REPORT ON APPELLATE DEVELOPMENTS

(Posted March 9, 2024) A quiet week at Ninth and Franklin gives us time to once again scan the appellate landscape for news.

Legislature fills appellate seats

On Thursday, the General Assembly elected two new judges to seats on the Court of Appeals of Virginia. Judge Bob Humphreys retired at the end of 2023 and Judge Glen Huff will do the same at the end of this year. That, in case you’re keeping score, would deprive the Commonwealth’s largest city, my beloved Virginia Beach, of 100% of its representation on the court. Fortunately, it’s not to be: The legislature has chosen Circuit Court Judges Steve Frucci (also from Virginia Beach) and David Bernhard (Fairfax) to fill the vacancies. Judge Frucci will start his new job later this month, while Judge Bernhard will step up next January. I know both men and am very happy at this news.

Appellate bonds in the news

Level with me: Did you ever expect to see a header like that? Suspending bonds generally occupy one of the dusty sub-basements of public attention, far from the public eye. We appellate geeks know about them, but the knowledge that we have is arcane by public standards.

These days I find that I’m answering questions from my pals about the purpose, effect, and workings of these bonds. The bonds are in the news because of former President Trump, of course; he has recently suffered adverse monetary judgments aggregating to nearly half a billion dollars. I read yesterday that he has secured a bond for the smaller of the two judgments, posting one with a penalty of around $90 million. The larger judgment, in the $400 million range, will present greater difficulty, in part because few bonding companies will be willing to take a risk like that.

In one important respect, the bonding situation would be different if the judgments had come down in our fair Commonwealth. Code section 8.01-676.1(J) caps suspending bonds at $25 million. That’s per judgment, of course, so if the two cases had both arisen in Virginia, he’d still be on the hook for $50 million worth of security. But not a half-billion. 

My best guess is that this limitation was part of Aunt Virginia’s efforts to be seen as a business-friendly state. The Trump judgments illustrate the weakness of this provision, perhaps unforeseen by the 2000 General Assembly that inserted the cap. A judgment creditor should be entitled to adequate security if the debtor wants the privilege of appealing without paying the judgment (or being subject to execution). The Virginia system would allow a judgment debtor in this situation to bond off a tiny portion of a huge judgment, giving the creditor no security at all for the remainder of what the trial court says it’s entitled to recover.

A bittersweet moment

A week and a half ago, I appeared in the Supreme Court of Virginia to argue a merits case. It was a medical-malpractice appeal about a refused jury instruction. The primary questions are preservation of the appellate issue and whether the subject of the offered instruction was covered by other instructions.

As appeals go, that doesn’t sound all that unusual. It’s significant for me because, in all likelihood, that will be my last argument to the full court before I call it a career early next year. I foreseeably may rise to argue a petition or two to writ panels later this year, but given the time it takes for an appeal to mature to a merits argument these days, I can’t see another one on a short-enough horizon.

I owe a debt of gratitude to the Chief Deputy Clerk, Basil Tsimpris. He was kind enough to place the case in a privileged position, the last case of the day. That meant that I got to experience the honor accorded to last-case advocates: The justices came down from the bench to shake hands with counsel at the end of the argument. The other two appellate courts in Richmond — the Court of Appeals of Virginia and the Fourth Circuit — do that after each oral argument; but the justices do so only at day’s end.

As I’ve mentioned often, the justices are all very pleasant people, and they were enormously gracious to me when they greeted me on this occasion. For a very long time, I’ll treasure the memory of those two or three minutes.

After the justices filed out, heading back toward their robing room, I packed up my satchel and then stepped briefly back to the lectern, lingering for a moment. I thought of the roughly two dozen justices before whom I’ve appeared over the years — many of them even then gazing down wordlessly from the walls beside and behind me — and remembered their consistent courtesy to me.

The six square feet behind that lectern — a space roughly three feet wide by two feet deep — really are the best place I know to practice law.