Frequently Asked Questions

[Posted July 20, 2012] I’m back from my vacation, meaner’n ever. (Although it was noticeably cooler in Alaska than it was here.) It’s been quite a while since I posted frequently asked questions, so this looks like a good time to dip back into the mailbag.

In the beginning of my oral argument, should I set forth what the facts are, or just launch into my argument?

You should assume that the judges and justices are familiar with the facts. I generally begin my argument with a very short reference to the nature of the case, but I don’t go into the facts:

“Good morning; I’m Steve Emmert, and I represent the landowner in this inverse condemnation appeal.”

“May it please the court, I’m Steve Emmert, and I represent the employee in this appeal involving a covenant not to compete.”

I then tell the court what I plan to cover, and then I go immediately to the most important issue in the case. I make sure I identify that; the surest way to get the jurists’ attention is to let them know what the decisive legal issue is:

“In my view, this case will turn on one question: Whether the defense of failure to mitigate damages must be pleaded affirmatively to avoid waiving it. If you rule that it must be so pleaded, then I’m going to lose this appeal. But I can stand at this lectern with confidence that I’m not going to lose, because this court’s precedents establish that it need not be pleaded in an answer.”

I got a writ from the Supreme Court, and I’m preparing my brief of appellant now. I’d like to reuse the arguments in my petition for appeal, but I don’t know if that’s bad form. Do I have to create something completely new?

No, not at all. Since your petition succeeded, you shouldn’t feel the need to completely restructure it. That being said, there are a few items that you should change from the petition to the opening brief:

1. In the statement of the case in the petition, I always set forth the date of the final judgment order in the trial court. This allows the court to quickly ascertain that my petition was timely filed. Once the writ is granted, the date of final judgment probably isn’t relevant, so I note instead the date of the writ.

2. My conclusion always sets forth the specific relief I’m requesting, as required by Rules 5:17(c)(7) and 5A:12(c)(6). At the petition stage, that always begins with something like, “This court should award the landlord an appeal, and thereafter reverse . . .” Now that the writ has been granted, I can safely delete the request for a writ, and just spell out what I want the court to do with the case.

3. If you’ve been made aware of an important issue, either in your opponent’s brief in opposition or in questioning by the writ panel, you would be wise to address that in your opening brief. Add a section, or at least a paragraph, to state your position or to put out a fire before it’s kindled.

4. If the court has granted your writ on fewer than all of the issues that you raised in your petition, you need to excise the arguments on the refused assignments when you craft your brief of appellant.

5. Obviously, you should update your case citations to address any new rulings that have come down since the date you filed your petition.

6. In your petition, you cite to pages of the record – the transcript, exhibits, pleadings, etc. At the merits stage, you should convert those citations to appendix cites.

How long does it take for the justices to decide whether to grant me a writ? And when should I expect to receive a ruling on my petition for appeal?

Unless you work in downtown Richmond, the writ panel will probably decide whether to grant your petition before you get back to your office on the day of argument. The justices confer the same day and decide which petitions they’ll grant and which they’ll refuse. The ensuing delay between the argument date and the date on which the decision arrives in your inbox is a function of the time it takes to process the paperwork, combined with dumb luck. I usually tell lawyers to expect a decision somewhere between three days and four weeks after the argument.

Incidentally, there’s an urban legend that says that the court first issues orders in the cases where it grants writs, and only releases the refusal orders weeks later. Another such legend insists that the court quickly zaps out refusals in dead-solid-loser appeals, contributing to the joke that “the refusal order was waiting for me in my office when I returned from the argument.” Both of these mutually contradictory legends are untrue; the only factor that influences the timing by which your order will be issued is how far down the stack of files your case happens to be when the clerk receives the batch. That’s the dumb-luck part.

What are opinion days like for you?

This is one of my most frequently asked questions, right after, “How do you find time to write all those case analyses?” (The direct answer to that question is, “I reserve the time in advance.”) Here’s a typical opinion day for me:

  • I go to the gym roughly four days a week, and I ensure that opinion day is always one of those days. Cardio training only; we don’t want to sprain anything in the upper appendages that might affect my ability to type. Doing this really does give me more stamina for the afternoon.
  • I bring lunch to the office. I normally have lunch out of the office with a couple of my partners, but not on opinion day; on those days, I generally have lunch right here at my desk. I ensure that I have a mid-morning and mid-afternoon snack as well.
  • I usually keep a reasonably clear desk, to the point that you can see more brown than white on my desktop. But on opinion day, I clear it off completely before 9:30 a.m.
  • Starting shortly after 9:30, I check the Supreme Court’s website page listing opinions (http://www.courts.state.va.us/scndex.htm). At first, it will contain only the cases released in previous sessions. I keep hitting refresh every few minutes until the new opinions pop up.
  • When the new decisions arrive, I switch my office phone to Do Not Disturb.
  • This step involves a confession: When the new decisions hit the wire, I run off copies on paper, instead of just reading them off the computer screen. I recognize that this isn’t as eco-friendly as just using electrons, but I read much faster from paper than I do from a screen. (I do, however, run them off two-sided, to cut the number of pages in half.)
  • I close my office door. No appointments; no visitors.
  • I lay the cases out on my desk, organized by case area: one pile for criminal, another for taxation, and so forth. I then pick one up and start reading. Once I’m through with the opinion, I open up Word and start typing analysis. When I’m through with that, I read another opinion and type up that analysis. After I have a couple of analyses done, I’ll post those to the website, pick up another opinion, and repeat the process.
  • I knock off at a normal hour, usually somewhere between 5:30 and 6:00 p.m. I know I can’t get everything done in one day, and there’s no use in frying myself trying to do so; I just leave the unfinished decisions for the next day (generally a Saturday).

So how do you decide in what order you’ll read and analyze the cases?

If there’s a major media-magnet case coming down, I may read that first in anticipation of requests from the media for comment. Otherwise, I give priority to the shorter opinions, so I can post as many analyses as possible the first day. I usually save the longer ones for the second day. I also tend to favor those cases that I know will have a significant effect on day-to-day practice, to the extent I can discern that in advance. The goal is to get the maximum amount of maximally useful information up on the site as quickly as I can.

I got a writ, but I discovered that I needed more time than the 40 days allowed in the rules. I called my opponent to ask for consent for an extension of the deadline for my opening brief, and she graciously agreed. Am I covered if I prepare a motion seeking an extension of time to file my opening brief, and mention my opponent’s consent?

No! Unless you’re prepared to file the appendix on time, your motion should also seek an extension of the filing deadline for that as well. If you get an extension for your brief only, and you assume that that applies to the appendix, you will have a couple of phone calls to make after you get the dismissal order from the Supreme Court.

I’m appealing a civil case to the Fourth Circuit, and I’m wondering what my odds are. How often does that court reverse decisions from district courts in civil cases?

The news isn’t bright for appellants: In the year ending March 31, 2011 (the 2012 figures aren’t available yet), the Fourth reversed just 7.8% of the time in civil cases. It’s even worse in criminal appeals, where the reversal rate is 4.3%. In case you think that’s an aberration, the numbers for 2010 were 8.4% and 5.8%, respectively. If you want more details, here’s a link to the website listing federal judicial caseload statistics:


For purposes of Rules 5:11(b) and 5A:8(a), do I need to file the original transcript, or can I file a copy? The rules just refer to “the transcript” without saying whether it has to be the original.

You can safely file a copy if that’s what you have. The court is interested in the accuracy of the transcript, not whether it’s the first version produced. You do need to make sure that it’s signed by the reporter; an unsigned draft might not be good enough.

What’s the biggest change in appellate practice that you’ve seen over your career?

In one obvious sense, it’s the creation of the Court of Appeals, which didn’t exist when I was licensed in 1982. Having an entirely new court is obviously a big change. Other than that, I’d list two significant developments: the increased time that it takes to make your way through the appellate system, and the rise of an appellate bar. When I began my career, the time it took for a case to get from circuit-court judgment to final decision on the merits in the Supreme Court of Virginia was on the order of 11 or 12 months. Now, in civil cases, I tell trial lawyers to expect a final ruling (assuming the case gets that far) about 18 months after the final judgment below. That affects things like the amount of the supersedeas bond (which must now allow for a year and a half of interest on a money judgment). But more fundamentally, it reflects justice delayed. I wish I had a magic proposal to speed things up, but short of an expansion of the jurisdiction of the Court of Appeals (to mirror the federal system), I don’t know of an easy solution.

When I started practicing, and even many years later, there was no such thing as an appellate lawyer in Virginia. The first one you could classify in that way was probably the Solicitor General of the Commonwealth, an office that was created in 1999. But when I set out in 2004 to establish a purely appellate practice, there was no private-sector lawyer who operated exclusively in that field. Now, several lawyers (including a great many of my friends) have established thriving appellate practices. This represents a shift in the thinking of trial lawyers, who have come to regard appellate practice as a specialized field. Previously, when you tried a case, you were expected to shepherd it all the way through the appellate process if necessary. That isn’t the case anymore.

Will you be covering decisions from the U.S. Supreme Court?
No, I’d need another life to do that. Opinions coming out of Washington are generally covered in the mainstream media, as well as on certain sites that focus on that court (for example, FindLaw and SCOTUSblog). I concentrate on the three appellate courts that convene in Virginia. On occasion, I may mention a U.S. Supreme Court decision of special interest to lawyers, such as the recent ruling in Commissioner v. Banks on the taxation of legal fees, but that will be the exception, not the rule.

When do you post reports on opinions?

That depends on the court.

The Supreme Court of Virginia hands down rulings on a fixed schedule, always on the last day of a session week. There are six session weeks per year, so you’ll always know when to expect those. On opinion day, I read and digest each opinion handed down that day, and report on the most significant decisions that afternoon. I’ll usually post an essay discussing each of the opinions by the ensuing Sunday or Monday.

The Court of Appeals of Virginia issues its rulings once a week, on Tuesdays. I will peruse this list and may select significant published opinions (unpublished opinions have no precedential value, so I generally don’t report on them) for a report or an essay, usually within 48 hours after the Tuesday announcement.

The Fourth Circuit issues opinions daily. I report on significant published opinions in the day or two after they are announced. In cases of particular importance, I may take an extra day and write an essay, generally between five and ten paragraphs, on the decision and its importance to, and likely effect on, the practice of law.

If I sign up for your mailing list, will you sell my e-address?

No, my mailing list will never be sold (or given away, for that matter). When I send out a note to the list, I put everyone’s name in the “BCC” box, so you won’t know who else is on the list, and they won’t know you’re there, either.

What if there’s something potentially useful that isn’t on the site?

Then you would be doing me a great favor by letting me know, so I can consider adding it to the site. The good thing about a site like this is that if I were to find that something isn’t working, I could change it; if something is missing, I can always add it.


[Posted February 15, 2010] Time for another dip into the e-mailbag to see what questions I’m getting these days, starting with one that’s particularly timely:

I’m appealing a civil case to the Supreme Court of Virginia. The judgment order was entered on November 30. I know that I get three months, not 90 days, but what’s three months after November 30? February only has 28 days. Should I assume that the petition is due March 2?

A classic conundrum. You’re right; it’s tough to calculate what date is exactly three months after November 30. This situation comes up regularly (annually, even), and the court has always interpreted the rule to mean that your brief is due on February 28 (or the 29th on leap years). In years such as 2010, when the 28th falls on a weekend, you do get the extra day, of course. By the way, in case you’re feeling cheated out of the extra two days, count ‘em up: From November 30 to February 28 is exactly 90 days. Don’t feel so bad.

I have a writ argument coming up soon, and my opponent has assigned cross-error. Will he get to argue his assignments to the writ panel?

No; only the appellant gets to argue to a writ panel, even if the appellee has assigned cross-error. The only way for him to get a writ argument is for him to file his own appeal of the judgment.

I’m in the Court of Appeals of Virginia in a criminal case. I listed three questions presented, and the court granted me a writ, but it’s limited to just one of my questions. Does that mean they won’t consider arguments related to the other two? And if I want to appeal to the Supreme Court of Virginia, do I have to appeal the two refused questions within 30 days of the denial, or do I wait until the court rules on the one question they took?

If the CAV only accepted one of your three QP’s, then it won’t do you any good to argue the other two; the merits panel won’t listen to you. One thing you should look into immediately is whether the issues in your successful question depend in part on the issues in the other ones. If adjudication of Issue #1 depends in part on Issue #2, you should file a petition for rehearing in which you point this out. As for an appeal on to the Supreme Court, you can appeal all three of your QP’s to the Supreme Court at the conclusion of the case in the CAV; indeed, you can’t appeal before then. See the published order in Headley v. Commonwealth, 231 Va. xix (1986).

I’m getting ready to order the transcript of my trial so I can file it. What risk do I run if I decide to omit parts of it?

The ultimate risk is that if you omit something that’s essential for the court to adjudicate the appeal, you’ll find your appeal dismissed. But if you’re confident that a given part of the transcript wouldn’t be material to your case, you can safely omit that. For example, in a jury trial if there are no issues relating to jury selection (say, there were no Batson challenges or motions to strike a venireman for cause), you can tell the reporter that you don’t need a transcript of jury selection.

I represent an appellant in the Supreme Court. I just got my opponent’s brief in opposition, and he has assigned cross-error. I know I can respond to his assignments without waiving my right to oral argument, and I want to do that in a reply brief. The problem is time: Rule 5:19 only gives me seven days from the date he files his brief, and I know I don’t get an extra thee days because he mailed it. The rascal filed his brief and mailed my copy on a Friday, and Monday was a holiday, so it looks like I only have three days to file my reply brief. I don’t think that’s fair.

I agree with you; you only have three days to put together your reply brief. And I also agree with you that this situation isn’t fair, particularly since you had no idea until Tuesday what issues the “rascal” was going to appeal himself. Expecting anyone to read and analyze an appellate brief, and then research, draft, edit, and file a cogent reply in 72 hours is a tall order. Here’s what I suggest: Contact your opponent and ask him to consent to a short extension of time for your reply brief. (Now aren’t you sorry you called him a rascal? It’s hard to make nice to someone after you just got through dissing him.) If he says yes, you should file a motion under Rule 5:4(a) for that extension, and recite in it that your opponent has given his consent. Be sure to file the motion before the original deadline, and in your cover letter to the Clerk, mention that you will need to get this motion to one of the justices quickly because the deadline draweth nigh.

What if he says no?

File the motion anyway, and tell the truth: You asked your opponent for his consent, and he flatly turned you down. My experience is that if you (1) have at least a decent reason, (2) file the motion as soon as possible after you perceive the need (before the original deadline, of course), (3) don’t ask for more than a few days, and (4) don’t routinely ask for extra time, the court will almost always grant the motion. In addition, the justices on the motion panel will see that your opponent was an obstructionist on what should be a routine motion, and that can’t hurt you, now, can it?

The Court of Appeals has granted me a writ in my criminal appeal. I’m working on the brief of appellant now, and I think I’d like to rephrase the questions presented. Is that okay?

No, it’s not okay. Once the court takes the case, the issue has been framed, and you would need leave of court to reframe it. The same thing goes for assignments of error in the Supreme Court. Those are like the allegations in a complaint in the trial court; they define and limit what the court will adjudicate. Note that in the Supreme Court, you may rephrase the questions presented, which serve as adjuncts to the assignments. As for getting leave, I’d suggest that you use great caution in deciding whether to make that motion. Leave will probably be granted to correct a typographical error, for example; but it would be much harder to get leave to substitute one appellee for another one where you initially listed the wrong one.

Rules 5:32(c)(1) and 5A:25(c)(1) require me to include in the appendix, “the basic initial pleading (as finally amended).” I understand that in a civil case, but I have a felony appeal. Do they mean the arrest warrant?

I don’t know of a specific case interpreting this part of the rules, but in a criminal case I regard the indictment as “the basic initial pleading.”

How long does it take the appellate courts to rule on cases after oral argument?

That varies widely by court. Let’s start with the Fourth Circuit, which is the easiest to answer, because the answer is, “No one knows.” You might get a ruling six weeks after oral argument, or a year later. (Year-long delays are rare, but it happens sometimes.)

In the Court of Appeals, you should see a ruling within about 60 days after the date you argue the case. In some cases it might take a little longer; but you won’t see a year-long delay except in a truly extraordinary situation.

In the Supreme Court, the standard answer is that published opinions are handed down on the final day (which is usually a Friday) of the next session. Sessions are scheduled six times per year, and those weeks are shown on the calendar page of the court’s web site. The most frequent separation between sessions is seven weeks; it’s a little more before the January session, and a lot more before the September session. If the court decides the appeal by unpublished order, that could come down on any Friday after the argument. In fewer than 5% of the cases argued, the decision will be held over to the next session; in that event, it could be 14 weeks or more to get your decision. (The worst feeling of all is to argue your case in April, and then get passed over in June, meaning you have to wait roughly five months to get your ruling.)

What’s the one thing I can do to most improve my winning percentage in appeals?

Okay; I can tell you, but I’ll warn you: You’re not going to like the answer. It’s case selection. Appellants pursue lots of meritless appeals, simply because they’re disappointed. Even the best appellate lawyers can’t turn a dead-solid loser of an appeal into a miraculous victory. Of course, since they’re the best appellate lawyers, they know not even to try. This approach has a subtle benefit beyond merely removing a lot of L’s from your column – it lets the judges and justices know that when your name appears on a petition for appeal, it’s unlikely to be one of those dead-solid losers.

That’s fine advice for civil appeals. But if my client wants to appeal a felony conviction and I’m court-appointed, I don’t have a choice, do I?

True; in a criminal case you have to pursue an appeal if the client directs you to do so, although you can always file an Anders brief if it’s utterly hopeless. Beyond that, you can use my approach, which is clean living and thinking only pure thoughts.

You’re no fun.

I used to hear that a lot, back when I was single and dating.