Arguments waived on appeal by failure to cite some law

In Jeter v. Com., the Court of Appeals in an opinion by Judge Humphreys joined by Senior Judge Annunziata and Judge Felton said this:

Jeter also contends that the trial court erred in denying his motion to strike, contending that Schwartz’s “ultimate opinion” was not reliable because Schwartz did not personally test the control samples used to identify the presence of cocaine. In his opening brief, however, Jeter fails to cite any authority in support of this argument. According to Rule 5A:20(e), an appellant’s opening brief must contain “[t]he principles of law, the argument, and the authorities relating to each question presented.” By failing to cite any authority in support of this argument in his opening brief, Jeter has violated the provisions of Rule 5A:20(e). “[S]tatements
unsupported by argument, authority, or citations to the record do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Thus, we will not consider this issue on appeal.

At oral argument, Jeter admitted that he did not cite any authority in support of this argument in his opening brief, but he asserts that the citation of authority in his reply brief should be sufficient to meet the requirements of Rule 5A:20(e). Initially, we note that Rule 5A:20 expressly applies only to the “Opening Brief of the Appellant.” There is an entirely separate rule – Rule 5A:22 – that focuses on an appellant’s reply brief. Compliance with one rule cannot excuse Jeter’s failure to comply with the other.

Regardless, one of the fundamental purposes of Rule 5A:20(e) is to provide the appellee with notice of the authorities upon which the appellant purports to rely. Excepting oral argument, the appellee is given a single opportunity to distinguish cases and respond to arguments raised in the appellant’s opening brief. See Rule 5A:21; see also Rule 5A:19 (granting the appellant, but not the appellee, the right to file a reply brief). The appellee therefore has no meaningful opportunity to address arguments and authorities raised for the first time in a reply brief. Permitting an appellant to sidestep the provisions of Rule 5A:20(e) by citing authorities only in his reply brief would therefore deprive the appellee of the opportunity to meaningfully respond to the appellant’s argument, thereby eviscerating the underlying purpose of the Rule.

Because he presented no authority in his opening brief in support of his argument that the trial court erred in denying his motion to strike, Jeter has waived this issue on appeal, and we need not address it.

In a footnote, the Court added:

We further note that none of the authority Jeter cites in his reply brief has any bearing on whether the trial court erred in denying Jeter’s motion to strike. The arguments and authorities contained in Jeter’s reply brief focus on whether Schwartz’s opinion was inadmissible because it lacked a sufficient foundation. If the opinion of an expert witness lacks an adequate foundation, the appropriate action at trial is to move to strike the testimony of the expert witness. See, e.g., Harward v. Commonwealth, 5 Va. App. 468, 364 S.E.2d 511 (1988).

The trial court’s decision as to whether to strike the testimony of an expert witness is a question relating to the admissibility of the evidence. Jeter, however, did not move to strike the testimony of the expert witness. Rather, he moved to strike all of the Commonwealth’s evidence. Whether the trial court erred in denying a motion to strike all of the evidence is a question of the sufficiency – not the admissibility – of the evidence. Accordingly, the authorities Jeter cites in his reply brief miss the point entirely: Jeter should have cited authority supporting the proposition that Schwartz’s testimony was insufficient, not authority supporting the proposition that Schwartz’s testimony was inadmissible – an argument he did not raise before the trial court.

Well, I've got a case in the Court of Appeals, and I don't know what will happen, but THIS CASE will not be cited in the Court's opinion. I cite lots of cases, not withstanding Judge Luttig's admonition that appellate judging should not be based on the numbers.