Senator Surovell has introduced SB999, which would change the CAV’s standards for granting oral argument to track federal practice. Specifically, it would make these changes to Code Section 17.1-403:
The Supreme Court shall prescribe and publish the initial rules governing practice, procedure, and internal processes for the Court of Appeals designed to achieve the just, speedy, and inexpensive disposition of all litigation in that court consistent with the ends of justice and to maintain uniformity in the law of the Commonwealth. Before amending the rules thereafter, the Supreme Court shall receive and consider recommendations from the Court of Appeals. The rules shall prescribe procedures (i) authorizing the Court of Appeals to prescribe truncated record or appendix preparation and (ii) permitting the Court of Appeals to dispense with oral argument if the parties agree that oral argument is not necessary or if the panel has examined the briefs and record and unanimously agrees that oral argument is unnecessary because (a) the appeal is wholly without merit
or; (b) the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed; or (c) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
This change will sunset on June 30, 2027 unless reenacted by the 2027 General Assembly. SB990 would also specify that the amount of a suspension bond would be the principal amount of the judgment plus 2.5 years’ interest.
For comparison, Federal Rule of Appellate Procedure 34(a)(2) says:
Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:
(A) the appeal is frivolous;
(B) the dispositive issue or issues have been authoritatively decided; or
(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
I don’t see much daylight between “wholly without merit” (in Code Section 17.1-403) and “frivolous” (in FRAP 34). Black’s Law Dictionary defines “frivolous” as, among other things, “[l]acking a legal basis or legal merit; manifestly insufficient as a matter or law.” So let’s consider these standards equivalent.
The question becomes whether adopting the federal standard is a good idea. Anyone with a substantial civil CAV practice will tell you that things are moving slowly through that court at the moment, and I have it on pretty good authority that oral argument is a major bottleneck. Under the current version of 17.1-403, it’s hard to avoid scheduling a case for argument. So a rule intended to give the judges more flexibility in scheduling seems like a good idea.
The immediate objection, of course, is that the Fourth Circuit is notoriously stingy with oral argument. Here’s a table from Allison Orr Larsen and Neal Devine, Circuit Personalities, 108 Va. L. Rev. 1315, 1325 (2022):*
We don’t want the CAV to be like the Fourth Circuit! So we shouldn’t adopt the federal standard.
But the standard SB999 incorporates is from Rule 34, which applies to all federal circuits, even the oral-argument friendly ones. And to keep the bars above in perspective, the Seventh Circuit–with an oral argument rate of somewhere around 45%–grants oral argument in just about every case with a lawyer on both sides. That seems like a good standard! Also, culturally, the Fourth Circuit values efficiency–it’s home to the Rocket Docket, after all–and in a lot of ways, it is built for speed. None of that is necessarily true of the CAV. I wouldn’t expect a court full of judges who came through the Virginia state court system, which grants oral argument in every case, to start denying oral argument in ~90% of cases like some of their neighbors.**
Finally, if the CAV just immediately stops granting argument as a docket-control mechanism, then the General Assembly can just let the changes to 17.1-403 expire in 2027.
Best of luck to SB999, and a robust and speedy oral argument docket.
* Circuit Personalities is excellent.
** One article clocked CA4’s oral argument at 8%. Eight percent!!