Wednesday, February 14th, 2024
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 creative solutions, even after entry of a final or appealable order.
Appellate mediation will be available in certain civil cases where both parties are represented by counsel. Appeals where one or both parties are pro se are not eligible for appellate mediation through the pilot program. In the Court of Appeals, mediation will be available in equitable distribution and/or related attorney fee disputes. In the Supreme Court, mediation will be available only where a petition for appeal has been granted; motions to vacate criminal convictions and petitions for actual innocence are not be eligible for appellate mediation.
How appellate mediation will work
Appellate mediation is entirely voluntary. In the Supreme Court of Virginia, the parties will be informed of the availability of appellate mediation when a writ is granted. At that time, the clerk of the Supreme Court will send a letter to the parties describing mediation and explaining that if all parties agree to mediation and notify the clerk in writing of their agreement within 14 days, any further appellate deadlines (except the statutorily-required bond deadline) will be stayed for a period of 30 days to allow the parties an opportunity to mediate. The clerk’s letter will attach a list of certified appellate mediators but will explain that the parties may choose any mediator, whether or not the mediator is on the list.
In the Court of Appeals, appellate mediation is not available until the Court receives the record in a domestic relations case. At that time, the clerk of the Court of Appeals will send the parties a letter similar to that sent by the Supreme Court clerk. As in the Supreme Court, if the parties agree to mediate, there will be an automatic stay of the proceedings for 30 days to provide an opportunity to mediate. If the Court of Appeals issues a stay, the clerk will notify the parties of the deadline for filing the next document.
Appellate mediation will promote access to justice
Chief Justice Donald W. Lemons initiated the study of mediation in the appellate courts last year when he asked the Joint Alternative Dispute Resolution Committee to appoint a group to consider the issue. The Joint ADR Committee appointed the Special Committee to Study Appellate Mediation, which includes members of the appellate bench, appellate litigators from the Virginia Bar Association and VSB, and members of the Joint ADR Committee.
Following months of study, the special committee issued a report in June 2018, recommending that the Supreme Court and Court of Appeals undertake the pilot program. According to the special committee’s report, appellate mediation is “a vehicle” to provide “viable appellate mediation for economically disadvantaged litigants” in an effort to promote access to justice at the appellate level of the commonwealth’s court system.
Training and certification of appellate mediators
The special committee also recommended that the Judicial Council of Virginia approve specific training and certification for appellate mediators during the pilot projects. To date, there is no special training in Virginia for mediators regarding the unique aspects of appeals in Virginia’s courts. The special committee hopes to close this gap by offering a new two-hour course focusing exclusively on appellate litigation in Virginia. This course will be required for individuals (except those who have served on the Supreme Court and Court of Appeals) who seek to be certified as appellate mediators.
To become a certified appellate mediator in Virginia, one must be certified as a mediator in Virginia or complete the 20-hour basic mediation course. The special committee has also recommended additional minimum qualifications for certification of appellate mediators in each appellate court to ensure that mediators have the skills necessary to effectively mediate disputes at the appellate level.
The Joint ADR Committee is holding a training program for interested appellate mediators on November 14-16, 2018, in Richmond. For information about the training course, go to the events section of the VSB website. The report of the special committee can be found at: https://cdn.ymaws.com/www.vba.org/resource/resmgr/adr/report-special_cmte_to_study.pdf.
Monday, January 29th, 2024
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 then be filed “promptly. It needs to also explain why the authority is being submitted—including by reference “to the page of the brief or to a point argued orally.” And the body of the letter is limited to 350 words. See Va. Sup. Ct. Rule 5:6A; Va. Sup. Ct. Rule 5A:4A; FRAP 28(j).
The opposing party has the right to respond. This response is subject to the same substantive limitations, and must be submitted within 14 days (in the Court of Appeals of Virginia) or “promptly” (in the Supreme Court of Virginia or the Fourth Circuit).
While these are the basic rules, what factors bear on whether a party should submit a supplemental authority letter? Sometimes the decision is easy—i.e., if there is a new controlling case. Often, however, it will be a judgment call. To assist in exercising that judgment, here are a few considerations:
1. Does the material qualify as supplemental authority?
Under the rules, three words (each subject to interpretation) control this threshold inquiry: “authority,” “pertinent,” and “significant.” In general, “authority” should be limited to legal authorities, not material that would supplement the evidentiary appellate record. See 21 Moore’s Federal Practice – Civil § 328.60 (with limited exception, “authorities” are things like “statutes, cases, [and] regulations”).
“Pertinent” relates to the requirement to reference where the issue was previously discussed. In other words, a supplemental authority letter is not a vehicle to introduce additional arguments. See United States v. Ashford, 718 F. 3d 377, 381 (4th Cir. 2013) (finding that litigants may not use such a letter “as a means to advance new arguments couched as supplemental authorities”); Va. Sup. Ct. Rule 5:6A (the Supreme Court of Virginia “may refuse to consider the supplemental authorities if they unfairly expand the scope of the arguments on brief”); Va. Sup. Ct. Rule 5A:4A (same for the Court of Appeals of Virginia).
As for “significant,” one rule-of-thumb is whether a party would have cited the authority in the relevant filing, had it been aware of the authority at the time.
2. What about timing?
By rule, the supplemental authority should only have “come to a party’s attention” after the party’s last substantive filing or oral argument. While this is not strictly pegged to when the authority was available, litigants are expected to be aware of pre-existing relevant authorities. The letter accordingly should explain any disconnect or delay. See Va. Sup. Ct. Rule 5:6A (supplemental authorities may be rejected if they “raise matters that should have been previously briefed [or], appear to be untimely”); Va. Sup. Ct. Rule 5A:4A (same).
Letters must also be filed “promptly.” Key here is to avoid the appearance of gamesmanship and to give adequate time for consideration—both by the court and your opponent. Of course, if a decision is pending and the material is helpful, the supplemental authority should be filed as soon as possible.
Although the rules appear to allow reference at oral argument without first submitting a supplemental authority letter, that would not be good practice (and the supplemental authority may be rejected on the spot). Rather, a letter should be submitted in advance of a hearing.
3. Can you include argument?
“Argument” used to be expressly forbidden. In 2002, however, Rule 28(j) of the Federal Rules of Appellate Procedure was amended to remove this prohibition, and now “permits parties to decide for themselves what they wish to say about supplemental authorities.” FRAP 28, Committee Notes on Rules—2002 Amendment. The Virginia Rules were adopted in 2015 and likewise contain no restriction on argument.
4. What will your opponent likely say?
A supplemental authority letter can be a great opportunity: litigants have 350 words to introduce new authority and argue its significance to the appeal. But any evaluation of whether to submit such letter must game-out what your opponent will likely say in response. Just like an opening letter, a response can both highlight aspects of the authority and present related argument.
There is only an opening letter and response—no reply is permitted. This sequencing is important in assessing whether a letter will be a net positive. Appellate Lawyers, in particular, may be loath to give their opponents a platform to have the “last word.”