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 […]
Supreme Court of Virginia’s Vlaming Decision is a Legal Earthquake with Major Implications for Virginia Businesses, Organizations, and Government Entities
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 […]
Kill the Goose that Lays the Golden Eggs? Is There an Alternative Remedy to Dissolution in Oppression Cases?
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). 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 […]