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Rehearing petition may work, says court

ABINGDON – If the Supreme Court of Virginia denies your client’s petition for appeal, take a serious look at a second try, members of the high court said at an April 26 “town hall meeting” on appellate practice.

Chief Justice Cynthia D. Kinser, joined fellow Justice Elizabeth A. McClanahan and Court of Appeals Judge Teresa M. Chafin, spoke before an overflow crowd of more than 250 lawyers at a Virginia State Bar Solo and Small-Firm Practitioner Forum in Abingdon.

Petitions for rehearing are not discouraged, and the odds for gaining an appeal may improve with a second-round petition to the Virginia high court.

The Abingdon forum came just days after the Supreme Court agreed to hear appeals in two noteworthy cases that were initially rejected by the court. Petitions for rehearing were successful in both the Virginia Tech shootings case and the possible breakup of The Disthene Group Inc., a closely held corporation that owns The Cavalier resort hotel in Virginia Beach, the long-time site of the VSB’s annual meeting.

Although they made no reference to either of those cases, Kinser and McClanahan suggested a petition for rehearing is nearly always worth a try. The initial bid for an appeal goes to just a panel of three justices. The petition for rehearing is circulated to all seven justices.

“I can’t think of any reason not to do it if you believe you have a reason to do it,” McClanahan said.

If you do file a petition for rehearing, put your best argument right up front, Kinser said. “You need to catch our attention in the first paragraph,” she said.

“We have so much to read, it’s really important to tell us right in the beginning why somebody should grant your petition,” Kinser said.

Temper the emotional appeal

Stick to the legal issues in your appeal briefs and leave the emotion for the trial courtroom, Kinser advised.

Kinser said she was reading a brief in a personal injury case about six months ago, going through “pages and pages” of details about the plaintiff’s injuries.

“But the atrociousness of the accident and how awful the injuries were and how huge the medical bills were had nothing to do with the issue…. I didn’t need to know all that,” she said.

“I felt it was an attempt by the attorney to speak to my emotions,” Kinser said, adding with emphasis, “It doesn’t work.”

“Brevity is the key,” Kinser said. “Tell me what I need to know in as few words as possible.”

Ponder that next case

Kinser also appreciates advocates who are ready at oral argument to discuss the potential effect of their cases beyond the immediate win or lose decision for the parties.

“I’m worried about the next case. We always have to worry about what the consequences of our decision are going to be in the next case, because it has precedential value,” Kinser said.

“When it is obvious that the attorney has thought about those things and is able to engage me in that dialogue and help me with that question, it’s most useful,” Kinser said.

In his role as moderator, Kevin E. Martingayle of Virginia Beach said he has heard conflicting advice about whether to concede the weakness of any appellate points. Kinser said it’s best to acknowledge a losing argument and move on. “We respect your candor,” she said.

McClanahan expressed amazement that some lawyers skip the opportunity to file a reply brief to address their opponents’ arguments. “If you don’t address it, you’re probably going to get asked about it at oral argument,” she said.

Kinser said she was surprised at the “ingenuity” of lawyers in their interpretation of the requirement for a separate “Assignments of Error” section in their petitions for appeal.

Sometimes, lawyers will list the assignments only in the table of contents. In other briefs, the assignments will be found sprinkled among the argument section of the petition, Kinser said.

“We want them listed under a heading, all together,” Kinser said. The justices struggle with when a variation complies with the rules and when it does not, she said. “If it doesn’t, then we’re not going to consider it,” she added.

Avoiding waiver

To avoid waiving an argument, “you need to put your finger on the error,” Kinser said.

“You’ve got to point to the error in the trial court,” she said. “It is not enough just to say the verdict was contrary to the law and the evidence.”

If the trial lawyer failed to make an objection at the right time or forgot to make a record of the trial judge’s ruling, an appeal to the “ends of justice” is not likely to save the day, Kinser said.

“If that’s all you’ve got to hang your hat on, good luck,” Kinser said. She said she could not recall the “ends of justice” standard being applied in any civil case.

“It is for that extremely rare exception where there has truly been an injustice,” Kinser said.

A lawyer asked whether the court might change its policy barring reimbursement for professional binding of petitions for appeal filed by court-appointed counsel. Kinser explained the policy was a cost-saving measure.

“If you can get the General Assembly to give us some more money, we might change our minds,” Kinser said. “We have a budget and we have to stay within that budget.”

Budget strictures also have affected progress toward paperless courts. “We are moving in that direction. We are not where we wanted to be on e-filing because of budget issues,” Kinser said.

McClanahan offered insight into the writing process for court opinions. “Every chambers is different on a first draft,” she said. Some justices write all their opinions from scratch. Other justices have their law clerks do first drafts and then take it from that point forward, she explained.

Hat trick

In response to a lawyer’s query, McClanahan explained the Supreme Court selects opinion authors by literally drawing numbers out of a hat.

Discussion ensued about which type of hat was used. The justices put to rest any concern that it was a hat associated with any particular university.

Kinser said it was a bowler type of hat that used to belong to former clerk David B. Beach.

“Yeah, that was my hat,” Beach said in an interview after the Abingdon forum. He described the hat as a fedora. By now, the hat may look more like something Charlie Chaplin wore. “It had a crease in it,” he said.

When he was clerk, Beach explained, he told his wife the opinion writer was selected by drawing numbers from a hat, “but it’s really a box,” he said.

“She said, ‘You need a hat,’” Beach recalled, and his wife went out and bought one.

That was in the mid-1980s, and the hat has been used since to determine who will write each Supreme Court opinion.

“By the time I retired, it was a part of history,” Beach said. The hat stayed with the court, but the court presented Beach with a retirement gift of a new hat, with an expression of gratitude inscribed in the hat band.


Members of the Abingdon panel had thoughts on professionalism.

Chafin urged lawyers to participate in their communities, outside the courthouse. “If we participate in community projects and give of our time and our expertise, I think that our profession will be richly rewarded in our reputation,” she said.

Kinser urged lawyers and judges to treat one another with respect and dignity. “Because, if we do that, between the bench and the bar, then I think the public sees that and it increases our respect within the community,” she said.

Kinser repeated her call for pro bono service by every lawyer. “I hope that I have not forgotten what’s it’s like to practice law, because it’s tough. It’s a hard profession, but we still have that responsibility to serve,” she said.

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