THE POST-PANDEMIC APPELLATE WORLD:

A WAY-TOO-EARLY PEEK INTO THE CRYSTAL BALL

(Posted April 21, 2020) For the past week or so, I’ve seen occasional articles in various media, each promising that the current pandemic will wreak changes in certain sectors of life, and that life will be different after the public-health scene returns to some semblance of normalcy. Consider, for example, how many Americans regarded telecommuting as wholly impractical just two months ago, but have now seen over the past few weeks that it can and does work in their industries.

I expect the rate of remote working to subside a bit after the pandemic eases, but it’ll never return to its previous levels. That ship has sailed. Employees won’t want to return to wasting half an hour or more per day commuting; won’t have to spend as much as before on gas; won’t want to hunt for a parking space (and maybe pay for that, too). Businesses might be able to reduce the amount of space they’re renting, because many employees won’t be physically present in the office. You see the trend.

This thinking prompted me to muse about how the appellate field might be different when this awful nightmare recedes into the rear-view mirror. Here are a few ideas, each backed only by evidence that would never be sufficient to get to a jury – barely informed speculation.

E-filing

This is the easiest prediction. The Fourth Circuit has been an e-filing-only court for years now. [Note: This, as originally posted, is incorrect; the Fourth still requires three paper copies. The “official” copy is e-filed. The court has suspended the requirement to file paper copies during the pandemic.] The state appellate courts have clung to paper filings. Oh, they’ve reduced the number of paper copies required, to be sure. Not long ago – in this century, even – an appellant needed to file 20 paper copies of the appendix and an opening brief in the SCV. The rules changed a few years later to require a PDF, and dropped the required number of paper copies to 15.

That number is now down to three. Think about that if you own stock in appellate-consultant-services companies. They once made their money on a per-printed-page basis; the sensible ones changed their billing protocols years ago, to adapt instead of dying.

In response to the declaration of judicial emergency last month, the Court of Appeals opened up the VACES system to all filers and strongly encouraged all filings to be online. The court simultaneously suspended the obligation to file paper copies. They don’t want any person-to-person contact.

As long as the rules don’t require otherwise, I believe there will be no going back from this change. CAV Clerk Cyndi McCoy is probably eyeing her colleague across Capitol Square, Pat Connor of the Fourth Circuit, with at least a tincture of envy. I believe the judges of her court will back her, and end the requirement for all paper filings henceforth.

As far as I can see, the Supreme Court of Virginia remains a holdout. It still requires those three paper copies. But as younger jurists – those who went to law school after about 1985 – continue to ascend to the bench to replace a retiring generation, more and more of them will embrace reading all briefs in electronic form. In the legal field, they’re digital natives. Someday soon, my crystal ball assures me, the SCV will embrace the all-electronic model. Paper briefs will be the domain of dinosaurs. You know, like me.

Oral argument

This is a sensitive issue for appellate pros, and will require a bit of a digression. Part of the dynamic is the diminishing role of oral advocacy in the appellate process. I posted an essay a few years ago about the incredible shrinking oral arguments, which were, not too long ago, an hour per side in the SCV. That dropped to 40 minutes, then 30, and now it’s just 15 precious sweeps of the second hand. Fifteen minutes! That’s true even if you’re appealing a $20 million judgment.

The parallel in the Fourth Circuit, where you get a comparatively luxurious 20 minutes per side, is the rarity of arguing orally at all. FRAP 34(a)(2) says that “Oral argument must be allowed in every case” unless the panel unanimously agrees that one of three exceptions applies. But that general rule’s just for show; the reality is that the Fourth Circuit decides 91% of all appeals on the briefs, without ever hearing a “May it please the court.” The most common rationale is a finding that the briefs adequately address the issues, and oral argument won’t aid the decisional process. This exception has swallowed the rule.

Why is this kind of thing happening? If you listen to appellate jurists at MCLE presentations and at Bar functions, they uniformly say that they find oral argument very helpful in their evaluations of appeals. Yet they acknowledge that the argument changes their views about the ultimate merits only 10-15% of the time.

The only way to reconcile those two incongruous statements is to understand that the court views the argument process differently than you and I do. We see it as a chance to win the case. They see it as an opportunity to sharpen the focus of the eventual ruling, to sculpt the eventual opinion of the court.

This, in turn, is a function of the changing balance between oral and written advocacy over the generations. A hundred or more years ago, briefs were short and arguments were long – hours long, and back in the Nineteenth Century, days long. The brief would be considered rudimentary by today’s standards. Because the court often had little advance knowledge of the facts, advocates routinely spent considerable time informing the appellate court of what transpired in the field and in the court below. Only then did they advance to the legal argument.

Nowadays, briefs are extensive – too long, in many judges’ views – and they usually fully inform the courts of the facts and the issues. Oral argument is far less valuable, compared to long ago, because the court already knows the case. An argument’s highest and best use is to address jurists’ questions, to satisfy the concerns left after a careful reading of the written advocacy.

That brings me to the point of this pandemic musing. I’m not as confident with this prediction as I am about e-filing, but I can see this experience as hastening the demise of oral argument. The Fourth has announced that it’s suspending its practice of publishing opinions only after receiving oral argument. The court is convening remote audiovisual arguments now – it started those last month, in the early days of the pandemic – but this announcement telegraphs that the court might decide even more appeals without argument than before.

The Supreme Court of Virginia has, for what must be the first time in its long history, completed an entire court session without seeing a single advocate’s face. Last week the justices heard arguments in 22 appeals, all by audio-only teleconference. I had three of those cases, and in my opinion, the tech end of the process was seamless; the clerk’s office did a masterful job of coordinating something that would have been unthinkable just five or six weeks earlier.

From my perspective, the two most noticeable differences were my inability to get nonverbal feedback – facial expressions, body language – from the justices, and an eerie paucity of questions from the bench. My first-ever teleconference argument was two weeks earlier, during writ panels, and I noticed that near-silence then, too: Something about this setup is deterring the justices from asking as many questions as before.

What happens in the future in the SCV? That depends on the mood of the justices, of course. But much like the telecommuting employee, the court might get some ideas here. It may expand the use of argument by teleconference, for example. The court probably will eventually arrange for audiovisual arguments – not as good as in-person appearances, in my view, but decidedly better than a blind telephone call. And the court may turn to the Fourth Circuit’s practice, and decide more appeals without oral argument at all.

How can they do that, you ask? (Well, even if you didn’t, I just did, so I may as well answer.) The right to oral argument in the Supreme Court isn’t in the Constitution of Virginia or in the Code. It’s in Rule 5:33. And because the Supreme Court is the sole arbiter of what goes into the Rules of Court (unlike in the federal system, where Congress fixes the rules), the Supreme Court has the power to tinker with the rules for oral argument. They can do that.

But will they really do it? Because speculation and guesswork is clearly inadmissible, I can’t offer testimony on that. But it wouldn’t surprise me to see at least some movement in this direction. The court’s caseload has fallen off a cliff in recent years, due partly to a dropoff in new filings, but also to the court’s conscious decisions to take a firmer hand on waiver and to grant fewer writs. This kind of rule change might also reduce the justices’ in-court time.

The remaining court is the CAV. Knowing what I do about that court, I seriously doubt that the judges will change anything, other than perhaps making telephonic arguments even more available should the parties desire it.

The niceties

This is nowhere near as important as the matters I’ve discussed above, but I fear the demise of the in-court handshake. In the Fourth Circuit and the Court of Appeals of Virginia, the judges descend from the bench at the end of each case, walk up to each arguing counsel, and shake hands, in a personal greeting that I see as one of the very best parts of the practice of law. The justices in the SCV do that on a more limited basis: only at the end of the day in a merits session. This simple act conveys a kinship: We’re all in the appellate guild together, jurist and lawyer alike.

When’s the last time you shook hands with anyone? There obviously won’t be any handshakes in teleconference arguments. But what about when the courts return to the actual bench, and we return to an actual lectern? I can easily see that the courts might decline to resume this nicety, at least immediately and maybe permanently. Some people – and appellate judges are people – will remain uncomfortable with the contagion risk of shaking hands. I hope the practice returns, though I despair of its doing so in the next 6-12 months.

As I was typing this, I received word that the Supreme Court will conduct a remote admission ceremony for new members of the Bar in June. That was inevitable, of course, but it’s still a sad sacrifice. I recall well my admission ceremony, a long time ago in a galaxy far, far away, and it impressed me with what I saw as the majesty of the ultimate court in the state. The June admittees will be just as admitted and just as licensed, but it probably won’t feel the same for them.

There are assuredly more changes on the appellate horizon; these are the ones that have occurred to me after a bit of musing. Even with adjustments like this, the appellate sector is still the best way, the most rewarding way, to practice law.