I recently had the pleasure of presenting an overview of Virginia’s appellate process at an all-day CLE program offered by Virginia CLE, which served as a crash course in appellate advocacy and process. The topics also covered effective oral argument and legal writing, criminal appeals, standards of review, a panel discussion of clerk operations at each of the three appellate courts in Virginia, and a panel discussion by Judges Raphael and Lorish (Court of Appeals of Virginia), Justice McCullough (Supreme Court of Virginia), and Judge Heytens (United States Court of Appeals for the 4th Circuit). We finished with a rapid-fire panel of all the faculty offering brief tips on a wide range of appellate topics and resources. It was great fun, and I hope Virginia CLE continues to offer the program in the future and that it continues to be as well attended as this one was.
The occasion reminded me that my own Resource Dump may be of some use. So, as a (hopefully) useful one-stop resource, I offer here a roundup of various appellate topics I have addressed in recent CLEs and writing that may help those wading into appellate matters for the first time.
Appellate Skills and Needs at Trial. What can appellate counsel do to help you at trial? Or if you are preparing for trial without one, how can you bring an appellate lens to your case to prepare it for appeal? I addressed the role of embedded appellate counsel in the Virginia Lawyer here.
Preservation. The holy grail of appellate practice, preservation concepts and rules are critical, and there are many great resources out there. Here’s my 2022 contribution where I captured the concepts of preservation that help make sense of the specific rules (slide deck and written materials).
About the Record. Appellate review is limited to the record. If it’s not in there, it doesn’t exist, so completing it is a critically important—and early—task in the life of your appeal. I wrote a short primer on the record and its role here.
Assigning Error. Assignments of error are “in the nature of a pleading” and are the “analytical boundaries” of your appeal. Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., 293 Va. 113, 122 (2017). Getting them right, then, is a must. I offered my tips on assigning error in the VBA Journal here.
Writing for the Digital Reader. Most appellate judges these days read briefs on a digital device. And they read a lot of briefs. How should that change the way you write? I addressed that in the VBA Journal here.
Oral argument. There are a lot of great resources out there. Under-appreciated, though, is the publicly-available oral arguments from the courts in which you will practice. The Court of Appeals of Virginia, Supreme Court of Virginia, United States Court of Appeals for the Fourth Circuit (and of course, SCOTUS) all make oral arguments available. Find a good oral advocate, or an interesting case, or a case in the same area of law as yours, and listen on your drive/walk/run. Embrace your inner nerd!
Amicus Practice. I will update this post when it is published, but this fall the VBA Journal will publish my article regarding the strategy and process of amicus briefing. In the meantime, call me 😉
Appellate advocacy generally. For easy accessibility and usefulness, I always direct people to Bryan Garner’s interviews with the justices of the Supreme Court of the United States and William & Mary Law School’s interviews with the justice of the Supreme Court of Virginia. From oral argument to legal writing, to how appellate judges decide cases, these interviews are a great resource.
