NOTE ON APELLATE DEVELOPMENTS
(Posted October 6, 2021) As we look forward to tomorrow, and the chance of our first published opinions from the Supreme Court of Virginia in over a month, let’s take a look around at the landscape.
3Q David-Goliath Index
Another quarter is in the books, so let’s see how our big guys and little guys fared against each other in the SCV. As you’ll recall, in the past several years, our Davids have been taking a pounding in merits decisions. This time, the results are much more balanced: Considering published opinions and orders plus unpubs, David won six times in the third quarter against eight wins for Goliath. The resulting 43/57 index, while still favoring Goliath, is the best that David has done in a long time. These newest decisions mean that over the course of 2021, David has won 15 times and Goliath 30, producing a 33/67 D-GI. Back to you at the end of the year.
Pace of filings
In my first essay of 2021, I noted the 10% decline in new-case filings in the Supreme Court Clerk’s Office, measured from 2019 to 2020. I forecast a larger drop-off in 2021 as the full effect of the pandemic and the jury-trial moratorium materialized.
Last year, the Clerk received 1,571 new records – a bit under 400 per calendar quarter. Thus far in 2021, the Clerk has opened only 935, just over 300 per quarter. It’s possible that the resumption of jury trials will cause the pace to pick up between now and the end of the year, but failing that, my best guess is that we’ll see about 350 fewer new filings at Ninth and Franklin – perhaps somewhere between 1,200 and 1,250. That would be a decline of about 25%.
The crystal ball gives me a cloudy picture of what to expect in 2022. The immediate effect will be a reduction in the number of direct appeals from circuit courts in civil cases, because those appeals will now stop first in the Court of Appeals. That will produce a noticeable decline in the SCV’s incoming traffic in the first roughly eight months of the calendar year.
The wild card here is that most of the justices’ caseload – slightly more than half – is criminal petitions from final decisions in the Court of Appeals. Those, in theory, should remain relatively constant, especially because the CAV has done such a good job in keeping its docket cranking despite the pandemic.
One Summit down; one to go
The Virginia Appellate Summit last month was, from what I can tell, a major success. It was a hybrid program, allowing in-person attendance as well as remote access. It wouldn’t have happened if not for the generosity of McGuireWoods, which donated the meeting space in its downtown Richmond offices.
There’s one more Summit on the horizon: The ABA Appellate Summit will convene November 11 through 14 at the Hyatt Regency in Austin, Texas. This is the biggest and best nationwide appellate bench-bar conference, with hundreds of appellate advocates and jurists, plenty of advanced-level CLE programming, and lots of time for socializing and excursions in the city.
Early bird pricing was set to expire September 30, but the program planners decided to extend that to October 15, to allow potential attendees to evaluate pandemic conditions before deciding whether to come. I learned today that the room block at the Hyatt may be full, so it may not be possible to stay at the host hotel. But I understand that the Summit planners anticipated this when choosing the venue; there are several other hotels within walking distance.
One final perk: The Texas Longhorns entertain the Kansas Jayhawks on Saturday afternoon, November 13. I have no idea whether you can get tickets, but if you’re a college football fan, it doesn’t get much better than a Texas home game.
Still remote arguments for now
In a bow to pandemic realities, all three appellate courts that convene in Richmond are still entertaining oral arguments remotely. The Supreme Court of Virginia will host virtual oral arguments in its November session and telephonic arguments for the October 19 writ panels. It’s conceivable that the December 7 writ panels might be in-person, but I wouldn’t wager my mortgage on that.
Meanwhile, the Court of Appeals of Virginia will use remote arguments for the rest of 2021, and the Fourth Circuit will conduct them remotely for the October 26-29 sitting. The court hasn’t made an announcement yet about its final sitting of the year in early December.
I unashamedly yearn for the day when the courtrooms open again. I miss the majesty of the pillars, the drapes, the judicial portraits in the SCV’s main courtroom. It’s okay to dream; the Robes across the Potomac have convened in-person oral arguments starting this week, so anything’s possible.
