CLERKS’ OFFICES CLOSE EARLY

 

 

(Posted April 19, 2019) The Clerk’s Offices of the Supreme Court and Court of Appeals of Virginia have closed today due to a severe approaching storm. If you have anything due to be filed in one of those two offices, your deadline is automatically extended unto Monday. Please note that this closing doesn’t extend the deadline to file documents that are due in trial-court clerk’s offices (notice of appeal, transcript, appeal bond). If your local court is open today, you don’t get an extension.

 


NEW RULES LOOM

 

 

(Posted April 19, 2019) In the past 24 hours, two courts announced rule changes. Yesterday the Supreme Court of Virginia created a new Part Eleven of the rules, effective June 17. The new rules are the court’s response to the public-access problem identified in The Daily Press v. OES (2017). When the legislature started making noises last year about stepping in, the court preemptively announced that it would create a new policy to govern public access to court documents. The court publicized a draft policy last year, and yesterday’s order is the final version.

Across the Potomac, SCOTUS has tinkered with briefing requirements. Starting in July, merits briefs must come in at 13,000 words or less, down from the current limit of 15,000. The Court decided against paring back reply briefs, leaving that limit at 6,000 words. The rule change also adds a requirement that parties identify any other cases directly related to the pending appeal. That helps the justices to identify any possible conflicts.

The federal courts of appeal have already implemented the shorter briefing limit. I recall well the scene a few years ago when that proposed change was pending. At the annual meeting of the Council of Appellate Lawyers, an ABA appellate body, lawyer after lawyer railed against the proposed reduction.

I kept my opinion to myself that day, but here it is for you to see: You guys are nuts. Why are you lobbying for the right to file long briefs? The “consumers” hate those.

It’s true: Ask any appellate jurist what she thinks about the briefs she gets, and the first answer will be, “They’re too long.” If you’ve drafted a brief and you’re having trouble trimming it down to the page limit, you aren’t trying hard enough. You’re probably also engaging in defensive lawyering, throwing in any potentially winning argument for fear of leaving a case-winner on the table.

I implore you to heed me on this: You cannot make a strong argument better by adding a weaker one after it. The weak one just diminishes the strength of the good one. I assure you that I can do more damage to my adversary’s position by filing a ten-page brief than I could with a 30-pager. If that sounds counter-intuitive to you, I urge you to rethink your assumptions.

Many years ago, the Supreme Court of Virginia shortened the briefs it had to “consume.” It did so, not by changing the page limits, but by increasing the required type size from 12-point to 14-point. I’m told that then-Justice Agee suggested this after noting that federal briefing rules require 14-point. The court was only too happy to embrace this change, which required lawyers to be more concise without taking any pages away.

In case you’re getting worried, I can report that I’ve heard no suggestion that the SCV will revise page limits downward in the near future.

 


ANALYSIS OF APRIL 18, 2019 SUPREME COURT OPINION

 

 

(Posted April 18, 2019) If you enjoy delving into the arcane world of suretyship law, the Robes today hand down an interesting and informative opinion for you. If you aren’t in this select group, the sun is shining and the temperatures are moderate; why don’t you take the afternoon off? You won’t get weather like this in mid-July.

In Callison v. Glick, the court takes up the topic of subsuretyship. Yes, that’s a word, though my computer’s Spell Check feature finds it objectionable. Today’s opinion resolves an incredibly complex fact pattern. To avoid getting bogged down in that, and risking losing your attention, I’ll just say that it involves a loan against property used as an “automobile service center,” though the opinion elsewhere calls it a dealership. You can read about all the facts in the slip opinion; I’m going to jump straight to the holdings.

There are normally three parties in a surety arrangement: The creditor, the debtor, and the surety. A surety promises to make good on the loan if the debtor defaults. Until the debtor defaults, the creditor can’t touch the surety.

This decision defines the boundary between a cosurety and a subsurety. Cosuretyship is where two sureties each agree to protect the creditor – presumably equally, though it’s certainly possible that they could agree to be sureties in different amounts. In that situation, if the debtor doesn’t pay, the creditor can go after either or both cosureties.

A subsurety is different: That’s where the subsurety agrees to step in only after the debtor and the original surety fail to pay what’s due.

Today’s ruling turns on that distinction. The trial court ruled that the appellant here was a cosurety, and the creditor could tag her immediately upon nonpayment. On appeal, she asked the justices to reverse that, but the Supreme Court finds that the trial court didn’t abuse its discretion in its ruling. Finding that “reasonable jurists could differ” as to the conclusion, and that the trial judge didn’t make a mistake of law, the court unanimously affirms today.

This, then, is possibly the latest in a long line of appellate decisions where the standard of review is case-dispositive on appeal. Justice Goodwyn writes today’s opinion, and he makes it clear that the seven justices may or may not have agreed with the trial court’s view of the case. But they don’t second-guess judgment calls like this.

The appellant assigned error to one additional ruling. She had asked the trial court to clarify its ruling, to specify that the judgment was without prejudice to her later right to seek contribution from the original surety and the debtor, but the court refused to do that. Resolving this assignment, the justices cite recent caselaw that excuses trial courts from having to explain their orders. They also note that doing so in this context would amount to rendering an advisory opinion, since the appellant’s contribution claim wouldn’t be ripe until she made good on the obligation. My best guess is that this ruling effectively gives the appellant what she wants; a holding that the claim isn’t ripe almost certainly means that the judgment here isn’t res judicata as to that future claim under Rule 1:6. But that’s a question for another day.

 


ANALYSIS OF APRIL 11, 2019 SUPREME COURT OPINION

 

 

(Posted April 11, 2019) If you’re playing semi-hooky today, sitting in your office while live-streaming The Masters, here’s a reason to break away for a few moments. The justices today decide a first-impression issue in Dominion Resources v. Alstom Power.

Tort lawyers know all about the collateral-source rule: Where the victim of a tort had protected herself by buying insurance, the tortfeasor doesn’t get to apply any insurance payments to reduce his liability for damages. That’s because the tortfeasor didn’t buy the insurance, and thus shouldn’t benefit from it. While this can result in a double recovery of sorts, the law chooses to err on the side of the victim instead of the Bad Guy.

On a few occasions, the Supreme Court has come close to deciding whether the doctrine applies in the contract milieu. In each of those instances, the court has decided the appeal on different grounds, leaving the ultimate question for another day. Today is that day.

The underling dispute is complex, so I’ll give you the simplified version. Alstom did work at some of Dominion’s power plants. An accident at one of those plants killed three workers and injured two more. Dominion paid over $5 million to compensate the victims and incurred almost twice that in legal fees defending the claims.

The contract between Dominion and Alstom required the latter to purchase insurance, naming Dominion as an additional insured. Alstom did so, and Dominion separately bought an excess policy to cover itself.

After resolving the claims, Dominion collected from its excess carrier and then sued in a Connecticut federal court to recover the litigation expenses from Alstom. (The suit charged that Alstom had failed to defend Dominion in the tort suits and had bought the wrong kind of insurance.) Alstom responded by saying that Dominion couldn’t sue, because it had already been paid. Dominion replied that the collateral-source rule barred Alstom’s defense.

The Connecticut judge decided that it would be wise to ask the justices whether the rule applies in the world of contracts. The justices agreed to decide the certified question, and today they unanimously rule that it does.*

Yes, that was an asterisk. The Supreme Court finds that the same reason for the rule applies in contract as in tort. You shouldn’t be able to escape liability your contract breaches merely because your victim has been cautious. But the court stops short of a full-throated endorsement of this principle. Instead, we have this language:

The same rationales supporting this Court’s long recognition of the collateral source rule in tort cases also support the rule’s application in certain breach-of-contract actions. Whether the rule applies to a given case, however, requires a case-specific determination of whether the parties’ expectations, in light of those rationales, support the rule’s application.

I added italics to highlight the key qualifier. The court decides that the doctrine can apply in some contract cases, but it declines to draw the boundaries. That’s for future trial judges to do. And that, in turn, means more work for trial lawyers, so who’s to complain?

 

In addition to this published opinion, the court also hands down three published orders:

In Brown v. Warden, the justices rule that the limitation-of-actions period for filing habeas corpus petitions does not violate the constitutional prohibition of suspension of that writ.

In Turner v. Commonwealth, the court affirms a conviction for failure to register as a sexually violent offender. Turner was convicted in another state of a nonviolent sexual crime. The Virginia statute requires frequent (every 90 days) registration by sexually violent offenders, in contrast with once a year by nonviolent offenders. But a quirk in the Virginia statute classifies all offenses for which the offender must register in the state of the crime, as violent. The justices note that there’s “no obvious explanation” for why the General Assembly chose to isolate offenses from elsewhere, but the court isn’t free to rewrite the act.

Finally, in Spear v. Omary, a divided court rules that when a litigant appeals a JDR judgment to circuit court, and then withdraws the appeal, that automatically remands the case to JDR, even if the withdrawal order doesn’t say so. Justice Kelsey, joined by Justice McClanahan, dissents, maintaining that some affirmative language evincing remand is necessary.

 


ANALYSIS OF APRIL 9, 2019 CAV ORDER

 

 

(Posted April 9, 2019) The Court of Appeals today hands down a significant published order deciding a matter of first impression on appealability. The case is Guan v. Ran, an appeal of a temporary injunction in a domestic-relations case in Alexandria.

The spouses jointly owned a company. They executed a property settlement agreement, but during the divorce proceedings, they evidently differed over its application to the company. The husband succeeded in getting an injunction against the wife, barring her from the business site, prohibiting her from contacting any employees, directing her to return funds, and barring her from telling anyone that she owned 51% of the company. (The order specifies that her ownership percentage is 49%.)

Stung by this order, the wife pursued a snap appeal, filing a petition for review under Code §8.01-626. That allows a party to seek immediate review, on an expedited basis, of an order granting or denying a temporary injunction.

This review was indeed expedited; the injunction order is dated February 27, just six weeks ago. Today a panel of the Court of Appeals dismisses the petition for review, holding that the wife isn’t aggrieved by it.

How can that be? The injunction order expressly commands her to do certain things and not to do others (including what I regard as a highly suspect prior-restraint ruling that implicates the First Amendment).

The culprit is an often-neglected statute, Code §8.01-631. That specifies that no injunction shall take effect until the movant posts an injunction bond. The husband didn’t post a bond because the injunction order didn’t set an amount, so the CAV panel rules today that the injunction hasn’t taken effect. That, in turn, means that the wife isn’t aggrieved, and she can’t appeal.

This is worth exploring in more detail. The injunction-bond statute begins with this provision:

Except in the case of a fiduciary or any other person from whom in the opinion of the court awarding an injunction it may be improper or unnecessary to require bond, no temporary injunction shall take effect until the movant gives bond with security in an amount that the trial court considers proper to pay the costs and damages sustained by any party found to have been incorrectly enjoined, with such conditions as the trial court may prescribe.

A few key provisions stand out here. First, the general rule is “No bond, no injunction.” That’s unmistakable from the statutory language. But in my experience, most trial judges tend to ignore this rule unless the unhappy recipient of the injunction’s business end points it out. That leads to the second point:

Fiduciaries don’t have to post bonds; they occupy a privileged status and get relief free. Everyone else has to post something, except those movants who can convince the learned trial judge that it would be “improper or unnecessary to require” a bond from them.

The statute gives no guidance on what criteria a judge should use in deciding whether to exempt a movant. Presumably this means that any review of a no-bond-required ruling would be for abuse of discretion. But there’s also no requirement that the aforementioned learned trial judge must make a record of her findings on this point. She can simply add a sentence saying that, in the court’s opinion, requiring a bond would be improper or unnecessary. How’s an appellant going to attack that?

The reality is that no appellant can, short of a manifest error of huge magnitude. But let’s keep exploring.

Where a trial court enters an injunction order that contains no bond language, is the respondent bound to obey it? Before today, I would have advised such a person to obey, rather than face the wrath of a jurist who angrily demands, “What part of my order was unclear to you?!” Today’s order gives some cover to those unhappy litigants; in the ensuing contempt hearing, that person can show up with a copy of this opinion and argue that the injunction hasn’t taken effect yet.

The predictable result of an argument like that is entry of a speedy order directing that no bond is required, so the challenged injunction becomes instantly binding. That means that the respondent’s victory will be short-lived.

For appellate lawyers, we have a new decision on appealability. This isn’t a finality question; this part of the bond statute only applies to temporary injunctions. But this decision imposes a limitation on the petition-for-review process. For whatever it’s worth, I believe that today’s panel gets this entirely correct: An injunction with no bond hasn’t taken effect yet, so there’s nothing to appeal.

This case remains in the circuit court. The next thing that will likely happen is that the husband will set a hearing on a request to waive the bond requirement, or to require a bond in a nominal amount. The wife will oppose that, arguing for a bond equal to half the value of the company. And that puts the matter back in the hands of the judge, who will make a discretionary ruling that will be quite difficult to challenge on appeal.

 


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.

 


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.

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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.

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