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Confessions of an Oral Argument Junkie: Lessons Learned from Listening to Recordings of Appellate Arguments

Monday, April 8th, 2024

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 am an appellate lawyer, I think I can claim this habit as a good one. Supreme Court of Virginia recordings provide a look at the Court as a whole, how each of the seven justices approach the decision-making process, and how the justices interact with each other. Perhaps the same is true of appellate courts that sit in panels of three for argument, but a study of those courts as a whole are limited to the infrequent times when those courts sit en banc.

My habitual listening to appellate arguments for a decade has reinforced some suspicions I have had about the Supreme Court of Virginia, and about appellate arguments in general. And, they provide some valuable insight for appellate lawyers

First, the justices are often talking to each other when they ask questions.

This is something that is hard to follow during the heat of oral argument. After listening to the argument after the fact, though, it is clear that many questions are not really for the advocate, but are directed towards another justice, or the entire Court. The justices are really discussing the case with each other and trying to convince their colleagues on the bench of their position. This provides a view into what an individual justice is thinking or how she might approach or decide the case. 

So does this mean that the advocate’s answers don’t matter? Are we just pawns on the Court’s chess board? Not at all. Our answers to those questions can influence the judicial discussion that is playing out during the argument. And, equally important, those answers could affect the outcome of the case by showing why our position is right.

Second, some questions are not what they sounded like when asked. 

During the argument, it can be difficult to really listen to the Court’s questions when you are focused on delivering a prepared argument and fielding a barrage of questions. Things become clearer with the luxury of hearing the argument again without the stress of being in the middle of it. In a post-hoc review, I have noticed that some questions were not exactly what I thought they were at the time; rather, the Court was asking something slightly different.

Good listening at oral argument is hard. It requires us to focus on the Court first, and our prepared argument second. Because the Court is the decision-maker, though, we must understand its concerns and questions so we can respond meaningfully. If we haven’t answered the Court’s questions, then we have not done our jobs as advocates. So, be flexible during oral argument. Weave the important points of the argument into your answers, but make sure you are addressing the issues the Court wants to discuss. Responding effectively and fully to the Court’s questions is a necessary step on the path to victory. 

Third, the Court genuinely wants to understand the argument and its ramifications.

This is why the justices ask hypothetical questions. They want to test the boundaries and effect of a ruling in your favor in future cases involving different facts. And this is why a justice may press the advocate to define the scope of the ruling that is sought and to explain the effect of that ruling. Concisely explaining the scope and limiting principles of your position will greatly assist the Court in understanding the effect of adopting your position and becoming comfortable with it. 

Embrace the opportunity to help the Court do its job well. Before you arrive at the courthouse steps, know the rule you are asking the Court to adopt, the limiting principles of that rule, and how it would apply in future cases involving different facts. 

Sound Recording

Finally, audio recordings only tell you half the story. 

Listening to an audio recording of an argument I heard – or delivered – is a different experience than being there live. The visual, relational, and intangible aspects of a live argument cannot be captured in a recording. Many essential ingredients to an effective oral argument, such as genuineness, credibility, enthusiasm, engagement, and rapport with the Court are not fully experienced in an audio recording. Therefore, being there in person is the only way to fully appreciate an argument, although that won’t stop me from listening to recordings. 

Because an effective argument needs the intangibles that are only possible with live engagement with the Court, you should not agree to argue your case by phone unless you have to. A live appearance is better. 

You may access audio recordings of the Supreme Court of Virginia’s merits arguments since January 7, 2014, at http://courts.state.va.us/courts/scv/oral_arguments/home.html. Audio recordings of the Court of Appeals of Virginia’s arguments since May 20, 2014, are available at Court of Appeals Oral Arguments (vacourts.gov). To listen to audio recordings for arguments before the United States Court of Appeals for the Fourth Circuit since May 2011, click on this link: Listen to Oral Arguments (uscourts.gov)

Contact us today if you have any questions.

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The Executive View: Virginia Regulatory Process, Appeals, and Lessons Learned from the Inside

Friday, January 5th, 2024

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 how appeals progressed to the Supreme Court of Virginia through judicial review of agency action.

From this experience, I understand more how administrative law parallels the intricacies of electrical engineering. There are so many factors at play, all of which must align, for things to work—law, policy, politics, science, data, and the inexorable ticking of the clock.  This article attempts to provide some lessons learned from that experience.

Lesson One: The Process is a Gauntlet, so Know Your Goal Up Front

Whether your regulatory issue involves a general regulation or a case-specific decision (such as obtaining a permit or license or other regulatory approval), they both share important similarities.  The Virginia Administrative Process Act (“VAPA” at Va. Code § 2.2-4000, et seq.) defines separately procedures for rulemaking and case decisions, with strict procedures for adopting regulations, making case decisions, and judicial review.

Because agencies act only under statutory authority, they have to follow those rules.  So the process matters immensely.  Thus, know what you want from the beginning.  

For instance, say you want to stop a regulatory change at all costs.  That means you want to make the process harder for the agency.  If the agency messes up along the way, and even if you lose before the agency, you might win an appeal of the decision, and as discussed below, time is your friend.

If, on the other hand, you need the agency to grant a license or permit, then your fate is not only in convincing the agency, but also having that decision survive appeals and judicial review.  Time is your enemy, and so you want to be a helping hand to get things wrapped up quickly and effectively.

Lesson Two: Many Calendars and Actors Impact Timing of Regulatory Process

The process for enacting or amending a regulation is defined by statute, and it takes time—but that statutory calendar is not the only one at play.  

On paper, the Virginia regulatory process goes through three phases—the Notice of Intended Regulatory Action (“NOIRA”), the Proposed phase, and the Final phase.  Public comment periods are required between each phase, with a 30-day period before a Final regulation becomes effective after it is published in the Virginia Register of Regulations.  Thus, in general, the process cannot be faster than 120-180 days.  But it never goes that fast, and the timeline is far more complicated and impacted by multiple different actors:

  • Executive Branch Review Calendar — This process is layered atop the statutory process by Governors’ Executive Orders.  Every modern Governor has imposed some review process (partially required also under VAPA) through which the Attorney General, the Department of Planning and Budget, the Cabinet Secretary, and the Governor all review regulations as they advance through the regulatory process.  This process has few enforceable deadlines, so it can become a regulatory purgatory.
  • Legislative Calendar – The General Assembly session occupies an immense amount of agencies’ time.  So in the month before and during the legislative session (say December to April), good luck getting any agency to do anything.
  • Board’s Calendar – If the regulatory action is controlled by a Board (and not a full-time agency head), then that Board’s calendar becomes relevant.  Most regulatory boards do not meet every day or even week.  They might meet every month or perhaps even less frequently.  So, if your action misses March’s meeting, it might be another month or more before action can be taken.

Accordingly, the Virginia Registrar estimates that actions generally take between 18 and 24 months.  Even when the action is a high priority for the Virginia Governor (and thus the Executive Branch), it will take around one year.  For instance, Governor Youngkin made exiting the Regional Greenhouse Gas Initiative a high priority.  That regulatory action, through the State Air Pollution Control Board, took just under one year from the publication of the NOIRA to it becoming finally effective.   

But of course, the regulatory process is not “over” at the Final stage.  There is the calendar for appeals and judicial review of regulatory action, if a stakeholder pursues it.  That can take years to wind through the Circuit Court, the Court of Appeals of Virginia, and the Supreme Court of Virginia.

Supreme Court of VA

Lesson Three: The Passage of Time is Not Neutral

A related lesson is that timing is not neutral.  Since the regulatory process occurs within a dynamic political system, delay tends to favor the status quo.  Thus, generally speaking, proponents of a regulatory action need to get things done ASAP; opponents (a/k/a proponents of the status quo) generally benefit from time.

The reason returns us to my law professor: the regulatory process requires alignment, just like an electrical circuit.  And, over time, something will undoubtedly change that could mean the required alignment no longer exists.  For instance, there may be a new Governor with a different policy view (which is guaranteed every four years under the Virginia Constitution).  There may be a new General Assembly, with different priorities (possible every two years).  The underlying policy issues (or public perception of them) may shift in one direction or another.  Once the regulatory “circuits” are no longer aligned, the regulatory process stalls, and the status quo is maintained.  

Accordingly, proponents of a particular regulatory action—particularly if it is politically contentious—have a limited window, which makes perfecting the regulatory process all the more important.

Lesson Four: Proponents Should Help the Agency Get it Right; Opponents Should Make it Harder

Because of this “alignment” dynamic, and pulling together Lessons 1-3, there are certain takeaways for stakeholders.  Let’s accept that a given regulatory process takes 1.5-2 years, and, let’s assume that judicial review will take 2-3 years.  Thus, generally speaking, if an agency action fails to pass judicial review, there will almost certainly be a new Governor, with a new administration, before the agency can reconsider the issue.  So the “alignment” is fleeting.  

Thus, proponents should see their fate as tied to the agency getting it right the first time.  Under administrative law, agencies generally get deference from the appellate courts; however, errors in the process or in considering the issues can be fatal.  Thus, to win an appeal, proponents need to act as allies to the agency—help it get things right and be vigilant:  

  1. Do not let errors fester—if the agency didn’t do something right, advocate for getting it right then, rather than waiting for judicial review to set things back years after the fact.
  2. Be engaged and provide evidentiary support for the regulatory action. 

The same lessons teach opponents to make things harder.  And, here, opponents need to be equally vigilant:

  1. Demand more process to draw things out—delay is your friend.
  2. Submit contrary evidence on the record—and know that substantive evidence (such as studies, data, etc) is going to be much harder for the agency to get around than generic opposition from public comments.

Lesson Five: Mind the State Budget

The State Budget, adopted every two years and amended every other year, is always the most important piece of legislation passed by the General Assembly.  But it is not just about money.  A lot, and I mean a lot, of policy is made through the State Budget.  

Thus, stakeholders should pay attention to budget language—both as it is being considered and implemented.  The General Assembly, ultimately, is the chief policymaker in Virginia, and it has an enormous ability to attach conditions to the appropriations it makes.  And that conditioning power is often used to direct or restrict regulatory action by the Executive Branch.

That can be a total game-changer—so just be aware of how legislative changes, even arcane ones in the State Budget, could impact the regulatory process in ways helpful or hurtful to your cause.

Conclusion

The regulatory process is a dynamic one that operates alongside political and judicial processes.  It is, in many ways, electrical engineering for lawyers, but it also is a human process.  So, in the end, participation is key—and quality matters more than quantity.  That said, when the stakes are high in a regulatory action, I hope some of these lessons-learned from the inside will be helpful in successfully navigating the process. If you have any questions or need guidance on Virginia regulatory processes or appeals, contact us today.

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