The highlight of the VBA’s annual meeting this year was its Saturday panel on What We’ve Learned from the Expansion of the Court of Appeals of Virginia. Judge Ortiz and Jason Konvicka were the panelists, with Henry Willett moderating.
Here are a few takeaways:
- Judge Ortiz is funny! I had not realized this. Also, he was careful to point out that he was speaking for himself, not the CAV, and none of his comments represented the Court’s official position.
- Panel Assignments. Judges are assigned to panels at the beginning of the year by a computer program. Assignments are basically random within a set of defined parameters (length of time between panels, repeat combinations of judges, etc.). After panels are assigned, some judges will trade assignments to accommodate their schedules.
- Timing. It takes about six months for an appeal to progress from entry of judgment in the trial court through completion of briefing in the CAV. Once the case ripens, it will be set for oral argument. Cases are then assigned to panels, with criminal cases getting priority. The Court hears argument, then conferences–sometimes once in a two-day session, sometimes each day of the session. The Court tries to get opinions out about 45 days after argument, although the process can take longer depending on the case and panel. (So in practice, maybe 45-60 days, and sometimes even longer?) The Court tries to get appeals through the system in 9-12 months after filing, but that may slow to 12-15 months as workload increases.
- Concurrences & Dissents. The Court is seeing a rise in concurrences and dissents. This, too, can slow the process.
- Workload. CAV filings are back to pre-pandemic numbers, but with two important caveats. First, the Court is not yet fully up to speed on civil appeals. Second, trial courts are not back to pre-pandemic levels of judgments. So the CAV anticipates that its docket will continue to grow. Right now, it’s running 48 panels a year and handling 18 appeals per panel. It will likely have to increase that to 24-30 appeals per panel, which will slow down the opinion-writing process.
- Motions. The CAV does not have a motions day. Motions are decided on the papers by a panel of three judges. The Court has seven standing motions panels.
- Procedural Defaults. When it comes to procedural defaults, the judges generally fall into three groups. First, a group that is relatively quick to find a default. Second, a group that is relatively slow to find one. And third, a group that falls somewhere in the middle, focusing on fairness to the trial judge. The CAV uses 5A:18 as a verb these days–“Let’s 5A:18 that argument.”