Appellate Practice - Virginia and Federal Courts

Appellate Practice - Virginia and Federal Courts
Publication Date: May 2016
Available Formats: Print (473 pages, softcover, 1 volume)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
Product #: 896

Information

Content Highlights:
  • The Virginia Judicial System
  • Appeals to the Court of Appeals and Supreme Court of Virginia
  • Appeals to the United States Court of Appeals
  • Extraordinary Writs and Unusual Appeals—State and Federal Courts
  • Appellate Brief Writing
  • Motions Practice in State and Federal Courts
  • Effective Oral Argument
  • Observations by Judges

Win or lose, you have to be prepared for an appeal. Appellate Practice — Virginia and Federal Courts addresses all of the needs of an appellate practitioner—from drafting persuasive briefs and creating compelling oral arguments, to federal and state court procedure, e-filing requirements, and the increasingly dangerous minefield of preservation of issues for appeal.

The 2016 edition includes:
  • Three “real-world” examples of appellate briefs submitted to Virginia’s appellate courts
  • Additional practice pointers as well as warnings about common pitfalls, such as failure to preserve errors
  • Updates to summarizing steps and requirements in Virginia’s appellate courts
  • Coverage of recent updates to state and federal rules of court, statutes, and case law

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Attorney Fees and Sanctions - Virginia and Federal Courts

The Law of Damages in Virginia

The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide

The Virginia Arbitration Roadmap

 

Table of Contents

CHAPTER LIST

1. The Virginia Judicial System: Organization And Structure

2. Appeals To The Court Of Appeals And Supreme Court Of Virginia

3. Appeals To The United States Court Of Appeals

4. Extraordinary Writs And Unusual Appeals—State And Federal Courts

5. Appellate Brief Writing

6. Motions Practice In State And Federal Courts

7. Effective Oral Argument

8. Some Observations By The Judges


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 En Banc Hearings
    1.303 Original Jurisdiction
    1.304 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: SUMMARY OF STEPS IN APPEALS

APPENDIX 2-2: ILLUSTRATIVE ADDITIONAL CASES RELATED TO PRESERVING ISSUES FOR APPEAL

APPENDIX 2-3: ILLUSTRATIVE CASES RELATED TO CONSIDERATION OF ARGUMENTS NOT MADE TO THE TRIAL COURT

APPENDIX 2-4: STANDARDS OF REVIEW ON APPEAL—SOME EXAMPLES

CHAPTER 3: APPEALS TO THE UNITED STATES COURT OF APPEALS

3.1 INTRODUCTION
    3.101 Scope of Chapter
    3.102 Basic Practice Tips
    3.103 Clerk’s Office Generally
    3.104 Rules of Court Generally
    3.105 Filing and Service
    3.106 Time Computation
    3.107 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 Post-Trial Motion for Judgment
    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

3.6 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 in Criminal Cases
    3.903 Certificate of Service
    3.904 Covers
    3.905 Page and Word Limits
    3.906 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: FREQUENTLY ASKED QUESTIONS ABOUT APPELLATE MEDIATION IN THE FOURTH CIRCUIT

APPENDIX 3-2: FORMS

APPENDIX 3-3: SAMPLE NOTICE OF APPEAL

CHAPTER 4: EXTRAORDINARY WRITS AND UNUSUAL APPEALS—STATE AND FEDERAL COURTS

PART ONE—VIRGINIA PROCEDURE


4.1 BACKGROUND

4.2 HABEAS CORPUS
    4.201 In General
    4.202 Habeas Corpus in Death Sentence Cases

4.3 WRITS OF ACTUAL INNOCENCE
    4.301 Writs of Actual Innocence Based on Biological Evidence (Va. Code Title 19.2, Chapter 19.2)
    4.302 Writs of Actual Innocence Based on Nonbiological Evidence (Va. Code Title 19.2, Chapter 19.3)

4.4 MANDAMUS AND PROHIBITION
    4.401 In General
    4.402 Discretionary Versus Ministerial Acts
    4.403 The Virginia Freedom of Information Act (FOIA)
    4.404 Use of Extraordinary Writs in Lieu of Interlocutory Appeals

4.5 QUO WARRANTO

4.6 APPEALS OF EXTRAORDINARY WRITS ISSUED BY LOWER COURTS
    4.601 Right of Appeal
    4.602 Jurisdiction

4.7 APPEALS OF INTERLOCUTORY DECREES AND INJUNCTIONS
    4.701 In General
    4.702 Injunctions

PART TWO—FEDERAL PROCEDURE

4.8 BACKGROUND

4.9 INTERLOCUTORY AND EARLY APPEALS—JURISDICTION

4.10 INTERLOCUTORY APPEALS AS OF RIGHT—28 U.S.C. § 1292(A)
    4.1001 When Available
    4.1002 Timing and Procedure

4.11 DISCRETIONARY INTERLOCUTORY APPEALS—28 U.S.C. § 1292(B)
    4.1101 When Available
    4.1102 Procedure
    4.1103 Contents of the Petition
    4.1104 Additional Proceedings
    4.1105 Practice Pointers
    4.1106 Utility
    
4.12 THE COLLATERAL ORDER DOCTRINE
    4.1201 Source
    4.1202 Fourth Circuit Precedent
    4.1203 Utility

4.13 FEDERAL EXTRAORDINARY WRITS—JURISDICTION

4.14 MANDAMUS AND PROHIBITION
    4.1401 Mandamus—The Bauman Analysis
    4.1402 Mandamus—The Fourth Circuit’s Analysis
    4.1403 Prohibition
    4.1404 Utility
    4.1405 Procedure in the Court of Appeals
    4.1406 Procedure in the United State Supreme Court
    
4.15 HABEAS CORPUS

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 Nonjustifiable Issues
    5.607 Tie Your Statement of Legal Issues to Your Specific Case and Give the Court Enough Information to                     Understand Your Issue
    5.608 Common Ground Necessary for Opposing Briefs
    5.609 Ascertain and Use 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 Identify the Uncontested and Contested Facts
    5.709 Target Your Adversary’s Weaknesses
    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 A Brief’s Conclusion Is Not a Mere Formality
    5.1102 Summarize Key Points Precisely
    5.1103 State the Relief Sought
    5.1104 Examples

5.12 COMMANDMENT ELEVEN: WRITING IN THE AGE OF SCREENS
    5.1201 Things Change
    5.1202 Courts Are Going Paperless
    5.1203 The Challenge of Writing for the Screen Reader
    5.1204 Writing to Help the Skimmer Absorb and Retain Critical Information
    5.1205 This Is Not the End of Western Civilization, but It Is a Challenge

APPENDIX 5-1: SAMPLE PETITION FOR APPEAL

APPENDIX 5-2: SAMPLE PETITION FOR APPEAL

APPENDIX 5-3: SAMPLE OPENING BRIEF OF APPELLANT

APPENDIX 5-4: 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 Time or Expediting Review
    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 Reconsideration and en Banc Review in the Fourth Circuit.
    6.702 Petition Stage, State Court
    6.703 Reconsideration or en Banc Review After a Decision on the Merits in State Court

6.8 RECOVERING COSTS
    6.801 In General
    6.802 Fourth Circuit
    6.803 State Practice

6.9 FORMATTING REQUIREMENTS FOR MOTIONS
    6.901 Fourth Circuit
    6.902 State Practice
    
CHAPTER 7: EFFECTIVE ORAL ARGUMENT

7.1 INTRODUCTION

7.2 RULES OF APPELLATE ORAL ARGUMENT
    7.201 In General
    7.202 Mechanics

7.3 PREPARING AND DELIVERING EFFECTIVE ORAL ARGUMENT
    7.301 Preparation
    7.302 Beginning the Substantive Argument

7.4 TIME MANAGEMENT ISSUES

7.5 CONCLUSION

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 D. Arthur Kelsey)
    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 late Honorable R. Terrence Ney)
    8.401 In General
    8.402 Common Mistakes
    8.403 In Conclusion
    
TABLE OF AUTHORITIES

INDEX



Authors

Editors

L. Steven Emmert, Sykes, Bourdon, Ahern & Levy, P.C. / Virginia Beach (Expand/Collapse Bio)

L. Steven Emmert, co-editor and author of Chapter 7, practices with the Virginia Beach firm of Sykes, Bourdon, Ahern & Levy, P.C. He focuses his practice exclusively on appellate advocacy in the state and federal courts. Mr. Emmert is a frequent lecturer in Virginia and elsewhere on appellate topics, and maintains a free website devoted to appellate practice in Virginia at www.virginia-appeals.com. He is a member of the Virginia State Bar (Past Chair, Appellate Practice Committee), Virginia Beach and Federal Bar Associations, Virginia Bar Association (Founder and Past Chair, Appellate Practice Section), the Boyd-Graves Conference (Past Chair), Virginia Trial Lawyers Association, American Bar Association (Council of Appellate Lawyers), and Litigation Counsel of America. Mr. Emmert is admitted to practice in Virginia courts, United States District Courts for the Eastern and Western Districts of Virginia, and the Court Appeals for the Fourth Circuit. He received his undergraduate degree from Richmond College in 1979 and his J.D. from the University of Virginia School of Law in 1982.

Frank K. Friedman, Woods Rogers PLC / Roanoke (Expand/Collapse Bio)

Frank Friedman, co-editor and author of Chapter 5, is chairman of the Woods Rogers Appellate team. He has handled appeals across a broad spectrum of topics ranging from personal injury, property rights, labor and employment, to criminal, domestic, tax, products liability, and malpractice.

Mr. Friedman is currently serving as chair of the Appellate Practice Section of The Virginia Bar Association (VBA). He has served previously as the chair of the Board of Governors of the Litigation Section of the Virginia State Bar and chair of the Board of Editors of The Journal of Civil Litigation. He is a member of the VBA’s Boyd-Graves Conference and is past president of the Board of the Virginia Capital Representation Resource Center.

Mr. Friedman is a frequent speaker on appellate topics, including brief writing, oral argument, and waiver. Mr. Friedman was named one of the Top 100 Lawyers in Virginia by Virginia Super Lawyers magazine (2013-2016). His appellate work is also recognized in rankings by Best Lawyers in America and Virginia Business magazine’s “Legal Elite” list. He was named a “Leader in the Law” by Virginia Lawyers Weekly in 2015.

Authors

Erin Ashwell, Woods Rogers PLC / Roanoke (Expand/Collapse Bio)

Erin Ashwell, author of Chapter 1, is a principal at Woods Rogers PLC. Her practice focuses on appeals and civil litigation. Ms. Ashwell regularly practices in front of the Supreme Court of Virginia, the Court of Appeals of Virginia, as well as Virginia’s state and federal trial level courts. She is licensed to practice law in Virginia and California. Prior to joining Woods Rogers, Ms. Ashwell was a trial attorney for the United States Department of Justice, with cases throughout the western states. She also served as a pro se law clerk for the United States District Court for the Western District of Virginia and as a law clerk to the Hon. Michael F. Urbanski, then United States Magistrate Judge. Ms. Ashwell graduated magna cum laude from Harvard College and cum laude from Harvard Law School. Ms. Ashwell is on the board of trustees of the Boys & Girls Clubs of Southwest Virginia and the Roanoke Public Libraries Advisory Board and was previously president of the Roanoke Chapter of the Virginia Women Attorneys Association. Ms. Ashwell has been cited by Virginia Super Lawyers as a “Rising Star” and has earned the President’s Volunteer Service Award. She is one of Virginia Business magazine’s “Legal Elite.”

R. Johan Conrod Jr., Kaufman & Canoles, P.C. / Norfolk (Expand/Collapse Bio)

Johan Conrod, co-author of Chapter 3, is a member of Kaufman & Canoles, P.C., where he practices in the litigation and business tax practice groups. He handles commercial litigation matters, including insurance coverage disputes, tax disputes, business tort claims, § 1983 suits, media/defamation claims, shareholder disputes, and real property litigation. Mr. Conrod has been recognized as a “Rising Star” and “Super Lawyer” in Law & Politics (2007-2015) and also has been recognized in the Young Lawyer and Appellate categories of Virginia Business magazine’s “Legal Elite” (2005, 2007, 2009-2015). He began his career as a law clerk to the Honorable B. Waugh Crigler; United States District Court for the Western District of Virginia. He is a member of The Virginia Bar Association and the Norfolk-Portsmouth Bar Association and a former president of the Federal Bar Association, Tidewater Chapter. He is admitted to practice in Virginia state courts, the United States District Courts for the Eastern and Western Districts of Virginia, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court. Mr. Conrod received his bachelor’s degree from Liberty University and his J.D. from the University of Virginia School of Law, where he served on the Editorial Board and the Managing Board of the Virginia Law Review.

John D. Eure, Johnson, Ayers & Matthews, PLC / Roanoke (Expand/Collapse Bio)

John D. Eure, co-author of Chapter 4, is a member of the Roanoke law firm of Johnson, Ayers & Matthews, P.L.C. He is a member of the Virginia State Bar, The Virginia Bar Association, the Virginia Association of Defense Attorneys, and the American Bar Association. He chairs the Board of Editors of the Journal of Civil Litigation, a quarterly journal published by the VADA. He is an editor of A Guide to Legal Research in Virginia, published by Virginia CLE. Mr. Eure has lectured in continuing legal education seminars on appellate practice, legal writing, and insurance coverage matters and has lectured in the Roanoke City Public Schools on Shakespeare and on Restoration and Eighteenth Century British literature. He earned a B.A., magna cum laude, from Yale University and an M.A. and J.D. from the University of Virginia.

Hon. D. Arthur Kelsey, Supreme Court of Virginia (Expand/Collapse Bio)

Justice Kelsey, co-author of Chapter 8, serves on the Supreme Court of Virginia, after previously serving as an appellate judge on the Court of Appeals of Virginia and a trial judge in the Fifth Judicial Circuit of Virginia. Before entering public service, Justice Kelsey was a partner at Hunton & Williams. He graduated from William and Mary Law School in 1985 and from Old Dominion University in 1982.

Benjamin V. Madison, III, Regent University School of Law / Virginia Beach (Expand/Collapse Bio)

Benjamin V. Madison, III, author of Chapter 2, is Professor and Associate Dean of Curricular and Instructional Affairs at Regent University School of Law in Virginia Beach, where he teaches Appellate Advocacy, Civil Procedure, and Pretrial Practice and Procedure. Previously, Dean Madison was a partner in the law firm of Hunton & Williams and practiced on its Litigation, Intellectual Property, and Antitrust Team. Dean Madison received his B.A. degree from Randolph-Macon College in 1981, his M.A. degree from the College of William and Mary in 1982, and his J.D. degree from the Marshall-Wythe School of Law at the College of William and Mary in 1985. He served as a law clerk to the Honorable Walter E. Hoffman, Senior United States District Court Judge, from 1985 to 1986. Dean Madison is a pastpresident of the Tidewater Chapter of the Federal Bar Association. He also has been and continues to be a leading member of the James Kent American Inn of Court. Before and after becoming a full-time law professor, Dean Madison participated in over fifty Continuing Legal Education courses on a range of subjects, including Appellate Practice, Trial Practice, Federal Procedure, and Ethics. Dean Madison has recently published a casebook, Civil Procedure for All States, which breaks from the traditional legal textbook by following the recommendations of the 2007 Carnegie Institute Report on needed reforms in law school education. Professor Madison was recently honored as a fellow of the Educating Tomorrow’s Lawyers initiative, founded by Mr. William Sullivan, lead author of the 2007 Carnegie Report (http://iaals.du.edu/educating-tomorrows-lawyers/projects/resources/coursesyllabus-state-civil-procedure).

Hon. Stephen R. McCullough, Supreme Court of Virginia (Expand/Collapse Bio)

Judge Stephen R. McCullough, author of Chapter 6 and co-author of Chapter 8, is a Justice on the Supreme Court of Virginia. He was elected to the Supreme Court in 2016 and served as a Judge on the Court of Appeals of Virginia from 2011 to 2016. Before his appointment to the bench, he served in a number of roles in the Virginia Attorney General’s Office, including Opinions Counsel, Senior Appellate Counsel, and State Solicitor General. He clerked for the late Leroy R. Hassell, Sr., who later became Chief Justice of the Supreme Court of Virginia. Judge McCullough has litigated extensively in Virginia’s appellate courts, in the Fourth Circuit, and in the United States Supreme Court. In 2007, he was a United States Supreme Court Fellow with the National Association of Attorneys General. He has also served as an instructor at the T.C. Williams School of Law at the University of Richmond. Judge McCullough received his B.A., with high distinction, Phi Beta Kappa, from the University of Virginia and his J.D., cum laude, from the University of Richmond.

Lauren Tallent Rogers, Kaufman & Canoles, P.C. / Norfolk (Expand/Collapse Bio)

Lauren Tallent Rogers, co-author of Chapter 3, is an associate at Kaufman & Canoles, P.C. Her practice focuses on civil litigation. Prior to joining Kaufman & Canoles, Ms. Rogers served as a law clerk to the Honorable Mark S. Davis, United States District Judge for the Eastern District of Virginia. Ms. Rogers graduated with honors from the University of Kansas and magna cum laude from Washington & Lee University School of Law, where she was on the Editorial Board of the Washington & Lee Law Review. Ms. Rogers is admitted to practice in Virginia courts, United States District Courts for the Eastern and Western Districts of Virginia, and the Court of Appeals for the Fourth Circuit. She is a member of The Virginia Bar Association, the Norfolk-Portsmouth Bar Association, and the Federal Bar Association. Ms. Rogers serves on the board of the Hampton Roads Chapter of the Federal Bar Association and has been cited by Virginia Super Lawyers as a “Rising Star.”

George A. Somerville, Harman Claytor Corrigan & Wellman / Glen Allen (Expand/Collapse Bio)

George Somerville, co-author of Chapter 4, is Senior Counsel to Harman Claytor Corrigan & Wellman. His practice focuses on appellate litigation in state and federal courts. He also represents clients at trial in general civil litigation and in water use permitting and litigation in state and federal administrative agencies and courts. He has represented clients on appeal in cases with issues ranging from state and federal constitutional law to church property law, commercial, business, and corporate governance law, NEPA and the Clean Water Act, the Coastal Zone Management Act, the National Historic Preservation Act, maritime salvage, and criminal defense. Mr. Somerville is a frequent lecturer in continuing legal and other professional education programs in the areas of appellate litigation, water resource development, and related issues of environmental law. He has been recognized in The Best Lawyers in America in Appellate Practice (2010-2016); Virginia Business magazine’s “Legal Elite” in Legislative/Regulatory/Administrative Law (2007, 2009-2010) and Appellate Law (2011-2015); as a “Virginia Super Lawyer” in Environmental Litigation (2007), Business Litigation (2014), State, Local & Municipal Law (2014), and Appellate Litigation (2013-2014); and Virginia Living magazine’s “Best Lawyers in Virginia” in Administrative/Appellate Practice (2012). He is a member of the Boyd-Graves Conference and a Fellow of the Virginia Law Foundation, and he has served as a member of the Faculty of the Virginia State Bar’s Harry L. Carrico Professionalism Course (2009-2012). He is a graduate of West Virginia University (A.B., 1973) and the University of Virginia School of Law (J.D., 1980) and served as a law clerk for the late Ruggero J. Aldisert, United States Circuit Judge, from 1980 to 1982.

Farnaz F. Thompson, University of Virginia/Office of the Virginia Attorney General (Expand/Collapse Bio)

Farnaz F. Thompson, co-author of Chapter 6, is Associate University Counsel at the University of Virginia and Assistant Attorney General, Virginia Attorney General’s Office. Her practice focuses on federal education laws, including Title IX, 20 U.S.C. § 1681, et seq., and the Clery Act, 20 U.S.C. § 1092(f); general civil litigation, including § 1983 suits and suits under the Virginia Tort Claims Act; laws governing federal contractors; and employment law. She has also served as an Adjunct Professor of Law at Regent University School of Law (2012-2015). She was Law Clerk to the Honorable Eric G. Bruggink, Senior Judge, United States Court of Federal Claims (2007-2008), and to the Honorable Leroy Rountree Hassell, Sr., former Chief Justice, Supreme Court of Virginia (2008-2011). She is a member of the Virginia State Bar Young Lawyers Conference Board of Governors and the Thomas Jefferson American Inn of Court. She is admitted to practice in Virginia courts, United States District Courts for the Eastern and Western Districts of Virginia, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court. Ms. Thompson received her undergraduate degree from the University of California, Berkeley, in 2004, and her J.D. in 2007 from the Regent University School of Law, where she was on the Board of Editors of the Regent University Law Review (2006-2007). This chapter is written in Ms. Thompson’s personal capacity only and does not necessarily represent the opinions or reflect the views of the University of Virginia or the Virginia Attorney General.

Hon. J. Harvie Wilkinson III, United States Court of Appeals for the Fourth Circuit (Expand/Collapse Bio)

Judge J. Harvie Wilkinson III, co-author of Chapter 8, is a Judge of the United States Court of Appeals for the Fourth Circuit. Judge Wilkinson earned his B.A. degree, magna cum laude, Phi Beta Kappa, from Yale University. He received his J.D. degree in 1972 from the University of Virginia School of Law (Law Review, Order of the Coif). Upon graduating from law school, he served as Law Clerk for Supreme Court Justice Lewis F. Powell, Jr. Following his clerkship, Judge Wilkinson taught at the University of Virginia School of Law and was Professor of Law from 1981 to 1984. After serving as editor of the Norfolk Virginian-Pilot from 1978 to 1981, he was appointed Deputy Assistant Attorney General of the Civil Rights Division of the United States Department of Justice. Judge Wilkinson was appointed Circuit Judge for the United States Court of Appeals for the Fourth Circuit in 1984 and served as Chief Judge for the Fourth Circuit from 1996 to 2003. Judge Wilkinson is author of Harry Byrd and the Changing Face of Virginia Politics (1968), Serving Justice: A Supreme Court Clerk’s View (1974), From Brown to Bakke: The Supreme Court and School Integration (1979), One Nation Indivisible: How Ethnic Separatism Threatens America (1997), and Cosmic Constitutional Theory (2012). He was a member of the Board of the Federal Judicial Center from 1992 to 1996 and is presently a member of the Virginia Bar and the American Law Institute.

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