De Novo: A Virginia Appellate Law Blog

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Chief Justice Lemons likes to say that an advocate develops three oral arguments in each case: the one they planned to give, the one they actually gave, and the one they wish they’d given. Last Friday, I was honored to speak at the VTLA Annual Convention. My topic was practical legal writing. Below is the speech that I planned to give. Two caveats: First, this is not the speech that I actually gave (let alone…
The brief in opposition is one of the great underappreciated joys of Virginia appellate practice. It comes at the writ stage, when we’re just trying to convince the Supreme Court that it should/should not grant a petition for appeal. We’re not necessarily arguing the merits. Sometimes, the petitioner will not yet have hired specialist appellate counsel. Even when they do, some nominal appellate lawyers fail to appreciate this distinction. So how do we dissuade the Court…
Raffi Melkonian, an appellate lawyer from Texas and the dean of #appellatetwitter, has been working on what he considers the hardest problem at oral argument: the judge who has misunderstood something and is angry about it. I'm listening to a series of oral arguments for "reasons," and I've decided the hardest OA problem is the judge who has misapprehended something but is also mad about it. Lawyers really get themselves into a jumble dealing…
Confession time: I have a strong prejudice against the default writing style at most BigLaw firms. I’d like to think that my intolerance is mostly justified, but I recognize that it’s at least partly unfair. To understand why, remember that I started my career at a BigLaw firm. I had a great experience working with talented lawyers on exciting cases. But I faced one major hiccup along the way. Early in my tenure, I was…
As I’m writing this, I’m attending the VBA’s Appellate Summit, a fantastic CLE that comes around every three years. This year, the appellate council made asked me to moderate a 50-minute panel about brief writing. They won’t make that mistake again! Thankfully, the outstanding–dare I say heroic?–contributions of panelists Judge Robert Humphreys, Don Jeffrey, and Elbert Lin saved the session from disaster (nothing could save it from my dad jokes). It turns out that a…
Over the weekend, Official Friend of De Novo(TM) Ross Guberman posted a challenge on Twitter: Who could come up with a fresh way to convey the idea that opposing counsel is on a fishing expedition? Challenge for a rainy Sunday: What's a fresh (and legitimate) way to get across the idea that "Plaintiff is on a fishing expedition" without that so-overused-that-it's-now-a-joke phrase? — Ross Guberman (@legalwritingpro) September 9, 2018 This tweet yielded some fun responses,…
We spent last post complaining about the difficulty of landing an assignment of error in the Goldilocks Zone. When I bring this up in real life, the response is usually that the Court solved this problem with Findlay v. Commonwealth, 287 Va. 111, 752 S.E.2d 868 (2014) . I disagree, for at least three reasons. But first, a little background: In Findlay, the defendant was convicted of possessing child pornography. He sought review in the Court of…
Binding assignments of error are a disaster, which is probably why Virginia is one of only eight states that still require them.* By way of background, Rule 5:17(c)(1) requires that Under a heading entitled “Assignments of Error,” the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely, or the specific existing case law that should be overturned, extended, modified, or…
So we decided to send Jack to sleepover camp this year. You remember Jack, right? Well, he’ a little older now. This is the first year that he’s eligible for camp, and he’s really been looking forward to it. We’ve been sending him letters every day, and we include the sports section from the local paper so he can keep up with the World Cup. On Friday, about a week after dropping him off, we…
I was lucky enough to spend the weekend in lovely Williamsburg, Virginia, home to this year’s VTLA annual convention. The highlights of the convention included (1) Justice Mims’s interview of Anne Marie Slaughter, (2) Anne Marie Slaughter’s brother‘s interview of Chief Justice Lemons, and (3) Kenneth Polite‘s talk on the power of the legal profession. All were full of moments poignant and profound. Are we going to share any of them? You…