De Novo: A Virginia Appellate Law Blog : Virginia Appellate Lawyer & Attorney : James O'Keeffe : Gentry Locke Rakes & Moore Law Firm : VA Court of Appeals Commentary & Analysis

A few weeks back, we wrote about appealing evidentiary rulings. That post generated a pretty obvious follow-up question: What do you do when your (clearly correct) objection is overruled, and the bad guys are allowed to introduce their (wildly improper) evidence?

The problem may be most starkly presented when you file a motion in limine, stating a detailed legal objection to harmful evidence, and the judge overrules it. Now what? The other side will present their evidence. Do you cross examine them on it? Can you introduce your own rebuttal evidence? Or will you waive your original objection by doing so, forever forfeiting your right to raise the issue on appeal?

The answer will depend on the specific facts of the case, but--with the help of the World's Busiest Associate, Mike Finney--we've put together a few general principles that should provide some guidance:

1. Play the percentages. The best thing you can do to help your chances of winning on appeal is to win at trial--especially if the only appeal in your case is a discretionary one to the Supreme Court of Virginia. Very roughly speaking, the Supreme Court grants about 1 in 5 petitions for appeal, and reverses in about 1/2 of the appeals it takes. Let those numbers guide your strategic decisions. They show that it will rarely make sense to risk losing your case to win your appeal.
2. You only have to object once. Va. Code Section 8.01-384(A) obviates the need for repeated objections. See Drinkard-Nuckols v. Andrews, 269 Va. 93, 102-03, 606 S.E.2d 813, 818-19 (2005) (“[P]rovisions of Code 8.01 § 384(A) obviate the need for repeated objections after having made an objection or motion known to the trial court . . . .”). Make your objection once, clearly, on the record. And before you come close to touching the objectionable evidence on cross examination or your case in chief, gently remind the Court (on the record and outside of the presence of the jury) why you are doing so. That will help you with the next step:
3. Avoid waiver. This is where it gets tricky. You will waive your objection to evidence if, after it is admitted, you introduce the same evidence yourself. Southern Ry. Co. v. Blanford, 105 Va. 373, 387, 54 S.E. 1, 6 (1906). Put slightly differently, if a party “’unsuccessfully objects to evidence which he considers improper and then on his own behalf introduces evidence of the same character, he thereby waives his objection.” Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970). There are, however, limitations to this waiver rule. An objecting party may “elicit[] evidence of the same character either during cross-examination of a witness or in rebuttal testimony.” Drinkard-Nuckols, 269 Va. at 102, 606 S.E.2d at 818. In addition, to constitute waiver, “the subject matter of the evidence at issue [must] be the same as the subject matter of the evidence to which an objection was made.” Id. at 102, 606 S.E.2d at 818 (citing Pettus v. Gottfried, 269 Va. 69, 606 S.E.2d 819 (2005)). 
4. Object to jury instructions (and, if necessary, move to set aside the verdict). Just to be on the safe side, formally object to any jury instruction regarding the parties’ alleged oral contract. And if--God forbid--the jury should return an adverse verdict, move for both a new trial and for the court to set aside the jury’s verdict on this ground. See Spitzli v. Minson, 231 Va. 12, 341 S.E.2d 170 (1986) (“[W]hen defendant failed to object to the instruction submitting the entire case to the jury, and failed to move the court to set aside the verdict and grant a new trial, she waived her right to assign error . . . .”) (quoting Hilton v. Fayen, 196 Va. 860, 867, 86 S.E.2d 40, 43-44 (1955)).

That, in a nutshell, is an appellate lawyer's perspective on what to do with an adverse evidentiary ruling. The takeaway from all of this: it's really just a lot easier to win your motion in limine in the first place.

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My colleague and sometime coauthor, Travis Graham, is an eccentric civil procedure genius and all-around good guy. Among his other hobbies, Travis collects popular misconceptions of the law. He recently told me about a new urban legend making the rounds: the Nusbaum motion. As I understand it, there is a perception brewing in some corners of the bar that you need to file a dedicated pleading in order to protect against procedural default in the wake of Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007).

I have no idea whether this is true. (I've been burned before.) I hope that it's not--or if it is true, that people are just talking about a motion to reconsider. Barring extraordinary circumstances, there's no need to file a separate pleading to secure a ruling and avoid the Nusbaum waiver scenario.

Nusbaum is a fun case. Factually, it's pretty straightforward. Here, Buzz Aldrin re-enacts the pivotal event in the case:  

Buzz took some dramatic license there, but not much. In Nusbaum, the plaintiff's lawyer bumped or shoved opposing counsel in court, before the jury. The trial court immediately declared a mistrial and assessed costs against the plaintiffs.

A procedural nightmare ensued, as the parties debated sanctions for months. For our limited purposes, it is enough to note that Nusbaum failed to raise certain objections contemporaneously. He moved to reconsider, but told the judge that he was not asking the court to change its ruling. By doing so, he waived his argument for appeal.

Here's what you need to know about Nusbaum:

1. It's a waiver case. At bottom, Nusbaum is a waiver case. If you file a motion to reconsider to preserve a point for appeal, but then tell the trial judge that you don't actually want her to reconsider her ruling, you have not preserved your argument. You have waived it. Nothing groundbreaking here. That's because...
2. You always need to get a ruling on your objections. This is true, has always been true, and always will be true. The trial court is entitled to a fair opportunity to rule intelligently on your objections. Otherwise, you will not have anything to appeal. Therefore, you should bject during the proceeding, and later list your key objections on the face of the court's order. You might even consider adding language to the order itself, acknowledging and ruling on the parties' respective objections. If necessary, file a motion to reconsider. But unless something goes horribly wrong, you should not need to move the court to rule on your motions or avoid a waiver. 
3. Don't go overboard noting objections or doing things "for the record." The best thing you can do for your prospects on appeal is to win in the trial court. Do what's necessary in order to preserve error, but don't lose the case trying to win the appeal. And while we're on the subject, you should probably delete the phrase "for the record" from your trial vocabulary altogether. It's a lawyerism. Real people don't talk that way, unless they're being pretentious and/or trying to sound like lawyers. Beginning an argument with "for the record" can even suggest that you are just going through the motions to preserve an argument. That is not effective advocacy--and as Nusbaum shows, it may not be effective preservation of error.
4. It's better with Buzz. Frankly, I like the case better when it has Buzz Aldrin punching jerks in the face. (Thanks to my friend, Jerry, for pointing out the clip and sharing his insights, which have informed this post.)

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Here's a scary new Supreme Court opinion: Whitehead v. Commonwealth. The facts of the case are depressing. Whitehead's  boyfriend was breaking into cars and storing his pilfered goods at her apartment, while helping her pay rent and support their daughter.  Danville's finest intervened, and Whitehead was convicted of receiving stolen property based on a theory of "constructive receipt." The Court of Appeals affirmed her conviction in an unpublished opinion.

The Supreme Court has little trouble reversing on this point, as it has never recognized a theory of constructive receipt for this offense. So far, so good--but there's more. The Commonwealth argued, for the first time on appeal, that Whitehead received the stolen property under a theory of constructive possession. The Court was having none of that.

Justice Lemons, writing for a unanimous Court, acknowledged that the Supremes will affirm a lower court ruling that arrived at the right result for the wrong reason in a proper case. But he explained that cases in which the appellee failed to present the argument in the trial court, so that the trial court did not have an opportunity to rule on the argument, are not proper cases. And he specified that this principle applies in civil, as well as criminal, cases. Because the Commonwealth did not argue constructive possession before the trial court or the Court of Appeals, the Supreme Court declined to consider it. The Court also chastised the Court of Appeals for considering an argument about the concealment of stolen property that the Commonwealth raised in the intermediate appellate court, but not at trial.

All in all, the Supreme Court reversed the judgment of the Court of Appeals affirming Whitehead's 32 convictions for receiving stolen property, dismissed the indictments, and entered final judgment. It remanded for a new hearing on the revocation of Whitehead's previously suspended sentences. (There's a twist to the revocation issue, too, but that's for another post.)

What you should know about Whitehead:

• It's tough on appellees. On a practical level, Whitehead seems to make things awfully hard for appellees. After all, they are the folks who won below. As I read the opinion, it requires appellees to raise all of the arguments that they might want to use on appeal before the trial court. Query how that will play out in practice. Does it mean that, even if your first point is dispositive and you win on it, you still need to raise the other five to preserve them for appeal? After all, the appellate court might disagree with the trial court on your first argument. And if so, do you also need to get a ruling on each of your arguments to preserve them (a la Nusbaum v. Berlin)?   
• It's tough on trial courts. On a structural level, Whitehead doesn't seem to give enough deference to trial courts. The lower court is presumptively correct on appeal, and it is the appellant's burden to show otherwise. Just as the a standard of review will often favor the appellee, procedural default rules shouldn't necessarily apply equally to both parties. It sounds like the Commonwealth has raised a variant of this argument.
• It reviews an unpublished opinion. The Court of Appeals affirmed a 32-count conviction on the basis of a novel legal theory that the Supreme Court has never recognized--and it did so in an unpublished opinion. It seems like Whitehead probably should have made it into the reporter. Commentators have noted the intermediate appellate court's increased disposition of cases via unpublished opinion, and this is a particularly notable example of the trend.
• It's not a done deal...yet. Virginia Lawyers Weekly reports that the Commonwealth has filed a petition for rehearing, using "almost apocalyptic language." I'm sympathetic to the Commonwealth's position (although overblown language in a petition for rehearing is always a recipe for disaster). In the meantime, this is a case worth watching. If anyone out there has access to a copy of the petition for rehearing that they're willing to share, you know where to find me.

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For years, the Supreme Court of Virginia has enforced Rule 5:25, its contemporaneous objection rule, with a rigor that has terrorized even the most careful appellants. But the Court recently handed down a gift to the folks in front of the "v" in Helms v. Manspile, 277 Va. 1, 671 S.E.2d 127 (2009), an opinion worth filing away in your appellate notebook.

Helms is the sort of adverse possession case that only a dirt lawyer could love. We'll skip the facts, which involve fences and decades of mowing grass. At the close of evidence, the circuit court told the parties to submit written memoranda that included their closing arguments. The Helms' memorandum argued, among other things, that they owned a disputed tract of land by adverse possession. The trial court disagreed, and entered an order ruling that they had not established their claim. The Helms' counsel signed the order as "seen."

The Helms appealed. The Manspiles argued that the Supreme Court should dismiss the appeal because they had not objected to the trial court's ruling.

Citing Code Section 8.01-384, the Supreme Court held that the Helms had preserved their adverse possession argument. That statute provides that objecting once is sufficient to preserve an issue for appeal. The Court explained that, once a party has stated an objection, it will waive it only where the record affirmatively shows that the party has abandoned the objection, either expressly or through its conduct. The Court found that the Helms' memorandum was "[c]learly" sufficient to preserve their right to appeal; the trial court was well aware of their arguments, which they neither withdrew nor waived.

The Court acknowledged Rule 5:25, but it held that Code Section 8.01-384(A) "is controlling over Rule 5:25, and we must apply the statutory provision."

Why this decision is important:

• Simply put, Helms makes it a little easier to appeal.
• It expressly states that Code Section 8.01-384 is controlling over Rule 5:25, and explains that, once stated, an objection will not be waived unless withdrawn or abandoned.
• It shows that simply endorsing an adverse order as "seen" is not enough to expressly waive an objection.

But before you rely too heavily on Helms:

• Note that the opinion does not discuss the Court's scarier preservation of error cases, such as Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d 555 (2004), which arguably make it necessary to object twice, at least in certain contexts.
• Why not head off the whole waiver argument by endorsing adverse orders more carefully? It does not take much effort to sign an order "seen and objected to for the reasons stated in the pleadings, memoranda, at on the record at oral argument," or to recite your objections on the face of the order. And it avoids risking an argument with some of the Court's procedural sticklers about whether you actually objected to the trial court's ruling but failed to make an exception (which Code Section 8.01-384 allows), or whether you mentioned an abstract principle of law but never actually objected to the ruling below. I've seen these discussions at writ arguments, and they aren't pretty.

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