ANALYSIS OF MAY 20, 2021 SUPREME COURT OPINION

(Posted May 20, 2021) The Supreme Court of Virginia issues one published opinion today. It’s concise – just 4 ½ pages – and my sense is that experienced appellate lawyers would see the ruling coming from a mile away.

Kosko v. Ramser is a medical-malpractice action. At trial, the circuit court sustained the doctor’s motion to strike the testimony of a key expert witness for the patient. The patient’s lawyer knew what to do in the event of a full-blown legal emergency like that: “We nonsuit.” The judge has no real discretion to refuse that, so the parties and the jury packed up and went home.

Two days after the court entered the nonsuit order, the doctor filed a motion for costs under Code §8.01-380(C). The court scheduled a hearing on that motion for twenty days after entry of the nonsuit order. At that hearing, the court announced that it was granting the motion and awarding $20,000 in costs to the doctor.

So far, so good; but the doctor’s lawyer made one key mistake. At hearings like this, I’ve always found it wisest to bring a draft order in case the court rules in your favor. That way, if you get a favorable ruling, you can hand up the order for entry immediately.

I believe that that’s good advice generally, but it’s absolutely crucial when the hearing is on the twentieth day after final judgment. Alas, there was no such order in the courtroom, so the judge asked the doctor’s lawyer to prepare and circulate one. By the time the court got around to entering the costs order, five more weeks had expired.

The issue in this appeal is whether the circuit court retained jurisdiction to enter the order more than 21 days after final judgment. A long line of cases stretching back at least to Lyle v. Ekleberry in 1968 – a decision that I discussed in detail here – holds that the trial court retains jurisdiction for only 21 days after final judgment, as Rule 1:1 provides, and only entry of an order that suspends, modifies, or vacates that order can interrupt the running of the 21- days. The circuit court had entered no such order, so its power over the case ended on the 22^nd dawn.

The justices today – unsurprisingly, in my view – unanimously reverse the costs award, holding that there’s nothing in the costs-award provisions of the nonsuit statute that extends the time for entry of the order.

The easy lesson is to bring an order to every hearing, as I advise above. The hard lesson is that you never, ever play around with finality.

I’ll add two quick notes here. First, the court also hands down a published order in a criminal appeal, Rompalo v. Commonwealth. It’s a prosecution for destroying public records, and the Supreme Court, in a one-page order, affirms the Court of Appeals on that court’s reasoning.

Second, in my May 6 essay, I noted that a few appeals remained undecided from earlier sessions in 2021. I had failed to recall that there are still a couple of unresolved appeals argued in the November 2020 session, now more than six months ago. Those folks have had an agonizing wait. But there’s no way for them to hasten this process (unless they want to settle the case); they just have to be patient. Today’s two published decisions both came from the April session, just four weeks ago.

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After I posted the essay above, the Supreme Court posted two unpubs to its website. One is a land-use appeal that hurt my head to try to read, so I’ll just give you the link here and invite you to review it if you wish; it’s Dulles Professional Center Condominium Unit Owners Ass’n v. Fairfax County. Be ready for a mind-numbing alphabet soup of initials and defined terms.

The other unpub is a short affirmance in a habeas appeal, Fair v. Director. Fair, a long-term guest of the Director of the Department of Corrections, filed a petition in Stafford County Circuit, alleging ineffective assistance of counsel. He contended that his lawyer failed to advise him of his right to appeal his convictions, founded on a guilty plea, of second-degree murder, attempted robbery, and companion firearm charges.

The trial court received some unusual evidence: an affidavit from the trial lawyer, setting out his private conversations with Fair in jail after sentencing. The lawyer reported that he did, in fact, inform Fair about this right, but that Fair’s reply stopped him short: “This is God’s will and it’s in his hands now. I’m good.”

The lawyer presumably closed his file, but a call from Fair’s father a few weeks later prompted the lawyer to visit his client again, this time in prison. Fair replied that he would handle his father, and indicated no interest in an appeal. Based in large part on this report, the circuit court dismissed the habeas petition.

Fair then did something that hundreds of folks do: He filed a pro se petition for appeal. But this was that rare case where a panel of the Supreme Court decided to grant the writ. The court then appointed counsel to represent the lucky appellant on the merits.

In today’s order, the court sets out a number of interesting arguments that the appointed lawyer – my appellate pal John Jones – raised. But the court rules today that those arguments don’t fall within the parameters of the single assignment of error crafted by the erstwhile pro se appellant. The justices accordingly decline to address these significant arguments, and summarily affirm the dismissal.

Normally I’d just let a ruling like this pass; it creates no new precedent, breaks no new ground, and really applies only to the immediate litigants. But something about the court’s rationale warrants mention here.

We know from oodles of experience that the Supreme Court regards assignments of error as inflexible, once granted. The court has often taken pains to criticize appellants for filing opening briefs that purport to change the wording of the assignments. Sometimes those changes are benign – correcting an unmistakable and unambiguous typographical error, for example. Those are no big deal. Rarely, a litigant will redraft the assignments after the grant, to try to beef them up or make them more persuasive. That’s always a mistake. In my briefs, I never allow myself to even think of modifying assignments after a grant.

Here’s the problem: My pal John identified some interesting arguments that might conceivably have justified a reversal and remand. But the client, a nonlawyer, wasn’t skilled in legal writing and didn’t know how to phrase assignments of error optimally. John was stuck with the cards he was dealt, making the outcome of the appeal almost a foregone conclusion.

What can be done about this, assuming you don’t like the status quo? Well, first of all, you’re dealing with the Virginia judiciary, where the status quo is usually revered; they don’t usually like changing things up. But if you could change something about the procedure to give these appellants a fighting chance, what would you do?

I can envision two approaches to this. The first is to permit an appointed advocate to rewrite the assignments after a writ grant, to formulate issues that fairly represent the appellant’s best case. In theory, newly appointed counsel could even now move for leave of court to do that, though I believe that the court would almost never grant such relief, citing fairness to the appellee.

The only alternative I can think of is one that’s likely to find even less favor at Ninth and Franklin: a civil Gideon right of counsel in civil appeals. Perhaps you could restrict it to habeas cases, if you aren’t comfortable with giving free lawyers to garden-variety civil litigants who are squabbling over dollars or silverware or the family dog. But where a person’s liberty is at stake, there’s a more compelling reason to consider this approach.

No, I don’t think that a change like that is imminent. Nor will I see it in my lifetime.