Error in major case tied to judge nominee

By Marc Davis, The Virginian-Pilot – October 9, 2007

Two years ago, someone made a huge mistake at the Virginia Supreme Court – a clerical error that cost a client a chance to win an $8 million appeal.

“If there is a more terrifying lawyer story than this one, I don’t want to hear it,” wrote one legal analyst, L. Steven Emmert of Virginia Beach, who runs a Web site called Virginia Appellate News & Analysis.

It was a simple goof – someone forgot to file a trial transcript – but it caused the Supreme Court to throw out an appeal of an $8 million jury verdict.

The lead attorney for that appeal was E. Duncan Getchell Jr., who has been nominated by President Bush for a judgeship on the 4th Circuit Court of Appeals, based in Richmond.

Getchell, of Richmond, is a partner with McGuireWoods, one of the largest and most powerful law firms in Virginia.

Was he responsible for the mistake?

It is not clear who was supposed to physically deliver the transcript – Getchell, another lawyer or a paralegal – but court records show that Getchell took over as lead attorney after the verdict in July 2004. Another law firm handled the trial.

Getchell’s firm filed the first post-trial motions three weeks after the verdict, and Getchell personally argued those motions. He also signed the notice of appeal that stated, incorrectly, that the trial transcript had been filed.

Every document after that was signed by Getchell. He was the lawyer in charge when the error was made.

On the other hand, the insurance company that paid the $8 million does not blame Getchell – yet. For now, the company is suing the trial attorney and his law firm in a legal malpractice case to recover the money.

The lawyer handling that case said he may add Getchell and McGuireWoods as defendants once he learns more facts through depositions and other discovery.

Meanwhile, the White House stands behind Getchell’s nomination, even after learning of the mistake.

A White House spokesman, Blair C. Jones, noted that the legal malpractice lawsuit does not name Getchell or McGuireWoods as defendants but specifically blames the trial lawyer for not filing the transcript.

“Mr. Getchell is a well-respected and accomplished appellate advocate who is highly qualified to serve on the U.S. Court of Appeals for the Fourth Circuit,” Jones said in an e-mail.

One legal expert, however, said Getchell and his firm were responsible for making sure the transcript was filed once they took over the case.

The fact that Getchell’s firm filed the post-trial motions three weeks after the verdict “kind of suggests the baton was passed,” said William S. Geimer, a professor emeritus at Washington and Lee University Law School who teaches civil procedure.

“It’s definitely the law firm’s responsibility,” Geimer said. “I don’t see any way for the law firm to escape responsibility if it was even partly or jointly responsible for the failure.”

Getchell did not return repeated calls to his office.

The $8 million case started with a skiing accident at Wintergreen Resort, near Charlottesvile.

On Jan. 20, 2003, Jessica Grigg, 17, was skiing down a slope at night while Wintergreen workers were moving a snow-grooming machine up the slope. Grigg hit the machine and suffered brain damage and other injuries.

Grigg and her father sued Wintergreen in Charlottesville. After a week long trial in July 2004, a jury awarded Grigg $8.3 million. It was the largest jury verdict in Virginia in 2004, according to Virginia Lawyers Weekly.

Wintergreen appealed. Getchell did not participate in the trial, but Wintergreen hired him and his law firm to handle the appeal.

First, Getchell asked the trial judge to overturn the verdict. He argued those motions personally but failed. The trial judge issued his final order Sept. 30, 2004.

From that date, Wintergreen had 60 days to file the trial transcript. That never happened. During that time, Getchell filed his appeal with the Supreme Court, stating that the transcript had already been filed.

On April 19, 2005, the Supreme Court informed lawyers on both sides that it had not received the transcript. The court asked whether it could still hear the case.

Getchell filed a five-page brief. He did not explain how or why the transcript was not filed, except to say there was a “miscommunication or misunderstanding.” Getchell asked that the appeal be heard anyway.

In a terse, two-sentence order, the Supreme Court dismissed the appeal July 7, 2005, because Wintergreen “failed to timely file the transcript or written statement of facts.” Getchell then filed a 16-page petition for a rehearing, but the court said no.

The job of filing transcripts usually is given to a lower-level lawyer or staffer, but as lead attorney, Getchell was responsible for overseeing the entire case.

One of Grigg’s lawyers, M. Bryan Slaughter of Charlottesville, said he has no idea why Getchell’s team did not file the transcript. He said he never dealt with Getchell during the trial.

Slaughter said the failure to file the transcript in an $8 million case was surprising. “This just doesn’t happen with a firm like that,” he said.

Another law professor, James Moliterno, said it’s hard to know who was responsible for filing the transcript – the trial lawyer or the appellate lawyer.

“It can be divided up either way,” he said. “It really comes down to what their arrangements were.”

The trial lawyer for Wintergreen, Christopher C. Spencer of Richmond, said the error was not his fault.

“I and my former firm categorically reject any suggestion by the insurance carrier that we were at fault in any way, and are confident that we will be vindicated by the facts and the law,” Spencer said in an e-mail. “… To my knowledge, no one connected with Wintergreen itself has ever suggested that there was any fault on the part of my former firm or myself.”

Getchell’s nomination faces a major hurdle in the Senate.

Bush nominated Getchell on Sept. 6, even though he did not appear on a list of five recommended candidates from Virginia’s two U.S. senators, John Warner and Jim Webb. That drew protests from both senators.

That might be enough to kill the nomination. Federal court appointments must be confirmed by the Senate, which often follows the nominee’s home-state senators.

Warner and Webb both declined to comment on the Wintergreen case.

The White House, on its Web site, describes Getchell as “a highly accomplished and well-respected appellate lawyer who has litigated a wide range of cases at every level in state and federal courts. … Mr. Getchell has an outstanding record as a practicing attorney, particularly at the appellate level, and as a public servant.”

Getchell was rated “highly qualified” by the Virginia State Bar. He has a law degree from Duke University and has been practicing law in Virginia for 33 years. He l eads the appellate litigation practice group at McGuireWoods and has argued before the U.S. Supreme Court, the Virginia Supreme Court and every federal appeals court in the country.

Last year, Getchell was on a list of candidates endorsed by Warner and then-Sen. George Allen, both Republicans. But then Webb, a Democrat, was elected to Allen’s seat, and he and Warner came up with a new bipartisan list that did not include Getchell.

The 4th Circuit Court of Appeals hears cases from Virginia, Maryland, the Carolinas and West Virginia. It is one step below the U.S. Supreme Court.

As of Friday, the Senate Judiciary Committee had not scheduled a hearing for Getchell.

Marc Davis, (757) 222-5131, marc.davis@pilotonline.com