Affirm, Reverse, Vacate, and Remand
Over at SCOTUSblog, Stephen Wermiel has a short post about judgments and mandates, and in particular the difference between reversing and vacating a judgment. By statute, SCOTUS has the power to the...
View ArticleArguing from Someone Else’s Brief
From time to time, we appellate lawyers may find ourselves in the position of arguing from someone else’s brief. Now, to be clear: The brief itself may be effective. It may even be good. But it’s not...
View ArticleMary Washington Healthcare v. Costello–CAV on Interlocutory-Appeal...
In Mary Washington Healthcare v. Costello, the CAV holds that a trial court certifying an issue for interlocutory appeal does not have to explicitly make the four-part finding laid out in Code §...
View ArticleGaliotos v. Galiotos (again)
The Court of Appeals handed down its ruling in the latest episode in the ongoing Galiotos saga earlier this week. I can’t really improve on the summary that the panel provides in its introduction:...
View ArticleUsing AI to Prep for Oral Argument
I’ve been experimenting with using ChatGPT to prep for oral argument. I always do the thinking myself first, putting together my silly lists, outlines, and tough questions. But then I’ve been using AI...
View ArticleHow Much Time Should You Reserve for Rebuttal in the CAV?
Obviously, the answer is going to vary by case.But as a default, I’ve settled on four minutes. Here’s why: In my experience, most panels that eat into your rebuttal time in your opening give that time...
View ArticleWhat do you do when a document is missing from the record?
Every appellate CLE stresses the importance of reviewing the record as soon as possible, particularly if you are the appellant. This is especially important in state court because (1) you run up...
View Article“Plain Error” versus “Fundamental Error”
I was reading through CA4’s recent opinion in Le Doux v. Western Express, Inc., ___ F.4th ___ (4th Cir. 2025), when I came across this footnote: Western Express and Worthy contend that we review the...
View ArticleLlewellyn v. Fechtel: Do you think 8,984 RFAs are enough?
Sometimes I worry that AI is going to replace lawyers. And then the universe hands me an opinion like Llewellyn v. Fechtel, showing that nothing that able to pass the Turing test could ever do our...
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SB999
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:...
View ArticleTrial Court Cannot Require Transcript as Prerequisite to Appeal
You hate to see it: In Wolfe v. Wolfe, the ex husband filed a pro se motion to modify child support. The court granted the motion in part and denied it in part. In its final order, it said: “Should...
View ArticleBaez v. Commonwealth–Trial Court Did Not Abuse its Discretion by Admitting...
SCOVA just handed down Baez v. Commonwealth, holding that the trial court did not abuse its discretion by admitting police body-cam footage. While some of the analysis is context-specific–commercial...
View ArticleRebh v. County Board of Arlington County
SCOVA handed down a fun published order recently in a local-government case, Rebh v. County Board of Arlington County. I know, right? But bear with me. Rebh and a bunch of landowners challenged a...
View Article“The document speaks for itself.”
If you’ve practiced law for more than five minutes, you’ve received a responsive pleading or set of discovery responses telling you that x or y document “speaks for itself.” This claim usually answers...
View ArticleYou missed the deadline for filing a petition for appeal in an interlocutory...
I’m always amazed at how people find new ways to lose appeals. Longtime friend of De Novo Monica Monday showed me a new one earlier this year: In two interlocutory appeals she was resisting, the...
View ArticleCAV Reverses Largest Verdict in Virginia History
On Tuesday, the CAV handed down its opinion in Pegasystems Inc. v. Appian Corporation, reversing the largest jury verdict in Virginia history. Pegasystems is a trade-secrets case. The jury tagged Pegas...
View ArticleJustice Kagan’s Remarks at Ninth Circuit Judicial Conference
Justice Kagan gave a fairly candid interview at the Ninth Circuit Judicial Conference on July 25. She touched on a code of conduct, separate opinions, collegiality, reading dissents from the bench,...
View ArticlePresident Biden Outlines Proposed SCOTUS Reforms
Following up our last post, President Biden discussed his proposed SCOTUS reforms in an op-ed in the Washington Post today–basically, term limits, a code of conduct with an enforcement mechanism, and a...
View ArticleWashington Post: Biden to Announce Support for SCOTUS Reforms
From today’s story in the Post: President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for...
View ArticleClaude 3 does SCOTUS
Adam Unikowsky has a fascinating Substack article about running SCOTUS briefs through Claude 3 (h/t Tyler Cowen at Marginal Revolution). Here’s a taste: . . . I decided to do a little more empirical...
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