Court wants to hear more in defamation case

By Deborah Elkins, Virginia Lawyers Weekly – 9/23/2013

The Supreme Court of Virginia wants to hear more about a defamation case argued during last week’s court session.

The court changed its mind about hearing appellate issues raised by The Virginian-Pilot in a school administrator’s appeal of a decision setting aside a $3 million jury award against the newspaper. Phillip Webb claimed he was defamed by a December 2009 article about Webb and his son, a student in the same school system. Webb alleged the newspaper falsely implied that he had improperly used his position to obtain more lenient discipline for the son.

One day after oral argument, the high court issued a one-page order granting two of the paper’s assignments of cross-error the court initially rejected last spring. The justices now want to consider whether the trial court erred in finding that the newspaper article created a defamatory false implication, and in holding that a defendant need not intend the defamatory implication for purposes of determining the existence of actual malice.

Reprising their roles: Norfolk lawyer Conrad Shumadine for the Pilot, and Jerry Denton, of Virginia Beach, for Webb. Both lawyers are experienced appellate advocates, but neither has faced this kind of order previously.

Virginia Beach lawyer Steve Emmert, who also argued two Supreme Court cases last week, first flagged the Sept. 12 order as an unusual example of “justice’s remorse.”

Shumadine said he is “delighted” to respond to the court’s request for more briefing and argument, and Denton likewise welcomes another chance to make his client’s case.

“The issues are subtle in the case and it’s not exactly shocking” that the court may want to delve more deeply into the matter, according to Denton.

The court has set the case for additional argument during the October session, which begins Oct. 28.