[Posted February 2, 2016] Last week, the Court of Appeals of Virginia handed down a short published opinion that ought to be on the required-reading list of anyone who plies his or her trade in traffic court. The appeal is Wells v. Commonwealth, and it relates to a key preservation trap for defense lawyers.

Our play unfolds on familiar turf for me. There’s a ten-mile stretch of I-64 on the Peninsula between the Hampton Coliseum and what I call the Newport News Squeeze Play – the point just west of Jefferson Avenue where six westbound lanes converge into two. (VDOT is already doing something about it; its crews are onsite even as I type this, widening the next westward stretch of highway to three lanes.) That’s familiar to me because my home and office are in Virginia Beach. I go to Richmond a lot because that’s where they keep the justices. I-64 connects the two. I’ve been driving that route since I went to college in 1976; you’d be surprised how much I’ve memorized.

The speed limit in that stretch is 60 mph, but that evidently didn’t apply to Wells, who blew through a state trooper’s radar at 94 mph. At trial on the inevitable charge of reckless driving by speed, the trooper testified that his radar “was working properly.” Wells’s lawyer probably made a mental note of the fact that the trooper didn’t testify about the elaborate dance that’s required to make radar readings admissible:

In any court or legal proceeding in which any question arises about the calibration or accuracy of any … radar … used to determine the speed of any motor vehicle, a certificate, or a true copy thereof, showing the calibration or accuracy of (i) the speedometer of any vehicle, (ii) any tuning fork employed in calibrating or testing the radar … or (iii) any other method employed in calibrating or testing any laser speed determination device, and when and by whom the calibration was made, shall be admissible as evidence of the facts therein stated. No calibration or testing of such device shall be valid for longer than six months.

Code §46.2-882.

Since the trooper left out all those details, the lawyer decided not to cross-examine him – after all, why do anything that might trigger his memory? Instead, when the evidence was all in, she moved to strike, based on the omission. The judge swatted that motion aside, then clobbered Wells (a hefty fine, a license suspension, and two months of free room and board with the compliments of the Newport News Sheriff). His lawyer appealed, and a judge of the CAV decided the case was writworthy.

I’ll tell you now that this doesn’t end well for Wells. The CAV panel – Judge Petty, writing for the chief judge and Judge Alston – applies preservation jurisprudence that’s quite familiar to readers of this website from the civil side of the swimming pool. The court concludes that the Commonwealth doesn’t have to adduce all that tuning-fork stuff in its case in chief unless, as the statute says, “any question arises” about its accuracy. That means that the lawyer had to object when the trooper testified that his equipment was working properly. She didn’t do that, so the issue wasn’t preserved for appeal by a contemporaneous objection.

This is an issue of whether the evidence comes in or not, so the proper time for an objection is when the evidence is offered. You can’t lie in wait until the close of the evidence and then spring a motion to dismiss, because the issues in sufficiency analysis are quite different from those in admissibility analysis.

If you’re a defense lawyer, you’re probably reflecting now on the futility of such an objection if you can’t save it up for the gotcha moment. If you object while the trooper is still testifying, he’ll probably just whip out his certificate and show it to the judge, and you’ve lost your advantage. What good does that do?

If that’s your sentiment, join the club; there are a lot of civil practitioners already ahead of you. I’ve always regarded Bitar v. Rahman from 2006 as the signature decision in this line of cases. And in fact, Dr. Bitar’s lawyer even argued to the justices back then that if he had to state the objection while the opposing expert was on the stand, he’d be forfeiting a strategic advantage – the possibility of a cheap win. The justices gave him the back of their collective hand in rejecting that argument.

If you defend traffic cases, keep in mind that you have to raise an admissibility objection when the trooper asserts that his equipment is working properly. If he can’t come up with the goods – for example, he has a seven-month-old certificate – then you’ve got your easy win.





[Posted January 29, 2016] The Fourth Circuit hands down three published opinions today, two of which caught my eye.

First Amendment

A Norfolk business named Central Radio got its fourth view of an appellate courtroom in an appeal decided today: Central Radio Company v. City of Norfolk. My readers with good memories may recall that this is the company that won an eminent-domain battle with the Norfolk Redevelopment and Housing Authority in the Supreme Court of Virginia 2013. That case involved whether the Authority could use blight-remediation condemnation to acquire property that was not itself blighted. The justices ruled three years ago that it could not, and the company got to stay put.

This is a separate case against the City. During the ordeal with the Authority, the company placed a banner on the side of its building with a protest message:






In response, a zoning inspector told the company to take down the sign, since it violated the City’s sign ordinance. That regulation specified a maximum size for several kinds of signs, including this one.

That led to secondary litigation – a suit seeking injunctive and declaratory relief, claiming that the sign ordinance was an unconstitutional restriction on freedom of speech. The district court and Fourth Circuit sided with the City, using previous Fourth Circuit caselaw. But last year, SCOTUS issued a key ruling in Reed v. Town of Gilbert that meant that the Fourth’s previous test was inappropriate. The high Court remanded Central Radio’s case to the Fourth for reconsideration in light of Reed. Today, that move finally pays off for the company.

It doesn’t get an unqualified win; the judges agree that the company’s discriminatory-enforcement claim was unsupported, so summary judgment for the City on that claim is affirmed. But the court finds that the Reed test now requires strict scrutiny of the sign ordinance, and under that harsh light, the regulation can’t stand up.

Here’s a good example of why. The City claimed that it had a legitimate interest in regulating the size of signs, so as to avoid creating a distraction for drivers. (A brief aside: the discriminatory-enforcement claim pointed out another sign that’s familiar to drivers here in Tidewater – the enormous and startling electronic billboard for Nauticus on Waterside Drive. Westbound drivers encounter that blaring sign when they round a curve, without warning. Norfolk cheerfully encourages that one.) But the ordinance banned certain types of flags and signs, while allowing others. For example, governmental and religious flags were allowed, but others were forbidden; a mural showing a work of art was cool but an advertisement for a product was uncool.

The problem is that the City never justified how one type of flag, sign, or mural would be less distracting than another. That means that the restriction is content-based, so strict scrutiny applies.

The company had also sought permanent injunctive relief against the ordinance itself. The City dodged that bullet by amending its ordinance late last year, and today’s panel agrees that that moots this issue.

The court remands the case for entry of a nominal award for the First Amendment violation, and for other relief as it sees fit. One important omission is any mention of whether Central Radio brought this claim under §1983. If so, then it might be in for a hefty attorney’s-fee award, for that nominal win and for helping to persuade the City to ditch the content-based ordinance. We’ll have to wait for the denouement.

Governmental immunity

The court decides not to decide Aikens v. Ingram, a claim by one military officer against two others. The origin of the non-decision is a 65-year-old doctrine that will be familiar to anyone handling federal tort claims involving the military.

This is a case of domestic snooping. Aikens was a colonel in the North Carolina Army National Guard, and commanded a unit known as the Rear Operations Center. His supervisor, Adjutant General Ingram, allegedly (this was a summary-judgment appeal, so the plaintiff gets the benefit of the facts) appointed one Lieutenant Colonel von Jess to serve as the colonel’s adjutant. The suit alleged that the general and the LTC were pals, and both felt antipathy toward the colonel, helped along by the colonel’s unfavorable performance evaluation of the LTC.

The colonel was activated and sent to Kuwait, but the general and LTC stayed home. While he was overseas, two enlisted men hacked into his e-mails, evidently found some salacious stuff (we don’t know for sure what was in them), and forwarded it to the LTC. That officer was only too happy – so we have to infer from the state of this record – to forward that information to the general, as well as to the Department of the Army.

So, what do you do with unlawfully obtained evidence? A civilian court may or may not have suppressed it; that’s actually doubtful here because Army regulations state that a servicemember’s e-mails can be monitored. Nevertheless, the Army used the information to essentially decertify the colonel, and he was “constructively terminated” (that’s the Fourth’s phrase) from the National Guard.

The colonel sued the general and the LTC in federal court, asserting that they “facilitated unconstitutional searches and seizures of his personal emails while he was deployed in Kuwait.” He claimed that the two officers had directed the enlisted men to hack his e-mails.

The district court dismissed the claims based on the Mindes v. Seaman doctrine from the 5th Circuit. The Fourth Circuit panel today disagrees that that’s the right standard; it applies where a plaintiff seeks equitable relief, and the colonel only sought money damages, at least at the appellate level. The Fourth turns instead to the Feres v. US doctrine that servicemembers know all too well.

Feres holds that members of the armed forces can’t sue in tort for injuries that arise out of or are in the course of “activity incident to service.” I’ll cut right to the chase and note the court’s key holding: it extends the doctrine to §1983 liability. In doing so, the court draws support from several other circuits, though as far as I can tell, this is a first-impression holding here.

The court closes the loop by finding that this claim arises under the broad (and poorly defined) ambit of “activity incident to service.” That finding requires the courts to back off and leave to the military those matters involving its officers’ and enlisted members’ relationships.

Judge Shedd files a concurring opinion, stating that even if there were no Feres doctrine, he would still vote to dismiss, because at the summary judgment stage, the colonel had no evidence to establish that either officer actually directed or authorized the enlisted men to conduct the snooping.



[Posted January 28, 2016] The Supreme Court hands down a single published opinion today. This one will be of keen interest to lawyers on both sides of the litigation aisle.


We enter the landmine-strewn field of misnomers in Richmond v. Volk. This case arose from an auto collision in the Roanoke area. Katherine Craft was driving someone else’s car – with permission – when she hit Linda Richmond’s car from behind. The usual exchange of information took place, including the fact that the car Craft drove was insured; its owner, one Jeannie Cornett, had a State Farm policy.

But in framing her (timely filed) pleading, Richmond made a mistake: she used Craft’s first name, but Cornett’s last name. That generated a nonexistent person: Katherine Cornett.

Richmond sent a courtesy copy of the complaint to State Farm and tried unsuccessfully to negotiate a settlement. Probably during that process, she learned about the mistake in name. When she got around to serving process, she listed on the summons the name, “Katherine E. Cornett a/k/a Katherine Craft,” thereby trying to correct the mistake without getting leave to amend. (Cue the ominous music.) Even so, she still blew it; she sent the process server to the owner’s address – that would be Ms. Cornett – instead of to Craft’s home.

Craft, who had remarried and now went by the name Katherine Volk, entered a special appearance and objected to the service or process, since it went to the wrong address. In the objection, Volk described herself as “erroneously identified in the caption of the complaint as ‘Katherine E. Cornett.’”

Perhaps sensing that the ship was at least listing if not sinking, Richmond nonsuited and decided to try again. She refiled well within the six-month period, this time naming as the defendant “Katherine E. Volk, f/k/a Katherine E. Craft, a/k/a Katherine E. Cornett.” She properly served the complaint on Volk at her home address.

Volk filed a special plea of the statute of limitations. She contended that the original complaint didn’t toll the running of the statute because Richmond hadn’t met the requirements for relation back. And anyway, she had never actually amended her original complaint, so the relation-back doctrine couldn’t help even if it did apply.

The trial court agreed with Volk and dismissed the case. The justices agreed to take a look.

I’ll interject here that I’ve handled a small number of cases involving either misnomer or misjoinder, and based on that experience, I’m always glad to have a little extra guidance on a very murky topic. After all, if you mean to sue John Smith but you sue John Jones, which situation is that? The field is fraught with ambiguity, so any exposition will be very useful to bench and bar.

The parties here agreed that this was a misnomer and not a misjoinder – the rules may differ depending on which situation you have – but the court goes ahead and analyzes this issue anyway, since the court isn’t bound by the parties’ concessions of law. A bare majority of the court – Justice Powell writes for the chief justice, plus Justices Mims and Roush – agrees that this is a misnomer situation. Here’s how the majority describes the difference:

[A] misnomer occurs where the proper party to the underlying action has been identified, but incorrectly named. Misjoinder, on the other hand, arises when “the person or entity identified by the pleading was not the person by or against whom the action could, or was intended to be, brought.”

[Citations omitted] The majority looks at the pleadings as a whole and finds that the person described in the complaint is, in fact, Volk:

[T]he intended defendant was the driver of a specific vehicle that was in a specific location at a specific time and … the driver of that vehicle committed a specific act. As Volk is the only person that fits this description, it is readily apparent that she was the person against whom the action was intended to be brought.

The next issue is whether Richmond blew it by not correcting the misnomer in the first action, before nonsuiting. The majority finds that she’s in the clear, since the taking of a nonsuit ends the previous action and permits a refiling within six months. The new suit “stands independently of any prior nonsuited action,” and the nonsuit statute allows refiling based on the identity of the parties, not on the name that may have been mistakenly attached to them. Having found that the party identified (though incorrectly named) in the first suit was Volk, the majority rules that the second action was timely filed, so the court sends the case back to the circuit court for trial.

Justice Kelsey dissents, and Justices Goodwyn and McClanahan join him. He begins by pointing out that the nonsuit statute is, as the court has previously described it, “’a powerful tactical weapon’ found only ‘in the arsenal of a plaintiff.’” He believes the court shouldn’t extend that protection any further than it has been extended before.

Justice Kelsey believes that the tolling provision doesn’t help Richmond because “Katherine E. Cornett is not now, and never has been, the ‘identity of the [defendant].’” He notes that Richmond could have availed herself of the misnomer statute’s protection in the first case, but never did that; instead she tried to “amend” by changing the name on the summons to “Katherine E. Cornett a/k/a Katherine Craft.” But he correctly points out that Volk (then named Craft) had never been “also known as” Katherine Cornett.” No one has that name, as far as we know.

The dissent argues that changing the party you’re suing under the misnomer statute can be “to correct a misnomer or otherwise.” That’s what it says, right in the body of the statute, so it isn’t limited to just misnomer corrections. A court order is the statutorily prescribed means of getting this relief. This means that you can’t resort to the convenience of a nonsuit when what you really have to do is secure leave to amend. Under a line of cases that includes the memorably named Mechtensimer v. Wilson, only a court can authorize an amendment, and the dissent believes that this plaintiff has just found a way around that.

I should add one point before wrapping up this analysis. The dissent has some powerful arguments here, but I don’t believe its argument should have been built on the foundation of the “powerful tactical weapon” available only to the plaintiff. I agree, of course, that it is powerful, and it’s obviously available only to the plaintiff. But this argument relies on a false equivalence.

Here’s the opening line of the dissent:

The nonsuit statute, Code § 8.01-380, goes a long way toward inoculating plaintiffs (but not defendants) from many of the adverse consequences associated with missing filing deadlines or violating other procedural rules governing litigation.

This is the false equivalence: the suggestion that plaintiffs have a get-out-of-trouble-free card, but defendants don’t.

If a defendant misses a filing deadline – let’s say he’s three days late in filing an answer – then technically he’s in default, and a whole lot of what we can agree are bad things can start happening. But the rules provide for relief from that default: a defendant can come into court and ask the judge for leave to file a late answer. Some judges will demand a damned good reason before they’ll allow that, but in my experience, those judges are in a small minority; most trial judges will allow a defendant a short extension in the absence of prejudice. Rule 3:19(b) provides for that relief “for good cause shown,” which is usually a low threshold – at least before you get to an appellate court, where that standard becomes a lawyer-eating dragon.

But when a plaintiff misses a filing deadline – she files suit three days past the statute of limitations – the rules can only shrug as the judge dismisses the case. Plaintiffs don’t have a good-cause exception the way defendants do. No matter how good the lawyer’s explanation is, the court cannot refuse to dismiss when the defendant raises the statute of limitations. This, you will readily agree, is not the equivalent of what happens when a defendant misses a filing deadline.

Yes, the nonsuit statute is a single-edged sword; but so is the statute of limitations. Personally, I believe that the dissent’s arguments are quite cogent, and quite strong enough without the need to set up this artificial justification. This thinly veiled attack on the wisdom of the nonsuit statute conveys at least the perception that the dissenting justices are looking for ways to minimize the statute’s effect, instead of carrying out the will of the General Assembly.





[Posted January 25, 2016] The Supreme Court and Court of Appeals of Virginia are again closed all day today due to the unwelcome gifts left by Winter Storm Jonas. The Fourth Circuit will open at noon, per its website.

Please note that while state-court appellate deadlines are pushed back at least one more day, the same isn’t true in federal court. Because the court will be open at the end of the day, you do not get an extra day to file in the Fourth.

Also, in the state-court setting, if you have a deadline to file something (a notice of appeal, a transcript, an appeal bond) in the trial court clerk’s office, you need to check with that court to see if it’s open. Here in Virginia Beach, for example, the courts are open for business as usual – our roads are, to purloin a line from Richard Nixon, perfectly clear – so you don’t get an extra day because of someone else’s snow misery.





[Posted January 21, 2016] The Supreme Court of Virginia has announced that the court’s offices will be closed tomorrow due to the approach of Winter Storm Jonas. The Court of Appeals of Virginia hasn’t made a separate announcement, but that court usually follows the lead of the SCV. I don’t have any word yet on the Fourth Circuit; I’ll update this post if the court announces anything this afternoon.

The closing automatically extends the filing deadline for any documents that you’ll need to file with the appellate Clerk by tomorrow. Please note that if you have a filing due in a circuit court – for example, a notice of appeal, an appeal bond; a transcript – the closings in Richmond will not help you. For those of us here in Tidewater, for example, the storm should bring wind and rain but little or no snow, so it’s foreseeable that the trial courts down here may stay open. If you have a filing deadline down here, you’ll probably still have to file tomorrow.

UPDATE 2:45 pm: The Fourth Circuit indicates that it will close at noon tomorrow. This, too, extends filing deadlines to Monday, even though briefs in the Fourth are all e-filed now.





[Posted January 18, 2016] On Thursday, the Supreme Court handed down two published opinions, both from cases argued in early November.


The financial crisis that began in 2007 spurred Congress to pass legislation designed to bail out banks. That included the Troubled Assets Relief Program. Some of TARP’s provisions are at the heart of Hampton Roads Bankshares v. Harvard.

This Harvard isn’t the university up in Boston; he’s the former president of a smaller bank that got eaten by Hampton Roads Bankshares. In January 2008, Harvard took a job with the now-parent bank as an executive VP, with what most folks would regard as a generous compensation package. The employment agreement also contained a provision commonly known as a golden parachute.

I first heard that expression a few of years after law school. One of my classmates took a job with a corporation instead of a law firm. Within a year or two, that company got bought out, and I was told that he was there just long enough to merit a golden parachute. Although I had never heard the term before, it wasn’t hard to figure out that my classmate had just received a substantial payment for not showing up at work the next day.

Harvard’s deal provided that if the bank experienced a change of control in the parent bank, the new Executive VP could terminate his deal and receive a lump sum of 2.99 times his normal salary and benefit package. Keep that number in mind.

In October of that year, Congress created TARP, which contained significant limits on executive compensation. One of those limits was the payment of golden parachutes. But the definition of the term was just outside Harvard’s deal – it required a payment of three or more times the base compensation. So far, so good.

At the end of that year – I mean the very end; December 31 – the bank decided it had to dip into the TARP program to stay afloat, so it inked a deal with the Treasury. That deal contained an unusual provision: the government was allowed to amend the agreement unilaterally if needed to comply with changes in federal statutes.

On the same day, Harvard agreed with the bank that his contract, specifically including the golden parachute, would be subject to the deal with the Treasury.

One last thing happened that day: Hampton Roads Bankshares ate another small bank. That qualified as a change in control, triggering Harvard’s right to terminate his contract. He had six months to act.

We still aren’t through with the legislative portion of the setup. In February 2009, Congress amended the law governing TARP by getting rid of the 3x multiplier. From that point forward, any payment to a senior executive in consideration of his departure was considered a prohibited golden parachute.

The Treasury didn’t act immediately to amend its contract with the bank; it waited until June 15 to do so. Nine days later, and six days before his contract deadline, Harvard terminated his employment and demanded payment of all that loot. The bank checked with the Treasury before telling Harvard, “Sorry; no parachute for you.”

Harvard went straight to court, suing for breach of contract. He wanted his parachute, and his attorney’s fees for having to sue for it. The bank filed a plea in bar, asserting that it would be against the law for it to pay Harvard anything. The circuit court overruled the plea, holding that if the June action by the Treasury barred payment, it was a taking of a contract right without just compensation. The court gave Harvard a judgment for $655K plus unspecified attorney’s fees.

On appeal, the feds jumped in; the United States filed an amicus brief arguing that the June adjustment wasn’t an unconstitutional taking. But the justices have always preferred the statutory route over the constitutional route when it comes to deciding case. In this decision, they find that Congress’s action in amending the law rendered performance legally impossible – Harvard didn’t disagree with that – so the bank could use that impossibility as a defense, so long as it did so in good faith. The bank’s phone call to the Treasury before refusing the payment met that criterion.

If that ruling seems harsh to you, I invite you to consider the jurisprudential considerations behind it:

This rule encourages parties to conduct their affairs under the law as it evolves, without requiring the promisor to mount expensive challenges to the validity of a law that apparently renders performance of a contractual provision impossible, or analyze the relative cost of penalties for noncompliance with a law on one hand and damages for breach of contract on the other. The rule also prevents parties from using private contract disputes to attack the validity of a law when, as here, the government is not a party and cannot be enjoined from enforcing the allegedly invalid law.

The way I see it, that makes perfect sense, and I agree that this is the right result in this case. Harvard expressly agreed to allow his contract to be governed by the law as it evolved, so he can hardly be heard to complain that it did so.

Land use

My pal George Somerville is Virginia’s reigning authority on standards of appellate review. He has identified a spectrum of standards that apply in several categories of appeals. The most favorable to appellants is de novo review, where the justices make up their own minds about the law, offering no deference to the trial judge’s decision. At the other end of the spectrum is the fairly debatable standard, the appellate courts’ most hands-off approach. That’s the relevant standard in EMAC, LLC v. Hanover County.

If you’ve driven I-95 between Richmond and Fredericksburg, you’ve undoubtedly seen the forest of expensive motor homes on the west side of the right-of-way, just north of Exit 89. That mammoth RV sales lot is just south of another parcel that’s planned for development into one of the most cherished used of American soil: an outlet mall. The area is called Northlake Park, and the plan is to allow you to buy your Brooks Brothers and Louis Vuitton bling without having to pay retail, or having to drive to Williamsburg.

Any good commercial development needs signage. This parcel, in a beautiful location next to the Interstate, was big enough to support two large signs, one at the northern end of the new tract, and the other just south of it, on land occupied by the RV lot. The adjacent parcels were owned by different entities; EMAC owned the RV lot and two other companies owned the future outlet-mall site.

Those two other companies filed with the county an application for a conditional use permit to allow the signs, which would feature big LED screens. In 2012, the board of supervisors approved the application with several conditions. The meaningful ones here are that the signs couldn’t be built until the outlet mall was almost ready to open, and the CUP would expire in one year if there had been no substantial construction.

Shortly before the year was up, the applicants asked for a one-year extension. The board agreed. But even then, progress was slow, and it looked like the permits would expire. Both EMAC and the mall developers filed applications for a second one-year extension.

That’s when things got ugly. A realty company that was working with the mall developers filed an application for a brand-new CUP. The major difference was that under this configuration, the southern sign would actually be on the mall parcel, not on the RV lot. The developers were cutting EMAC out of the deal, figuring that their unsuccessful negotiations thus far portended a dead end.

The county board took up the extension requests, and granted the mall developers’, but refused EMAC’s. That sent EMAC straight to court with a suit alleging that the county’s action was arbitrary and capricious. After all, the two applications were for the permit that the county had already twice approved. These signs are highly profitable, and EMAC sensed that the board’s action discriminated against EMAC. The suit sought almost $7 million in damages, plus attorney’s fees and costs.

The trial court was havin’ none of it. It sustained the county’s demurrer, noting that EMAC hadn’t alleged any facts to establish that the existing zoning ordinance was unreasonable. After all, the RV dealership was thriving. It also ruled that the county board’s decision “was supported by a rational basis and was fairly debatable.” The court also pointed to the rise of an adversarial relationship between EMAC and the developers, making the eventual completion of the original project unlikely.

On appeal, the justices first agree with EMAC on one aspect of the circuit court’s ruling. The reasonableness of the zoning ordinance isn’t a relevant factor in claims of discrimination in governmental action, so the success of the RV lot has nothing to do with the analysis. On this issue, the Supreme Court finds that the trial court erred.

But there was an alternative basis for the ruling, relating to the rational basis for the differing outcomes. The justices agree with the trial judge on this one, because they find that the developers and EMAC aren’t similarly situated. The county had a legitimate basis for granting one application and refusing the other one.

The primary distinction is that the mall developers were the ones who applied for the original permit; EMAC didn’t file an application and didn’t own the large parcel. That means that the permit for the southern sign was void from the time of its issuance. And that, you must admit, is a legitimate basis for rejecting an extension request.

The justices also agree that the widening gulf between the adjacent landowners gave the county a reasonable basis to say no to EMAC.

Justice Powell files a solo dissent. In her view, the only governmental objective served by walling off EMAC is to eliminate competition and preserve the mall developers’ economic advantage. That’s hardly in the public interest. She also feels that discriminatory-action analysis depends not on whether the owners are similarly situated, but on whether the properties are. She cites earlier caselaw that she feels implicitly forbids a court from considering who the owners are in making land-use decisions. The only difference between these two parcels, she argues, is the who owns them.

Justice Powell believes that EMAC is entitled to present evidence on its claims, since this case came to the Supreme Court on a sustained demurrer. That means the courts should treat the facts alleged as true, including EMAC’s assertion that the original application, which was filed by an agent, refers to both parcels and claims that the application complied with all county requirements.



[Posted January 13, 2016] Two coincident circumstances have brought my attention to the history of oral argument in the Supreme Court of Virginia. First, I received for Christmas, in addition to the usual half-ton of anthracite and big bundle of switches, a copy of Tom Morris’s 1975 book, The Virginia Supreme Court: An Institutional and Political Analysis. As far as I know, no one has undertaken to update that book in the ensuing 40 years, so this is the most current history we have of the court.

The book contains very little about oral argument; just a single sentence on page 73, accompanied by a historical footnote. But oh, that footnote!

When the present Rules of Court became effective, in 1950, each side was permitted one hour. The allotted time was reduced to forty minutes in 1969 and finally to the current thirty minutes in 1971. [Citations omitted]

An hour! I’d always known that oral argument was once much more expansive than it is today; but I hadn’t realized how quickly it shrank in just a couple of years.

The second trigger for this essay is my current work in updating a chapter for Virginia CLE’s book on appellate advocacy. In reviewing what I had written a few years ago, I came upon a reference to the time limits for argument – now just 15 minutes per side – and it occurred to me to add a historical footnote, based on part on Prof. Morris’s. This essay is a greatly expanded version of that footnote.

*   *   *

Once upon a time – believe it or not – appellate oral argument had no time limit. The early appellate judiciary in Virginia, as elsewhere, entertained arguments for as long as counsel felt the need to go on, and as long as the jurists had questions. For a notable example of a long argument, we may turn to Hunter v. Martin, 4 Munf. (18 Va.) 1 (1814). This is the case in which the judges of Virginia’s highest court thumbed their noses at a mandate from SCOTUS, eventually resulting in the 1816 decision from the latter court, Martin v. Hunter’s Lessee, 14 U.S. 304, one of the pillars of federal judicial review.

The judges of the Supreme Court of Appeals of Virginia listened patiently to six days of oral argument, beginning on March 31, 1814, and ending on April 6, coincidentally the very date of the Emperor Napoleon’s abdication across the pond. I don’t know how many hours each day the court was in session, but let’s be conservative and assume it was only three hours – that’s still about 18 hours of argument, in a single case. (It was likely closer to 30; maybe even 40.)

This made me wonder whether oral argument was more important then than it is today in the jurists’ decisionmaking process. Nowadays, the appellate judges and justices I talk to tell me that oral argument changes their view of the case from 10-20% of the time; let’s go with 15% as an estimate. Where a powerful Nineteenth Century appellate advocate could hold sway over a mesmerized court for days – and believe me, some of them were perfectly capable of doing just that – oral advocacy was probably a much larger factor in the eventual outcome.

From what I can glean from the Rules of Court that appear in early volumes of Virginia Reports – there was no separate rule book before 1950 — the first time limit imposed upon oral argument in the Supreme Court appeared in 1871. The court decided to limit what must have become tedious arguments to two hours per lawyer. Note that that’s per lawyer, not per side; back then, if the maximum of two lawyers represented a given litigant, each lawyer got two hours. And there’s more: if an appellant had the right to open and close, his lawyer got two hours for each speech; he didn’t have to divide his time. An argument like that wouldn’t go on for six days, but it could easily turn into an all-day affair.

That arrangement lasted 12 years. In 1883, the court amended the rules to provide a flat two-hour limit for each side. (The court had the power, then as now, to provide for a longer argument in individual cases.) But by 1906, that limit was proving to be too long: “In view of the increased volume of the business of this court, the following amendment of Rule XIV has been found to be necessary.” The court reduced the time for most appeals to an hour and fifteen minutes, though it still allowed two hours for criminal cases and appeals from the Corporation Commission.

Although I haven’t found a similar order, it appears that the court thought better of that almost immediately; in 106 Va., covering 1906-07, the rules provide no exception for Corporation Commission appeals, and only felony appeals got the two-hour limit. In 1921, even the felony exception disappeared; at that point all appeals were allowed an hour and fifteen minutes.

Three years later, the court trimmed this limit back to an hour per side for all appeals, again subject to exceptions by order in individual cases. That limit made its way into the 1950 edition of the Rules of Court, as Prof. Morris reported. After remaining stable for 45 years, the time shrank to 40 minutes in 1969, 30 minutes in 1971, and to just 15 minutes in 2010.

So what factors caused us to go from two hours per speech in the Nineteenth Century, to the drive-by arguments of today? I can’t give you a definitive answer, because I’m not a court insider, and I certainly wasn’t one back in the 1920s. I do, however, have some speculation. And since this isn’t a deposition or trial testimony, I feel free to speculate.

I believe that the two principal suspects in this investigation are judicial caseload and poor-quality oral arguments. The former suspect may lead the justices to conclude that they cannot take as much time listening to arguments as before. The latter may lead them to conclude that they don’t want to. Let’s explore the first one.

I have almost no statistics for the early years of the Supreme Court, but it’s overwhelmingly likely that in comparison with, say, 1820, today’s court receives far more filings. The growth in Virginia’s population alone makes that quite likely, at least when you reach back to the early years of the Commonwealth. You can forget the six-day arguments; those would grind the modern court to a halt.

But what about the good ol’ one-hour-per-side arguments? What was wrong with that limit? After all, if a case is important enough to merit a slot on the argument docket of the state’s highest court, doesn’t it deserve a little more contemplative approach?

My personal view is, “yes, it does,” and I’d like to see the court expand the time it allots for argument, at least in most of the cases. I believe the court has gone overboard in streamlining the argument docket. But the members of the court will likely disagree; they probably prefer not to have hour-long arguments as the norm. After all, a great many cases don’t require a full hour; but give a lawyer an hour and he’ll take all of it.

Does the docket-size factor justify this sharp reduction in time limits since the dawn of the Nixon Administration? I can’t make a perfect comparison, since the earliest statistics I have for the court go back only to 1980. But that comparison, at least, is startling.

In 1980, the Supreme Court took in 2,091 new cases and granted 234 petitions for appeal. In 2014, the most recent year for which I have figures, there were 1,918 new cases, and the court granted just 112 writs. Throw in the 11 of-right cases, and the court decided just 123 appeals on the merits in 2014.

The math isn’t hard: the court is receiving about the same number of new filings now as 35 years ago, and it’s hearing about half as many cases on the merits.  If you multiply the number of merits cases by one hour (30 minutes per side) for the 1980 docket and 30 minutes (15 a side) for the 2014 docket, you’ll get 234 court hours in 1980 and 62 hours in 2014. The court is spending only about a quarter as much time in full session as it did in 1980.

To be fair to the justices, they do spend time in court on writ panels. There are seven of those each year, and my best guess is that each one lasts four or five hours. That’s another 30-35 hours a year. But the 1980 court had writ panels, too, and roughly the same number of petitions, so that factor shouldn’t change the calculus.

In their further defense, the justices spend plenty of time reading petitions, briefs, and other filings, plus lots of time writing and editing; it’s not a part-time job. But the in-court component of that job has shrunk away to almost nothing. Counting writ panels and merits arguments, each justice will spend well under 100 hours — probably closer to 80 — each year inside a courtroom. That shrinking public presence makes the court seem wholly removed from the citizens it serves; at least in comparison with a couple dozen years ago, the public gets precious little face time with the justices.

By now, half of the justices are thinking of ways to roast me alive for painting this picture. I hereby certify that the purpose of this essay is not to embarrass them. It is, however, my intention to point out that the court has considerable – substantial – capacity to spend more time in oral arguments, especially in the more significant cases. As I type this, the court is in a January 2016 session that will last just 2½ days. The 14 cases on the docket are slated for a total of 7 hours and 10 minutes.

Of course, the court could also grant a few more writs; those are always good for business. But that’s another essay.

Where will this shrinkage end? Is there an asymptote below which oral argument cannot go without being eliminated entirely? While it’s not pleasant to contemplate – especially for those of us who regard oral argument as the most enjoyable part of appellate practice – it’s quite possible that the court could reduce the times even further, to perhaps twenty or even fifteen minutes per case. Ten? Now, I know of no movement to do anything like that, and if anyone has such an idea, I hope this essay dissuades them.

But if you can’t picture lightning oral arguments like that, think back to the lawyers of the Nineteenth Century. Imagine yourself asking one of those great advocates whether the court should limit oral argument to even 30 minutes per side; never mind the 15 a side we get today. “What? Just thirty minutes to argue? Preposterous! No lawyer can make even a passable oral argument in such a short time. The idea is too foolish for me to waste time refuting.”

In that vein, it is distinctly possible that the court could shorten oral argument time even further, no matter how “preposterous” such a suggestion might seem to you. I urge instead that the court reverse the trend, which has gone too far.

In the oral arguments I deliver, I very rarely bump up against even a 15-minute time limit; I want to conclude my argument and hand the chief justice some change back from his 15 minutes. But that’s because I purposely perform ruthless triage on what I’ll argue. A 30-minute argument would allow me the freedom to explore more issues, and would allow the justices time to ask even more questions than they do now, to satisfy themselves on difficult points. (I would still likely give back some change.)

Of course, the lawyers of today can and should do their part, by improving the quality of the arguments they deliver. That will help their clients and reduce the chances of judicial ennui near the end of a full day of arguments. It might even make the court more receptive to the concept of longer arguments.

For now, the trend in the court, extending almost 150 years, is uniformly downward, with ever shorter oral arguments. It pains me to think that we may not have reached that asymptote. I’m heartened by the fact that when jurists talk about oral argument, they always say something like, “Oral argument is valuable to me in sharpening my view of the case …” If so, the court should at least loosen the 15-minute straitjacket, to allow the appellate system more freedom to breathe.



[Posted January 11, 2016] Last week, while I was on the road, the Supreme Court handed down its first published opinion of the new year. This case illustrates how hard it is to draft an airtight contract.


Virginia Fuel Corp. v. Lambert Coal Co. arises, predictably, in Virginia’s coal country, and involves the purchase of a mining permit and two mine leases. The buyer agreed to pay $200,000 down and another $2.3 million, with the latter figure “payable monthly at the rate of $2.00 per ton of coal mined, with a minimum monthly royalty of $40,000.00.” The buyer gave the seller a security interest in the permit, plus the buyer’s accounts receivable, for that debt. The key language of the security agreement is worth quoting:

For purposes of default in payment of royalty under the Agreement, payments shall be deemed delinquent if not received by [the seller] on or before the 15th of the month following the month in which the mineral is mined for purposes of computing the royalty.

The buyer kept up the payments on this obligation for about three years before shutting them off in March 2013. The seller filed suit for the remaining amount due, just a hair over $1 million. The buyer’s answer claimed, in effect, that the mine had been exhausted. Since no coal had been mined after March 2013, no money was due.

This setup has some interesting nuances. The principal obligation does call for a $40K monthly minimum payment, but the due date for payments is the 15th day of the month after the month in which the coal was mined. If no coal was mined in a given month, then there’s no due date and no default, right?

Well, no. The trial court found that the buyer had to pay at least $40K a month, even if the buyer brought no coal to the surface. The buyer admitted that the $1 million was unpaid, and based on that admission and the language in the contract, the trial court entered summary judgment for the seller. The justices agreed to take a look.

Last Thursday, the Supreme Court affirmed in a unanimous opinion written by Justice Roush. The court turns to caselaw from other jurisdictions to confirm that coal leases can indeed provide for ongoing lease or royalty payments even after the mine is exhausted. If the buyer had wanted to protect itself from the possibility that the mine would run out, it could have insisted upon language like that in the contract documents. (This is the biggest takeaway from this case for lawyers who draft contracts.) Since the buyer didn’t do that, it assumed the risk that the mine wouldn’t prove to be as extensive as the parties evidently thought.

There are a couple other interesting aspects of the case that should serve as cautionary tales for future litigants. Here’s the first one: the buyer originally filed a counterclaim, alleging breach of contract and constructive fraud. The buyer nonsuited the fraud claim after the seller filed a special plea of the statute of limitations. The trial court sustained a demurrer to the contract claim, but gave the buyer leave to amend within 14 days.

The buyer didn’t file anything within that time. Instead, it filed a second counterclaim 5½ months later. The trial court dismissed this pleading without a fuss because the buyer hadn’t obtained leave to file it. The buyer accepted this defeat, declining to even assign error to it.

This is a reminder that in Virginia, if you want to file a pleading out of time, or if you want to amend a previously filed pleading, you must get the judge’s signature on an order granting you leave to do that. If you don’t, then the subsequent document will probably achieve only the status of a legal nullity, which helps no one except your opponent.

The second cautionary tale relates to assignment 1(e), dealing with a denied continuance motion. Here’s the setup: The seller filed a motion for summary judgment once it had the buyer’s admission, described above. On June 20, it noticed that motion for a hearing, with a generous date of September 3, 2½ months later.

On August 26, the week before the hearing date, the buyer propounded initial discovery to the seller. Seven days later – we’re now up to September 2, the day before the hearing – the buyer moved to continue the hearing. Here’s how the court describes the grounds for that motion, telegraphing how this one’s going to come out: “based on both [the seller’s] failure to respond to the discovery requests and the pendency of [the buyer’s] renewed counterclaim, which [the buyer] filed on August 7, 2014, without obtaining prior leave of court.”

Justice Roush really needs to cultivate a better “poker face” for her writing style, because I can clearly read the subtext of this: “Oh, give me a break!” The buyer tried to manufacture a continuance emergency by the expedient of waiting until the bottom of the ninth before propounding discovery. It’s true that the seller hadn’t answered; that’s because the answers weren’t due for another two weeks.

That one’s never going to fly; in what is probably the easiest decision Justice Roush has had to make thus far in her tenure on the court, the Supreme Court affirms the decision to reject the continuance request, as being within the trial court’s discretion.

The only surprise for me is that the Supreme Court included this issue – which appears to be a dead-solid loser – in its grant of a writ. In the past, the court generally would pick and choose carefully when deciding which of multiple issues would get a spot on the argument docket. These days, I’m sensing that there are more cases in which the writ panel decides to just accept the whole case, and decide at the merits stage which issues have legal traction.

If that’s a growing trend, I hope the court will stem it. Loose grants on marginal issues sap time and attention from the meatier questions in a given appeal. After all, the litigants can’t guess which issue will prove to be the appeal’s eventual fulcrum, so they have to treat every issue as potentially case-dispositive, and brief each accordingly. I realize than an appellant will want to have as many possible avenues for reversal as possible, so this sentiment is not likely to sit well on that side of the aisle.