A QUICK UPDATE ON RECENT DEVELOPMENTS
Here is a report on a few recent items of interest in the appellate community:
Two views of the statute of limitations defense – The Fourth Circuit hands down two decisions, one Friday and one today, each dealing with statute of limitations defenses, with very different results. On Friday, a panel of the court reverses a district court’s decision to invoke the statute sua sponte in a default situation; the case is Eriline Company v. Johnson. There, the district court determined, upon reviewing the plaintiff’s documentation in support of its application for a default judgment, that the case would be barred by the applicable statute, so it did not have jurisdiction to enter judgment for the plaintiff. The Fourth reverses, holding (predictably, one might argue) that the statute is a personal defense that can be waived if not timely raised, so it cannot be jurisdictional. Well, if it’s so predictable, you ask, why did it come out the other way below?
It turns out that several defenses can be raised by the court on its own motion. Those include res judicata and an abuse of the court’s process. It further turns out that even the statute of limitations can be raised by the district court, but only in two specific circumstances: Habeas corpus petitions, and in forma pauperis suits. In both of those, the court notes, the district court is charged with the responsibility to examine pleadings for legal merit before accepting them. This wasn’t one of those circumstances, so the case is remanded, presumably for entry of that long-elusive default judgment.
On the other side of the coin, the court affirms another district court’s decision not to allow an amended filing because the new claims raised would obviously be barred by the statute. If you think that’s inconsistent reasoning, read on.
The case is Bridges v. Maryland State Police, a suit originally filed as a class action proceeding alleging racial profiling by Maryland troopers. Because I always have the best interests of my loyal readers in mind, I am not about to impose the tortuous procedural history of this case upon you. In fact, I can guarantee that if you read the case, you will get a headache. There are already at least four headaches attributable to this case (those experienced by Chief Judge Wilkins, Judges Niemeyer and Williams, plus my own), and I do not wish to multiply the agony. The opinion contains three insightful statements about the nature of the proceedings below:
“Sorting out the procedural morass created by these proceedings . . .”
“We address first our jurisdiction, noting that the issue is entangled by procedural maneuvering and mistakes.”
“Setting aside consideration of the unacceptable distorting and manipulating of judicial procedures that we have witnessed here so that we might reach the substance of the would-be plaintiffs’ appeal . . .”
The comments illustrate that Judge Niemeyer, the author of today’s unanimous opinion, has a marvelous talent for understatement. The case is complicated in the extreme, but the decision generally revolves around a few key rulings: (1) If you want to appeal a court’s ruling, you must do so within 30 days. (2) If a court denies a motion to intervene, that is a final order for the purposes of appeal. But it’s the intervenors, not the already existing plaintiffs, who have standing to object. (The original plaintiffs are already in the suit, so they have no right to insist that others’ rights to intervene be protected.) (3) If a prospective plaintiff waits for a class certification without filing his own suit, in reliance upon the rule of equitable tolling in such suits, he MUST pay careful attention to what the class movants are doing. Where, as here, they abandon the intention to press a class action suit, the statute of limitations resumes ticking for everyone who’s not already in the suit. That happened here, and operates to bar the addition of several new entrants into the litigation sweepstakes, eight or more years after the events complained of.
Maybe chiropractic evidence isn’t so bad after all – The Supreme Court decides by order one case that was argued in the March session. In Stamey v. Gleason, the court takes up the question of what kind of evidence is required to support a jury instruction for future damages in a vehicular context.
The facts of the case are set out with very little detail, since the appeal is limited to one issue alone. I infer from those facts reported that this was a rear-impact collision; the defendant admitted liability. In a trial on damages alone, four experts testified, one of whom was the plaintiff’s chiropractor, who was the only person to testify about anything that could be construed as future damages. The defendant let him testify, but when it came time for argument on jury instructions, he objected to anything about future damages, arguing that plaintiff had to come up with a medical doctor to support such a claim. When pressed for authority on this objection in the trial court, the defendant’s lawyer answered, “That’s just always been my argument, and I’ve always won on it.”
There goes his perfect record; the Supreme Court hands him a loss on Friday, holding that the chiropractor’s testimony “had an adequate factual foundation and was not speculative.” As such, the issue of future damages was properly given to the jury, and the plaintiff’s verdict is upheld.
As the case was decided by unpublished order, it does not appear on the court’s web site. Readers of this site who would like a copy in Word format may e-mail me, and I’ll send it right out.
New post on judicial biases, real and perceived – Readers of this site know that I highly recommend reading Have Opinion, Will Travel, authored by an anonymous appellate jurist “somewhere in the southeastern US.” There, my cyber-colleague has posted a fascinating essay on things that can affect a given judge’s view of a given case, from outright bribery (HOWT suggests, inter alia, drawing and quartering such judges) to deciding cases involving lawyers with whom the jurist is friendly. The latter category is described as “more subtle.” The entire essay is well worth reading; it was posted yesterday, March 19, at 4:00 pm, so you may have to scroll down a bit, depending on when you read this. I should also mention that HOWT has been busy with some “site improvements” that greatly add to the utility of his site; he now posts direct hyperlinks for each state and federal appellate court, in addition to the numerous sites he follows. This is a fine addition to the “blawgosphere,” to adapt the term coined for blogs with legal topics. (The purest of blogging purists will insist that VANA is not itself a blog but a web site. I will not insist that they’re wrong.)
Appellate practice symposium in the works – As I have mentioned previously, I sponsored a pilot program on appellate advocacy last November in Virginia Beach, featuring (1) a detailed focus on one aspect of appellate practice at a time, instead of the usual full-spectrum coverage; and (2) an intentionally small group. I wanted to test whether this format worked, and the results were uniformly positive. I have persuaded the Board of Governors of the State Bar’s Litigation Section (I’m an ex oficio member of the Board) to pick up this idea, and it appears likely to bear fruit as soon as May 2. That’s when the Bar will offer the next in its series of Solo and Small Firm Practitioner Forums, this time in Danville.
I will be on the program, and Greg Lucyk, the Chief Staff Attorney of the Supreme Court, will again join me. We expect to have several other appellate specialists, who will have the opportunity to sit down with trial lawyers and talk shop, to give the trial practitioner a better sense of what makes a good appellate presentation. The topic for this symposium will be oral argument, and is timed to enable Southside lawyers to get exposure to this training, in anticipation of this summer’s visit from the Supremes (the Supreme Court convenes one writ panel per year outside Richmond; this year’s will be in Danville in July). The event is sponsored, as I understand, by the Council of Local Bar Associations. I’ll post more details here when they firm up. One last tidbit: No guarantees, but we may be able to persuade a Robe or two to join us; you’ll want to be there.
More on the courthouse turf war — The Court of Appeals issued an en banc ruling last week in Epps v. Commonwealth, the appeal involving the prosecution of the Sheriff of Petersburg for contempt of court. The case arose in the context of a dispute between the sheriff and the circuit court over building security in the courthouse. The sheriff decided that he didn’t have enough staff to provide security after court adjourned each day, so he pulled his deputies, despite an agreement he had previously reached with the court to provide such security 9 to 5. The agreement was embodied in a court order; hence the contempt charge.
A divided panel of the court rejected all of the sheriff’s grounds of appeal except one; it held that the circuit court judge was not a competent witness to testify about “any matter which came before him in the course of his official duties.” Since the judge testified at trial, the case was remanded. Interestingly, the sheriff sought and obtained en banc review, evidently hoping to obtain complete exoneration. Instead, he managed to get the majority’s holding chiseled in stone (an en banc opinion is the strongest authority for any proposition issued by the court). My earlier coverage of the panel opinion may be accessed here. This case was the #8 story in my Top Ten Appellate Stories of 2005.
Of course, if the sheriff still isn’t satisfied, there is still one more step he can take. If he does, he faces the same daunting odds as do all other appellants in criminal cases. The Supreme Court grants writs in roughly one out of every forty such petitions filed.
New Certworthy available — The DRI’s Appellate Advocacy Committee publishes a quarterly newsletter entitled Certworthy. The Winter 2006 issueis out, and is an interesting read (even if you aren’t a defense lawyer). Thanks to my cybercolleagues at Appellate Law & Practice for the link.