UPDATE ON APPELLATE EVENTS

(Posted March 4, 2022) Let’s catch up on some happenings in the appellate field, starting, as I must, with …

I was wrong

These, I have come to appreciate, are the three little words that every wife yearns to hear her husband utter. I make sure to speak them from time to time within earshot of The Boss. Today, I offer them to you. Last week, I noted the retirement of Bill Hurd, an outstanding appellate advocate and a treasured friend. That was based on information I received from someone at his firm, Troutman Pepper.

I was wrong! He’s merely shifted from one tall-building firm to another, landing at Eckert Seamans, a highly respectable firm in Richmond. I’m delighted to be mistaken and look forward to seeing him in an appellate courtroom again soon.

Inside an actual courtroom

As I noted yesterday, I appeared in the Supreme Court on Wednesday to argue an appeal. This was my first in-person oral argument since October 2019. Here are a few things that occurred to me.

There were nine seats set for the justices. No, the court hasn’t expanded while you slept; there are still seven slots and six active justices after Justice Lemons’s retirement last month. I learned that the court has set up the extra spots for when senior justices participate. In the past, they’ve performed a sort of musical-justices pas de deux whenever a senior justice will sit in on a given argument. Now, instead of swapping seats, the senior justice will just have a seat on one of the wings.

Those lawyers who argued on Wednesday got a hybrid experience: Six justices sat at the court’s long, elegant bench, and Senior Justice Koontz appeared remotely on a video screen. In the three appeals argued while I was there, including mine, he never asked a single question.

For those of you who have grown accustomed to a particular lineup at the bench, things have changed, and this week marks the first and last actual seating of the court under the new alignment. You probably know that the chief justice occupies the center chair, and the rest of the justices are arrayed around him by seniority – the second-most senior to the chief’s immediate right, the third-most senior to the chief’s left, fourth-most to the right of the second-most, and so on. The more senior a justice is, the closer he or she is to the center chair.

For the active justices, this week’s lineup, from the perspective of the advocate, was Chafin-Kelsey-Mims-Goodwyn-Powell-McCullough.

That will change the next time the court convenes, because Justice Mims, now in the #2 slot, will take senior-justice status at the end of this month. That will produce the following array, once the General Assembly fills the court with two new justices:

New justice-McCullough-Powell-Goodwyn-Kelsey-Chafin-New justice

This reflects significant turnover in the court in the past few years, when five members of the court have stepped down.

Interruptions are still down. My appellate pals and I noticed an unmistakable trend during the many months of remote oral argument: The court asked far fewer questions of advocates. I’m not sure why, and I hesitate to speculate. This week I got the sense that there were still fewer interruptions than was typical before the pandemic, though I saw more than in the days of audio-visual or telephonic argument.

Finally, it felt great to be in the courtroom again. Remote argument just isn’t the same dynamic, and I found that I enjoyed it far less. I made note of that when I closed my argument with these lines: “Thank you for hearing me today. Thank you also for reopening this courtroom; I’ve missed this.” I got a few smiles in return, telling me that the justices were glad to be back, too.

An oft-repeated question

“How are things going in the Court of Appeals now that they’re hearing everything?” I’ve fielded this question three or four times now, so I may as well post this: No significant change yet from the judges’ perspective. That’s because the new-generation appeals haven’t matured to the point where they’re ready to be argued. The CAV now has jurisdiction over all appeals where the appellant noted an appeal on or after January 1. Because of the time it takes the circuit-court clerk to assemble and transmit the record, and the ensuing 40-day deadline for the first brief, the Robes assuredly haven’t received any briefs yet under the new protocol. That’ll take perhaps another month or two.

I’ve mentioned this before, but it bears repeating: I don’t expect an avalanche of business at Eighth and Franklin. If you were to take the roughly 500 appeals in civil cases that the SCV Clerk received in pre-pandemic years, add that to the CAV’s prior docket, and divide by the new number of judges, I doubt that the caseload per judge will change significantly. The experience of this year, and especially 2023 when we get a full cycle of by-right appeals, might tell a different story. We’ll see.