And other scary appellate problems

This Halloween, I want to talk about something terrifying—procedural defaults and waivers.

My friend, Sharif Gray, was kind enough to have me on his podcast: https://rvatriallawyers.com/podcast/.

We teamed up to discuss the ghosts of issues not preserved. And a word of warning: if you don’t like a Halloween pun, you should probably stop reading now.

Here’s my preservation formula for folks who don’t want issues to come back to haunt you on appeal:

Preserved Issue = Proper Objection + ruling + (sometimes a proffer)

Note: Your odds of success go up exponentially the more specific and timely your objection is. But please don’t hold me to writing a proper mathematical proof for that.

I’ve previously discussed the need to make the same arguments on appeal as were made at trial. But the Supreme Court recently had occasion to examine a different rule: Va. Sup. Ct. R. 5:27. This Rule requires Opening Briefs to contain the “principles of law and the authorities” in support of the argument for reversal. Advocates need to do more than make cursory arguments. We need to cite relevant authority and be a good advocate. If you fail to comply, your issue may be waived. And that is scary.

Don’t let this happen to you. If you are lucky enough to have a granted appeal in the SCV, or to have the opportunity to make your case before an appellate court more generally, do it right.

In Pollack v. Va. State Bar, the litigant’s argument section consisted of one paragraph. They cited no cases. They cited no Rules. They cited no statutes. When this attorney tried to resurrect this issue by adding citations to their reply brief, it was too late. The argument was deemed waived. 

We can all do better than that. Don’t let your next great issue die on appeal. And if you need help, feel free to call me.