(Posted April 11, 2024) We get an interesting decision, in the form of a non-decision, this morning from the Supreme Court of Virginia. In Commonwealth v. Browne, the justices dismiss an appeal as moot.

This is an appeal of a probation-revocation proceeding. Browne received a partially suspended sentence, but was unable to stay out of trouble thereafter, resulting in multiple revocation proceedings. At one point, the Page County Circuit Court revoked him and reimposed a portion of the original sentence. Browne felt that the reimposed potion of the sentence was impermissibly high – there are caps on what courts can do in some circumstances – so he appealed.

He won in the Court of Appeals. That court ruled that the circuit court had to resentence him properly. But the Commonwealth appealed and got a writ, so the Supreme Court would have the last word.

Remember when I reported that Browne just couldn’t stay out of trouble? While the appeal was pending, he received enough free room and board that he finished serving the entirety of the original sentence. That means that despite his being right on the appeal, he wouldn’t get a reduction in his active incarceration time even if he ultimately prevailed. He even told the Supreme Court so while the case was pending there.

At oral argument in late February, the justices asked the parties whether Browne’s completion of the original sentence made this whole thing moot. Both parties contended that the answer was no, but today The Robes disagree. In a published order released today, the court notes that any decision on the merits wouldn’t change anything about Browne’s sentence. And since he was only appealing the amount of time imposed in the revocation proceeding, and not the fact of revocation, this proceeding couldn’t do anything other than make a retroactive declaration.

Today’s unanimous order directs the vacation of the CAV’s opinion and dismisses the case. As with all orders, we can’t know who wrote this one.





(Posted April 4, 2024) This morning the Supreme Court of Virginia hands down two new published opinions.


Medical malpractice

The first decision relates to a jury instruction in a malpractice appeal. The holding in Emergency Physicians of Tidewater v. Hanger will apply in other tort contexts, wherever causation is in issue.

The patient came to an emergency room and was tested for a number of things. The tests showed her blood sodium level to be low, a dangerous condition known as hyponatremia. But the doctor who saw her there didn’t catch the abnormality and sent the patient home with instructions to see her family doctor and a gastroenterologist for abdominal pain.

The patient visited her family doctor six days later. Without knowledge of the abnormal test result, he didn’t assess or treat her hyponatremia; he gave her a prescription for an unrelated medication and he, too, sent her home. Six days after that, her husband found her collapsed on their kitchen floor, bleeding from a head wound. She was taken to a hospital and diagnosed with a traumatic brain injury and profound hyponatremia. An extended period of care there led to her discharge. She sued the individual emergency doctor and her practice for failure to diagnose the condition.

At trial, the patient adduced expert testimony that the probable cause of her fall and injuries was loss of consciousness due to a seizure caused by the undiagnosed hyponatremia. The defense pointed to the prescription from the family doctor as the probable cause, and also suggested that the patient may have simply slipped or tripped in her kitchen for reasons unrelated to her blood sodium.

The defense offered superseding-cause instructions and also one telling the jurors that if the injuries could have resulted from multiple possible causes, at least one of which wasn’t the doctor’s fault, and they couldn’t ascertain which one was the cause, they had to return a defense verdict. The trial court refused that instruction and sent the case to the jury, which returned a seven-figure verdict for the patient. The trial court entered judgment on that verdict.

In the Court of Appeals, the defendants urged only the theory that the alternative cause of the fall was the slip-or-trip explanation. The CAV noted that in arguments on this jury instruction, the defense had argued only the other-medication theory, pointing the finger directly at the family doctor. The court accordingly found the argument waived under the contemporaneous-objection rule, and affirmed the judgment.

The defense appealed again, assigning six errors in the Supreme Court. The justices awarded an appeal on only this one, and today they reverse, holding that the offered instruction was a correct statement of the law and was supported by more than a scintilla of evidence.

The more interesting, and more wide-ranging, aspect of this opinion relates to the CAV’s waiver conclusion. In a holding that will have plenty of trial judges squirming with discomfort, the court cites a 2006 opinion for this premise:

When a trial court refuses to give an instruction proffered by a party that is a correct statement of the law and which is supported by adequate evidence in the record, this action, without more, is sufficient to preserve the issue of whether the trial court erred in refusing the instruction.

Today’s opinion emphasizes the phrase without more and continues that the proponent “need not ‘expressly articulate’ the evidentiary basis for the instruction because the trial court has already heard the evidence and can evaluate its application to the instruction.” That means that even though the defense discussed only the other-medication explanation when arguing this jury instruction, the trial court had to evaluate the evidence for itself to see that the slip-or-trip explanation would justify the instruction.

My sense is that circuit court judges won’t like this holding, because it could empower a party to misdirect the court’s attention in jury-instruction arguments, holding a second basis in reserve in case of a bad verdict. (I’m not saying that that’s what happened here; merely that this is the logical conclusion of today’s ruling.) Under this approach, proponents don’t even have to argue to the circuit court the basis for their tendered instructions. It’s the court’s responsibility to consider all of the evidence and make that judgment call on its own.

You may wish to view this doctrine as an exception to the contemporaneous-objection rule, which is normally a fire-breathing dragon that crushes appellants’ dreams. In virtually all other contexts, it’s up to the litigant to argue a given appellate point first in the trial court. That isn’t true with jury instructions.

This decision reinforces two of my previous conclusions about appeals here in our fair Commonwealth. First, if you’re looking to uncork a jury verdict, the first place to start looking is the instructions. That’s because in evaluating a refused instruction, the appellate court views the evidence in a light most favorable to the proponent of the instruction. (This is one of only two instances I can think of – the other is where a court sets aside a verdict – where an appellant gets a favorable view of the evidence.) The second conclusion is my previous observation that nowadays the Supreme Court of Virginia is the place where large tort judgments go to die.

Justice Mann pens today’s opinion for a unanimous court. This is the second decision announced from appeals argued in the February session, just five weeks ago.


Criminal law

The doctrine of approbate-and-reprobate, a species of waiver, gets a thorough discussion today in Commonwealth v. Holman. Events began when the angry defendant fired a shotgun at an open window, badly wounding his girlfriend. That got him indicted for several felonies; the most serious of those was aggravated malicious wounding, carrying the possibility of a life sentence.

The defense strategy at trial was to contest only one issue: whether the defendant fired the gun with malice, instead of accidentally or recklessly. The defendant pleaded not guilty to the other crimes but didn’t contest them when the evidence came in. One of these, use of a firearm in the commission of a felony, is the topic of today’s opinion.

The strategy worked; at the close of the defense evidence, the circuit court reduced the aggravated malicious wounding charge to unlawful wounding. The defense snapped that up, immediately pleading guilty to the lesser charge. As today’s opinion reports events,

The circuit court stated that the defendant had “stipulated to the other charges” even though he had entered a plea of not guilty. Defense counsel responded “[y]es, sir.”

The court thus convicted the defendant on all counts, fixing punishment at a total of 15 years, with 10 to serve. The defense lawyer confirmed at the sentencing hearing that the defendant had pleaded guilty to all counts.

Except he hadn’t. This matters because the use-of-a-firearm charge enumerates specific companion felonies to which it applies, and unlawful wounding isn’t one of them. On appeal, the Court of Appeals reversed this one conviction, applying the ends-of-justice exception to the contemporaneous-objection rule and declining to apply the approbate-and-reprobate doctrine.

The justices are havin’ none o’ that; the Supreme Court unanimously reverses and reinstates the convictions and the full sentences. In six pages of detailed analysis, Justice McCullough explores the origins and contours of approbating and reprobating, noting that this isn’t the same as a procedural default. Ends of justice may help a convicted defendant to overcome a conviction where his lawyer failed to object or raised an issue too late, but it doesn’t cover intentional strategic choices like this one.

Ordinarily when a court convicts a defendant of something that isn’t a crime, or otherwise isn’t within the reach of a criminal statute, that judgment is void. Today we learn that when a defendant specifically asks for a given outcome, he waives an objection like that for appeal.

This case, too, was argued in the February session. I count seven undecided appeals among those already argued – one from January and six from February. The April session, starting in 12 days, will add six more.




(Posted March 28, 2024) The weather here in Tidewater is dreary; an enduring, driving rain with no meaningful sign of Apollo all day. But it’s still a happy day because several men around the continent will utter the priceless phrase “Play ball!” today. My beloved Dodgers entertain a certain avian group from eastern Missouri. I know better than to start dreaming of the postseason already; I’m just delighted that baseball is back.

I’ve long thought that Opening Day should be a national holiday. I infer that The Robes have declared an informal one, because we have nothing new today out of the Supreme Court of Virginia. Let’s take a look at some other happenings in our field.


Whither 302 Va.?

Some of us dinosaurs still subscribe to print editions of Virginia Reports. I prefer to read cases in a physical book, and you have to admit that a bookcase full of the reporters looks prettier than its cyber-parallel, whatever that is.

In addition to getting the hardbound volumes, we also receive their paperback predecessors: the advance sheets. These are preliminary publications that give you an early look at the reporter’s paginations for the reported cases. Traditionally, three sets of advance sheets make up a single hardback volume.

I’m now wondering whether the most recent sets of advance sheets have fallen into the Appellate Bermuda Triangle. My office has received the hardbound volume 301 of Virginia Reports, but no advance sheets for anything since. The most recent reported decision we have is Arch Insurance v. FCVbank, 301 Va. 503, decided December 29, 2022 – fifteen months ago.

Several years ago, the former publisher of the advance sheets abruptly stopped publishing them. We subscriber/dinosaurs were left in limbo for a time, but Thomson Reuters picked up the contract and has published them ever since. Now I’m wondering if something comparable has happened.

Before posting a bold note of warning like this, I decided to check another source to be sure. I ran a Lexis search for “302 Va. 1” but got no results. That tells me that there’s no official-reporter pagination yet for the first case decided in 2023, Forness v. Commonwealth, handed down January 19 of that year. Even if you solely use online legal research, the best you can do for that case now is to cite it as 882 S.E.2d 201.

If any of my readers are heading off on a cruise to Bermuda anytime soon, I’d be grateful if you’d keep an eye out for those missing advance sheets. Tell them I miss them.

Update April 2: Never doubt the potential for a well-timed VANA post to shake up the powers that be. Four days after I posted this note, Advance Sheets #1 for 302 Va. arrived. I, of course, take full credit. Sure enough, the volume begins with Forness; it includes the first 11 published decisions of last year, running through Suffolk School Board v. Wahlstrom, decided April 27, 2023.

This raises the question of how many months’ worth of decisions volume 302 will contain. In recent years, we’d get two hardbound volumes per year. My best guess right now is that 302 Va. will cover all 28 of the published opinions released in 2023. How rare is it to get a full year’s’ worth of opinions in a single volume of the reporter? Once upon a time — specifically, from the late 1950s through 1981 — it happened quite frequently But starting with 222 Va., the reporter segregated a year’s worth of rulings into two volumes. A peek at the hardbound volumes on the library shelf will tell you why: The books were getting so large as to be unwieldy. Volumes 219 through 221 averaged over 1,200 pages per book.


First Quarter D-GI

New year; new David-Goliath Index. The quiet passing of today’s opinion day means that we have three months’ worth of decisions in the books. (Given the note immediately above this one, I use the term books loosely.) It’s time to see how our familiar litigation adversaries have done in the first quarter.

Among the published and unpublished decisions of the Supreme Court this year, I count three wins for our Davids and five for our Goliaths, for a very preliminary D-GI of 37/62. I offer three observations about this: Goliath is still winning most of the SCV appeals; David is doing a little better than usual, in that he isn’t losing quite as often as before; and you can’t draw any meaningful conclusions where the sample size is just eight decisions. This last point essentially erases the first two. Let’s see how things develop as the year unfolds.


State court stats are out

I am, as usual, very grateful to the clerks of the two Virginia appellate courts – Muriel Pitney in the SCV and John Vollino in the CAV – for sending me copies of the courts’ year-end statistical reports, now hot off the electronic presses. For a stats geek like me, this is a wonderful trove of analytical goodies. I’ll take the time to go through them, glean what I can, and post a plain-English report here in the coming days.