(Posted June 22, 2017) The Supreme Court of Virginia hands down two published opinions today.

Criminal law

The court takes up evidentiary issues in the context of a murder appeal in Carter v. Commonwealth. A jury convicted Carter of the death of his on-and-off paramour. The prosecution showed that Carter shot the victim in her home, while her two young sons were in the house. The confrontation occurred in her bedroom, where the victim and Carter were the only persons present.

After the shooting, Carter walked away, saying something to the children about an ambulance. He immediately called the victim’s mother to tell her that the victim had been shot and would be dead. He then called his boss and quit his job, saying he had done “something bad” that would be on the news.

Convinced yet? You have to admit that the evidence is overwhelming. But Carter claimed that he acted in self-defense – that the victim had been violent in the past and had told her mother that Carter “wasn’t going to be around long.”

At trial, Carter subpoenaed the mother, but she was hospitalized unexpectedly. Carter moved for a continuance, but after hearing a proffer of what she would say, the court refused. The court reasoned that the ostensible threat was conveyed to the mother, not to Carter, so it could not have affected his decisions on the night of the shooting.

During Carter’s case in chief, the court allowed him to tell the jury about some recent incidents where the victim had been violent, but barred him from adducing evidence about other such incidents years earlier.

During the jury’s deliberations, Carter objected to the prosecutor’s argument to the jury, contending that it was inflammatory, but the court overruled it. Carter also recalled one of his own witnesses who had given less-than-helpful testimony. That witness told the judge that his trial testimony had been false, and that the truth was more exculpatory.

I will ask my longtime readers to brace themselves before reading on: Despite this important revelation, Carter did not move the court immediately for a mistrial. Instead, he waited for the verdict to come in; after the jury found him guilty, Carter then asked for that mistrial, but didn’t get it.

The Court of Appeals affirmed the conviction. Today the justices unanimously affirm. The court holds that the limitation on evidence of the victim’s prior alleged acts of violence was within the trial court’s discretion. The justices assume without deciding that the exclusion of the mother’s proffered testimony was erroneous, and rule that it was at most harmless error in light of the other evidence of guilt.

The justices finally take up the issues of the prosecutor’s argument and the recanted testimony, but predictably find both of these issues waived. As for the jury argument, the law is well settled that you have to move for a mistrial before the jury begins to deliberate, so the judge can re-instruct the jurors if necessary. Once the door closes and deliberations begin, it’s too late to ask for a mistrial. On the recanted evidence, the justices find that Carter should have moved to treat the witness as hostile as soon as his testimony varied from what Carter expected. Waiting until deliberations begin to proffer the recantation, and until after the verdict to seek a new trial, is too late.

Trusts and estates

The parties argued Gelber v. Glock to the court in the February session, 16 weeks ago. When you see Justice McClanahan’s 39-page opinion, you’ll understand the reason for the time it took to ready today’s decision. It’s a suit between siblings over Mom’s property, with two of them suing as executors and trustees.

Because of the length of the opinion, the wealth of facts, and your limited time, I’m going to cut to the chase and lay out the many rulings in this unanimous decision.

  • When a person sets up a revocable trust that names herself as the trustee, she can revoke that trust by giving notice to herself. Because sending yourself a note seems hyper-technical, the law allows a settlor to revoke by the simple act of delivering a deed, signed in her own name.
  • Under the modern Dead Man’s Act, all sorts of otherwise inadmissible statements by the settlor/testator are admissible to show undue influence. The court notes that some very old caselaw – Wallen v. Wallen from 1907, which limited such statements to those made at the time of execution – is overtaken by the modern statute.
  • You can’t establish the value of real property by introducing a tax assessment. The public-records exception to the hearsay rule seems to allow this, but the exception doesn’t allow hearsay statements of opinion, and the value of land is inherently a matter of opinion.
  • A plaintiff can establish a prima facie case of undue influence by proving either “great weakness of mind and grossly inadequate consideration or suspicious circumstances,” or “that a confidential relationship existed between the grantor and proponent of the instrument.” Because the plaintiffs here adduced evidence that a reasonable juror could have found met those two criteria, the trial court here erroneously struck their case on undue influence.
  • The court also erroneously struck the executors’ claims of promissory fraud. Normally a fraud claim can’t be predicated on a promise to perform something in the future. If it were otherwise, then every breach-of-contract plaintiff could throw in a fraud count. But if the plaintiff proves that the defendant made a promise while having no intention of performing it, that states a valid fraud claim. I will leave to your imagination the question of how one proves another’s intention at a specific point in time.
  • Establishing a civil conspiracy claim requires proof of an underlying tort, including resulting damages. When the relief you want is rescission of a suspect contract, not damages, and you’re simultaneously stating separate tort counts for the same conduct, you can’t get rescission. This, I suspect, is an election-of-remedies cousin: A plaintiff can choose to repudiate the contract and try to get out from under it, or else embrace it and claim damages. He can’t do both.

The justices accordingly affirm in part, reverse in part, and remand the case for a new trial. The court vacates an award of attorney’s fees to the appellee, since that depended on the now-vacated judgment in her favor.




(Posted June 21, 2017) Yesterday the Court of Appeals of Virginia handed down three published opinions. Let’s take a look at two of them here.


Domestic relations

The en banc court adjudicates an issue at the intersection of state and federal law in Canales v.  Orellana, involving a boy born in Honduras in 2004. His father had nothing to do with him, so he was raised by his mother and maternal grandmother. Two years later the mother emigrated to America, leaving her son behind with the grandmother.

Years later, the mother brought her son back to America, and in 2015 she petitioned a JDR court in Loudoun County for custody. In the course of that proceeding, she asked the court to make findings that could serve as the predicate for something called Special Immigrant Juvenile status, a means of obtaining permanent residency. The ultimate decision of whether to grant a child SIJ status is up to the feds; but it all starts with findings in state juvenile courts.

The Loudoun JDR judge was happy to help the mother with a custody award, but balked when it came to the predicate SIJ findings. The court felt that it didn’t have jurisdiction to issue such findings. On appeal, a circuit-court judge agreed.

The Court of Appeals unanimously affirms this ruling. Judge Humphreys writes the opinion, which is a methodical stroll through the origins and limitations of a JDR court’s jurisdiction under the Constitution and Code of Virginia. (On appeal, the circuit court’s jurisdiction is derivative of the JDR’s.)

The court begin by noting that while some states have enacted statutes allowing their courts to make SIJ findings, Virginia hasn’t done so. Nor does the federal statute require state courts to make such findings – and I’m not sure that it could ever do so in any event, since as I conceive it, federal law doesn’t govern the subject-matter jurisdiction of state courts.

That isn’t the end of the question. Virginia JDR courts are empowered to consider a spectrum of factors in adjudicating matters involving juveniles, specifically including the best interest of the child. The mother argued to the CAV that in the course of the custody case, the juvenile court had the authority and even the duty to consider all facts relevant to the child’s best interest, and SIJ status (or not) is emphatically relevant to a child like this.

Here; you can decide for yourself if you agree. These are the two predicate facts that would allow the federal authorities to confer SIJ status:

an immigrant present in the United States —

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; [and]

(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence …

The mother contended that her son was under the JDR court’s jurisdiction, and his best interest was at the heart of the second factor. So how does she lose?

The Court of Appeals focuses on what the federal statute does not do: “In short, nothing in the federal statutory scheme mandates or requires that a state court take any action regarding SIJ findings.” Judge Humphreys is careful to note that the findings that the lower courts made here might well satisfy federal authorities in this case and in other similar ones. But that’s a matter for the feds to decide; not for a state-court judge to “pre-decide.”

And yet that factor might scuttle the federal process in this instance. At the JDR level, after listening to some testimony, the court declined to make certain findings, such as that the father had abandoned the child. The judge heard testimony before reviewing a proposed order prepared by the mother’s lawyers. The judge struck out paternal-abandonment language, noting that testimony on that point constituted hearsay that was “not sufficiently reliable to find that the Father has abandoned the child.”

Because of the procedural posture of this case, the mother is stuck with that factual finding. Since it depends on the factfinder’s assessment of live testimony and other evidence, the CAV won’t touch it.

Even so, there’s a fair chance that the justices might decide to take a look at this case, if the mother decides to appeal onward. It’s clearly a matter of first impression in Virginia – the CAV opinion says so – and given both its novelty and the importance of immigration matters in today’s culture, the Supreme Court might well conclude that this appeal involves “matters of significant precedential value,” one of the findings that would allow the justices to review a case like this under Code §17.1-410(B).

I did have one lingering concern about this outcome. The lower courts didn’t decline to make specific SIJ findings because of a failure of evidence or an exercise of discretion; both judges expressly ruled that they didn’t have jurisdiction to make the findings. This aspect of the case is a legal determination, and the Court of Appeals reviews it de novo. But the court’s holdings in this opinion focus on whether the courts were required to make the findings; not on whether they had the authority to do so. Those are two separate issues.

I’ll mention one other matter about this case. The father, presumably back in Honduras, has no idea that these proceedings are going on, since he was served by publication, presumably in a periodical that isn’t likely to achieve wide distribution in Honduras. Because of the importance of the legal issues and a father’s right to some sort of relationship with a child, the Court of Appeals appointed my friend Bill Hurd, Virginia’s first Solicitor General, to represent the father’s interests. I’ve read Bill’s brief and it’s an excellent piece of lawyering; he also went the extra mile by attempting to contact the father through an embassy, to try to ascertain his desires. I won’t let this report conclude without my expressing my admiration for Bill’s professionalism.

Indeed, the Court of Appeals had an impressive array of highly professional briefs all around, including the mother’s and amici including the Virginia Attorney General. In an era when CAV judges have to slog through a great deal of sloppy prose, it must have been a pleasure to review a case that featured high-quality briefs all around.


Criminal law

And that provides a nice segue into the other decision that we’ll explore today – Bartley v. Commonwealth. At its core, it’s about a drug-possession conviction. But in reality, it’s about the other end of the briefing spectrum.

Experienced appellate lawyers know that in addition to setting out assignments of error, an appellant must include argument and authorities for each assignment. Bartley contended that he was essentially entrapped by police; he complained that the trial court should have granted his motion to suppress, and that without the “suppress-worthy” evidence, there was no case against him.

Most of the lawyers among my audience might have a fair idea about how to craft an argument along those lines. But the appellant’s lawyer in this case left something to be desired in the eyes of the panel that considered his appeal. The opinion comes from Judge Petty – whom I know to be a patient man – and ominously includes the appelant’s “entire argument, unedited,” in support of his sole assignment of error.

If that phrase didn’t cue ominous music in the back of your brain, welcome to the world of understated appellate writing. The entire passage appears at pages 2-3 of the slip opinion. It cites two cases (although it does so only by using a single name, with no citation to a reporter), one of which states only that search warrants are presumed to be valid – hardly a helpful point for a criminal appellant. It contains typographical and grammatical errors. The entire argument can be summarized as, “It wasn’t fair for the police to do this, so I deserve to be freed.”

If the argument were fully developed, perhaps he should be freed. We’ll never know, because the CAV panel unanimously (and understandably) rules that in the absence of authorities to back up your arguments, the issue is waived for review, because Bartley’s brief “leaves us without a legal prism through which to view his alleged error …”

In jurisprudential parlance, this short opinion is what’s known as a bench-slap.




(Posted June 15, 2017) On the 802nd anniversary of the sealing of Magna Carta, we get a single opinion from the Supreme Court of Virginia, and that opinion actually cites Magna Carta. In AGCS Marine Insurance v. Arlington County, the justices take up a claim of inverse condemnation.

The insurer is the subrogee of a grocery store that sustained $1.8 million in losses when a county sewer backed up. The grocer’s primary claims were for the loss of its stock, plus cleanup costs. After paying the claim, the insurer sued the county, claiming that the damage arose from a public use. It cited the self-executing provisions of Art. I, §11 of the Constitution of Virginia.

The trial court looked at the suit and concluded that it stated nothing more than a garden-variety tort claim. Since condemnation (and hence inverse con) doesn’t apply to tort claims, the court sustained a demurrer and dismissed the suit. It also rejected a proposed amended complaint that would have added more detail.

The justices today unanimously affirm in part, but reverse and remand on the amendment issue. They agree that under Virginia’s law of eminent domain, the original suit didn’t state a claim for inverse con. That’s because the suit asserted that the damage merely came as a result of the sewer backup. To state an inverse-condemnation claim, you have to do more, and assert that the damage was the purpose of the public use, or at least a probable consequence of it.

While the original complaint didn’t meet that standard, the justices find today that the proposed amended complaint did. It contained allegations that the county knew that backups would occur on private property as a result of a diversion from another sewage-treatment plant, and that it was “most probable that a sewage backup would occur.” That, the Supreme Court rules, is enough to state a claim for which relief can be granted.

But wait; there’s more. Justice Kelsey’s opinion goes on for another ten pages to analyze a separate legal issue: Can you state an inverse-con claim for taking of or damage to personal property? Previous caselaw indicates that the answer is yes, but the county argued that that caselaw was limited to fixtures – personal property that had become annexed to, and hence a part of, the realty.

While the court has repeatedly explained the test for whether a given item is a fixture or not, you have to admit that a box of cereal and a bag of potatoes aren’t fixtures. The whole point of the grocer’s stocking them is that he wants them out the door as soon as possible.

The court rules today that personal property is indeed the proper subject of condemnation proceedings, and it doesn’t matter whether it’s a fixture or not. On remand, the insurer will get to press its claim, and if it can prove that the county knew or should have know that its sewer-plant diversion was likely to produce a result like this, the county might have to pay some or all of that claim.




(Posted June 12, 2017) This morning the Supreme Court of the United States reverses the Fourth Circuit in Virginia v. LeBlanc, involving a life sentence imposed on an offender who was a juvenile at the time of the offense. A US district judge and the Fourth Circuit had ruled against the Commonwealth on habeas review, but today the Supreme Court rules that those decisions didn’t afford sufficient deference to the state courts’ conclusion on the constitutionality of Virginia’s sentencing scheme.

This is the case in which the state courts held that the availability of geriatric release means that even life sentences without parole are not truly life sentences, in that each inmate has at least a hope of getting released someday. A district judge found that explanation wanting, going to the extent of writing that reasonable jurists could not disagree that the Virginia courts’ rulings – including a decision from the SCV – were plainly unconstitutional. The Fourth Circuit affirmed, but today SCOTUS reverses in a unanimous per curiam order.

Today’s short opinion is assuredly not the last word on the subject. The justices cite the statutory deference spelled out in the Antiterrorism and Effective Death Penalty Act of 1996. Because there are two plausible sides to this issue, the justices reverse the grant of habeas relief. But the Court takes pains to note that it can still address the issue on direct appeal, where no such deference is mandatory. I suspect that at least one direct appeal is wending its way through the system, so while the game is over for LeBlanc, the issue isn’t fully settled.





(Posted June 8, 2017) The criminal defendants’ appellate losing streak continues today in the Supreme Court of Virginia’s only published opinion. Commonwealth v. Moseley involves convictions for burglary and larceny (two counts of each).

In June 2013, two homes in the City of Hampton, less than a mile apart, sustained burglaries. At around the time of the first one, a police captain drove past one of the homes and said that she “inadvertently ‘cut off’ another driver who was ‘pulling off the curb’” beside the victims’ home. The other car stopped and the captain got a good view of the driver, who turned out to be Moseley; he appeared startled. Because there had as yet been no report of a burglary, she let Moseley drive away.

On the day of the second burglary, a police officer responded to a report of an attempted burglary in the same neighborhood. The call described the suspect, and the officer soon spotted Moseley walking along a street. He fit the description, so a Terry stop ensued. Moseley had heavy knit gloves in his pocket on a June day. The officer arrested him.

Remember the police captain? She heard about the arrest on the police radio and decided to go to the police station. When she got there, she recognized the driver of the car she had cut off.

There’s one more factual component. The same day as the arrest, a tow-truck driver got a call to remove a seemingly abandoned car from the same neighborhood. The windows were down and the keys were inside. After towing the car, the driver started to inventory its contents. That’s when he found the marijuana, the old coins, the jewelry …

His boss told him to stop and call the police. An officer got a warrant and searched the car, finding all this stuff, including items that had been stolen from the two burglarized homes, in the glove compartment. He also found there Moseley’s ID. The materials were “all jumbled up … they were all just kind of mingled together.”

And that’s a wrap, the local prosecutor evidently felt before securing indictments. At trial, Moseley moved to strike. He contended that the Commonwealth didn’t prove that he had exclusive possession of the stolen goods, and without the exclusive-possession inference, there was nothing to prove that he committed the burglaries and the larcenies. The trial judge was unmoved; he allowed the evidence and convicted Moseley.

The Court of Appeals stepped in and reversed last year. A unanimous panel reversed. The CAV ruled that the presumption did not apply, and in the absence of the inference, found the circumstances suspicious but not proof beyond a reasonable doubt.

Now it’s the Commonwealth’s turn to appeal. Today, a year and a day after his victory in the CAV, Moseley learns that he’s headed for prison after all. The justices reinstate the conviction, finding that the circumstances, viewed as a whole, were sufficient to establish guilt beyond a reasonable doubt.

The Supreme Court’s approach is to assume without deciding that the inference didn’t apply. (The Commonwealth evidently conceded the point in oral argument in the CAV, so it seems best not to scale that mountain.) It then chides the Court of Appeals panel for examining each inculpatory fact in isolation, rather than as a whole.

There is, however, a dissent today. Justice Goodwyn argues that without the burglary inference, the evidence won’t cross the beyond-a-reasonable-doubt finish line.

Here’s the sum of the evidence, excluding the inference, taken from the majority opinion:

Moseley was seen “pulling off the curb” next to the Winsley residence during the window of time when that home was burglarized. Moseley was then arrested less than a month later in the area of a second burglary because he matched the description of the suspect in an additional attempted burglary. At the time of his arrest, Moseley possessed “heavy knit” freezer gloves even though June 17, 2013, was not “a particularly cold day.” Hours later, while he was in custody, a vehicle Moseley routinely drove was towed from an apartment complex where it sat abandoned with the windows down and keys inside. The center console of that vehicle contained various items stolen from both homes, which were commingled with two identification cards bearing Moseley’s name.

Justice Goodwyn believes that while these facts are suspicious, they don’t establish (in the absence of the inference) that Moseley was the person who actually broke into the homes. That matters a lot, because the punishment for, say, receiving stolen property is quite different from that for the more serious felony of burglary.





(Posted June 5, 2017) Last week I mentioned that the Supreme Court has amended the rules relating to the signature requirement on pleadings. The new rule, which takes effect August 1, gives litigants a means to get leave to correct a defective signature, with the curative action’s relating back to the original filing date. I felt then, and I continue to feel, that this is a welcome course correction.

I have a terrific set of readers, and one of them wrote to me over the weekend to point out something that I had missed: Two important aspects of the rule only apply to pleadings filed in circuit courts. If you practice in GDC or JDR, be warned that you don’t get all of the new protection.

Here’s the text of subsection (d) of new Rule 1:5A:

Statute of Limitations Governed by Statute. If a complaint filed commencing a civil action – as provided in Rule 3:2(a) – is dismissed because it was signed by a person who is not authorized to practice law in Virginia, the statute of limitations for refiling of any claims asserted therein shall be computed in light of the time the action was pending as required by Virginia Code § 8.0 1-229(E)(1).

Rule 3:2 describes the process for filing suit in circuit courts. Its parallel in general district courts, Rule 7B:4, specifies that a plaintiff can sue “by warrant, summons or complaint.” In JDR, Rule 8:3 requires a petition, not a complaint, to initiate legal proceedings. Because of the express reference to Rule 3:2, it appears that the tolling provision in the new rule doesn’t help litigants and lawyers in GDC or JDR.

I hasten to add that other provisions in the new rule contain relation-back provisions, so even GDC/JDR litigants who amend successfully while the case is alive are protected. But the tolling effect of a dismissed action only applies to actions filed under Rule 3:2 – that is, in circuit. If you’re in GDC or JDR and hope to get the benefit of this tolling provision, please note that you won’t get it. The only way to proceed safely is to seek leave to amend during the pendency of your existing lawsuit.

In the same vein, the protection of subsection (e) of the new rule, which covers defectively signed notices of appeal, expressly applies only to appeals from circuit, not GDC/JDR:

Notices of Appeal. If a notice of appeal from the circuit court is filed with only the signature of an attorney or other purported representative who is not then authorized to practice law in the Commonwealth, a later notice of appeal in the same proceeding on behalf of the same party or parties and relating to the same judgment or order-if properly executed by an attorney qualified to practice law in Virginia, and filed within 90 days after the original-shall relate back to the date of filing of the original notice of appeal.

In this context, the new rule doesn’t apply at all in the lower courts, so aggrieved litigants have to get it right the first time.






(Posted June 2, 2017) The Supreme Court has amended several rules of court. The changes will take effect on August 1. The only one that affects appellate practice – though it will have a noticeable impact on trial practice, too – is this new rule, relating to authorized signatures on pleadings.

Right now, the signature requirement is draconian. When a litigant or lawyer blows it – for example, where foreign counsel only, and not a Virginia attorney, signs a pleading – the pleading is a nullity. See Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279 (2002) for a harsh example. There, an attorney admitted pro hac vice signed and filed a notice of appeal. When his “team” discovered the problem, they filed an amended notice, signed by local counsel. The justices held that the original notice was a nullity and the defect could not be cured by an amendment, so they dismissed the appeal. There are other victims on this bloody trail: for example, Kone v. Wilson in 2006 and Nerri v. Adu-Gyamfi in 2005.

Starting August 1, new Rule 1:5A gives a court discretion to allow a litigant or attorney to correct the error, with the amendment’s relating back to the original filing date. Subsection (d) specifies that if a court dismisses a suit for an improper signature, the tolling provision of Code §8.01-229(E)(1) applies, so the plaintiff can quickly refile. That takes care of the problems in Kone and Nerri. And subsection (e) expressly addresses the problem in Wellmore Coal, allowing a corrected notice of appeal to be filed within 90 days, with the amendment also relating back.

I’ll add one word of caution: Like any other amendment, you must get leave of court to do this. An amendment that’s filed without leave is more of a problem than just being a legal nullity; the justices have ruled that a court doesn’t acquire jurisdiction to adjudicate an amended pleading that’s filed without leave. Mechtensimer v. Wilson, 246 Va. 121, 122-23 (1993). This new rule offers a lifeline for litigants or lawyers who botch a signature requirement, but there’s a specific way to take advantage of the lifeline.

No one has asked me for my opinion, but I’ll offer it anyway: This is a welcome change. Any process that allows an appeal to be decided on the merits instead of by procedural default is good by me. In an era where an appalling percentage of appeals die premature deaths, it’s nice to have a procedural mechanism to reduce that toll somewhat.



(Posted June 1, 2017) After going without a single published opinion for the month of May, we open June with five new presents from the Supreme Court of Virginia. Today’s primary theme is criminal law; four of today’s decisions involve criminal prosecutions.

I suppose I could keep you in suspense, but because I love my readers, I’ll tell you now: Things do not go well for the accused today.


Criminal law

I’ve long felt that if you’re appealing a judgment that’s based on an adverse jury verdict, one of the best places to start looking for appellate issues is the jury instructions. That’s because appealing a finding of fact is painfully hard, but appealing an adverse decision on a refused jury instruction gives the appellant a very favorable standard of review. The appellant in Howsare v. Commonwealth took me up on that advice and challenged two trial-court rulings on instructions.

This is a murder case in which Howsare shot the victim through a glass storm door. He contended that he fired his weapon merely to scare the victim away from his (Howsare’s) home; he had no intention to injure.

We can ponder another time the plausibility of that defense in light of the fact that he hit the victim three times in the torso at close range. Our issue today is the Commonwealth’s proposed instruction on intent:

Intent is the purpose formed in a person’s mind which may, and often must, be inferred from the facts and circumstances of a particular case. The state of mind of the defendant may be shown by his acts and conduct.

Howsare disagreed with this instruction for two reasons: It wasn’t from the model instructions, and it failed to apprise the jury that it could consider his statements in addition to his acts and conduct.

By the way, what do you suppose is the difference between one’s acts and one‘s conduct?

The Commonwealth agreed on appeal that it wouldn’t be incorrect to add the word statements to the instruction. But it pointed out that Howsare had offered his own instruction on that point:

The statements presented to you as having been made by the defendant are submitted for your consideration along with all the other evidence. The weight, value, credibility and reliability of those statements are questions for your determination.

The trial judge read this instruction to the jury. The justices accordingly affirm the conviction, since it’s well-established that in evaluating instructions, a reviewing court considers them as a whole, not in isolation.

As for the model-instruction objection, virtually every experienced trial lawyer knows where this is going: “Code § 19.2-263.2 expressly provides that an instruction that accurately states the law applicable to the case shall not be withheld for that reason.”

Epps v. Commonwealth presents a situation that won’t arise often. A grand jury indicted Epps on charges of assault and abduction. The foreman signed the indictments as “a true bill” and returned them in open court, just as the statutes require. But the court didn’t get around to entering an order recording the indictments until after trial. Does that make the prosecution invalid?

The trial court didn’t think so. It first learned of the oversight after trial but before sentencing, when Epps raised the issue in a motion. The court dutifully entered such an order, and then denied the motion.

Today the justices affirm. The statutes and rules specify that in order to be valid, the indictment must be signed “a true bill” and returned in open court. Epps conceded that those two things happened. The third “requirement,” of an order recording the indictment, doesn’t have a time limit, and the court finds that it’s procedural and not jurisdictional, so Epps waived the issue by going to trial without raising the defense seven days before trial.

Let’s turn now to Hackett v. Commonwealth, an appeal involving a marijuana-distribution conviction. This one’s about finality, and it includes at least one “Oh, my!” passage for me.

Way back in 2008, police nabbed Hackett selling a modest amount of marijuana. After an indictment, his lawyer and the prosecutor reached an agreement for a plea. Hackett would plead guilty to the original felony charge, and the court would “take the case under advisement for an extended period of time, under any terms and conditions imposed by the court,” with the further understanding that if he was a good boy, the charge would be reduced to a misdemeanor.

I’ve never prosecuted felonies, but my understanding is that this kind of deal happens every day in courts across the Commonwealth. The problem here is that while both the prosecutor and Hackett agreed that this was the deal, no one spelled that out in the sentencing order.

That order came after a sentencing hearing in which the judge gave Hackett a choice. Today’s opinion describes that as “‘walk out of the courtroom with a felony conviction’ or ‘go the extra mile’ and submit to the court’s requirements.” Hackett chose the path to a misdemeanor. The judge gave him three years with 27 months suspended.

But the court never suspended that order. Under Rule 1:1, it became final 21 days later. That didn’t stop Hackett from later petitioning the court to modify the conviction – after all, he had a deal for a reduced charge – and after a dizzying series of hearings and orders, eventually the court concluded that it had no more authority to act. Hackett was left with a felony and no redress.

No redress except an appeal, that is. He went first to the Court of Appeals, which affirmed, the justices then granted a writ, but today they also affirm, noting that Rule 1:1 is ruthless. Only an order entered before the court loses jurisdiction can stop finality. A judge can’t reignite the flame by a nunc pro tunc order.

The justices aren’t heartless; they recognize that this ruling creates a hardship. Here’s a passage that illustrates both that recognition and the rule’s ruthlessness:

This Court is aware that Hackett complied with all the terms and conditions set by the trial court, with the understanding that by doing so his felony conviction would be reduced to a misdemeanor. However, once the trial court’s conviction and sentencing orders became final, the trial court lost its authority to modify the conviction. The Court of Appeals did not err in affirming the trial court’s ruling that it lacked the authority to amend the conviction after more than 21 days had passed since entry of the conviction and sentencing orders.

I mentioned an “Oh, my!” component to today’s decision. When Hackett appealed from the CAV to the SCV, the local Commonwealth’s Attorney assigned cross-error that essentially agreed with Hackett’s contentions. The most plausible explanation for that is a genuine sense of injustice: The prosecutor had made a deal and was doing what he could to carry that out, in fairness to Hackett.

When a criminal defendant appeals, the usual course is that the local prosecutor continues to represent the Commonwealth until and unless either appellate court grants a writ. At that point, one of the lawyers in the Attorney General’s Office takes over. When that happened here, the AAG assigned to the case wrote to the Supreme Court and abandoned the cross-error. That didn’t sit well with the local prosecutor, who asked the justices for leave to brief the cross-error anyway. I’ll allow your imagination to wander as to the likely exchange of correspondence and phone calls between the two prosecutorial offices.

The justices declined to allow the prosecutor to brief the cross-error, but they allowed him to file an amicus brief in support of Hackett’s position. As I read today’s opinion, I admired that Commonwealth’s Attorney, who went the extra mile in order to do what he felt was the right thing.

The lasting lesson of this case is that finality concepts are sometimes tricky for trial lawyers and sometimes even trial judges. The trial judge expressly stated that he had intended to reduce the felony to a misdemeanor, and acknowledged that Hackett kept up his end of the deal. But once the case got into the hands of an appellate lawyer – that AAG I described above – the finality problem became apparent.

Are you tired of reading about affirmances in criminal appeals? How about a reversal? I can help you here, but that’s still bad news for the defendant: Commonwealth v. White is an appeal by the Commonwealth involving a suppression issue. This one contains a major preservation lesson for criminal-defense practitioners.

Police officers arrested White at a Norfolk motel that an officer described as a “known drug motel.” He had just completed what looked like a drug sale to the driver of a car outside the motel. A consensual search of his person revealed a flood of damning evidence, as today’s opinion describes:

  • a large amount of uncut “raw” heroin in three baggies of different weights, J.A. at 130-32, consistent with a drug dealer’s typical inventory;
  • enough heroin, after cutting, to produce as many as 129 capsules of heroin when most heroin users, the expert opined, possess no more than 2 to 4 capsules at any one time, id. at 145;
  • the absence of any smoking devices, capsules, syringes, or other user “work kit[s]” that would allow White to use any of the raw heroin in his possession, id. at 138-39;
  • multiple stacks of currency sorted into different denominations and separated into different pockets, which the expert explained is a practice of drug dealers who are fastidious with their revenues, id. at 131; and
  • two cell phones, which indicates distribution because, as the expert testified, dealers typically use one cell phone as a “drug work phone” and the other as a “personal phone,” id.; see also id. at 139.

I’m going to leave aside for the moment the obvious question why a guy with that much contraband on his person would ever consent to a search by a cop. For now, I’ll just add that he evidently felt the need to point the gendarmes to more inculpatory evidence. He told the officers to “find my girlfriend Tanya at Room 219.” The officers were happy to comply; when they got there, Tanya helpfully consented to their examining a bag that she confirmed belonged to White. They found a digital scale, small baggies, and 200 empty capsules.

Believe it or not, after all this, the defense was that all this stuff could well have been for White’s personal use, so he couldn’t be convicted of possession with intent to distribute. White moved to suppress the evidence found in Room 219, but the judge didn’t buy it. White was convicted after a bench trial. An appeal to the CAV earned him a surprise: a reversal of his conviction, as the appellate court found the search improper.

The justices agreed to take a look at the suppression ruling. While resolution of that issue turns on a close call involving apparent authority for a consensual search, the justices today find a simpler way to decide the case. They assume without deciding that the suppression ruling was in error, and unanimously find that that error was harmless. Even leaving aside the evidence found in the room, the court rules that the evidence found on White’s person compels a finding that this was for distribution, not personal use. The court cites “the limited role that the challenged evidence played at trial – just two questions posed to one witness, and no mention of it in closing arguments – in concluding that the evidence from the motel room had only marginal significance at trial. The justices accordingly reverse the CAV’s ruling and reinstate the conviction.

Thus endeth a day in which criminal defendants got shut out in the Supreme Court, without so much as a dissenting vote. Then again, this hasn’t been their year; the justices have decided twelve criminal appeals in 2017, counting published opinions and unpubs, and the defendant has won but once.


Mechanic’s liens

Lawyers who handle mechanic’s-lien suits are a bit like appellate lawyers, bookish and focused on minutiae that can have enormous consequences. Many lawyers probably think that both groups speak, if not a different language, at least a separate dialect from “mainline” practitioners. Today we get a ruling in Desai v. A.R. Design Group that addresses how the court views substantial defects in liens. If you’re one of those mainline skeptics, bear with me and read on for an interesting ruling.

I’ll confess that my limited experience with liens, back in the Dark Ages when I handled trial work, convinced me that any defect in the lien would prove fatal. Not so; there’s a statute that says that a lien memorandum “shall be sufficient if substantially in form and effect as follows.” It then goes on to furnish a form that claimants can fill out and record to provide notice of their claims.

A.R. Design did work relating to two properties up in the State of Northern Virginia. Desai was the record owner, as successor trustee of what looks like a family trust. A.R. Design’s vice president ran off the handy form in the Code and filled it out. In doing so, he listed Desai personally as the owner in the affidavit supporting the memorandum. That is, he didn’t list her as the trustee. (He did add an alternate listing of her as executor of the estate of the original trustee. That part doesn’t appear to be relevant to our analysis.)

The form also didn’t include a date from which the claimant sought interest. Finally, in the affidavit, the vice president listed himself as the claimant, not the company. He filled it out with his name followed by “VP,” which we all recognize as his title.

The issue in this appeal is whether one or more of these variances invalidates the lien. The trial court didn’t think so, so it upheld the validity of the lien. Today the justices affirm.

In my mind, two of the court’s three rulings are uncomplicated. The memorandum doesn’t include a date for the commencement of interest, but that’s because A.R. Design wasn’t asking for interest. As for naming Desai in her own name instead of as trustee, the court notes that a trustee holds legal title, and Desai had the right in that capacity to sell or mortgage the property. The justices conclude that “Adding the word ‘trustee’ was not necessary for a valid memorandum of mechanic’s lien,” especially since the purpose of a memorandum is to provide record notice. Listing it like that will cause a title examiner to get a “hit” on Desai’s name when searching the title.

The court’s third ruling gives me pause. The form reads like this, in pertinent part: “__________, claimant, or ___________, agent for claimant, [swore] that _________, owner, is justly indebted to claimant in the amount of $___________ …” The vice president filled out this affidavit by inserting his name and the letters VP in the first blank and lining out the second one. That means that, stripped of extraneous information, the affidavit reads, “Abbas Rahani, VP, claimant, [swore] that [Desai], owner, is justly indebted unto claimant in the sum of [about $183K] …”

The Supreme Court today rules that that’s close enough to validate the lien, because Desai wasn’t prejudiced by the error. In doing so, the court lays down a rule of law that lien practitioners will need to know: “We hold that a defect in a memorandum of mechanic’s lien is substantial if it would prejudice a party or if it would thwart one of the purposes underlying the statute.”

That, you will acknowledge, is a far cry from the any-mistake-is-fatal approach that I had envisioned in my aimless years as a trial lawyer. Even so, I’m troubled by the ruling, although the opinion indicates in a footnote that courts in Michigan, Oregon, and Texas have also adopted this approach. There’s a difference between a company and one of its officers, and this affidavit states that the owner owes all that loot to the vice president; not to the company. This approach seems to me as though it’s allowing the claimant to reverse-pierce its own corporate veil.

Now for the major caveat: I’m in no position to go making forceful pronouncements on something as esoteric as mechanic’s-lien law. I’d prefer to hear from some of my readers who regularly swim in this pool, to see if they believe this ruling is a departure from the traditional strict enforcement of lien laws.

*   *   *

The five opinions handed down today were all argued in the April session, six weeks ago. There are still six appeals outstanding from the crop argued in the February session, three months ago. (This number may dwindle if the justices hand down any unpubs today. As of the time of my completing this analysis, just before 5:00 pm, no unpubs have hit the wire yet, but that’s normal.)




(Posted May 25, 2017) No sooner did I complete the essay below than news hit the wire of the Fourth Circuit’s ruling today in Int’l Refugee Assistance Project v. Trump, the appeal of the President’s revised nationwide travel ban directed to travelers from several predominantly Muslim nations. The en banc court – minus two members who recused themselves – acted quickly, handing down the decision just 16 days after entertaining oral argument earlier this month.

There are eight opinions in all. The chief judge assigned to himself the majority, and four other members of the court filed concurrences. Three judges – Niemeyer, Shedd, and Agee – filed dissents, with each of the dissenters joining both of his colleagues. It is a labor to plow through them all; they aggregate to 205 pages. (To be fair, it takes a good, solid eleven pages just to list the names of the parties, the amici, and everyone’s lawyer.) The eventual vote is 10-3 to affirm.

SCOTUS has cautioned against injunctions directed to the President, noting that a “grant of injunctive relief against the President himself is extraordinary, and should . . . raise[] judicial eyebrows.” (I like it when jurists go beyond the basic to craft a notable turn of phrase.) The court accordingly dissolves the injunction as to the President personally, expressing confidence that he’ll abide by the directive anyway.

But that’s about all that goes well for the President. The court affirms the injunction on a nationwide scale after analyzing the factors set out in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). Note that that case discusses the standards for granting a preliminary injunction, and that’s all that’s at stake here; the underlying case is still very much alive in the district court, though it’s on hold because of this appeal.

In affirming, the majority – though not all the concurrers – look to statements made by Candidate Trump, not merely those made after Inauguration Day. This raises an interesting philosophical (and even constitutional) point: Won’t it chill political speech, by those campaigning for office, if the candidate knows that her opponents can mine her campaign speeches for evidence in later legal actions? The majority isn’t troubled by this at all: “To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.”

The dissenters disagree, of course; here’s Judge Niemeyer’s riposte: “The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds — one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.” He goes on to describe campaign statements as:

unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often ambiguous.

(Clearly, this is a man who understands the political process quite well.)

Before getting to the merits, though, the majority must cross certain thresholds – standing and justiciability. At least some of the petitioners – notably one identified as “Doe #1 – in the underlying suit are individuals who were separated from their families as a result of the revised ban. Those petitioners have a concrete claim to individual harm.

As you might expect from a decision of this magnitude, the rhetoric soars. Here’s one example from the beginning of the majority, describing the question as:

whether [the Constitution] protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.

Let’s give the floor to the dissenters; here’s Judge Shedd:

Today’s decision may be celebrated by some as a victory for individual civil rights and justice, and by others as a political defeat for this President. Yet, it is shortsighted to ignore the larger ramifications of this decision. Regrettably, at the end of the day, the real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm. Even if the district court’s instinct is correct and no tangible harm directly results from its order enjoining the President from attempting to protect American citizens, the injunction prohibits the government from addressing a serious risk identified by the Attorney General and Homeland Security Secretary; therefore, the security of our nation is indisputably lessened as a result of the injunction. Moreover, the President and his national security advisors (and perhaps future Presidents) will be seriously hampered in their ability to exercise their constitutional duty to protect this country.

I’m going to stop here so I can post this today; you will no doubt see plenty of commentary in many other forums and from differing perspectives. Besides, if I were to cover this decision in minute detail, you’d need a long holiday weekend to read it all. (I know you have one of those coming up, but who wants to spend it reading legal analysis? Go have some fun, but do pause to remember the reason for this holiday.)





(Posted May 25, 2017) For the fourth consecutive Thursday, there are no published opinions from the Supreme Court of Virginia. Instead of case analysis, let’s take a look at some recent legislative action that addresses previous SCV decisions.


Real property

Two years ago next month, the justices handed down Evans v. Evans, and the ruling came as a big surprise to dirt lawyers. The case allowed a tenancy by the entireties to be severed by a deed signed by only one spouse, as long as the other spouse did something to evince consent to the severance – in this case, recording the one-signature deed.

The way I learned real-property law, a tenancy by the entireties could be severed only by one of the three Ds: The death of one spouse; a divorce decree, or a deed signed by both spouses. Evans broke new ground in a way that no dirt lawyers foresaw (and the new method didn’t even begin with a D). I heard one such lawyer muttering that this ruling was because there were no former real-estate lawyers on the Supreme Court.

This year, the General Assembly passed Del. Adams’s HB 2050, which inserts a new provision:

Except as otherwise provided by statute, no interest in real property held as tenants by the entireties shall be severed by written instrument unless the instrument is a deed signed by both spouses as grantors.

Thus, as of July 1, we’ll be back to the three Ds. In theory, some titles might be in limbo if a one-signature deed went to record before July 1. But I doubt it; the circumstances of Evans are unlikely to pop up very often.


Wills and trusts

A year after startling dirt lawyers in Evans, the justices scared the bejeebies out of probate lawyers by handing down Thorsen v. Richmond SPCA. In that case, a woman directed her lawyer to prepare a will naming the SPCA as a contingent beneficiary of her entire estate. The will he prepared, however, described only her personal estate, and nobody noticed until it was too late (that is, after the testator died). That left her real estate to pass by intestate succession, costing the SPCA about $600K worth of land.

The SPCA sued the lawyer and won, and the justices affirmed. The decision contained two remarkable holdings. First, an heir has standing to sue for legal malpractice, on the premise that the heir is a third-party beneficiary of the contract between the lawyer and the testator. Second, the right of action for such a claim accrues on the death of the testator, which can be decades after the lawyer finished work on the job.

The first of these holdings was remarkable in that prior caselaw seemed to be completely contrary to the ruling. A 1989 decision, Copenhaver v. Rogers, had held that heirs couldn’t sue based on the will because they weren’t in privity with the lawyer. The justices neatly avoided that problem with this distinction: “The fatal aspect of the claim, however, was that [the Copenhaver heirs] had asserted they were intended beneficiaries of the estate rather than intended beneficiaries of the contract.”

As of July 1, that distinction won’t work anymore. Two bills – HB 1617, patroned by Del. Habeeb in the House; SB 1140, by Sen. Sturtevant in the Senate – wipe out the Thorsen holding. The new statute provides that the right of action accrues when the lawyer finished work on the project, so there’s no time-release explosion for the lawyer. It also states that only the testator or his personal representative can sue. That avoids the potential problem of a lawyer who wonders if his loyalty lies to his client or the heir, in case there’s a divergence.

The statute also contains a provision that immunizes lawyers from liability for things like statutory or common-law changes that occur after the representation ends. The Act of Assembly (though not the statute itself) also contains a sunset provision for previous probate work:

That if a cause of action for legal malpractice covered by this act accrued prior to July 1, 2017, and is barred because of the provisions of this act as of July 1, 2017, such cause of action shall be commenced on or before the earlier of either July 1, 2018, or the expiration of the applicable limitation period under the law in effect prior to the enactment of this act.

Accordingly, if a lawyer drafted a will in 1985 for a relatively young client and is worried about getting sued whenever that client gets around to dying, the lawyer can breathe easy starting in July 2018.


Civil procedure

Procedure geeks, rejoice! The demurrer trap is no more.

I wrote extensively about the trap in 2012. It arises when a court sustains a demurrer but gives the pleader the opportunity to amend. The demurrer statute unambiguously allows the pleader to amend without waiving her right to argue on appeal that the first pleading was viable. But the justices have ignored that provision for decades; they commonly rule that when a litigant amends, they’ll only consider the amended pleading. In order to preserve an appeal about the first pleading, you must incorporate or refer to that original in your amended pleading.

That doesn’t sound so hard, except that some trial judges can get testy when you replead a count that they’ve dismissed with prejudice. And the incorporate/refer requirement isn’t in the statute; it’s essentially invisible for those poor souls who don’t read VANA faithfully.

Del. Minchew rode to the rescue earlier this year. His HB 1816 conforms the statute to court practice by expressly including the incorporate/refer provision. Now a pleader can presumably avoid judicial wrath by pointing to the statute and saying, “But I have to do it this way …”

I mentioned above that the trap is gone. Technically, it isn’t completely gone; but now it rests in plain sight, where all but the truly oblivious can see it and meet its requirements.

All three of these bills sailed through the legislature without a single dissenting vote. The bills regarding Evans deeds and the demurrer trap were based on recommendations of the Boyd Graves Conference.




(Posted March 23, 2017) The Supreme Court has now gone two Thursdays without releasing any published opinions, so it’s time for a different angle. The court’s 2016 statistical report is out. Since I know that most of you hate numbers – that’s why you got into a profession that emphasizes words – I’ve done the digging and sifting for you. That being said, if you really-most-sincerely hate numbers, I might not be able to soften this enough for you. I hope you’ll bear with me, for the lessons are worth learning.

Here are a few items that caught my eye.

How’s appellate business?

Business is down (mostly). SCV Clerk Trish Harrington opened just 1,852 new files last year. That’s the smallest number since 1990, and it’s off 7% from the 2015 total of 1,996. But the drop-off is one-sided: by coincidence, the court received the same number of civil petitions in each year: 569.

The big change is in criminal petitions, which fell from 974 in 2015 to just 774 last year, a reduction of just over 20%. I could speculate whether this means that inmates are more accepting of their fates (doubtful) or they’re getting demoralized by the puny reversal rate. The justices ruled in favor of the prosecution in 25 of the 28 criminal appeals that it decided on the merits last year (including published opinions and unpublished orders). The overwhelming majority of criminal appellants never even got a writ. The accused’s overall success rate before the justices last year was on the order of one-third of one percent; the other 99.7% lost.

I do have a couple of encouraging upticks to report: the justices are granting more writs and are publishing more opinions. Last year’s 123 writs – 93 civil, 30 criminal – represented a healthy increase from the four-year average of about 106 writs a year from 2012-15. And the court handed down 78 published opinions in 2016. That’s up slightly over the past three years, though it still lags far behind the 119 opinions we got as recently as 2012. In the halcyon days of the late 1990s, we regularly got 150+ new opinions every year, but those times are gone.

What about the procedural-default rate?

I detest reporting on this, because it’s an embarrassment. In 2016, 7.8% of criminal petitions and 23.6% of civil petitions were dismissed for procedural defaults; they never even got to the writ panel. I suspect that many of the civil appeals were filed by pro se litigants, but I’m confident that an alarming number came from law offices.

Why is the criminal-petition rate so much lower? Possibly because the lawyers who file those petitions have been down this road before and they know the appellate landmarks – and landmines – better than their civil counterparts. It’s also conceivable that the justices may be a bit more lenient with a borderline defect if it occurs in a criminal appeal, but I have no way to evaluate that hypothesis.

I could start offering advice here on avoiding procedural default; but that’s a much longer essay, and it would probably get me on a rant about dabbling in appeals, so I’ll move on now.

How’s the “pace of play”?

(Pardon a golfer’s metaphor here.) My regular readers recall well that in September 2015, the Supreme Court shifted from its nice, predictable, six-days-yearly release dates for opinions, to a rolling-release practice in which opinions might hit the wire any Thursday. I heard several musings back then over how this would affect the time it takes the court to get opinions out. Faster or slower?

Since that sounded like a reasonable question, and since lawyers frequently ask me when to expect an opinion after argument, I decided to keep records on the release dates, so I could determine whether the pace of the decisions would now be faster or slower. Here’s a quick refresher on the previous setup:

The old practice gave us opinions on a seven-week turnaround, though on occasion the court would hold an opinion to the next session – a delay of seven more weeks – if the opinion wasn’t ready for release. In my estimation, that happened in about one case in twenty. Also, unpubs might arrive at any time; the court didn’t hold them until opinion day. Finally, the court’s schedule built in two extra-long breaks: January’s opinion day was about ten or eleven weeks after October/November’s, and the long summer recess meant that lawyers who argued in June would have to wait about 14 weeks before getting their rulings.

I decided to start with the appeals argued in the February 2016 session, because those argued that January were skewed by the Roush Effect. (See the opening paragraphs of my February 12, 2016 SCV analysis for the full story.) After that, I figured we’d see a normal pattern emerge.

The court took, on average, 11.2 weeks to release opinions from the March session, and 6.4 weeks to release unpubs. That makes it look like the smart betting is on “longer.”

For the April session, it was noticeably quicker: 7.8 weeks for opinions and 6 weeks flat for unpubs. That’s still about a week later than the previous seven-week schedule, but it’s not a huge difference.

For June, the court beat its previous pace. Remember, previously June-session arguments resulted in September-session opinions, a delay of 14 weeks. But in 2016, opinions arrived an average of 12.3 weeks after the previous session’s opinion day, with unpubs taking 11.3. Lawyers who argued in June got results sooner, on average, than they had in past years.

The court slipped a bit on appeals argued in the September session, releasing opinions after an average delay of 9.8 weeks and unpubs in 7.3. That’s noticeably slower than the previous seven-week pace.

But the justices more than made up for it in the November session, which previously had meant a delay of 10-11 weeks. The court released opinions from that session in an average of 9.6 weeks, and unpubs in 6.6.

In all, if you were looking for a significant change in the pace, you won’t find it. What you may find instead is that an opinion comes down in eight or nine weeks instead of the 14 that it would previously have taken if the court had held it over for further massaging. That is a decidedly good development.

What’s the trend in tort litigation?

The caveat here is that I cannot give you statistics from the petition stage, other than petitions filed, petitions refused, petitions granted, and procedural dismissals, as noted above. I cannot know how many plaintiffs vis-à-vis defendants filed unsuccessful petitions for appeal, because no one at Ninth and Franklin keeps that kind of record.

Not so on the merits; we have a handy compendium of those decisions, called Virginia Reports. The cases decided in 2016 are all published now – some of them still in advance sheets – and a little metaphorical elbow grease will tell us how the current set of justices is ruling in tort cases.

It’s one-sided. In 2016, the court handed down 15 opinions in appeals involving claims of bodily injury (including medical malpractice and wrongful death) and wrongful termination. In those 15 decisions, the injured party (including the terminated employee in this category) won twice, while the tort defendant (including the employer) won 13. This continues a trend that has been accelerating in the last few years. The last time the justices handed down a published opinion that affirmed a bodily-injury judgment in favor of the plaintiff, where the defendant sought a reversal, was almost 2½ years ago, in October 2014.

I hasten to add that this could be due to a skewed sample. After all, any statistician worth his pocket calculator will tell you that a sample size of 15 cases isn’t sufficient to draw firm conclusions. But I now have detailed statistics on these decisions going back to 1999, and we’ve never seen an imbalance like this before. The defense is winning these appeals by historic margins.

While we could theorize about unusual suspects – that skewed sample size, perhaps; or the possibility that trial courts, en masse, have all started making pro-plaintiff mistakes – I prefer the Occam’s razor approach: the Supreme Court has become far more conservative in the past few years, and that’s showing up in its current body of caselaw.

How’s the success rate for rehearings?

Grim, as always. In 2016, the court granted eight petitions for rehearing filed after a writ-stage refusal, and rejected the other 294, for a success rate of 2.6%. Keep in mind that the appellant may have won only a temporary reprieve; the court may ultimately affirm some of those eight.

After a decision on the merits, 23 losing litigants summoned the courage to seek rehearing last year, but the court refused each petition. RGR v. Settle is the only PFR that the court has granted after a merits decision since the beginning of 2013. The other 102 petitions filed in that time have all been in vain, a success rate of 0.97%. Of course, the success rate for those losing appellate litigants who do not choose to file a PFR is 0.00%, so you can see why they’d try.