September 2009

As every trial lawyer knows, judges are human. They will, from time to time, make mistakes. Often those mistakes will manifest themselves as mistaken evidentiary rulings. The judge may exclude a piece of evidence that should have come in, or allow the jury to hear something that it shouldn’t.

Given the volume of evidentiary issues in the course of a normal trial–and the correspondingly vast potential for error–it’s important for both trial and appellate counsel to be comfortable with the process of appealing evidentiary rulings. Thankfully, we don’t need to reinvent the wheel; James Harris has written a fine article on the subject called “Appealing Evidence.”

Here are some of his observations:

1. Preserve the record.

Every appeal starts in the trial court. It is trial counsel’s obligation to make a record that will allow her client to succeed on appeal. This means giving the trial court a fair opportunity to rule intelligently on the evidentiary issue. If you are opposing a piece of evidence, object contemporaneously to its admission; if it is admitted, move to strike it from the record. And mention the specific basis of your objection. You don’t have to give a dissertation on the origins of the hearsay rule, but a simple “Objection, hearsay” may prove quite helpful down the road.

On the flip side, if you are the proponent of a piece of evidence that is wrongfully excluded, object to the exclusion and make a proffer.

And in each case, get a ruling. You must give the appellate court something to work with, or your appeal may well be over before it begins. 
Continue Reading Appealing Evidentiary Rulings

The Supreme Court of Virginia’s recent treatment of assignments of error has been inconsistent, and that makes life difficult for appellants and appellees alike.

Background: Supreme Court’s Crackdown on Assignments of Error Alarms Appellate Practitioners

For the past year or so, the Supreme Court of Virginia has been getting increasingly demanding in its treatement to assignments of error. Steve Emmert contributed an excellent essay on this topic last summer. He pointed out a few specific instances in which the Court had found assignments of error lacking:

  • At oral argument on June 4, 2008, the Chief Justice interrupted an AAG and asked her how her assignment of error was sufficient. The assignment read, essentially, “The trial court erred in excluding the expert testimony of [the Commonwealth’s expert].”
  • On June 10, 2008, the Court entered an order dismissing an appeal for an insufficient assignment of error in a legal malpractice case. The assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.”

This was troubling. Virginia case law has long required an appellant “lay his finger” on an error by pointing out the exact legal ruling he was challenging. That was the standard, and these lawyers seemed to have their fingers in the right place.

Worse, the second assignment of error was almost identical to one granted in 2006, which read: “The trial court erred in granting the defendant’s motion for summary judgment.”

Emmert notes that the news alarmed–even stunned–experienced appellate practitioners, himself included. He determined that the best advice for appellants, which he attributed to an unnamed justice, was to include the word “because” in your assignments of error.

Emmert’s observations match our experience here at the Firm on the Move (TM). For example, we represented the appellees in a recent case where one of the assignments of error cited an evidentiary issue, then stated that the trial court had erred by overruling the appellants’ motion on that “and other grounds.” The Supreme Court reached the merits of the evidentiary issue, but ruled as to the other grounds that it would not address such a general and unspecific assertion of error.”Continue Reading What’s an Appellant (or Appellee) to Do? Supreme Confusion Over Assignments of Error

Tony Mauro at the National Law Journal reports that Justice Ginsburg was hospitalized yesterday after feeling faint in her chambers. She had just received an iron sucrose infusion to treat an iron deficiency anemia. A medical evaluation revealed that she had low blood pressure, which can occur during this treatment. Justice Ginsburg was treated at…

The Fourth Circuit hands down a new First Amendment decision today in Snyder v. Phelps. 

Snyder is an important case for more than purely doctrinal reasons. It involves the  Westboro Baptist Church, a group noted their quaint habit of proselytizing at funerals. The Church sports a website whose address is literally so offensive that I can’t spell it out here, what with this being a family blog. Charming folks, and they seem to have caught the public’s attention. As a result of their activities, about 40 states and the federal government have adopted legislation addressing the picketing of funerals.

Facts

The facts of the case are pretty staggering. Westboro Baptist Church protested the funeral of Matthew Snyder, an enlisted Marine who died in the line of duty in Iraq. The Church showed up at his funeral (at a Catholic church) bearing signs saying things like “Pope in hell, “Thank God for IEDs,” and “Thank God for Dead Soldiers.” The Church also saw fit to post on its website an “epic,” a written piece further trumpeting its, err, message.

Snyder’s father sued, alleging five state-law tort claims: defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy. A jury found the defendants liable for $2.9 million in compensatory damages and a boatload of punitives, which were remitted to $2.1 million. The defendants appealed.Continue Reading Snyder v. Phelps: New First Amendment Opinion from the Fourth Circuit

In Howell v. Sobhan, the Supreme Court of Virginia clarifies the law of proximate cause and gives us a new opinion replete with appellate practice pointers.

The Case

The plaintiff, Esther Howell, went to a gastroenterologist for a colonoscopy. He found 3 polyps in her colon, but was only able to remove one. The gastroenterologist sent Howell in for a “probable subtotal colectomy”–yes, it’s as bad as it sounds. Before surgery, the gastroenterologist determined that her polyp was benign.

Not that it mattered.

Howell’s surgeon, Dr. Sobhan, removed almost all of her colon, reattaching it to her small intestine through an anastomosis. After she was discharged from the hospital, Howell developed a fistula, or leak, that was penetrating her abdomen and coming through her wound. While she was in the emergency room, the incision in her abdomen split open, and “the bowel contents came out” through her incision.

This led to two more surgeries, and ultimately a suit against Dr. Sobhan for removing too much of her colon and using inappropriate anastomosis techniques.

At trial, Howell produced two experts. Both testified that Dr. Sobhan breached the standard of care by removing too much of her large intestine.Continue Reading Howell v. Sobhan: Appellate Practice Points from the Supreme Court’s New Opinion

The esteemed Chancellor of the College of William & Mary made her first trip to the Roanoke Valley today, picking up an honorary doctorate from Roanoke College and giving a rousing Constitution Day speech. As stately, funny, and fearless as ever, Justice O’Connor garnered four standing ovations while speaking on a holiday that, by her own admission, falls somewhere in the national conscious between Groundhog Day and Talk-Like-A-Pirate Day.

Part of Justice O’Connor’s mission was to fix that. But more on that later.

The Justice started off her speech by reiterating some points that she’s been making recently about the importance of an independent judiciary and the danger of elected judges. If only there were a recent SCOTUS decision to help her make that point . . .

Justice O’Connor did get to Caperton eventually, but she set the stage by explaining that the majority of state court judges in our country are popularly elected–a concept that is foreign to much of the world, and which she characterized as unfortunate and dangerous. Justice O’Connor stressed the need for judges to be free to apply the law without prejudice, and without regard to popularity or fear of retaliation.

By way of example, she offered Loving v. Virginia, and explained that, when the Lovings were married, 96% of the white population favored anti-miscegenation statutes. That number was lower by the time the case made it to the Supreme Court, but at the time of of the decision, 72% of Southern whites still favored such laws–which, as it turns out, violate the equal protection and due process clauses of the 14th Amendment. She challenged the audience to imagine the popular pressure to uphold those laws. An elected justice who sought to overturn them would only be replaced by someone more in line with the popular consensus.Continue Reading “I Never Aspired To Be on the Court”: Justice O’Connor Speaks at Roanoke College

As the Roanoke Times reported yesterday, longtime federal prosecutor Tom Bondurant will be joining our firm in October. We are very excited to start working with Tom, who has spent 30 years as a federal prosecutor, the last nine as the Criminal Chief Prosecutor in the U.S. Attorney’s Office here in town. He was also…

The Court of Appeals of Virginia welcomes us back from summer vacation with a discussion of questions presented that will keep appellate specialists up at night in Carroll v. Commonwealth.

Facts

In 2007, Carroll was charged with raping his stepdaughter twenty-four years earlier. Carroll had initially been charged in 1983, but the case was nolle prossed–only to be reopened later, as the result of a separate rape allegation involving Carroll’s sister. In 1984, the government destroyed specimens and other evidence obtained from a physical examination of the victim.

Despite the Commonwealth’s evidentiary difficulties, Carroll entered an Alford plea. This allowed him to maintain his innocence while acknowledging that the Commonwealth had enough evidence to convict him.

Carroll entered into a plea agreement with the Commonwealth, under which he did not admit that he committed the rape and, to the contrary, expressly claimed his innocence. The plea agreement provided that Carroll would satisfy the conditions of his probation, which included that he maintain good behavior, have no contact with the victim, and pay court costs. If he did so, his sentence would be continued while he was on probation, and upon satisfying probation, the government would ask the court to vacate his conviction and accept instead a guilty plea of assault and battery. The agreement included an integration clause: “I understand that the judge will not enforce any agreement not written down here.” The plea agreement made no mention of sex-offender treatment.

The trial court accepted Carroll’s plea and continued the case for 5 years. One of the conditions of the trial court’s order was that Carroll would comply with all rules and requirements set by his probation officer.

Carroll’s probation officer mandated that he attend sex-offender treatment, which required him to accept responsibility for his actions. Carroll refused, and was discharged from the program. The trial court issued a bench warrant. At the resulting hearing, Carroll argued that he had not violated his probation because the trial court had accepted his Alford plea. The trial court disagreed. It found that Carroll had violated his probation and convicted him of rape. It sentenced him to 5 years in prison, all suspended.Continue Reading New Court of Appeals Opinion on Questions Presented