for rehearing by the same panel or by the full 11-judge court. Also as before, I recommend the latter approach.

Contents of the petition
The most important advice I can give you about the content of petitions for rehearing is this: You must get your reader’s attention immediately. That means you don’t save your killer argument for page 12, or page 4, or (ideally) even the bottom of page 1. I mean immediately. You want your reader to mutter, “Hey, wait a minute . . .” within thirty seconds of opening up your petition. You have a lot of competition for the reader’s attention, and very, very few PFRs are granted; you really have to make your stand out.

The Rules of Court are meticulous in prescribing the contents of most briefs, from a petition for appeal to a brief on the merits. Practitioners may be surprised to learn that petitions for rehearing are not similarly constrained. You don’t have to include a table of contents or of citations; you don’t have to lay out the facts; you don’t even need to list assignments of error, the absence of which is a fatal flaw in a petition for appeal. Basically, you can write whatever you want, as long as you think it might persuade someone to rule in your favor.

That being said, there are some better-practice guidelines for how you’ll phrase your argument. Keep in mind that at the petition stage, the justices reviewing it won’t have your original petition, so don’t assume that they already know the background of the case. You’ll have to include at least enough facts to give them a sense of what’s involved in the case, so they’ll understand the importance of the legal issue. You may also want to go ahead and include the assignments of error, so each reader will know what’s in issue in the case.

I’ve mentioned above that there is really no reason not to file a PFR at the petition stage. The merits stage is different, because of the task you’re undertaking. At the petition stage, you’re trying to convince one justice on the court to grant your writ. That will usually include four or five justices who have never seen the case before; with them, you’re writing on a clean slate. But when you seek rehearing of a decision on the merits, each member of your audience has already considered what you’re saying, and at least a majority of them have ruled against you.

Petitioning for rehearing at this stage requires good judgment and a careful approach. It is not good form to petition for rehearing every time you lose on the merits. If the court has fully considered each aspect of your argument and has simply disagreed with you, you need to accept the defeat and move on.

The cases where petitioning for rehearing might be worthwhile are primarily those where the court has rendered a decision that creates an unintended consequence. In virtually all of the cases in which the Supreme Court has granted rehearing after a decision on the merits recently, it has done so because the PFR pointed out that the original ruling created a new problem. For example, in Kondaurov v. Kerdasha, the original decision would have engendered a separate mini-trial in all cases involving emotional damages, to determine what a “normal” person would have felt about a given emotional trauma. On rehearing, the court still reversed the judgment, but it revised its opinion to eliminate that troublesome language.

The court has taken a similar approach in other recent cases where rehearing has been granted, including AES Corp. v. Steadfast Insurance and Kellermann v. McDonough. The court even revised its opinion recently in Sinclair v. New Cingular Wireless, despite the fact that it refused a petition for rehearing; simultaneous with the order refusing the petition, the court issued an amended order that addressed the problems that were apparent in the original opinion. In this way, the court effectively implemented the provisions of the new rule, two months before its effective date. (The current rule doesn’t require new briefing or oral argument unless the court grants the PFR, so technically the petitioner didn’t get the relief requested.)

If you’re trying to get rehearing, then, don’t confine your analysis to claimed error in the current case. Just this year, I heard one of the justices say to an attorney in a rehearing argument, “If we were only interested in this case, we wouldn’t have granted rehearing.” Focus on how the court’s decision will affect the next case, and the one after that. Remember that in an appellate court, you’re no longer representing a client; you’re representing a doctrine. That consideration applies with added force in rehearing petitions.

Decision on the petition
The first thing you should bear in mind in filing a petition is that your chances of getting one granted are around 1%. As if that weren’t enough of a wet blanket, you should know that in each of the cases over the past several years where the court has granted rehearing after a decision on the merits, its ultimate ruling was the same as the original, albeit sometimes with softened language, or perhaps with a slightly different vote. (Taboada v. Daly Seven was originally reversed by a vote of 7-0; after rehearing, the vote was 5-2, but the judgment was still reversed.)

The rules don’t give a timetable for decision, and many practitioners think that there’s no real rhyme or reason to when the decision arrives. But there is; you should expect a decision on your petition about one week after the following session’s opinion day. The court sends out these decisions electronically now, so you’ll find an order in your inbox around that time, either granting the petition or refusing it.

Now, if there’s really anything else that you always wanted to know about rehearings, but were afraid to ask, just let me know. I’ll get the information for you if I can – with an appropriate degree of discretion about such a sexy subject, of course.