I’m appealing a civil case to the Supreme Court of Virginia. The judgment order was entered on November 30. I know that I get three months, not 90 days, but what’s three months after November 30? February only has 28 days. Should I assume that the petition is due March 2?

A classic conundrum. You’re right; it’s tough to calculate what date is exactly three months after November 30. This situation comes up regularly (annually, even), and the court has always interpreted the rule to mean that your brief is due on February 28 (or the 29th on leap years). In years such as 2010, when the 28th falls on a weekend, you do get the extra day, of course. By the way, in case you’re feeling cheated out of the extra two days, count ‘em up: From November 30 to February 28 is exactly 90 days. Don’t feel so bad.

I have a writ argument coming up soon, and my opponent has assigned cross-error. Will he get to argue his assignments to the writ panel?

No; only the appellant gets to argue to a writ panel, even if the appellee has assigned cross-error. The only way for him to get a writ argument is for him to file his own appeal of the judgment.

I’m in the Court of Appeals of Virginia in a criminal case. I listed three questions presented, and the court granted me a writ, but it’s limited to just one of my questions. Does that mean they won't consider arguments related to the other two? And if I want to appeal to the Supreme Court of Virginia, do I have to appeal the two refused questions within 30 days of the denial, or do I wait until the court rules on the one question they took?

If the CAV only accepted one of your three QP’s, then it won’t do you any good to argue the other two; the merits panel won’t listen to you. One thing you should look into immediately is whether the issues in your successful question depend in part on the issues in the other ones. If adjudication of Issue #1 depends in part on Issue #2, you should file a petition for rehearing in which you point this out. As for an appeal on to the Supreme Court, you can appeal all three of your QP’s to the Supreme Court at the conclusion of the case in the CAV; indeed, you can't appeal before then. See the published order in Headley v. Commonwealth, 231 Va. xix (1986).

I’m getting ready to order the transcript of my trial so I can file it. What risk do I run if I decide to omit parts of it?

The ultimate risk is that if you omit something that’s essential for the court to adjudicate the appeal, you’ll find your appeal dismissed. But if you’re confident that a given part of the transcript wouldn’t be material to your case, you can safely omit that. For example, in a jury trial if there are no issues relating to jury selection (say, there were no Batson challenges or motions to strike a venireman for cause), you can tell the reporter that you don’t need a transcript of jury selection.

I represent an appellant in the Supreme Court. I just got my opponent’s brief in opposition, and he has assigned cross-error. I know I can respond to his assignments without waiving my right to oral argument, and I want to do that in a reply brief. The problem is time: Rule 5:19 only gives me seven days from the date he files his brief, and I know I don’t get an extra thee days because he mailed it. The rascal filed his brief and mailed my copy on a Friday, and Monday was a holiday, so it looks like I only have three days to file my reply brief. I don’t think that’s fair.

I agree with you; you only have three days to put together your reply brief. And I also agree with you that this situation isn’t fair, particularly since you had no idea until Tuesday what issues the “rascal” was going to appeal himself. Expecting anyone to read and analyze an appellate brief, and then research, draft, edit, and file a cogent reply in 72 hours is a tall order. Here’s what I suggest: Contact your opponent and ask him to consent to a short extension of time for your reply brief. (Now aren’t you sorry you called him a rascal? It’s hard to make nice to someone after you just got through dissing him.) If he says yes, you should file a motion under Rule 5:4(a) for that extension, and recite in it that your opponent has given his consent. Be sure to file the motion before the original deadline, and in your cover letter to the Clerk, mention that you will need to get this motion to one of the justices quickly because the deadline draweth nigh.

What if he says no?

File the motion anyway, and tell the truth: You asked your opponent for his consent, and he flatly turned you down. My experience is that if you (1) have at least a decent reason, (2) file the motion as soon as possible after you perceive the need (before the original deadline, of course), (3) don’t ask for more than a few days, and (4) don’t routinely ask for extra time, the court will almost always grant the motion. In addition, the justices on the motion panel will see that your opponent was an obstructionist on what should be a routine motion, and that can’t hurt you, now, can it?

The Court of Appeals has granted me a writ in my criminal appeal. I’m working on the brief of appellant now, and I think I’d like to rephrase the questions presented. Is that okay?

No, it’s not okay. Once the court takes the case, the issue has been framed, and you would need leave of court to reframe it. The same thing goes for assignments of error in the Supreme Court. Those are like the allegations in a complaint in the trial court; they define and limit what the court will adjudicate. Note that in the Supreme Court, you may rephrase the questions presented, which serve as adjuncts to the assignments. As for getting leave, I’d suggest that you use great caution in deciding whether to make that motion. Leave will probably be granted to correct a typographical error, for example; but it would be much harder to get leave to substitute one appellee for another one where you initially listed the wrong one.

Rules 5:32(c)(1) and 5A:25(c)(1) require me to include in the appendix, “the basic initial pleading (as finally amended).” I understand that in a civil case, but I have a felony appeal. Do they mean the arrest warrant?

I don’t know of a specific case interpreting this part of the rules, but in a criminal case I regard the indictment as “the basic initial pleading.”

How long does it take the appellate courts to rule on cases after oral argument?

That varies widely by court. Let’s start with the Fourth Circuit, which is the easiest to answer, because the answer is, “No one knows.” You might get a ruling six weeks after oral argument, or a year later. (Year-long delays are rare, but it happens sometimes.)

In the Court of Appeals, you should see a ruling within about 60 days after the date you argue the case. In some cases it might take a little longer; but you won’t see a year-long delay except in a truly extraordinary situation.

In the Supreme Court, the standard answer is that published opinions are handed down on the final day (which is usually a Friday) of the next session. Sessions are scheduled six times per year, and those weeks are shown on the calendar page of the court’s web site. The most frequent separation between sessions is seven weeks; it’s a little more before the January session, and a lot more before the September session. If the court decides the appeal by unpublished order, that could come down on any Friday after the argument. In fewer than 5% of the cases argued, the decision will be held over to the next session; in that event, it could be 14 weeks or more to get your decision. (The worst feeling of all is to argue your case in April, and then get passed over in June, meaning you have to wait roughly five months to get your ruling.)

What’s the one thing I can do to most improve my winning percentage in appeals?

Okay; I can tell you, but I’ll warn you: You’re not going to like the answer. It’s case selection. Appellants pursue lots of meritless appeals, simply because they’re disappointed. Even the best appellate lawyers can’t turn a dead-solid loser of an appeal into a miraculous victory. Of course, since they’re the best appellate lawyers, they know not even to try. This approach has a subtle benefit beyond merely removing a lot of L’s from your column – it lets the judges and justices know that when your name appears on a petition for appeal, it’s unlikely to be one of those dead-solid losers.

That’s fine advice for civil appeals. But if my client wants to appeal a felony conviction and I’m court-appointed, I don’t have a choice, do I?

True; in a criminal case you have to pursue an appeal if the client directs you to do so, although you can always file an Anders brief if it’s utterly hopeless. Beyond that, you can use my approach, which is clean living and thinking only pure thoughts.

You're no fun.

I used to hear that a lot, back when I was single and dating.


SMFAQ’s (SOME MORE FREQUENTLY ASKED QUESTIONS)

[Posted November 23, 2007] Early this year, I posted an essay in which I listed some appellate questions I frequently get from trial lawyers, or those who handle appeals only occasionally. Here’s a new set of questions and answers relating to what these lawyers want to know about appellate practice and procedure that isn’t always in the rule book.

General

When you recommend that I read the rules, are you referring to rules surrounding the issues of the case, or the appellate rules of procedure?

The rules relating to appeals. If you're going to the Supreme Court, it's generally Part 5 of the Rules of Court; it’s Part 5A for the Court of Appeals. You should also check the statutes that relate to civil appeals, starting at 8.01-669, or to criminal appeals, starting at 19.2-317. There are also some important appellate statutes within Title 17.1 (Courts of Record); Chapter 3 relates to the Supreme Court, and Chapter 4 deals with the Court of Appeals.

I went to work on a criminal appeal from the Court of Appeals to the Supreme Court, and found that yesterday was the last day to file it. Do I file a motion for a delayed appeal or do I draft it and have the client file it pro se?

You should go ahead and file it yourself. A relatively new Code section, 19.2-321.2, gives you six months to file a petition for a delayed criminal appeal. The statute is fairly detailed about what’s required, so you just need to track it carefully. There is a similar statute that enables you to seek a delayed appeal from the Court of Appeals; that’s 19.2-321.1. The reason for these statutes is that a prisoner would be entitled to a writ of habeas corpus for ineffective assistance of counsel anyway, so this saves the courts the process (and the delay) of processing that petition.

Briefwriting

When I file a petition for appeal, how do I get the record number for the appeal to put on the cover page? I assume the record number is not the same as the number of the case at Circuit Court, level since the Supreme Court would want to use its own numbering system.

Your assumption is correct; the Supreme Court uses a separate case numbering system. On the petition for appeal, you simply leave a blank where the case number will go, and the Clerk fills that in. You can then use that number on all subsequent pleadings and correspondence.

In preparing the petition of appeal, is it a good idea to review the case record at the trial court to make sure that everything that you are referring to in the petition of appeal is actually in the case record?

Absolutely. Normally the trial courts are very good about including everything that has been tendered, but you want to be sure. And once the record goes up to Richmond, you’ll get a list from the trial court clerk, showing everything that has been transmitted (which is not always everything in the file). You need to look that over very carefully, not just give it the cursory glance that’s typical of most lawyers. I handled one appeal recently in which the case-dispositive document was a simple transmittal letter from one counsel to the trial court clerk, with copies to opposing counsel. The trial court clerk hadn’t seen fit to include that in the package that went to the appellate court (mostly pleadings, transcripts, orders, and briefs), so we had to ensure that this simple but vital letter was added.

Do attorneys normally use appellate services to print the petition for appeal, and is this a taxable cost if the appeal is granted and you prevail on the merits?

Most lawyers don’t; I always do, because it looks more professional to have a petition printed and bound instead of just stapled in the upper left-hand corner (which is all the rules require). As for taxability, the answer is frankly a little bizarre, but here goes: The petition for appeal is technically not a "brief" (it's a petition), so the costs aren't taxable. But the appellee's brief in opposition IS a brief, so that's taxable. In reality, it doesn't matter, because either party will quickly bump up against the $200 limit for recovery of printing costs set out in Code §17.1-605 at the merits stage alone. Accordingly, the cost for printing at the petition stage is effectively not recoverable for either side.

Oral argument

I’ve received a notice to attend oral argument in three weeks. I'm concerned that my going up there, having never even seen one of these appeals, will do more harm than good. Can I waive oral argument at this late date, and should I?

If you're at the petition stage, and you're the appellant, you can waive oral argument simply by sending a letter to the Clerk, saying so. (If you're the appellee at the petition stage, you don't get oral argument anyway.) If a writ has been granted and the court is hearing the case on the merits, then you should not even try to waive oral argument; just go and do your best. As for whether you should waive oral argument on a petition, my advice is this: If you’re certain that you will be unprepared, then waive it. Otherwise, go and do your best.

What if a Justice asks me a question that completely stumps me, in that I have literally no idea even what he or she is saying to me? What if she uses some Latin phrase with which I am not familiar (that language is rarely used in General District Court)? Do I come clean or do I stumble around?

I seriously doubt that anyone will ask you a question with a Latin term that's more obscure than, say, "res judicata." These justices aren't like that; you will find them polite, pleasant, and easy to get along with, although they emphatically will ask tough questions if the situation calls for that. Your job is to think of as many of those tough questions as you can, well before you go there, and craft the best possible answer for each of them. That way, you sharply reduce your chances of having to wing it, which is always a bad idea. If one of the justices asks you a question and you just don't know the answer, you should candidly acknowledge as much, and ask for leave to submit the answer in writing within something on the order of 72 hours. If the justice says it’s not necessary for you to submit a written answer, accept that decision and simply move on. If you get leave to send in an answer, it should come in a very short letter, without any argument or comment upon the information thus conveyed.

What if I assigned an error, and now reviewing the argument of opposing counsel and the transcript, I conclude that I did not properly preserve the issue, but the justices ask me a question on that particular assignment of error? Should I agree that it was not properly preserved and move on, or try to maintain that it was preserved, when in fact, I most likely did not?

Here is an opportunity for you to obtain something enormously valuable, that you can't buy in stores: Personal credibility with the court. You need to make an honest assessment of whether you adequately preserved the issue. If you honestly believe that it wasn't preserved, then you can do yourself a world of good by acknowledging as much, preferably in a letter to the court well before the argument date. (That way the court will be spared from spending time researching and considering the issue in advance.) If you think it was preserved, at least passably, then go ahead and argue it, but be prepared for questions on that preservation issue.

But isn’t that abandoning my current client, in the hopes of my becoming a better advocate in future cases? What about my duty to represent THIS client zealously?

If you’re convinced that you really didn’t preserve the issue in the trial court, then you won’t be giving up anything of value by conceding the point. And unless that’s the only issue you’re appealing, then the credibility benefit to you kicks in immediately, so you might profit by it in the same case on another issue. Keep in mind that no justice will cast his or her vote based solely on which lawyer was straight with the court, but credibility is one of those inherently valuable things that cannot hurt you and can help you, in this case or in the future.

Am I permitted to argue other case law and argument that was not in my brief?

With regard to new caselaw, the answer is yes, but if you do, send a copy of the case (or at least the cite) to your opponent in advance. You should also send a letter to the Clerk that says that you intend to rely upon the case of Smith v. Jones, 123 Va. 456 (1937) during oral argument on assignment of error #2; copy your opponent on that letter. The sooner you do this, the better; a letter that arrives in the Clerk’s Office the day before oral argument is likely to do you little good, as no one (either your opponent or the court) will have had time to look into the new case.

With regard to new arguments that aren’t in your brief (and I’m not talking about the logical extension of your previous argument, which is necessary to respond to your opponent’s argument), forget it. Doing that will get you the Death Stare at best, and likely a stern lecture on raising issues that aren’t in your brief.

Which cities do the writ panels actually meet? Do panels usually meet in an unused courtroom in the local courthouse?

The Supreme Court’s writ panels almost always meet in the Supreme Court building at Ninth and Franklin Streets in Richmond. The exception is that the court "goes on the road" during some summer panel meetings, to varying locations around the Commonwealth. In those instances, the court tries to schedule "local" cases for argument, to cut down on attorneys’ travel time and to enable litigation to proceed relatively close to where the trial took place. On these instances, the court does indeed use courtrooms in local courthouses.

The Court of Appeals meets in four different locations – Chesapeake, Salem, Alexandria, and the "home court" in Richmond, at Eighth and Franklin. It is possible that the court may convene occasional writ panels (for criminal and traffic cases only) in other locations.

By the way, the Fourth Circuit also goes on the road from time to time. It may convene in courthouses or even in law schools scattered about the circuit. But the great majority of those arguments are in the Richmond headquarters of the court, at Tenth and Bank Streets (about a block and a half away from the Supreme Court of Virginia).

How often do writ panels meet?

There’s a schedule posted on the courts’ web sites:

Supreme Court of Virginia

Court of Appeals of Virginia

Fourth Circuit

How far in advance will I be notified of the meeting of the writ panels to do oral argument?

You’ll usually get about three to four weeks notice before your argument date.

What if I have a scheduling conflict? Will the clerk be accommodating and re-schedule oral arguments?

You’ll usually find the court to be fairly accommodating if you have a problematic schedule conflict. You won’t get a new date for a bad hair day or a hangnail, but if you have a real problem – for example, a circuit court case that’s been continued twice, and that has four lawyers, each with his own set of scheduling problems – then you can probably get your oral argument moved. And the court has a heart, and will usually accommodate previously planned vacations (just don’t try to schedule the vacation after you receive the notice). That being said, you should do everything you can to avoid making that call. And in a pinch, virtually every trial court will respect a letter from the appellate court as the basis to reschedule a lower court proceeding. Now, whether your spouse will be similarly understanding, you're in a better position to say than I am.

Do you always go to the writ panel to do oral arguments or do you ever phone in your oral argument?

I always attend the oral arguments in person, as I find it much more productive to do so. If a judge or justice asks me a question and I give an answer, I can often see from the reaction whether my response is satisfactory, or if the questioner is clearly still troubled by the issue. You don’t get that kind of nonverbal feedback with audio only. But in case you’re worried, you should know that phoning in an oral argument isn’t considered by the court to be an implied concession that your case has little merit, especially if your office is a great distance away from the site of the panel. By the way, I always try to attend my opponents’ writ arguments, too, even though I am not permitted to speak. I always want to know what interests the court, what questions are asked, and what legal issues the court may come up with sua sponte.

Do I check in with the clerk prior to going to the location where the writ panel is meeting?

You can call a few days in advance if you like, but you’re not required to do so. You can do so in case you need directions, or to confirm any technical details of your arrival. You will check in with law clerks once you arrive at the location of the argument; they will direct you to your courtroom.

Bonds

The panel has awarded me an appeal. Now I have to get a bond filed at circuit court to cover costs. I called the traditional bonding companies and they only post criminal bonds. Which firms specialize in appellate bond work?

The bond for costs alone can be posted without a surety company. It’s usually for $500, so you just submit the form bond in the rules of court, along with a check for $500, to the clerk of the trial court, and that takes care of it.

My client wants to file a bond to suspend imposition of judgment and cost. How much collateral will my client have to put up with the surety who issues the bond? Is it ten percent of the face value of the bond or more?

A supersedeas bond is another matter entirely; if you want to suspend the judgment pending appeal, you need to contact an insurance company that writes bonds like that. I suggest an independent agent (your car insurance company probably won’t write these), or one that specializes in business insurance. It’s best to arrange a relationship with such a company in advance, so they know what you’ll need and can simply prepare the bond to your direction, quickly and effectively. Your client will almost certainly have to put up sufficient security to cover the amount of the bond. If the only quote you get from the first insurer you contact is 10% (which is typical of criminal bail bondsmen), you need to keep looking.

The appendix

I filed my bond and filed my designation of materials to go into the joint appendix. I'm now ready to prepare my joint appendix. I look to Rule 5:32(c) for the content of my joint appendix. It says in subparagraph (4) that I must include a title for each paper contained in the appendix and its filing date. Does this mean I must prepare a separate page for each document that gives its title (e.g., exhibit 2) and the date it was filed (e.g., admitted into evidence)?

No, you don’t need a separate page for each document. This provision essentially (and probably redundantly) requires a table of contents for the appendix, and specifies the format.

If I don’t make a document a part of the appendix, can the court still look at it, if it finds it material to the argument and discussion?

The answer to this lies in Rule 5:32(g): "It will be assumed that the appendix contains everything germane to the questions presented. This Court may, however, consider other parts of the record." There’s a parallel provision for the Court of Appeals in Rule 5A:25(h). So do your best to include everything you'll need, but don't lose sleep if something arises that's addressed outside the appendix; you can ask the court to delve into the record if you have to.

In marking the appendix in relation to the trial transcript, do we give specific page and line number, or just pages such and such through such and such?

A citation to the page numbers alone complies with the rules. On occasion, though, you may want to refer to the line numbers, to key the court’s attention to a particular passage. If you do that, you can use this citation form: "Tr. 47, l. 4-9."

Do we list out all of the exhibits from trial that we want as part of the appendix, or does that automatically become part of this appendix?

You need to list them. Rules 5:32(d) and 5A:25(d).

Printing briefs and the appendix

Suppose I am representing an indigent client and want to save money by not using an appellate service to prepare the petition. Rule 5:6(b) requires me to bind the brief on the left-hand side. I assume that just using a stapler will not do. Is there cheap service that will bind the brief for me in an acceptable manner?

Stapling in the upper left-hand corner definitely will not do at the merits stage (though it's acceptable at the petition stage). It is, however, possible to staple your merits-stage briefs down the left side, then cover those staples with a heavy-duty tape. It may not look like much, but it'll be rules-compliant, and will further add to the mythic status of duct tape as a solution for any problem, large or small. As for copying costs, you can often save some money by going to a commercial copying service, such as Kinko’s or BizPort, but you won't get appellate help beyond that; these companies do not have the practice expertise of the appellate specialist companies. I really regard doing all this as a false economy. Some larger firms (including the Attorney General of the Commonwealth) bind their briefs in-house, so it can be done, but you need to be very careful about the technical rules. It really is far preferable to go ahead and use the pros.

In my joint appendix, if I make an omission in the text or transcript, I have to indicate it with an asterisk. Is this referring to the table of contents, or is this requiring me to insert a page with asterisks whenever I skip some pages of a transcript?

The asterisks go in the body of the appendix, at the top of the first page after the omission. So for example, if you’re including pages 1-27 and 35-42 of the transcript, you’ll put asterisks at the top of page 35. You don’t need to put asterisks in the table of contents.

The joint appendix is supposed to omit immaterial matters. These include captions, subscriptions, etc. Does this mean I'm suppose to redact captions where they are found, such as the complaint?

Not if they’re an integral part of the pleading. Some lawyers may add what amounts to a title page to a trial court pleading – a page that includes nothing except the name of the case, the title of the pleading, and maybe counsel’s name and address. The next page repeats the caption and title ("Motion for Summary Judgment") and starts the argument. If your document includes "fluff" pages like this, you can omit them. The same goes for certificates that don’t address any contested aspect of the case.

Are you required to sign the certificate required by Rule 5:17(e) at the end of the petition or can a representative of the appellate service who is printing the petition, filing and serving the copies sign it?

Surprisingly, the rules do not require that this certificate (which deals with identity of parties, service of copies, and so forth) be signed by anyone. That being said, the safest thing is for the attorney to sign. Note that your signature can be electronically reproduced and inserted in the brief by your printer; you give the company a clear exemplar, which they scan and "paste" at the appropriate place in your briefs. One last point – the Rules contain one tricky provision related to signatures. Rule 1:5 provides that "Signatures to briefs and petitions for rehearing may be printed or typed and need not be in handwriting." That enumeration (briefs and rehearing petitions) does not include pleadings, such as a petition for appeal, and thus the rule might technically require a "live" signature on petition for appeal. But in my experience, this is a non-issue, in trial courts and in appellate courts. If you permit your printing company to insert a scanned copy of your signature onto your briefs and petitions, you'll be fine.


FAQ – WHAT TRIAL LAWYERS WANT TO KNOW ABOUT APPEALS

[Posted February 6, 2007] Here’s a sampling of the most common questions I get from trial lawyers about appeals, starting with the most common one:

What are my chances of getting a reversal on appeal? This ultimately depends on several factors, most notably including whether the case is civil or criminal; whether you have some special benefit from the standard of review (such as where the trial court has rejected one of your jury instructions, or has set aside a verdict); whether the record has been well preserved; and the quality of appellate counsel on both sides. But from a purely statistical standpoint, here are the odds:

CIVIL CASES

Chances of getting a writ in the Supreme Court of Virginia: About 21%

After a writ is granted, chances of reversal, at least in part: About 60-65%

CRIMINAL CASES

Chances of getting a writ in the Court of Appeals: About 10%

Chances of getting a writ in the Supreme Court (after CAV review): About 2%

The Court of Appeals doesn’t segregate its merits-level dispositions into the civil and criminal contexts, so the best I can do for now is give you the overall reversal rate in that court of cases decided on the merits. That rate is about 9%.

How do I know whether I should appeal to the Supreme Court or to the CAV? This one’s statutory. Code §§17.1-405 and –406 set forth the only cases over which the CAV has appellate jurisdiction. Those are administrative law, Workers’ Compensation, domestic relations, criminal, and traffic. Everything else goes to the Supreme Court.

Uh-oh. Based on that list, I just filed my petition for appeal in the wrong appellate court. Do I call my malpractice carrier? H old the phone. By statute (§8.01-677.1), paperwork that is "otherwise properly and timely filed" in the wrong appellate court will simply be sent on to the correct one. Now, if you mistakenly file your petition for appeal in the trial court, I don’t know of any provision of law that protects you; in that case, keep that phone number handy.

I’ve got 90 days to file my petition for appeal, right? No, it’s three months, which is not always the same thing. They have a saying in the courthouse at Ninth and Franklin: "Days is days, and months is months." Check your rulebook carefully.

I just found out that one of my exhibits is not in the trial court’s record. Will the Supreme Court order that it be inserted? No, but the trial court can. Matters relating to the contents of the record are handled in the trial court under Rules 5:10 and 5:11 (in the Supreme Court) and 5A:7 and 5A:8 (CAV). If you notice something’s missing, file a motion in the trial court to have it included.

I’ve heard that fewer assignments of error are better than more, as appellate jurists prefer that appellate issues be focused. Are there any exceptions to this rule? I can think of two. (A) If you represent a criminal defendant, you have an obligation to raise as many issues as you believe will support reversal (among other things, to protect the client’s habeas rights in the event the appeal is unsuccessful). (B) If you’re seeking a remand for a new trial, and the trial judge made an evidentiary or legal ruling you don’t want to have to live with the next time around, you must appeal that ruling, or it becomes the law of the case.

I’m getting ready for oral argument. I raised five issues, but I only want to argue two of those. I’ve heard that if I don’t argue some of my issues, I have waived them. Once upon a time, that was the case. But the General Assembly took care of that problem back in 1986, by enacting Code §8.01-679.1. Now, if you raise five issues in your brief but you want to focus exclusively on one or two in oral argument, you can do that. (But be prepared to discuss any of them; the court can and often does ask counsel to discuss a particular issue during oral argument.)

Does the identity of the trial judge affect my chances of getting a sympathetic ear in Richmond? This is among the most enduring of appellate urban legends – the thought that a particular judge is held in such disdain in the appellate courts, that he’s overwhelmingly likely to get reversed in any appeal. Or the converse: A given judge is so universally respected, the appellate court will affirm out of respect for her.

In response, I cannot claim that I have interviewed the respective judges and justices on this point (nor would I); nor do I claim to be a mind reader, able to tell you what they think on this point. With that caveat, I can say that I have seen absolutely no evidence to support such a theory. The appellate courts review the record, not the judge.

The trial judge left my motion unadjudicated. Am I stuck? How do I appeal a ruling that wasn’t made? This happens a lot, and such a non-ruling can, indeed, be appealed. The way you do so is to assign error to the trial court’s failure to rule on your motion. You need to have protected the record by pointing out to the trial judge that your motion is still on the table, and asking her to rule on it. She can’t evade appellate review by ignoring you.


FAQ – ABOUT THIS WEBSITE

[Posted January 15, 2005]

Will you be covering decisions from the U.S. Supreme Court? No, I'd need another life to do that. Opinions coming out of Washington are generally covered in the mainstream media, as well as on certain sites that focus on that court (for example, FindLaw and SCOTUSblog). I concentrate on the three appellate courts that convene in Virginia. On occasion, I may mention a U.S. Supreme Court decision of special interest to lawyers, such as the recent ruling in Commissioner v. Banks on the taxation of legal fees, but that will be the exception, not the rule.

When do you post reports on opinions? That depends on the court.

The Supreme Court of Virginia hands down rulings on a fixed schedule, always on the last day of a session week. There are six session weeks per year, so you'll always know when to expect those. On opinion day, I read and digest each opinion handed down that day, and report on the most significant decisions that afternoon. I'll usually post an essay discussing each of the opinions by the ensuing Sunday or Monday.

The Court of Appeals of Virginia issues its rulings once a week, on Tuesdays. I will peruse this list and may select significant published opinions (unpublished opinions have no precedential value, so I generally don't report on them) for a report or an essay, usually within 48 hours after the Tuesday announcement.

The Fourth Circuit issues opinions daily. I report on significant published opinions in the day or two after they are announced. In cases of particular importance, I may take an extra day and write an essay, generally between five and ten paragraphs, on the decision and its importance to, and likely effect on, the practice of law.

If I sign up for your mailing list, will you sell my e-address? No, my mailing list will never be sold (or given away, for that matter). When I send out a note to the list, I put everyone's name in the "BCC" box, so you won't know who else is on the list, and they won't know you're there, either.

What if there's something potentially useful that isn't on the site? Then you would be doing me a great favor by letting me know, so I can consider adding it to the site. The good thing about a site like this is that if I were to find that something isn't working, I could change it; if something is missing, I can always add it.