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Section Header

Program Submission Form

Appellate Advocacy and Pitfalls Program Title _______________________________________________________________________________________________________________

Date Presented

January 12, 2016

Inn Year

2015-2016

John Marshall Inn of Court 116 Presenting Inn____________________________________________________________________________ Inn Number_________________________ Richmond Inn City________________________________________________________________ Inn State__Virginia ___________________________________________ Ashley Calkins (Programs Chair) 804-554-1808 Contact Person__________________________________________________________ Phone_______________________________________________ [email protected] E-mail Address______________________________________________________________________________________________________________

Please consider this program for the Program Awards: Yes (Submit within 60 days of presentation.)

No

This program is being submitted for Achieving Excellence:

Yes

No

Program Summary:

Be concise and detailed in summarizing the content, structure, and legal focus of your program. Please attach additional sheets if necessary. __________________________________________________________________________________________________________________________

This program focused on appellate advocacy and pitfalls. There were short presentations on both oral and

__________________________________________________________________________________________________________________________ written appellate advocacy, an interactive quiz highlighting specific appellate traps based on actual fact

patterns, and a panel discussion with the Chief Justice of the Virginia Supreme Court, three judges from __________________________________________________________________________________________________________________________ the Court of Appeals of Virginia, the Solicitor General, and the former Solicitor General (a current

__________________________________________________________________________________________________________________________ appellate practitioner in private practice). The presentation focused on best practices and tips to maintain

credibility with appellate Courts. A student member provided technological assistance and assisted with __________________________________________________________________________________________________________________________ the appellate traps quiz.

__________________________________________________________________________________________________________________________

Program Materials:

The following materials checklist is intended to insure that all the materials that are required to restage the program are included in the materials submitted to the Foundation office. Please check all that apply and include a copy of any of the existing materials with your program submission: Script

Articles

PowerPoint Presentation

Citations of Law

Legal Documents

Fact Pattern

List of Questions

Handouts

CD

DVD

Other Media (Please specify)____________________________

Specific Information Regarding the Program: Panel members

Number of participants required for the program Which state’s CLE?

Virginia

Has this program been approved for CLE? How many hours?

1.0

Yes

No Pending

Approved

Recommended Physical Setup and Special Equipment: i.e., DVD and TV, black board with chalk, easel for diagrams, etc.

__________________________________________________________________________________________________________________________ A large meeting room with a large screen to view presentation PowerPoints and the quiz questions. Our team also used voting devices during the appellate quiz portion of the program to provide real time feedback on the responses of the Inn. __________________________________________________________________________________________________________________________

Comments:

Clarify the procedure, suggest additional ways of performing the same demonstration, or comment on Inn members’ response regarding the demonstration. __________________________________________________________________________________________________________________________ We have had excellent feedback on this presentation. It was a treat for the membership to hear the comments

and perspectives of very accomplished appellate practitioners and members of the Virginia appellate judiciary. __________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________ THIS FORM IS ALSO AVAILABLE FOR DOWNLOAD ON OUR WEBSITE: WWW.INNSOFCOURT.ORG

Program Submission Form Roles: List the exact roles used in the demonstration and indicate their membership category; i.e., Pupil, Associate, Barrister or Master of the Bench.

Role

Membership Category

Moderator and presenter on oral advocacy

Master of the Bench

Presenter on brief writing highlights

Master of the Bench

Appellate Traps Quiz

Pupil and Master of the Bench

Panel Discussion and Q&A

Masters of the Bench (6)

Reception

Pupils, Associates, Barristers, and Masters of the Bench

Agenda of Program: List the segments and scenes of the demonstration and the approximate time each item took; i.e., “Introduction by judge (10 minutes).” Item

Time

Introduction by Team Leader

5 minutes

Brief Writing Highlights

10 minutes

Oral Advocacy Highlights

10 minutes

Appellate Traps Quiz

20 minutes

Panel Discussion and Q&A

20 minutes

Cocktail Reception

60 minutes

Program Awards: Please complete this section only if the program is being submitted for consideration in the Program Awards. Describe how your program fits the Program Awards Criteria: Relevance: How did the program promote or incorporate elements of our mission? (To Foster Excellence in Professionalism, Ethics, Civility, and Legal Skills) We have not had an appellate focused presentation in many years but it is a relevant topic to nearly every litigator. This program focused on practical ways to improve skills and avoid common pitfalls.

__________________________________________________________________________________________________________________________ Entertaining: How was the program captivating or fun? The appellate traps quiz contained real life and practical examples but was still lighthearted and entertaining. Real time voting technology encouraged member participation in the Quiz.

__________________________________________________________________________________________________________________________ Creative and Innovative: How did the program present legal issues in a unique way? The Panel discussion/ Q&A provided great insight into "pet peeves" of appellate judges and tips for maintaining credibility. __________________________________________________________________________________________________________________________

Educational: How was the program interesting and challenging to all members? The program provided fascinating behind the scenes insight from accomplished appellate advocates and active members of the Virginia appellate Judiciary.

__________________________________________________________________________________________________________________________ Easily Replicated: Can the program be replicated easily by another Inn?

Yes

No

This program is:

Original

Replicated

Questions: Please contact program library staff at (703) 684-3590 or by e-mail at [email protected]. Please include ALL program materials. The committee will not evaluate incomplete program submissions. Program_Submission_Form.indd [Rev. 3/2015]

Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016 Richmond, Va. AGENDA

I.

Panel Member Introductions (6:00-6:05 p.m.). The Hon. Donald W. Lemons, Chief Justice, Supreme Court of Virginia The Hon. Stephen R. McCullough, Court of Appeals of Virginia The Hon. Marla Graff Decker, Court of Appeals of Virginia The Hon. Wesley G. Russell, Jr., Court of Appeals of Virginia E. Duncan Getchell, Esq., McGuireWoods LLP Stuart A. Raphael, Esq., Solicitor General of Virginia, Moderator John Danyluk, ’16, Student Member

II.

Brief Writing Highlights (Handout)—E. Duncan Getchell (6:05-6:15 p.m.).

III.

Oral Advocacy Highlights (Handout)—Stuart A. Raphael (6:15-6:25 p.m.).

IV.

Appellate Traps Quiz (Handout)—Judge McCullough, John Danyluk (6:25-6:40 p.m.).

V.

Panel Discussion and Q&A (6:40-7:00 p.m.).

APPELLATE BRIEFING Click to edit Master title style

WRITE WITH THE RULEBOOK OR WEBPAGE OPEN By: E. Duncan Getchell McGuireWoods LLP 800 E. Canal Street Richmond, VA 23219 www.mcguirewoods.com

CONTENTS AND TIME LIMITS FOR BRIEFS

SUPREME COURT OF VIRGINIA • Petition For Appeal 5:17; • Brief in Opposition 5:18; • 5:20 Rehearing (Nonmerits) – If worth taking in first place, worth asking. • Petition for Review of Injunctions § 8.01-626

McGuireWoods | 2

1

FORM OF BRIEFS – THINGS TO NOTE

5:1-

Definitions – affect who you must serve.

5:1A - Show cause, dismissal and bar reporting extensions. 5:5 -

Filing deadlines, post trial proceedings, filing by mail, extensions.

5:6 -

Tip font choices are Courier, Arial or Verdana but Arial yields most words per page.

McGuireWoods | 3

Rule 5:26 General Requirements for All Briefs • Particularly note provisions for Electronic Filing • 10 paper copies

McGuireWoods | 4

2

CONTENTS OF MERITS BRIEFS

5:27 – 5:28 5:29 5:30 5:31 -

Requirements for Opening Brief of Appellant Requirements for Brief of Appellee Requirements for Reply Brief Briefs Amicus Curiae Covers of Documents – No longer likely to be your responsibility Persuasiveness

1. Reliability 2. Demonstration vs. Assertion

McGuireWoods | 5

APPENDIX

Rule 5:32 - 3 paper copies and electronic copy; sealing

McGuireWoods | 6

3

MERIT REHEARING

Rule 5:37 • Notice of Intent 10 days • Petition for Rehearing – email only – 30 days – 10 pages

McGuireWoods | 7

VIRGINIA COURT OF APPEALS

• Although the rules are similar in organization there are significant differences that should be examined with each new appeal. • Note that brief length is governed by word count only. Rule 5A:19.

McGuireWoods | 8

4

FOURTH CIRCUIT – THINGS TO NOTE

• Always consult FRAP, Circuit Local Rules and Internal Operating Procedures. • Pacer is very user friendly for filing briefs. Fourth Circuit now has electronic filings and paper filings for Appendix. • Note that the Judicial Conference of the U.S. has transmitted an amendment of Rule 32 FRAP to reduce word limits from 14,000 words for principal brief and 7,000 words for Reply Brief to 13,000 and 6,500 respectively.

McGuireWoods | 9

Questions or Comments?

www.mcguirewoods.com

McGuireWoods | 10

5

Oral Argument Practice Stuart A. Raphael 1 January 2016

I.

Introduction. An outline cannot do justice to the topic of oral advocacy. Many books and practice guides have been written about it. My favorite is by David C. Frederick, Supreme Court and Appellate Advocacy (2d ed. 2010) (416 pages). My second favorite is by Bryan A. Garner, The Winning Oral Argument (2009) (208 pages). Garner’s book collects advice from more than 250 books and articles and organizes the gems into 87 tips. I prefer Frederick’s because of his effective use of excerpts from oral-argument transcripts to demonstrate what works and what flops. It’s a must-read for someone who wants to hone their advocacy skills. This outline describes my own approach to preparing for and presenting oral argument.

II.

Preparing for oral argument. A.

Reread the briefs, making a list of the key authorities to reread.

B.

Review (or create) a chronology of the key facts in the case, with citations to where the entries are found in the record.

C.

Review the record or joint appendix, identifying the key points and noting where they can be found. In an appeal involving a large record (such as when there was a multi-week trial), there may not be sufficient time to read it cover to cover. I rely heavily on the use of highlighting in Adobe Acrobat X Pro. In cases with large records, I may review only what I previously highlighted when preparing the brief.

D.

Update the legal research by shepardizing (or key citing) the cases. 1.

Before writing a brief, I typically have created chronologies for each discrete legal issue, listing the cases in reverse-chron order. For each case, I have summarized the holding and have cut-and-pasted the key passages into the document. I use a color-coding system to flag the important parts: yellow (for passages to glean a basic understanding of the court’s reasoning); green (for the most important passages or phrases); blue (for

1

Solicitor General of Virginia (January 2014 – present); Partner, Hunton & Williams LLP (1997-2014); Associate, Hunton & Williams LLP (1989-1997).

1

text that probably ought to be quoted in the brief); and gray (for language likely to be cited or quoted by the other side). 2.

For each case, I note the dates that I shepardized it. That makes it easier to quickly update the research, focusing only on developments since the date I last checked it. Here is a sample:

3.

If you discover significant new authorities that ought to be brought to the Court’s attention or that you plan to use in oral argument, file a letter with the clerk. See Fed. R. App. P. 28(j); Va. Sup. Ct. R. 5:6A.

E.

Preparing takes much longer if you didn’t write the brief yourself. It involves essentially the same steps listed above, except that you will be doing it for the first time. When I haven’t written the brief, I find that preparing legal-issue and fact chronologies is essential to understanding the case and to discerning the winning arguments. They may not be the arguments that the brief’s author emphasized.

F.

Distill the argument into key affirmative points.

G.

1.

“An advocate seeks in oral argument to boil a case down to its essence.” Frederick, supra, at 10. Ideally, plan to focus on the three most important points. Seldom try to cover more than four.

2.

Keep a cheat-sheet of the top points on which you must prevail to win. You may need it when the bench is hot and the judges’ questions and comments have nearly exhausted your time.

Plan for the hardest questions—the ones that give you the most heartburn about your case—as well as the most difficult hypothetical questions that will challenge the limits of your logic. 1.

In my judgment, this is the most important part of oral-argument preparation. I create a Hard-Questions List with the questions I anticipate

2

and my proposed answers. I also ask colleagues working on the case or helping with a moot court to give me their hardest questions.

H.

2.

Anticipate where in your argument the hard questions are likely to come.

3.

Practice answering those hard questions. Refine the order of your points and shorten the time it takes to make them. Repeat. Repeat. Repeat. See Frederick, supra, at 9 (“[M]ake the right points in the shortest amount of time possible.”).

4.

I frequently bring my Hard-Question List to the lectern, though I generally don’t need to look at it, except perhaps for a code or case citation that I know I will want to give the court, when the question is asked.

5.

Consider whether to raise the hard question yourself at argument, and to answer it, even if no one asks. It may be better to make sure you’ve answered it well, rather than to run the risk, if no one asks, of the court answering on its own without your input.

6.

Study how each hard question relates to your key points and practice seguing from the answer back to your affirmative argument.

Plan for the where-is-that-in-the record questions. I usually create a Record Locator, an Excel worksheet with cryptic, short summaries (don’t make them too long to read) and the page number where the information can be found in the record. Here’s a sample:

3

I.

J.

Know which judges wrote the key cases. 1.

Although I may not use that information during oral argument, it can be invaluable to understanding questions from the bench. Be sensitive that some judges may resent efforts to pen them in. But sometimes questions that seem adverse to your position will be at odds with the questioner’s prior opinion; gently pointing out such discrepancies may help bring the judge back to your view of things.

2.

In the Fourth Circuit, unfortunately, the court does not identify the panel until the morning of the argument. I prepare a Key-Case Judges List to help me figure out quickly who authored, who joined, who wrote a concurring opinion, and who dissented in the key cases. Here’s a sample:

Devise a mantra or two—short, pithy statements that capture critical themes and explain why you should win. Plan to repeat them during your argument. See generally Frederick, supra, at 149-52, 247-50. 1.

Daniel Webster’s mantra in an 1839 case involving the limits of State power to regulate corporations was “whatever individuals can do under a state’s law, a corporation can do as well.” Frederick, supra, at 21 (discussing Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839)).

2.

My mantra in Virginia v. Maryland, 540 U.S. 56 (2003)—which involved whether Maryland could block Virginia from extending a water intake pipe in the Potomac River beyond Maryland’s side of the boundary—was “you can’t let one State control another State’s water supply.”

4

3.

K.

In an ideal world, a judge takes and uses your mantra in persuading the other judges at conference why your position is right.

Prepare an argument outline and argument folder or binder. 1.

Plan your opening, the order of your affirmative points, and your closing.

2.

Don’t write out or read your argument. Listeners can tell; it kills one’s effectiveness. Distill your notes into key words that will help keep you on track. If you’re well prepared, you won’t use the notes.

3.

When I was younger with better vision, I put everything I planned to cover on two sides of a manila folder, using very small print. If the manilafolder approach still works for you, great.

4.

Now I use an argument notebook. For my prepared argument, I type key words in 14-point font or 16-point

font.

5.

Don’t crowd too much onto a page. I leave plenty of space between points to leave room to make notes as things develop during the argument. For instance, when I’m representing the appellee and Judge Doe may have asked a question that implicates a point I had planned to make, I’ll note that in my outline so I can tie it in at the right time.

6.

Start each new point on its own page. Doing so gives you flexibility to easily change the order of presentation and to insert other pages of notes as points arise during the argument.

7.

My argument binder typically includes: the argument outline; the HardQuestion List; the Record Locator; the Key-Case Judges List; the fact chronology; and my updated legal-issue chronologies and summaries. a)

Use dividers with tabs, labeled on both sides, to separate the contents.

b)

Use a three-hole punch with extra-large holes. It makes turning the pages a lot easier.

c)

I prefer a D-Ring binder. The more expensive ones are worth it; they are more durable and the metal rings are less likely to separate or misalign.

5

L.

III.

8.

I keep a separate notebook of the appellate briefs and any other significant pleadings (e.g., notices of supplemental authority, motions, etc.), and highlighted copies of the key cases.

9.

I also like to bring a fast laptop computer that stores all of the cases and pleadings, allowing me to search and retrieve key text quickly.

Listen to oral-argument recordings in cases similar to yours. 1.

Fourth Circuit: http://www.ca4.uscourts.gov/oral-argument/listen-to-oralarguments.

2.

Supreme Court of Virginia: http://www.courts.state.va.us/courts/scv/oral_arguments/home.html.

3.

Supreme Court of the United States: http://www.oyez.org/cases.

Moot Court. A.

Plan on at least one moot court.

B.

Schedule your moot court so as not to peak too early before the argument but to leave enough time to do additional research and to fix problems that come to light. The ideal timing is 3-5 days before the argument.

C.

Include among lawyers on your moot-court panel not only the colleague who contributed to the brief, but someone who is new to the case, who has expertise in the subject matter, and who has no expertise in the subject matter. Give them the briefs, and recommend key cases for them to read, sufficiently in advance for meaningful preparation. Ask each to devise a hard-questions list.

D.

Time and deliver your argument first without any questions from the judges. Plan to use only about 75% of your allotted time. Solicit the moot-court judges’ input about what they liked and disliked. Ask if your order of points makes sense. Ask if they like your opening, closing, and any mantras that you plan to use.

E.

Then do it again as a live-fire exercise. Have someone call out the time, but keep going until all of the judges’ questions are asked and answered.

F.

Solicit again the judges’ comments on your performance.

G.

If you have never done so before, videotape a moot court and force yourself to watch it. There is no better medicine for annoying mannerisms and other things you won’t like about your argument. 6

IV.

When you represent the Appellant . . . . A.

You can generally assume that the judges are well prepared. Forget any lawschool instruction you might have received that you should discuss the facts of the case until the court tells you it remembers them. Plan to get out your key points within the first 30 seconds.

B.

Be careful that your opening sentences do not contain material with a high likelihood of provoking questions that risk derailing your argument.

C.

1.

Derailment often occurs when advocates emphasize policy arguments too early or assert a one-sided view of a factual or legal argument that is hotly contested, tempting a skeptical judge to voice the other side’s position.

2.

I generally prefer to save policy arguments or anything that might be more controversial for closer to the end of the argument, if not for the closing itself. That helps to finish on a strong note while minimizing the risk of being knocked off track.

Rebuttal. 1.

Decide how much time to reserve. I prefer 3-4 minutes in a 15 minute argument. Keep in mind that a hot bench during your opening argument can deplete your rebuttal time.

2.

Before the argument, identify the key points to give in response to the anticipated arguments of the appellee. I like to have one page for each discrete rebuttal argument. Those pages can then be reordered easily and integrated with other notes for effective rebuttal.

3.

Some advocates take notes of the appellee’s argument on the left side of a legal pad, writing down their planned responses on the right. In rebuttal, they then cover the points in the same order addressed by the appellee’s counsel. That method can work well in the heat of trial, but I don’t like it for appellate arguments. It buys too much into the appellee’s preferred order of argument.

4.

When the appellee argues something that I know I want to answer in rebuttal, I don’t take notes of what he said; I simply write down what I plan to say in response, using one page of legal paper for each point. I then organize my rebuttal notes into what I think will be the most effective order, starting with the most important points first. 7

5.

V.

VI.

If the appellee’s lawyer got raked with hostile questions, you may be well advised to minimize or waive your rebuttal argument.

When you represent the Appellee . . . . A.

I recently heard an appellate-advocacy instructor say that appellee’s counsel is restricted in oral argument to matters covered by the appellant’s counsel. There is no such rule. And it would be foolish to be locked into the appellant’s choice of arguments.

B.

Before you hear the appellant’s argument, plan the order of your argument in the manner that best promotes your chance of winning. Usually lead with your strongest argument. You need not present argument in the order found in your brief or in the appellant’s argument. If a merits-based argument is strong and a justiciability argument weak, argue the merits and leave the rest to your brief.

C.

Listen carefully to the appellant’s argument and the questions asked. Identify any significant misstatements of law or fact. If they warrant correction, decide whether to address them at the outset or at the point in your argument where they are most germane.

D.

The Court’s questions may lead you to change the emphasis of what you plan to cover. Don’t waste time arguing points on which the Court appears to have already sided with you. And consider addressing any questions to which your opponent gave a botched or incorrect answer. For instance, if a judge asked a question pointing out that the appellant’s argument has no limiting principle, emphasize that in advancing your own key points and themes.

Answering questions. A.

Welcome questions. They are windows into the judges’ thinking. Use those questions to figure out where the judges are leaning and what is troubling them.

B.

The best oral argument will resemble an interesting conversation among colleagues, not a dramatic soliloquy or an impassioned plea to the jury.

C.

Endeavor to answer yes-or-no questions with a yes or no. If explanation is needed, try using “yes, but . . . .” or “no, except that . . . .,” rather than putting off what the judge wants to hear. You have been yellow-carded if the judge says that you were asked a yes-or-no question but didn’t give a yes-or-no answer.

8

D.

When a judge starts to speak, stop talking, even if you’re in mid-sentence. Don’t interrupt the judges when they’re speaking or try to finish their sentences for them.

E.

Don’t put off the answer or say “I’ll get to that later.” Answer it then and there.

F.

Use good judgment when pressed to concede something. Try to forecast what types of concessions you’ll be asked to make. Refusing to concede something obvious will undermine your credibility. But too readily conceding something dangerous may prove fatal to your case. If your instinct tells you that conceding could be fatal, don’t do it.

G.

If you don’t know the answer, don’t fake it. Say that you don’t know.

H.

Answering hypothetical questions. 1.

Keep your theory of the case and limiting principles in mind when answering hypothetical questions. Thorough preparation can arm you to answer hypothetical questions that you hadn’t thought of yourself.

2.

Avoid the that’s-not-this-case answer, “which has to rank among the most insulting answers possible to a question from the bench. The questioner knows the hypothetical is not this case, but nonetheless wants to know how a case farther from the core of the rule suggested by a party would come out under that party’s theory.” Frederick, supra, at 111.

3.

If you don’t know the answer or can’t answer without conceding something damaging, try something like: “I’m not sure how the court would answer that particular question but here are the principles that would apply.” Then segue back to your affirmative points.

I.

Recognize the softballs. Sometimes judges ask easy questions so you can hit them out of the ballpark and help persuade the other judges on the bench. Do it.

J.

Transition smoothly from the question back to your argument. Don’t stand there waiting for another question. Keep control over the pace and direction of the argument.

9

VII.

Close with force. A.

Prepare and memorize closing remarks, preferably no longer than 30 seconds, and ensure that you end on time. Close with rhetorical strength, not with “Thank you for your consideration,” or “I see that my time is up.” Here was my closing in Virginia v. Maryland, in which I tried to hammer home the mantra: [Y]ou cannot give one State the authority to control another State’s water supply. This case is important not only because of Virginia’s rights to build wharfs and improvements. It’s important because if Maryland prevails, they can control growth and development in Virginia. Under Mr. Baida’s theory, as long as they treat everybody equally, they can do anything they want . . . . Maryland could decide that it doesn’t like growth and development on either side of the river, and therefore it’s treating each State equally by not allowing any use. It’s impossible to square that type of position with the plain language of article IV of the award or article VII of the compact. 2

VIII.

Miscellaneous. A.

In addition to your argument binder and briefs-and-case binder, make sure to bring necessary supplies: an extra pen, legal pad, highlighter, post-its, back-up glasses or contacts, tissues, band-aids, aspirin, and a comb or brush.

B.

Bring a copy of the rules of court in case a procedural question arises.

C.

Be familiar with the courtroom and know where to sit. If you haven’t argued there before, watch an argument beforehand.

D.

Although it is best to avoid formalism during the argument itself, there is no safer starting sentence than “May it please the Court.” Garner, supra, at 123.

E.

Avoid distracting mannerisms at the lectern. Watching a video of your moot court can help. For example: don’t cling to or hunch over the lectern; don’t hold a pen in your hand; don’t bring piles of things to the lectern (or drop something along the way); don’t hide your hands in your pockets; and don’t leave your coat unbuttoned.

2

Transcript of Oral Argument at 57-58, Virginia v. Maryland, 540 U.S. 56 (2003) (No. 129, Orig.), http://www.supremecourt.gov/oral_arguments/argument_transcripts/129orig.pdf.

10

F.

Finish early if you’ve made your points and there are no remaining questions. And read the judges’ cues. When you hear “we understand your argument” or “is there anything else you’d like to say,” wrap up.

G.

Be nice to opposing counsel. Don’t denigrate the lower-court judge or the courts whose opinions go against you. Avoid sarcasm.

H.

Keep your papers neatly at counsel table and keep a poker face. Don’t telegraph that you’ve taken a hit by flailing around to find something in response to what your opponent just said; calmly reach for what you need.

I.

Ask your colleagues for feedback shortly after the argument, preferably the same day. They can give you a more objective sense of how it went and can provide constructive feedback on how to do better the next time.

J.

Enjoy it. This is why you became a lawyer, right?

11

Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

Appellate Traps Quiz (1) Landlord sues defendant for conversion for allegedly removing furniture from the furnished house he rented. The trial judge excludes a witness offered by the defendant after the defendant proffers that the witness will testify “about his [the defendant’s] state of mind and thoughts.” In a post-trial proffer, the defendant proffers that the witness would have testified that he witnessed the landlord’s agreeing to let the defendant remove some of the furniture and also witnessed the landlord himself removing some of the furniture that the defendant was accused of taking. Is the objection in combination with the proffer sufficient to preserve the point for appellate review? (a) Yes. (b) No. (c) Maybe. (d) I don’t know.

1

Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

(2) The trial court decides your case based on a ground that had not been argued or briefed. To preserve your ability to argue that the trial court decided the question incorrectly, you file a motion for reconsideration, setting forth your argument. You filed your motion a few days after entry of the final order, well before the expiration of the 21-day period under Rule 1:1. Your opponent promptly files a response. The trial court never rules on your motion. Have you given the trial court the opportunity to rule on your point and, therefore, have you preserved for appellate review the points made in your motion for reconsideration? (a) Yes. (b) No. (c) Maybe. (d) I don’t know. ANSWER:

2

Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

(3) The defendant wishes to appeal from an enforcement action brought against him by the City. There are parallel municipal ordinances and state statutes. The final order styles the case in the name of the City and cites the City’s municipal ordinance. The notice of appeal correctly identifies the circuit court docket number in the caption of the case, but it lists the Commonwealth rather than the locality as the defendant. It does not list any statute or ordinance. The City Attorney received notice of the appeal and filed a brief in opposition. The purpose of the notice of appeal is to alert the clerk of the trial court to prepare the record for the appellate court. The appeal can go forward, right? (a) Yes. (b) No. (c) Maybe. (d) I don’t know.

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Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

(4) With a diligent eye toward pursuing an appeal, you periodically call the clerk’s office to ask whether the final order has been entered. The clerk’s office tells you it has not. You learn to your dismay that the clerk was wrong. The final order was entered but, by oversight, it was not sent to you. Thirty days have passed and it is now too late to timely file the notice of appeal. True or false: the rules provide no solution to this problem. The only solution is to file a petition for a writ of habeas corpus in criminal cases or a malpractice action in civil cases. (a) True. (b) False. (c) I don’t know. (d) can you repeat the question?

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Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

(5) Appellant assigns the following error: “The trial court erred by failing to grant the defendant[’]s motion to strike the Commonwealth’s evidence as being insufficient as a matter of law to sustain his convictions for attempted murder, abduction[,] and the use of a firearm in the commission of a felony.” True or false: the assignment of error is fatally defective because it does not specify in what respect the evidence was insufficient. An assignment of error must “lay its finger” on the error and insufficient specificity is fatal. See Rules 5:17(c)(1) and 5A:12(c)(1). (a) True. (b) False. (c) It could go either way. (d) Not sure.

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Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

(6) True or false: the appellate court will not consider a ground for affirmance if the appellee did not raise it in the trial court. (a) True. (b) False. (c) It depends. (d) I don’t know.

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Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

(7) Unsure of the date the final order was entered, you file your notice of appeal early to avoid the risk of blowing the 30-day deadline. You then learn that the final order was not entered until after you filed the notice of appeal. Do you have to file a new notice of appeal? (a) Yes. (b) No. (c) It couldn’t hurt. (d) I don’t know.

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Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

(8) Officer sees Defendant staggering on the sidewalk while exiting a bar at closing time. While arresting Defendant for public intoxication, Defendant resists arrest. Defendant is charged with both public intoxication and assault on a police officer. Defendant argues that the arrest was made without probable cause, and, therefore he had a right to resist. The trial court convicts on both charges. The defendant appeals only the conviction for assault on a police officer, arguing, as he did at trial, that the arrest was made without probable cause. Is the failure to appeal the public intoxication charge fatal to his appeal on the assault charge? (a) Yes. (b) No. (c) I don’t know. (d) What with the criminal questions?

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Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

(9) By inadvertence, the court reporter failed to file a transcript of proceedings for the day of the trial on which you contend the circuit court committed reversible error in convicting your client. The transcript is indispensable to sorting out what happened. Rule 5A:8(a) requires that transcripts be filed within 60 days after entry of the final judgment but permits a Judge of the Court of Appeals, for good cause, to extend the deadline until 90 days after entry of final judgment. Unfortunately, you don’t realize the mistake until more than 90 days have elapsed since the final order was entered. The time for filing the petition for appeal (40 days from the filing of the record) has not yet run. The failure to file the transcript: (a) cannot be cured; prepare for an ineffective-assistance-of-counsel claim; (b) can be cured by filing a Petition for Writ of Arania Exumai with either the trial court or the court of appeals; (c) can be cured by filing a motion in the trial court to correct the clerical error by making the transcript part of the record, but only if the Court of Appeals consents; (d) same as (c), except that the Court of Appeals’ consent is not required. (e) I’m a civil litigator and you are not the boss of me now.

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Appellate Advocacy and Pitfalls John Marshall Inn of Court January 12, 2016

Take away: •

Fear procedural defaults but don’t give up hope.



Read the Rules, read the Rules, read the Rules.



Read the procedural rules in the Code too.



Read the case law interpreting the Rules.

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