ANALYSIS OF MARCH 14, 2019 SUPREME COURT ORDER
(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March 14, 2019) On a day that we University of Richmond alumni hold sacred, the Supreme Court hands down a single unpublished order.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.