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Westlake Legal Group > Uncategorized (Page 56)

Dead Man Walking

Westlake Legal Group bigstock-Businessman-trapped-on-mousetr-26998259.j Dead Man Walking Writing Preservation of Error Appellate Practice   The brief in opposition is one of the great underappreciated joys of Virginia appellate practice. It comes at the writ stage, when we’re just trying to convince the Supreme Court that it should/should not grant a petition for appeal. We’re not necessarily arguing the merits. Sometimes, the petitioner will not yet have hired specialist appellate counsel. Even when they do, some nominal appellate lawyers fail to appreciate this distinction.

So how do we dissuade the Court from granting an appeal? Well, you have the usual arguments:

  • This is a fact-bound case.
  • This is an idiosyncratic issue that is unlikely to recur.
  • There’s no split below, nor any indication that the bench and bar need guidance on this issue.
  • This case is a poor vehicle for reaching an issue that may interest the Court.

That last one is key. Virginia has a robust procedural default jurisprudence. Trial counsel tend to be aware of this in principle, but they get a little hazy on the specifics. The specifics are all that matter here.

Off the top of my head, I’ve regurgitated a totally underinclusive list of 20 waiver/forfeiture/procedural default traps to look for at the writ stage. Any one of them can kill an appeal point:

  1. Failing to preserve a point by contemporaneously objecting with reasonable specificity. Rule 5:25.
  2. Objecting “just for the record” and not requesting a ruling under Nusbaum v. Berlin, 273 Va. 385 (2007).
  3. Objecting to evidence but introducing evidence of the same character in your case-in-chief. Drinkard-Nuckols v. Smith, 269 Va. 93 (2005).
  4. Failing to get a ruling on an objection.
  5. Failing to ensure that the record contains everything necessary to let the Court evaluate and resolve the assignment of error. Rule 5:11(a).
  6. Failing to proffer excluded evidence. Graham v. Cook, 278 Va. 233 (2009).
  7. Confusing objections to the admissibility of the evidence and the sufficiency of the evidence. See Bitar v. Rahman, 272 Va. 130 (2006).
  8. Failing to move for a mistrial at the close of all the evidence.
  9. Attempting to “renew” a motion to strike at the close of all the evidence instead of raising a new one (when the distinction matters).
  10. Agreeing (or failing to object) to a jury instruction that kills your theory.
  11. Relying on a naked case citation or a rejected jury instruction to preserve an argument not explicitly raised at trial.
  12. Objecting to a closing argument but not simultaneously asking for a curative instruction or a mistrial.
  13. Approbating and reprobating–that is, taking inconsistent position in successive phases of litigation.
  14. Law of the case.
  15. Inviting error.
  16. Right result/other reason.
  17. Failing to assign error to an independent basis for affirmance. Manchester Oaks Homeowners’ Ass’n v. Batt, 284 Va. 409 (2012).
  18. Assigning error to a ruling that the trial court never made. Martin v. Lahti, 295 Va. 77 (2018).
  19. “Bad brief” error–failing to argue an assignment of error as required by Rule 5:17, stashing an underdeveloped argument in a footnote, etc.
  20. Harmless error under Code § 8.01-678.

One of the wits on #appellatetwitter called an appellant boldly pushing a forfeited theory “dead man walking.” That seems about right.

And one last point, just to be clear: As a policy matter, I disagree with the emphasis that the Supreme Court placed on procedural defaults from, say, 2000-2015. I think it’s bad and wrong. I would much prefer that the Court address substantive issues. But we go to war with army we have

Westlake Legal Group FmQF7QPDmdo Dead Man Walking Writing Preservation of Error Appellate Practice   Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

‘Active shooter’ situation, shots fired at New Jersey UPS facility, police say

New Jersey police rushed to a United Parcel Service facility Monday morning amid an “active shooter situation,” with authorities confirming to Fox News that “shots have been fired.”

Westlake Legal Group NJ-UPS-facility-2 ‘Active shooter’ situation, shots fired at New Jersey UPS facility, police say Katherine Lam fox-news/us/us-regions/northeast/new-jersey fox-news/us/crime fox news fnc/us fnc article 99f29c53-19f7-5480-8bd7-8a472e5092b4

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Trump: “I never worked for Russia,” and the question is a “disgrace”

Westlake Legal Group trump-russian-agent Trump: “I never worked for Russia,” and the question is a “disgrace” The Blog Russia hoax donald trump denial

Good to know, I suppose, for those who spent the weekend parsing the words “ridiculous” and “insult” into maaaaayyyybeeeee. This morning, Donald Trump denied working as a Russian agent, calling the question a “disgrace”:

That answers Aaron Blake’s question almost at the same time he asked it … as if it needed answering. Earlier this morning, the Washington Post columnist wondered why Trump hadn’t issued an explicit and detailed denial:

It’s been about 60 hours since it was first reported that the Federal Bureau of Investigation launched an inquiry into whether President Trump was working for Russia. And for all the bluster and tough words from Trump, we’re still missing something: a real denial.

The president took to the friendly airwaves of Jeanine Pirro’s Fox News show Saturday night to call the question of whether he is or was working for Russia “insulting” — without actually addressing the question — while Secretary of State Mike Pompeo decided to knock down a straw man when asked about all this. …

The first thing is that calling something an “insult” — even “the most insulting article” — isn’t technically denying it. Yes, you tend to be more insulted by ridiculous accusations, but Trump doesn’t technically say that what the FBI was investigating was untrue. It’s also notable that he repeated at the end that the article was an “insult” — which suggests this not-quite-denial was a predetermined talking point.

Er … for what purpose? Blake’s usually a smart writer, but he’s too clever by half in this argument. One would have to assume that Trump has some reason to refrain from denying the allegation, as opposed to just flat-out ridiculing it. What possible reason could there be? Judge Pirro didn’t have Trump under oath, so he could feel free to deny it even if the denial was false. If proven so, would it be worse to be a Russian agent, or to have lied while denying it? It’s a silly argument.

There is a much simpler answer to Blake’s question. Calling an allegation an “insult” and “ridiculous” is fully responsive as a denial to most people, especially outside the media/political bubble. That’s especially true given that it wasn’t an allegation in the first place — merely a hypothesis the FBI considered at the start of their investigation, as CNN’s report this morning made clear:

James Baker, then-FBI general counsel, said the FBI officials were contemplating with regard to Russia whether Trump was “acting at the behest of and somehow following directions, somehow executing their will.”

“That was one extreme. The other extreme is that the President is completely innocent, and we discussed that too,” Baker told House investigators last year. “There’s a range of things this could possibly be. We need to investigate, because we don’t know whether, you know, the worst-case scenario is possibly true or the President is totally innocent and we need to get this thing over with — and so he can move forward with his agenda.”

In other words, why would anyone feel the need to respond to something that hasn’t even been alleged? If someone speculated in a House committee hearing or an FBI office that Trump was an alien from the planet Mongo, wouldn’t calling it “ridiculous” suffice?

We sometimes consider the Red Scare of the 1940s and 1950s an aberration, but the events of the past two years demonstrates that we haven’t learned one damned thing from it. The Soviet Union was a malevolent force and so is Russia under Putin, so no one should dismiss the potential for damage. Rather than assess the threat rationally, however, we have indulged in a social-political panic in which people must answer for every wild hypothesis or be considered guilty and traitorous. Our national media is just as guilty of this, if not perhaps the most responsible for its malicious revival.

The post Trump: “I never worked for Russia,” and the question is a “disgrace” appeared first on Hot Air.

Westlake Legal Group trump-russian-agent-300x162 Trump: “I never worked for Russia,” and the question is a “disgrace” The Blog Russia hoax donald trump denial   Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com