At the VTLA’s annual meeting earlier this month, Kyle McNew moderated an appellate panel featuring Justice Mann and Judges Malveaux and Ortiz. High-level takeaways: Letting Judge Ortiz respond to a moderator opens the door for some quality shithousing. This probably only works with a quick moderator like Kyle, but more bar associations should try it. Judge Malveaux explained that in the CAV, a substantive motion will be decided by the same panel that ultimately hears your case. That makes sense, but I was never clear how motions practice works. Judge Ortiz said that the amount of time between ..read more

Jesse Wegman has an editorial in The New York Times about the challenges of teaching constitutional law in the current environment. This should give you a flavor of the proceedings: Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the&nb ..read more

I am an introvert and a try-hard. This makes me a lot of fun at parties. (Just kidding I never get invited to parties.) It also means that I encounter most of the words I see in print as opposed to real life. So I’m not always 100% sure about how they are supposed to sound. And then sometimes I look words up, only to learn that while I may not know how these words are supposed to sound, they are definitely not supposed to sound like that. With all that in mind, here is a list of words that I am afraid to say at oral argument because I don’t want to sound like a cretin: Amicus. A-MEE-kus, a-MI ..read more

The Court of Appeals of Virginia handed down its opinion in Ho v. Rahman today. Ho is an adverse-possession case and a published opinion, but I’m not so interested in the merits. I’m much more interested in the opinion’s treatment of a preservation question. As a threshold matter, the court addressed the appellee’s claim that the appellant had waived her appeal by signing the trial court’s order “Seen and Objection.” On the appellee’s account, this was insufficient to preserve a point for appeal under Rule 5A:18. The court summarized its case law, on this point, which generally holds that endo ..read more

Last week, the VBA’s appellate practice section put on a top-notch panel on perspectives in appellate advocacy. The panelists were Judge Friedman of the CAV, Erin Ashwell, and Matt McGuire, with Kendall Burchard moderating. Judge Friedman, in particular, stressed a few themes: Competition for judges’ time and attention. Judge Friedman reported that the CAV has 49 panels set for 2024, not counting en bancs, standing panels, and bond reviews. Each panel handles about 18 cases, give or take. That is a seriously heavy workload for each judge. So they greatly appreciate clear and direct writing. W ..read more

Christmas is always a super-stressful time of year for me, but not for any of the normal reasons that plague sane people. My problem is that the people who know and love me tend to get me books–which makes sense, because books and bicycles are basically the twin obsessions of my sad life. The trouble comes when I get a bunch of books during the last week of the year. Receiving and opening them is pure joy. My friends and family like me! They get me! But this elation soon descends into pure terror. The piles of books feel usher in the creeping dread of unfinished homework over a holiday break ..read more

Happy Thanksgiving! In no particular order, here are a few things I’ve been enjoying: Hyemin Han’s play-by-play of the D.C. Circuit argument in the Trump gag order case. Credit to longtime De Novo favorite Judge Millett for this hypo: ““Okay. But he can’t say that that person is an ‘un-truth speaker’?” Jeannie Suk Gersen’s take on SCOTUS’s Code of Conduct: “It is not a set of rules designed to redress past ethical breaches and prevent future ones but rather a defense brief arguing that there have been no ethical breaches to redress and prevent.” It was also fun to watch Brother Emmert’s enthu ..read more

A friend recently pointed out something that should have been obvious, but wasn’t. Like many other appellate courts, the Court of Appeals of Virginia holds its decision conference immediately after oral argument. I knew this, but I don’t think I appreciated what it meant until we started taking about it. Obviously, appellate judges are well-prepared. That’s why we don’t waste their time going over background information, and that’s why they have so many questions. So very many questions. But I’ve never really spent much time thinking about the psychology of that dynamic from the judge’s perspe ..read more

Over the last two months, the Court of Appeals has issued almost 160 opinions. The vast majority of those opinions are unpublished; the court is issuing about 7 unpublished opinions for every published opinion. So the default rule seems to not to publish opinions. This is interesting for several reasons. First, Code § 17.1-413(A) says that “[o]pinions designated by the Court of Appeals as having precedential value or as otherwise having significance for the law or legal system shall be expeditiously reported in separate Court of Appeals Reports . . . .” (That said, even unpublished opinio ..read more

Every Tuesday, the Court of Appeals hands down its published and unpublished opinions. And every Tuesday, those unpublished opinions seem to include a least a case or two where the court summarily affirms because the appellant has failed to ensure that the record includes a transcript or written statement of facts. Now, some of these results I can understand. If you’re appealing an evidentiary ruling without a transcript or written statement, then good luck proving that the trial court abused its discretion. And I suspect that the CAV sees a healthy number of hopeless pro se appeals in which a ..read more