(Posted February 18, 2020) Appellate lawyers are always on the lookout for groundbreaking decisions on which orders are appealable. Today, a panel of the Court of Appeals of Virginia hands down a published opinion that interprets some tricky statutory language relating to family-abuse protective orders. The case is Jacobs v. Wilcoxson, and comes from the City of Richmond.

Wilcoxson petitioned the local JDR court for such a protective order against Jacobs. The court issued a preliminary order after an ex parte hearing, and scheduled a hearing on a permanent order for fifteen days later. At that hearing, a judge ruled that the petitioner hadn’t made out a case, so the court denied the petition.

Wilcoxson appealed, and a circuit-court judge reached the opposite conclusion; he issued the order, granting relief for two years. Jacobs argued unsuccessfully in a motion to vacate that the JDR court’s denial of the petition wasn’t appealable.

On appeal, the CAV today takes up this relevant language from the governing statute:

From any final order or judgment of the juvenile court affecting the rights or interests of any person coming within its jurisdiction, an appeal may be taken to the circuit court within 10 days from the entry of a final judgment, order or conviction and shall be heard de novo…. Protective orders issued pursuant to § 16.1-279.1 in cases of family abuse … are final orders from which an appeal may be taken.

Jacobs agreed that if the statute contained only the first sentence, the appeal would be proper. But he urged that the second sentence is the one that applies directly to protective-order appeals. And that sentence allows an appeal only after the JDR court issues a protective order; not when it refuses to do so.

In a short opinion, Judge AtLee spells out that the better reading of the statute is that appeals are permissible regardless of the JDR court’s ruling. The court today rules that the second sentence should be viewed “as expanding, rather than limiting, the scope of the statute.”

But is a protective order final? By its nature, the issuing court retains continuing jurisdiction to shepherd its enforcement, and to modify it. In theory, an order isn’t appealable until it’s final. But the legislature has built appealability into the statute, by the plain language of the second sentence above. The court also observes that the narrower construction that Jacobs urges would lead to an anomalous result, where one party only could appeal a loss. Because the statute is designed to protect victims of domestic violence, the proper approach it permit these appeals.





(Posted February 13, 2020) The Supreme Court of Virginia hands down two published opinions this morning.


Medical malpractice

Tahboub v. Thiagarajah is a wrongful-death action filed by the personal representative of an obstetrical patient. The patient had experienced complications in an earlier pregnancy. Her doctor placed a suture in her cervix and left it there after a Caesarean delivery.

When she became pregnant again two years later, the doctor couldn’t find the suture in an ultrasound, so he placed another one there. A week and a half later, the patient called and reported pain and a fever, for which the doctor prescribed ibuprofen and a hypertensive drug. He didn’t direct the patient to come in for an examination.

Four days later, the patient again called and reached another doctor, who was on call for the first one. She told him of continued pain and fever, but he again prescribed only the same two drugs plus acetaminophen. When she called again later that day, he directed her to go to a hospital.

When she arrived, the nursing staff found that she had significant symptoms. A nurse called the first doctor and described the patient’s condition, but he didn’t go to the hospital to meet her and didn’t give the nurse any instructions. The patient’s condition dramatically worsened an hour later. The doctor eventually came to the hospital to find a patient experiencing what today’s opinion calls multiple organ dysfunction.

Doctors immediately performed a C-section delivery, but the strain was too much for the mother; she suffered major bleeding and died five days later. Her personal representative sued the original doctor and the on-call doctor, claiming that a timely examination (instead of telephone conversations) would have revealed the danger and saved the patient’s life.

At trial, the doctors moved to strike the plaintiff’s evidence, claiming that that evidence didn’t establish causation. The trial judge agreed and dismissed the lawsuit.

Today, the Supreme Court unanimously reverses and sends the case back for trial. In deciding a motion to strike, trial courts “must rule based on the presumption that the jury will believe all the evidence that the plaintiff adduced.” Here, plaintiffs’ experts testified that the standard of care required the original doctor to see the patient in-person upon her report, ten days after insertion of the suture, that she experienced pain and a fever. That consultation, they opined, would have saved her life. They also testified that the on-call doctor should have had the patient come in immediately when she reported continued problems four days later. That, too, probably would have saved her.

That’s enough to get to a jury, the court rules today. While defense evidence might impeach the experts, and might convince the jury that the patient’s telephone report was too vague, those issues are for the jury to decide.


Criminal law

The court today takes up a question of first impression: Can felony hit-and-run serve as a predicate offense for felony murder? The case is Flanders v. Commonwealth, and originates right here in Virginia Beach.

In the predawn hours one September day in 2014, a utility crew halted work as a pedestrian passed through the work zone. He likely waved a greeting to them and walked on. A few minutes later, a Dodge Durango SUV approached the work crew abruptly. The driver asked the startled crew to call 911, explaining that it looked like someone had been run over behind a nearby school. She added that the person was bleeding to death, then sped away quickly, leaving the crew and the injured man behind.

A supervisor drove in the direction she had indicated and indeed found a man, the same pedestrian he had seen moments before, lying gravely injured near visible tire tracks. The man said he had been hit. He later identified himself to an ambulance crew when it arrived, but medical treatment was unavailing; he died a few hours later of his injuries.

Police discovered the victim’s personal effects, including a cell phone. They were able to access his call log, and found a short phone call, an hour before the incident, with a woman named Flanders. As it turns out, Ms. Flanders drives a Durango. Investigators spoke with her and learned that she knew the victim; they had been friends for years and had once lived together. But she insisted she had nothing to do with the incident; she said she had last seen him a few days earlier.

In these days of DNA analysis, it isn’t so easy to evade the law; forensic analysis of Flanders’s Durango showed the victim’s blood on the front bumper. A grand jury indicted her for felony hit-and-run and felony murder.

At trial, Flanders moved to dismiss the latter charge, arguing that the hit-and-run charge wasn’t a sufficient foundation. The learned judge didn’t bite, finding Flanders guilty of both charges. In announcing his ruling, he offered a nod to the defense argument, self-deprecatingly forecasting that the defense offered “a very interesting legal conundrum that minds wiser than mine will have to sort out …”

As of today, ten wise minds – three in the Court of Appeals and seven in the Supreme Court – have considered the matter, and all ten have concluded that the humble trial judge correctly solved this conundrum. The Supreme Court analyzes generations of caselaw to conclude, first, that felony hit-and-run can serve as the predicate offense for felony murder, and second, that the evidence here showed that the death was within the res gestae of the hit-and-run. In the latter analysis, the court utilizes the “time, place, and causal connection” test to rule that there was a real nexus between the hit-and-run and the death. The court accordingly affirms the convictions.





(Posted February 6, 2020) Today is noteworthy for three reasons. It’s the exact midpoint of winter, meaning that starting tomorrow, we’re closer to the first day of spring than the last day of autumn; it’s Babe Ruth’s birthday, for those baseball fans among us; and it’s opinion day in the Supreme Court. Today the justices hand down one short opinion in a criminal appeal, Taylor v. Commonwealth, involving a prosecution for identity theft.

The facts are simple: Taylor was convicted of breaking into an apartment and stealing various things including a checkbook. Shortly after the theft, she appeared in a bank with a check made out to herself and sought to cash it. A teller thought the handwriting was suspicious, so she called the account owner. By the sheerest coincidence, local police were at the owner’s home, investigating the break-in. “Here, talk to the nice officer,” the owner told the teller.

Something convinced Taylor that remaining in the bank wasn’t in her long-term interest; she bolted. But she had already given the teller her own identification — what, you expected her to be a rocket scientist? — so it was an easy matter for the police to catch her.

A grand jury indicted Taylor for plenty of offenses, including breaking and entering, grand larceny, forgery, attempted uttering, and attempted false pretenses. The prosecutor also secured an indictment for attempted identity theft. At first blush, that charge doesn’t seem to fit; Taylor never attempted to convince anyone that she was the account owner; just that she had a check from that owner. That’s what the forgery, grand larceny, and false pretenses charges were for.

But the circuit court read the identity-theft statute differently and refused to dismiss that count. It convicted Taylor of all the listed charges after a bench trial. The Court of Appeals affirmed, but the Supreme Court agreed to take a look at the identity-theft conviction.

Today, in a unanimous opinion written by Senior Justice Millette, the justices affirm. The court finds no ambiguity in the statute, which proscribes using another person’s identifying information to obtain money. It gives several examples of identifying information, such as name and bank-account number, plus several other data points. Taylor argued that she didn’t use the victim’s identity; she made the check out to herself and gave the teller her own driver’s license. That is, she never held herself out as someone else.

The Supreme Court reads the statute more expansively. There was, after all, identifying information about the victim printed on the check: her name and bank account number. To cash the check, the bank would have to use, at a minimum, the account number to know which account to debit when cashing the check. Because Taylor unambiguously used a check containing that information, her conduct fits within the statute.

In a closing paragraph, today’s opinion notes that perhaps this isn’t the precise conduct that the statute was intended to reach. If that’s the case, it’s up to the General Assembly to modify it; courts can’t judicially amend statutes even if they think the legislature meant to do something else.






(Posted January 22, 2019) It’s been quite a while since I’ve addressed the topic of oral advocacy. While there are numerous speaking styles, and no one of them is definitively correct, here are some notes on the way I do things.

Part 1 – How to Speak

This section is simultaneously breathtaking in its scope and dangerous in its connotation. The topic of how to speak is immense; the study of rhetoric and oratory goes back at least to Aristotle and Demosthenes. And tackling the task of telling people – educated people, at that – how to do something as basic as talking risks giving offense. After all, while we may realize that we’re not very good at painting portraits or singing or ballet, everybody perceives that he or she can talk well. You do, right?

As for the scope, I won’t try to be comprehensive here. I couldn’t possibly set out in an essay everything I’ve learned about public speaking since I was 13 years old and received my first training in it. It’s far too voluminous, and besides, there are some things that I don’t even realize that I know; they just come naturally after a lifetime of practice.

As for giving offense, please be assured that I’m not here to insult anyone. One of my primary goals in publishing this website is to help you to become a better appellate advocate. But even professionals who are highly skilled in their chosen craft may not know how to convey ideas clearly, forcefully, and persuasively. Here are a few basic suggestions.

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(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.

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