NOTES ON A NEW MILESTONE
(Posted January 14, 2020) Today marks 15 years from the date when I launched this website. No, I didn’t envision back then publishing for 15 years. But when I was growing up in the 60s and 70s, the year 2020 was a component of science fiction; I never was much good at seeing far into the future. I sometimes succumb to the common human fault of envisioning too short a timeline when making plans.
I decided that the best way to mark this occasion is to look back at some of the most significant posts over the life of this site. In a very real sense, that gives short shrift to what I regard as the most important feature of this site — the same-day opinion analyses. I may mention one or two here, but by a wide margin, those daily essays dominate the word count over VANA’s history. But it would be hard to say that one day’s “Analysis of [date] Supreme Court Opinions” was more momentous than any other — with the possible exception of January 14, 2005, of course.
These, then, are the essays that seem most significant to me, along with a couple that I regard as my personal favorites.
What Not to Say (posted 2006). This is, by a comfortable margin, the single post that I send most often to lawyers. I frequently get a call or an e-mail from someone saying, “I’ve got an appearance before a writ panel on Tuesday. Do you have any tips for me?” My standard reply is to send out a hyperlink to this essay, along with an invitation to call me if any questions linger. I’m happy to report that I almost never get follow-up questions. One bit of information in that essay is now obsolete: In the past, a single justice could grant a writ, even over the opposition of her two colleagues. This carries out the statutory mandate that if there’s any disagreement among the writ panel, the matter shall be heard and decided by the full court. But the justices decided a while back that they didn’t like that arrangement, so they decided internally to require two votes for a writ. (How can they just ignore a statute, you ask? Well, who’s going to reverse them? More important, the voting on petitions is secret, so you’d never know if you lost by a 2-1 vote.)
The Top Ten Ways to Lose Your Appeal (posted 2005). For this essay, I decided to publish the rough script of an MCLE presentation that I had delivered a couple of times. It’s half serious and half comedy routine. I prepared it that way because I don’t like boring CLE programs, so I figure my audience won’t, either. After I posted this, an amused reader sent me a link to an essay titled, “The Wrong Stuff” by Ninth Circuit Judge Alex Kozinsky, making many of the same points. My reader was being complimentary, but I was horrified by the thought that someone would perceive that I had plagiarized the judge’s work. I decided to take the step of writing to the judge, pointing out what I had done in ignorance of his work, and offering to take down my post along with an apology. His honor wrote back, a singularly gracious note that I’ve kept all these years. He said that there were significant differences between the two, and he complimented me on it and urged me to retain it.
Interviews with Sun Tzu, Cicero, Hemingway, and Casanova (posted on various dates in 2005-07). I’ve always regarded publishing this website as a fun project; as my creative-writing outlet. These four fanciful “interviews” were among the most enjoyable to compose. I got the idea from reading The Art of War by Sun Tzu, and seeing parallels to the decidedly more peaceful arena of appellate advocacy. That led me to post advice on appellate strategy and tactics (Sun Tzu), oral argument (Cicero), legal writing (Hemingway), and even persuasion (Casanova), imagining what each expert would say about his field. The very end of the Casanova interview is among my favorite lines on this site, and I’ve been assured by an appellate jurist – whom I trust – that it’s true.
Occasional forays across the Potomac (various dates). As I’ve often observed, I don’t usually cover the Supreme Court of the United States because I’d need another life to do that. SCOTUSblog does a marvelous job there, and I commend the site to you. But on a few occasions, I’ve posted commentary on major rulings — you know, the ones that generally come down right at the end of June, just as the Robes are getting out of Dodge for the summer. I remember in particular my musings on Boumedienne v. Bush, involving the civil rights of accused terrorists or enemy combatants in U.S. custody; about how Chief Justice Roberts’s 5-4 majority opinion in the Affordable Care Act litigation required him to straddle the fence on whether the individual mandate imposed a tax or not; how the court got away with deciding U.S. v. Windsor without a true appellant. While these are fun excursions, I’m sticking with my day job, eyeing developments on the banks of the James.
The Practitioner’s Guide to the Care and Feeding of Court Reporters (posted 2009). I posted this because I felt that too many trial lawyers took court reporters for granted. Appellate lawyers realize that reporters are absolutely essential for appellate practice; they’re occasionally the most important person in the trial courtroom. This essay is a guide to how to make the reporter’s job easier. After I published it, I started getting enormously heartwarming notes of appreciation from court reporters, and not just those in Virginia. Someone reposted the essay to a publication dedicated to the reporting profession. From their reaction, you’d think that I was the first person to think of treating court reporters as fellow professionals. I’m not; I just happened to be the first to write about it.
On Professionalism (posted 2011). I received an invitation from the Wiggins School of Law in North Carolina to deliver one of their periodic professionalism lectures; this was a rough transcript of my remarks. Of all the essays I’ve posted, I’m probably proudest of this one.
Nine Reasons Why Appellate Practice Is Better than Trial Practice (posted 2013). When my trial-lawyer pals tell me their tales of woe about this nasty deposition or this interminable trial, I never cease to take a perverse pleasure in sending them a link to this humorous (but true!) essay, which explains why we in the appellate bar have it much better. Come on over to the Dark Side …
Does Noting an Appeal Deprive the Trial Court of Jurisdiction? (posted 2015). Once upon a time, this was a real open question. But in July 2019, the Supreme Court added Rules 1:1B and 1:1C, laying out precise rules for who can do what, when. Because it was four years between my post and the rule change, I can’t say that the one influenced the other, but I like to think it helped a bit.
The Evolution of Appellate Oral Argument (posted 2016). This was more history project than current-events report. But I found the changes in oral advocacy over the centuries to be fascinating (and a little alarming, given the clear downward trend in argument times).
Supreme Court Grants Rare Mandamus Writ (posted 2016). I have to assure some of my readers that I’m not a court insider and never have been, and I have no secret pipeline to information that isn’t available to the public. Exhibit A to that assurance is the Supreme Court’s lightning resolution of Howell v. McAuliffe, the appeal over the Governor’s effort to “re-enfranchise” 200,000 convicted felons with a single stroke of a pen. The justices entertained a historic oral argument in the summer, on July 19, 2016. I attended, not wanting to miss history unfolding, and then blithely went about my travel plans later that week. To my astonishment, I learned during that trip that the Robes had handed down 63 pages’ worth of opinions – a majority and two separate dissents – just three days after the echoes died from the last argument. That required a lot of quick reading, a placeholder essay of a few paragraphs that evening, and a lengthier analysis the following week. No, folks, I don’t know what they’re going to hand down, or when.
ROBOLAWYERS? REALLY? (posted 2016). Please, no. Not while I’m still practicing.
On Language and Diplomacy in the Appellate World (published 2018). I got a particularly gratifying number of comments, all positive, on this essay about how life in some appellate courts can turn nasty, and how glad I am that that doesn’t happen here.
Emergency Appeals: A How-to Guide (posted 2018). When I agreed to give a CLE presentation on this topic, I looked and found nothing, nothing at all, written on this subject in Virginia. I figured that while you might never get an appeal where hours mattered, it might be comforting to have some guidance out there.
Thank you, my readers, for making this site a success, and for your kind words over the years. We start Year 16 now; opinions on Thursday, anyone?