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Description
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This book is an essential resource for every trial lawyer. It includes new appendices listing cases
related to preserving issues for appeal and appellate court consideration of arguments not made
in the trial court and a discussion of electronic service in the United States Court of Appeals.
Win or lose, you have to be prepared for an appeal.
This book was published in 2008. This book is
available in both print and CD-ROM formats, and the entire book and
some individual chapters are also available for immediate download. Please see the
information on electronic books
before selecting the CD-ROM or download option.
Editor: Hon. R. Terrence Ney
Authors:
| Kenneth C. Bass, III |
Hon. Cynthia D. Kinser |
| Broderick C. Dunn |
Benjamin V. Madison, III |
| Michael P. Falzone |
Stephen R. McCollough |
| Henry St. John Fitzgerald |
Hon. J. Harvie Wilkinson III |
| Frank K. Friedman |
W. Clark Williams, Jr. |
Copyright © 2008 Virginia Law Foundation. All rights reserved.
TABLE OF CONTENTS
CHAPTER 1: THE VIRGINIA JUDICIAL SYSTEM: ORGANIZATION AND
STRUCTURE
1.1 INTRODUCTION
1.2 SUPREME COURT OF VIRGINIA
1.201 In General
1.202 Original Jurisdiction
1.203 Appellate Jurisdiction
1.3 COURT OF APPEALS OF VIRGINIA
1.301 In General
1.302 Original Jurisdiction
1.303 Appellate Jurisdiction
1.4 CIRCUIT COURTS
1.401 In General
1.402 Original Jurisdiction
1.403 Appellate Jurisdiction
1.5 DISTRICT COURTS
1.501 In General
1.502 General District Courts
1.503 Juvenile and Domestic Relations District Courts
CHAPTER 2: APPEALS TO THE COURT OF APPEALS AND SUPREME
COURT OF VIRGINIA
2.1 INTRODUCTION
2.2 PROTECTING THE RECORD IN THE TRIAL COURT AND ASSIGNING ERROR IN
THE APPELLATE COURT
2.201 Objections in the Lower Court and Assignments of Error on
Appeal
2.202 Trial Motions and Proffers of Evidence
2.203 Proffer of Excluded Evidence
2.3 PREREQUISITES TO APPEAL
2.301 Appellate Jurisdiction
2.302 Amount in Controversy
2.303 Final Judgment
2.304 Interlocutory Orders
2.305 Orders Sustaining Demurrers
2.306 Security for Appeal
2.4 MECHANICS OF THE APPEAL
2.401 Appeal to the Virginia Court of Appeals
2.402 Appeal to the Supreme Court of Virginia from the Court of
Appeals
2.403 Appeal to the Supreme Court of Virginia from Circuit
Court
2.5 CAPITAL SENTENCE APPEALS
2.501 Automatic Review by Supreme Court
2.502 Scope of Review
2.6 COMMONWEALTH'S PRETRIAL APPEAL
2.601 Pretrial Review by Court of Appeals
2.602 Limited Issues
2.603 Petitioning for Appeal
2.604 Procedure for Awarded Appeal
2.7 CONCLUSION
APPENDIX 2-1 TABLES OF FILINGS FOR APPEALS FROM CIRCUIT COURT TO
COURT OF APPEALS AND SUPREME COURT OF VIRGINIA AND FORM AND
NUMBER OF DOCUMENTS FOR FILING
APPENDIX 2-2 CASES RELATED TO PRESERVING ISSUES FOR APPEAL
APPENDIX 2-3 CASES RELATED TO CONSIDERATION OF ARGUMENTS NOT MADE
TO THE TRIAL COURT
CHAPTER 3: APPEALS TO THE UNITED STATES COURT OF
APPEALS
3.1 INTRODUCTION
3.101 Scope of Chapter
3.102 Rules of Court
3.103 Filing and Service
3.104 Time Computation
3.105 Circuit Mediation Conferences
3.2 PROTECTING THE RECORD IN THE TRIAL COURT
3.201 Objections
3.202 Motion for Judgment as a Matter of Law
3.203 Renewing the Motion for Judgment After Trial
3.204 Bench Conferences
3.3 PREREQUISITES TO APPEAL
3.301 Appeals by Right
3.302 Appeals by Permission
3.4 PERFECTING THE APPEAL
3.401 Appeals of Right
3.402 Appeals by Permission
3.403 Appeals of Interlocutory Orders
3.404 Bankruptcy Appeals
3.405 United States Tax Court Appeals
3.406 Stay or Injunction Pending Appeal
3.407 Release in Criminal Cases
3.5 THE RECORD ON APPEAL
3.501 Contents of Record
3.502 Statement of Issues and Statement of Evidence
3.503 Statement in Lieu of Record
3.504 Parties Differing on Record
3.505 Transcript
3.6 TRANSMISSION OF THE RECORD
3.601 In General
3.602 Exceptions
3.7 DISCLOSURE STATEMENT
3.8 APPENDIX
3.9 BRIEFS
3.901 Number of Copies and Time for Filing in Civil Cases
3.902 Time for Filing
3.903 Certificate of Service
3.904 Covers
3.905 Citation of Supplemental Authority
3.10 WRITS OF MANDAMUS AND PROHIBITION
3.1001 In General
3.1002 Procedures
3.11 PROCEEDINGS IN FORMA PAUPERIS
3.12 ORAL ARGUMENT
3.13 MOTIONS
3.14 FORMS
3.15 CONCLUSION
APPENDIX 3-1 LOCAL RULES AND INTERNAL OPERATING PROCEDURES: UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
APPENDIX 3-2 GUIDELINES FOR PREPARATION OF APPELLATE TRANSCRIPTS IN
THE FOURTH CIRCUIT
APPENDIX 3-3 SAMPLE FORMS FOR APPEALS IN THE FOURTH CIRCUIT
CHAPTER 4: EXTRAORDINARY WRITS AND UNUSUAL APPEALS--STATE
AND FEDERAL COURTS
PART ONE--VIRGINIA PROCEDURE
4.1 BACKGROUND
4.2 JURISDICTION
4.201 In General
4.202 Habeas Corpus Involving the Death Sentence
4.203 Petition for Writ of Actual Innocence
4.3 MANDAMUS AND PROHIBITION
4.301 In General
4.302 Frequency of Use
4.303 Discretionary Versus Ministerial Acts
4.304 Use Where Lower Courts Fail to Act
4.305 Use by Media
4.306 Use in Matters Incident to Prosecution of a Cause
4.4 APPLICATION FOR WRIT
4.401 Supreme Court Rule 5:7
4.402 Requirements
4.403 Ordering Further Proceedings
4.5 APPEALS OF EXTRAORDINARY WRITS ISSUED BY LOWER COURTS
4.501 Right of Appeal
4.502 Suspension of Proceedings Where Writ of Prohibition Applied
For
4.503 Appeal from Habeas Corpus
4.504 Quo Warranto
4.6 APPEALS OF INTERLOCUTORY DECREES AND INJUNCTIONS
4.601 Interlocutory Decrees
4.602 Injunctions
PART TWO--FEDERAL PROCEDURE
4.7 JURISDICTION
4.8 GUIDELINES FOR USE
4.9 INTERLOCUTORY REVIEW
4.10 CRIMINAL PROCEEDINGS
4.11 APPLICATION FOR WRIT
4.1101 Procedure
4.1102 Habeas Corpus
4.12 APPEAL OF EXTRAORDINARY WRITS ISSUED BY LOWER COURTS
4.1201 Final Judgment Rule
4.1202 Habeas Corpus
4.13 APPEAL FROM INTERLOCUTORY DECREES
4.1301 Appealable Decisions
4.1302 Final Versus Interlocutory Decrees
4.1303 Common Law Exceptions to the Rule of Finality
4.14 APPEALS BY PERMISSION
4.1401 In General
4.1402 Certification
4.1403 Petition
4.1404 Discretion of Court of Appeals
4.1405 Case Law
4.1406 Relief
4.1407 Scope of Review
4.15 SUMMARY
PART THREE--CERTIFICATION OF QUESTIONS OF LAW
TO THE SUPREME COURT OF VIRGINIA
4.16 JURISDICTION
4.17 CERTIFICATION PROCEDURES
4.1701 Discretion of Court
4.1702 Principles
4.1703 Who May Invoke
4.1704 Procedure
4.1705 Survey of Cases
CHAPTER 5: APPELLATE BRIEF WRITING
5.1 INTRODUCTION
5.2 COMMANDMENT ONE: APPEAL ONLY THE CASE THAT MERITS APPEAL
5.201 Selecting the Case to Appeal
5.202 Rethink the Case
5.203 Appeal to Intermediate Court Versus Court of Last
Resort
5.204 Planning the Appeal
5.205 Updating and Re-evaluating Research
5.206 Why All This Effort?
5.3 COMMANDMENT TWO: PUT YOURSELF IN THE POSITION OF THE
APPELLATE JUDGES
5.301 The Golden Rule
5.302 Qualities of Good Brief Writing
5.303 Matters of Style
5.4 COMMANDMENT THREE: EVERY PART OF A BRIEF IS IMPORTANT AND
DESERVES CAREFUL ATTENTION
5.401 Parts of a Brief
5.402 Mechanics of Brief Writing
5.5 COMMANDMENT FOUR: GIVE THE COURT THE HISTORY AND NATURE OF
THE CASE WITHOUT CONFUSING A STATEMENT OF THE CASE WITH A
STATEMENT OF FACTS OR ARGUMENT
5.501 What Is the "Statement of the Case?"
5.502 Set the Stage for the Statement of Issues
5.6 COMMANDMENT FIVE: SELECT A LIMITED NUMBER OF ISSUES FOR APPEAL
AND STATE THEM IN TERMS OF THE CONCRETE FACTS OF YOUR CASE SO AS
TO SUGGEST THE RESULTS DESIRED
5.601 In General
5.602 Finalize Phrasing of the Issues Last
5.603 Avoid Over-Simplified Argument
5.604 State Your Position Accurately
5.605 Discuss Issues in Order of Strength
5.606 Avoid Arguing Non-Justifiable Issues
5.607 Tie Your Statement of Legal Issues to Your Specific
Case
5.608 Common Ground Necessary for Opposing Briefs
5.609 Ascertain and State the Applicable Standard of Appellate
Review
5.610 Criteria for a Properly Phrased Issue
5.611 Correcting Opponent's Misstatement of the Issue
5.612 The Higher the Court, the More Abstract the Statement of
the Issue
5.613 Limit the Number of Issues
5.7 COMMANDMENT SIX: STATE THE FACTS PERSUASIVELY FROM YOUR POINT
OF VIEW BUT WITH COMPLETE FIDELITY TO THE RECORD
5.701 Importance of the Statement of Facts
5.702 Discard Extraneous Facts
5.703 Do Not Overstate the Facts
5.704 Refer to Evidence Favorable to the Opposing Party
5.705 Organize and Summarize Information
5.706 Avoid Repetition
5.707 Integrate Facts into a Coherent Scheme
5.708 Discuss the Uncontested Facts First
5.709 Emphasize Your Adversary's Weaknesses with
Quotations
5.710 Note Appendix Page Numbers
5.711 Stress the Justice of Your Position Without Over-Reliance on
Precedent
5.8 COMMANDMENT SEVEN: ARGUE YOUR POINTS IN ORDER OF STRENGTH
AND ARGUE VIGOROUSLY WITH COMPLETE FIDELITY TO THE RECORD
5.801 The Argument
5.802 Authorities
5.9 COMMANDMENT EIGHT: REVEAL AND COPE WITH ADVERSE AUTHORITY AS
REQUIRED BY THE CANONS OF ETHICS AND COMMON SENSE
5.901 In General
5.902 Practical Considerations
5.903 Ethical Considerations
5.10 COMMANDMENT NINE: TRY TO WRITE IN AN INTERESTING AND MIND-
CATCHING WAY THAT IS CLEAR AND UNDERSTANDABLE
5.1001 Devices for Emphasis
5.1002 Elements of Style
5.1003 Strive for Clarity
5.11 COMMANDMENT TEN: SUM UP YOUR ARGUMENTS AND TELL THE COURT
THE PRECISE RELIEF SOUGHT
5.1101 Conclusion Is Not a Mere Formality
5.1102 Summarize Key Points Precisely
5.1103 State the Relief Sought
5.1104 Examples
APPENDIX 5-1 BIBLIOGRAPHY
CHAPTER 6: MOTIONS PRACTICE IN STATE AND FEDERAL
COURTS
6.1 INTRODUCTION
6.2 MAINTAINING THE STATUS QUO DURING THE APPEAL
6.3 TIME AND SPACE
6.301 Extending or Accelerating Time
6.302 Asking for Additional Space
6.4 DISPOSITIVE MOTIONS
6.5 CURING PROBLEMS WITH THE RECORD
6.6 SUPPLEMENTAL AUTHORITY
6.7 RECONSIDERATION
6.701 Petition Stage, State Court
6.702 Reconsideration or en Banc Review After a Decision on the
Merits
6.703 Petition for Panel Rehearing and Rehearing en Banc in the
Fourth Circuit
6.8 GENERAL REQUIREMENTS
6.801 State Practice
6.802 Fourth Circuit
CHAPTER 7: EFFECTIVE ORAL ARGUMENT
7.1 INTRODUCTION
7.2 IMPORTANCE OF APPELLATE ORAL ARGUMENT
7.201 In General
7.202 What the Experts Say
7.203 The Nature of True Oral Argument
7.3 PREPARATION
7.301 Need for Preparation
7.302 Oral Argument as "Clarification"
7.303 Identifying Issues
7.304 Tools of the Appellate Advocate
7.305 Mastering the Law
7.306 Mastering the Facts
7.4 FASHIONING THE ORAL ARGUMENT
7.401 Essential Elements
7.402 Selecting the Points to Argue Orally
7.403 The Factual Statement
7.404 The Body of the Argument
7.405 Need to Polish and Condense the Oral Argument
7.5 PRACTICING THE ARGUMENT
7.501 In General
7.502 Benefits of Practicing
7.503 Use of Recording Equipment
7.6 WRITTEN OUTLINE AND NOTES
7.601 Always Use Lectern Notes
7.602 Do Not Write Out Your Speech
7.603 Use a Topical Outline
7.604 Have a Time Schedule
7.605 References to the Record
7.606 Use of Charts
7.607 Prepare Rebuttal Notes
7.7 PRESENTATION
7.701 Travel Arrangements
7.702 Arrival at the Courthouse
7.703 Leave Your Client at Home
7.704 Physical Arrangements
7.705 Do Not Divide the Argument Except for the Most Compelling
Reasons
7.706 Fundamentals of Delivery of an Oral Argument
7.707 Handling Questions
7.708 Rebuttal
7.709 Examples
7.8 MISCELLANEOUS MATTERS
7.801 Petition for Appeal
7.802 Argument by Conference Telephone Call
7.803 Waiver of Oral Argument by Filing a Reply Brief
7.9 CONCLUSION
APPENDIX 7-1 BIBLIOGRAPHY (with Comments)
APPENDIX 7-2 TOPICAL OUTLINE
CHAPTER 8: SOME OBSERVATIONS BY THE JUDGES
8.1 INTRODUCTION (by the Honorable J. Harvie Wilkinson III)
8.2 APPELLATE PRACTICE IN THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT (by the late Judge Harrison L. Winter)
8.201 Summary Dispositions
8.202 Argued Cases
8.203 Rebuttal
8.204 Importance of Argument
8.3 APPELLATE PRACTICE IN THE SUPREME COURT OF VIRGINIA (by the
Honorable Cynthia D. Kinser)
8.301 In General
8.302 Appeal-Related Actions at Trial
8.303 Bringing the Appeal
8.304 Petitioning for Appeal
8.305 Written Material
8.306 Oral Presentations
8.4 FINAL OBSERVATIONS (by the Honorable R. Terrence Ney)
8.401 In General
8.402 Common Mistakes
8.403 In Conclusion
TABLE OF AUTHORITIES
INDEX
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