UPDATE ON APPELLATE DEVELOPMENTS
(Posted August 8, 2024) The presses are quiet at Ninth and Franklin today, so let’s see what’s happening in the appellate world.
August writ panels
The Supreme Court of Virginia will convene its next set of writ panels in just under three weeks, on August 28. The court’s website still displays the May panel docket, so I can’t know now how many petitions are on his month’s gathering. I have, however, seen the schedule for one of the panels, and it bears 18 appeals.
My best guess – and this is just a guess – is that there’ll be two panels, for a total docket of somewhere near 35 cases. The court might pleasantly surprise me and assembly three panels, so we’d have over 50 petitions in the hopper.
I’ll repeat here the advice that I’ve offered numerous times before: If you’re learning about appeals, go to the courthouse in downtown Richmond – there won’t be any road shows this year; alas – that morning and watch. Arguments are open to the public, and you can see six or seven of them in a single hour. You’ll get a solid feel for how the panels operate, and you’ll see examples, good and bad, of how to argue to them.
Virginia CLE appellate seminar
I was in Glen Allen yesterday for Virginia CLE’s full-day program on the appellate process and appellate advocacy. Long ago, this was a biennial or triennial offering, but it fell into desuetude after the 2012 edition. The good folks on Whitewood Road (that’s the spot in Charlottesville where Virginia CLE’s mothership resides) decided to reincarnate it this year.
Judging from attendance yesterday, I suspect that the event may return to the regular rotation. The program nearly filled the meeting room and was broadcast to almost twice as many online attendees. Yesterday’s customers got solid advice from several elite appellate advocates, from clerks in all three appellate courts, and from four appellate jurists who were appellate lawyers themselves before taking the bench.
I’m not aware of any more appellate CLE presentations before the October 31 reporting deadline. If you’re sponsoring one and would like a little publicity, let me know and I’ll post something here.
New appellate blogger
Rachel Yates in Richmond has begun posting appellate commentary on a website entitled Beyond the Verdict. Rachel is an alumna of the Office of the Attorney General of Virginia. She handled appeals there and later for the Virginia ABC Board, so she knows her way around a standard of appellate review. I’ve met her and she’s a delight. Her most recent post is a back-and-forth interview with a modest appellate lawyer; handsome, too.
I’ve frequently encouraged appellate lawyers to publish. Juli Porto, John Koehler, Jay O’Keeffe, and John O’Herron already do so. What’s holding you back?
That elusive 100% clearance rate
Literally as I was typing that last section, I received word that the Supreme Court of Virginia has just handed down an unpublished order in Crumpler v. Stark, the appeal involving former property owners at Smith Mountain Lake. The court mostly affirms the CAV’s ruling in favor of those former owners, though it remands one aspect of the judgment.
This may only be an unpub, but it’s major news here at VANA, because this was the last remaining undecided appeal among those argued to the full court up to now. The Supreme Court has cleared its entire docket of argued cases, and nothing remains undecided (except perhaps the occasional interlocutory appeal or OJ proceeding, as those don’t appear on session dockets).
As I’ve noted here recently, this development is exceedingly rare. In the 19½ years that I’ve been covering the court here, it’s happened only once before, and that was a black swan event. On February 12, 2016, the justices cleared their entire argued docket because the General Assembly was unable at the time to agree on whether to elect Justice Roush, an interim gubernatorial appointee. To avoid a situation where argued cases remained pending after her commission expired, the court handed down 14 decisions in a single day.
The cause of today’s reoccurrence of this rare phenomenon is different: docket malnutrition. The Robes have granted so few writs that its merits dockets are tiny now – just six appeals in the April session and two in June. The court simply ran out of cases to decide.
On the future of VANA
Finally, I’ll give you an update on my plans for this site. I announced here back in January that I intended to hang up my legal pad in February 2025 after 42 years of practice and 20 years of publishing analysis. I planned to continue publishing until then, but not thereafter. (This site is free for you to read, but it isn’t free for me to publish. The prospect of living on a fixed income has a way of focusing a guy’s thinking in matters like this.)
Fair warning: There’s a substantial probability that my retirement may come a few months early. If so, I intend to close up shop here at VANA whenever that day arrives. I’ll try to give you at least some advance warning. If there are essays that you particularly liked, you may want to print them out now, or else bookmark the Internet Archive’s Wayback Machine.
