(Posted December 13, 2018) The Supreme Court continues to clear its collective desk apace, releasing five published opinions this morning.


Name changes

The court returns to recently plowed turf in Leonard v. Commonwealth, a petition filed by a transgender federal prisoner seeking a name change to reflect a preferred gender.

The trial court reviewed the petition and forwarded it to the local Commonwealth’s Attorney, as provided by statute. That official filed an opposition, citing two key factors: (1) The inmate had been convicted of sex offenses and would have to register as a sex offender; and (2) the inmate’s only nexus with Virginia was temporary residence to serve part of a criminal sentence. The inmate was scheduled to be returned to Missouri in three more years, so (the Commonwealth asserted) that state has a greater stake in the name-change petition than does Virginia.

The judge reviewed the response and issued an order four days later, without convening a hearing. The order denied the petition in a form order, ruling that “good cause does not exist for consideration of the petition.” A panel of justices agreed to take a look.

The Supreme Court today unanimously reverses and sends the case back for reconsideration. The statutory framework provides for an initial review for legal sufficiency, which the court today analogizes to a demurrer. If the petition is in good form and sets forth a claim for which a name change can be granted, the next step is to send the petition to the local prosecutor, who may reply, after which the court must conduct an evidentiary hearing.

The trial court skipped that last step. It issued a summary ruling without “receiving and considering evidence,” and the justices rule that a court can’t adopt that procedure. On remand, the trial court will still have the discretion to grant or deny the petition after considering all of the facts; but it can’t short-circuit the litigation in this way.


Land use

Dirt lawyers, rejoice; we have another decision on nonconforming uses. The justices today take up Fairfax County v. Cohn, involving the use of two accessory structures as additional residential units.

The subject property is a home in McLean. The property includes a main residential building, a detached garage, and something called a Garden House – evidently a conservatory or greenhouse. The property owner built the house in 1962, the garage the next year, and the Garden House in 1972.

When the county granted building permits for the two accessory structures, it expressly provided that “there are no kitchens or bathrooms approved” for each structure. That didn’t stop the owner, who went ahead and installed electric wiring, plumbing, septic tanks, and kitchens, turning each facility into a separate dwelling unit. The owner rented out all three structures to different tenants.

The tenant of the main house bought the entire property in 1998. For a generation, the county did nothing to challenge the use of the property. Even after a neighborhood survey in 2008 revealed this use, the county did nothing.

That ended in August 2016, when the Zoning Administrator notified the owner of a violation, directing the removal of the electrical and plumbing facilities and the kitchens. The ZA wanted to trim the number of dwellings back to one, to comply with the zoning ordinance.

The owner sought relief from the BZA, but got nowhere. A trip to circuit court was more fruitful; the court ruled that since the owner had been paying taxes on the structures for more than 15 years, so by statute, the continued use was nonconforming but legal.

The justices today reverse and enter final judgment for the county. They note that this isn’t a matter of a lawful nonconforming use; that’s what happens when a lawful use becomes nonconforming due to a subsequent change in zoning. This use was never legal, and the passage of time can’t change that.

As for that 15-year tax statute, Justice Goodwyn points out for a unanimous court that that protects structures, not uses. The buildings can stay, but they can’t be used as residential units anymore.


Criminal law

There are three victims in Smith v. Commonwealth, involving a conviction of voluntary manslaughter. One is the homicide victim. The other two are his two young daughters. They’re victims not only because they lost their father, but because their mother is now behind bars for his slaying.

There’s no doubt that Smith shot and killed her husband. She fired a single bullet at him from a few feet away, and he died at the scene. The real issue in this case is where in the spectrum that runs from first-degree murder down to involuntary manslaughter her conduct fell.

The couple were moving furniture out of an upstairs bedroom in their Spotsylvania County home, so they could replace the flooring. One item in that room was a gun safe. During this process, the victim invited his wife to go and get her “pea-shooter,” a small handgun, so it they could place it in the safe. He instructed her, “Don’t forget to un-cock it.”

According to Smith, she went downstairs, removed the gun’s magazine, and ejected a bullet from the gun’s chamber. She then returned upstairs, where her husband asked if she had done as he instructed. She replied, “See, it’s empty,” pointed the gun toward him, and pulled the trigger, presumably to show him that she knew how to ensure that a handgun is unloaded. You know what happened next.

The Commonwealth adduced evidence that the couple had been arguing before Smith went downstairs. (Adding to this overall tragedy, some of this evidence came from the young girls.) That and some inconsistencies in Smith’s story led the prosecutor to seek a conviction for first-degree murder. The parties agreed to what today’s opinion calls a “waterfall” instruction, one that outlines the elements of first- and second-degree murder, plus voluntary and involuntary manslaughter. The jury returned a verdict of guilty on the voluntary-manslaughter charge.

Smith filed a post-trial motion, asking the court to set the verdict aside because the evidence didn’t support the charge. The court noted that Smith had agreed to the jury instruction. Smith replied that she found no fault with the instruction; just the quantum of evidence to support the verdict. The court denied the motion and sent Smith to prison.

The Court of Appeals affirmed the conviction, finding that the evidence would actually have been sufficient to support the higher charge of second-degree murder. The Supreme Court affirms today, though on different grounds.

One of Smith’s primary arguments here is that words alone “are not enough for heat of passion,” the key demarcation between murder and voluntary manslaughter. The justices decline to address this because, while the doctrine is well-established in Virginia law, Smith never sought an instruction to so inform the jury. It proceeds instead to a thoroughly unsurprising review for sufficiency, and equally unsurprisingly concludes that a reasonable jury could have credited the evidence of heat of passion.

The chief justice writes today’s opinion for the court. Justice Kelsey writes separately, not to dissent – he joins the majority opinion fully – but to underscore a point made by his former colleague in the Court of Appeals, Judge Humphreys. He notes that this case doesn’t provide a vehicle to consider whether “‘heat of passion upon reasonable provocation’ has evolved into the only currently legally recognized factor in the Commonwealth that negates malice,” but the next case might give the court that chance. The fact that he’s writing this at all telegraphs his skepticism of that view. The fact that Justices McClanahan and McCullough join him gives that issue added importance.

What’s next for Smith? Given the Supreme Court’s recognition today of the words-alone doctrine, my best guess is a habeas petition under Strickland, asserting that her trial lawyer should have offered this instruction. That might get her a new trial.

Staying in the criminal-law arena, we’ll take the long step down from homicide to bad-check larceny. That leads us to McGinnis v. Commonwealth. From the procedure-geek’s standpoint, this is the opinion of the day, as it (1) discusses at length an important, unresolved preservation/pleading issue, and (2) answers a first-impression question about a 1978 amendment to the bad-check law.

McGinnis operated what I take to be a booking agency that dealt with hotels on behalf of groups attending events. His company’s deal with a certain hotel in Lynchburg called for his company to collect money from his customers and then pay the hotel. In 2015, he sent to the hotel three company checks as payment for events; each of those checks came back unpaid for insufficient funds.

The hotel wrote to McGinnis, asking about payment of the amount due, roughly $4,500. But by then, McGinnis had folded the company. Since that made civil collection impractical, the hotel went to the police. McGinnis soon thereafter found himself on the business end of an indictment charging three felony counts of larceny by worthless check.

After a bench trial, the circuit court convicted McGinnis and sentenced him to nine years in prison, with 6½ years suspended. (Side note: I don’t know who the judge was, but I infer that he got up on the wrong side of the bed on the trial date. Nine years in prison for a $4,500 debt? I know that most of it was suspended, but unless McGinnis had frequent-flier miles in criminal court, that sticks out in my mind as an unusually harsh sentence – and I say that as a former local prosecutor. End of digression.) On the twentieth day after the sentencing order, when jurisdictional control over the case is slipping out of the circuit court’s hands, McGinnis filed a motion to reconsider, invoking the 1978 amendment to the bad-check statute, providing: “Any person … delivering any such check … in payment as a present consideration for goods or services for the purposes set out in this section shall be guilty as provided herein.” The motion pointed out that the checks were drawn for payment of an antecedent debt, so he couldn’t be guilty.

My tongue-in-cheek criticism of the trial court above must give way to what happened next: The court summarily entered an order denying the motion. Appellate lawyers know well that the judge didn’t have to do that. He could have ignored it, knowing that an unresolved post-judgment motion effectively vanishes from the appellate radar after 21 days. I commend his honor for going the extra mile to enable McGinnis to present this issue on appeal.

Almost. There’s one fly in McGinnis’s ointment: He himself signed and filed the motion; his trial counsel didn’t. The rules allow a lawyer in the case or an unrepresented party to appear as counsel of record. They say nothing about pro se filings by someone who isn’t actually pro se.

This produces some fascinating but ultimately disappointing analysis of what happens when a represented party bypasses his own lawyer. It’s disappointing not because of how the justices resolve it, but because they don’t. Today, the court notes that the statute governing signing of pleadings doesn’t address this situation, and the court doesn’t feel at liberty to fill in the gap. In a footnote, the court today expressly invited the General Assembly to do that, noting that “the circumstances of this case are likely to recur in the future ….”

So how does the court resolve the case? It assumes without deciding that the “quasi-pro-se” filing is legit, and addresses the merits. Doing that produces an affirmance, as the court rules that the added language adds to, rather than constrains, the coverage of the statute.

Before 1978, the statute criminalized delivering a bad check “with intent to defraud.” A 1977 Supreme Court decision had held that one could not be convicted for delivering a bad check for services, because one cold not under the common law steal services. (You can’t take them and carry them away.) The first-impression ruling of today’s opinion is that the statute, passed in response to that decision, added greater breadth to the statute, rather than limiting its previous reach to present consideration.

The final case of the day is a petition for a writ of actual innocence, styled In re Phillips. In 1991, Phillips was convicted of particularly egregious felonies in connection with the forcible rape and sodomy of a ten-year-old girl. I found the process of reading the facts to be painful, as I’m the father of a daughter who happily never had her innocence stolen in this way.

Phillips filed an actual-innocence petition in 2005, but the Supreme Court dismissed it. He tried again in this case, asserting that DNA evidence tested by a private laboratory was inconsistent with his guilt.

While the case was pending, the justices handed down an opinion in another such case, ruling that the court cannot grant these petitions based on analysis by private labs; only testing by the Virginia Department of Forensic Sciences. Perhaps swallowing hard at the impending doom of his petition, Phillips moved to nonsuit it, presumably to afford him an opportunity to send the private results to DFS for confirmation.

The justices today first rule that an actual-innocence petition is criminal in nature, so the petitioner can’t nonsuit it. It’s in Title 19.2, which governs criminal procedure, and it employs a burden of proof used in criminal, not civil, cases. On the merits, the court predictably applies its relatively new ruling to dismiss this petition, since Phillips doesn’t have the right lab evidence.






(Posted December 10, 2018) An early snowstorm – one that the Richmond Times-Dispatch says is the capital’s biggest so early in the season – has left a foot-thick white blanket in parts of the region. The three appellate courts in Richmond are each closed for the day. This means that any appellate deadlines that expire today automatically roll over to tomorrow – assuming the courts are open then.

Warning: This extension applies with certainty only to documents that you must file in the appellate court clerk’s office. Some documents go instead to the trial-court clerk’s office. The best examples of those are a notice of appeal, trial transcripts, and an appeal bond. If your local courthouse is open today, you do not get the extension and you must act today. Around here in Tidewater, the weather is thoroughly dreary, but there’s no snow on the ground and as far as I know, the courthouses are all open. The same may be true in Northern Virginia, since the storm may not have reached that far north. Be careful and call to check.





(Posted December 6, 2018) If you’re shivering in the cold snap that now afflicts the Commonwealth, the justices today give us four published opinions and one published order to keep you warm.


Criminal law

The Code of Virginia contains a provision that makes it a felony to shoot at an occupied vehicle. Jones v. Commonwealth answers the interesting question whether one must be outside the vehicle while shooting, to violate the statute.

In a sadly familiar scene, this case arises from a drug deal that turned violent. Jones climbed into the victim’s car to purchase pills from the victim. While sitting in the car, Jones shot the victim several times, killing him. Among other charges, Jones faced an indictment for shooting at an occupied vehicle. The trial court refused a motion to dismiss that count, and convicted Jones. The Court of Appeals affirmed.

In the Supreme Court, Jones repeated his contention that one cannot shoot at a vehicle while sitting inside it. He notes that a separate statute criminalizes dangerously shooting a weapon while in or on a vehicle, and urges that this second statute would be superfluous if his conviction were to stand.

The justices apply the plain language of the statute and note that it doesn’t require a defendant to be outside the vehicle. For example, a person could sit in the front passenger seat and shoot a bullet at the driver’s-side door. The door is a part of the car, so a shot fired at the door is fired at the car. If the statute criminalized shooting into a vehicle, this analysis might be different; but that’s the way the legislature wrote it.

As for the other statute, the court observes that it’s similar but not identical. Most violations of the second statute will involve shooting out of the car. As the Court of Appeals had observed, “Code § 18.2-154 focuses on the direction of the shot, while Code § 18.2-286.1 focuses on the location of the shooter.”

This case illustrates some advice I read a year or so ago from an expert in personal security. He had three tidbits of advice to minimize your risk of being murdered: Don’t use illegal drugs or associate with people who do; don’t stay out after midnight; and don’t marry a psychopath. The expert opined that if you do none of these things, your chances of getting murdered are “an inch tall.” If you break one of the rules, your odds go to two feet tall. If you violate all three, your odds are 30 feet tall.

Perhaps this is the mark of a boring existence, but I’ve managed to adhere to all three recommendations, and I’m happy to still be here.


Freedom of Information

Years ago, when I was a municipal attorney, I defended litigation filed against my city. During the pendency of the suit, my adversary, not content with the discovery process, submitted a request for documents under FOIA. I objected, claiming that the proper remedy while parties are litigating is the discovery process. Otherwise, I contended, the city is a second-class litigant. A circuit-court judge ruled against me.

As a municipal lawyer, that rankled; but we didn’t appeal the ruling. I always wondered how the justices would approach this issue. Today we find out: In Bergano v. Virginia Beach, the Supreme Court evaluates the extent to which billing records are exempt from disclosure under FOIA.

Bergano was embroiled in federal litigation against the City of Virginia Beach. Anticipating a fee claim in that court, he submitted a FOIA request to the City for copies of its outside counsel’s billing records. The City produced the records, but with virtually every legal task redacted. The documents as produced showed the date, amount of time, and responsible attorney for each entry, but no hint as to what the attorney had done.

Bergano filed a mandamus petition, seeking unredacted records. A circuit-court judge reviewed unredacted copies of the records in camera, and ruled in favor of the City.

The Supreme Court reverses today, ruling that the trial court interpreted FOIA exemptions too broadly. The relevant exemptions are for the attorney-client privilege and the work-product doctrine. Work product normally covers documents “prepared in anticipation of litigation or for trial.” These billing records don’t fit that description.

That leaves the attorney-client privilege. The Supreme Court today cites with approval a Fourth Circuit decision, noting that the privilege typically “does not extend to billing records …” The court also embraces an opinion of the Attorney General, which states that “an attorney’s analytical work product or legal advice” is exempt, along with confidential communications from the client to the attorney.

If you’re familiar with attorneys’ bills, most of them don’t contain narrative analysis or advice; nor do they recite the client’s confidential disclosures. The Supreme Court accordingly sends the case back to the trial court with instructions to permit Bergano to have non-confidential billing records. The trial court will also evaluate Bergano’s own request for an award of attorney’s fees, which the courts usually award when a citizen successfully sues to obtain access to public documents.


Dangerous animals

Two key issues mark Frouz v. Commonwealth as noteworthy. This is a case originally brought under a statute that makes the owner or custodian of a dangerous dog liable for injuries caused when that dog attacks another dog. After hearing evidence, the trial court ruled that Frouz was liable to pay almost $4,000 to her neighbor, when Frouz’s dog, Blue, attacked the neighbor’s dog.

Actually, the first issue is whether Blue was Frouz’s dog at all. Her son owned it, and he was in New York for a period of time; Frouz and her husband had agreed to care for Blue while the son was away. During that time, Blue and the neighbor’s dog got into a scrape near the boundary between the properties. The encounter started in Frouz’s yard, but moved over to the neighbor’s yard. That’s when Blue attacked and seriously injured the other dog. A trial judge ruled that Frouz was liable for the neighbor’s vet bills.

On appeal, the first issue is one of jurisdiction. Frouz appealed straight to the SCV because, she felt, this is a civil case. The justices asked the parties to brief the issue whether this appeal belongs in the Court of Appeals, because the statute specifies that “[t]he procedure for appeal and trial shall be the same as provided by law for misdemeanors.”

The parties argued that jurisdiction was appropriate in the SCV, and today the justices agree. This is like a refusal appurtenant to a DUI charge. While the procedure is like a misdemeanor, the substantive right of appeal is civil.

That sets the table for the real battle: Whether Frouz was Blue’s owner or custodian. Before and at the trial, she had referred to Blue a couple of times as “my dog,” probably causing her attorney to wince. But the justices today find the evidence satisfactory to show that she was at least Blue’s custodian, in that she provided shelter or refuge to the dog in her son’s absence. Under this statute, that makes her liable.



The Red Onion State Prison in Wise County is Virginia’s lone maximum-security penal facility. It houses long-term prisoners with the following reported criteria: “Disruptive; Assaultive; Severe Behavior Problems; Predatory-type behavior; Escape Risk.” That’s enough to make me relieved that I’m on the far end of the state from the prison.

An inmate at the prison has accumulated plenty of frequent-flier (actually, in this case it’d be “filer”) miles in the judicial system. When he filed yet another suit in the Wise County Circuit Court, the warden moved to dismiss and sought an order to thwart future filings. Before the court could rule on that, the inmate filed a motion for a temporary injunction. Six days later, and with a hearing looming on the docket, the inmate filed a motion to nonsuit, or in the alternative an extra 30 days to respond to the warden’s motion.

The local judge may have seen more than enough of this repeat litigant. He granted the motion to dismiss and imposed a prefiling-review requirement that would enable the court to summarily dismiss future filings. The court did not address the nonsuit or extension requests.

By statute, if a given inmate has had three suits dismissed as frivolous, malicious, or for failure to state a claim, it can deny that prisoner in forma pauperis status unless circumstances exist such as an imminent risk of serious bodily harm. The trial court found this to be the inmate’s fifth such dismissal, so it imposed the IFP limitation.

That generates plenty of legal issues for the justices in today’s opinion, Gordon v. Kiser. The first is whether the trial court erred in refusing the nonsuit. Because the case hadn’t been submitted to the court for decision – the inmate had asked for extra time to respond, and there was a hearing set on the docket – the justices today rule that this ruling was error; the court should have allowed the inmate his one of-right nonsuit.

In theory, you might think that that moots the rest of the case. But that’s not what happens; a nonsuit doesn’t automatically extinguish a pending motion for sanctions. Trial courts have jurisdiction to consider such motions even after the plaintiff nonsuits, as long as they act within 21 days after the nonsuit, or if they retain jurisdiction over the case to adjudicate the motion.

That allows the justices to evaluate the sanctions imposed by the trial court. The first is the pre-filing review requirement. Citing last year’s Adkins decision, in which the SCV itself imposed such a requirement on a frequent litigant, the justices require consideration of four factors before a court may so act. The record here shows that the trial court considered only one, so the Supreme Court remands the case with direction to look into all four.

As to the second limitation, the denial of IFP status, the justices have bad news for the litigant. The statute only requires three “strikes,” and he already has four. Today’s opinion walks us through the first three, confirming that they do indeed qualify as “strikes” under the statute. That means that the trial court wasn’t wrong when it suspended the inmate’s right to file IFP.


Criminal law

The justices hand down one published order today, in Martinez v. Commonwealth. It addresses – rather, it declines to address – a baffling problem in a criminal prosecution.

Martinez is a deaf mute who doesn’t communicate in any language. Police arrested him on two indictments for capital murder in 2005. He hasn’t been to trial yet, long after the deadlines prescribed in the Speedy Trial Act. What gives?

The fact that Martinez can’t communicate means that he can’t assist in his own defense, and that, in turn, means he’s not competent to stand trial. He isn’t insane, so the insanity statutes don’t apply. Pursuant to statute, the Commonwealth has performed evaluations twice a year for twelve years to determine if he has become competent. But experts for the Commonwealth and the defense agree that he’s not much better now, and the trial court found that he has plateaued and won’t ever be competent.

This raises several thorny questions. The big one is, What are we to do with this man? Simply releasing him, because he probably will never be competent to stand trial, is practically unthinkable. This is a capital murder case. Placing him in a mental hospital for psychiatric treatment would be appropriate if he were insane; but he’s not insane. Trying him is out of the question.

Martinez’s lawyers moved the trial court to dismiss the indictment. The trial court denied the motion and, sensitive to the need for appellate review, decided that its decision “was appealable as a civil commitment order.” Martinez’s lawyers dutifully appealed, and since they’re appealing a civil order, they went straight to the Supreme Court, just as the appellant in Frouz, above, did.

The justices granted a writ and directed the parties to brief the issue of appellate jurisdiction. That turns out to be the entire battle today as the court rules that the denial of the motion to dismiss occurred in the criminal case, so any appeal has to go to the Court of Appeals. Normally that means that the justices will simply transfer the appeal to the CAV under Code §8.01-677.1. But the court declines to do that, ruling that the CAV doesn’t have jurisdiction, either, since this plainly isn’t a final order in the criminal case. (We call those sentencing orders.)

Okay, now what? Martinez is being held on suspicion of the most heinous crime in our book. He can’t stand trial, Virginia doesn’t want to release him, and he probably doesn’t even know what’s happening to him. Now the courts are saying he cannot obtain any appellate review of his detention.

My best guess is that the only way the courts are going to be able to get off the dime here is if Martinez files a habeas corpus petition. I assume that his lawyers can pursue that even if he isn’t competent for a criminal trial, and if so, the trial court will rule in favor of one party or the other. If it refuses to issue the writ, Martinez can appeal that (and that one definitely would go to the SCV). If the court grants the writ, the Commonwealth can appeal, and I suspect the trial judge would readily suspend execution of the release order pending an appellate decision. In that sense, today’s jurisdictional ruling postpones a ruling on the ultimate issue in this painfully difficult case.






(Posted December 1, 2018) Let’s scan the landscape and see what’s been happening recently in the appellate world.


New federal rules take effect

If you practice in the Fourth Circuit, today is the day when new rule provisions, previously announced, take effect. The Fourth has changed Local Rule 29 to match a change in the Federal Rules of Appellate Procedure. The new local rule states, “[t]he Court will prohibit the filing of or strike an amicus brief that would result in a judge’s recusal from the three-judge or en banc panel that has been assigned to the case or in a judge’s recusal from a vote on whether to hear or rehear a case en banc.”

Today also marks the effective date of a new deadline for filing reply briefs in the federal system. It’s now 21 days, up from 14. The longer deadline applies prospectively only, so if you’ve already received your briefing order, you only have 14 days, even if your deadline hasn’t arrived yet.


ABA Summit

Last month I traveled to Atlanta to attend the ABA Appellate Summit. It was, as always, packed with programming, and it included plenty of free time for extracurricular activities in town. The organizers did a good job of putting everything together, including an appropriate amount of security to discourage the usual rampaging hordes of appellate hooligans.

I encourage you to mark your calendars now for the 2019 summit, which will be just across the Potomac in Washington, DC. The dates are November 14-17. This is your chance to rub elbows with, and swap stories with, your colleagues from across the nation, not to mention the chance to engage in idle conversation with appellate jurists. Did I forget to mention the many hours of top-notch MCLE programming? I’ll be there, and if you’re serious about your appellate practice, you will be, too.


Pilot appellate-mediation program

I reported recently that the Supreme Court has approved a two-year pilot program for mediation of cases on appeal. Because mediating appeals is different from mediating cases before trial, the Dispute Resolution Services office sponsored a training program last month, specifically geared toward training mediators to tackle cases in our realm.

The program begins January 1, 2019. For certain categories of appeals, the Clerks of the SCV and CAV will notify the parties, once the case is mature for a merits decision, of the availability of appellate mediation. If the parties agree to try to resolve the case, they get a 30-day stay of all appellate deadlines. The program will be evaluated as it unfolds to see if it merits a permanent place in the judicial system.


Holiday closing schedule

The Virginia state appellate courts will be closed December 24, 25, and 31 plus January 1. If you have a deadline that expires on one of those days, you automatically get an extension to the next business day – either December 26 or January 2.

I’ll add my usual caveat: If you have a deadline on, say, Christmas Eve or New Year’s Eve, and that deadline requires you to file something in the trial court clerk’s office, you need to check with your local clerk to see if that office will be open. If it is, the appellate court’s closing won’t help you. (I tend to doubt that this will be an issue, as I suspect that four-day weekends will be the norm this season.)

The Fourth Circuit hasn’t announced its closing schedule yet. They tend to be a little less accommodating of staff, so it wouldn’t surprise me if that court is open on New Year’s Eve. We’ll see, and I’ll post something here once they let the world know.


Final writ panels of 2018

This Tuesday, December 4, the Supreme Court will convene its last set of writ panels for the year. If you’ll be near the Richmond area, this is a great opportunity to watch a series of oral arguments and perhaps learn something about what works and what doesn’t. Three panels will hear 72 cases in all, and decide which ones receive a precious writ.

There are no more merits arguments in 2018; the last of those wrapped up on November 2. The next full session of the Supreme Court is the week of January 7-11. By tradition, the January session coincides with the opening of the General Assembly session. This enables the justices to attend the Governor’s State of the Commonwealth address. (If you watch the speech on television, it’s easy to pick out the justices in the audience. Black robes make for poor disguises.)

In the Court of Appeals, there are three more court sessions before the calendar turns to 2019. Panels of that court will convene next Tuesday, December 4, in Richmond; the following Tuesday here in Tidewater; and December 18 in the Roanoke/Salem area. The Fourth Circuit’s final session of the year is December 11-13, in Richmond.

One final statistical note: In calendar 2018, the Supreme Court of Virginia heard argument in exactly 100 merits cases, reflecting the continuing – and, in my mind, alarming – trend of fewer and fewer writs granted. If you go back twenty years, that figure would be closer to 300. This is due in part to a smaller incoming caseload, to be sure; but the grant rate has fallen noticeably faster than the new-appeal filing rate. The court is getting ever pickier in deciding when to grant an appeal.




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

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

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

CLICK HERE to continue…




(Posted June 29, 2018) Now that the dust is starting to settle from all that federal appellate news this week, it’s safe to return to Virginia courts. At the midpoint of 2018, let’s see what the Virginia appellate numbers show.



The Supreme Court of Virginia has handed down 34 published opinions and orders, and 12 unpublished orders. For comparison’s sake, the court decided 79 appeals by opinion and 59 by order in calendar 2017.


The court’s website lists 49 writs that have been granted since the beginning of the year. It is conceivable but not likely that there may be a couple more that aren’t showing up on the page because they’ve already been decided. (The court removes appeals from the writs-granted page after an opinion comes down.) Last year, the court granted 112 writs, including one certified-question case.

Upcoming panels and sessions

The justices will convene three more sets of writ panels in 2018, in addition to the three that are already in the books. In late August, we’ll get the annual road shows, where the court sends two panels out of Richmond to hear arguments. This year’s road shows will convene in Lovingston (Nelson County) and here in Virginia Beach, both on August 30. We’ll also see one in Richmond, probably on August 29. After that, conventional panels (all in the Supreme Court Building in Richmond) will meet October 16 and December 4. There are two sessions (where lawyers argue merits appeals to the full court) left: the weeks of September 10-14 and October 29-November 2. Four sessions are already in this year’s rearview mirror.

The David/Goliath Index

As I promised you on May 11, I will quarterly announce how the Big Guys and the Little Guys are faring at Ninth and Franklin. (See that essay for a description of the concept.) For the second quarter, David won four appeals in published opinions and Goliath won eight times, for a D-GI of 33/67. While that may sound lopsided, David actually has won almost twice as frequently as he did in 2017 and 2016. For the year, the Index is 32/68.



Thus far the CAV has decided 29 appeals by published opinions and 137 by unpub. (The CAV releases far more of these decisions because by statute, it has to explain the reasons for each ruling. Most appeals in the SCV die with a one-sentence refusal order that virtually no one sees.)

David-Goliath Lite It’s possible to calculate something of a David-Goliath Index for the Court of Appeals, too, using two case areas: criminal appeals and Workers’ Comp cases. The court has decided 12 Comp appeals and the employee has gone 4-8, resulting in a 33/67 D-GI in that field. In the other field, Goliath is running away with it. The prosecution has won 89 out of the 97 criminal decisions thus far in 2018; that adds up to an Index of 8/92.