ANALYSIS OF AUGUST 17, 2017 SUPREME COURT OPINION

 

(Posted August 17, 2017) Cue the fanfare; for the first time in three weeks, we have an opinion from the Supreme Court.

(What, you were getting impatient? If so, I invite you to remember that before the court went to rolling release dates in 2015, you would have been waiting another month, until the September session, for this ruling. Look at the bright side.)

In re Dennis is a name-change proceeding filed by an inmate at the Greensville Correctional Center. Dennis sought to change his surname (leaving his given names intact) to Wright. In his petition, he asserts that he has converted to the Native American Faith, and that required him to change his name to match that of “his last full-blood Native American Ancestor.”

I had not known before reading this that there was a Native American Faith. (Neither had Justice Goodwyn, based on the scare quotes around the term in his opinion for the court.) I had assumed that Native Americans had a variety of religious denominations, based on which tribe they belonged to. You can learn a lot by reading Supreme Court opinions.

Virginia law is fairly deferential when it comes to changing your name. For most folks, a simple application and an inoffensive name choice are sufficient. Changing your name isn’t as easy as changing your clothes, but the Code allows John Q. Public to become John Q. Citizen fairly easily.

It isn’t as easy with inmates, for understandable reasons. The General Assembly amended the statute in 2014 to add a new subsection D, dealing with inmates. It now provides that for inmates and persons required to register as sex offenders, the trial court must reject the application unless it finds good cause to consider it. If so, the court notifies the local prosecutor, who can oppose it if he or she sees fit.

Dennis had been convicted of several sexual offenses, so after reading the petition, the circuit-court judge declined to find good cause and dismissed the petition. Against that backdrop, you may be surprised to learn that the justices granted a writ. You’ll be even more surprised that the court today unanimously reverses and sends the petition back for adjudication on the merits.

A review of the decision will end your surprise. The justices note that, based on a 2007 ruling, a religious purpose is sufficient to constitute good cause for a name change. The trial court simply skipped a step and decided the merits of the petition without considering the religious reason.

That being said, the penultimate paragraph of today’s opinion portends a dim future for the merits of the case. Justice Goodwyn observes that “the situation changes entirely” when the court takes up the merits. At that stage, Dennis’s criminal history may well thwart his effort to adopt a different name.

This decision is analogous to a trial court’s grant of summary judgment, or sustaining of a demurrer, in a civil action based on the perceived inability of the plaintiff to prove her case. You have to get to an evidentiary hearing for that, and the justices today rule that although Dennis is facing a long uphill slog on the merits, he’s entitled to an evidentiary hearing, too.

 


 

ACRONYMS AND INITIALISMS – HOW TO AVOID ALPHABET SOUP

 

(Posted August 14, 2017) The Fourth Circuit today hands down four published opinions. Court observers will know that that’s a lot for a single day. I decided to check them out to see if there’s anything my readers might find particularly important. I began with the first decision on the web page, M.L. v. Dr. Jack Smith. It raises an important and interesting issue.

M.L. is an Orthodox Jewish boy with Down syndrome. His parents asked the local school board in Maryland to afford him a free appropriate public education, and the system agreed to do that. But the parents took issue with the appropriateness of the education plan, since it was too general in an important respect: It wouldn’t teach the boy the tenets of his religion and Jewish culture.

The parents noted that school should prepare a child for the environment in which he will live, and they asserted that Orthodox Jews “do not and will not participate in the non-Orthodox community.” They wanted something much more attuned to Judaism. Perhaps sensing an Establishment Clause problem, the school system refused, leading the parties to an eventual hearing before an administrative law judge.

So far this appeared to me to be an interesting issue, and I conceived of writing and posting fairly normal analysis of it. And then I got to this sentence on page 7, at which point my reading, and my analysis plans, came to a screeching halt:

Ultimately, the ALJ found the IEP proposed by MCPS provided M.L. with a FAPE under the IDEA.

¡¡Madre de Dios!! A sentence like that calls for an essay all its own.

Let’s start with the basics. Most of the alphabet soup in that sentence comprises initialisms. An initialism looks just like the more familiar acronym, but the former is pronounced as individual letters, while the latter is pronounced as its own word. IRS, UCLA, and NAACP are initialisms; NATO, OPEC and NASA are some of the better-known acronyms.

Initialisms and acronyms are often helpful when they’re readily familiar to the reader. They save time and space, and help make writing breezier. But when a writer uses them to stand for more arcane matters, a sentence can come to a jarring halt. You know, like the one I quote above.

By this point you’re probably expecting me to launch into a criticism of the author of today’s opinion – who shall remain nameless, but his initials are Judge Steve Agee – for writing this sentence. Not at all; in his context, it’s entirely appropriate. His honor takes the time to define each term earlier in the opinion, so the reader can always go back and refresh a memory that can’t recall what one of the terms means.

But you should never write a sentence like that in your work. Never, ever, ever; at least on the assumption that you’re writing to persuade someone. That’s especially true with appellate briefs, when you’re writing to persuade a person who has limited time to read what you have to say. An appellate brief should be user-friendly, and require the minimum effort from the “consumer.”

Why the difference? Because Judge Agee isn’t writing to persuade anyone. The court’s purpose in handing down a published opinion is to provide guidance for future litigants and courts. Those folks all have the luxury of time to “translate” the abbreviated versions into whole words. In his context, this writing is perfectly acceptable.

You may be wondering what all of those abbreviations stand for. I’ll insert them in full into a version of the sentence, so that it makes sense to a reader who doesn’t know the playing field – though it will, of course, be much longer:

Ultimately, the administrative law judge found the individualized education program proposed by Montgomery County Public Schools provided M.L. with a free appropriate public education under the Individuals with Disabilities Education Act.

Even so, if I were writing a sentence like this in a document designed to persuade a busy reader, I wouldn’t write it quite like this. On the assumption that, like Judge Agee’s opinion, I’ve referred to the abbreviated matters previously, I’d probably phrase it something like this:

Ultimately, the judge found that the school system’s proposed program provided the student with the Act’s “free appropriate public education.”

That’s only three more words than the original version, but it’s in ordinary English and its meaning is unmistakable.

In case you’re wondering about the appeal, the Fourth Circuit panel votes unanimously to affirm. It holds that the proposed program would give the student the same kind of education that other students get. The court finds it unnecessary to delve into Establishment Clause issues, leaving those for another day and a more suitable procedural vehicle.

 


UPDATE ON RECENT APPELLATE DEVELOPMENTS

 

(Posted August 1, 2017) I’ve been away from the keyboard for a week, for an excellent reason. My favorite daughter – also my only daughter, but that’s just a coincidence – received her master’s degree from the University of Southern California’s Annenberg School this spring, and a week and a half ago, I flew to Los Angeles so we could drive her car back across the continent. We took our time, eschewing Interstate highways on most occasions, and really saw the country. We visited the jaw-dropping Zion National Park in Utah. We saw Major League Baseball games in two different cities. We found the gravesite of one of my great-great-great grandfathers, a Civil War veteran, in a tiny town in central Missouri. We got ice cream; we told tales; we had a blast.

It was wonderful. I highly recommend an experience like this for you, if you’ve never done it.

The appellate globe didn’t stop spinning while I was away. Let’s look back and see what’s happened since my last report to you.

 

New SCOTUS website

The Supreme Court of the United States launched an updated website July 28. It still has the same URL: www.supremecourt.gov. The update modernizes the site and makes it easier to find your way around.

While we’re on the subject of appellate websites, the SCOTUS site does have one major advantage over the Virginia appellate courts’ sites: Access to briefs. You can see any brief you want in a pending SCOTUS appeal; they’re just a mouse click away. The Virginia courts don’t make briefs available at all on their websites. While that would be a wonderful addition, I’m not holding my breath waiting for it, and you shouldn’t, either.

 

New SCV decision

The justices of Virginia’s highest court announced one ruling last Thursday, July 27. Allison v. Brown is a medical-malpractice appeal, arising from breast-cancer surgery. The patient claimed that she consented to surgery on only her right breast, but the surgeon operated on both. Because of “significant complications to her left breast following this surgery,” the patient sued, asserting claims for medical negligence and battery.

My regular readers will immediately recall the recent SCV decision in Mayr v. Osborne, which in my view was the death knell for battery claims in surgical settings. Justice McCullough wrote the Mayr opinion, and he draws this one, too, lending further credence to my sly supposition that opinion-writing assignments aren’t as random as they used to be at Ninth and Franklin. But I digress.

In the trial court, the doctor succeeded in getting the battery claim struck on limitations grounds, leaving two med-mal claims to be tried – simple medical negligence, and lack of informed consent. But for reasons I can’t fathom, during the trial the judge agreed to instruct the jury on a battery theory: lack of any consent. The jury returned a general verdict for the plaintiff, and the doctor got a writ.

The Supreme Court has no trouble in reversing the award based on battery. Once the court dismisses a claim pretrial, I can’t envision a circumstance in which it’s proper to submit that claim to a jury for decision. It also rules that the patient failed to establish proximate causation on her informed-consent claim. But the court divides on what to do about this.

A five-member majority of the court votes to remand the case for retrial on the patient’s medical-negligence claim, since the evidence in the case could have supported an award for that. (The theory is that the doctor properly informed the patient, but then botched the job once he got her on the operating table.) But Justices McClanahan and Powell believe that the patient abandoned that claim in the trial court.

Based on the arguments raised in the dissent, it looks like they have a point. Here’s a quote from the patient’s lawyer in a pretrial hearing: “Dr. Allison operated on the wrong breast. That can only mean one of two things: He had no consent or he didn’t have the informed consent … that is required.” Similarly, during arguments on jury instructions, the patient’s lawyer expressed that he was advancing two claims, not three: “the facts support, I would argue, both a battery claim, no consent, and a lack of informed consent complaint … and therefore, I think we should be allowed to pursue one, both or the other.” The lawyer also told the judge that it was important to “tell[] the jury what the two actual claims are here.”

There’s more. In instructing the jury, the court gave an issues instruction that included the question, “Was the defendant negligent in that he did not have informed consent?” There was no instruction on the botched-surgery concept; the patient didn’t offer one. The dissenting justices accordingly feel that the doctor should get final judgment, since the doctor has now prevailed on the only issues that were actually submitted to the jury.

 

Court of Appeals issues important transcript ruling

Want to read about a nightmare? Let’s take up Browning v. Browning, an appeal of an equitable-distribution ruling.

The facts are … well, actually, the facts don’t matter much for our purposes, since the primary lesson of this decision is procedural. You need to know that the trial court convened an evidentiary hearing on November 19, 2012. You should assume that what transpired there was essential for resolution of the issues on appeal.

Judge Russell’s opinion for a unanimous panel recites that “Copies of the transcript were provided to counsel for the parties and the trial judge. No copy of the transcript was filed with the clerk of the trial court at that time.” So the parties have the transcript and the judge has the transcript.

But the clerk doesn’t have the transcript, and Rule 5A:8 says that a transcript is part of the record when it is “filed in the office of the clerk of the trial court within 60 days after entry of the final judgment.” The court entered final judgment on November 16, 2016, four years after the date of the hearing. The wife, the appellant in this case, filed a copy of the transcript with the clerk on January 19, 2017, more than 60 days later.

The CAV rules that what happened here wasn’t enough to make the first copy of the transcript part of the record, so it regards the appealed issues as waived and affirms the judgment. That may come as a surprise to you; after all, the judge had a copy of the transcript in his hands for nearly four years before judgment. But the rule is clear: you have to file it with the clerk, not the judge, in order to make it part of the record.

Now, Judge Russell is no fool; he acknowledges near the end of the opinion that this is a harsh outcome, but notes that there’s nothing unfair about enforcing the rules as they’re written. He quotes a recent CAV holding that the rules of court “are rules and not suggestions …”

Before we leave this nightmare, there’s one last small point. It occurs in a footnote on page 9 of the opinion. While I generally dislike using long block quotations, this one is important enough that I beg your indulgence; please read this all the way through for a nasty surprise:

In responding to the motion to dismiss, wife provided this Court with what purports to be a January 2013 e-mail from the court reporter that indicates that the court reporter asked the trial judge’s assistant where to send the original November 19, 2012 hearing transcript and that the judge’s office replied that the trial judge’s “instructions are for me to send the original transcript and original exhibit binder to him and he will mark each as received and filed, and that was assuming that [wife’s counsel] wanted the original filed.” We first note that the e-mail is not a part of the record, and therefore, is not properly before us. … Nevertheless, even assuming the e-mail were properly before us, nothing in the purported instruction of the trial judge prohibited or prevented wife from filing a copy of the transcript with the clerk of the trial court. By way of example, a copy of the January 8, 2014 hearing transcript was filed with the clerk of the trial court on March 10, 2014.

In my mind, that e-mail – assuming we’re allowed to consider it – puts a slightly different spin on things, and expands the nature of my warning to trial and appellate practitioners. I get the first part of the footnote; if the e-mail isn’t in the record, then the court is fully justified in ignoring it. But the “even assuming” part of this paragraph is startling. The judge’s assistant, who I assume was authorized by the judge to act, indicated what amounts to a promise by the judge to “mark each as received and filed.”

I believe that a litigant ought to be able to rely on a promise made by a judge. The last portion of the footnote indicates – correctly – that the judge didn’t forbid the lawyer to file a copy of the transcript, but that’s cold comfort to someone who’s relied on a seemingly reliable source. This ruling means that if you’re in this situation, you must assume that the judge will not follow through on a promise to file something for you; you have to go the extra step and file a copy with the clerk yourself. That may seem redundant, and it costs a little more. But it’s cheaper than defending a legal-malpractice claim. And as of now, the Virginia bar is on notice that filing a transcript with the judge is probably insufficient to preserve an issue for appeal.

 

SCV road shows announced

Each summer, the Supreme Court of Virginia convenes writ panels in locations other than the Supreme Court Building in Richmond. Court insiders refer to these with the light-hearted term “road shows,” and they’re a wonderful innovation, bringing the court to the public. This year, the panels will convene in Marion, the seat of Smyth County in southwestern Virginia, and in Fairfax, in addition to one panel in Richmond. The Richmond panel will convene August 23 at noon, while the one in Fairfax will meet starting at 9:00 the next morning. I believe – though I’m not certain – that the Marion panel will meet at the same time as the one in Fairfax.

I’ll add two points about the panels. First, they’re a terrific opportunity for you to get to see the Supreme Court in action, if you live in southwestern or northern Virginia. The hearings are open to the public, and they’re free; just be sure to leave your cell phone in your car when you go, because you won’t be allowed to bring it into the courthouse.

If you’re looking to develop an appellate practice or to hone your skills, there are worse ways to do it than by going to one of the panels and watching as the court entertains six or seven separate arguments in each hour. You’ll see some good arguments and probably some bad arguments; it’s up to you to discern which are which, and to distill what you’ll learn so you can improve your own appellate ability.

Second, these panels are one of the very best contributors to a positive public image for the court. There’s something a little foreboding for some lawyers about getting a summons to appear in Richmond; but when the justices come to you, it’s a nice touch that humanizes them. And in my experience, when the court meets in these remote locations, the local bar associations sponsor a reception the night before, so you can see for yourself that there are flesh-and-blood people behind those robes. You can learn that the justices aren’t made of marble; they’re very pleasant people and you can talk to and even relate to them.

I don’t get a vote in this, so I’ll just express a view and hope that the court takes it to heart: The Supreme Court ought to do this more often than once a year. It’s good for the lawyers the court sees, and it’s wonderful for the court’s public image. Anything that enhances transparency in government is a good thing, and this is one way that the court can advance that goal, too. It doesn’t have to be for every writ-panel seating, but doing it more often than once yearly can’t hurt.

By the way, I should add a note of appreciation to the Court of Appeals of Virginia, which convenes panels in several locations around the state: Alexandria, Fredericksburg, Norfolk, Chesapeake, Salem, and Lexington – in addition to Richmond, of course.

 


ANALYSIS OF JULY 20, 2017 SUPREME COURT OPINIONS

 

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

 

Judicial discipline

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

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

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

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

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

Medical malpractice

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

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

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

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

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

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

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

 


 

A LOOK INSIDE THE SCV’S 2016 STATISTICS

 

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

Here are a few items that caught my eye.

How’s appellate business?

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

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

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

What about the procedural-default rate?

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

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

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

How’s the “pace of play”?

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

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

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

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

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

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

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

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

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

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

What’s the trend in tort litigation?

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

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

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

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

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

How’s the success rate for rehearings?

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

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