(Posted July 18, 2019) They knew. Someone up there had to know. My schedule kept me out of my office this morning and half of the afternoon, and someone at Ninth and Franklin figured this would be a good day to hand down three published opinions, two published orders, and one unpub. They must have been chuckling at me this morning.

This means that I won’t be able to complete analysis of the decisions this evening; this will be a two-day job, bringing back memories of six opinion-stuffed days a year, before the Supreme Court moved to rolling release dates.


Real estate taxation

Back in the 90s, when I worked in City Hall, I handled a fair number of landowners’ challenges to their real-estate tax assessments. That gave me intimate familiarity with appraisal methods and the presumption in favor of validity of a locality’s assessment. The justices explore this field today in McKee Foods Co. v. Augusta County, involving taxation of a food-processing facility.

The building is a whopper – over 800,000 square feet located on 170 acres. When the County assessed it at roughly $30 million over a four-year period, and the County and the Board of Equalization refused to budge significantly, the owner sought relief in court. It contended that the true value of the building was more like $17 million.

In these proceedings, the taxpayer has the burden of proof, and that burden is stiff:

there shall be a presumption that the valuation determined by the assessor or as adjusted by the board of equalization is correct. The burden of proof shall be on the taxpayer to rebut such presumption and show by a preponderance of the evidence that the property in question is valued at more than its fair market value or that the assessment is not uniform in its application, and that it was not arrived at in accordance with generally accepted professional appraisal practices, procedures, rules and standards …

This means there’s now a two-step process: The owner first has to show either a valuation above fair-market value or one that isn’t uniform. If the owner achieves that, it next needs to show that the appraisal process deviated from applicable procedures and standards.

The County’s appraiser wasn’t a County employee; it hired a contractor to do the work. That contractor didn’t use any of the Big Three methods: sales comparison, depreciated reproduction cost, or income. Citing prior holdings, the justices today rule that when an assessment fails to use any of those three methods, that doesn’t make it automatically wrong, but it isn’t entitled to a presumption of correctness.

The trial judge, ruling in favor of the county, had employed that presumption to break what he felt was a tie in the evidence. The Supreme Court thus sends the matter back to the trial court for reconsideration without affording the County assessment any presumptive weight.

But there’s a catch. The trial judge who heard the voluminous evidence in this case – the trial-court record is well over 5,000 pages – is retired and isn’t subject to recall to sit as a judge designate. Part of the decisionmaker’s job is to weigh the competing appraisals and make credibility determinations, something that’s nearly impossible with a cold transcript. That leads to this remarkable coda to today’s opinion:

Accordingly, due to the unique circumstances of this case and the trial judge’s unavailability, we will remand this matter for a new trial, consistent with holdings expressed in this opinion. However, if the parties and the circuit court all agree to forego a new trial and have the circuit court review the existing record under the proper standard of review, our remand authorizes the circuit court to exercise its discretion whether to conduct a new trial or limit its review to the existing record.

These are unpalatable options, but that’s one of the risks of securing a reversal and remand for a new trial.


Workers’ Compensation

In the field of Comp law, Virginia adheres to the two-causes rule. That rule states that where there are two causes for a worker’s disability, and one is related to the employment while the other is not, the employee gets benefits if she shows that the employment contributed to the disability. That’s the backdrop for Carrington v. Aquatic Company.

The two causes here probably couldn’t be more dissimilar. The employee suffered from a kidney condition that initially didn’t prevent him from working. He later injured his arm on the job and received temporary total benefits. He had an operation and his doctors ultimately cleared him to return to light-duty work.

A that point, his kidney condition took a major turn for the worse, resulting in total disability. The employee asked for a continuing award of the temporary total benefits due to his arm, but the Comp Commission ruled that the employer wasn’t liable, since the sole cause of the total disability was the kidney condition, and that had nothing to do with the work. The Court of Appeals affirmed that ruling.

The justices today affix their stamp of approval on these holdings. The two-causes rule assumes that the two factors produce the same disabling condition. Here, the conditions were unrelated, and the arm injury had nothing to do with the employee’s inability to work.





(Posted July 16, 2019) The Court of Appeals of Virginia announces four published rulings today. Among them is a fascinating decision in a criminal appeal. Maldonado v. Commonwealth is the tale of a father who lied to investigating officers to protect his son. The son had borrowed his father’s truck one night for an evening at a bar in Cape Charles, in Northampton County. Leaving the bar after last call, the son drove the truck off the road where it hit a ditch and rolled over.

A deputy sheriff, dispatched to the scene, found the truck empty of occupants but discovered a cell phone inside. Minutes later, the owner’s daughter – this would presumably make her the son’s sister – showed up. She told the deputy that “someone took the truck” from her father’s home, and she wanted to know how to report it as stolen.

As you’ll readily appreciate, this is not headed in a good direction. Investigators came to the father’s home and spoke with him, but the record doesn’t include the contents of that discussion. A few hours later, a State Trooper visited the father and spoke with him at the door to his home. The father volunteered that his truck had been stolen, and pointed to an empty parking space. In response to a question about the son’s whereabouts, the father said he wasn’t at home.

That turned out not to be quite correct. After extended conversations lasting 40-45 minutes, the father went inside and brought the son out. The son initially denied being involved and said he hadn’t left home the previous evening.

Unfortunately, that all unraveled when the police discovered that that lonesome cell phone belonged to a person who had been a passenger in the truck, and was in a Norfolk hospital. That passenger sang like a whippoorwill to a deputy, blabbing in a way that led to an indictment of the father for making a false police report and obstruction of justice.

At a bench trial, the circuit court dismissed the false-report charge, but it convicted the father of obstruction and sent him to jail. Today a unanimous panel of the CAV reverses that and enters a judgment of dismissal. Relying on prior holdings on what constitutes obstruction, the court finds that the father’s actions may have made the investigators’ work less convenient, but it didn’t actually hinder them. The record doesn’t show that this 40-minute delay affected them in any meaningful way. Conceivably the first conversation, several hours earlier, might have done so; but as noted above, the record doesn’t indicate what the father said then.





(Posted July 15, 2019) I’m a bit overdue in reporting on the justices’ voting patterns in the second quarter of 2019. This feature, which I instituted early last year, collects results from published rulings (opinions and published orders) from the Supreme Court of Virginia, where those appeals have an identifiable Big-Guy-vs.-Little-Guy dynamic. About 15 years ago, each side was winning roughly half of the time on appeal, which is the sort of distribution you’d expect. Trial judges aren’t perfect – a fact for which we appellate lawyers are profoundly grateful – and they’re as likely to err in favor of either side as the other.

But I noticed that the voting started to shift a few years ago, to the point that Goliath was winning far more than was David. I decided to keep track of the results and report them here. In 2016 and 2017, Goliath hit an admirable high-water mark, prevailing in over 80% of those published decisions. Last year, David did a little better, winning 31% of the time and losing 69%. In the first quarter of this year, the DGI was 27/73, meaning that Goliath was still winning far more than losing.

The numbers are in for the second quarter. I had to go back and check again before posting this, because the results surprised me: Goliath had an undefeated quarter, winning all ten decisions in April, May, and June. That raises the year-to-date DGI to 86/14 (18 wins for Goliath to 3 for David). That’s the greatest imbalance I’ve ever seen, though the year obviously isn’t over yet.





(Posted July 12, 2019) Despite the lack of summer court sessions, there’s still plenty going on in the appellate world.


Criminal appellate-practice seminar

The Fourth Circuit will sponsor a seminar for practitioners who handle criminal appeals. The program will convene Monday, October 28 and will run from 9:00 a.m. to 5:00 p.m. It’s free to members of the bar. Given the price, the relative paucity of appellate training, and the timing – three days before the MCLE deadline – I expect it to sell out. You can register here.


ABA Appellate Summit

Preparations proceed apace for the Appellate Judges Education Institute, known informally as the ABA Appellate Summit, in Washington DC November 14-17. Registration is now open through this link. The summit is the best annual nationwide gathering of appellate jurists, advocates, and staff attorneys. Yes, you will see me there; I seldom miss these terrific events, and if you’re serious about developing your appellate practice, you should make plans to attend, too. There’ll be four days of educational programming, plus social functions including a reception at the US Supreme Court. In the past, at least one of the Robes has attended those receptions. Next year’s summit will be in Texas, so this year you can attend without bringing your passport.


Road shows loom

Here’s this year’s reminder of the Supreme Court’s remote writ panels, known informally as the road shows. This is the only time all year when the court convenes outside Richmond. There will be one panel in the Supreme Court Building, on the afternoon of Wednesday, August 21. The next morning, another panel will convene in Fredericksburg, and that Friday morning, a third will meet in Grundy.

You should regard these as opportunities for free informal training. The sessions are open to the public, and you’ll likely find it enlightening to watch the court, and the lawyers practicing before it, in action. You’ll see some excellent arguments that can help you to improve your own presentations. You may even see some that will give you ideas on what not to do. If you practice anywhere nearby, make plans to go. If you stay for just 90 minutes, you can see perhaps ten or twelve writ arguments, and learn from each of them.





(Posted July 10, 2019) In two cases with nationwide significance, a panel of the Fourth Circuit has handed the president a significant victory relating to the Emoluments Clause. The court rules that the State of Maryland and the District of Columbia don’t have standing to assert violations of the clause, so the court directs that the actions be dismissed. The court’s two orders are here and here.

These actions center on the president’s business activities, principally his hotels. The District and the State had argued that the Trump International Hotel in Washington “markets itself to the diplomatic community,” so that a stream of foreign dollars flows to the president. The opinion also mentions other aspects of the president’s financial dealings, such as a favorable decision from China on an intellectual-property matter and real-estate projects in Indonesia and the United Arab Emirates. There’s also the matter of the Mar-a-Lago Club in Florida, which the complaint asserts benefits from publicity from the Department of State and US embassies. The ultimate claim is that this setup gives the president’s properties a competitive advantage.

The problem with all this, today’s panel finds, is that neither the State nor the District has made a sufficient showing of Article III standing to bring an action like this. For example, the court rules today that “the link between government officials’ patronage of the Hotel and the Hotel’s payment of profits or dividends to the President himself is simply too attenuated.” The court also notes that any claimed violation may not be redressable in a legal action, adding this zinger:

[C]ounsel for the District and Maryland, upon being questioned, was repeatedly unable to articulate the terms of the injunction that the District and Maryland were seeking to redress the alleged violations. When plaintiffs before a court are unable to specify the relief they seek, one must wonder why they came to the court for relief in the first place.

The court also addresses parens patriae standing, the ability of the government to bring suit to redress harms to its citizens. It finds that the claimed harms here are “exactly the same” as the ones asserted under Article III, containing the same problem of an “attenuated chain of inferences.” And finally, the panel rejects claims based on “quasi-sovereign interests” arising from favoritism, finding this to be nothing more than “a general interest in having the law followed.”

Procedurally, the district court had rejected the president’s motion to dismiss and had deferred adjudicating his claim of absolute immunity. The court then refused to certify the case for an interlocutory appeal. The Fourth Circuit reverses that ruling, grants a writ of mandamus, and directs that the litigation be dismissed, without reaching the claim of absolute immunity. This is an unqualified win for the president.

Today’s opinion contains this remarkable paragraph, outlining how extraordinary this litigation is:

First, the suit is brought directly under the Constitution without a statutory cause of action, seeking to enforce the Emoluments Clauses which, by their terms, give no rights and provide no remedies. Second, the suit seeks an injunction directly against a sitting President, the Nation’s chief executive officer. Third, up until the series of suits recently brought against this President under the Emoluments Clauses, no court has ever entertained a claim to enforce them. Fourth, this and the similar suits now pending under the Emoluments Clauses raise novel and difficult constitutional questions, for which there is no precedent. Fifth, the District and Maryland have manifested substantial difficulty articulating how they are harmed by the President’s alleged receipts of emoluments and the nature of the relief that could redress any harm so conceived. Sixth, to allow such a suit to go forward in the district court without a resolution of the controlling issues by a court of appeals could result in an unnecessary intrusion into the duties and affairs of a sitting President. Accordingly, not only is this suit extraordinary, it also has national significance and is of special consequence.

Under these circumstances, the panel finds that the district court erroneously refused to certify the case for interlocutory appeal. As for the procedural posture, “rather than remand the case to the district court simply to have it pointlessly go through the motions of certifying, we will take the district court’s orders as certified and grant our permission to the President to appeal those orders ….” This marks today’s rulings as remarkable from a procedural perspective, not just for the political implications.

This leaves one unanswered question: Who can sue to halt a violation of the Emoluments Clause? Beyond doubt, that could be used as a ground for impeachment; but can the courts ever take up such a case? How would any party establish standing? We may get an answer to that in further proceedings; I strongly suspect that the State and the District will either petition the Fourth Circuit for en banc rehearing, or else seek certiorari. A cert grant would make 2020 even more interesting than it already promises to be.





(Posted July 8, 2019) Last week, the Supreme Court of Virginia amended the rulebook, adding two new rules and tweaking a few more. The changes are effective September 1. I’m very pleased to see the new provisions, which clear up a troubling ambiguity.

Four years ago, I posted an essay on what jurisdiction remains in the circuit court when one party appeals. In my experience, lawyers and judges had imperfect understanding of how the docketing of an appeal affects the respective courts’ powers to act.

Now we have clear guidance. New Rule 1:1B sets out how the filing of a notice of appeal alters the courts’ powers. It confirms that the appellate court acquires jurisdiction with the filing of a notice of appeal – and not the petition for appeal, which had been the rule back in the 1980s. The trial court still has the authority to act in certain matters, such as setting an appeal bond, enforcing the final order if there’s no such bond, and deciding motions to stay.

Importantly, the trial court retains the authority to modify, suspend, or vacate a final order for a full 21 days, even if an aggrieved party notes an appeal on Day 12. If the trial court vacates the order within that 21-day period, then the notice of appeal fizzles into nothingness, and any aggrieved party must file a new notice after the eventual final judgment. In contrast, a timely order modifying or suspending the final judgment won’t require a new notice of appeal.

Rule 1:1C contains comparable provisions for interlocutory appeals. We’ll start with petitions for review of injunction orders under Code §8.01-626. There, the appellate court gets full control over the part of the case thus appealed, but the trial court still can act in any unappealed portion, absent a formal stay. In other interlocutory appeals, such as certified questions, the trial court can press on with the case unless one court or the other issues a stay.

But that’s not all, folks. The court also:

  • Amends the uniform pretrial scheduling order to change from 15 to 30 days before trial the deadline to designate portions of depositions to be used at trial in lieu of live testimony. The 2018 Boyd Graves Conference recommended this change.
  • Adds a sentence at the end of Rule 3:20, carrying out the statutory change allowing depositions in summary-judgment motions in certain business litigation.
  • In inmate filings, eliminates the requirement that the inmate pay for first-class postage.
  • Requires an appellee in the Court of Appeals to list assignments of cross-error when designating the appendix contents. This also carries out a Boyd Graves recommendation.

That, you will appreciate, is quite a haul. For trial practitioners, the most significant changes in this order are those relating to summary judgment and de bene esse depositions. But for appellate lawyers, this is a signal day for the end of the dual-jurisdiction conundrum and for making the process of designations in the CAV fairer.






(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.

CLICK HERE to continue





(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.




(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…