(Posted July 20, 2017) The Supreme Court today issues two new published opinions, one of which has attracted the attention of bench and bar.


Judicial discipline

Disciplinary proceedings against judges are rare, but the proceedings in JIRC v. Bumgardner especially resonated with a great many judges and lawyers. The two judges – CAV Senior Judge Duke Bumgardner and retired circuit court Judge Humes Franklin – decided to get involved in a referendum last fall over whether the Augusta County courthouse should be moved from downtown Staunton and into the County. The judges, both of whom had participated in an earlier study of the proposed move, felt that they had something of value to add to the discussion, so they joined the Augusta Citizens Coalition, spoke publicly against the move, and wrote op-ed pieces for the local paper.

This attracted the attention of JIRC, which concluded after a hearing that the judges had impermissibly engaged in political activity. That, in turn, generated an original-jurisdiction complaint in the Supreme Court.

Today the justices rule in favor of the judges. On the primary charge, that of engaging in prohibited political activities, the justices conclude that the Coalition is not a “political organization” as described in Canon 5. The Canons don’t define that phrase. While JIRC asked for a broad definition and the judges sought a narrow one, the Supreme Court today stakes out a middle ground, ruling that only conduct inappropriate to judicial office merits discipline. Since the Code authorizes judges to direct localities to repair and maintain courthouses, it’s entirely appropriate for them to make public expressions about issues surrounding courthouses, like this situation.

The Commission’s complaint also asserted violations of Canons 1 (independence and integrity of the judiciary) and 2 (avoiding appearance of impropriety). But in a ruling that’s starting to become familiar, the Supreme Court rules that JIRC’s opening brief didn’t argue these issues, so they’re waived.

The justices take up one last procedural issue. It’s a small victory for the Commission, but empty in this proceeding. The judges had filed demurrers and motions to dismiss, but those procedural vehicles aren’t available in JIRC proceedings, so the Supreme Court denies those. JIRC thus wins this battle, though the judges win the war.

Medical malpractice

Unlike other cases, in med-mal litigation, the plaintiff is almost always required to use an expert witness. By statute, she has to employ an expert to testify about the applicable standard of care and about causation. (The parties often use different experts for these two components.) In Summers v. Syptak, the Supreme Court analyzes an appeal in which the patient claimed that she didn’t need a causation expert.

The patient appeared before Dr. A in a Harrisonburg medical practice in 2010. Dr. A diagnosed post-traumatic stress disorder as a result of “past and present sexual abuse and harassment,” and prescribed several medications.

Two years later, symptoms of high blood pressure brought the patient back to the office. Dr. A was unavailable, so she saw Dr. B instead. She soon came to regret the substitution, because Dr. B – according to the complaint – “engage[d] in conduct involving unsolicited and unwanted sexual comments and innuendo” toward her.

If you think that story sounds fishy, today’s opinion notes that the patient “surreptitiously recorded some, but not all, of these remarks,” so maybe there’s something to it. In any event, the patient sued for intentional infliction of emotional distress, claiming that her PTSD symptoms had worsened after her unfortunate encounters with Dr. B.

In discovery, Dr. B asked for information about the patient’s standard-of-care and causation experts. The patient said she didn’t need one because in these circumstances, those issues were “within the range of the jury’s common knowledge and experience.”

It’s true that in some instances, you don’t need an expert. For one easy example, the justices ruled in 2008 that no expert was necessary when the malpractice was the collapse of a defective chair. Coston v. Bio-Medical Applications of Virginia, 271 Va. 1. But in this case, the justices unanimously rule today, the patient really did need an expert on the subject of causation. A jury isn’t likely to understand from its common experiences what would trigger a relapse or worsening of PTSD; you need a doctor for that. And since the patient didn’t have one at trial, the trial court properly dismissed the action.

Justice McCullough’s opinion for the court identifies the particular logical fallacy that underlay the plaintiff’s position. The Latin phrase for it is post hoc, ergo propter hoc – loosely, “after the fact, therefore because of the fact.” The patient would have asked the jury to conclude that because her symptoms worsened after her visit with Dr. B, that visit was therefore the cause. That type of “proof” doesn’t work in formal logic, and it doesn’t work at Ninth and Franklin, either.





(Posted July 13, 2017) Today the Supreme Court of Virginia hands down two rulings related to the Atlantic Coast Pipeline.

The first, Chaffins v. Atlantic Coast Pipeline, LLC, presents a straightforward issue about notice of entry. Virginia’s public-service-corporation statutes allow companies to enter private property to perform surveying and other related work before building public projects. If the company can’t get the owner’s permission to enter, it gives advance notice of “the date of the intended entry,” and thereafter may enter and perform the work.

As part of the pipeline project, ACP gave certain Buckingham County landowners notice that it would enter their properties “on or after April 27, 2015.” In a DJ action, the landowners contended that an open-ended notice didn’t fairly apprise them of when the crews would be onsite. The company replied that it didn’t have to give an exact date; just an intended date. It noted that all sorts of things, from the weather to other projects, could affect the actual entry date.

The trial court agreed with the company, but today the justices reverse. They observe that the purpose of the notice provision is to enable the landowner to observe the entry, corral livestock while the company is onsite, and document any damage. If the company could show up at any time with no end date, the landowner would be left guessing.

The company argued that the landowner’s argument would lead to an absurd result – they gave the example of requiring a new notice every time the weather prevents a scheduled entry. The justices conclude that it might be inconvenient for the company, but that doesn’t make it absurd. That’s part of the price you pay for getting access to private property against the owner’s will.

Justice Mims’s opinion for a unanimous court contains an additional section. The company contended that the matter was moot because it had issued a subsequent notice to these landowners, telling them it would be onsite from July 6 to 11, 2015. That, you will admit, is far more informative, and the company contended that it superseded the initial open-ended notice.

Except it doesn’t expressly do that. In theory, the original notice would allow the company to enter the land today, or in the year 2525 – there I go, giving away my generation again – and the company has continued to maintain that the original notice was valid. The issue therefore isn’t moot.

It may be effectively over, though. Today’s opinion concludes with a remand “for further proceedings consistent with this opinion.” I understand that the company did enter the property and perform at least much of its work, so it may not need to enter again. (Note that this isn’t a condemnation action proper; that comes later.) In theory, those further proceedings could include a claim for damages to the property, but I don’t know about that. The enduring lesson of this case is that in this context, “on or after” won’t suffice for a notice.

The next case is Palmer v. Atlantic Coast Pipeline, LLC, and it raises wholly separate issues. Here, a landowner in Augusta County challenged not the date of entry, but ACP’s right to carry out the project in the first place.

The landowner used three lines of attack. First, she claimed that ACP can’t use our public-service-company statutes because those only apply to Virginia companies under Title 56 of the Code. ACP incorporated in Delaware. The Supreme Court rejects this argument because the relevant statute is broader: “Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company as defined in 15 U.S.C. § 717a …” ACP is within that broad definition.

But the landowner had a second argument, and this one looks like a killer: Article IX, §5 of the Virginia Constitution states that “[n]o foreign corporation shall be authorized to carry on in this Commonwealth the business of, or to exercise any of the powers or functions of, a public service enterprise.” Alas for the landowner, she didn’t present this argument in the trial court, so the contemporaneous-objection rule claims another victim.

This matters a lot. Now that the landowner won the Chaffins appeal, public service companies can adjust fairly easily; they just reword their notices. But if Palmer is right about this one, then ACP can’t employ Virginia’s statutes. That might prevent the company from building the pipeline at all, unless it forms a subsidiary company here in Virginia.

That waiver ruling is enough to end discussion on this issue, but it doesn’t. The court goes on to point out that the argument is waived for a second reason: The landowner saved her argument on this point for her reply brief. Her opening brief contained only a bare reference to the constitutional provision, and she poured on the argument in her reply. Experienced appellate lawyers will tell you that you can’t do that; the justices expect you to make the argument in your first brief.

Today’s opinion quotes the landowner’s lawyer from oral argument: “I didn’t present it [in the opening brief] because I thought it was a silver bullet.” He may have been right about that, but the court regards the argument as waived.

I’m going to try to read between the lines a bit here. Why did the court point out this waiver, when the first (and more familiar) one was 100% effective to shut off the issue? I sense that the court resented the lawyer’s effort to game the briefing system, maybe even to lie in ambush. After all, if the landowner deploys all her best arguments in the last brief of the case, the company can’t respond. That means that the court has to decide the appeal based on insufficient briefing.

The primary lesson here is elementary: Fire your ammunition in your opening salvo. The secondary lesson is that the justices expect you to help them to do their jobs – as former Justice Keenan put it, they regard lawyers as the court’s partners in the task of deciding what Virginia law will be. We sometimes get knee-deep in the process of advocating for a client and forget that role.

The landowner’s final argument is that her right to property is fundamental under Art. I, §11 of the Virginia Constitution. She contended that allowing companies to enter her land at all is a denial of due process. The justices are havin’ none o’ that; they note that while the right to property is indeed fundamental, it has never been absolute. Virginia’s common law and Code have recognized the right of entry for public purposes since the earliest days of the Republic. The court finally concludes that the 2012 amendment to the constitution – the one inspired by Kelo v. New London – didn’t change that.

Justice Mims writes this opinion, too, and once again the decision is unanimous. But Justice McCullough tacks on an irresistible concurrence that raises a fascinating issue: He contends that under the Virginia Constitution, there’s no such thing as substantive due process.

Where did that come from, you ask? It didn’t come from the opinion of the court; Justice Mims never mentions it. Justice McCullough observes that it “underpins the appellant’s argument,” so he addresses it.

Try as he might, he cannot conceal his disdain for the concept of substantive due process. He quotes legal observes as calling it “an oxymoron” and “a contradiction in terms.” He charts its rise (and subsequent falls, and rises again) in now-discarded rulings such as Dred Scott v. Sandford and Lochner v. New York. He even hints that SCOTUS’s recent decisions based on substantive due process should be regarded with equal suspicion, citing as examples Lawrence v. Texas and Obergefell v. Hodges.

Justice McCullough’s premise is that while the Nine at One First Street can interpret the federal constitution, the justices of the Supreme Court of Virginia are the final arbiters of the meaning of the Constitution of Virginia. If the federal jurists want substantive due process in their founding document, they can have it; but we have no obligation to import it here. He views due process as a purely procedural concept – the government cannot do certain things to you unless it follows certain procedures. That’s what due “process” is supposed to be.

You’ll note that Justice McCullough writes alone; none of the other members of the court sign on. That doesn’t necessarily indicate that they disagree with him. It may only mean that they didn’t see the need to bite off such a big chunk of the apple in order to decide this particular appeal. After all, they decide cases on the narrowest ground possible, and that almost never is a sweeping constitutional pronouncement. I can’t tell you how they view substantive due process; but Justice McCullough’s cards are face-up on the table.

I have never hesitated to quote our justices when their rhetoric soars. I think it livens up the reading of otherwise dry judicial opinions, and I hope you find that it livens up the reading on this website. With that in mind, I bestow upon you the gift of the concurrence’s penultimate paragraph, in its entirety. I loved it, and I suspect you will, too. Bon appétit.

To summarize, then, the United States Supreme Court deployed substantive due process in Dred Scott, and came to regret it; relied on substantive due process anew in the Lochner era, and again came to regret it; and to the regret of a vocal minority of the Court, has once more deployed it in our time. If the absence of any textual or historical support for the concept were not enough to persuade me that we should not embrace substantive due process as part of Virginia’s constitutional jurisprudence, a review of the United States Supreme Court’s jurisprudence convinces me that we ought to leave “substantive” due process and its shabby and disorganized baggage train across the Potomac.




(Posted July 6, 2017) You read that right – today we’re looking at one of the Supreme Court’s unpublished orders. The justices generally dispose of somewhere around 40% of their merits docket by unpubs. Under Rule 5:1(f), practitioners are free to cite unpubs as persuasive – technically, “as informative” – though they aren’t binding authority.

Even so, you need to know about Center for Public Integrity v. TitleMax of Virginia because of what it says about appellate practice, and about the justices’ views on assignments of error. It’s an admin-law appeal from the State Corporation Commission, so Rule 5:17 doesn’t govern it; this one stems from the court’s interpretation of Rule 5:21(a)(7). Still, the decision involves specificity of assignments, and this ruling tells me – actually, it confirms my previous view – how the justices evaluate that specificity.

The Center for Public Integrity is an investigative news group. Its mission statement is, “To serve democracy by revealing abuses of power, corruption and betrayal of public trust by powerful public and private institutions, using the tools of investigative journalism.” From that, you can probably figure out why it would be interested in auto title lenders, an industry that generates fast cash via short-term loans with what most borrowers would regard as breathtaking annual interest rates.

The Center sent a request to the SCC for copies of required financial reports from several title lenders. The Commission normally publishes aggregated statistics on title lenders, “but it has historically treated each lender’s report as confidential due to the potentially sensitive information contained therein.” Because this request called for individualized information, the SCC let the lenders know about the request, and indicated that it intended to release the records unless they spoke up.

The lenders filed petitions in the SCC asking that the individual information be kept confidential. They pointed to a statute that protects from disclosure “any personal financial information” submitted to the relevant bureau. The Code doesn’t define that phrase in this context, but the lenders noted that it elsewhere generally defines person to include companies. The Center replied that in this context, the phrase should only apply to natural persons.

The SCC, acting in its adjudicative function, decided that the phrase was ambiguous. But instead of resolving the ambiguity, the Commission punted, concluding that its long-standing practice of releasing only aggregate data had not been overridden by any legislation that would require a change. In essence, it decided not to decide, thereby allowing the lenders to back into the winner’s circle.

The Center appealed, and since appeals from the SCC are of-right, it didn’t have to go through the usual writ process. Here are the two assignments of error, the language of which turns out to be fatal to the appeal:

  1. The Commission erred as a matter of law by finding that § 6.2-101 prohibits the Commission from disclosing the un-redacted and noncumulative § 6.2-2210 Annual Reports of [Lenders] to the public.
  1. The Commission erred as a matter of law by finding that the term “personal financial information” contained within § 6.2-101 is ambiguous and thus encompasses [Lenders’] financial information.

Did you spot the fatal flaw? No? It isn’t obvious until someone points it out to you, so I’ll act as your tour guide: The SCC never actually made either of the exact rulings that these two assignments identify. It never ruled that Code § 6.2-101 prohibits anything; it simply held that the statute didn’t require the SCC to treat the information otherwise than its previous practice did.

As for Assignment 2, the fatal language is “and thus encompasses” the information. The SCC never got to that point in the analysis. The coup de grace comes in this passage of today’s order:

Thus, even if the Commission ultimately had concluded that the Center’s interpretation of Code § 6.2-101 (A) was correct, that would only mean that the statute does not prohibit the Commission from releasing the reports. It would not mean that the Commission is required to release them.

There’s one other noteworthy ruling in today’s order that points out a vital difference between SCC appeals and ordinary appeals. One of the lenders had assigned cross-error, though today’s order doesn’t describe the issue. Instead, it states in a footnote that SCC appeals under Rule 5:21 do not permit cross-error, so the justices swat that aside without reviewing it.

What’s a mostly satisfied SCC litigant to do if it wants to cross-appeal? There’s only one way to do this, and that’s to note and pursue your own appeal, even if you won. Your appeal is of-right, too, so you’ll get review on the merits – assuming you phrase your assignments carefully.

*   *   *

I regard today’s order as all-too-predictable bad news. It’s bad because it fuels the perception that appellate courts are labyrinths with landmines: dizzying, mystifying, and dangerous. This perception is quite real in trial lawyers’ minds, and is widespread here in Virginia. As I’m finding from talking to those lawyers, that perception is driving them out of the appeals business.

In turn, that’s good for my business; but even appellate veterans are concerned on occasion that the court might take an unforeseen view of the language in assignments, with damaging consequences for our clients. If the appellate pros feel this way, who’s to say that the trial lawyers are wrong?

This isn’t the way things should be. In my opinion, courts of all varieties should be user-friendly. Erecting barriers to merits review – such as by extremely harsh interpretations of briefs – impairs the court’s public image. The court isn’t a business that depends on its public image for economic success; but we’re talking about public confidence in a branch of government. That matters.

This development is predictable because it’s entirely consistent with the way the court has dealt with many other imperfections in assignments of error. Of all the sections of an appellate brief, the two that deserve the most careful scrutiny are the assignments of error, where you frame the appellate issues, and the conclusion, where you set forth the exact relief you’re requesting. A mistake in either of those can lose a potentially winning appeal.

I continue to believe that the court doesn’t have to, and shouldn’t, treat its litigants – the “consumers” of the court’s services – like this. It’s entirely possible for appellate courts to look at the issues on appeal less strictly, to get to more merits rulings. I’m aware of the countervailing argument, which is that specificity of assignments informs the appellee (and the court) of exactly which issues are at stake in the appeal. It’s not right to allow the appellant to set up a moving target.

But other appellate courts, such as the federal circuit courts of appeal, operate with a less-strict statement of appellate issues, which identify generally what the appeal will be about. These statements can encompass sub-issues that Virginia litigants might not think to add to the list of assignments (with fatal consequences here). The sky doesn’t seem to be falling at 1100 East Main; the Fourth Circuit and its sister circuits get along just fine with those more general statements, as do a majority of other states’ appellate courts. Virginia is one of a few holdout states that cling to binding assignments of error. I can’t say whether our sister states interpret the language of assignments as strictly as our justices do.

I’ll add one last point for those of you who might perceive that the current system is unfair.

Years ago, when my daughter was a little girl, I explained to her that our family was a democracy, and we voted on what we do. I added, “You’re a member of the family, and you get a vote. I’m a member, and I get a vote. And Mommy’s a member, and she gets three votes.”

My daughter had just enough math under her belt to respond, “Hey! That’s not fair!” I replied to her, “Fair? Is it fair that birds can fly and you can’t? That’s just the way the world is, kiddo.” It was my way of telling her that she had to live in the world we actually inhabit, not an imaginary one that she might prefer. (It was also my way of acknowledging my subordinate role in Chateau Emmert.)

If you think that the justices’ decision to biopsy each assignment under a microscope, and to euthanize those found wanting, is unfair, the only solution right now is to spend more time polishing your own assignments. The justices aren’t backing off.





(Posted June 29, 2017) The Supreme Court of Virginia today decides an appeal that open-government advocates have been following carefully. In The Daily Press v. Office of the Executive Secretary, the justices interpret who is the custodian of electronically stored court records.

The Daily Press is the dominant newspaper on the Virginia Peninsula. A reporter there made a FOIA request to the Executive Secretary of the Supreme Court for a database of records related to a series of stories he was writing about race and the criminal-justice system. The reporter knew that the OES stores records for the various circuit courts, and it was presumably easier to make one FOIA request than one to each of the 120 circuit-court clerks in Virginia. More important, it would be vastly easier to search a sortable database for the entire Commonwealth, rather than a patchwork of individual courts’ records.

The Executive Secretary balked, claiming that by law, the individual clerks were the custodians of the records. The reporter and the paper sued the Executive Secretary and joined 68 circuit-court clerks who had not consented to the release of their records.

The circuit court ruled in favor of OES, and today the justices unanimously affirm. The dispositive issue in the case is just who really is the custodian of the records.

Justice McCullough’s opinion for the court notes that while FOIA permits citizens to demand access from the custodians of public records, the Act doesn’t define custodian. But Title 17.1, which relates to courts of record, contains a provision expressly providing that the clerks “shall have custody of and shall keep all court records …” That’s a pretty solid indication that the legislature intended that the clerks will be the custodians.

But isn’t it possible for there to be two custodians? After all, the records exist (in digital form) at Ninth and Franklin, not just in individual clerk’s offices. The Supreme Court concludes today that the express legislative statement quoted above evinces an intention that the clerks are the sole custodians. Additional language in the same statute bolsters this conclusion, since it provides that the clerk remains the custodian even if the records are stored elsewhere.

Today’s opinion notes that the clerks had asserted that FOIA didn’t apply to them at all. In a footnote, the court observes that it isn’t necessary to decide that question in order to resolve this appeal, so the justices defer it unto another day.

While I’m emphatically in favor of open-government laws, I concur with the court’s conclusion. The justices don’t have the luxury of rewriting FOIA, and the legislative setup seems clear to me: the clerks are the custodians.

Today’s decision isn’t a permanently closed door for the reporter. He can still file individual FOIA requests to the clerks, who may try to resist them, subject to a court challenge. The real loss for the reporter is that even full sets of records won’t constitute a unified searchable database. It’s a mountain of work to evaluate all those thousands of individual records and compile them into something he can explain to his readers. It’s conceivable that the paper might persuade a legislator to introduce a bill to amend FOIA and require OES to provide the records. If so, you should expect the powerful clerks’ association to fight that one at the palisades.




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

Criminal law

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

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

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

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

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

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

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

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

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

Trusts and estates

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

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

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

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





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

Here are a few items that caught my eye.

How’s appellate business?

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

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

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

What about the procedural-default rate?

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

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

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

How’s the “pace of play”?

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

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

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

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

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

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

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

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

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

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

What’s the trend in tort litigation?

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

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

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

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

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

How’s the success rate for rehearings?

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

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