(Posted March 21, 2019) On a day when we mark the end of a storied Major League career, we get a single, short opinion from the justices. Anderson v. Warden is a §1983 claim by an inmate who asserts that prison officials violated his due process rights during a disciplinary proceeding that resulted in a $10 fine.

After failing a drug test, Anderson faced administrative charges. Before the hearing, he asked for a chain-of-custody report and a list of his current medications, presumably to examine whether those legitimate drugs could generate a false positive. Instead of giving him what he sought, the hearing officer postponed the hearing and asked the prison’s medical staff if Anderson’s medications could produce an effect like that.

The medical staff said no, and the officer passed this conclusion along to Anderson. The officer then found a violation of regulations and imposed the fine. Anderson exhausted his administrative appeals before filing this civil-rights action, claiming that he should have received the requested evidence for his own defense.

A circuit-court judge sustained a demurrer, but a Supreme Court writ panel agreed to review the case. Today the justices unanimously affirm.

Today’s analysis begins with the Sandin doctrine, which Justice Kelsey describes today:

[P]rison disciplinary proceedings do not implicate a constitutionally protected liberty interest unless they impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

The same rule applies to a property deprivation. Thus the question is whether this deprivation of evidence rises to that level. The court finds that it does not. Due process in this context requires, as relevant here, the ability to present evidence in your own defense.

But in criminal cases, you don’t have a constitutional right to discovery. You have even fewer rights in a disciplinary proceeding. That means that the inability to exercise a nonexistent right can’t be a constitutional deprivation.

If today’s opinion had ended there, this would be an unremarkable conclusion; call the next case. But the court goes on to add a belt to those suspenders, and in doing so will raise more than a few eyebrows.

The court rules, as an independent basis for affirming, that to find a constitutional violation, a defendant must show prejudice, in the sense that the evidence, if admitted, would have affected the outcome of the proceeding. Here’s how the court evaluates this factor in the context of this case:

At no point, either in the circuit court or on appeal, has Anderson proffered what the chain-of-custody report or list of medications would have proven. He has never alleged that the report would have shown a gap in the chain of custody or that it would have provided any other basis for exonerating him of the charge.

In my view, this imposes an impossible obligation on Anderson. The court says to him, in essence, “Because the prison concealed the requested information from you, you can’t prove that it would have helped you. Accordingly, you lose.” Today’s opinion notes that the hearing officer did investigate the drug-interaction possibility and concluded that there was no foundation for it. This ruling means that Anderson has to accept the officer’s word for it. As for the chain-of-custody evidence, the opinion merely says that Anderson hasn’t asserted that there actually was a gap. How could he know?

The finer points of this legal analysis foreseeably may be lost on a layman who reads this opinion. Withholding evidence results in disciplinary action against the accused? The context matters here, as prisoners in disciplinary proceedings don’t get the procedural protections of those defending against criminal charges in the first place. Even so, I believe this opinion would have been easier to swallow without the last two substantive paragraphs.





(Posted March 14, 2019) On a day that we University of Richmond alumni hold sacred, the Supreme Court hands down a single unpublished order. In years past, I frequently reported on unpubs because they weren’t available anywhere online or otherwise published. They’ve been available here for over five years now, so given their limited utility as precedent — see Rule 5:1(f) — I haven’t focused on them.

But today’s order will resonate with trial lawyers everywhere, and I think it deserves mention. In Seeraj-Montague v. Friendly Ride Access, LLC, the justices address a matter that’s usually left to the trial court’s discretion: continuances.

This is an appeal in a personal-injury lawsuit over an automobile collision. It was set for trial and thrice continued by agreement. The trial judge noted on the last continuance that there would be no more continuances except for good cause.

Except two days before the trial date, the plaintiff’s lawyer got very, very sick. I won’t go into detail, on the chance that some of you might be reading this essay while you grab a bite of lunch; let’s just say that it seemed like a good enough reason to me to continue the case. The lawyer sought medical help the day before trial.

The lawyer apprised his opposing lawyer, warning that he might not be able to make it to court the next day. When he woke up early the next morning feeling no better, he called the court and his opponent to apprise everyone of the situation. He gave contact numbers and offered to verify his health status. He told his client to go to court to let the judge know about his situation and request a continuance. Instead, when the client was an hour late, the judge sua sponte dismissed the lawsuit with prejudice.

The lawyer moved the court to reconsider; the defense lawyer filed what I see as a commendable response, acknowledging that the ill lawyer had stayed in touch. I infer that the response didn’t oppose the relief requested, a highly professional reflection on that defense lawyer. The plaintiff’s lawyer assured the court that he was “physically unable to be present at trial.” The circuit court, unmoved, refused relief.

If you’ve ever been in this situation, you’re already feeling for the plaintiff’s lawyer (even if you’re a defense lawyer yourself). Today the justices step in and do what I perceive to be the right thing: They reverse the dismissal and send the case back for trial. It’s noteworthy that the justices review this judgment under the highly deferential abuse-of-discretion standard. The Robes usually leave daily docket-management decisions to their trial-court brethren and sistren, rather than micromanage something that the trial judges will know better.

But this judge crossed a line. Normally in abuse-of-discretion cases, the Supreme Court will spell out the several ways in which a trial court can abuse its discretion. For example, a court may abuse its discretion “when an irrelevant or improper factor is considered and given significant weight.” That’s the Landrum decision from 2011, one of the most frequently cited recent decisions to come down from Ninth and Franklin.

Today’s order doesn’t spell out in which specific way, exactly, the trial court abused its discretion. Even so, it plainly did. The Supreme Court’s rationale is that the judge’s decision “was unduly harsh.” Today’s order notes that the original dismissal may have been appropriate, but once the lawyer laid out the facts in detail in the reconsideration motion, there was only one suitable course of action.

Once in my career, back in the late 90s, I came to circuit court for day 2 or 3 of a multi-day jury trial. I was sick, weak, and unsure of my stamina, but I was determined to do the best I could, and I told the judge so before the jury came out. That judge – Bert Sachs of the Norfolk Circuit Court – looked at me for a moment and then said, “The law gives me discretion in matters like this, and today I’m going to exercise it.” He brought the jury in and told them to go home and return the next day. You can imagine how grateful I was, and remain, for that act of kindness.

In contrast, the “unduly harsh” approach in Seeraj-Montague is one of the things that can give the legal system a bad name. Today the justices unanimously right this wrong. I don’t know if the case will be reassigned on remand.





(Posted March 7, 2019) Today the justices reach far back, ruling on a petition for a writ of actual innocence relating to a crime that occurred in 1975. In In re: Scott, the Supreme Court analyzes DNA evidence that the defendant claims exonerates him.

A jury convicted Scott of rape, based on an identification by the victim. She testified that she was assaulted in her bedroom by a single attacker. She acknowledged that “her drapes were drawn, and the room was dark except for some light from a ‘pole light’ outside. She did not get a good look at the man.”

Scott offered an alibi defense from two witnesses, but the jury found him guilty. The circuit court sentenced him to 14 years in prison. An appeal and a habeas petition were both unsuccessful, and Scott served several years before being paroled.

In the Twenty-First Century – first in 2010 and again in 2017 – the Department of Forensic Science conducted DNA testing on some of the evidence in the case, most importantly a pair of the victim’s jeans and a buccal swab from Scott. Those tests indicated that sperm on the jeans could not have come from Scott; nor were they from the victim’s boyfriend, who was her only consensual sexual partner at the time. This petition followed.

Today’s opinion is just over 24 pages, and almost ¾ of that is a recitation of the facts and the procedural posture. That’s an indication of how fact-intensive these proceedings are. The justices evaluate the petition and conclude, unanimously, that “no rational trier of fact would have found him guilty beyond a reasonable doubt” given the results of the DNA tests. The court accordingly grants the writ and vacates the convictions.

There’s one ruling that will prove useful in future petitions. One of Scott’s witnesses was a forensic DNA expert from a private company. She explained the meaning of the tests conducted by DFS, the official state agency charged with conducting testing. The Commonwealth objected to the testimony, citing last year’s In re Brown ruling, where the justices held that tests conducted outside DFS and not reviewed or certified by the state agency, are irrelevant in actual-innocence proceedings.

The court rules that it may consider Scott’s expert here, because she conducted no testing. She merely commented on and explained the DFS test results. That’s acceptable, and in a hypothetical trial, a jury would certainly be allowed to hear her testimony. Lawyers filing petitions like this in the future should keep this distinction in mind when marshaling evidence.





(Posted February 11, 2019) Tomorrow the Supreme Court of Virginia convenes writ panels for the first time since the calendar turned. Soon thereafter, the Clerk will start delivering good news, in the form of writs, to a select few appellants. And that will trigger the first uses of the new appellate mediation pilot program in that court; the clerk will also send notices to counsel in qualified appeals, letting them know that the program (and its automatic 30-day stay of deadlines) is available.

I reported on the program last year, and Virginia Business magazine ran a story on it this week. Those of us who put the program together will watch with a mix of hope and eagerness to see how many pairs of civil litigants will take advantage of the crop of newly certified appellate mediators. They, unlike those who see the appellate process all the way through to the mandate, will get to resolve their own appeals, on their own terms.

One last point: The Court of Appeals also is participating in this program, though with a very limited number of cases. That program is limited to domestic-relations appeals where the appellate issue is equitable distribution. In case you’re wondering, no one will mediate an appeal over a protective order or child custody.






(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.

CLICK HERE to continue





(Posted December 31, 2018) Virginia’s appellate courts are closed today, so we have time for a quick look at what happened in 2018.


Decisions on the merits

I was worried for a time that we wouldn’t reach 100 merits decisions in the SCV, but the justices put together an admirable late push, handing down 14 published opinions and one published order in December to get us over the mark. The court gave us 74 published opinions and four published orders this year. It also reissued two corrected opinions from last year. Add those to the 24 unpubs we saw n 2018 and you get 104 merits decisions.

For comparison’s sake, in 2017 there were 79 published opinions and 111 merits decisions. In 2016, we got 78 opinions and 125 merits decisions. For those of us who make our living at the appellate lectern, 2018 continues a disheartening downward trend in business.


David-Goliath Index

I promised you this as a recurring quarterly feature. Through the first half of 2018, David (the little guy in appeals, such as a defendant appealing a criminal conviction or an employee suing for wrongful termination) won about one out of three published rulings from the Supreme Court. But his third quarter was a disaster: one win and eight losses. A strong(-er) fourth quarter, where David won eight times and lost 13, brings our final David-Goliath Index to 31/69. That is, the little guy won 31% of the time and the big guy won 69% in 2018. Whether that’s a good sign or a bad one probably depends on which side of the litigation aisle you occupy.


CAV published opinions

By my preliminary count, the Court of Appeals of Virginia handed down 66 published opinions in 2018. That’s the same number as in 2016. I’ll have a fuller analysis of these figures when the court issues its full report in the spring.




(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…