ANALYSIS OF FEBRUARY 14, 2019 SUPREME COURT OPINION

 

 

(Posted February 14, 2019) Looking for a last-minute gift for your Valentine? I probably can’t help you with that, unless your sweetheart is a Workers’ Comp defense lawyer. If that’s the case, run off a copy of Jeffreys v. Uninsured Employer’s Fund and present it to him or her. It’s your call whether to draw hearts and arrows on it.

This is an appeal about the statutory-employer doctrine. The claimant worked for an unlicensed contractor who had agreed to relocate and renovate an old school building in Pittsylvania County. The contractor was hired by a nonprofit historical society that was loosely affiliated with a local church.

The claimant sustained injuries while working on the church building. He filed a claim for Workers’ Compensation benefits, naming as respondents the society and one of its members, plus the church. None of those respondents had Comp insurance, so the Uninsured Employer’s Fund entered the fray.

A deputy commissioner entered an award finding that the claimant was the direct employee of the society and its member, and that the society was part of the church. The Commission set aside the award against the individual member, because she exerted no control over his work, but otherwise affirmed benefits. After a quick trip to the CAV and a remand for more factfinding, the Commission ruled in favor of the society and the church, finding insufficient evidence of control. On the statutory-construction issue, the Commission found “no evidence the Church and Historical Society were in the construction business,” so that doctrine got the claimant nowhere.

The case returned to the Court of Appeals, which affirmed the denial of benefits. The justices granted a writ, and today they affirm.

Before addressing the merits, today’s opinion explores the premise that the Comp Act is remedial and should be given a liberal construction. That’s true as far as it goes, Justice Kelsey writes for a unanimous court, but it doesn’t mean that the claimant automatically wins, or that the Commission or the courts can basically rewrite the Act by liberally interpreting it.

This seems to me to be parallel to other rules of construction in one sense. For example, in contractual-interpretation cases, there’s a rule that calls for construing language against the drafter. But that rule is a sort of last resort; if the language is clear, you can’t change it by construction or interpretation. It’s the same in the statutory context. You only resort to rules of construction or interpretation if applying the plain language doesn’t resolve the issue.

The court today rules that the Court of Appeals wasn’t plainly wrong in ruling that the facts here were consistent with a finding that the church and society weren’t in the building-renovation business. That, in turn, means that the claimant can’t get benefits from those organizations.

For whatever reason, the claimant didn’t name his direct employer, the unlicensed contractor, as a respondent to his Comp claim. An employer-employee relationship probably existed there, but since the claimant chose not to seek benefits from him, that issue never arises here.

I’ll confess to one small degree of surprise: I don’t see why the justices chose to take this appeal, and to decide it by published opinion. From my review, it appears to break no new ground. By statute, the Supreme Court has no jurisdiction over the CAV’s Workers’ Comp rulings unless one of two exceptions applies: either there’s “a substantial constitutional question” at the heart of the matter, or else the case carries significant precedential value.

There’s no real constitutional question here. The claimant makes an oblique stab at raising one, claiming that because the CAV got the facts wrong, that denied his right to due process. The justices swat this aside in a footnote. As for precedential value, my reading of this opinion convinces me that this holding fits squarely within the previous Comp caselaw. Of course, the simple answer to the question why the court took this case for merits decision is because at least two members of the writ panel voted to take it.

 


APPELLATE MEDIATION PROGRAM GETS ITS FIRST TEST

 

 

(Posted February 11, 2019) Tomorrow the Supreme Court of Virginia convenes writ panels for the first time since the calendar turned. Soon thereafter, the Clerk will start delivering good news, in the form of writs, to a select few appellants. And that will trigger the first uses of the new appellate mediation pilot program in that court; the clerk will also send notices to counsel in qualified appeals, letting them know that the program (and its automatic 30-day stay of deadlines) is available.

I reported on the program last year, and Virginia Business magazine ran a story on it this week. Those of us who put the program together will watch with a mix of hope and eagerness to see how many pairs of civil litigants will take advantage of the crop of newly certified appellate mediators. They, unlike those who see the appellate process all the way through to the mandate, will get to resolve their own appeals, on their own terms.

One last point: The Court of Appeals also is participating in this program, though with a very limited number of cases. That program is limited to domestic-relations appeals where the appellate issue is equitable distribution. In case you’re wondering, no one will mediate an appeal over a protective order or child custody.

 


ANALYSIS OF FEBRUARY 7, 2019 SUPREME COURT OPINION

 

 

(Posted February 7, 2019) Corporate income taxation is the milieu for today’s published opinion in Corporate Executive Board Co. v. Dep’t of Taxation. CEB is an Arlington business that provides what I’ll loosely call business-management services to major corporations around the world. Some of those services include the management of an online database of resources and analytical tools. It also provides company-specific education and analysis.

Here‘s an early paragraph from today’s opinion that sets the table for today’s dispute:

The vast majority of CEB’s sales of its Core Product and Solutions, over 95%, occur outside of Virginia. The Commonwealth accounts for less than 5% of CEB’s gross revenue. For the three years at issue, CEB earned $1.76 billion in total sales. Of that total, Virginia accounted for about $66 million.

Hence the problem: Can Virginia tax all of that $1.7B of income when the customers are elsewhere? It’s more complex than you might think; numerous states have adopted tax-allocation formulas that tax such income in their states, where a customer in one of those states buys services from a Virginia company like CEB.

Virginia has for 60 years used a formula that fully (indeed, doubly) weighs sales for taxation where the “income-producing activity is performed in the Commonwealth …” A trial court considered the matter and ruled that all of the sales, even those to remote locations, counted toward Virginia taxable income.

I’ve done the math on this three times, because the result is so staggering: The difference between a business-friendly interpretation and a tax-man-friendly interpretation is on the order of $300 million, for this one company alone. That many zeroes make for a judgment well worth appealing, so CEB went to Richmond and got a writ.

Today the justices unanimously affirm. The court analyzes constitutional challenges under the Commerce Clause and the Due Process Clause, concluding that SCOTUS precedent lines up with the trial court’s ruling. It may surprise you that double taxation – where the identical income from the identical transaction is taxed by two different states – isn’t unconstitutional. The Supreme Court today finds that Virginia’s tax scheme isn’t externally inconsistent. And citing language from the Notorious RBG, the Supreme Court agrees that the Constitution doesn’t require one state to “recede simply because both have lawful tax regimes reaching the same income.” The court finds that Virginia’s method of apportionment doesn’t extend beyond the value fairly attributed to activity here.

That doesn’t end the matter, because Virginia has a savings statute, and CEB sought relief there, too. That act allows relief where the allocation method is inequitable. That, in turn, requires proof of two elements, under a tax regulation. The first is double taxation, which definitely applies here. The second criterion is that “the inequity is attributable to Virginia, rather than to the fact that some other state has a unique method of allocation and apportionment.”

It’s this second one that trips up the taxpayer here. Justice McCullough’s opinion for the court analyzes several other states’ apportionment methods, finding it impossible to describe them as “unique.” More fundamentally, the inequity is attributable to the other states’ more recent taxation changes. Virginia uses an approach based on a 1957 uniform model act. Today’s opinion notes that that approach “has faced mounting criticism” as the American economy shifts from manufacturing to service and information. But the Commonwealth has resisted efforts to change.

The changes, instead, have come from other states’ efforts to modernize their tax codes. Using the common definition of attribute, the justices today hold that any inequity is attributable to those states’ amendments.

This opinion notes that the few legislative proposals to move Virginia’s allocation model toward a “market-based sourcing approach” have failed in the past eight years. This ruling will no doubt spur pro-business legislators to try again next year, lest the Commonwealth be viewed as an unfavorable state for business taxation. Of course, our 6% tax rate, one of the lowest in the nation, may offset that; but I do expect Corporate Virginia to try.

 


ANALYSIS OF JANUARY 31, 2019 SUPREME COURT OPINION

 

 

(Posted January 31, 2019) The Supreme Court hands down one published opinion today. But before we get to that, let’s pause to mark the passing of a torch.

Last October, I noted briefly that Trish Harrington, the Supreme Court Clerk since 2003, had announced plans to retire, and the court wisely chose her chief deputy, Doug Robelen, to serve as the next Clerk. The time for that transition has arrived; today is Trish’s last day in office, and Doug will assume her duties tomorrow.

I won’t wax eloquent over the events of Trish’s tenure, which includes 13 years as chief deputy to her predecessor, David Beach. Instead, I’ll lay out here a story that illustrates her wonderful wit. (At a ceremony this month to mark her retirement, the chief justice tried to tell this tale, but he didn’t quite get it right.)

In Trish’s days as chief deputy, one of her roles was to handle correspondence with pro se litigants, including a fair number of persons who were receiving free room and board with the compliments of the Director of Corrections. She was conscientious about that, doing what she could to help these litigants as long as she didn’t have to give them legal advice.

One such individual sent her a letter that concluded with two questions: What do you look like? And can you fly a helicopter? Trish couldn’t resist replying, “If I can fly a helicopter, why do you care what I look like?”

Supreme Court Clerks tend to stick around for a long time; there have only been five since 1933. Trish is just the 14th in the long history of the Commonwealth. I’m definitely going to miss her, but she’s leaving the shop in very capable hands.

 

Torts

Today’s opinions – majority and dissent – in Norfolk Southern Railway v. Sumner provide a vital lesson in causation analysis. It’s a FELA claim by an injured conductor on a freight train. He was performing a role that required him to get off the train and separate several cars so they could be left on a side track near Danville for another locomotive to pick them up.

The conductor arranged to stop the train in the right place. The next thing he knew, he was lying in a ravine with broken bones and other injuries. A coworker found him there and arranged for help. The conductor was out of work for eight months; he had no recollection of how he fell.

The spot where he fell included only a narrow walkway between the elevated portion of the track and that ravine, which plunged downward at an angle of 70 degrees for 36 feet. The footpath was only 15” wide, well short of the industry-standard of 24”, and it contained larger, rougher gravel than would be safe to walk on. (For those of you who care about these things, the larger stuff is called track ballast, and is two inches or more in diameter. Smaller gravel, the kind that’s suitable for footpaths, is called yard ballast.)

The conductor sued under FELA, a highly remedial statute that provides for relaxed standards of proof for proximate causation. Contributory negligence doesn’t apply, and if the railroad’s negligence contributes to an injury “in the slightest degree,” the railroad can be liable.

The railroad objected at trial that there was no evidence that its negligence in providing a too-narrow footpath actually caused the conductor’s fall. There are, it argued, a host of possibilities, and since the conductor had no memory of the fall, the jury would have to speculate to conclude that a wider path would have made a difference. The judge decided to let the jury sort that out. The verdict came in for the conductor, fixing damages north of $300,000.

On appeal, the justices narrowly affirm the judgment. Senior Justice Russell writes on behalf of the chief justice plus Justices Mims and Powell, citing some comparable cases in which SCOTUS has approved plaintiffs’ judgments despite wafer-thin causation evidence. The majority rules that “There was evidence to support the inference that the defendant’s negligence played a part, however small, in causing the fall which was the source of the plaintiff’s injury.” That makes it a jury issue.

Justice McCullough crafts an interesting dissent on behalf of Justices McClanahan and Kelsey. He points out that there are two components of causation: proximate causation and the analytically earlier but-for causation. While it’s true that FELA greatly relaxes the requirements for proximate causation, you still have to prove that but for the defendant’s negligence, the injury would not have occurred. Here, judge his words for yourself:

From this evidence, a number of possible conclusions emerge:

  • The plaintiff slipped, tripped, or stumbled in such a way that he pitched forward and fell with no opportunity to recover;
  • The plaintiff fell because he lost consciousness due to some medical episode;
  • The plaintiff was walking on the edge of the path such that the hypothetical extra width would not have helped him recover;
  • The plaintiff was not walking on the level portion of the path at all;

OR

  • The plaintiff was positioned in the path and slipped, tripped, or stumbled in such a way that the extra inches would, in fact, have helped him recover his step and he would not have fallen.

The dissent can’t agree that the conductor’s proof met this but-for test, so it would reverse and enter final judgment for the railroad.

I’ll engage in a little barely educated guesswork here. This is the second recent case in which the presence of a senior justice may have been case-dispositive. As in last October’s decision in Quisenberry v. Huntington Ingalls Inc., Justice Goodwyn sat this one out. Back then, Senior Justice Millette furnished one of the four majority votes in what I will subjectively describe as a plaintiff-friendly ruling. Today, Senior Justice Russell does the same thing, with a similar result.

I can’t know how Justice Goodwyn would have voted if he had participated in this case, but my leaning is that he would have joined today’s dissenters. That means that in his absence, the court reaches a different result. And that, in turn, means that appellate advocates should be careful about citing this doctrine in future FELA cases. If my suspicion is correct, a future decision on this issue might well come down the other way.

 


HOW TO SPEAK TO AN APPELLATE COURT

PART 1

 

 

(Posted January 22, 2019) It’s been quite a while since I’ve addressed the topic of oral advocacy. While there are numerous speaking styles, and no one of them is definitively correct, here are some notes on the way I do things.

Part 1 – How to Speak

This section is simultaneously breathtaking in its scope and dangerous in its connotation. The topic of how to speak is immense; the study of rhetoric and oratory goes back at least to Aristotle and Demosthenes. And tackling the task of telling people – educated people, at that – how to do something as basic as talking risks giving offense. After all, while we may realize that we’re not very good at painting portraits or singing or ballet, everybody perceives that he or she can talk well. You do, right?

As for the scope, I won’t try to be comprehensive here. I couldn’t possibly set out in an essay everything I’ve learned about public speaking since I was 13 years old and received my first training in it. It’s far too voluminous, and besides, there are some things that I don’t even realize that I know; they just come naturally after a lifetime of practice.

As for giving offense, please be assured that I’m not here to insult anyone. One of my primary goals in publishing this website is to help you to become a better appellate advocate. But even professionals who are highly skilled in their chosen craft may not know how to convey ideas clearly, forcefully, and persuasively. Here are a few basic suggestions.

Stop interrupting yourself

Have you ever heard a recording of yourself speaking at a time when you didn’t realize you were being recorded? If so, you may have noticed that the ordinary speech that you thought you’d delivered without a hitch actually had a great many interruptions. This usually takes the form of saying “um,” though occasionally speakers say “you know” in situations where they aren’t referring to the listener’s state of knowledge. I cringe when I listen to interviews with important people, and hear five or more “um” pauses in a single sentence.

You should regard this tendency as a speech impediment, and the most basic public-speaking advice I can give you is to become aware of it and train yourself out of this nasty habit. Speakers say “um” when they aren’t sure exactly what to say next. The first way to retrain yourself, then, is to consciously take the time to decide in advance exactly what you’re going to say, and only then start speaking.

The second way to eliminate “um” from your speech is to recognize the strategic value of a short pause. That is, instead of filling the one-second silence between two thoughts with an “um,” try filling it with silence.

What, am I getting too picky for you? Fussing over something that everybody does? Not at all, assuming you want to speak like a professional. Try this example. Imagine a trial in a red-light, green-light case. Two witnesses claim to have seen the collision from a position where each was able to see the traffic light. Asked the identical question, “What color was the light when the defendant’s car entered the intersection?” the first witness answers, “Um, the, um, light was, um, red.” The second one answers after pausing one second, “The light [very short pause] was green.” If you have no more information than that, and you haven’t been able to observe the witnesses’ demeanors, which do you tend to believe?

If you’re like me, you’re at least leaning in the direction of a green light. All those “ums” from the first witness project a lack of confidence, and virtually all juries will pick up on that. The same is true in causal conversation, and it’s emphatically true in an appellate court, where the conversation is not causal. If you want to become a polished speaker, you must banish these self-interruptions from your speech.

Make eye contact

This one’s easy: A speaker who looks you in the eye is likely to be perceived as more forthright, more believable. Years ago, I read about a study of eye contact between speakers and listeners. The study concluded that the speakers, on average, looked directly at the listeners roughly 50% of the time, while the listeners looked at the speakers 80% of the time. That’s not a complete surprise, because one of the aids to understanding another’s speech is to watch the speaker – sometimes for clarity when the speaker mumbles (you can probably read lips a bit better than you think) and sometimes for nonverbal clues.

To improve your persuasiveness, resolve to make eye contact more than 50% of the time. Don’t go to 100%; almost every listener finds it creepy when a speaker stares holes into the listener’s skull. But the more the listener sees you confidently making eye contact, the more persuasive you can be. Perhaps we acknowledge that it’s harder for most people to lie when the listener can see the speaker’s eyes; when the speaker can’t meet your eyes, isn’t he trying to hide something?

This, of course, means that reading a speech from a script is a very poor means of communicating effectively. If you’re only making eye contact with your notes, you aren’t making eye contact with your listener.

Connotation is the most important word

Communication is the process by which an idea is transferred from one brain to another. It doesn’t have to be verbal; a shaken fist can communicate a threat quite effectively. But we’re talking today about oral communication – that is, verbal communication by speaking. (Verbal simply means that you use words. It is not the opposite of oral.)

Preferably, the idea should arrive in the receiving brain intact. If it doesn’t arrive, or if it’s “damaged” in transit so that the listener receives a different idea, that’s a miscommunication. Miscommunication can occur when the listener can’t hear the exact words, and that can be either because the speaker mumbles, because the listener is hard of hearing, or because there’s an A-10 Thunderbolt flying overhead. The solution to those kinds of miscommunication is straightforward.

We’ll address a different form of miscommunication – where the listener hears the speaker’s words but assigns a different meaning to them. This usually occurs due to one of two causes: The speaker’s word choice is ambiguous, or the speaker and listener attach different meanings to the same words or phrases. This is a problem of connotation, the meaning that the listener attaches to the content.

Here are a couple of simple examples. If I tell you that my office is on the first floor of an office building, you might think, Good, I don’t have to climb any stairs. But if a subject of Her Britannic Majesty hears those words, he will envision what we Yanks would call the second floor. On that side of the pond, they call the floor that’s at street level the ground floor, and the one right above that is the first floor.

Or suppose a modern Rip Van Winkle awoke today after slumbering for, say, sixty years. If he felt glad to be alive and announced to those around him how gay he felt, they would likely attach a different meaning than the one he intended.

The point of all this is that for a speaker, connotation is the most important concept. Just as in the world of business “the customer is always right,” in communication it matters most what the speaker perceives. What you intended to convey is secondary. That counsels careful word choice, a knowledge of your audience, and of course clear enunciation.

You don’t speak only with your mouth

Gestures are a natural part of oral communication. If you doubt their importance, try giving a speech with your arms crossed behind your back and without moving your head. You can get the words out, but you’ll feel cheated in that you can’t use gestures for things like emphasis.

The topic of gestures in public speaking is also quite broad, and I won’t try to be comprehensive here, but the first key toward a greater mastery of the subject is to take account of your gestures. The best way to do this is to have someone record you delivering a speech of about five minutes, then go back and watch, making note of each gesture you make.

Doing this will quickly reveal a few truths. Pointing a finger directly at your listener is almost never a good idea, and great speakers don’t do it except in very rare circumstances – basically, only when it cannot be perceived as an attack. (Think of the Uncle Sam recruiting poster: “I want YOU …”) Instead, they gesture with an open hand, palm up and tilted inward, fingers slightly apart and extended in a natural curve toward the audience. That’s not threatening; it’s welcoming.

With gestures, I recommend an understated approach. I saw a politician giving a speech the other day in which she waved her arms outward, above her head. Maybe what she was saying was stirring, but I missed that part. What I noticed was that she was mimicking an attacking animal demonstrating its ferocity. Unless you plan to cow your audience into timid compliance, this is usually a bad choice.

There are time-tested gestures that you can view online: the Billy Graham two-handed karate chop; the backward-sweeping extended arm that conveys that you’re referring to a vast subject matter; even the thoughtful removal of eyeglasses before you say something truly important. Gregory Peck’s gestures in his closing argument in To Kill a Mockingbird are particularly instructive for lawyers … but we’re getting ahead of ourselves. That’s for Part 2.

The important thing is to be aware of your unconscious gestures. After you do that, you can consciously mold them to make you a better speaker – even the “speaking” you do with your hands.

Find your voice

This is one theme of Stephen Covey’s book, The 8th Habit. He counsels his readers to “find your voice and inspire others to find theirs.” My message is slightly different, though I wholeheartedly endorse Covey’s excellent advice.

I began this essay with the observation that there are numerous speaking styles. You’ve heard a gazillion of them over your lifetime. Some speakers are dazzling; others are mesmerizing; still others inspire strong passions. There are, of course, speakers on the other end of the effectiveness spectrum.

Nowadays, you can listen online to some of the greatest speakers of the past 100+ years. Personally, I love listening to Churchill’s brilliance, especially the concluding passage of the “Finest Hour” speech. For others, brilliant orators like Martin Luther King, Jr., Ronald Reagan, or the great appellate advocates of yesterday and today reach their listeners’ core, awaken a yearning within them.

By all means, allow these great voices to inspire you to become a better speaker. Just don’t try to adopt Churchill’s speaking style, or King’s, or Reagan’s. It won’t work, because you’re none of them. You may draw from them examples of cadence, volume changes, and rhetorical flourishes to help develop your speaking. But don’t try to be someone else, or talk like someone else. You do you. Anything else will come across as inauthentic.

CLICK HERE for Part 2

 


A QUICK REPORT ON 2018 STATISTICS

 

 

(Posted December 31, 2018) Virginia’s appellate courts are closed today, so we have time for a quick look at what happened in 2018.

 

Decisions on the merits

I was worried for a time that we wouldn’t reach 100 merits decisions in the SCV, but the justices put together an admirable late push, handing down 14 published opinions and one published order in December to get us over the mark. The court gave us 74 published opinions and four published orders this year. It also reissued two corrected opinions from last year. Add those to the 24 unpubs we saw n 2018 and you get 104 merits decisions.

For comparison’s sake, in 2017 there were 79 published opinions and 111 merits decisions. In 2016, we got 78 opinions and 125 merits decisions. For those of us who make our living at the appellate lectern, 2018 continues a disheartening downward trend in business.

 

David-Goliath Index

I promised you this as a recurring quarterly feature. Through the first half of 2018, David (the little guy in appeals, such as a defendant appealing a criminal conviction or an employee suing for wrongful termination) won about one out of three published rulings from the Supreme Court. But his third quarter was a disaster: one win and eight losses. A strong(-er) fourth quarter, where David won eight times and lost 13, brings our final David-Goliath Index to 31/69. That is, the little guy won 31% of the time and the big guy won 69% in 2018. Whether that’s a good sign or a bad one probably depends on which side of the litigation aisle you occupy.

 

CAV published opinions

By my preliminary count, the Court of Appeals of Virginia handed down 66 published opinions in 2018. That’s the same number as in 2016. I’ll have a fuller analysis of these figures when the court issues its full report in the spring.

 


 

EMERGENCY APPEALS: A HOW-TO GUIDE

(Posted October 15, 2018) I’ll confess that I’ve tended to take a lighthearted view of what I’ve described as “omigod appeals,” where a party just has to have immediate review of a trial court’s ruling. I’ve given the example of, “You’re litigating over an ice cream truck, and it’s 97 degrees outside.” I never really gave much thought to when a real need for such an appeal might arise, or how I would go about pursuing one.

All that changed recently when I was asked to speak at an upcoming conference. My topic is how to appeal in denial-of-care cases. Yet another confession: My immediate reaction to that request was, “What’s a denial-of-care case?” I really have lived a sheltered life.

I soon found out that these cases are nothing to take lightly. They refer to the circumstance where a hospital denies medical care needed to preserve someone’s life. There may be squabbling family members, and maybe even a do-not-resuscitate provision in an advance medical directive. In these cases, if a circuit court issues an order allowing or directing the hospital to deny care, and a family member wants to appeal, the normal appellate process is out of the question. These days, it takes well over a year to get from circuit-court judgment to Supreme Court opinion, and most patients in that circumstance don’t have anywhere near that much time. For these folks, there has to be a faster way.

CLICK HERE to continue…