[Posted September 23, 2016] Now that the rains have stopped here in soggy Tidewater, let’s raise the periscope and see what’s going on in the appellate world.

Decline in cert grants

I’ve written previously about the fact that the Supreme Court of Virginia has cut back sharply on the number of appeals it awards. (That being said, there are already 14 from the writ panels three weeks ago.) While incoming petitions in Richmond are definitely down, the number of writs is noticeably lower than caseload factors alone would explain.

But our court isn’t the only one where the justices are being more selective. At One First Street, the cert-granted rate at SCOTUS has been “sluggish,” according to an essay on the website Empirical SCOTUS. The Big Supremes have granted only 29 cert petitions for October Term 2016, leaving “over half of the Court’s merits docket still open.”

For those of us who make our livings in the appellate arena, the decline in business is alarming. For trial lawyers, the takeaway is a little different; this underscores the bon mot that the best appellate strategy is usually to win the case in the trial court. With fewer grants, there are correspondingly fewer reversals, in both courts.

Oral argument hell

I received from a pal this link to the oral-argument audio in a Seventh Circuit case involving a policy decision by Indiana Governor and Veep wannabe Mike Pence, prohibiting Syrian refugees from settling in the Hoosier State. The audio is at times painful to listen to, not because the argument is poor, but because of the bludgeoning that the court administers to an experienced appellate lawyer: Indiana Solicitor General Thomas Fisher. His tormentors are Judges Richard Posner, Frank Easterbrook, and Diane Sykes.

I won’t editorialize and spoil the plot; I’ll save the freshness of the content for your ears. All I’ll say is that if an appellate jurist ever says to me as I stand at the lectern, “Honestly, you are so out of it,” it’ll be time to hunt up a new career. (If you’re curious but you don’t have half an hour to spend listening, here’s written coverage of the argument from The Indiana Lawyer.)

Some non-VANA writing

In the hope that you like the prose you find here, I’ll give you links to a couple of articles I’ve written that have been published recently elsewhere. The first is a book review I wrote for the State Bar’s magazine, Virginia Lawyer. The second is a fun historical piece I wrote for the ABA Council of Appellate Lawyers; its publication Appellate Issues is hot off the press, released just this week. (You’ll need to scroll all the way down to page 46 for my essay.)

By the way, I invite you to check out the entire issue of CAL’s journal; it’s a terrific resource. I heartily endorse your joining the organization if you have an appellate practice. One extra perk: CAL members automatically get the annual law review, Journal of Appellate Practice and Process; no extra charge.

One last plug for AJEI

The ABA Appellate Summit, formally known as the Appellate Judges Education Institute, draweth nigh. It’s November 10-13 in Philadelphia. I’m going, and so are hundreds of other appellate judges and lawyers from across the nation. The CLE programming is top-notch, and you’ll get to rub elbows with, and share ideas with, appellate lawyers from elsewhere.

One of the summit’s regular features is the Friday morning roundtable discussions. The organizers pick half a dozen or so topics, set up that many tables, and invite anyone who’s interested to come, ask questions, offer advice, and learn from your appellate colleagues in a laid-back, small-group setting. I’ll be leading the discussion entitled, “Solo and Small Firms: Latest Challenges in Managing a Small Appellate Practice.”

But don’t come only on my account. Want to hear an informal conversation with Justice Kagan? How about a preview of next year’s SCOTUS Term (incomplete as it is right now, there will surely be more grants by November) featuring Paul Clement? You can be dazzled by Dean Erwin Chemerinsky’s unbelievable memory for details during his two hour-long programs discussing OT15 decisions, both of which speeches he delivers entirely without notes. You can learn how writing in the digital age is different from what you learned in law school. There’s even an hour of ethics credit to be claimed, if you need that.

I’ve been to five previous ABA Appellate Summits, and have always found the program to be well worthwhile. Next year’s program might be on the West Coast, so here’s your chance to attend one without flying back and forth across the North American continent.






[Posted September 22, 2016] It’s an extraordinarily soggy Thursday here in Tidewater; we’ve had two months of rain in the past three days. That’s a good excuse to stay inside and unwrap the two presents we get this morning from the Supreme Court of Virginia.

Criminal procedure

The facts section of Du v. Commonwealth is painful to read. Justice Kelsey tells the tale of a young immigrant from Vietnam who comes to America at 18 to live with the father he never knew. He lived for a time with his father, stepmother, and half-sister. After a period that may have been tranquil, Du stormed out, seemingly never to return.

But return he did; four years later, he broke into the home and sexually abused and raped his then-13-year-old sister. The girl’s mother walked in on the pair, leading to a fight. That fight took a dramatic turn when Du reached for a metal baseball bat and began beating his father and stepmother about their heads. The beating continued until they were both insensible; the stepmother stirred once, but Du hit her again, stilling her. Du then told his sister, “Don’t panic; they’re dead.”

The attack left the father severely injured. Thanks to emergency surgery, he survived, but was dependent on others for normal life activities. The mother received stitches to close an open head wound; her victim-impact statement revealed the deep and lasting psychological impact of the attack on her.

While awaiting trial, Du wrote several times to his father and stepmother, encouraging them not to come to court to testify, so that the charges against him would be dismissed. I’m not sure that would have worked, since home-security video captured the events. But the prosecution introduced the letters in the trial court, showing the judge how Du had attempted to hamper the prosecution’s case.

Du pleaded guilty to aggravated malicious wounding, malicious wounding, and statutory rape. The trial judge sentenced him to life plus 30 years, and suspended all but 50 years of that term. The court added conditions of probation for life upon release from prison. In addition, the court directed that Du could have no contact with the three victims for the rest of his life. That, too, was a condition of the suspended sentence.

At the sentencing hearing, the prosecutor told the judge that the stepmother “requested that [the no-contact order] not be ordered for her.” The judge pondered that, then refused, noting that the stepmother could, if she chose, write to Du. The court expressly “discounted” the proffer of the stepmother’s wishes, given the clarity of the victim-impact statements.

The Court of Appeals refused Du’s petition for appeal to review the probation and no-contact provisions. The justices granted Du a writ, and today they affirm by a 6-1 margin. Noting that the appeal is evaluated under the deferential abuse-of-discretion standard, the court finds that the trial court acted within the limits of that discretion.

As for the probation, Justice Kelsey points out that the court could have imposed active prison time of life plus 30 years, and probation is “far less severe than life imprisonment.” All seven justices agree with this ruling.

The justices split over the no-contact provision. The majority finds that the trial court had the discretion to act as it did. The trial judge hadn’t spelled out much detail for the ruling, but the majority finds that the court could reasonably have considered Du’s attempt to influence the trial by manipulating his injured father and stepmother, and sought to ensure that Du wouldn’t subsequently try to pressure the stepmother into recanting her testimony. The sentence also found support in the victim-impact statement, which spelled out the psychological damage to the stepmother.

Justice Powell dissents here, observing that conditions of suspension must be reasonably related to rehabilitation and deterrence. She points out that Du has contact with only three people in this country, and the no-contact order permanently cuts him off from all of them. Given the expression of the stepmother’s wish not to be so separated, she finds the term unreasonable. It does not, in her view, serve a rehabilitative purpose.

As for the possibility of Du’s pressuring his stepmother to recant in order to undercut the conviction, Justice Powell argues that that possibility “cannot come to pass under our jurisprudence.” That’s because recantation evidence is highly suspect, since it is in essence a credibility attack by the witness upon herself. Since the video corroborated other evidence of the crimes, proof of a recantation would be highly unlikely.

When you read the opinion, Justice Powell’s opening sentence will resonate with you: “This is a horrible case which might tempt reasonable jurists to do things that they might not ordinarily do.” None of us can be truly aware of our subconscious biases, and perhaps she’s right about this. In reading the majority opinion, I found myself agreeing wholly with Justice Kelsey; and even after reading the dissent, I think I would have voted to affirm. But I cannot say that Justice Powell’s perspective is necessarily wrong; and the permanency of this isolation does give me at least some pause.

By the time Du is slated for release, he’ll be in his 70s, although he might find relief in Virginia’s geriatric-release statute and get out in his 60s. I have no idea how old the stepmother will be when this 50-year term ends; possibly in her 80s. The dissent contains the seed of a nagging question: Is the rehabilitative capacity of our corrections system so weak that it holds no hope of changing this young man? I like to hope that it can make a change like that, even after a crime this horrifying.


Upon seeing the line immediately above this one, you might be tempted to skip to the next section. Well, forget it; there is no next section. Besides, if you don’t stick around for Cygnus Newport-Phase 1B v. City of Portsmouth, you’ll miss a truly remarkable debate over a point of statutory interpretation. And sooner or later, every lawyer bumps into a statutory-interpretation issue.

When I was a baby lawyer in the 1980s, I performed roughly a gazillion title examinations. I traveled to record rooms near and far, pulled musty books off shelves, scoured hoary indexes, thumbed through cabinets of financing statements, and hand-wrote a whole mess of property descriptions. Even now, the typical beginning of the anciently worded and thoroughly redundant description comes to me without fail: “All that certain lot, piece, or parcel of land, together with the buildings and improvements thereon, lying, situate, and being in the City of _______, and known, numbered and designated as …”

The lawyers who originally crafted language like that were either hypercautious or getting paid by the word.

In order to assess a title, you have to know about priorities among liens. The first rule is that real-estate taxes come first, even if God holds the mortgage. After that, Virginia is a “race-notice” state, so whichever lienholder records his lien in the clerk’s office first gets priority over all subsequent liens.

If a debt secured by a lien isn’t timely paid, the holder can foreclose on it by selling the property at auction. When he does so, all inferior liens are extinguished.

So far, all this is Liens 101, and most lawyers are rolling their eyes, waiting for me to get to something they don’t know. This case is about the lien held by a creature of statute: a community development authority. CDAs are authorized to provide local governments “with an additional means to finance infrastructure associated with development in an authority district.”

The City of Portsmouth has a number of problems, and a shortage of taxable land is one of them. The city is surrounded by other cities, so annexation is no longer an option. (Indeed, the City of Chesapeake was created in 1963 as a defense against continued annexation of Norfolk County lands by Portsmouth.) The federal government owns a large proportion of the land in the city, so Portsmouth can’t tax that land. As you can imagine, Portsmouth will look kindly upon just about any legitimate “additional means to finance infrastructure.”

In 2004, an LLC bought a large (176 acres) tract of land somewhere in Portsmouth and wanted to develop it. The LLC borrowed money from a bank to finance the acquisition, and gave the bank a mortgage, which the bank promptly recorded. The City then created a CDA at the LLC’s request, and the CDA then issued $16 million in bonds to pay for things like roads and light poles.

In order to pay for this, the City – with the LLC’s express consent – levied special assessments on all land within the district, including these 176 acres. The LLC and the CDA signed an acknowledgement that the assessment would run with the land. The LLC got about $12 million out of the bond revenue and started building in 2005.

You remember what happened in 2007-08, right? The economy tanked, and the real-estate market got clobbered. By 2011, the LLC had apparently run out of money without finishing the infrastructure. The bank sold the note to an investor, and assigned the deed of trust. This development is what real-estate lawyers refer to as a bad sign.

The LLC defaulted and the investor foreclosed on the mortgage; the investor was the high (and probably sole) bidder at the auction. It allocated the property to various subsidiaries, including today’s appellant. The issue in this appeal is whether the foreclosure on the 2004 mortgage wiped out the subsequent lien created by the special assessment.

If the assessment were a tax, the answer would be easy: you can’t wipe out a tax lien by foreclosing on a mortgage. But assessments are different, and the statute that authorizes them contains language that mirrors the race-notice statute for other recorded liens. Who wins?

This is actually a very close call, and the Supreme Court’s 4-3 division today reflects that. Justice McCullough draws majority-writing chores, and he holds that assessment liens comparable to this have been regarded as immune from lien-foreclosure since a 1904 decision, which had held that special assessments had priority over other liens “by necessary implication.” The court equated assessment liens to tax liens.

That isn’t the end of the discussion, but I’m going to jump forward to Justice McClanahan’s riveting dissent. She observes that the 1904 decision was interpreting liens that arose in the late 1890s, before the creation in 1900 of the modern race-notice system.

Back to the majority, which also rules that the assessment lien arose long before the investor took title in 2012, so its recording in 2006 makes the assessment the higher priority. But the dissent invokes something well-known to dirt lawyers: the shelter doctrine. That rule states that when a buyer with knowledge of another’s equity (you can read that in this context to mean “another person’s lien”) acquires the property from a person who got it without notice of the other lien, the buyer steps into the shoes of his seller and takes the property free of that other lien. The purpose of this legal fiction is simple: if the good-faith owner couldn’t convey good title to a buyer, he might never be able to sell his property. The imposition of the subsequent lien would effectively take his property.

Let’s jump back and see what Justice McCullough says about that. He points out that by law, assessments cannot exceed the benefits resulting from the improvements. He goes on to quote this language from a 1935 law-review article that discusses this very topic:

Assuming, as we must, that this guarantee is effective, the property itself is directly increased in value to the amount of the assessment, and this increase in value necessarily inures to the benefit of all earlier lienholders. Such being the case, there seems to be no good reason why earlier lienholders should not pay for such increased value.

The majority concludes that “in the limited context of special assessments,” the shelter doctrine doesn’t apply.

Oh, yes it does, Justice McClanahan fires back. She points out that the majority’s premise relies on the absence of any provision for the priority of assessment-liens’ status. But these statutes are not, as the prior law had been, silent as to super-priority; they expressly state that whoever wins the race to record has the superior lien. This Code provision thus overrides any common-law presumption of a super-priority.

In the relative tranquility of the appellate world, we don’t get many bar fights like this. These decisions are a fascinating read, even if you aren’t a dirt lawyer.





[Posted September 15, 2016] Today we get three more published opinions from the Supreme Court of Virginia.

Legislative privilege

Easily the highest-profile decision of the day is Edwards v. Vesilind, which was one of two cases argued in the court’s rare special session in July. While the underlying litigation is about partisan redistricting, this appeal involves a discovery dispute and turns on legislative privilege.

In the course of trial preparation, the petitioners in the circuit court sought documents relating to legislators’ efforts to craft legislative districts, an overtly political process in Virginia. They issued subpoenas to the Division of Legislative Services and to some outside contractors whom the legislators had hired to produce computer- generated maps. They also requested production of documents directly from the legislators, who were parties to the case.

The legislators asserted privilege based on the Speech or Debate Clause in the Constitution of Virginia. After receiving argument, the trial judge decided that the privilege didn’t apply, so he compelled production. The legislators sought approval for an interlocutory appeal, but the petitioners below wouldn’t consent to that, so the court couldn’t order it.

The legislators found another way to secure prompt review of the issue: they asked the court to hold them in contempt, which would separately be an appealable order. The petitioners didn’t mind that, so the court found the legislators in contempt, at which point they appealed to the Court of Appeals. The parties agreed to ask the Supreme Court to certify the appeal – a process by which the justices can grab a case off the CAV’s docket without awaiting a final ruling – and the justices cooperated.

Today the Supreme Court vacates the contempt finding. The court analyzes the contours of the Speech or Debate Clause, discussing its history in the English Common Law and in the federal Constitution, which has a similar provision. The justices today unanimously rule that the Clause protects the legislators’ documents from disclosure, and by extension applies to legislative staff, to DLS, and even to the outside contractors who prepared the maps. The court finds that as long as the contractors are performing an act that would be protected if the legislator did it himself, then the privilege applies.

Importantly, the holder of the privilege is the legislator, so if the contractor or DLS had wanted to waive it, the legislators could prevent that.

The redistricting litigation is by no means over; the case goes back for further factual development and a likely trial. The petitioners below don’t come away from this empty-handed, because one legislator agreed to waive his privilege and produced documents. He wasn’t involved in this appeal, and my best guess is that the petitioners may find some evidentiary goodies in his batch of documents.


Today’s opinion in Miller & Rhoads Building LLC v. City of Richmond will interest exactly two types: tax jocks and those with a keen interest in issues of statutory construction. Here’s the setup:

Richmond imposes local taxes on real estate within the city limits. Certain areas also constitute special service and assessment districts; there’s an additional tax on properties in those areas.

There’s a building in downtown Richmond that’s bordered by Fifth, Sixth, Broad, and Grace Streets. It was formerly the Miller & Rhoads department store, and lay vacant for many years before a limited liability company bought it in 2006 to turn it into a hotel and condominium residences. (In case you’re wondering, it’s the Richmond Hilton. I’ve stayed there; it’s quite nice.)

Richmond’s tax ordinances also contain provisions for partial tax exemptions for rehabilitated properties. This project was emphatically rehabilitative, so the LLC sought exemption from the regular and special-district taxes. The City agreed as to the ordinary taxes, but refused to apply the partial exemption to the special-district taxes. A circuit court judge agreed and refused to order a refund of the taxes, which had been paid under protest. The LLC got a writ.

The trial judge had ruled that the special-district tax wasn’t a real-estate tax at all, so the exemption didn’t apply. No one on the Supreme Court is happy with that analysis; it probably helps that in oral argument, the City Attorney admitted that the special-district assessment was “a tax on real estate.”

That means that the justices can’t affirm based on the original ruling. Four members of the court choose another path to get to the same destination. Justice Powell writes the majority opinion. She holds that a separate ordinance says that special-district taxes “shall be subject to the following sections” and then lists four of them. Since the partial-exemption ordinance isn’t among them, the majority concludes – based on the expressio unius canon – that there’s no partial exemption for the special-district assessment.

Justice Kelsey disagrees, noting that expressio unius isn’t a doctrine to be applied liberally, or with a blind eye toward the statutory [here, ordinance’s] phrasing. He points out that the four enumerated ordinances each deal with the subject of collection of the tax; not its application. There would be no reason, he feels, for the ordinance to even mention the partial exemption, since it dealt with a wholly different subject. Given that view, he would reverse the circuit court and relieve the LLC of the extra tax.

Criminal law

It’s shameful, but I will admit to a fondness for stupid-criminal stories. We’ve covered a few good ones here at VANA. Probably my favorite is McDowell v. Commonwealth from 2007, where a grand-larceny suspect was caught several hours after stealing stuff, but insisted that the store couldn’t establish the value of what he stole, since it was never found. Unfortunately for him, he chose to commit his felony four hours after the store had completed inventory, so they were able to figure out exactly what he’d taken. Then there was Patrick v. Commonwealth from the same year, where the Court of Appeals took up an appeal by a hapless thief of scratch-off lottery tickets. He wisely went to a different store to cash in the winning ones; the store clerk there was someone who knew him well and was readily able to identify him to police.

Today’s sermon is Collins v. Commonwealth, and implicates a traditional American pastime, speeding on motorcycles. But this was no off-the-rack bike; it was an orange-and-black Suzuki with an extended frame. One purpose of that frame is to modify the bike for drag racing.

As it turns out, there’s no drag racing in today’s tale; Collins just high-tailed it from the police on two discrete occasions when they tried to pull him over. The two gendarmes eventually put their heads together and figured they had the same guy – same color and style bike, same clothing, same general vicinity.

One of the officers’ cars had a mounted camera, and before our hero sped off at 140 mph, he was able to get a screen shot of the license plate. He ran it through DMV and noted that the tag was long-inactive, but it did give the name and address of the last registered owner, one Jones. A visit to Jones revealed that he had sold the bike to Collins a few months before the police encounters, specifically telling the purchaser that there was no title because the vehicle had been stolen.

Stolen property? Now we’re leaving the realm of eluding and reckless driving.

A couple of months later, the officers learned that Collins was at a DMV, trying to register a stolen car. They quickly appeared at the office and questioned Collins about the bike after Mirandizing him. Nope, Collins told them; not me. “I haven’t ridden a motorcycle in months.”

Okay, ready for the comic relief? One of the officers did a quick search on Facebook and found Collins’s page. It contained two photos of our hero standing next to a motorcycle – the motorcycle, all orange and black and everything – in front of a house. He showed Collins the page, but Collins denied knowing anything about the bike or the house.

The officers let Collins go, then found out where the house in the picture was. One of them went to the scene and discovered what obviously looked like a motorcycle with an extended frame in the driveway, mostly covered by a tarpaulin. It was in the exact position shown in the photos on Facebook. He approached it, lifted the tarp just enough to see the distinct orange-and-white coloring, and wrote down the VIN. A quick search confirmed that the bike had indeed been stolen. He re-covered the bike and retreated to a discrete location to watch.

You already know what happens next: our hero shows up at the house and goes inside. Remember, this is the house he knows nothing about. The officer approached, knocked at the door, and guess who answers the door? When questioned about the bike, Collins began with, “I don’t know anything about it.” When that obviously wouldn’t fly, he tried, “It belongs to a friend, but I don’t ever drive it.” And finally, “Yeah, I bought it from Jones, and there’s no title.”

We have one last chapter in our stupid-criminal story. Collins appeared at the door having changed clothes from his visit to the DMV. He had swapped his flip-flops and shorts for jeans and “Timberland style boots,” just the outfit the two officers had seen on their fleeing cyclist. In the search-incident after Collins’s arrest, what do you suppose the officer found in the rocket scientist’s pocket? The keys to the motorcycle.

Okay, based on this we all know Collins is guilty, but the legal issue here stems from the Fourth Amendment. Did the officer have the right to peek under the tarp, which was on private property, without getting a warrant? The trial judge turned aside a motion to suppress, and the Court of Appeals affirmed. The CAV’s rationale was that the officer’s search “was justified under the exigent circumstances exception to the Fourth Amendment’s warrant requirement.” The CAV declined to address the Commonwealth’s alternate contention that the Fourth Amendment is subject to an exception for automobiles.

That exception is actually quite well-developed, and that turns out to be the grounds upon which today’s majority affirms. Given the inherently mobile nature of vehicles, SCOTUS has carved out an exception for the warrant requirement, holding that officers can search cars where they have probable cause to believe that they contain contraband.

Ah, but what if, as here, the vehicle is the contraband? In that case, isn’t this a search of the tarp? There’s no tarpaulin exception to the Fourth Amendment. On this point, a single justice departs: Justice Mims believes that the search was impermissible. He acknowledges that the officer could look all he wanted to from the street, and feels he could even step into the driveway to get a closer look; but no touching allowed, and specifically no peeking under the covering.







[Posted September 15, 2016] Several sources are reporting today that the justices have refused the show-cause petition filed in Howell v. McAuliffe, on which I reported recently. Here’s the text of the court’s short order:


Upon a Petition for Writs of Mandamus and Prohibition

      On September 1, 2016, Petitioners filed a “Motion for an Order Requiring Respondents to Show Cause Why They Should Not Be Held in Contempt for Violating the Writ of Mandamus” in this Court. Upon the Motion, the response of the Respondents, and the Reply in Support of Petitioners’ Motion for an Order to Show Cause, Petitioners’ request that they be permitted discovery is denied. Further, the Petitioners’ Motion for an Order to Show Cause against the Respondents is denied.


If you’re looking for an explanation for the ruling, you’ll go hungry. I’ve seen the Governor’s response to the show-cause motion, and it raises several grounds – some substantive, some procedural – for rejection of the motion. We’ll never know why the justices said no, but we at least have a final answer in this litigation.





[Posted September 8, 2016] The Supreme Court hands down six published opinions today. Most are from the June session; the exception is the oldest case on the court’s unadjudicated docket.

Products liability

There are two big-dollar cases decided today. The first is Holiday Motor Corp. v. Walters, involving a $20 million judgment for personal injuries. (Including prejudgment interest, the actual amount in issue was well over $3o million.) It involves the rollover of a Mazda Miata convertible that rendered the 26-year-old driver a paraplegic.

This was a single-car crash that resulted when the driver had to swerve to avoid an object in a dark roadway. Her convertible – which was being driven with the top up – rolled over and the windshield separated from the roof. It collapsed inward, forcing her head down in what’s called hyperflexion. The steel bars of the car’s top actually held, so the rear part of the passenger compartment remained intact; only the windshield had collapsed inward.

The plaintiff sued the manufacturer and seller of the car, contending that part of the purpose of even a convertible’s roof was to protect the occupants from injury in foreseeable rollovers. A jury agreed and gave her that big verdict.

Today the justices take it away. The primary ruling is one that will gladden auto manufacturers: there is no duty to design a convertible to protect against injuries in rollover crashes. This reflects the fact that the Federal Motor Vehicle Safety Standards, as they address roof structures, exempt convertibles. Here’s the key language from the rulemaking explanation, courtesy of the National Highway Transportation Safety Administration:

We believe that to establish a roof crush requirement on vehicles that do not have a permanent roof structure would not be practical from a countermeasure perspective. A convertible roof would have to be strong enough to pass the quasi-static test, yet flexible enough to fold into the vehicle. Since we are not aware of any such designs, we do not agree with Advocates [who disagreed with excluding convertibles from FMVSS No. 216] on this point. We also note that new rollover and ejection requirements for convertibles are outside the scope of this rulemaking.

The justices accept this explanation and embrace its reasoning in today’s holding.

If that were as far as today’s opinion went, it would be a small enough victory for the auto industry. But Justice McClanahan’s opinion for a unanimous court has more good news for manufacturers and sellers of products, even outside the auto industry.

The Fourth Circuit has addressed products-liability cases in Virginia on a parallel track with SCV. In 1993, the Fourth decided a case called Alevromagiros v. Hechinger Co., in which it applied Virginia law. But in doing so, the Fourth imported a case decided under Kentucky law, which differed from Virginia jurisprudence in one key respect: it allowed subjective considerations, such as general acceptance by consumers, in determining whether a product was merchantable or not.

Today’s opinion cites Alevromagiros with approval, and as far as I can tell, that’s the first time the Supreme Court of Virginia has ever done so. Plaintiffs have been arguing for the past 23 years that consumer acceptance doesn’t determine a product’s merchantability under Virginia law; that determination calls for an analysis of the product’ safety at the time it left the manufacturer’s hands.

Today’s ruling is a blow to that argument; likely a fatal one. Consumer expectations, usually measured by who buys what, and how much of it, are now part of the merchantability calculus in Virginia, a legal development that makes our jurisprudence noticeably more pro-business. Those expectations aren’t the only consideration – Alevromagiros itself, in a passage cited in today’s opinion, counsels that government regulations can also play a part. But this means that things like sales volume of a given item can now be received in evidence in defense of a claim that a product is not merchantable. That’s a big win for manufacturers and vendors.

The court also cites with approval an earlier Fourth Circuit case, Dreisonstok v. Volkswagenwerk, that had applied specifically to convertibles, holding that the driver of a convertible cannot reasonably expect it to withstand a rollover. That’s now the law in Virginia, too.

There’s one last point that’s worth mentioning. The appellants had assigned error to several issues. Today’s opinion mentions several of them in footnotes, describing the arguments and then noting that the ruling on the nonexistence of a duty makes it unnecessary for the court to address those issues. But the court goes ahead and addresses one issue that seemed to me also unnecessary in light of the decision: the admissibility of the plaintiff’s expert engineering witness. Applying previous holdings on experts, the court rules that the expert’s opinions lacked an adequate foundation, so he should have been excluded.

The inclusion of this ruling puzzles me – not for the outcome, but because the court decides to address it at all. It breaks no new legal ground, and once the court finds no legal duty by the manufacturer and seller, the admissibility of an expert opinion on causation is analytically irrelevant. The court may have had a reason to reassert these prior rulings, but I can’t know what that reason is.


The other big-dollar case decided today is Loudoun County v. SCC. In this case, the dollars don’t arrive all at once, but in thousands and thousands of small transactions.

This is the appeal involving the setting of toll rates for the Dulles Greenway, a private toll road that runs from Leesburg to Dulles Airport. A legislator objected to a request from the toll road’s owners for a rate adjustment. The SCC, which gets to toll rates for privately owned roads in Virginia, conducted hearings and ruled in favor of the owners.

The dispositive legal provision here is a statute that guides the SCC’s exercise of that authority. For years, subsection D of that statute listed three factors that would be relevant to the calculus: whether the rate was reasonable to the users of the road; whether it would meaningfully discourage traffic; and whether it produced no more than a reasonable rate of return for the owner. If the SCC found it appropriate, it had the authority to approve a rate increase.

In 2008, the legislature amended the statute, adding a new subsection I. That law now requires the SCC to approve annual rate increases at the greatest of three factors: the consumer price index plus 1%, the change in gross domestic product, or 2.8%. For our purposes, the important thing to note is that the statutory amendment didn’t eliminate subsection D.

This begins to look like the SCC no longer has the discretion. The appellants – in this case, the legislator and the County – argued that no paragraph I increase could be made “so long as the existing rates continue to satisfy [subsection D’s] minimum criteria.” Here the Supreme Court parts ways with the appellants, holding today that subsection D provides the SCC with discretion, and the evidence in the case met the threshold for a rate increase anyway.

I’m going to curb my enthusiasm – which is quite real – for the economic and statistical components of today’s ruling. After all, I don’t often get to use some of the geekier skills I took away from my college Economics degree, or all that stuff I learned in Statistics class. I could sing to you a siren song of regression analyses and price elasticity of demand.

But that’s not why you come to this website. For your purposes, please note that the Supreme Court affords extraordinary deference to the SCC. That applies to its factual determinations, of course; in that sense it’s just like a judge or jury making such findings in a circuit-court trial. But the justices also defer to the SCC’s expertise in matters within its bailiwick. They stop short of deferring on rulings of pure statutory interpretation, but when the SCC sets rates, it engages in a legislative act, and the Supreme Court takes a hands-off approach to that. That deference is decisive here.

Appellate procedure

The justices give us important guidance on written statements and on post-judgment supplements to the appellate record in Granado v. Commonwealth. It’s an appeal of a DUI conviction that originated in Chesapeake.

We never do get to the merits of the conviction, because the Court of Appeals never got to it. As required by Rule 5A:8(c), the appellant’s lawyer timely filed – on the deadline day – a proposed written statement in lieu of a transcript. Two days later, the lawyer filed a revised version that he and the prosecutor had both endorsed. Two days after that, the judge signed the revised one, and that copy went up with the record to Richmond. The clerk of the trial court decided not to include the original, pre-revision version.

That omission proved fatal in the CAV, as a single judge, reviewing the petition for appeal, found nothing to indicate a timely filing of the written statement. That judge found that without the statement, the record was insufficient, so the petition was refused.

Three days later, and quite evidently on request from the appellant’s lawyer, the trial-court clerk forwarded the original, timely statement to the CAV clerk. The appellant then asked a three-judge panel of the court to consider his petition on the merits. No dice; the panel noted that no one had requested or obtained a writ of certiorari, and without one, the trial court was powerless to expand the appellate record. The panel also refused the petition.

If all this appears patently unfair to you – losing because the clerk of court decides to trim back the record – relax. Today the justices ride to the rescue, noting that by statute, a writ of certiorari is only required after an appellate court grants a writ. While an appeal is still in the petition stage, the record can be supplemented without a writ.

The Supreme Court notes that since the appellant followed the proper procedure for filing a written statement, and since the trial-court clerk’s action was permissible, the CAV now gets to consider the petition on its merits on remand. The appellant still doesn’t have a reversal of his conviction, or even a writ of appeal; but at least he’s still in the game.

Criminal procedure

If you don’t handle criminal work, and your primary source of information about the criminal-justice system is TV crime dramas, the real world will have some surprises for you. Here’s an example:

Let’s say you’re a felon – okay, work with me here; this is fantasy – and you’ve been sentenced to a couple of years of hard time, with a few more years suspended. You grind out that time and are released back into society, subject to supervised probation. During your probation, you’re arrested for another crime. The original sentencing judge gets word and issues a warrant; you’re hauled back into court to face the prospect of imposition of that suspended prison sentence. You have a right to the assistance of counsel at that revocation hearing, right? Not so fast.

Walker, Warden v. Forbes is a slightly modified version of this scenario. Forbes pleaded guilty to a felony, served his active time, and then committed robbery and abduction while on probation. He had a lawyer at the revocation hearing, but because he admitted to committing the robbery and abduction, the judge hit him with part of the suspended time. Forbes wrote to his lawyer, instructing him to appeal; he insisted that one of the predicate offenses in the original conviction lacked an indictment, so he had a way out.

Alas; the lawyer wrote back, enclosing a copy of the supposedly missing indictment, and told Forbes he had no appealable issue. He indicated that if Forbes still wanted to appeal, he should hire someone else to do it.

Instead, Forbes filed a pro se habeas petition, asserting that he received ineffective assistance of counsel at the revocation hearing and beyond. He specifically pointed to his lawyer’s failure to appeal the revocation order.

The habeas judge bit and issued the writ, granting Forbes a delayed appeal to the CAV. The court distinguished a SCOTUS ruling that held that you have no constitutional right to counsel at a revocation hearing. The Warden, the respondent in the habeas suit, appealed that ruling to the SCV.

First appellate issue: Why the Supreme Court and not the Court of Appeals? After all, this is a criminal matter, and criminal appeals have to go to the CAV. But habeas petitions are civil, not criminal; so the SCV is the right home for this appeal.

Today the justices reverse the grant of habeas relief and enter final judgment for the Warden. The court notes that while you do have a statutory right to a lawyer in a revocation proceeding, it’s not a constitutional right. That’s because, by clear precedent, “in Virginia, while a probation revocation hearing is a criminal proceeding, it is not a stage of a criminal prosecution.”

Did that surprise you? After all, the nice judge is considering whether to send you up the river for a substantial period of time, and that clearly implicates your liberty. But the constitutional right to counsel, arising from the Sixth Amendment, ends when you’re sentenced. After that, you’re still entitled to due process of law under the Fourteenth, but that simply requires notice and a hearing. SCOTUS has spelled out the circumstances under which appointment of counsel in such proceedings might be appropriate, but those circumstances aren’t present here.

In the end, the justices rule that Forbes didn’t have a right to counsel at the revocation hearing, so he didn’t have a right to the effective assistance of counsel at that hearing – or in a subsequent appeal.

Labor law

You’re probably going to feel some sympathy for both parties in Huff v. Winston, which addresses the relief available to a servicemember who wants to return to work after a temporary period of military service.

Huff worked as a deputy sheriff in Roanoke County and was assigned to courtroom duty. Her Army reserve unit was called up and she was shipped out to Afghanistan. While there, she suffered significant injuries, including a traumatic brain injury. Shortly after being diagnosed with PTSD, she returned to Virginia.

Federal law protects men and women like Huff. It guarantees her right to reinstatement of her previous employment and even imposes a one-year moratorium on the at-will rules of employment. Huff applied to return to her work, and her boss, Sheriff Winston, welcomed her back. He sent her right back to courtroom duty.

But Huff’s injuries wouldn’t just go away. She needed continued treatment. Because of Thursday evening counseling, she asked for Fridays off. The Sheriff responded that she couldn’t do that and stay in the courtroom, but he offered to move her to corrections, which would provide more flexibility. She refused that move, feeling it was a demotion.

Huff worked full time but on light duty until she suffered a heart attack. Her doctor ruled that it was service-related. She eventually returned to part-time work, but the Sheriff figured he could no longer carry a part-time deputy; he terminated her employment a year and a half after she returned to the Department.

One key issue in this case is whether the provision in the federal statute that allows the employee up to two years of convalescence, applies after she returns to work. Huff argued that it does, but the Supreme Court unanimously rules otherwise: “Nothing in the text of subsection (e) affects the terms of employment once the service member has been rehired.”

The court also rules against Huff on her claim that the Sheriff failed to make reasonable efforts to accommodate her disabilities. The employer is allowed to take into consideration the employee’s functional limitations in assessing how to accommodate her, but even that part of the statute relates to her rehiring; it doesn’t govern ongoing employment terms after rehire.

Hence my prediction that you’d feel for both sides here. The Sheriff has an office to run, and needs a reliable assembly of deputy sheriffs; while Huff is a legitimate American heroine who’s just trying to get her life back. The law unfortunately doesn’t offer a good way to accommodate them both.

The other labor-law decision handed down today is Property Damage Specialists, Inc. v. Rechichar. This appeal answers the question whether a plaintiff can recover punitive damages when suing under Virginia’s statute protecting labor-law whistleblowers.

The relevant statute has two components. When an employee makes a complaint to the Commissioner of Labor and Industry, the Commissioner investigates the case. If he finds a violation, he can bring a civil action against the employer. If he chooses not to do so, then the employee can sue in his own name.

The provisions for these two types of suit contain slightly different provisions for the relief that can be awarded. If the Commissioner sues, the court can “order appropriate relief, including rehiring or reinstatement of the employee to his former position with back pay plus interest at a rate not to exceed eight percent per annum.” If the individual sues, the court can order “appropriate relief.” There’s no parallel enumeration of what kind of relief fits the bill.

Rechichar sued in his own name for a retaliatory discharge. He sought various forms of relief, including punitive damages. The employer demurred to the punitives, claiming that they weren’t permitted under the statute. The judge disagreed and submitted the claim to the jury, which gave the former employee compensatory and punitive damages.

Justice Goodwyn writes today’s opinion for the court. He notes that the statute itself doesn’t specify whether punitive damages are in or out as “appropriate relief,” so the court has to parse the statute to resolve the ambiguity. The court rules that the words in the first provision – reinstatement, back, pay, etc. – “provide guidance as to the meaning of the term in both subsections ….”

The justices today rule that the words appropriate relief in the private-action subsection mean the same as they do in the first subsection, so punitives aren’t available. The court observes that the purpose of this entire section is to make the employee whole; not to punish wrongdoers. Since the General Assembly didn’t specify punitive damages, it was improper to submit them to the jury. The court thus vacates the punitive-damage component of the judgment, the only aspect that was on appeal.

I have a suspicion that this ruling may become a popular citation in upcoming litigation. I believe that the right to seek punitives is well-established in common-law rights of action such as suits for personal injuries; but where the Code specifies a right to sue for something but doesn’t declare that punitive damages are available, defendants may ask trial courts to apply this holding to strike the punitives claim.

I will admit to a degree of unease with the court’s reasoning in this case. First, let’s go back to those parallel tracks. The statute says that when the Commissioner sues, he can get “appropriate relief,” including some specific items. Then for private actions, plaintiffs can get “appropriate relief,” but the list is omitted. When the legislature treats these two scenarios differently, shouldn’t that indicate that the relief available is different?

The easy way for the legislature to achieve what the court held today would be to say that private plaintiffs can get “the same relief that would be available to the Commissioner in a suit filed under subsection A.” But that’s not how the statute is set up; the two subsections are phrased differently, so the result, it seems to me, should be different.

Here’s another thing that sticks in my mind: beyond question, this labor law is highly remedial. It’s protecting employees from retaliation after they report safety violations. I have little problem in concluding that Virginia has a strong public policy in favor of exposing safety violations. So why does the court choose to construe a highly remedial statute narrowly?

Some afterthoughts

I’ll take a moment here to post a few points that have occurred to me as I’ve read and analyzed today’s batch of opinions. First, all six decisions released today were unanimous. That’s become a rarity in this court, marked as it is by an increased use of dissents (or at least concurring opinions) in the past four years.

Second, with one exception, all of today’s rulings came from the Supreme Court’s June session, which took place 13 weeks ago. As I’ve written here recently, while that may seem like a very long time, weep not for these litigants, who at least got decisions a week earlier than they would have under the old system of six opinion days per year.

The one exception is Holiday Motor v. Walters, which was argued way back in April, almost five months ago. I had wondered on occasion why that one had taken so long. The usual suspects for a delay like that are a complex fact pattern; a dissent/concurrence or two; or possibly some disagreement on precise wording. In the end, the court came out with a single 7-0 opinion. I don’t know why this one took that much time, and we probably never will.

Third, this batch continues the long winning streak enjoyed by appellants seeking to get out from under big (eight-digit) judgments. As I noted in a recent post here, the last appeal I can recall seeing where the justices affirmed a judgment this large was VEPCO v. Dungee, back in 1999. That one, coincidentally a $20 million award, was decided by a completely different Supreme Court. (Each member of the current court arrived after Dungee was decided.) I hasten to add that there may have been an affirmance somewhere along the line in a case that big; I just don’t remember seeing one.

Finally, there remain eight undecided cases from the June session, subject to any unpubs that may hit the wire later today. We’re also still waiting for a ruling in Edwards v. Vesilind, the special-session case argued in July. I expect to see at least one or more of those decisions next week.





[Posted September 2, 2016] The Supreme Court of Virginia hasn’t released any decisions in the past couple of weeks, so let’s poke around and see what’s been happening elsewhere in the appellate sector lately.

New filing in Howell v. McAuliffe

By now you’ve likely seen that the legislative petitioners who succeeded in getting a very rare writ of mandamus last month have followed that up with a show-cause petition. (I offer my thanks to Peter Vieth of Virginia Lawyers Weekly for the link.) They ask the Supreme Court to hold the Governor and several of his high-ranking officials in contempt, based on the Governor’s issuance of 13,000 individual orders restoring civil rights to ex-felons.

[A quick side note: I recognize that the word ex-felon is itself susceptible of political overtones. For some linguistic purists and law-and-order advocates, there’s only one way to become an ex-felon: you have to have your conviction overturned. For those folks, once you’re convicted of a felony, you’re a felon for life. For brevity’s sake, I’m using it in the sense that’s more common nowadays, although etymologically less secure: a person who has completed his sentence for a felony and has rejoined society.]

The theme of the motion is that the Governor has openly expressed disagreement with – and contempt for? – the Supreme Court’s writ. His public statements have provided plenty of fuel for this fire, and the motion contains probably every such comment that the petitioners could gather. The motion asserts that the individual orders – which were apparently robo-signed – still didn’t meet the Constitution’s requirements, since (among other things) there was apparently no individual consideration given to them. The only criteria appeared to have been status as an ex-felon and a previous registration to vote before the writ was issued.

The respondents haven’t filed anything in answer, as far as I know, so I know better than to prejudge the outcome. I do note one likely difficulty for the petitioners if they truly want to have the Governor (as contrasted with his senior officials) cited for contempt: the Supreme Court was careful not to issue the writ against the Governor. All of the directives at the end of the chief justice’s July 22 opinion pertained to the officials, such as the Board of Elections and the State Registrar. It’ll be some trick for them to show that the Governor violated an order that wasn’t directed to him.

In one sense, this motion is far more explosive than the original petition for a writ of mandamus. It’s one thing to ask a court to rule that a given act, legislative or executive, is unconstitutional. Courts entertain requests like that all the time, although most of them aren’t as high-profile as this one was.

But asking a court to punish the Governor is, in comparison, thermonuclear. The motion doesn’t specify any particular punishment that the petitioners seek; it merely asks that the respondents be directed to show cause why they should not be held be held in contempt. I infer that this is civil contempt, since they allege that the respondents have failed to obey the provisions of a court order. (I will hastily add that the boundary between civil and criminal contempt is often murky.) The usual remedy for a finding of civil contempt is that the offending party is jailed until he complies with the order.

Now you see why it’s thermonuclear. We can safely say that one potential objective of this motion is an order that the Governor be jailed until he submits. I cannot in my wildest dreams imagine that that scenario will actually come to pass, but it’s readily deducible from the motion. The Governor may be privileged from arrest for such matters; I haven’t researched that and I don’t propose to stop and do it now. But this motion was understandably attention-getting around here.

Expect matters to move apace; the legislators are hoping for a resolution well before the November 8 election, so they can stop all those “felons” from voting.

Yet another sign of change at the SCV

I answer a lot of questions from lawyers about appeals. Some of the more common ones relate to the time it takes to get a ruling after a writ-panel argument (I answer that the usual time is between three business days and six weeks), queries about which justices will be on an upcoming writ panel (you’ll find out when you check in), and what to put into a petition for rehearing (a chicken-soup recipe will do if you think it’ll get you a writ; there are zero actual requirements).

This week a lawyer contacted me to ask if the order he’d just received was unusual. After looking into his appeal, I’d say that “unusual” is an understatement, by two or three orders of magnitude. This is the latest exhibit in support of the proposition that the Supreme Court of Virginia has undergone huge changes in the past few years.

The underlying litigation was a claim by a municipal employee against the city that hired him, seeking certain benefits. The circuit court ruled in favor of the employee, and the judge entered the final order on Friday, March 25. The clerk of the circuit court received and datestamped the order on Monday, March 28.

The city’s lawyer timely filed a notice of appeal in which he referred to the March 25 final order. Given that date, the petition for appeal was due June 27 (June 25 was a Saturday). According to the pleadings in the case, the lawyer sent his petition for appeal to a Richmond printing company on Friday, June 24.

If you’re a seasoned appellate practitioner, I want you to get a hold of yourself before you read the next sentence. Ready? The printer filed the petition on Tuesday, June 28. We can’t know what communication passed between the lawyer and the printer; we can’t know if one or both incorrectly relied on the March 28 datestamp. For whatever reason, the brief was a day late.

The three-month deadline for a petition for appeal is one of those drop-dead deadlines in the books. So saith Rule 5:5, and it’s based on a statute, so the justices can’t change it even if they want to.

Once upon a time, back in the 1960s, lawyers evidently looked at the deadline with something akin to disdain; they routinely filed late petitions and got retroactive leave to do so. By 1970, the justices had had enough; in a published opinion released that year, they announced to bench and bar that thenceforth they would grant relief only in appeals involving constitutional claims.

All of this spells doom for the city’s petition. Sure, the court can grant extensions “for good cause,” but that phrase means something vastly different in appellate courts than it does in trial courts. Try getting a good-cause exception to the contemporaneous-objection rule sometime and see how that goes. It generally requires proof of extraordinary circumstances that are wholly beyond the litigant’s control. In my experience, a litigant has always been held responsible for the actions of his chosen attorney, and by extension, his printing consultant. And remember that 1970 decision? The city’s appeal doesn’t raise a constitutional issue.

Surprise! The justices granted the city’s “Motion to Retroactively Extend Time for Filing Petition for Appeal” anyway. As is customary with procedural orders, there’s no explanation given. Note that this doesn’t mean that the city will get a writ; it still has to overcome the formidable hurdle of the writ process, where its odds of success are 15%. But it’s still in the game.

I’ve corresponded with some of my appellate pals about this development, and most of them had the same reaction as I did: we read it with dropped jaws. None of us can come up with a satisfactory explanation why the court has modified its previous uniform practice.

There are a few possible takeaways from this, but the most important piece of advice I can give you is this: File your petition on time! (Better yet, do what I do, and file before the deadline day. You’ll sleep better.) Or as this guy would say in this situation, “Pay no attention to the order behind the curtain.” Any lawyer who figures he can regard the three-month deadline as flexible is playing with some serious fire. Although the justices evidently didn’t adhere to it on this occasion, that 1970 decision (211 Va. 1, if you want to check it out) is still on the books.

If your client has an important constitutional or civil-rights case, it’s fine to be a test case. But you should never, ever put yourself in a position where you’re a test case on procedural default and waiver.

Symposium on an eight-member SCOTUS

Today marks 170 days since the President nominated Judge Merrick Garland for the Supreme Court seat formerly occupied by Justice Scalia. Judge Garland has now waited longer than any other nominee in our nation’s history, just to get a hearing; he passed the former record-holder, Justice Louis Brandeis, a month and a half ago.

The terrific website SCOTUSblog is hosting a symposium to address this intriguing topic:

If Hillary Clinton is elected, the conventional wisdom goes, either Garland or someone else nominated by Clinton will replace Scalia, and the Court will generally move to the left. But if instead Donald Trump is elected and nominates a candidate to succeed Scalia, the conventional wisdom posits, the balance on the Court will stay more or less the same.

The conventional wisdom may well be true for the Court as a whole. But what does it mean for some of the high-profile issues – affirmative action, gun control, reproductive rights, and the death penalty, to name just a few – on which the Court has ruled or may rule in the years to come?

The symposium began earlier this week, and there have been some terrific posts on various case areas from top-notch commentators. If Supreme Court watching is your thing, you’ll want to dig in.

One last point: as you’ll recall, we don’t do politics here at VANA, reflecting my own views as a philosophical moderate and a political independent. But as an appellate lawyer, I firmly believe that the Senate should give Judge Garland a hearing – indeed, it should have done so long ago. The Senate Republicans’ theory that the judicial-confirmation process should stop in the last year of a president’s term finds no support in the Constitution. It’s nothing but a rationalization — an unsound and blatantly political one at that — for their hope that a Republican might make the appointment instead of allowing a Democratic President to make the choice. That isn’t the way our government is supposed to work; these supposedly august men and women are holding the Court and America hostage in an attempt to get what they want.






[Posted August 30, 2016] Let’s suppose you’re a beginning trial lawyer, and you’re looking forward to starting an active trial practice. You’ve got your first trial set for a couple of months from now, but other than demonstrations in law school, you’ve never seen an actual trial. Sure, you’ve seen trials in TV dramas; but not an actual trial with an actual judge and actual parties.

Would it make you a tad uncomfortable to head off to your first case without seeing a live trial? Of course it would. A wise mentor would advise you to spend a day or two in a local court watching other lawyers try cases, to give you a feel for what happens. You’d get a sense of the rhythm of litigation – something that differs markedly from what’s on television – and of how judges handle matters that arise as the case unfolds.

Let’s translate that to the appellate arena: if you’re about to handle your first appeal, or your first appeal in a while, you would be well-advised to go to watch the justices in action before it’s your turn to step to the lectern. This week presents the one and only instance each year in which they bring the justices to the people: the Supreme Court convenes writ panels tomorrow and Thursday in Albemarle County and Norfolk, in addition to Richmond. This is the only time all year in which the court sits somewhere other than at Ninth and Franklin in downtown Richmond. Court insiders call them “the road shows.”

As with all other court proceedings, the hearings are open to the public. Don’t try to bring a cell phone (or any other electronic device) into the court, even if your local court permits attorneys to do that. Court convenes Wednesday at 9:00 am in the Albemarle Circuit Court; at 1:00 pm that day at the Supreme Court Building in Richmond; and at 9:30 am Thursday in Norfolk Circuit Court. Go and watch. You’ll see some good arguments and some [ahem] not-so-good arguments; most important, you’ll get a sense of appellate practice in situ. That can only help you as you represent your own clients at that level.





[Posted August 30, 2016] I’ve never been an appellate jurist, but I know enough of them to realize that their lot in life is mixed. They have a lot of advantages. For example, they get a generous supply of law clerks. They have the ability to make decisions after due reflection instead of on an instantaneous basis. Perhaps most important, they don’t have to listen to lawyers squabbling over discovery objections on motion days.

But there are disadvantages. The one I hear about most is the loneliness, since they don’t share chambers with the other judges, who are widely dispersed across the state. On most days, you interact with those law clerks, a secretary, and nobody else. One appellate jurist told me years ago, “You get to the point where you look forward to the mailman’s arrival.”

Here’s one on the dark side of the ledger: the necessity to make sense of confusing draftsmanship. A couple of lawyers put their heads together and draft a document that’s supposed to be clear but is anything but, and it falls to the courts to make sense of it. That’s what happens today in Allen v. Allen, a domestic-relations appeal from Alexandria.

Husband and Wife married in 1980 and lived in what must have been gradually deteriorating bliss for 32 years before Wife filed for divorce in late 2012. During the pendency of that case, they evidently kissed and made up, resulting in a nonsuit of the divorce proceeding. They even signed a postnuptial agreement in April 2014, and one paragraph in particular of that document promised a happy, extended denouement to the marriage:

CONTINUATION OF MARRIAGE. Husband shall not pursue a dissolution of the marriage for a period of 20 years or obtain any judicial order or decree that results in wife’s disqualification of health insurance coverage by Caterpillar [Inc.] or any of its subsidiaries, prior to the 20 year period from the date of this agreement. If the husband takes any actions that result in the wife being disqualified from said health insurance coverage, he shall indemnify and hold the wife harmless for any expenses from medical treatment that would have otherwise been covered by said health insurance, provided however, husband’s obligation shall cease in the event the health insurance coverage is no longer available through Caterpillar or any of its subsidiaries through no fault of husband or 20 years from the date of this agreement; whichever first occurs.

This was presumably intended to cement the “until death do us part” clause in their marriage vows; the 20-year guarantee would expire 54½ years after they first got married.

Alas; no dice. Husband filed for divorce just seven months after the ink dried on the postnup. Wife filed a plea in bar in which she specifically raised the paragraph quoted above: Husband had expressly agreed not to seek a divorce for twenty years, and this was more like thirty weeks. Husband replied that the language wasn’t an absolute bar to a divorce action; it merely provided Wife with a remedy, in the form of indemnification for medical expenses, in the event he did try to get unhitched. He added that an agreement to bar divorce proceedings was against Virginia public policy.

The trial court agreed with Husband, overruling the plea without comment or explanation. Wife appealed, and today a panel of the Court of Appeals affirms.

That ruling might puzzle you, considering how the quoted paragraph begins: “Husband shall not pursue a dissolution of the marriage for a period of 20 years …” But courts are supposed to interpret the whole document, not just a part of it. That’s the route that Judge Alston, writing for today’s panel, takes to conclude that the paragraph constitutes not an absolute bar to divorce but a provision to protect Wife’s medical coverage. That’s consistent with other provisions in the agreement that specify what happens in the event of a divorce. Accordingly, Husband can indeed get a divorce, but he’s now fully liable for Wife’s medical expenses.

The court does reject Husband’s public-policy argument, finding that Virginia’s public policy favors marriage, and concomitantly favors the continuation of marriage. There’s no public-policy interest in furthering divorce.

As I see it, this issue arose because someone violated a writing rule that I learned some time ago. Jim McElhaney, one of the greatest teachers of lawyers of this age, advised, “Short sentences are better. One of the easiest ways to write short sentences is to give each sentence just one job.” The first sentence of the quoted paragraph contains 50 words and tries to do two jobs.