Weekly Edition

Agee offers advice to appeals counsel

If you’ve heard it once, you’ve heard it a hundred times. From law professors, colleagues and appellate judges, the admonishment on brief writing is the same – keep it short and concise.

Few advisors, however, illustrate the issue as colorfully as Supreme Court Justice Steven Agee speaking to the Virginia Trial Lawyers Association:

“We get our work product by the dump truck load. Not pickup truck load – dump truck load,” said Agee, referring to the mountains of appellate briefs delivered to the high court each term. “It’s a lot of material.”

“That 49-page brief that you are so proud of might not be as effective as an 18-page brief” that concisely addresses the issues, Agee said.

Brevity was just one admonition Agee offered for the VTLA attendees at the Homestead. Agee, who awaits U.S. Senate consideration for a seat on the 4th U.S. Circuit Court of Appeals, offered a host of pointers for appellate practice.

• Read the rules. It sounds obvious, but many litigants are tripped up by the black-and-white basics of appellate practice.

• Get the trial judge to rule on your objection. Without a ruling in the record, there is nothing to appeal.

• Beef up the brief in opposition. The brief in opposition should highlight any and all procedural defects of the appeal, not just respond to the merits of the petition. Do the assignments of error fit the trial court’s rulings? Were there abandoned objections? Is there a record for the assignments of error? Agee cautioned that the appellee should not rely on the appeals court to find such technical problems on its own.

• Get a second review of your brief. “The one thing that I think would help more than anything else is to find a second set of eyes and ears, especially if you are the lawyer who tried the case,” Agee said.

• Don’t waste your oral argument time reciting facts. The appellate judges already know the facts. “We’ve read everything we are going to read by the day of oral argument, whether the case is on appeal or on petition for appeal,” Agee said. “We are deciding the case that day.”

• Don’t avoid adverse authority. Deal with it straight on, or risk having it dealt to you in the least comfortable way.

• Think twice before filing a petition for rehearing. Despite what he described as a recent explosion in petitions for rehearing, Agee appeared to dismiss the suggestion that it is malpractice not to ask for a second bite at the apple. He said that the annual grant rate for petitions for rehearing is only about one percent.

Agee opened his remarks with a pointed warning for court-appointed lawyers who have been reluctant to request the extra funds available for their work. He cautioned that the funding will certainly disappear if it is not used as intended.

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