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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Nearly back to Normal

Today the Supreme Court of Virginia held its first in-person writ panel since in the COVID endemic era — I believe that for the present this is the best that we can hope for.  That is, recognizing that COVID will continue to be a concern, but not at the level of a pandemic.  Unlike endemic flu, however, COVID will require, at least for the present, precautions beyond a recommended booster every 6 to 12 months.

For the Supreme Court, this mean limiting in person attendance to one counsel for each party and social distancing in the main Courtroom.  The public and other counsel can listen on a live stream audio on the Court’s website.  The two smaller hearing rooms are, for now, not being used.  One panel of Justices sat in the morning and a second panel in the afternoon.

I have oral argument in the Court of Appeals in Salem next week and in Richmond on May 3.  I assume that similar restrictions will be in place and the notice from the Court indicated that it remained possible that the Court would revert to telephonic/video conference arguments if COVID infections showed increased prevalence.

I am sure that my faithful readers are burning to know how the arguments went today.  In the AM I was the appellee, so was only there to observe and would have done so by live stream had I not had to appear for the appellant in an PM case.  The morning case counsel for the appellant gave a solid argument but got quite a lot of push back from the Chief Justice and Justice Kelsey, so I am feeling upbeat about my chances of avoiding a full merit brief and argument.  The PM case received polite attention from the panel with just a question or two — but the last of these from Justice Powell, who was presiding, was distantly in the realm of “even if the Court of Appeals erred, is there really a substantive miscarriage of Justice here?”

Substantive justice is a concept that many attorneys have difficulty with because it’s not exactly “harmless error” analysis, but it’s also not a full-throated declaration that there was no error.  Substantial justice is concept more appropriate to Courts, like the Supreme Court of Virginia as of January 1, 2022, that are entirely or almost entirely courts of discretionary appeal.  This is not to say that the concept cannot be applied in Courts, like the Court of Appeals of Virginia, that are entirely or almost entirely courts of appeal by right. Substantive justice is, in some degree, a concession that our judicial process is nor perfect, by like the moral arc of the universe, bends toward justice even in its imperfection.  If there is error in a lower court’s judgment, the error may not be so great as to warrant reversal of a substantively just result.  This does not mean that the error was entirely harmless, but rather that correcting the error would not, in the long run, result in a more just result.

In my case today, I had hoped to convince the Court that the issue I was presenting needed to be corrected, not because it would definitively result in a different outcome, but because it would set right a condition that was off balance, so that perhaps if not for my client, then at least for some future litigant, the playing field would be more level.

I expect that the “Clerk will notify [me] of the panel’s decision” in both cases very soon and will report back when I do.

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