Teaching the Art of the Appeal
Three of Virginia’s most accomplished legal minds are introducing University of Virginia School of Law students to the art of the appeal in a new seminar.
Retired Supreme Court of Virginia Justice John Charles Thomas '75, retired U.S. Judge James R. Spencer and current Virginia Senior Assistant Attorney General Virginia B. Theisen are presently teaching Appellate Practice. The three-credit fall course is designed to instill in law students the skills required to make them effective advocates at the appeals level.
Thomas was the first African-American and youngest-ever justice to serve on the Supreme Court of Virginia when he was appointed in 1983, eight years after he graduated from UVA Law. Today, he is a senior partner at the law firm Hunton & Williams, where he serves as chief of appellate practice.
“One thing about the trials is that it’s like a living organism, it’s moving all the time,” Thomas said, “but once the record is established at trial and the appellate lawyer steps in, it’s another universe.”
Because the facts are already in place, he explained, appellate lawyers can analyze and comb through the information to bring another perspective.
Appeals courts understand that they are establishing precedent and have a bigger view of the cases, said Theisen, a unit leader in the Criminal Appeals Section of the Virginia Attorney General’s Office. “There’s nothing quite like it.”
The seminar is comprised of 14 students with myriad legal interests. The instructors conduct a topic-driven class based on their individual areas of expertise, and they start by emphasizing how to preserve issues at trial before ever getting to appeal. The course then covers such topics as considering whether to appeal, the requirements for perfecting an appeal and, with standards of review in mind, choosing the issues for an appeal.
The seminar also hosts guest speakers, such as Chief Justice Roger Gregory of the U.S. Fourth Circuit Court of Appeals and Judge Mary Grace O'Brien of the Court of Appeals of Virginia.
Third-year law student Stefanie Jackson, who will be going into litigation practice at a law firm after graduation, said the course is showing her how to be an effective trial lawyer.
“You always want to win as a trial lawyer, but if you don’t also prepare for the possibility of appeal you could really damage the interests of your client,” she said.
Among all the skills that make an appellate lawyer successful — analytics, research and writing among them — memory may be one of the most important, Theisen said, because litigators need to remember what cases say and what is in the record in preparation for an appeal.
Student Becca Kimmel, also a third-year, said the instructors’ experiences add real-world context to their coursework and have been invaluable teaching tools that “have led us to expect better from ourselves and from each other.”
“They have instilled in us the idea that effective appellate advocacy is an art,” she said. “I believe that advice will serve me well in my future career as a litigator, hopefully eventually working in appellate practice.”
Kimmel considers herself “extremely lucky” to learn from such experienced instructors, “who share with us the do's and don’ts of appellate practice that they have accumulated over their outstanding careers.”
Thomas said that as a young lawyer he once asked U.S. Supreme Court Justice Lewis Powell if oral arguments were a consequential part of the process. The seminar demonstrates just how important they are.
“Nobody’s operating an exercise just for the heck of it,” said Spencer, who became the first African-American federal judge in Virginia history in 1986. “I am a living witness that my mind has been moved by argument.”
He noted that sometimes the Fourth Circuit decides that oral arguments aren’t needed for a case and that a vast majority of the time they’re not scheduled.
In contrast to the trial level, Theisen said, “the written brief is the opportunity that the litigant has some control over.”
“I can put in the brief what I want to put in the brief, but at oral argument it’s what the court wants to know about,” she said.
All Appellate Practice students are required to prepare a draft appellate brief, present an oral argument in class and attend an oral argument at an appellate court, for which they submit a written report detailing an aspect of the case that left an impression on them.
“It doesn’t take long to see the person who’s able to stand, to be comfortable, to think quickly,” Spencer said. “A lot of this can be trained, but a lot of it is a gift.”
In fact, Jackson learned that, in addition to the appellate process as a whole, she would have to become familiar with the particular court in which she’ll be appearing.
“Not only does every circuit and state court have different rules, but there are certain behaviors and arguments you may make to one circuit that you wouldn't make to another,” Jackson said. “I definitely took for granted the preparation that successful appellate lawyers put into every case.”
For the two former jurists, the seminar is also an opportunity to ingrain in their students an overall esteem for the law and the legal profession in general. For example, Spencer emphasizes the Golden Rule and how lawyers should respect all of those involved, since appellate litigation is a demanding group effort.
“I would like the students to understand that there is a sense of honor in being a lawyer,” he said.
Thomas said ethics is also a key component, in lawyering and particularly in appellate litigation, to convey to his students.
“We try to let them see a sense of how all of us love the law, we respect the law, we know that we are part of this big process that has fundamental authority over large parts of our lives and that it’s an important thing that we do and we recognize it,” he said. “When you’re a part of that system and a part of that process, there’s a dignity to it and an honor to it — and there’s an excitement to it.”