Folks, we are miraculously midway through the year, and my takeaway is that time is a thief. This weekend, my biggest little boy turned six and selected Chuck E. Cheese as his birthday spot. We are now the lucky recipients of a lot of leftover birthday cake and even more germs.

On another note, the Supreme Court of Virginia didn’t issue any new opinions so it is time for a new round of stats. The one-and-only Steve Emmert and I collaborated on this quarter’s David vs. Goliath index. For new readers, this is a semi-regular update on how often the big guys (e.g., the government, big companies, fancy firms) lose on appeal to the little guys (e.g., scrappy solos, small firms, underdogs).

*Drumroll*

We had only one David win this entire quarter. Goliath trounced him eight other times.

We could view this pessimistically, but I am a glass-half-full kinda appellate attorney and I love a good challenge.

Takeaways: David still has a shot. Not a very good one, but enough to give the little guys hope every now and then.

What else can we learn from the Supreme Court’s decisions this quarter? The SCV disagrees with the Court of Appeals…a lot.

• The SCV only affirmed the CAV 6.5 times out of 12 cases (the ½ being when the CAV was affirmed in part and reversed in part). This means when the SCV grants a petition, it is reversing the CAV about 50% of the time.
• But even when the SCV didn’t reverse the CAV, it still relied upon a different basis for affirmance in 3 of those 6.5 cases. So even when the CAV is right, there’s a good chance the SCV will still tell the CAV it’s wrong.
• The Circuit Court’s judgment (not necessarily their reasoning) was ultimately affirmed 80-ish% of time, at least in part. 
• If you’re thinking about stopping your appeal at the intermediate level in an important case…don’t. There’s still time for a slingshot moment if you’re unhappy with the CAV.

What do the appellate courts really care about? I don’t believe they root for Goliath more than anyone else does (or doesn’t). Instead, the appellate courts require knowledge of the game.

Appeals are a chess match: one side makes a move and the other needs to respond. But there are very technical rules you need to know. The other side didn’t preserve the issue at trial? Bless their heart. Does their issue fall within their assignments of error? What other procedural defaults might be in play? The list goes on.

It’s not about who the players are—it’s more about knowledge and skill. You don’t have to be intimidated by the big guys. But you do have to play the game better than they do to win.

In conclusion: Don’t lose hope. David has a worthy cause. Now he needs an appellate specialist to even the odds. 

Have a judgment worth protecting—or reversing? Let’s talk. We’re here to help.