[Posted June 25, 2009] The appellate field has been active over the past few days. Here’s a report on several items of interest. Be sure to read all the way through, as there’s a major news item at the end:

1. New symposia planned. The Virginia State Bar’s Appellate Practice Committee has scheduled the latest in its series of appellate symposia. The next one will be on Monday, July 13, from 3:00 to 5:00 pm in the courthouse in Alexandria. The symposium is entitled, “Everything You Need to Know about Oral Advocacy in Virginia’s Appellate Courts.” The timing, topic, and location are no accident; the Supreme Court will convene writ panels in the same building the next day, so anyone with a writ argument on July 14 can go in for a quick brush-up on oral argument techniques. The program will feature a moot argument to illustrate the principles you’ll learn. If you’re interested – and you should be, especially since it’s free and offers CLE credit – e-mail APC chair Monica Monday (Monica_Monday@gentrylocke.com). You do need to register. By the way, the APC plans to conduct a similar program in Richmond on October 20, again right before writ panels convene

2. A subtle name change. Careful readers of the note above will have discerned a new name for the former Appellate Practice Subcommittee; the Litigation Section finally agreed to change the designation to Committee, as I had requested a number of times when I was the APS chair. (If you’re interested in joining, you can contact Monica for that, too.)

3. Some familiar cases resurface. The major media have reported the return to the limelight of two cases that have received substantial recent attention. (A) On Tuesday, the Court of Appeals of Virginia releases the latest decision in the continuing saga of Lisa Miller, Janet Jenkins, and their adopted daughter, now aged seven. The former couple have been locked in a dispute over the enforceability in Virginia of a Vermont court order governing custody and visitation rights relating to the little girl. Last year, the Supreme Court affirmed a CAV ruling in favor of Ms. Jenkins, but Ms. Miller, undeterred, tried again. This time, she filed a declaratory judgment action, pretty much simultaneously with Ms. Jenkins’s motion to register the foreign order. In Miller v. Jenkins, the court finds that the latter proceeding furnishes a suitable medium for resolution of the dispute, so a DJ action isn’t available. The opinion notes, perhaps ominously, that the other proceeding is apparently headed for appellate review separately, so we haven’t seen the end of this case yet. (B) On Wednesday, a sharply divided en banc Fourth Circuit declared Virginia’s late-term abortion ban (which abortion opponents have termed “partial-birth abortion”) to be constitutional, in Richmond Medical Center for Women v. Herring. The vote was as close as they come – 6-5. This case points out the extraordinary significance of the short-staffed Fourth; no fewer than four seats on that bench remain vacant. Who knows how the case would have turned out if there were actual judges in those empty chairs? In any event, the case seems destined for certiorari review, at a minimum, in Washington.

4. And one more encore. This one didn’t make the mainstream media. Two years ago, the Supreme Court decided Settlement Funding v. Neumann-Lillie (274 Va. 76), in which we learned of the mixed fortunes of a lottery winner. Neumann-Lillie won a game that awarded her $1,000 a week for life, but her good luck turned when she entered into what I, at least, perceived as a very bad bargain with a lender who gave her a loan of $29,000 in exchange for $500 a month spread over nearly 15 years. I’ll do the math for you; it’s $89,000. When the prizewinner discovered what she thought was usury, she cut off all payments; that triggered even more astonishing penalty and interest demands, such that at trial, the lender claimed that it was owed over a quarter million dollars. It responded to the usury defense by pointing out that the loan documents specified that the agreement was to be governed by Utah law. Guess which is the only state in the Union that doesn’t cap interest rates?

Neumann-Lillie won in the trial court, getting an award of over $70,000. In 2007, the Supreme Court reversed the award in her favor and remanded for further proceedings. In those proceedings, the trial court reaffirmed its separate ruling that Neumann-Lillie was entitled to a setoff of $128K against all sums she owed the lender; since the lender was entitled to less than that amount, it collected nothing. The lender appealed again, and last Friday, June 19, the Supreme Court affirmed with a painful lesson for appellate advocates.

In its first appeal, the lender had not assigned error to the setoff finding. It figured that all it had to do was appeal the underlying finding that Neumann-Lillie was entitled to damages, and then the setoff ruling would go away of its own accord. But it doesn’t work that way, the Supreme Court now rules, by unpublished order. That setoff ruling, however erroneous it was, became the law of the case when the lender didn’t appeal it.

According to the order, the ruling was plenty erroneous. The setoff was calculated according to the Truth in Lending Act, and that act limits damages to the less-than-princely sum of $1,000. The lender pressed the justices to reverse anyway, citing authority from other jurisdictions for an exception to the law-of-the-case doctrine (which applies “when the prior decision is clearly erroneous and application of the doctrine would work a manifest injustice”).

The Supreme Court was having none o’ that; it assumes without deciding that the exception applies, and finds that there would be no manifest injustice here. Both parties knew of the error when the lender appealed the first time, and it simply elected not to press that error before. So in the end, Neumann-Lillie gets a resumption of her monthly lottery checks, and the lender walks away with nothing beyond the $13K it had previously received (less a whole lot of legal fees, the cynic might add).

As this order is unpublished, any of my readers who want a copy may contact me for one.

5. I’ve saved the biggest news for last. Today, the Supreme Court of the United States hands down a decision that will dramatically affect the way many criminal trials are conducted. In Melendez-Diaz v. Massachusetts, the high court holds that a certificate of analysis (which can arise, for example, in a drug case or a DUI case) is testimonial hearsay, so Crawford v. Washington requires confrontation by the analyst. This ruling effectively overrules last year’s decision by the Supreme Court of Virginia in Magruder v. Commonwealth, in which a bare majority of the court held that such certificates were admissible even over a Crawford objection. Until now, prosecutors could proceed against drug or drunk-driving defendants without hauling the analyst to court. This ruling will make it substantially more inconvenient for the government to prosecute such crimes, especially in remote locations of the Commonwealth. It will also produce challenging decisions on motions to continue trials, where the prosecution has brought a Forensic Sciences analyst to court, perhaps several hours away from her office. You can see my analysis of Magruder here (you’ll need to scroll down to the criminal law section).