Training the Appellate Advocate
This is the way Judge Bob Humphreys of the Court of Appeals tells the story: The panel considering that morning’s arguments was certain it had to do something, but what to do? The lawyer’s performance had been abysmal; his brief was hopelessly unclear and inadequate; his client had essentially been betrayed. The panel had to do something about this latest example of a pattern of shoddy practice before the court.
Then one member of the panel had an idea – Why don’t we sanction the lawyer, by requiring him to attend an appellate CLE presentation? That should get a clear message across to him, AND improve the level of performance we see, in at least one practitioner. They quickly agreed to this approach, and an appropriate order soon issued; the lawyer was directed to attend one CLE program in appellate practice within the ensuing six months, and to send a certificate of compliance to the court.
A few days later, the court got a letter from the unfortunate lawyer. He acknowledged the panel’s directive, and wasn’t complaining about how he was treated. The problem, he pointed out, was that there were no CLE’s available on appellate practice, leaving him powerless to comply with the court’s order.
* * * * *
Let’s assume for the moment that you are that unfortunate lawyer, and you received this somber order in this morning’s mail. After you regain your composure, you begin to sort out what you have to do. How would you comply with the court’s directive? Where would you look for a program? The problem is that the supply of appellate CLE’s, driven as it is by a relatively low demand, is not all that plentiful. Let’s consider the usual courses of action for someone looking to improve his or her appellate skills, even without a directive to do so.
If you’re like most Virginia lawyers, the first place you’d go to find a supply of programs is Virginia CLE, a nonprofit organization that sponsors scores (perhaps hundreds; I haven’t tried to count) of excellent seminars each year. But a search of that fine organization’s web site comes up empty when you type in the key word “appellate,” and using “appeal” instead gets you references to a handful of seminars that obviously aren’t about appellate practice.
The problem here is that Virginia CLE does, in fact, offer a fine CLE program on appellate advocacy. But demand is low enough that they only offer it every other year; the last one was offered in the spring of 2004. So if that’s your source of education, you’re going to go hungry for a while.
On a statewide level, there are very few programs offering training in appellate advocacy, and they’re not easy to find. You may have more luck with your local bar association. For example, the Bar Association of the City of Richmond will offer a program with an illustrious faculty (including two of the state’s eight members in the American Academy of Appellate Lawyers) on March 23. The Virginia Beach Bar Association will offer a program on April 27, at which this writer will share the podium with Judge Humphreys. The Virginia Trial Lawyers Association’s Solo and Small Firm Conference in Charlottesville in October will have a short section on appellate advocacy. But finding detailed programs will be difficult; the longest of these programs will be two hours (Richmond and Virginia Beach), and we must acknowledge that there is only so much that one can learn in that time.
How about the national stage? The ABA, for a time, sponsored a magnificent program called the Appellate Advocacy Institute, which met in Washington, DC. It was a two- or three-day program with a staff that was just crawling with appellate jurists and specialists. The keynote speaker was some fellow named Rehnquist, who seemed to know a thing or two about appellate practice. The student-faculty ratio was mid-single digits. (You will have discerned by now that this writer was fortunate enough to have attended the Institute a few years ago.) But a search of the ABA’s web site for the Institute comes up dry. I don’t know whether they still offer this wonderful program (and I’ll ask, and supplement this essay accordingly), but it wouldn’t help you if this morning’s mail really had included the dreaded sanction order.
* * * * *
The stakes are such that learning appellate advocacy is no longer an option, or a luxury, for the trial lawyer who plans to venture into an appellate court. (The danger of dabbling in an area of practice with which one is not familiar should be obvious, and is beyond the scope of this essay.) In order to appreciate the gravity of the situation, you should know about a couple of informal practices that are used in the state appellate courts. Neither is widely publicized, but they are both there, like Want and Ignorance beneath the robes of the Ghost of Christmas Present, and you are subject to them as soon as you sign your name at the end of a petition for appeal.
In the Supreme Court of Virginia, they have a three-strikes rule. You won’t find it in the Rules of Court, or on the court’s web site. If you want to know about it, you have to ask. But the truth is that if a lawyer accumulates three dismissals for procedural defaults – missed deadlines are the best example – the court will notify the Virginia State Bar. This procedure is not the equivalent of a formal complaint, and the VSB may do no more than keep the information in your permanent file. But the court will take this step, and once the VSB has it, well, . . . let’s just say that the range of consequences is unpleasant to contemplate. Sanctions fade, but one’s bar record is forever.
The Court of Appeals of Virginia – remember Judge Humphreys’ panel? – has a similar practice, but it’s a one-strike rule. Yes, you read that right; the court refers each and every procedural dismissal to the VSB, to handle as the Bar sees fit. This is the best example of a no-tolerance policy you’ll find in the appellate context.
* * * * *
So the stakes are high, and the opportunities for training are few. What can be done about it? Unless the trial bar wants to leave the appellate courts to the appellate specialists (and there are a couple of big reasons why that won’t happen), there will have to be an expansion of the availability of appellate training opportunities within the Commonwealth. It isn’t a problem getting the faculty; there are many outstanding appellate lawyers across Virginia who are willing to give their time and talent, and I have never heard of an appellate judge who declined to offer insight to lawyers. The problem is at the other end of the supply-demand balance. Trial lawyers generally do not understand that appellate advocacy is a very different animal from what they’re accustomed to in trial courts, and do not see the need to get training in it. Or they may perceive that they only handle about one appeal every two or three years, so it’s not worth their time to attend a program devoted to such a small portion of their practice.
In the short run, one way to address (I won’t say solve) the problem is to better publicize the few CLE’s that are currently offered, and to encourage trial lawyers to attend. I have listed a few such programs above, and I ask you to send me news of any others across the Commonwealth, or elsewhere. I will publish (and try to keep current) a list of such programs, with contacts – hyperlinks where possible – for the providers. Second, you can contact Virginia CLE and ask it to make its appellate seminar an annual event. This is a very good program, and should be attended by anyone who plans to appear in an appellate court. If enough of us ask, they should listen. Finally, I have been asked to chair the Appellate Practice Committee of the Virginia State Bar’s Litigation Section. My first priority in that post will be to increase the availability of appellate training programs, in conjunction with the judges and justices on the three appellate courts that sit in the Commonwealth. I am confident we will get their cooperation. The question is whether we’ll get yours.