SOME APPELLATE ODDS AND ENDS
[Posted June 29, 2016] Here are some notes on a few things that have caught my eye lately in the appellate world.
A wealth of issues
One of my long-time readers wrote to let me know about the writ granted last week in Blackwell v. Commonwealth. From the listing of the assignments, it looks as though the appellant was convicted of setting two fires and attempting to collect insurance money afterward. Those assignments deal with sufficiency issues, and normally an appeal like this wouldn’t be news. But the number of issues granted is news: eleven assignments. Eleven! But it could have been more; it’s apparent that the justices refused at least five others from the petition.
Now the appellant’s lawyer gets to deal with the unfortunate truth that you don’t get extra pages just because the court accepted a lot of issues for review. He’ll have fifty pages, of course, as is usual for a granted writ. But if you think you can discuss eleven sufficiency issues fully in that many pages – remembering to stop along the way for things like the facts, the statement of the case, the standards of review, etc. – then you’re either seriously deluded, or else … you’re an experienced appellate lawyer already.
I will repeat here my advice that you should restrict yourself to the fewest assignments of error you can reasonably live with. Multiplying your appellate issues, perhaps on the assumption that that gives you more opportunities to succeed, is often a self-defeating proposition. Most appellate jurists will tell you that there’s an inverse relationship between their perception of a brief’s merit and the number of issues raised. This case proves that sometimes you can get away with the kitchen-sink approach.
And plenty of new writs
I’ve written recently about the alarming downward trend of writs granted in the SCV. Go back fifteen or twenty years and you’ll find somewhere in the range of 200 to 250 writs a year. Nowadays we’re down close to 100, a far steeper drop than the decline in the number of incoming cases. The justices have become measurably stingier in issuing those writs.
This is a very small glimmer of good news, but the court has already issued 23 writs from the panels that met five weeks ago, on May 24. I know better than to put too much faith in extrapolated small samples, but multiply those 23 writs by six panels a year and you’d have about 140 writs this year – nowhere near 250, but still a move in the right direction.
I doubt that the folks in Vegas have an over/under on the number of writs we’ll get by the end of 2016, but my number is about 120. (No, I don’t make book, so you’ll have to place your bets elsewhere.) I recall that writ panels earlier this year handed them out with tweezers, so I know to be skeptical.
Retirement of a legend
SCOTUSblog’s Lyle Denniston has covered his last Supreme Court opinion day. The long-time Supreme Court reporter joined the website twelve years ago and has been the heart and soul of the site’s nonpareil live-blogging opinion coverage. His background as a journalist – unlike most of the other SCOTUSblog staffers, he isn’t an attorney – served him well as technology evolved, enabling the site to post quick analysis of new opinions. (Much as we do here, I might add.)
Follow-up on difficult preservation
I recently posted an essay about what to do when you’re trying to preserve the record and the learned judge makes life difficult on you. The simple answer is that you cannot back off; the justices don’t care that the judge is angry just at the time you need to make a record.
I referred in that essay to a CLE presentation I did last year entitled, “Courage for the Chicken-Hearted: Preserving the Record in Hostile Territory” for the VTLA. I didn’t want to upstage that organization by spilling here, and for free, all of the advice I gave to that audience. Now I’ve learned that the association has made the video of that program available for a very reasonable price: $35 (less if you’re a VTLA member). It isn’t the entire seminar; just my segment. And while you won’t get MCLE credit, you’ll be able to see the presentation and download the written materials, which include case citations. Here’s a link to the page where you can order it. (I don’t get any revenue from these sales, but if you want to tip the on-air talent, feel free.)