VIRGINIA’S APPELLATE BENCH SWELLS

(Posted August 12, 2021) This has been a signal week in the appellate world here in the Commonwealth. On Tuesday, the General Assembly selected eight new judges for the newly expanded Court of Appeals of Virginia. As promised, the Democratic majority greatly expanded the court’s diversity in a number of respects, including race, sex, geography, and practice area. The court is getting its first-ever jurist who comes from a domestic-relations practice, a prominent legal-aid director, and multiple members who handled criminal defense. Who would have imagined that, even three years ago?

The court gets one more valuable asset: Three appellate lawyers will receive robes. Frank Friedman of Roanoke, Lisa Lorish of Charlottesville, and Stuart Raphael of Arlington are all seasoned appellate advocates who will bring that perspective to the bench. Among Virginia’s current appellate jurists, only Justice Steve McCullough of the Supreme Court and Chief Judge Marla Decker of the Court of Appeals can claim that background.

Why does this matter? For one thing, those three will have a shorter learning curve in adapting to the job. For an easy example, they’re already attuned to the importance of the standard of appellate review, which in my opinion is case-dispositive in about 85% of all appeals. They’re also accustomed to reviewing the trial record the way appellate justices and judges do, focusing on exactly what’s in the record instead of what a trial lawyer recalls.

I also believe that a judge who’s spent plenty of time on the other side of the lectern may be a tad more understanding of what it means to practice appellate advocacy, of what life is like in our trenches. They may see things from the practitioner’s perspective, and that can’t hurt.

There’s a down side to this: These three appointments in particular carve a deep gouge out of the pinnacle of Virginia’s appellate bar. All three of these new judges were unmistakably among the top tier of their trade. When added to last December’s retirement of my pal George Somerville and the recent nomination of Solicitor General Toby Heytens to a seat on the Fourth Circuit, the cadre of elite appellate advocates is noticeably smaller now. There’s even more room at the top now, folks; as I preached here recently, there’s never been a better time to be an appellate lawyer in Virginia.

I understand that the new judges will take office in the September-to November time frame, so they’ll have time to get acclimated before business starts booming on January 1. I wish them all well, and I look forward to following this wholly remade court.