Choosing to Be Happy

For Steve Emmert, two decades as a litigator was just a rehearsal for his true calling: appellate law.

“A trial lawyer can only win one case at a time,” he says, “but an appellate lawyer can win a thousand cases into the future, even after he is gone, by establishing the right rule of law.”

Emmert should know. It’s not just that he’s handled scores of appeals both for the city of Virginia Beach and his current firm, Sykes, Bourdon, Ahern & Levy; his website Virginia Appellate News & Analysis was the first in the state devoted to the topic. Emmert offers same-day analysis of court opinions; plus news, essays and practical advice about appellate advocacy. He focuses largely on the state Supreme Court, but has been known to turn the spotlight on the 4th Circuit, Court of Appeals, or even, on occasion, SCOTUS.

Why go to so much trouble? “It is indeed time-consuming, but it’s a good public service, it’s good publicity, and it’s a great creative-writing outlet,” he says. “People know, from the fact that I analyze these things, that I have a law practice that focuses only on appeals. They also know that, each time an opinion comes out, I’ve not only read it but I’ve also taught other people about it. When you have to write an essay that analyzes what’s just happened, it makes you understand it better.”

This encyclopedic knowledge makes other lawyers turn to Emmert when a case is floundering.

“Sometimes litigators will approach him and say, ‘I’ve got this huge verdict that I want to protect,’ or, ‘I feel like the judge is on the cusp of making some key ruling and we’re going to lose. Will you get this ready for an appeal?’” says Kevin Martingayle of Bischoff Martingayle, who went up against Emmert a number of times when the latter represented the city. “So Steve will make sure that all of the right arguments are presented at the trial level, because if they aren’t, then they’re waived [from appellate consideration]. And he is the absolute best at getting a case ready.”

At one time, appellate opinions were released six times each year. Now, any Thursday can be an opinion day for the state Supreme Court, creating roughly 50 times a year when Emmert must be ready to sit down and examine every appellate ruling and report on it that same day. Emmert considers it time well spent.

“There’ve been times when I’ve been at the lectern of the Virginia Supreme Court and the justices asked me a question out of the blue,” says Emmert, “and I remembered an essay that I wrote about it and said, ‘But the Johnson case that you decided back then says to the contrary. Here’s what that case says.’”

In 2006, Emmert developed a program for the Supreme Court of Virginia that provides panels of volunteer appellate attorneys to represent indigent litigants in civil appeals.

In one case, Johnson v. Woodard in 2011, he cut his fee so he could represent 40 average citizens in Gloucester County who were dissatisfied with the conduct of four members of the county’s Board of Supervisors and had circulated a petition asking for their removal. In court proceedings, their lawyer failed to show proper cause for removal, Emmert says, and the opposing lawyer asked the judge to sanction the petitioners for filing a frivolous petition. The trial judge agreed and fined them $2,000 each.

“There’s a little clause in the Constitution that says Congress shall make no law prohibiting the free exercise of the right of people to peaceably assemble or to petition the government for redress of grievances,” says Emmert. “And that’s all they did. They exercised their constitutional rights, and the judge punished them.”

After Emmert took over the case and the state Supreme Court unanimously reversed the judgment, Emmert met with the citizens at a Gloucester church. He told each person “congratulations” or “I’m very proud of you,” looking everyone in the eyes as he circulated and shook their hands. Some were crying. It was as big a thrill for Emmert as it was for them.

Seeking joyful moments is pure Emmert. He slips jokes and lighthearted barbs into his website write-ups. He’s driven across the continent twice with his daughter, Caroline, stopping at national parks and baseball games along the way. And when Caroline, now 27, was wowed by amusement park thrill rides, he joined her in riding every roller coaster they could find.

“When Caroline was younger,” he says, “we joined a group called American Coaster Enthusiasts. They would have periodic meetings at coaster parks around the nation, and you would get to meet some of the engineers and people behind the scenes. But the best benefit was that, if the park opened at 10, you’d get to go in at 9:30 and have what they called ‘exclusive riding time.’ You’d get to sit on the coaster and never get off for a half-hour.”

Emmert spent his first eight years out of law school working for Marc Jacobson, a general civil practitioner who imparted the lesson that who you are as a person speaks louder than what you say. Emmert became known as a straight-shooter who excelled at trial work. He was so good that Virginia Beach’s city attorney brought him and another attorney in to build and launch a new litigation section to handle civil lawsuits. This was in 1990, right after the Greekfest riots had rocked the city and people were in a suing mood. Business was brisk, with two to three new lawsuits filed per week.

“Steve would handle whatever major thing was going on,” says Martingayle. “He was the go-to in-courtroom guy for Virginia Beach.”

All those trials taught Emmert how to advance a contentious position without being contemptuous. His manner was firm but respectful. “The oath that we take when we become lawyers says that we swear to support the Constitution of the U.S., the constitution of Virginia, and that we will ‘faithfully, honestly, professionally and courteously demean’ ourselves as lawyers,” he says. “But those adverbs don’t include the word meekly. You can’t be a chickenhearted lawyer.”

Emmert also began honing his appellate expertise. “I had handled a couple of appeals in my previous office without really knowing what I was doing,” he says. “I mean, I was pretty helpless, but I was able to do it without committing absolute malpractice or tripping over my shoelaces as I walked to the lectern. But in city hall, I got more complex cases and I started handling the office’s appeals, and for whatever reason I found out I was good at it. And I liked it.” After nine years working for Virginia Beach, he was wooed away in 1999 to become his current firm’s lead trial lawyer.

Known as an upbeat person who always sees the silver lining, acquaintances might be surprised to learn that he was once supremely unhappy. After four more years as a litigator, he came to an epiphany: The adversarial nature of trial litigation did not mesh well with his fun-loving demeanor. So he decided to transition to something he enjoyed: appeals.

“But there was no example of an appellate lawyer in Virginia before that,” he says, “except for the state solicitor general, who works for the attorney general’s office. So I didn’t have a path I could follow. I had to figure it out.” On the private side, the trial attorneys typically handled their cases through the appeal process at that time, Emmert says.

He developed an ambitious four-year plan to increase the appellate portion of his practice from under 5% to 75%. After 20 months, he had so many appeals he was able to give up trials altogether.

In his Virginia Beach office, 64-year-old Emmert sits, legs crossed, wearing a vest and tasseled loafers. A bronze placard on his desk reads, “He was big, mean, and ugly, but women found him irresistible.” He saw the phrase in a newspaper article about the pirate Blackbeard, thought it was funny and wrote it down on a piece of cardboard, which he folded and placed on his desk as a joke. His secretary got tired of the cardboard sign and surprised him one day by replacing it with the placard.

Emmert’s Van Dyke beard and eyebrows may have gone gray, but his eloquent conversation sparkles with youthful wit. Although he was born in Indiana, Emmert has lived in Virginia since the age of 3, and he embodies the best qualities of Southern charm: a courteous manner, a gentlemanly demeanor, and a way of telling stories that makes others smile. It helps that he can inject levity into any subject, however serious.

Once he was approached at a bar function by a former Supreme Court of Virginia justice who told Emmert he enjoyed reading his website. “And the devil in me could not be repressed,” Emmert says. “I told him, ‘I bet sometimes I write what you would like to write.’ In reviewing a criminal case, for example, when someone does something stupid I can write, You’ll never guess what the rocket scientist did next. And what I got from [the judge] was a smile and a barely perceptible nod before he turned away.”

In addition to his sense of humor, Emmert is known for his ability to convey complex, convoluted information.

“Steve’s blog appeals to a wide audience and is designed to be both informative and entertaining,” says Martingayle. “When he writes an appellate brief, he’s more formal and he makes it more appropriate for an actual appeal. But what they both have in common is that he takes things that are seemingly dense and complicated and breaks it down and presents it in a very easy-to-understand way … and makes it seem so simple and obvious that you find yourself having a hard time disagreeing.”

Adds former Norfolk Circuit Judge Norman Thomas, “He just has a unique argument style, which is to get to the point. It’s the same way he writes. The brevity in his words is remarkable.”

In the art of brief-writing, short is good—it’s called a “brief” for a reason. While working for the city, Emmert inadvertently trained himself to write very short briefs by—characteristically—taking others into consideration.

“Back in those days,” Emmert says, “our poor staff of secretaries had to prepare tables of contents and citations for these briefs. You didn’t have the kind of software you have now where you hit a button and, boom, it populates. They had to type them out one by one, so I did what I could do to shorten their job. And there’s a rule, Rule 5:18, which says that in a brief in opposition, where you are responding to somebody who [requests] an appeal, you have to include a table of contents and citations unless a brief is 10 pages or fewer. So I started writing 10-page briefs, not knowing that that’s what the justices wanted. All I knew was it made life easier on the secretaries.”

For anyone wishing to follow the path he blazed, Emmert is more than willing to show the way. When Thomas left the bench, it was Emmert who convinced him that appellate work was perfect for someone with his experience and temperament. “Steve will refer cases and do everything he can to help someone build an appellate practice,” says Thomas. “He did for me, for which I will always be grateful.”

“I’m not afraid to teach other lawyers how to compete with me. It’s not like there’s only a small pool of cases,” says Emmert. “The number of appellate cases is an ocean, and I’ve only got one cup.”

Besides, there have been other things more important than filling up his legal calendar, as evidenced by the way he gazes at the gilt-framed photo of his wife, Sondra, and daughter. When Caroline was very young, he says, “I made a conscious decision, ‘I’m going to be a participatory daddy.’ What a great move that was. Too many lawyers don’t make time for it.”

Then he sums up his life and career in his usual brief manner: “I’ve chosen to be happy.”