[Posted October 26, 2009] There’s plenty of appellate news to discuss today, so gather ‘round. I’d offer popcorn and Milk Duds, but it looks like you’ll have to supply your own for now.

Revision to Whitehead v. Commonwealth
In June, the Supreme Court caused a few fainting spells in the AG’s Office when it handed down this criminal decision, which included a ruling that the Commonwealth would be barred from pursuing a right-for-the-wrong-reason affirmance in a conviction for receiving stolen property. At trial, the prosecution had contended that the defendant had “constructively received” the property after her boyfriend had stolen it; that argument was based not on her actual receipt, but on the fact that the proceeds from the sale of the items went to pay her living expenses.

On appeal to the CAV, a panel of the court affirmed the conviction. It apparently recognized that the doctrine of constructive receipt gets no love in the courts of the Commonwealth, but it affirmed on the alternate ground of constructive possession. Back in June, the Supreme Court smacked that ruling aside, pointing out that this issue had not been presented at trial. The justices similarly rejected the Commonwealth’s contention that the defendant concealed the property, which is an alternate means of proving guilt. That issue, too, hadn’t been presented at trial (and indeed was first mentioned in the CAV panel’s opinion).

This ruling didn’t sit well with the Commonwealth, which sought rehearing in the case. (I posted an essay back in July about the prosecutors’ unease with the decision; you can access that essay here.) That petition bore fruit last week – sort of. The court issued a revised opinion in the case on Thursday, in which it added language (see pages 12-14) to explain further the basis for its original ruling. Under the Constitution of Virginia, a criminal defendant has the right “to demand the cause and nature of his accusation.” That means, the court rules, that if the Commonwealth wants to urge multiple theories of guilt, it has to do so at trial, and cannot hold any of them back until the appeal.

Last Wednesday, I was one of the speakers in an in-house CLE presentation for the Attorney General’s Office, and I spent a fair amount of time talking about Whitehead, not realizing that the opinion would be revised 24 hours later. The revision seems to confirm the CAV’s take on the doctrine, as expressed in its October 6 opinion in Smith v. Commonwealth. In footnote 10 of that decision, the court theorized that if the arguments address “discrete elements of a crime or separate doctrines of adjudication that require additional fact-finding,” then the prosecutorial argument is waived. Here’s the language from the revised Whitehead opinion, so you can compare:

“Both the constructive possession and concealment methods of proof require presentation of facts that would not be necessary under other methods of proof supporting conviction for receipt of stolen property. The Commonwealth clearly articulated its case for prosecuting Whitehead – constructive receipt. Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible.”

Accordingly, that’s the standard for when the courts will apply the right-for-the-wrong-reason rule, and when they will apply the waiver rule, in criminal cases. Because this decision comes in a criminal case, and is based on a constitutional provision relating to a criminal defendant’s rights, I’d be wary of citing this case as authority in a civil appeal.

Kindness? Really??
Yes, really. Since I published my essay, “The Etiquette of Appellate Practice” (which you can access here) last month, I’ve had a few lawyers look at me as though I had two heads. In that essay, I urged civility as the quality that separates outstanding appellate advocates from the merely-capable ones, and I posited that civility is really “nothing more than applied kindness.” And I earnestly believe in the importance of kindness, even in our profession, secondarily because it makes you a better advocate, but primarily because that’s the only way to live your life. (What, you doubt my sincerity on this point? Try running the word benignitas, which has appeared below the navigation box on this web site since day one, through an English/Latin translator.)

Presumably those skeptical readers think that in the real world (cold, cruel place that it is), lawyers are, and have to be, anything but kind if they are to represent their clients effectively. In my opinion, this reflects at a minimum a poverty of imagination, and at most a knowing disdain of this essential human quality, as far as our profession is concerned. And you wonder why the public holds lawyers in such low esteem.

Yes, Virginia; you can be civil, and even kind, and still be an effective advocate. I’m not the only lawyer who feels this way; my cyber-colleague Jay O’Keeffe over at De Novo posted a comment about civility last Friday. And this isn’t limited to appellate courts; your local juvenile-court judge will be just as impressed with your professionalism in her courtroom as the justices will be when you come into court on Ninth Street in Richmond. This requires doing things that your early mentors may not have emphasized, if you weren’t lucky enough (as I was) to be taught the ropes by someone who appreciates the value of treating your adversaries as friends.

Remember that concept the next time you figure you can make headway in your case by inserting into your next brief a footnote, in which you call your opposing lawyer a buck-toothed, slack-jawed, butt-ugly, dirty-rotten, no-account, lying scoundrel who can’t even spell ethics, much less practice it. Even if he thoroughly deserves it, which I doubt, your invective will backfire by making you look bad instead of him. Jurists at all levels notice when you practice Rambo tactics, and more and more, they’re making their displeasure known.

New unpublished opinion from SCV
On Friday, October 23, the Supreme Court decided by order one of the cases argued in the September session. The new decision is Garlick v. Safeway, Inc. The trial court had granted the grocer’s motion to strike in a slip-and-fall case, reasoning that Garlick had failed to prove how long some water was on a floor before she slipped on it. Garlick adduced evidence that the water “was at the exact location where just moments before a Safeway store employee had been unloading refrigerated cheese from a cart, and that it customarily takes from thirty minutes to two hours to stock cheese.”

That, you will note, still doesn’t show how long the water had been on the floor. Evidently the trial court found that evidence insufficient to get the case to the jury. But the Supreme Court reverses that ruling. It holds that “Garlick’s evidence was sufficient for a jury to reasonably conclude that Safeway’s employee either allowed the water to accumulate on the floor or was standing in or so near water of a sufficient quantity that the employee should have recognized the danger.” That makes it a jury issue, so the case goes back to circuit court for a retrial.

As with all unpublished orders, this one isn’t available on the court’s web site, and it obviously won’t appear in Virginia Reports. If you’d like a copy, let me know and I’ll be happy to send it to you.

Report from the VSB symposium
The most recent in the Appellate Practice Committee’s appellate symposia was presented last Monday, and by all accounts it was a great success. It had the largest attendance of any symposium thus far, and section chair Monica Monday had to cut off registration at about 45, lest it become too large for the facility (generously provided by LeClair Ryan) and for the format. Attendees got the benefit of an exchange of ideas with experienced practitioners and two appellate jurists (Senior Justice Lacy and Judge Humphreys) on what makes some oral arguments magic and others . . . less so. The final half-hour was a mock oral argument, followed by a “debriefing” in which the audience got to hear what was behind the questions and the answers.

If these programs had been offered back when I started handling appeals, I would have made any arrangements necessary to attend each of them. In the past, there have been two symposia per calendar year; if the committee sponsors more next year, you should find a way to attend.

Boyd Graves tables CAV jurisdiction issue
The Boyd Graves Conference met last Friday and Saturday. You probably know that this is a very prestigious gathering of Virginia lawyers, jurists, and law professors who share an interest in civil litigation. (There’s a parallel group that deals with criminal law matters, the Virginia Criminal Justice Conference.) The idea behind the conference is that level heads from all points in the legal spectrum gather to consider whether to recommend changes to the Code of Virginia or the Rules of Court, putting aside their partisan interests in the name of a better legal system. When the conference agrees, by consensus, that a given change should be made, that recommendation should carry a substantial amount of weight with the legislature.

This year, there was only one study committee that dealt with purely-appellate matters – whether to recommend expansion of the jurisdiction of the Court of Appeals. That study committee (which I chaired) unfortunately reached an impasse, and accordingly the Conference effectively tabled the issue for this year. It’s reasonably likely that the matter will be revisited again in a couple of years. In the meantime, the report of the Futures Commission recommends expansion of the CAV’s jurisdiction to all classes of appeals, making it a true court of intermediate general jurisdiction. (You’ll need to scroll all the way down to page 24 to read the recommendation, but trust me; it’s there.) We’ll see how this plays out, as certain segments of the legal community are likely to oppose such a broad expansion.