[Posted December 2, 2016] I assume you’re sitting as you read this. If you aren’t, pull up a comfortable chair, preferably one that won’t tip over easily.

I’ve just finished reading a fascinating new book, Megachange by Darrell M. West (Brookings Institution Press 2016). West analyzes recent historical trends and notes a pattern: we’re in an era of remarkably significant changes in many sectors of society. At just 171 pages (exclusive of endnotes), it’s an easy read, and I won’t spoil it by describing it in detail.

But one section of the final chapter grabbed me by the lapels and shook me. In that chapter, West peers into the trusty crystal ball to try to foresee future megatrends. In the section entitled, “Robots Take the Jobs,” he foresees the possibility of major unemployment due to automation. You may recall significant debate in the just-concluded presidential election over the question whether American manufacturing job losses are due to businesses’ relocations overseas, or to automation. West sees the latter as the greater contributor, and the greater long-term threat to full employment, and in turn, social stability.

I know what you’re thinking. Okay; but not lawyers. We exercise judgment in choosing among alternatives, and robots can’t do that. But West tells the story of a “challenge” by Amazon to see if designers could create a robot that’s able to “autonomously grab items from a shelf and place them in a tub.” Now the company uses 15,000 robots to do just that, making the humans who previously did the selecting involuntarily unemployed.

Yeah, yeah, you’re thinking. That’s low-level decisionmaking; nothing at all like what lawyers do. We have to be creative, exercise real judgment. No robot can do anything like that.

Well, actually …

Here’s a passage from p. 148 of West’s book that will get your attention:

Anthropologist Eitan Wilf of Hebrew University in Jerusalem … describes a “jazz-improvising humanoid robot marimba player” that can interpret music context and respond creatively to improvisations on the part of other performers. Designers can put it with a jazz band, and the robot will ad lib seamlessly without listeners being able to discern any difference with human performers.

Uh-oh. That’s getting painfully close. The Boss was a professional musician before she retired – an operatic contralto – and she has told me on occasion that opera singers and other classical musicians envy jazz performers because of their freedom to improvise. If a robot can pull off something as creative as jazz, are we in trouble?

There are examples in other fields. You’ll recall that in 1997, IBM’s computer Deep Blue took on reigning world chess champion Garry Kasparov in a match, and beat him. Kasparov was no ordinary player; according to the ratings I’ve seen, he had at the time the highest rating of any player in the history of the game. (Magnus Carlsen, who defended his world title in the past week, has since surpassed Kasparov’s late-90s rating.) Isn’t that creative thinking, at a profound level? The same company’s Watson took on the two most dominant players in the history of the game show Jeopardy!, and crushed them both.

An article in the Fall 2016 issue of Litigation, the ABA Lit Section’s quarterly magazine, which just arrived this week, reports that Thomson Reuters, the parent of Westlaw, is now using Watson in the legal industry. (Deep Blue is retired and sipping on WD-40 cocktails on a beach somewhere.) If you need a name for the cyber-interloper into our profession, Watson is as good as any.

But it’s still not what lawyers do. True. But go back in your mind’s eye 40 or 50 years and ask that generation’s auto workers if a robot could ever assemble a car. Go back even five years and ask those folks who thought they had secure jobs in the Amazon warehouse, if a robot could do what they did. Are you old enough to remember law practice in the 1970s, before Lexis and Westlaw changed the process of legal research? Who says our profession can’t change?

Better yet, pick your favorite search engine and – actually, go pour yourself a stiff bourbon and come back; go ahead, I’ll wait – search the phrase “robots replace lawyers.” I did it on Bing and got fifty million hits. I poked around some of the articles and found ominous titles, though the articles themselves usually included assurances that the robots would only replace lawyers for ordinary tasks like document reviewing; not for processes requiring deep thought. The Litigation article that I mentioned above concludes with this reassurance:

Attorneys concerned about being replaced by [Artificial Intelligence] need not fret because based on these thought leaders, AI is being developed not to replace attorneys but to help them.

Perhaps so; but some of the articles I surveyed were a tad more foreboding, as I’ll discuss in a moment. Some of the predictions included dramatic reductions in new-associate hires, since robots could handle time-intensive tasks without expecting vacations or consideration for partnership. (So if the market for new lawyers dries up, where’s the next generation of senior lawyers going to come from?)

But robots can’t develop the personal relationships that humans can. That’s true, too. And as long as humans are the clients, it will be an advantage to have a human in the law office. But some clients won’t care; if a robotic lawyer can undercut a human lawyer on price, some clients will give it a try, and if word spreads, who knows?

Even so, some experts believe that that human touch will become superfluous “within decades.” See this very recent article from the Harvard Business Review, forecasting that “the traditional professions will be dismantled, leaving most, but not all, professionals to be replaced  by less-expert people, new types of experts, and high-performing systems.”

What does all this have to do with appellate lawyers? None of the articles I skimmed mentioned a robot’s giving an oral argument, and in truth, I can’t picture that, either. But as robotics technology continues to advance, who can say where the limit is? As I noted in a recent essay on oral argument, the great advocates of the Nineteenth and early Twentieth Centuries would find our current practice appalling, unthinkable, what with our drive-by oral arguments and expansive written briefs. Who’s to say that in the not-too-distant future, robotic lawyers won’t submit briefs to robotic judges to generate a calculated decision without the time-intensive tedium of oral arguments?

If you view this possibility as dystopian, I agree with you. Please note that I’m in no position to say that it’s inevitable. I’m just telling you that it’s not as impossible as it seems now.

What’s a human to do? Garry Kasparov and Ken Jennings have probably been asking that question of themselves for several years now, ever since they went up against machines and came away with silver medals.

In the short run, there’s probably nothing you need to do; if you’re in my generation and may be practicing for another 15-20 years, your practice is probably safe. The appellate courts that sit in Virginia will be manned by human jurists, not robots, over that time, and they’ll demand to hear a human lawyer argue each appeal.

Now, if you’re just starting a legal practice and you’re in your twenties, you may have a different career outlook by the 2060s. (As if the glut of lawyers and the current terrible job market weren’t enough of a challenge.) For you the best approach is probably to cultivate the qualities of “judgment, creativity, and empathy” – the ones identified in the Harvard Business Review article where humans cannot currently be replaced. As long as other humans are making the decision of which lawyer to hire, you’ll have an advantage that the current generation of robots can’t match.





[Posted December 1, 2016] Justice Kelsey gives us another tour of the hallways of legal history in Clark v. Virginia State Police. It’s a retaliation claim under the federal Uniformed Services Employment and Reemployment Rights Act. Because of my love of history, especially legal history, I might linger here a bit more than usual on the context before I get to the ruling.

Clark is a State Trooper who was denied a promotion. Claiming that this denial stemmed form his service in the Army Reserves, he sued the State Police under USERRA. As that statute provides, the suit was filed in state court. The State Police filed a plea of sovereign immunity, which the trial court sustained. The justices granted a writ to review the case.

The dispositive issue in the case is whether this federal statute’s express creation of a private right of action in state courts was sufficient to waive the states’ sovereign immunity from being sued in their own courts without their consent. In order to resolve it, Justice Kelsey starts in the early days of our Republic, with passages from The Federalist Papers and a 1793 SCOTUS decision.

Publius, the pseudonymous author of The Federalist Papers, had expressed the view that states retain “a residuary and inviolable sovereignty” that Congress could not touch. But in the 1793 case, Chisholm v. Georgia, SCOTUS ruled that since the Constitution gave federal courts the power to decide suits between private parties and states, those states were no longer immune.

That decision led directly to the Eleventh Amendment, which prohibited, among other things, suits against a state by a citizen of another state. More recent caselaw has effectively expanded that prohibition, so that you can’t even sue your own state in federal court. And since most states retained their sovereign immunity against being sued in their own state courts, that left claimants against states without much of a remedy.

But wait; there’s an exception to this premise. Bankruptcy courts can adjudicate claims involving states, so perhaps this immunity doctrine is on shaky ground. But in this century, SCOTUS has ruled that since bankruptcy proceedings are in rem, they don’t tread upon sovereign toes the same way a private right of action would.

Today’s opinion notes that while the foundation of the immunity may or may not be eroding, the building still stands and the Supreme Court of Virginia will respect it. Here is the dispositive holding in today’s unanimous affirmance:

Nonconsenting States cannot be forced to defend “private suits” seeking in personam remedies “in their own courts” based upon “the powers delegated to Congress under Article I of the United States Constitution.”

So does this mean that the Commonwealth and its agencies can just ignore the federal statute and discriminate against state employees with impunity? Not really; today’s opinion observes in a footnote that the Code of Virginia contains a parallel statute. Clark could have sued under that statute, which is an express waiver of immunity. Here’s why, from the same footnote:

Clark did not assert any claims against the VSP based upon Virginia law, arguing that relief under Virginia law is “specious” because “[w]hile [Code §] 44-93.4 is modeled on USERRA, this state statute applies only to Virginia guard forces [and] does not apply to [appellant],” a member of the U.S. Army Reserves. Reply Br. at 3-4. But see Code § 44-93(A) (referring to “members of the organized reserve forces of any of the armed services of the United States”).

I haven’t gone to dig up the statutes themselves, but I suspect it’s safe to take Justice Kelsey’s word for it: a valid cause of action existed under Virginia law, and Clark mistakenly disdained it. Because of the provisions of Rule 1:6, I also suspect that it’s too late for him to plead such a claim now. [Update: One of my readers has pointed out that Rule 1:6 only bars relitigation after a decision “on the merits.” The SCV has ruled that when the Commonwealth is immune, courts don’t have jurisdiction to adjudicate claims against it. Since a finding of no-jurisdiction is not on the merits, the Trooper may well be able to sue again under the Virginia statute, assuming the statute of limitations hasn’t expired.]

Here are a couple of closing points on this case. First, while the court doesn’t come right out and say it, the justices today almost – but not quite – hold that this provision of the USERRA is unconstitutional. The effect of this holding is to make the creation of that private right of action subject to the requirement that the state have waived its sovereign immunity. If there’s no waiver, then the grant of a private right of action is really of no effect.

Second, a number of lawyers and commentators in recent years have been critical of sovereign immunity. Here’s an example of a law-review article dating back almost 40 years on that point, invoking strains of “Tin soldiers and Nixon’s coming …”; there have been many similar calls since then.

If you’re hoping for judicial abolition of Virginia’s sovereign immunity, I have disheartening news. This opinion is a strong defense of the doctrine, and not a single justice backs away from it.





[Posted November 23, 2016] The Supreme Court hands down one published opinion today before its Thanksgiving break. In Reineck v. Lemen, the court takes up two issues involving family trusts.

Estate-planning lawyers will recognize well the scenario: In 1991, Mom and Dad prepared reciprocal wills and trusts. They arranged for Mom’s heirs to get 60% of the trust assets of the survivor, and Dad’s children (this was evidently a second marriage for at least Dad, as Mom had no children) got the other 40%. They changed those percentages to 55% and 45% respectively in 1999.

Also in 1999, Dad signed a power of attorney, naming Mom as his primary attorney in fact and his daughter as successor attorney. According to today’s opinion, its provisions kicked in only if Frank became incapacitated.

This generates a slight digression here: Today’s opinion expressly refers to this as a durable power of attorney. The laws elsewhere might quibble with that, claiming that a power that arises only upon the occurrence of a triggering event is a springing power; a durable power takes effect immediately.

I’m not a trust-law jock, but as I see it, our statutes create a different distinction between durable and springing powers. The Code of Virginia defines a durable power not as one that takes effect immediately, but as one that is “not terminated by the principal’s incapacity.” Our Code doesn’t define a springing power, but one statute does provide for a delayed effective date, and that’s what this one seems to do: it arises upon Dad’s incapacity, and endures the period of that incapacity.

Needless to say, Dad did become incapacitated, developing dementia; but years later, Mom died while Dad was still alive. That means that Dad’s daughter was the sole attorney in fact.

Exercising authority expressly granted to her in the power of attorney, the daughter created two new trusts and transferred all of Dad’s assets into those. The new trusts benefitted the daughter and her brother, disinheriting Mom’s heirs. One day later, Mom died; the daughter then vacuumed out the assets and distributed them to herself and her brother.

Now, as you can imagine, we have fertile grounds for litigation. One of Mom’s heirs sued the daughter for breach of fiduciary duties. A court dismissed that suit because contingent beneficiaries don’t have standing to sue.

Well, we can fix that; the same heir got himself appointed curator of Dad’s estate, and filed a new suit in that capacity, thus avoiding the standing problem. But the court this time granted summary judgment to the daughter, finding that her actions in setting up and then distributing the new trusts were fully consistent with the grant in the power. In short, “Yes, she can do that.”

Before the trial court let the case go, it hit the curator with a $650,000 judgment for attorney’s fees. The court found him liable in his personal capacity, no doubt reasoning that he wasn’t curating any assets, so an award in his official capacity would be useless.

Today the Supreme Court gives a partial victory to each side. Justice McCullough, writing for a unanimous court, agrees with the trial court that the daughter’s powers did indeed include the right to revise Dad’s estate plan in this way, even though she was one of the primary beneficiaries of that revision. And the document creating the power granted unto daughter a complete release for liability for all of her actions, short of willful misconduct or gross negligence. The justices find no plausible showing of either of those two exceptions in the record.

I’ll mention one last point on this first issue before moving on to the second one. There’s a statute that spells out the duties of an attorney in fact. The curator pointed to subsection A(1) of that statute in support of his arguments. Here’s the relevant text:

Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall . . . 1. Act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest.

The justices agree that this language doesn’t bar the daughter from changing Dad’s trust provisions. But another subsection of the same statute might have been relevant. It requires the attorney in fact to:

  1. Attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:

a. The value and nature of the principal’s property;

b. The principal’s foreseeable obligations and need for maintenance;

c. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and

d. Eligibility for a benefit, a program, or assistance under a statute or regulation.

Now, I’m not about to go predicting what this set of justices would have done with a hypothetical new line of attack. And the curator may have had a good tactical reason not to pursue this. But to me, this looks like a plausible approach. Dad’s estate plan was unmistakable – he intended to give part of his assets to Mom’s heirs. Daughter’s new trust provisions cannot reasonably be said to have “preserved” that plan.

The second appellate issue is that whopping attorney’s-fee award. On this issue, the justices reverse. That’s because a court can’t hit an official-capacity litigant with personal-capacity liability in a situation like this.

The court declines to address the award in another context: the trial judge had awarded fees based on both the original suit, before the curator qualified, and the second suit, brought in his official capacity. The court has recently refused to allow a trial court to sanction a litigant for separate but related litigation – that’s EE Mart F.C. v. Delyon from February 2015. I suspect that if the justices had taken up this issue today, they would have ruled the same way, that you can only get attorney’s fees from the case you’re litigating. Rule 1:6 would seem to require such a conclusion.

One last observation: the daughter mentioned to the justices “that she has consumed the near totality of her inheritance in legal fees to fend off meritless litigation brought by” the curator. That might affect the justification for a remedy, but it’s no use in light of the Supreme Court’s holding about personal-capacity liability. It does illustrate, however, that in estate litigation like this, often the best thing to do is swallow your anger at the Bad Guys, and settle. Otherwise, like here, the litigants get an eventual ruling, but the lawyers wind up getting the money.







[Posted November 4, 2016] Earlier this week, the Supreme Court quietly amended several Rules of Court. Two of those rule changes are appellate. One is simple: the court amends Rules 5:24 and 5A:17 to add the sentence, “The time for initially filing the appeal bond or letter of credit prescribed by Code § 8.01-676.1(B) is not jurisdictional under Code § 8.01-676.1(P).” I welcome this change.

The other amendment is a bit more complex. Beginning January 1, the procedure for filing amicus briefs will change. If you’re representing a proposed amicus, now you’ll need leave of court in all circumstances unless you represent the United States or the Commonwealth. In the past, amici could file without a formal motion as long as they had written consent of all parties; that procedure ends in 2017.

The new rule also clarifies the procedure when a proposed amicus isn’t supporting either side in the appeal. Such amici will have to file no later than the deadline for the appellant’s brief, and comply with the appellant’s briefing requirements.

Finally, the new provision requires that before you file any appellate motion, you have to call the Bad Guys, see if they consent, and then tell the court what their answer is. The inclusion of this requirement in Rule 5:30 is technically redundant, since the same requirement exists in Rule 5:4, dealing with motions practice. But this protocol is good form, so I certainly welcome the reminder.

There are a few quirks about the new rule that I should mention. First, it eliminates the practice of parties’ agreeing to execute and file a global consent for any and all amicus briefs. I’ve used this procedure in the past on a couple of occasions, and it made life much easier for amici on both sides of the appeal. I sense that the court wants to reserve to itself the control of which amicus briefs may be filed; under the previous rule, the court could be forced to entertain an amicus brief based solely on the consent of the parties.

Second, this rule change only affects practice in the Supreme Court. There is no companion rule change for Rule 5A:23, affecting practice in the Court of Appeals. That means that the procedures used in the two courts will be different, which is something I would prefer didn’t happen. There may well be a companion rule change for the CAV soon; I’ll be on the lookout for that.

Third, the rule continues the existing provision that the court may request an amicus brief at any time. The old rule stated that when the court made such a request, you didn’t have to get leave of court, but for some reason, that sensible exemption is deleted. Now you have to file a motion for leave even if the court has asked you to file. That seems odd to me, and I’m not sure why the court made this change.

I’ll mention one other point. I noted above that a proposed amicus who supports neither party needs to comply with the deadline that applies to the appellant. As I perceive it, this will effectively end the possibility that such an amicus brief will be filed at the petition stage. That’s because, in order to comply with the requirements for the petition for appeal, the amicus brief must include, among other things, the assignments of error. Especially with an uncooperative appellant, no amicus will be able to know what those assignments are until he or she reads the petition. If the appellant files on the deadline day, then the amicus cannot possibly comply with the deadline. This may have been intentional – a desire to cut back on petition-stage amicus briefs – or it might be an unintended consequence. Either way, it probably affects a tiny number of amicus briefs, since most amici come in supporting one party or the other.





[Posted November 3, 2016] You may count me among the legions of Easterners who are expecting sleep deprivation to catch up with them this afternoon. I stayed up last night until a ridiculous hour watching Game 7 of the World Series, even though my beloved Dodgers fell one series short of playing in it. You see, the man for whom I’m sort-of named, my grandfather Stan Emmert, was a Cubs fan his whole life, which spanned from the Taft Administration deep into the 1980s. For his whole life, Chicago never won the World Series. I thought of his smile last night as I watched a game that put to shame anything the National Football League could ever offer.

Today the Supreme Court gives us one published opinion, exploring the statute of limitations in contract claims. Hensel Phelps Construction v. Thompson Masonry Contractor illustrates one of the risks of doing business as a government contractor: when the owner is the Commonwealth, there is no end date on your potential liability.

Hensel won the right to build a student health and fitness center at Virginia Tech. Acting as general contractor, it hired several subcontractors, some of whose work was covered by corporate sureties.

Hensel finished the building in 1998 and handed Tech the keys; the school made the last payment the next year, and Hensel paid off its subs. Other than one minor repair made in 2000, the building checked out.

Except it didn’t. In 2012, the school demanded $7 million – almost half the entire contract amount – to remedy what it thought was defective workmanship. The general negotiated a settlement of $3 million, paid it, and demanded that the subs reimburse the general. The subs declined, so the general sued for breach of the subcontracts; but a trial court sustained pleas of the statute of limitations.

This appeal is about whether the subcontracts obligated the subs to cover any liability that the general might have to the project owner. Specifically, the school, as an agency of the Commonwealth, isn’t subject to the statute of limitations – time does not run against the state – but it does run against the general in its potential claims against the subs. That was the basis of the trial court’s holding, and today the Supreme Court unanimously affirms.

The general claimed that when the subcontracts incorporated the general contract, it incorporated the essentially endless period for making claims on it. But as Justice Millette points out in the court’s opinion, the endless period isn’t found in the general contract; it’s in a statute (Code §8.01-231). The subs can’t be charged with unlimited (at least in time) liability because “a general incorporation provision is insufficient to expressly waive a limitations period, as it does not expressly acknowledge the right to a limitations period or intent to waive that right.”

The court also rejects the general’s argument that the statute of limitation on its claims didn’t begin to run until it paid the settlement to the Commonwealth. But by another statute, that limitations period begins “when the breach of contract occurs,” not when the damage is discovered. There’s an exception for indemnification; those claims accrue when the indemnitee pays the direct obligation.

At first blush, that looks very promising for the general. But six years ago, long after delivery of the building, the court held that an indemnification is void as against public policy where it indemnifies a party against liability for his own negligence. The indemnification language in the subcontracts violates that rule, so that statutory exception doesn’t help. The court also rejects the argument that several other provisions, “scattered throughout the contract in other specific contexts and under other specific subtitles, were contemplated by the parties as independent indemnification provisions, particularly when there is a freestanding, albeit ineffectual, indemnification provision in the contract.”

So what’s a general to do? Will it be liable for its subcontractors’ mistakes in perpetuity, with no right of recourse after the five-year SoL runs in favor of the subs? Nope, the court says; you can always modify your indemnity provisions to comply with the 2010 decision, and contractually agree on a delayed accrual for indemnity claims. Today’s opinion is a specific invitation for contractors to revise their contracts immediately.





[Posted October 27, 2016] Here they come! After a hiatus lasting several weeks, the justices have begun to hand down opinions from appeals argued in the September session. Today we get eight published opinions.


Criminal law

I’ve listened online to the oral argument in Hines v. Commonwealth, a conviction of murder that includes consideration of a claim of self-defense. Hines was at home with some family members and a friend named Hudson. Hudson was intoxicated and rambunctious. When Hines tried to calm him down, Hudson pulled a gun.

That led Hines to leave the living room, go to another room, fetch his own gun, and return. Hines said he hoped that this would convince Hudson to back down, but it evidently had the opposite effect. Hines’s gun spoke five times, and three slugs found Hudson.

In the ensuing murder trial, Hines told the judge that he legitimately feared for his life. The judge believed him, but noted that Hines had been able to remove himself from the area of danger. The court felt that once he had moved to a position of safety, he couldn’t return, shoot the victim, and claim self-defense.

The Court of Appeals agreed, refusing a petition for appeal, but at least one justice on a writ panel found something interesting. The panel gave him a writ, and today the justices unanimously reverse.

The key element of the case that springs Hines is the fact that he was in his own home. If this encounter had taken place in an art gallery or on a golf course – or even in a back alley somewhere – the result would likely be different. But when you’re inside your own home, under Virginia law, you have a right to repel an intruder by as much force as is necessary, including deadly force. Since the trial judge found Hines’s story credible, the Supreme Court vacates the convictions and enters a final judgment of acquittal.

There’s a jurisdictional ruling in Velasquez v. Commonwealth that will interest appellate lawyers. At least, it interested me. Velasquez pleaded guilty to computer solicitation of a child and ostensibly agreed to a 15-year prison term with ten years suspended. That deal provided for the nolle prosequi of another charge against him. But a few days later, he reconsidered and sent a handwritten letter to the court, advising that he wanted to appeal.

This letter arrived after rendition of sentencing but before the court entered the sentencing order. When the court signed the sentencing order, it apparently saw the letter. The court treated it as a request to appeal, so it appointed separate appellate counsel. That lawyer filed two documents: a motion to withdraw the guilty plea and a notice of appeal.

The jurisdictional issue arose sua sponte at the ensuing hearing: Since the defendant had filed a notice of appeal, did the trial court have jurisdiction to do anything more than shrug?

About a year and a half ago, I posted here an essay on this topic. I noted that the Supreme Court’s pronouncements on just what does divest the trial court of jurisdiction have not been wholly consistent. At first, it required the perfection of an appeal; but in 1998, without explanation, the court changed that to just noting an appeal. As I read through today’s decision, I leaned forward, eagerly anticipating a resolution of the seemingly inconsistent holdings.

Alas; no resolution is coming today. That’s because this case is decided by a specific statute that covers this situation in criminal cases:

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended; but to correct manifest injustice, the court within twenty-one days after entry of a final order may set aside the judgment of conviction and permit the defendant to withdraw his plea.

Code §19.2-296. Thus, the General Assembly gives trial courts continuing jurisdiction to allow defendants to withdraw guilty pleas.

Today’s opinion, written by the chief justice, helpfully points out that trial courts still have a role or two to play even after someone notes an appeal, and this is one of them. But the trial court erroneously had ruled that it no longer had jurisdiction to do anything. Oh yes, you do, the justices say today.

Even so, this case isn’t going back. Because Velasquez sought to withdraw his plea after he was sentenced, his motion is evaluated under the very strict manifest-injustice standard. The trial court had wisely tacked onto its no-jurisdiction ruling an alternative finding that Velasquez had not adduced a sufficient showing to uncork the plea. The justices seize on this ruling and use it to speedily affirm.

Employment law

Prepare yourself. There are some places where you just don’t expect to see claims that are tantamount to sexual harassment. In Robinson v. Salvation Army, we see a claim of unwelcome sexual advances in the context of wrongful termination.

Robinson worked at the Salvation Army, where she claimed that her supervisor pestered her to sleep with him. She outlined a tale of hounding by the supervisor, with crude comments, innuendoes, and a clear pattern of lascivious intent. When she recorded some of these and played the tape for the Human Resources officer, she got fired without explanation.

Robinson chose to file an action against the organization for wrongful termination. Now, we all know that employment in Virginia is presumptively at-will, but Robinson pleaded a Bowman claim, stating that she was fired for refusing to commit the crime of fornication.

The defense responded that after Lawrence v. Texas and Martin v. Ziherl, fornication was no longer a crime in Virginia, so that legal theory didn’t fit. The judge agreed and granted summary judgment.

Today the justices affirm. They hold that while the fornication statute is still in the Code of Virginia, it’s no longer a viable criminal offense. In Lawrence, SCOTUS had struck down the criminalization of private sexual conduct between consenting adults, and the SCV ruled in Martin that given that holding, Virginia’s prohibition of fornication was no longer enforceable. Robinson contended that Martin had excluded from its operation other sexual matters, and she contended that this was non-consensual; but the justices aren’t having any of that. They hold that in order to justify a claim, the supervisor’s activities would have to amount to an exhortation to “public fornication, prostitution, or other such crimes.”

The court’s citation to Martin reminds me that that’s the first case I ever analyzed on this website on the day of its launch – January 14, 2005. You may be able to win a bar bet with that information, if you can ever find a bar where people bet on appellate trivia.

Real property

Always buy title insurance. Along with “Read the fine print” and “Don’t screw around with the IRS,” that’s some of my better foundation-level legal advice. I tell people I wouldn’t even buy a vacant lot without title insurance.

One Ravi Prasad chose not to follow this advice. Retired from a chemical-engineering career, he became a real-estate investor, “flipping” houses for fun and profit. In contrast to a buy-and-hold investor, who makes money by rental income and appreciation, a flipper buys a house at a distress-level price, fixes it up a bit, and then sells it for a profit.

We learn in Washington v. Prasad that in his flipping career, Prasad regarded title insurance as an unnecessary expense, since “I trust the courts and I trust the County.” He got notice one day of a tax sale to be held by a local government, and decided to check into the properties being sold. One site looked good – a vacant home identified with the address of 17211 Shands Road in Prince William County. The county’s property records showed a picture of the property, which evidently didn’t look too bad. Prasad attended the auction and bought it for $11K.

Soon thereafter, he began to make repairs and improvements to his new purchase. He must have been surprised to get a letter from a lawyer saying, “Stop banging on my client’s house, and by the way, get off their land.” Prasad rechecked the street number on the front of the house; sure enough, 17211 Shands Road.

Eventually he figured out the problem. The proper street address for the Washingtons’ property was 17201 Shands Road. Years before, it had been designated #17211, but the street number had changed to 17201 in 2004. Even so, the family never changed the street number that hung on the front of the building. Hence Prasad’s confusion: he was improving a house with his house number, but it was two doors down from the land he owned.

Prasad could have shrugged and moved on, but he had put $23,000 into the property, and he wanted his money back. He filed suit seeking a constructive trust on the grounds of unjust enrichment, claiming that the Washingtons had defrauded him by displaying the wrong street number. He also asked for $23,000 in damages for what he had spent on repairs.

At trial, the Washingtons produced a plat showing that while their property fronted on a straight stretch of the road, the property in the tax sale – of which Prasad was now the proud owner – was on a curve in the roadway. The judge sided with Prasad, rejecting the Washingtons’ claim that Prasad had failed to exercise due diligence. It imposed a constructive trust and awarded Prasad judgment based on quantum meruit.

The justices reverse this judgment today and direct final judgment for the Washingtons. They hold that Prasad had at least constructive notice of where the correct property was, but he failed to take care to be sure he was banging nails into the right building. He could have checked the tax map – which he had in his possession – and another map in his chain of title to be sure he had the right spot. But in buying the property, he elected to economize: no survey, no closing attorney, no title insurance. That’s what we in the legal profession call a false economy.


The court takes up a tragic appeal involving juveniles in Elliott v. Carter. It’s a wrongful-death case arising out of the drowning death of a 13-year-old member of a Boy Scout troop. The group went on a camping trip on the Northern Neck, settling on a site by the banks of the Rappahannock.

The appellee here was a 16-year-old leader in the troop. One of his charges was a 13-year-old who had been taking swimming lessons but was not yet able to swim. The leader took three boys, including the 13-year-old, wading into the river, along a partially submerged sandbar. They got about 150 yards from the bank when the leader and one other boy chose to swim back; the leader told the other two boys, who couldn’t swim, to retrace their steps along the sandbar.

It didn’t work out that way. Both boys plunged into deep water. The leader dove in and tried to swim back; he rescued one of his young charges, but the other one drowned.

Elliott qualified as personal representative and filed a wrongful-death suit against the scout leader, four adult leaders, and the Boy Scouts. The trial court sustained a plea of charitable immunity, but the administrator amended to claim gross negligence, which is beyond the reach of the immunity. The defendants moved for summary judgment, arguing that the circumstances in the case didn’t rise to the level of gross negligence. The court granted that motion and dismissed with prejudice.

The administrator appealed the dismissal only as to the 16-year-old peer leader. Today a divided Supreme Court affirms. Justice Goodwyn, writing for the court, notes that gross negligence is the absence of any care at all. Here, the peer leader had given the 13-year-old scout a swimming lesson earlier that morning, and swam out toward him when he heard the boy’s cries of alarm. Those efforts were unsuccessful, of course, but the majority finds that they amount to at least “scant care,” in the language of our caselaw.

Justice McCullough, joined by Justice Mims, dissents. He notes that gross negligence is usually a jury issue. As for the majority’s cited degree of care, the dissent points out that the peer leader actually brought the boy out onto the river and into danger. It concludes, “When the defendant has led the plaintiff into danger, an ineffectual and doomed to fail rescue attempt does not in my judgment take away from the jury the question of gross negligence.”

Update October 28: I’ve been thinking about this decision since writing about it yesterday afternoon, and the ruling continues to trouble me. The majority expressly bases its conclusion – no gross negligence as a matter of law – on two factors: the earlier swimming lesson and the futile effort to save the drowning boy.

But the swimming lesson apparently took place a couple of hours earlier. That kind of temporal separation would have led an earlier edition of this court to conclude that it was irrelevant, since it was remote in time from the negligent conduct and had no real nexus with the negligence. The other factor, the attempt to rescue, came after the negligent act had already happened. Last year, in Cain v. Lee, the justices held that the defendant’s post-accident conduct was irrelevant, as it had “no direct connection to the incident that precipitated the present case.” In fairness to the court, that case turned on a claim for statutory punitive damages in a DUI suit; but in my view, the concept is the same.

I believe that a reasonable jury could view the swimming lesson not as an insulating factor, but as evidence that the peer leader knew damn well that the boy couldn’t swim. As for the other factor, if a defendant engages in conduct that clearly constitutes gross negligence – let’s say he’s racing on a highway and causes a head-on collision – is that conduct no longer grossly negligent if the perpetrator calls 911 to summon help? By the time the peer leader started to swim back out, the grossly negligent act was complete: He had led a non-swimming boy 150 yards out into the current of one of the state’s largest rivers, and then abandoned him there. I don’t think he can erase his gross negligence just by turning around. Now, I can see that in many cases — maybe even this one — post-negligence conduct may be relevant. But that makes out a jury issue; not grounds for dismissal as a matter of law.

This should have been a matter for a jury to decide.


Today’s ruling in Suntrust Bank v. PS Business Parks has significant application beyond the field of debtor/creditor relations, so I recommend that you pull up a chair even if you aren’t a collections attorney.

This is the second time we’ve seen this case. It took a turn through Ninth and Franklin back in 2014, and I covered it then. It’s a garnishment dispute between a judgment creditor and a bank that held accounts belonging to an obligor (a guarantor of the original lease obligation). Because the precise banking holding is fairly arcane, I’ll take the liberty – for which I respectfully solicit Justice Mims’s indulgence, since he clearly spent plenty of time explaining the transactional details – and cut to the broader issue.

This is a case about the burden of proof – or one component of it:

“The phrase ‘burden of proof’ refers to two related but distinct concepts: (1) The ‘burden of production,’ which is the obligation to come forward with evidence to make a prima facie case . . ., and (2) the ‘burden of persuasion,’ which is the obligation to introduce evidence that actually persuades the fact finder to the requisite degree of belief that a particular proposition of fact is true.”

For that holding, the court cites Friend on Evidence. I will turn to a classical source to emphasize its importance: “This must be distinctly understood, or nothing wonderful can come of the story I am going to relate.” C. Dickens, A Christmas Carol, ch. 1, “Marley’s Ghost.”

When you try a case, and you represent the plaintiff, you generally have both versions of the burden of proof. Once you present evidence sufficient to make out a prima facie case, the burden to present evidence can often shift to the defendant to come forward with contrary evidence. If she does that, that burden can shift back to you.

One clear example of this is a Batson challenge. A litigant who wants to make such a challenge has the initial burden to show that he’s a member of a protected class, and the Bad Guys struck one or more members of that class. Once the movant makes that showing, the burden of production shifts to the aforementioned Bad Guys to show a nondiscriminatory reason for the strikes. If they do that, the original movant then has the obligation to show that that offered reason is pretextual.

But the second burden, the ultimate obligation to persuade the decisionmaker, never shifts. The plaintiff in most suits bears the “risk of non-persuasion,” and if she fails to persuade the decisionmaker, she ultimately loses.

In this case, the judgment creditor made a prima facie showing that there was plenty of money in the garnished bank account during the garnishment period. The trial court found that the bank, in return, had introduced evidence that that money was phantom, but it had failed to persuade the court – failed to meet the “burden of proof” – to establish that fact. The court ruled that the bank thus failed to meet what turns out to be a nonexistent burden. That means the court’s judgment in favor of the creditor and against the bank has to be reversed again.

From talking to a lot of trial judges over the decades, I’ve learned that they absolutely hate the R-word. Not reversed; most of them are thick-skinned enough to know that getting reversed from time to time is part of the job. No; what they absolutely hate is to have the case remanded. Once they close a file, they want it to be as dead as Old Marley – well, perhaps this is a bad example, considering what happens in the rest of Chapter 1.

This second reversal contains a second remand, and the trial judge is going to have to take one more crack at untying this financial knot.


I’ve noted recently that the Supreme Court has been an uncomfortable place for appellees with large – let’s say eight-digit – judgments. I was thinking in the tort context, but today we get review of a large contract award, in Shareholder Representative Services v. Airbus Americas, Inc. This appeal arises from a corporate merger; the primary issue is how damage claims are capped pursuant to the merger agreement.

Our tale begins with a company called Metron, which created a software program used in air-traffic control. Five years ago, Airbus, the American division of the giant European manufacturer of airliners, agreed to buy Metron for tens of millions of dollars. The merger contract contained three separate provisions limiting damage for any breach of the agreement. The first limit capped liability for breaches of most representations and warranties at $5.8 million, an amount that the seller escrowed. The second limit applied to “Fundamental” and “Special” representations; that cap was $15 million. The final cap applied to other warranties not relevant here.

The deal went bad for Airbus, and it sued SRS, the agent for Metron’s stockholders. It sought $17 million plus attorney’s fees and litigation costs. The case went to a bench trial, and a judge found that the seller had breached its obligations by submitting inaccurate figures during negotiations. That finding wasn’t contested on appeal; the real battle is which cap applied.

The trial court found that the inaccuracies resulted in $9.4 million in damages. It awarded Airbus the contents of the escrow account plus a money judgment for another $3.6 million. After considering Airbus’s fee petition, the court tacked on almost $4 million more. By my math, that comes to over $13 million, which takes us up into eight-digit territory.

There are two issues on appeal. One relates to preservation, always a meaningful topic for my readers.

SRS argued on appeal that damages were fully contained within the categories covered by the first cap, so judgment should be limited to $5.8 million. Airbus responded that SRS had only raised this issue after the trial court had rendered its decision (that is, announced it in a letter opinion). It argued that a motion to reconsider is too late, so the issue was waived.

My faithful readers know where this is going: it’s perfectly permissible to preserve an issue for appellate review in a motion to rehear, as long as the court acts on it. In this case, the judge stated on the record that she had considered SRS’s last-minute arguments and rejected them, so that’s good enough to get the issue to Richmond.

One side note: in a footnote, Justice Koontz refers to a novel argument by the appellant, SRS. It observed in its merits briefs that Airbus had not raised its preservation challenge at the writ stage, and argued that that waived the issue for discussion after the writ was granted. No dice; the court rules that an appellee doesn’t have to play all its cards in the opening hand. (I would have been astonished by a contrary ruling on this.)

On the merits, the justices reverse the trial court, finding that the sins of omission (or commission, for that matter) are all covered by the $5.8M cap. That means that Airbus loses its fee award, too, because the contract classified that as a form of damages for breach. The court directs final judgment for the amount of the escrow.

Sexually violent predators

Today’s decision in Commonwealth v. Proffitt will apply in case areas that have nothing to do with treatment of SVPs. This opinion is about the standard of appellate review when a trial court excludes evidence.

Experienced appellate practitioners are probably now looking at the computer screen with a puzzled look. It’s abuse of discretion, they muse. Why do we need a published opinion to establish that? True enough, that’s the standard. But this opinion walks us through the process when the Supreme Court finds that a judge abused his discretion by excluding evidence.

Take a moment to ponder that distinction. The justices frequently decide appeals where the issue is the admission of inadmissible evidence. In situations like that, where a statute or well-established caselaw makes the evidence inadmissible, the analysis can be quite straightforward. But when a judge refuses evidence, there’s an elaborate dance involved at the appellate level.

The evidence at issue in this appeal is testimony from two former victims of sexual assault, allegedly at the hands of Proffitt. For one victim, Proffitt was convicted of rape; for the other, a similar charge was nolle prosequied. The Commonwealth’s clinical psychologist had testified, and her expert testimony didn’t consider the second victim because of the nol pros, though she did consider the other offense. The trial court ruled that the victims’ statements would be irrelevant, unfairly prejudicial, and cumulative. Remember, Proffitt isn’t being tried here for the crimes; he’s facing involuntary confinement, and the doctor has already told the jury the relevant part of the story.

The jury found in favor of Proffitt, but the Commonwealth got a writ. The issue on appeal is whether the trial judge should have allowed the victims to testify, using that seemingly familiar abuse-of-discretion approach. Justice Mims, writing for a unanimous court, maps out the trail and then leads us down it.

The court first finds that the evidence was relevant and material under Rule 2:401. Relevance is, as you probably know, a low threshold: does it make it more or less likely that a fact in issue in the case is more or less probable?

Today’s discussion points out one thing that I had missed in my previous view of relevance and materiality. I’ve always known that the two are separate concepts. But Justice Mims points out that our rule-based expression of the relevance principle actually incorporates materiality, by including the phrase, “any fact in issue.” Thus, in Virginia, evidence cannot be relevant but immaterial, as I had always assumed. I’ll keep that in mind if I’m ever imprisoned against my will in the terrible environment of a trial court.

The statutory definition of a sexually violent predator includes the fact that a person “finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts.” The justices today find that a history of such violent acts is clearly material – that’s what the inquiry is all about – and it’s relevant because that evidence has some tendency, even if small, to make this fact more likely.

The next step is the “more prejudicial than probative” analysis. Here again, the Supreme Court disagrees with the trial judge. All of a party’s evidence is presumptively somewhat prejudicial to his opponent; the question is whether the probative value of that evidence outweighs “unfair or unduly prejudicial effects.” (Emphasis original)

Here, the justices find that the trial court abused its discretion in finding that the balance tipped in favor of prejudice. They rule that the evidence of the attacks could bolster the doctor’s conclusions and could lead the jury to conclude that Proffitt was unable to control himself, thus presenting a future danger. The court cites SCOTUS rulings that past acts are usually important indicators of “future violent tendencies,” so these stories were “highly probative” of a material issue.

My readers know well the formula (in Landrum v. Chippenham & Johnston-Willis Hospitals) for abuse of discretion. Today, the justices find that the judge incorrectly weighed the probative value of the direct evidence.

We’re not done; there are two steps left. The judge had found that the evidence would be cumulative, and the justices again disagree. This kind of evidence was different in kind from the doctor’s summary narrative. Indeed, she hadn’t considered one of the attacks at all, and the court has already found that that evidence would be probative. Finally, the court concludes that the exclusion isn’t harmless error, because “In a civil case, the erroneous exclusion of evidence is reversible error when the record fails to show plainly that the excluded evidence could not have affected the verdict.”

The court thus reverses and sends the case back for a new trial where the victims will get to testify. That won’t necessarily produce a win for the Commonwealth; it still has to make a clear-and-convincing showing sufficient to justify keeping a man penned up past the expiration of his prison sentence.

While the defendant in an SVP proceeding gets many of the rights afforded to criminal defendants, this is in truth a mental-health proceeding, and the law understandably makes it tough to lock someone up just because we believe he’ll commit a crime in the future. To the best of my knowledge, we don’t do that for other crimes – there’s no provision to civilly commit felons who were convicted of embezzlement or arson or even murder, once their terms are up. This provision is, as far as I know, unique.

For those of you who don’t handle anything remotely like SVP cases, the detailed analysis of the decision to exclude the evidence will still prove quite valuable. And for lawyers appealing the exclusion of evidence, this opinion is a handy guide of how the justices evaluate this kind of issue.






[Posted October 4, 2016] Do you suffer from logorrhea? When it comes to briefwriting, do you find that you just can’t stop? Do you believe you can be twice as persuasive in forty pages as you can in twenty? If so, then according to Garrison Keillor, there’s a support group for you; it’s called On-and-On-Anon.

If all this describes you, then page and word limits are your nemeses. Appellate courts are notorious for setting page limits that force you to cut yourself off before your eloquence reaches its apex.

Well, get ready for bad news: by pending rule change, the federal page limits are getting shorter, as of December 1. The old word limits (14,000 words for principal briefs; 7,000 for reply briefs) were based on the assumption of 280 words per page. The courts will now apply a 260-words-per-page protocol, so the new limits will be 13,000 and 6,500, respectively. Look at it this way: you get the same number of presumptive pages – 50 and 25, respectively. You just can’t cram as many words onto each page by ruses such as creative use of fonts and single-spaced footnotes.

In reality, most appellate lawyers have long abandoned page limits, finding the word counts to be more liberal. No more.

These changes didn’t come without stern opposition from a surprising source: appellate lawyers themselves. A story in today’s New York Times describes efforts by nothing less than the president of the American Academy of Appellate Lawyers to stop the reduction. I also recall discussion of this as a proposed rule at last year’s ABA Appellate Summit, when some lawyers fumed about the potential loss of pages, while the rest of us kept our mouths shut.

The NYT story contains the best counter-point to the opposition: longer briefs are less persuasive. In most appeals, I can inflict more damage in ten pages than I can in twenty. There’s one, and only one, use for string cites, but somehow they find their way into brief after brief, clogging the narrative and chasing the reader’s attention away.

Look, I know that some appeals – and some case areas – are complex, and perhaps you need to spend more time and pages explaining things. In the truly complicated appeal, you should be able to make out a case for extra briefing space. (Don’t try that with the SCV, though; that court relaxes page limits very seldom.) But I agree with the appellate jurists quoted in the NYT story: most briefs are too long.

In his wonderful book, The Winning Brief, Bryan Garner urges that you “strive to halve your page limits.” That may seem unthinkable – only 7,000 words for a merits brief? Only 18 pages for an SCV petition for appeal? – but it’s excellent advice. Yes, it’ll take effort to trim it down, to pare extraneous material, to exercise ruthless triage in selecting issues; but it’s worth it when doing so enhances the persuasive force of your brief.

One last point: lawyers who file page-limits briefs are often practicing a form of defensive lawyering. They fear that if they leave out a so-so issue, an arguably on-point citation, an argument with a theoretical chance to win, they could get sued. This is a form of cowardice, and it costs your client in the metric that matters most: the ability of your brief to actually persuade the reader.





[Posted September 23, 2016] Now that the rains have stopped here in soggy Tidewater, let’s raise the periscope and see what’s going on in the appellate world.

Decline in cert grants

I’ve written previously about the fact that the Supreme Court of Virginia has cut back sharply on the number of appeals it awards. (That being said, there are already 14 from the writ panels three weeks ago.) While incoming petitions in Richmond are definitely down, the number of writs is noticeably lower than caseload factors alone would explain.

But our court isn’t the only one where the justices are being more selective. At One First Street, the cert-granted rate at SCOTUS has been “sluggish,” according to an essay on the website Empirical SCOTUS. The Big Supremes have granted only 29 cert petitions for October Term 2016, leaving “over half of the Court’s merits docket still open.”

For those of us who make our livings in the appellate arena, the decline in business is alarming. For trial lawyers, the takeaway is a little different; this underscores the bon mot that the best appellate strategy is usually to win the case in the trial court. With fewer grants, there are correspondingly fewer reversals, in both courts.

Oral argument hell

I received from a pal this link to the oral-argument audio in a Seventh Circuit case involving a policy decision by Indiana Governor and Veep wannabe Mike Pence, prohibiting Syrian refugees from settling in the Hoosier State. The audio is at times painful to listen to, not because the argument is poor, but because of the bludgeoning that the court administers to an experienced appellate lawyer: Indiana Solicitor General Thomas Fisher. His tormentors are Judges Richard Posner, Frank Easterbrook, and Diane Sykes.

I won’t editorialize and spoil the plot; I’ll save the freshness of the content for your ears. All I’ll say is that if an appellate jurist ever says to me as I stand at the lectern, “Honestly, you are so out of it,” it’ll be time to hunt up a new career. (If you’re curious but you don’t have half an hour to spend listening, here’s written coverage of the argument from The Indiana Lawyer.)

Some non-VANA writing

In the hope that you like the prose you find here, I’ll give you links to a couple of articles I’ve written that have been published recently elsewhere. The first is a book review I wrote for the State Bar’s magazine, Virginia Lawyer. The second is a fun historical piece I wrote for the ABA Council of Appellate Lawyers; its publication Appellate Issues is hot off the press, released just this week. (You’ll need to scroll all the way down to page 46 for my essay.)

By the way, I invite you to check out the entire issue of CAL’s journal; it’s a terrific resource. I heartily endorse your joining the organization if you have an appellate practice. One extra perk: CAL members automatically get the annual law review, Journal of Appellate Practice and Process; no extra charge.

One last plug for AJEI

The ABA Appellate Summit, formally known as the Appellate Judges Education Institute, draweth nigh. It’s November 10-13 in Philadelphia. I’m going, and so are hundreds of other appellate judges and lawyers from across the nation. The CLE programming is top-notch, and you’ll get to rub elbows with, and share ideas with, appellate lawyers from elsewhere.

One of the summit’s regular features is the Friday morning roundtable discussions. The organizers pick half a dozen or so topics, set up that many tables, and invite anyone who’s interested to come, ask questions, offer advice, and learn from your appellate colleagues in a laid-back, small-group setting. I’ll be leading the discussion entitled, “Solo and Small Firms: Latest Challenges in Managing a Small Appellate Practice.”

But don’t come only on my account. Want to hear an informal conversation with Justice Kagan? How about a preview of next year’s SCOTUS Term (incomplete as it is right now, there will surely be more grants by November) featuring Paul Clement? You can be dazzled by Dean Erwin Chemerinsky’s unbelievable memory for details during his two hour-long programs discussing OT15 decisions, both of which speeches he delivers entirely without notes. You can learn how writing in the digital age is different from what you learned in law school. There’s even an hour of ethics credit to be claimed, if you need that.

I’ve been to five previous ABA Appellate Summits, and have always found the program to be well worthwhile. Next year’s program might be on the West Coast, so here’s your chance to attend one without flying back and forth across the North American continent.






[Posted September 22, 2016] It’s an extraordinarily soggy Thursday here in Tidewater; we’ve had two months of rain in the past three days. That’s a good excuse to stay inside and unwrap the two presents we get this morning from the Supreme Court of Virginia.

Criminal procedure

The facts section of Du v. Commonwealth is painful to read. Justice Kelsey tells the tale of a young immigrant from Vietnam who comes to America at 18 to live with the father he never knew. He lived for a time with his father, stepmother, and half-sister. After a period that may have been tranquil, Du stormed out, seemingly never to return.

But return he did; four years later, he broke into the home and sexually abused and raped his then-13-year-old sister. The girl’s mother walked in on the pair, leading to a fight. That fight took a dramatic turn when Du reached for a metal baseball bat and began beating his father and stepmother about their heads. The beating continued until they were both insensible; the stepmother stirred once, but Du hit her again, stilling her. Du then told his sister, “Don’t panic; they’re dead.”

The attack left the father severely injured. Thanks to emergency surgery, he survived, but was dependent on others for normal life activities. The mother received stitches to close an open head wound; her victim-impact statement revealed the deep and lasting psychological impact of the attack on her.

While awaiting trial, Du wrote several times to his father and stepmother, encouraging them not to come to court to testify, so that the charges against him would be dismissed. I’m not sure that would have worked, since home-security video captured the events. But the prosecution introduced the letters in the trial court, showing the judge how Du had attempted to hamper the prosecution’s case.

Du pleaded guilty to aggravated malicious wounding, malicious wounding, and statutory rape. The trial judge sentenced him to life plus 30 years, and suspended all but 50 years of that term. The court added conditions of probation for life upon release from prison. In addition, the court directed that Du could have no contact with the three victims for the rest of his life. That, too, was a condition of the suspended sentence.

At the sentencing hearing, the prosecutor told the judge that the stepmother “requested that [the no-contact order] not be ordered for her.” The judge pondered that, then refused, noting that the stepmother could, if she chose, write to Du. The court expressly “discounted” the proffer of the stepmother’s wishes, given the clarity of the victim-impact statements.

The Court of Appeals refused Du’s petition for appeal to review the probation and no-contact provisions. The justices granted Du a writ, and today they affirm by a 6-1 margin. Noting that the appeal is evaluated under the deferential abuse-of-discretion standard, the court finds that the trial court acted within the limits of that discretion.

As for the probation, Justice Kelsey points out that the court could have imposed active prison time of life plus 30 years, and probation is “far less severe than life imprisonment.” All seven justices agree with this ruling.

The justices split over the no-contact provision. The majority finds that the trial court had the discretion to act as it did. The trial judge hadn’t spelled out much detail for the ruling, but the majority finds that the court could reasonably have considered Du’s attempt to influence the trial by manipulating his injured father and stepmother, and sought to ensure that Du wouldn’t subsequently try to pressure the stepmother into recanting her testimony. The sentence also found support in the victim-impact statement, which spelled out the psychological damage to the stepmother.

Justice Powell dissents here, observing that conditions of suspension must be reasonably related to rehabilitation and deterrence. She points out that Du has contact with only three people in this country, and the no-contact order permanently cuts him off from all of them. Given the expression of the stepmother’s wish not to be so separated, she finds the term unreasonable. It does not, in her view, serve a rehabilitative purpose.

As for the possibility of Du’s pressuring his stepmother to recant in order to undercut the conviction, Justice Powell argues that that possibility “cannot come to pass under our jurisprudence.” That’s because recantation evidence is highly suspect, since it is in essence a credibility attack by the witness upon herself. Since the video corroborated other evidence of the crimes, proof of a recantation would be highly unlikely.

When you read the opinion, Justice Powell’s opening sentence will resonate with you: “This is a horrible case which might tempt reasonable jurists to do things that they might not ordinarily do.” None of us can be truly aware of our subconscious biases, and perhaps she’s right about this. In reading the majority opinion, I found myself agreeing wholly with Justice Kelsey; and even after reading the dissent, I think I would have voted to affirm. But I cannot say that Justice Powell’s perspective is necessarily wrong; and the permanency of this isolation does give me at least some pause.

By the time Du is slated for release, he’ll be in his 70s, although he might find relief in Virginia’s geriatric-release statute and get out in his 60s. I have no idea how old the stepmother will be when this 50-year term ends; possibly in her 80s. The dissent contains the seed of a nagging question: Is the rehabilitative capacity of our corrections system so weak that it holds no hope of changing this young man? I like to hope that it can make a change like that, even after a crime this horrifying.


Upon seeing the line immediately above this one, you might be tempted to skip to the next section. Well, forget it; there is no next section. Besides, if you don’t stick around for Cygnus Newport-Phase 1B v. City of Portsmouth, you’ll miss a truly remarkable debate over a point of statutory interpretation. And sooner or later, every lawyer bumps into a statutory-interpretation issue.

When I was a baby lawyer in the 1980s, I performed roughly a gazillion title examinations. I traveled to record rooms near and far, pulled musty books off shelves, scoured hoary indexes, thumbed through cabinets of financing statements, and hand-wrote a whole mess of property descriptions. Even now, the typical beginning of the anciently worded and thoroughly redundant description comes to me without fail: “All that certain lot, piece, or parcel of land, together with the buildings and improvements thereon, lying, situate, and being in the City of _______, and known, numbered and designated as …”

The lawyers who originally crafted language like that were either hypercautious or getting paid by the word.

In order to assess a title, you have to know about priorities among liens. The first rule is that real-estate taxes come first, even if God holds the mortgage. After that, Virginia is a “race-notice” state, so whichever lienholder records his lien in the clerk’s office first gets priority over all subsequent liens.

If a debt secured by a lien isn’t timely paid, the holder can foreclose on it by selling the property at auction. When he does so, all inferior liens are extinguished.

So far, all this is Liens 101, and most lawyers are rolling their eyes, waiting for me to get to something they don’t know. This case is about the lien held by a creature of statute: a community development authority. CDAs are authorized to provide local governments “with an additional means to finance infrastructure associated with development in an authority district.”

The City of Portsmouth has a number of problems, and a shortage of taxable land is one of them. The city is surrounded by other cities, so annexation is no longer an option. (Indeed, the City of Chesapeake was created in 1963 as a defense against continued annexation of Norfolk County lands by Portsmouth.) The federal government owns a large proportion of the land in the city, so Portsmouth can’t tax that land. As you can imagine, Portsmouth will look kindly upon just about any legitimate “additional means to finance infrastructure.”

In 2004, an LLC bought a large (176 acres) tract of land somewhere in Portsmouth and wanted to develop it. The LLC borrowed money from a bank to finance the acquisition, and gave the bank a mortgage, which the bank promptly recorded. The City then created a CDA at the LLC’s request, and the CDA then issued $16 million in bonds to pay for things like roads and light poles.

In order to pay for this, the City – with the LLC’s express consent – levied special assessments on all land within the district, including these 176 acres. The LLC and the CDA signed an acknowledgement that the assessment would run with the land. The LLC got about $12 million out of the bond revenue and started building in 2005.

You remember what happened in 2007-08, right? The economy tanked, and the real-estate market got clobbered. By 2011, the LLC had apparently run out of money without finishing the infrastructure. The bank sold the note to an investor, and assigned the deed of trust. This development is what real-estate lawyers refer to as a bad sign.

The LLC defaulted and the investor foreclosed on the mortgage; the investor was the high (and probably sole) bidder at the auction. It allocated the property to various subsidiaries, including today’s appellant. The issue in this appeal is whether the foreclosure on the 2004 mortgage wiped out the subsequent lien created by the special assessment.

If the assessment were a tax, the answer would be easy: you can’t wipe out a tax lien by foreclosing on a mortgage. But assessments are different, and the statute that authorizes them contains language that mirrors the race-notice statute for other recorded liens. Who wins?

This is actually a very close call, and the Supreme Court’s 4-3 division today reflects that. Justice McCullough draws majority-writing chores, and he holds that assessment liens comparable to this have been regarded as immune from lien-foreclosure since a 1904 decision, which had held that special assessments had priority over other liens “by necessary implication.” The court equated assessment liens to tax liens.

That isn’t the end of the discussion, but I’m going to jump forward to Justice McClanahan’s riveting dissent. She observes that the 1904 decision was interpreting liens that arose in the late 1890s, before the creation in 1900 of the modern race-notice system.

Back to the majority, which also rules that the assessment lien arose long before the investor took title in 2012, so its recording in 2006 makes the assessment the higher priority. But the dissent invokes something well-known to dirt lawyers: the shelter doctrine. That rule states that when a buyer with knowledge of another’s equity (you can read that in this context to mean “another person’s lien”) acquires the property from a person who got it without notice of the other lien, the buyer steps into the shoes of his seller and takes the property free of that other lien. The purpose of this legal fiction is simple: if the good-faith owner couldn’t convey good title to a buyer, he might never be able to sell his property. The imposition of the subsequent lien would effectively take his property.

Let’s jump back and see what Justice McCullough says about that. He points out that by law, assessments cannot exceed the benefits resulting from the improvements. He goes on to quote this language from a 1935 law-review article that discusses this very topic:

Assuming, as we must, that this guarantee is effective, the property itself is directly increased in value to the amount of the assessment, and this increase in value necessarily inures to the benefit of all earlier lienholders. Such being the case, there seems to be no good reason why earlier lienholders should not pay for such increased value.

The majority concludes that “in the limited context of special assessments,” the shelter doctrine doesn’t apply.

Oh, yes it does, Justice McClanahan fires back. She points out that the majority’s premise relies on the absence of any provision for the priority of assessment-liens’ status. But these statutes are not, as the prior law had been, silent as to super-priority; they expressly state that whoever wins the race to record has the superior lien. This Code provision thus overrides any common-law presumption of a super-priority.

In the relative tranquility of the appellate world, we don’t get many bar fights like this. These decisions are a fascinating read, even if you aren’t a dirt lawyer.





[Posted September 15, 2016] Today we get three more published opinions from the Supreme Court of Virginia.

Legislative privilege

Easily the highest-profile decision of the day is Edwards v. Vesilind, which was one of two cases argued in the court’s rare special session in July. While the underlying litigation is about partisan redistricting, this appeal involves a discovery dispute and turns on legislative privilege.

In the course of trial preparation, the petitioners in the circuit court sought documents relating to legislators’ efforts to craft legislative districts, an overtly political process in Virginia. They issued subpoenas to the Division of Legislative Services and to some outside contractors whom the legislators had hired to produce computer- generated maps. They also requested production of documents directly from the legislators, who were parties to the case.

The legislators asserted privilege based on the Speech or Debate Clause in the Constitution of Virginia. After receiving argument, the trial judge decided that the privilege didn’t apply, so he compelled production. The legislators sought approval for an interlocutory appeal, but the petitioners below wouldn’t consent to that, so the court couldn’t order it.

The legislators found another way to secure prompt review of the issue: they asked the court to hold them in contempt, which would separately be an appealable order. The petitioners didn’t mind that, so the court found the legislators in contempt, at which point they appealed to the Court of Appeals. The parties agreed to ask the Supreme Court to certify the appeal – a process by which the justices can grab a case off the CAV’s docket without awaiting a final ruling – and the justices cooperated.

Today the Supreme Court vacates the contempt finding. The court analyzes the contours of the Speech or Debate Clause, discussing its history in the English Common Law and in the federal Constitution, which has a similar provision. The justices today unanimously rule that the Clause protects the legislators’ documents from disclosure, and by extension applies to legislative staff, to DLS, and even to the outside contractors who prepared the maps. The court finds that as long as the contractors are performing an act that would be protected if the legislator did it himself, then the privilege applies.

Importantly, the holder of the privilege is the legislator, so if the contractor or DLS had wanted to waive it, the legislators could prevent that.

The redistricting litigation is by no means over; the case goes back for further factual development and a likely trial. The petitioners below don’t come away from this empty-handed, because one legislator agreed to waive his privilege and produced documents. He wasn’t involved in this appeal, and my best guess is that the petitioners may find some evidentiary goodies in his batch of documents.


Today’s opinion in Miller & Rhoads Building LLC v. City of Richmond will interest exactly two types: tax jocks and those with a keen interest in issues of statutory construction. Here’s the setup:

Richmond imposes local taxes on real estate within the city limits. Certain areas also constitute special service and assessment districts; there’s an additional tax on properties in those areas.

There’s a building in downtown Richmond that’s bordered by Fifth, Sixth, Broad, and Grace Streets. It was formerly the Miller & Rhoads department store, and lay vacant for many years before a limited liability company bought it in 2006 to turn it into a hotel and condominium residences. (In case you’re wondering, it’s the Richmond Hilton. I’ve stayed there; it’s quite nice.)

Richmond’s tax ordinances also contain provisions for partial tax exemptions for rehabilitated properties. This project was emphatically rehabilitative, so the LLC sought exemption from the regular and special-district taxes. The City agreed as to the ordinary taxes, but refused to apply the partial exemption to the special-district taxes. A circuit court judge agreed and refused to order a refund of the taxes, which had been paid under protest. The LLC got a writ.

The trial judge had ruled that the special-district tax wasn’t a real-estate tax at all, so the exemption didn’t apply. No one on the Supreme Court is happy with that analysis; it probably helps that in oral argument, the City Attorney admitted that the special-district assessment was “a tax on real estate.”

That means that the justices can’t affirm based on the original ruling. Four members of the court choose another path to get to the same destination. Justice Powell writes the majority opinion. She holds that a separate ordinance says that special-district taxes “shall be subject to the following sections” and then lists four of them. Since the partial-exemption ordinance isn’t among them, the majority concludes – based on the expressio unius canon – that there’s no partial exemption for the special-district assessment.

Justice Kelsey disagrees, noting that expressio unius isn’t a doctrine to be applied liberally, or with a blind eye toward the statutory [here, ordinance’s] phrasing. He points out that the four enumerated ordinances each deal with the subject of collection of the tax; not its application. There would be no reason, he feels, for the ordinance to even mention the partial exemption, since it dealt with a wholly different subject. Given that view, he would reverse the circuit court and relieve the LLC of the extra tax.

Criminal law

It’s shameful, but I will admit to a fondness for stupid-criminal stories. We’ve covered a few good ones here at VANA. Probably my favorite is McDowell v. Commonwealth from 2007, where a grand-larceny suspect was caught several hours after stealing stuff, but insisted that the store couldn’t establish the value of what he stole, since it was never found. Unfortunately for him, he chose to commit his felony four hours after the store had completed inventory, so they were able to figure out exactly what he’d taken. Then there was Patrick v. Commonwealth from the same year, where the Court of Appeals took up an appeal by a hapless thief of scratch-off lottery tickets. He wisely went to a different store to cash in the winning ones; the store clerk there was someone who knew him well and was readily able to identify him to police.

Today’s sermon is Collins v. Commonwealth, and implicates a traditional American pastime, speeding on motorcycles. But this was no off-the-rack bike; it was an orange-and-black Suzuki with an extended frame. One purpose of that frame is to modify the bike for drag racing.

As it turns out, there’s no drag racing in today’s tale; Collins just high-tailed it from the police on two discrete occasions when they tried to pull him over. The two gendarmes eventually put their heads together and figured they had the same guy – same color and style bike, same clothing, same general vicinity.

One of the officers’ cars had a mounted camera, and before our hero sped off at 140 mph, he was able to get a screen shot of the license plate. He ran it through DMV and noted that the tag was long-inactive, but it did give the name and address of the last registered owner, one Jones. A visit to Jones revealed that he had sold the bike to Collins a few months before the police encounters, specifically telling the purchaser that there was no title because the vehicle had been stolen.

Stolen property? Now we’re leaving the realm of eluding and reckless driving.

A couple of months later, the officers learned that Collins was at a DMV, trying to register a stolen car. They quickly appeared at the office and questioned Collins about the bike after Mirandizing him. Nope, Collins told them; not me. “I haven’t ridden a motorcycle in months.”

Okay, ready for the comic relief? One of the officers did a quick search on Facebook and found Collins’s page. It contained two photos of our hero standing next to a motorcycle – the motorcycle, all orange and black and everything – in front of a house. He showed Collins the page, but Collins denied knowing anything about the bike or the house.

The officers let Collins go, then found out where the house in the picture was. One of them went to the scene and discovered what obviously looked like a motorcycle with an extended frame in the driveway, mostly covered by a tarpaulin. It was in the exact position shown in the photos on Facebook. He approached it, lifted the tarp just enough to see the distinct orange-and-white coloring, and wrote down the VIN. A quick search confirmed that the bike had indeed been stolen. He re-covered the bike and retreated to a discrete location to watch.

You already know what happens next: our hero shows up at the house and goes inside. Remember, this is the house he knows nothing about. The officer approached, knocked at the door, and guess who answers the door? When questioned about the bike, Collins began with, “I don’t know anything about it.” When that obviously wouldn’t fly, he tried, “It belongs to a friend, but I don’t ever drive it.” And finally, “Yeah, I bought it from Jones, and there’s no title.”

We have one last chapter in our stupid-criminal story. Collins appeared at the door having changed clothes from his visit to the DMV. He had swapped his flip-flops and shorts for jeans and “Timberland style boots,” just the outfit the two officers had seen on their fleeing cyclist. In the search-incident after Collins’s arrest, what do you suppose the officer found in the rocket scientist’s pocket? The keys to the motorcycle.

Okay, based on this we all know Collins is guilty, but the legal issue here stems from the Fourth Amendment. Did the officer have the right to peek under the tarp, which was on private property, without getting a warrant? The trial judge turned aside a motion to suppress, and the Court of Appeals affirmed. The CAV’s rationale was that the officer’s search “was justified under the exigent circumstances exception to the Fourth Amendment’s warrant requirement.” The CAV declined to address the Commonwealth’s alternate contention that the Fourth Amendment is subject to an exception for automobiles.

That exception is actually quite well-developed, and that turns out to be the grounds upon which today’s majority affirms. Given the inherently mobile nature of vehicles, SCOTUS has carved out an exception for the warrant requirement, holding that officers can search cars where they have probable cause to believe that they contain contraband.

Ah, but what if, as here, the vehicle is the contraband? In that case, isn’t this a search of the tarp? There’s no tarpaulin exception to the Fourth Amendment. On this point, a single justice departs: Justice Mims believes that the search was impermissible. He acknowledges that the officer could look all he wanted to from the street, and feels he could even step into the driveway to get a closer look; but no touching allowed, and specifically no peeking under the covering.







[Posted September 15, 2016] Several sources are reporting today that the justices have refused the show-cause petition filed in Howell v. McAuliffe, on which I reported recently. Here’s the text of the court’s short order:


Upon a Petition for Writs of Mandamus and Prohibition

      On September 1, 2016, Petitioners filed a “Motion for an Order Requiring Respondents to Show Cause Why They Should Not Be Held in Contempt for Violating the Writ of Mandamus” in this Court. Upon the Motion, the response of the Respondents, and the Reply in Support of Petitioners’ Motion for an Order to Show Cause, Petitioners’ request that they be permitted discovery is denied. Further, the Petitioners’ Motion for an Order to Show Cause against the Respondents is denied.


If you’re looking for an explanation for the ruling, you’ll go hungry. I’ve seen the Governor’s response to the show-cause motion, and it raises several grounds – some substantive, some procedural – for rejection of the motion. We’ll never know why the justices said no, but we at least have a final answer in this litigation.