NOTES ON RECENT APPELLATE DEVELOPMENTS
(Posted December 1, 2018) Let’s scan the landscape and see what’s been happening recently in the appellate world.
New federal rules take effect
If you practice in the Fourth Circuit, today is the day when new rule provisions, previously announced, take effect. The Fourth has changed Local Rule 29 to match a change in the Federal Rules of Appellate Procedure. The new local rule states, “[t]he Court will prohibit the filing of or strike an amicus brief that would result in a judge’s recusal from the three-judge or en banc panel that has been assigned to the case or in a judge’s recusal from a vote on whether to hear or rehear a case en banc.”
Today also marks the effective date of a new deadline for filing reply briefs in the federal system. It’s now 21 days, up from 14. The longer deadline applies prospectively only, so if you’ve already received your briefing order, you only have 14 days, even if your deadline hasn’t arrived yet.
Last month I traveled to Atlanta to attend the ABA Appellate Summit. It was, as always, packed with programming, and it included plenty of free time for extracurricular activities in town. The organizers did a good job of putting everything together, including an appropriate amount of security to discourage the usual rampaging hordes of appellate hooligans.
I encourage you to mark your calendars now for the 2019 summit, which will be just across the Potomac in Washington, DC. The dates are November 14-17. This is your chance to rub elbows with, and swap stories with, your colleagues from across the nation, not to mention the chance to engage in idle conversation with appellate jurists. Did I forget to mention the many hours of top-notch MCLE programming? I’ll be there, and if you’re serious about your appellate practice, you will be, too.
Pilot appellate-mediation program
I reported recently that the Supreme Court has approved a two-year pilot program for mediation of cases on appeal. Because mediating appeals is different from mediating cases before trial, the Dispute Resolution Services office sponsored a training program last month, specifically geared toward training mediators to tackle cases in our realm.
The program begins January 1, 2019. For certain categories of appeals, the Clerks of the SCV and CAV will notify the parties, once the case is mature for a merits decision, of the availability of appellate mediation. If the parties agree to try to resolve the case, they get a 30-day stay of all appellate deadlines. The program will be evaluated as it unfolds to see if it merits a permanent place in the judicial system.
Holiday closing schedule
The Virginia state appellate courts will be closed December 24, 25, and 31 plus January 1. If you have a deadline that expires on one of those days, you automatically get an extension to the next business day – either December 26 or January 2.
I’ll add my usual caveat: If you have a deadline on, say, Christmas Eve or New Year’s Eve, and that deadline requires you to file something in the trial court clerk’s office, you need to check with your local clerk to see if that office will be open. If it is, the appellate court’s closing won’t help you. (I tend to doubt that this will be an issue, as I suspect that four-day weekends will be the norm this season.)
The Fourth Circuit hasn’t announced its closing schedule yet. They tend to be a little less accommodating of staff, so it wouldn’t surprise me if that court is open on New Year’s Eve. We’ll see, and I’ll post something here once they let the world know.
Final writ panels of 2018
This Tuesday, December 4, the Supreme Court will convene its last set of writ panels for the year. If you’ll be near the Richmond area, this is a great opportunity to watch a series of oral arguments and perhaps learn something about what works and what doesn’t. Three panels will hear 72 cases in all, and decide which ones receive a precious writ.
There are no more merits arguments in 2018; the last of those wrapped up on November 2. The next full session of the Supreme Court is the week of January 7-11. By tradition, the January session coincides with the opening of the General Assembly session. This enables the justices to attend the Governor’s State of the Commonwealth address. (If you watch the speech on television, it’s easy to pick out the justices in the audience. Black robes make for poor disguises.)
In the Court of Appeals, there are three more court sessions before the calendar turns to 2019. Panels of that court will convene next Tuesday, December 4, in Richmond; the following Tuesday here in Tidewater; and December 18 in the Roanoke/Salem area. The Fourth Circuit’s final session of the year is December 11-13, in Richmond.
One final statistical note: In calendar 2018, the Supreme Court of Virginia heard argument in exactly 100 merits cases, reflecting the continuing – and, in my mind, alarming – trend of fewer and fewer writs granted. If you go back twenty years, that figure would be closer to 300. This is due in part to a smaller incoming caseload, to be sure; but the grant rate has fallen noticeably faster than the new-appeal filing rate. The court is getting ever pickier in deciding when to grant an appeal.