20 April 2006

Further Impressions Of the Virginia Court of Appeals

Okay, now that ya'll have had a day to see what I could remember of my actual argument, I thought I'd talk about some of the peripherals.

1) The Time Set:

A few weeks prior to the argument date I got a letter which asked me to sign it and send it back to the Court stating that I was to be at court 10:00 a.m. I signed it and my secretary mailed it back. A week or so later I was in the office when a clerk from the Court called and said the letter had arrived unsigned. I faxed a signed copy again and it still said 10:00. Over the weekend, being at home and little paranoid, I got on the Court of Appeals website and downloaded a pdf of the docket. It said that all arguments are docketed at 9:00 and that the order of argument could be switched without notice. I came to court at 9:00. Consequently, I got to watch seven 1/2 hour arguments before mine.

2) The Court Building:

The Court of Appeals in Richmond isn't exactly intimidating. It is located on the street behind the Supreme Court. Unlike the Supreme Court, if you didn't know it was there you'd never notice it. It's just another gray building. There's a glass door leading to a hall with the ubiquitous capitol police officer and metal detector. A short way past the officer's desk the hall dead ends at the rest rooms. Just before that, there's another short hall off to the left which dead ends at the courtroom.

3) The Courtroom:

I must say, I was impressed with the courtroom. It was obviously built to be practical and effective rather than to impress the public. The courtroom was maybe a third the size of most courtrooms with three or four gallery rows. In front of the bar there were two plain tables - the one on the left labeled appellee and the one on the right appellant. Between the tables was a nice big podium. The bench was facing all this and slightly elevated, but not high enough to lord over people or make the lawyers crane their necks in order to look up at the judges. Everything in the room was light instead of the impressive dark stained wood you see elsewhere and the only ornamentation in the room was the - I suppose mandatory - Virginia seal on the wall behind the judges and painted portraits of the retired appellate court judges on the back wall (where I didn't even notice them until the court took a break and I left to use the facilities). The only complaint I have is that the podium was a little too high for a 5'5" person (me) and if that's the worst complaint I can think of it's a pretty good courtroom.

4) Other Arguments:

Any question I had as to whether my argument should have been in front of the court lessened when I heard some of the other arguments. One appellant was arguing that her client wasn't guilty of attempting escape because he had only gotten out of the building and thru one fence and not through the three others between him and escape (to be fair, it was an assigned case which had been tried below pro se). Another was arguing that his client's case should be overturned because it was unproven that the crime occurred in Virginia. The only thing proven was that it happened on Chamberlayne Avenue (a major thoroughfare in Richmond, Va - hours from any other State).

5) The Postmortem:

So, I'm sitting around talking with another attorney about my argument who has read yesterday's blog entry and he opines that he doesn't see how, since I objected at every opportunity, they could rule against my client - with one possible exception:
Lawyer Guy: "I guess they could make a case that you had notice and should have noted an objection from the moment you were sent the order setting the date."

Me: "Nobody ever sent me that order or notified me of the date. I have to get the dates myself and all I'm told is the date."

Lawyer Guy: "You told the Court of Appeals that, didn't you?"

Me: "OMG"
Then it hits me. They actually thought I had seen that order. I had everything in my file. The local prosecutor has an open file policy, so I had everything in his file. I had the court date. I had no reason to go combing thru the court's file for that order. They think I saw it before court. AAaaarrrrggg!! -expletive deleted- -expletive deleted- -expletive deleted-

Aren't postmortems so much fun? You'd think we'd all learn better in law school. But no, we keep doing it to ourselves. I think it's some sort of mental condition particular to lawyers: lawyerus obsessivus masichistus.


Anonymous said...

Maybe you should suggest to the Court of Appeals that before a new justice is sworn in to the Ct. of Appeals, s/he should do a court appointed criminal case to see how it works in the real world.

Frank Feibelman

Ken Lammers said...

Actually, I'd be thrilled if there was a requirement that someone had to serve at least 3 years as a defense attorney and 3 years as a prosecutor before they went on the appellate bench. I think it would give an appropriate sense of perspective. However, it's not going to happen.

Anonymous said...

I felt much the same way after my first appellate argument. This quote from Robert Jackson, a former Solicitor General and Associate Justice of the Supreme Court, may make you feel better (it did me):

"I used to say that as Solicitor General, I made three arguments in every
case. First came the one that I planned, as I thought - logical, coherent,
complete. Second was the one actually presented - interrupted, incoherent,
disjointed, disappointing. The third was the utterly devastating argument
that I thought of after going to bed that night."

Steve Minor said...

In a civil case, of course, you would have seen the order.

Why doesn't Rule 1:13 apply to orders in criminal cases? I have heard judges say that it does not.

That would have eliminated any ambiguity about your objections or the issue of waiver, if you had to endorse the order (with or without your objections) before it was entered.

Sometimes, in civil cases, the objections convince the judge not to sign the order.