UPDATE ON RECENT APPELLATE DEVELOPMENTS


[Posted April 1, 2011] I’m in Hot Springs today for the VTLA’s annual convention. So much for the arrival of spring; we awoke today to a light dusting of snow, which had fallen overnight. Here’s a quick update on several recent developments in Virginia’s appellate landscape.


Lloyd v. Kime redux

Three years ago, the Supreme Court issued a published opinion in the medical-malpractice case of Lloyd v. Kime, resulting in a remand for trial. That trial apparently didn’t go well for the patient, but he got a writ to review the unfavorable judgment. Today, in an unpublished order, the Supreme Court affirms, giving us in the process some guidance on how the court feels litigant should deal with a thoroughly uncooperative judge.


The patient assigned two errors, the first of which related to the use of medical literature on standard of care. That one produces a standard-fare waiver ruling (the court finds that the patient objected on a different ground below than he did on appeal). The intriguing ruling today is on the second assignment, in which the trial court refused to allow certain testimony, and then (fair warning; appellate lawyers are going to suck wind here) refused to allow the patient to make a proffer of the excluded evidence.


Ordinarily, it would take the Supreme Court about 3.4 seconds to reverse that decision; a trial court is free to make rulings, but it isn’t free to thwart appellate review by refusing a timely proffer. But here, the patient assigned error only to the underlying ruling (excluding the evidence), not to the trial court’s refusal to allow the proffer. Since appellate courts can’t evaluate the substance of excluded evidence without knowing what was excluded, the court has to affirm.


The solution here is simple. If a trial judge is bold enough to refuse a proffer, the appellant must assign error to the underlying ruling (as the patient did here), and assign error to the rejection of the proffer.


Since this ruling is unpublished, I’ll post it shortly to the archive pages of this website.


Judicial speed-dating

As everyone who follows appellate developments knows, the legislature will reconvene next week to fill the two current vacancies in the Supreme Court of Virginia. Eleven candidates interviewed in February, and when the second seat became available after the untimely passing of Justice Hassell, the legislature opened up the process again to allow additional candidates to submit their names. Eight more candidates signed on, and those will be interviewed on Tuesday. But they’ll have lots of company; the legislators will on the same day interview dozens of candidates for trial-court benches, now that money has been allocated to thaw the judicial hiring freeze. That’s a lot of interviews in one day; expect a tired set of legislators when the veto session begins the next day.


New published opinions from CAV

On Tuesday, as I was making plans to travel west, the CAV handed down four published opinions, including yet another en banc ruling in a criminal case. This time, the court reverses a suppression ruling by a 7-4 vote. I’ll analyze those cases next week, along with the April 5 batch of cases.


A sad report out of the Fourth

Finally, word arrived a few days ago of the passing of Judge Blane Michael of the Fourth Circuit. This sad news leaves the court two judges short of a full complement of 15. I won’t venture to guess how long it will take to fill the two vacancies; that’s up to the US Senate, which moves in its own good time.