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

Oral Argument the Way it Was Meant to Be

Updated: Oct 19, 2022

This is a long post which, as a true pedant, I naturally started with some history that is mostly irrelevant to the story (but darn interesting from my point of view) and ends with some grammatical trivia. If you want the short version, skip the next five paragraphs.

In the earliest days of the Republic, the United States Supreme Court had no regular meeting place.  Initially, the Court met in the Merchants Exchange Building in New York City. When the National Capital moved to Philadelphia in 1790, the Court moved with it, establishing Chambers first in the State House (Independence Hall) and later in the City Hall. When the seat of government moved to the nascent city of Washington on the Potomac in 1800, no provision had been made for a Supreme Court Building, so Congress lent the Court space in the new Capitol Building. The Court was to change its meeting place a half dozen times within the Capitol, meeting in various rooms from February 1810 to December 1860. During the early years when construction displaced the Justices, they had to meet in nearby homes or taverns.

Regardless of where the Court was “sitting,” at least until a purpose built space, albeit one in the windowless and cramped basement of the Capitol building, was made available, the Court quite literally “sat” around the room.  There was no “bench,” though often the judges and attorneys would share a long table or sit at three separate tables.  When in private homes and especially in taverns, the court and counsel would be served refreshments — including spirits, and smoking was commonplace.  There were also no timers or formal division of the argument of the parties into “appellant and appellee” per se and even when there was some order, it often included “surrebbutal, in multiple rounds.  Often, there would by attorneys who were not involved in the case being discussed, but who would join in, even being allowed to pose questions to the counsel.  In short, it was a discussion of the law among colleagues.  The scene was often compared to a lively conversation in a gentleman’s club (referring to the fashionable kind that flourished in Georgian and Victorian England, not the modern usage of that term) or a meeting of a debating society.  The discussion, rather than argument, of the cases could run for hours before the Justices would retire to a private room to reach a decision.  The justices did not typically wear robes during these sessions (some judges eschewed robes as holdovers from the royal courts, while others just found them uncomfortable in the often close, hot confines of the “chamber”).

Over time, of course, the increased docket and expansion of the federal court system required that a more formal process for hearing cases should be adopted and the now familiar setting of the Justices elevated and sitting behind an austere bench and counsel seated at tables set on either side of a rostrum* was well-established by the 1935 when the Court was finally given its own edifice. Likewise, the regimentation of the presentation of argument — appellant, appellee, appellant’s rebuttal — and the strict adherence to time limits had become standard.  Identical processes had long been the norm in the state courts of appeal.

The result has not always been desirous.  The separation of the Court behind the bench and above the advocates tends to give an intimidating air to the proceedings from counsel’s view.  Similarly, it is easy for the jurists to lapse in to a quiescence of being passive observers, much as trial judges will do when hearing argument.  What was once a discussion of the law and the merits of the case, can be reduced to a mere recitation of the arguments already detailed in the briefs.  For some jurists, notably Justice Clarence Thomas, oral argument has little if any utility, and is viewed as a distraction. When counsel face a “cold bench” it’s difficult not to draw the same conclusion

While I would not contend that the appellate court’s should return to holding forth at a Buffalo Wild Wings, there are times when oral argument has a spark of the old “discussion of the law” that we could wish all arguments to be.  Thursday, July 14 (Bastille Day, as it happens, which seems fitting) was such a day.

The Court of Appeals was sitting in Lexington and your humble correspondent was scheduled to appear in the matters (for there were two cases combined for appeal) of Stanley v. Commonwealth.  Opposite at the appellee’s table was Assistant Solicitor General Graham Bryant.  The panel was Judge Chaney, Judge Callins and Sr. Judge Petty. The Court will post the recording of the argument that ensued shortly after 9:30 AM some time in the coming days and I will post a link here — because I really do think it is worth a listen.  The argument was set for 30 minutes, 15 minutes per side, and I had anticipated (as, frankly, I always do) that I would not need my full 15.  I advised the Court that I would, however, try to reserve 3 of those minutes for rebuttal if I did require the other 12.  I then prepared to launch into my introduction — “Your honors were are here about jurisdiction . . .”

But I didn’t get the first word out, as Judge Petty asked, and I will paraphrase, “Are you even supposed to be here?”  Now to be fair, I had anticipated this question back when the appeal was filed, and had even briefed it in my petition.  This was back in 2021 when criminal appeals have to proceed by petition to the Court of Appeals, but then the new regime kicked in and I had received notice that the appeal had been bumped up to an appeal of right.  As a result, I made the assumption that the Court was treating all appeals as if filed after 2021.

And now we need some background: Stanley arises from a criminal case, but it is not an appeal from a conviction.  Rather, Stanley was trying to quash a subpoena issued against two of Stanley’s social media accounts as part of an investigation of someone else’s suspected criminal activity.  To be clear, Stanley was not the focus of the investigation and was never going to be charged with a crime, therefore he wouldn’t have the option of seeking to suppress the evidence obtained by the warrant following an indictment, nor would anyone having been charged have standing to object to the search of Stanley’s accounts.  The circuit court ruled that there was no remedy available under the law for Stanley to quash the subpoena’s if the social media providers chose to comply, and thus ruled that the court did not have jurisdiction.

Judge Petty’s question addressed the fact that, prior to 2022, the Court of Appeals’ jurisdiction in criminal matters was limited to final judgment and certain, very specific per-conviction circumstances, and this was not one of them assuming that this was even a criminal case.  While the case had been docketed by the circuit court as criminal, it had been filed as an In Rem action, which typically, though not always, is a civil matter, which prior to 2022 would have fallen under the jurisdiction of the Supreme Court of Virginia for appeals.

Returning to the argument: I did my best to answer Judge Petty’s question by conceding that I honestly did not know whether the Court of Appeals was the proper forum — and that I probably erred in not briefing that issue when the appeal had been “granted” by statutory fiat.  The Commonwealth would later agree in its argument that, apart from a footnote in its brief, it had not addressed this threshold issue.

As the argument progressed, all three judges had very pertinent and prescient questions — showing that they had clearly thought about the underlying issues of jurisdiction, both for the appellate courts and the problem of determining what the “jurisdiction” of a case is when a court determines that is has no jurisdiction to hear the matter.  As both appellate courts in the Commonwealth have observed, “Jurisdiction is a word of many — too many meanings.”  Now I will concede that this type of discussion, which amounts to the juridical equivalent of how many angels can dance on the head of a pin (BTW, Peppermint Patty has the only correct answer to that question), probably strikes terror into the hearts of most counsel (and probably a few judges).

However, for members of the Procedural Geeks Club such as myself (and, I suspect Graham Bryant and most other former appellate law clerks), this is like catnip to Felis domesticus. For the judges, I rather suspect that it was more like they were the cat, and counsel were the birdies that they were toying with before going in for the kill — and I mean that in the most complimentary way.  In fact, during one exchange between the Commonwealth and Judge Petty there were echos of the late Justice Christian Compton when after asking a question, the judge listened to Graham’s thoughtful response and then said, “So the answer to my questions was ‘No’?”

I not only used all my time at the outset, but the court graciously “allowed” (or rather insisted on) me to continue answering questions for several minutes longer.  While Graham did his best to stay within his time (through the Court had advised that it would extend his time as well), he too was well into the “red” time when he stepped back.  Toward the end of the Commonwealth’s argument, Judge Petty asked a question to Graham which was particularly relevant, “Why are you here?”  The point the judge was making is that the Office of the Solicitor General is not typically the division within the AG’s Office to respond to a criminal appeal — and at least for the purposes of the manner in which this appeal was filed, this was a criminal appeal.The Court was then every more gracious in allowing me time for rebuttal.  The total argument was close to an hour when all was said and done and the Court not only thanked counsel for their time, but also for bringing “a very interesting issue” before them.

Now we wait to see what the Court will do with this case.  If I had to guess, I think the Court will determine that it is not the proper forum and will transfer the case to the opposite side of Franklin Street.  If so, that means we go back to the petition stage in that Court.  When Graham agreed with me during his argument that transfer would be proper (though like me he also argued that judicial efficiency might be promoted by having the Court of Appeals retain jurisdiction), Judge Petty had a repost — “That might result in the fastest remand in history,” the unspoken thought behind that statement being, “The Supremes probably don’t want to deal with this mishegoss either!”

This was oral argument as it was meant to be.  A discussion between jurists and counsel on a novel issue of law.  It was also great fun.

*Fun Fact: After many years of trying to correct the vocabulary of the English-speaking world, grammarians have finally conceded that a “podium” can have as an alternative meaning “a rostrum or lectern.”  The confusion started back in the Middle Ages when people though you need very specific words for things based on their use, rather than their appearance.  The original meaning of podium, and the one still given first in most definitions, is that the podium is single level platform from which a person makes an oral declaration, either speaking extemporaneously or reading from a prepared text.  If reading from a prepared text, that text may be held in the hands or placed on a “lectern”, which is a stand with an angled top and a small lip to hold the sheets of paper or book that as the prepared text.  If the speaker is not using a prepared text, but the “lectern” is there (perhaps for the speaker to grip or pound upon), it is more properly called a “rostrum.” To make matters more complicated, “rostrum” has as a secondary meaning the original meeting of “podium,” that is a raised platform for a speaker.  Additionally, a lectern or rostrum can be placed directly on the ground level (i.e. without a podium).  In a church, the lectern is traditionally placed on the first level of a dais (originally pronounced “days” but now for typically “day-us”), while the second level is reserved for the celebrant’s and acolytes’ chairs.  Sometime, especially in cathedrals, the dais is three levels, with the celebrant’s chair (the “cathedra”) at the uppermost level and the acolytes’ at the interim level. Meanwhile, opposite the lectern, and frequently elevated above the highest level of the dais, is the “pulpit,” which may have a rostrum (not a lectern, because preachers are supposed to be inspired by the Holy Spirit).

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