Hon. Wesley G. Marshall
Sometimes, the procedural posture of a case on appeal can present challenges for appellate judges and the parties. Courts may have to resort to on-the-fly thinking and creative remedies to ensure fairness. There may be a lesson in compromising adherence to the rules in order to make sure the parties present the best and strongest arguments on issues of first impression.
Take this hypothetical example. Both parties appeal a decision of a trial judge denying compensability in a workers’ compensation case. The workers’ compensation Commission, sitting as an appellate court, issues a notice establishing a schedule for opening and responsive briefs for each side. The attorney who prevailed below files a brief in response to the losing side’s opening brief. Oops! She does not file an opening brief with regard to his appeal. The court does not have a procedural rule for mandatory default in the event a party fails to file a brief. The court decides the issue raised by the losing side is important and potentially precedential. It exercises its discretion to schedule oral argument. Oh, there’s one more thing . . . the issues preserved on appeal by the prevailing and losing parties are closely interrelated.
The prevailing party’s lawyer is in a dilemma. She has been invited to participate in oral argument. She filed a brief in response to the losing side’s appeal, so presumably she should be able to argue in opposition to their appeal. But she is unsure if she can present direct argument on the issues she appealed. She appears at the oral argument. In a preliminary discussion she presents the appeal panel with cases relied upon in support of her appeal. Particular portions of the cases are highlighted in the copies that are provided to the appeal panel. She provides opposing counsel with a separate copy of the cases which do not appear to be highlighted.
The losing party’s lawyer faces challenges as well. If he stands on a formal objection, the Court may react negatively to a perceived lack of civility and professionalism. In 2008, the Virginia Supreme Court adopted Principles of Professionalism, an aspirational inventory of recommended practices. They instruct in dealing with opposing counsel, a lawyer should, “cooperate as much as possible on procedural and logistical matters, so that the clients’ and lawyers’ efforts can be directed toward the substance of disputes or disagreements.” But, if he fails to note the procedural problem, he runs the risk of facing the wrath of an angry client. What to do?
If the court allows the prevailing party’s lawyer to present argument on her appeal, they will at worst reward or at best ignore the failure to file a brief. The same is true for accepting the submitted case law. But, as we noted above, the issues in dispute in the primary and responsive appeals are interrelated. Imposing a default at oral argument may prevent the parties from fairly and fully addressing the issues on appeal.
In most court systems, the higher you climb on the appellate ladder, the more likely you are to become the victim of a rule-based procedural default. Appellate courts require panels of multiple judges to convene in a single location, which requires substantial outlays of time and cost. For this reason, they often sit in prescribed short terms. Many state court systems face challenging budgetary considerations. The constraints of limited resources, together with an overriding principle of judicial restraint, support an institutional tendency to impose defaults and deny extraordinary relief.
So what about our example? Could the best result be obtained through resort to principles of equity? The court could allow the prevailing party’s lawyer to submit the case law, on the conditions that: (1) she provides an accurate highlighted copy to opposing counsel; and (2) opposing counsel is permitted a reasonable time to file a written submission in response. As for the competing appeals, the court could permit the parties to address only the losing party’s appeal at oral argument, but acknowledge to counsel the appeal panel will address both appeals. At first blush, this ruling might seem too inclined to reward bad behavior. Considered more carefully, it is a remedy that protects the integrity of the process. It permits the parties to argue their positions on an unclear point of law. This furthers the goal of allowing the court to make the best decision from a well-informed argument.
At the NAWCJ conference in August 2019, Judge Bruce Moore of Kansas gave a thought-provoking presentation entitled “Best Practices in Handling Cases with Self-Represented Litigants.” A spontaneous debate erupted among the attendees. Judge Moore posed the problem of whether the judge’s role is to remain silent and impose a “Gotcha!” remedy upon an uninformed and unrepresented litigant. Or should the judge probe the facts with questions in order to serve the search for the truth? The same considerations can apply in the appellate context. Most state court judges previously were practicing attorneys. Many may harbor a tendency, if not an implicit bias, and expect a higher degree of preparation, professionalism, and dutiful compliance with the rules by attorneys. But, even a great attorney can have a bad day.
Is the argument compelling that in a case of first impression, where the law may be blurry or ambiguous, promoting a fair and thorough exchange of opposing ideas best serves justice? The adversary process plays an indispensable role in our system of justice because a debate between adversaries is often essential to the truth-seeking function of trials. “The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness.”
Reasonable judges might question the soft handling of the highlighted case law. Does the court have an obligation to admonish or punish a lawyer for a one-sided “argument” in writing where it is not disclosed to the opposing party? The American Bar Association’s Model Rules of Professional Conduct are not precise enough to answer this question directly. Under the ABA’s Rule on “Candor Toward the Tribunal,” a lawyer shall not knowingly, “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” The Rule relating to Fairness to Opposing Party & Counsel addresses obstructing another party’s access to evidence, altering, destroying or concealing evidence, and disobeying an obligation under the rules of a tribunal. A Virginia Rule cautions a lawyer shall not, “seek to influence a judge, juror, or prospective juror or other official by means prohibited by law.” Another declares it is professional misconduct for a lawyer to, “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Handing cases to a judge is one of those informal processes that occurs commonly but is not universally covered by a rule of court. A Virginia-specific rule provides a clear answer. “In an adversary proceeding, a lawyer shall not communicate … as to the merits of the cause with a judge . . . , except: in writing if the lawyer promptly delivers a copy of the writing to opposing counsel or to the adverse party who is not represented by a lawyer.” Plenty of lawyers have encountered trouble through improper ex parte communications. One example is the bankruptcy case of In re Endicott, 157 B.R. 255 (W.D. Va. 1993). The Court wrote:
A written communication between the trustee and the bankruptcy judge is considered to be ex parte if an opposing party does not timely receive a copy of the submitted document. The Trustee’s submission of a proposed order to the bankruptcy judge in this case without sending copies to the creditor’s counsel was inexcusable; the exchange was certainly an ex parte communication. The Trustee is instructed to avoid this practice in the future. See, e.g., Colony Square, 60 Bankr. at 1021 (court disqualified law firm for not submitting copies of a proposed order to the opposing party). Id. at 259.
We can reasonably infer that delivering a, “copy,” means an accurate and identical copy of that given to the judge. While common sense dictates a unilateral bit of colorful persuasion is wrong, how far must the court go to get to the bottom of it? The court can make an inquiry to determine whether the omission – not highlighting the opposing counsel’s copies – was intentional or the result of oversight. Assessing dishonesty or deceit would require an assessment of intent. If the case presents issues of first impression, might not the better solution be to allow both parties the opportunity to review the cases and highlighted portions, and afford the offended party the opportunity to submit his own case law?
Appellate courts must recognize the balancing required in the conflict between requiring adherence to the rules and ensuring the best and most thorough advocacy. Nowhere may this be more important than where the court is presented with a novel issue of law.
 In accordance with Canon 2B of the Canons of Judicial Conduct for the State of Virginia, any opinions in this article are those of the authors, they are personal, and they are not official opinions of the Virginia Workers’ Compensation Commission or any other court or governmental agency.
 E.g., the Virginia’s Workers’ Compensation Commission adopted Rules for its “Review” process. Commission Rule 3.2 provides in part, “The Commission will advise the parties of the schedule for filing brief written statements supporting their respective positions. The statements shall address all errors assigned, with particular reference to those portions of the record which support a party’s position.”
 Compare Graham v. Consolidated Stores Corp., Record No. 1464-98-3 (Va. Ct. App. Dec. 8, 1998)(An issue may be deemed waived or abandoned where a party assigns error to an issue in its request for review, but then does not argue that issue in its written statement) with Russell Stover Candies v. Alexander, 30 Va. App. 812, 520 S.E.2d 404 (1999) (Commission’s Rules permit it to address and correct, sua sponte, any errors of the Deputy Commissioner, whether or not written statements are submitted). But see, e.g., Fed. R. App. P. 31(c) (“If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who files to file a brief will not be heard at oral argument unless the Court grants permission.”); In re Young, 91 F.3d 1367 (10th Cir. 1996).
 Virginia’s Commission Rule 3.4 provides, “If oral argument is requested and the Commission considers it necessary or of probable benefit to the parties or to the Commission in adjudicating the issues, the parties will be scheduled to present oral argument.”
 For an interesting analysis of whether judges are, or should be, preferred “moral reasoners,” see Waldron, Jeremy, “Judges as Moral Reasoners,” 7 Int’l J. Const. L. 2 (2009).
 In re Kensington Int’l, Ltd., 368 F.3d 289, 310 (3d Cir. 2004).
 Polk County v. Dodson, 454 U.S. 312, 318 (1981).
 Model Rules of Prof’l Conduct r. 3.3: Candor Toward the Tribunal (Am. Bar Ass’n 1983).
 Id. r. 3.4: Fairness to Opposing Party and Counsel.
 Va. Rules of Prof’l Conduct r. 3.5: Impartiality & Decorum of the Tribunal.
 Id. r. 8.4: Misconduct.
 The ABA Model Rules of Professional Conduct contemplate this. “The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.” Model Rules of Prof’l Conduct, Preamble §16. (Am. Bar Ass’n 1983).
 VA. Rules of Prof’l Conduct r. 3.5 (e); see also In re Endicott, 157 B.R. 255, 259 (W.D. Va. 1993) (trustee’s submission of a proposed order to the bankruptcy judge without sending copies to creditor’s counsel was inexcusable.”)
 The obligation to prevent improper ex parte communications applies both to judges and to attorneys. Rule 2.9 of the American Bar Association’s Model Code of Judicial Conduct provides, subject to specified exceptions, “A judge shall not initiate, permit, or consider ex parte communications . . . concerning a pending or impending matter.”