It is about time that I publish some thoughts on my first trip to the Supreme Court of Virginia in the case of Ballagh v. Fauber Enterprises, Inc. As a refresher, I posted about this case here. Since then, a lot has changed.
I went to oral argument in the Supreme Court on April 14 of this year to argue that the burden of proof in a Virginia Consumer Protection Act case is a preponderance of the evidence and not clear and convincing evidence. What happened that day, was stressful to say the least.
Because it was my first trip, I was extremely nervous. My client was counting on my to perform at the top of my game and her case depends on my performance. To add to that burden, the Attorney General filed an amicus brief in support of my position because the A.G. is charged with enforcing the VCPA. Several other nonprofit organizations like the Virginia Trial Lawyers Association, the Virginia Poverty Law Center, the National Association of Consumer Advocates, Legal Services of Northern Virginia, and the National Consumer Law Center. In other words, a lot of peoples cases depended on my performance.
To be fair, almost all of the hard work was done in the depths of my office while writing the briefs and, intellectually, I knew that. The reality is that the Justices have read all of the briefs and the law before the oral argument. Chances are they have also already made up their minds. But as a lawyer and a human, my heart screamed that it all hinges on my performance at the oral argument.
So with all of that built up pressure, I departed about an hour early that morning from the southside of Richmond, thirty minutes away from the Court. Of course there was an accident on I-95 right at the bridge crossing the James River into Richmond. I was two miles away from downtown and traffic was virtually stopped. There were no exits that would easily lead me over the river and into downtown and it has been almost 15 years since I lived in Richmond so my backroads knowledge is not what it used to be. So I kept going. I called the court to tell them that I would be a few minutes late, but come on, this is the Supreme Court of Virginia. There is no such thing as a few minutes late. I drove. Slowly. When I finally reached the bridge, traffic really started moving just in time for me to get off my exit. I breezed through downtown to my favorite parking garage and I parked.
I had about three minutes to get to the court and sit my anxious rear-end in the gallery to await the clerk calling my argument. To boot, it started raining and I didn’t have an umbrella. I didn’t have time to fool with that anyway.
As I walked into the Court, I sped through the security check point and the bailiff said that I better get in because they are about to close the doors. I ran. Walked in the courtroom and walked briskly up to the front of the courtroom to sign in with the clerk. As I finished signing my name, in come the Justices. Ugh. Can you get any closer? I quickly returned behind the bar to sit down as if no one even saw me frantically signing in.
The last thing on my mind was the pressure I had been fretting over all morning. I told myself it doesn’t matter how I perform, I’m just glad I got there! With the pressure off, I sat and watched two cases before mine was called. I can do this. I was ready. But more importantly, I was there. You can listen to the oral argument here. I’ll let you judge my performance.