NOTES ON AN EVENTFUL WEEK

(Posted April 2, 2021) As we endure one last assault from Old Man Winter – the temperatures here are typical of mid-January – let’s reflect on developments in an especially meaningful week in the Virginia appellate world.

An appellate revolution

It’s happening. On Wednesday, the Governor signed Senate Bill 1261, creating an appeal of right in all cases. Virginia has finally caught up with the rest of America after having been left behind for years.

Effective January 1, 2022, all appeals from Virginia courts of record will go directly to the Court of Appeals. The Supreme Court of Virginia will become a court of pure certiorari, reviewing CAV appellate decisions (with very few exceptions, such as attorney discipline proceedings). This is a massive change, at least as significant as the creation of the CAV back in the 1980s. It will require a host of new jurists – the plan adds six seats to the CAV – plus more support staff, assistant attorneys general, and so forth. It’s a good time to be an appellate lawyer in Virginia.

I’ve heard that CAV Chief Judge Marla Decker has asked that the General Assembly expand the court as of July 1, 2021, so the newly configured court can get up to speed. Some of the new appellate judges may come from trial benches, creating a ripple effect of new appointments downstairs, too. (Legislators love handing out robes.)

You should expect the newly elected judges to better reflect the diversity of Virginians as a whole. The current set of judges is overwhelmingly white (9 out of 10) and almost as male (7 of 10). Significant geographic areas of the state are underrepresented or wholly unrepresented; you should expect new judges from those areas.

The legislature will probably also seek more diversity in practice areas. Eight of the current judges are former Commonwealth’s Attorneys or AAGs; the other two handled insurance defense. There are no former public defenders, plaintiff’s tort lawyers, Workers’ Comp practitioners, divorce lawyers, condemnation lawyers; and the list goes on. That’s about to change.

The practice of appellate law will change, too. Getting an immediate merits review, without having to pursue a writ, will make appeals more attractive. You still won’t see a huge reversal rate, but the Supreme Court now grants so very few writs that most circuit court judges can feel confident now that the odds are small that their rulings will ever be reviewed on the merits. That, too, will change, as an appellee must deal with the fact that there’s going to be a written opinion in every case that’s appealed.

E-filing is here to stay

Yesterday the Supreme Court announced significant rule changes, effective June 1. The main thrust of them is that the courts will stop accepting paper filings of pleadings, briefs, and motions. Everything will be filed electronically now through VACES. The only exception is the trial-court record, and you as practitioners don’t have control of that anyway. Oh, you can get an exemption to file paper documents if you can convince the court to give you one, but don’t expect that. Inmates filing pro se can file by paper, but if you’re willing to commit a felony just to be able to file on paper, well …

This change is likely to reduce the costs of appealing. The current rules allow costs for brief printing, but what will those costs be now? Code §17.1-605 provides for taxation of costs for the actual cost incurred “in printing or otherwise reproducing” briefs and the appendix. SB 1261 didn’t change that; but where nothing actually gets printed, will the appellate courts allow anything?

If you’ve invested money in brief-printing consultants, it’s now too late to sell your stock; it’s probably already tanked. I strongly suspect that all such companies have reworked their billing model so that it’s no longer based on the number of pages printed. Those companies that still bill by the reproduced page will be scrambling now.

First Quarter David-Goliath Index

With three months in the books, it’s time to see how our little guys and big guys fared in Supreme Court litigation so far this year. The court handed down ten published or unpublished merits rulings that fit our criteria: an identifiable big guy/little guy dispute. That means no divorces, no intercorporate squabbles, and no boundary-line suits.

In published opinions, our Davids won twice and Goliaths four times. For unpubs, Goliath was undefeated, 4-0. That gives us an inaugural D-GI of 2021 of 20/80. David is off to a slow start, but with a small sample size like this, that could change. Back to you in early July.