NOTES ON THE DAWN OF A NEW APPELLATE YEAR
(Posted January 7, 2021) The turn of the calendar means that a dreadful year (by most accounts) is safely in the rear-view mirror. This looks like a good occasion to look around and see what’s going on in the world of appeals.
Final David-Goliath Index of 2020
In the final quarter of last year, we saw five published decisions that fit the parameters of the David-Goliath Index. Goliath took the gold medal in four of those. That gives us a year-long total of 13 wins for David and 31 for Goliath. The final D-GI is thus 30-70.
If that seems lopsided to you, please note that this has been a solid year for our Davids. In the previous four years, Goliath won 78% of the time. Overall, our Big Guys have been winning three appeals for every one the Little Guys win over a five-year period.
Preliminary caseload indicators in the SCV
The justices issued 48 published opinions, 7 published orders, and 28 unpubs in 2020, for a total of 83 merits decisions. The court received oral argument in 82 granted cases over the course of the year.
If you think that those are small numbers, your Jedi sense serves you well. The size of the merits docket is way down from the heady days of about 15 years ago, and the number of published decisions is the lowest of which I have any record. My records go back to 1965.
Get ready for a new record a year from now. The court will convene next week for a 14-case session. But by the April session at the latest, and possibly as soon as the March docket, the effects of the judicial emergency will kick in, dramatically reducing the size of merits dockets simply because there are very few final judgments coming out of circuit courts. I had hoped that the Robes would grant more writs to preserve the image of busy merits dockets; but I think I’m doomed to disappointment there. In sum: 2020 was a historically bad year for appellate business, and 2021 will be even worse.
In 2020, SCV Clerk Doug Robelen opened 1,571 new records. That’s a drop of 10% from the 1,760 new filings in 2019. And remember, 2021 will be worse.
CAV published-opinions count
The Court of Appeals of Virginia issued 71 published opinions in calendar 2020. The previous year saw an abnormally high figure of 86; the 2020 figure looks to be a regression toward a likely mean. For comparison purposes, the court handed down 66 published opinions in 2018, so 2019 really looks like an outlier.
I’ve pondered whether the CAV will also suffer a retrenchment in overall business volume. My best guess is that it will, but likely not as dramatic a drop as the one on the other side of the building. Three-fourths of the CAV’s docket is criminal appeals, and as courthouses reopen across the Commonwealth, those courts will give priority to those cases. The other two major components of the CAV’s docket, domestic relations and Workers’ Comp, don’t require juries, so they may bounce back more quickly, too.
Close of a remarkable career
My appellate pal George Somerville of Harman Claytor in Glen Allen has decided to call it a career. I’m happy to report that there’s no ill-health component to this decision; he simply concluded that it was time.
Of all my friends in the appellate guild, I think I’ve known George the longest; we met perhaps 25-30 years ago when he and another lawyer from his firm came to the Virginia Beach City Attorney’s Office to give us some in-house training in litigation, including appeals. George could speak authoritatively, having clerked for one of the giants of the federal appellate bench, Judge Ruggero Aldisert of the Third Circuit. We became friends then and stayed that way without interruption ever since.
The appellate bar is thus a bit poorer today. The silver lining, for those of you who sensibly aspire to join us, is that there’s a bit more room at the top now. As usual when one of my pals retires, I’ll borrow a Navy term because I live in a Navy town: Fair winds and following seas, my brother.
Remote oral arguments
All three appellate courts that meet here in Virginia continue to operate with closed courtrooms. That is, all oral arguments are conducted remotely, with no one in the actual courtroom. The Court of Appeals of Virginia will continue to do that at least through April 30. The SCV announces its plans session-by-session; next week’s session is definitely remote, and my best guess is that the March session will be, too. The Fourth Circuit will entertain remote arguments in its upcoming session running from January 25-29.
Expansion of CAV jurisdiction on the horizon?
I expect the upcoming General Assembly session to take up a bill to revolutionize the appellate system in Virginia. The bill would effectively give us a parallel to the federal system, where each losing trial-court litigant gets one of-right appeal in the Court of Appeals, followed by certiorari review in the Supreme Court.
There are still plenty of details to be worked out, and I’m not about to start counting chickens. But in my view, this would be an extraordinarily good move. Virginia is alone in the Nation in not providing an appeal of right to every appellant. Alone in these United States, almost all appellants here must first beseech the appellate court to take the case. Our litigants deserve better than that. Litigants in 49 states already get better than that.
Because of its profound effect on our field of practice, I intend to monitor this bill after it’s filed and will report on it when I get news. If it passes, appellate practice could grow significantly, as more losing litigants might decide to pursue an appeal without the need to face the daunting hurdle of getting a writ.