Appellate

Republished with permission of the Virginia State Bar. Relatively few civil cases are tried to verdict these days, so jury instructions may almost be an afterthought in the minds of many litigators. Of the cases that are tried, many are repetitive type cases in which an experienced litigator likely knows the instructions by heart, and can recite them – so jury instruction issues are almost incidental. But for cases that veer from that track, and for newer lawyers, jury instructions should be a very significant factor throughout the entire case from start to finish. Knowing your ultimate desired instructions is […]

I admit it. I am an appellate argument junkie. This has been a long-standing problem, but one that took on new dimensions when the Supreme Court of Virginia began releasing audio recordings of oral arguments about ten years ago. I then began listening to the Court’s arguments in earnest. Now, of course, the availability of audio recordings of appellate arguments is ubiquitous. This means that anyone can hear an appellate argument without their leaving the house, car, or office. I don’t know about anyone else, but I’m hooked. So is this a good habit or a bad one? Because I […]

On January 10, 2024, Virginia returned to fully divided government, with the General Assembly entirely controlled by one party and the Executive Mansion controlled by the other party.  While hope springs eternal for bipartisanship and compromise, this era of political brinksmanship will make the Virginia Budget the legislative tool through which the General Assembly will attempt to force its will.  How far that can go implicates thorny and unanswered constitutional questions—questions that the Supreme Court of Virginia may soon be called upon to answer. A Brief Virginia Government Lesson First, a recap on the basics.  The legislative process requires both […]

Published with the permission of the Virginia State Bar. Originally published in the Virginia Lawyer, Vol. 67/No. 3. The Supreme Court of Virginia has approved a pilot program for limited appellate mediation in the Court of Appeals of Virginia and Supreme Court of Virginia beginning January 1, 2019. The Court’s announcement recognizes the importance of expanding the availability of alternative dispute resolution to all levels of Virginia’s court system. The pilot program will run for two years. It is designed to support mediation in Virginia’s appellate courts so litigants may make informed decisions about resolution of their disputes and fashion […]

I. Introduction and Executive Summary On December 14, 2023, a legal earthquake hit Virginia when the Supreme Court of Virginia issued its decision in Vlaming v. West Point School Board, 895 S.E.2d 705 (Va. 2023).  But, to the extent there is a “legal” Richter scale, that earthquake has yet to register.  Headlines covering the decision noted the result dealing with a hot-button social issue: a teacher fired for refusing to use a student’s preferred pronouns on religious grounds could continue to pursue his case against the school board for alleged violations of constitutionally protected religious rights.  But that context has […]

Despite a set schedule, appellate briefing is not necessarily closed prior to decision.  Even after oral argument, a party may submit “supplemental authorities” by letter to the clerk.  This letter is not limited to just citing the new authority—argument is ok too. The rules for submitting supplemental authority are similar across the Court of Appeals of Virginia, the Supreme Court of Virginia, and the Fourth Circuit. The “authority” cited must be “pertinent and significant.”  Temporally, it should “come to a party’s attention” (i) after the party’s petition/brief was filed or (ii) after oral argument, but before decision; the letter must […]

My law professor once said that administrative law is “electrical engineering for lawyers.”  I did not fully appreciate what this meant, other than that it sounded complicated.  That was until I had the opportunity to spend years watching the regulatory and appellate process up-close.   I had the honor and privilege of coordinating review of Virginia’s regulatory process on behalf of the Virginia Governor.  As Deputy Counsel and then Counsel to Governor Terry McAuliffe, I reviewed more regulations than, I suspect, most any other lawyer in the state. More importantly, I saw the process work and not work.  And I watched […]

A New Path for Appellate Lawyers Last year, the jurisdiction of the Court of Appeals of Virginia was expanded to offer aggrieved litigants in civil cases an automatic right of appeal. Va. Code § 17.1-405(A)(3).[1] That change offers opportunities for the Court to provide guidance to circuit courts and litigants in many areas of law that are unsettled, under-developed, or otherwise unclear. This is particularly true of corporate law under the Virginia Stock Corporation Act, an area in which decisions by the Supreme Court of Virginia have been few and far between over the past few decades, despite significant statutory […]