How Now, Black Cow? Supreme Court Releases 4 Unpublished Orders

Posted on November 2, 2009 by Jay O'Keeffe

The Supreme Court of Virginia released four unpublished orders on Friday. Steve Emmert has a fun write-up over at his website. The discussion of Browning v. East alone makes it worth reading. Here's a preview:

This is a vehicular-collision appeal, but it really-most-sincerely isn’t your ordinary collision case. The driver of the only vehicle involved struck a stray cow on a dark country road one night. At trial, the defense offered a full set of contributory-negligence instructions, including the duty to keep a lookout. The defense argued that an ordinarily attentive driver should have been able to see the cow standing in the road in plenty of time to avoid hitting it.

The jury bought that argument, and returned a defense verdict. The plaintiff then undertook the arduous chore of convincing an appellate court that contrib wasn’t a legitimate jury issue in this case. She argued that the only evidence about the collision in the record was from her – and she testified that she hadn’t seen the cow until it was 30 to 40 feet away. Given the statute that requires cars to have headlights that illuminate objects 350 feet away, and the fact that the driver had acknowledged in her deposition that she was driving 57-60 mph in a 55 zone (for shame!), the defense is feeling pretty good about its chances on appeal.

 Get ready for a surprise or two . . . .

The cow, of course, was black. Black Angus, actually, like the bovine below. But that's not the surprise.

Update: Alan Cooper from the VLW Blog chimes in with a piece on the subject, complete with a link to the Browning order. 

Having read the order, I am a little surprised that it wasn't published. Browning is nine pages long. It was decided by a split court; Justice Goodwyn dissents, but does not write to explain his reasoning. In that regard, the case reminds me of the recent Zapata decision, also unpublished, and also decided over a naked dissent (that time from Justice Kinser, if I remember correctly).

If the Justices themselves are split over a decision, it seems like a published disposition would be helpful to the bar almost by definition.

As to the merits, the Court focuses on the lack of proximate causation between any contributory negligence and the accident. That seems like the correct analysis. Proximate causation is an important limiting factor in states like Virginia that still adhere to a pure contrib doctrine. Fun bit of trivia: according to Wikipedia, Virginia is one of five states/jurisdictions that still recognize contributory negligence as a complete defense. The others are Saudi Arabia, Somalia, Nigeria, and Kazakhstan Maryland, Alabama, North Carolina, and the District of Columbia.

Practice point: when warding off a contrib defense, focus on proximate causation.

Finally, looping back to our earlier discussion of assignments of error, it's worth noting that the assignments in Browning are relatively skeletal:

  • The trial court erred in granting jury instructions relating to contributory negligence (Instructions 16, 17, 18, 19, 20, and 21).
  • The trial court erred in granting the defendant's motion in limine to exclude from the jury evidence of the defendant's prior acts of allowing his livestock to stray at other locations.

I would not be confident that those assignments are sufficiently specific. Evidently, they were good enough to get the job done here.

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What's an Appellant (or Appellee) to Do? Supreme Confusion Over Assignments of Error

Posted on September 28, 2009 by Jay O'Keeffe

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."

Howell v. Sobhan Adds Confusion

So that's where we were last summer. It was scary, but we were adapting. We knew what we had to do: just add a "because" clause to our assignments of error. Right?

As it turns out, that depends on who you talk to.

Remember our discussion last week about Howell v. Sobhan? In footnote 6 of that opinion, the Court finds "no merit in the defendants' argument that Howell's assignment of error challenging the circuit court's decision to strike her evidence and enter summary judgment for the defendants does not comport with Rule 5:17(c)."

Being an assignment of error junkie, I contacted one of the lawyers involved. Here's what I found out: The challenged assignment of error read as follows: "The trial court erred in striking Ms. Howell’s evidence and entering summary judgment for the defendants."

Ruh-roh.

But it gets worse. The defendants actually challenged all three of the appellants' assignments of error. (The other two were about as specific as the one above.) Frankly, I would have done the same thing.

At oral argument, Justice Kinser asked the defendants' lawyer (and we're obviously paraphrasing here), "Are you saying that the assignments error needed to say 'the lower court erred in granting summary judgment because...?" He said,"yes," to which Justice Kinser replied, "That belongs in the argument section, not in the assignments of error." The lawyer continued his argument for another sentence, until the Chief Justice told him that he had limited time and would not win on the point.

That sound you hear is an AAG banging her head against the wall.

So Where Does This Leave Us?

The Court's conflicting guidance notwithstanding, I think that Emmert's recommendation is still right on the money. Adding a "because" can never hurt; even if you get dinged, your appeal won't be dismissed for an overly specific assignment of error.

In fact, I sometimes go Emmert one better, and structure my assignments like a short syllogism:

  • Major premise: rule or proposition from case law (often with a citation);
  • Minor premise: key facts from the case;
  • Conclusion: the trial court erred because . . .

This is an idea that I borrowed from Bryan Garner in The Winning Brief. You can generally convey the necessary information in 75 words or less, if you write carefully. When you get this specific, you do need to be careful to ensure that your assignment covers everything you want to raise on appeal.

Alternatively, in Winning on Appeal: Better Briefs and Oral Argument, Judge Aldisert recommends stating the issue in a simple, declarative statement that could form the topic sentence of an opinion in your favor.

The tough question is what to do as an appellee: with limited pages on brief and time at oral argument, how hard do you go after a suspect assignment of error? I'd probably still take my best shot at exposing the assignment's deficiencies at the petition stage, then see what kind of questions the panel asks. Based on that, I'd re-evaluate at the merits stage. But it's certainly not an easy call.
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Howell v. Sobhan: Appellate Practice Points from the Supreme Court's New Opinion

Posted on September 21, 2009 by Jay O'Keeffe

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.

One expert, Dr. Ludi, testified that it is important to preserve as much of the colon as possible during surgery. He opined that, if Dr. Sobhan had performed an alternate procedure, Howell would have had a 95% chance of returning to a "normal bowel scenario." The procedure Dr. Sobhan actually employed, by contrast, left her with no chance, because it left her with no colon. Dr. Ludi testified that if Dr. Sobhan had worked with a different part of Howell's colon, she would not have developed a fistula. On cross, however, he admitted that a fistula is a known complication of colon surgery and that any anastomosis can break down and cause a fistula. 

Howell's other expert, Dr. Hercules (Seriously? Did Dr. Acula have a conflict?) testified that Dr. Sobhan breached the standard of care by removing too much of Howell's colon and performing a cancer operation without confirming that the polyps were malignant. He also admitted on cross that any anastomosis could break down and develop a fistula. But he explained that placing an anastomosis lower in the colon, as Dr. Sobhan had done, increases the risk of a fistula "slightly."

The defendants moved to strike at the close of Howell's evidence. The trial court denied their motion. The defendants renewed their motion to strike at the close of all of the evidence. This time, the trial court granted it on the ground that Howell had not proven proximate cause, but only that she suffered the normal complications of a surgical procedure.

On appeal, the Supreme Court reversed. It found that--viewing the evidence in the light most favorable to Howell--she had presented sufficient evidence of proximate causation to make out a jury question. Two pieces of evidence drove this finding:

  • First, Dr. Ludi testified that an alternate surgical procedure would have given Howell a 95% chance of regaining normal bowel function, as opposed to the 0% chance Dr. Sobhan gave her; and
  • Second, even though a fistula is a known complication of colon surgery, Dr. Hercules explained that the risk of a fistula increases slightly when the anastomosis is lower in the colon.

In this case, "slightly" was enough to do the trick. The Court expressly rejected the defendants' argument that Howell's assignment of error did not comply with Rule 5:17(c). 

Practice Points from Howell:

  1. Standard of Review. The Court's analysis in Howell is largely the result of the extraordinarily appellant-friendly standard of review it applied. When the appellate court views the evidence in the light most favorable to the appellant and draws all inferences in her favor, that basically means that she wins every fact argument. This is a key concept to remember when the trial court grants a motion to strike on the basis of an issue that is inherently a question of fact like, I don't know . . . proximate cause? If the standard of review defines the strength of the lens through which an appellate court examines the decision below, the Howell court was using a magnifying glass.
  2. Assignments of Error. It seems like we're always harping on assignments of error/questions presented. This opinion gives us another chance to do so. Dr. Sobhan directly challenged Howell's assignment of error, but the Supremes ruled that it will pass muster. Over the past year or so, the Court has grown increasingly idiosyncratic--even erratic--in its treatment of assignments of error. If this trend continues, expect to see more challenges of this sort. This, in turn, will make it even more important to craft assignments of error carefully.
  3. The Power of Word Choice. Howell's fact pattern is brutally gory, but much of it is described in almost tedious med-mal jargon. That makes the zingers stand out--like Dr. Hercules' description of the procedure that Dr. Sobhan performed as a "cancer operation," when the pathology report showed that Howell's polyp was benign. There's a sound bite that I'd toss out at oral argument. It makes you wish that the good doctors (and the Court) had spent more time speaking in the vernacular. Imagine how the first few paragraphs of my summary would read if I'd written them in English, with words like "gut," "burst," and "spilled out." 
     

Finally, congratulations to Official Friend of De Novo (TM) Melissa Scoggins, who represented Howell and came through with the win on appeal. Steve Emmert calls Howell a major win for plaintiffs, and I tend to agree with him. Nice work, Melissa!
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Career-Limiting Mistake #37: The "Satirical" Question Presented

Posted on August 17, 2009 by Jay O'Keeffe

Apologies for the delay since my last post. I was tied up in trial for part of last week, and recovering for the rest of it. I was so busy, in fact, that I almost missed this post from the Volokh Conspiracy about Newman v. Commonwealth, 2009 Va. App. LEXIS 360, 2009 WL 2431289 (Va. Ct. App. Aug. 11, 2009).

Newman deals with a "satirical" question presented. It's as bad as it sounds. The actual question presented reads: 

Is it a violation of the Establishment Clause of the First Amendment to the Constitution of the United States when the manufacturer of the equipment used to test breath in driving under the influence cases refuses to divulge to any state or Federal agency, to any court, to any defendant, to any prosecutor or to any trier of fact the information programmed into the equipment and which controls the operation of and the results obtained from the equipment[?] Is it a further violation of law that the Commonwealth requires the courts, the prosecution, the defense and the triers of fact to take on faith alone that the information programmed into these machines is correct?

Crickets. The appellant had to defend this QP before a panel consisting of Chief Judge Felton and Judges Frank and Petty. One gathers that the argument did not go well:

At oral argument, appellant's counsel informed the Court that appellant's "question presented" concerning the Establishment Clause of the First Amendment to the United States Constitution was "satirical" in nature. Rule 3.1 of the Rules of Pro-fessional Conduct states, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."

For good measure, the Court explains that because "appellant's 'questions presented,' enumerated 1 through 5 in her opening brief and listed immediately below, fail to allege any trial court error, we will not consider them on appeal. See Rules 5A:12(c), 5A:20."

And we're still in the introduction. At least the opinion was unpublished.

A few lessons that we can draw from Newman:

  1. The question presented/assignment of error is the most important part of your brief. Treat it that way. You should spend more time on this than any other part of the brief, because it can win or lose the whole appeal. And your QP/AE absolutely must explain what the trial court did wrong. I've found two approaches helpful in making sure that it does so. One is to set up your QP/AE as a short (< 75 word) syllogism, with a major premise (legal rule), minor premise (key facts), and a conclusion. Another is to write your QP/AE as the topic sentence of the opinion that you would like to receive: "The trial court erred by x because y."
  2. Lawyers are not funny. Really. We're not even close. On the O'Keeffe scale of things that are terribly unfunny, lawyers fall somewhere between toxic mold and Norbit. And appeals are particularly serious. Newman, after all, was a criminal case, and one the defendant had lost below. Humor has no place whatsoever in an appellate brief or argument. Whenever I try to make this point, someone invariably brings up the story that Ted Olson said something funny in oral argument once. Two points in response. First, he's Ted Olson. Second, here's the joke he supposedly told: One of the justices prodded him to answer a question, saying something like, "It's an easy question, counselor." To which he responded: "I know, Your Honor. It's the answer that's difficult." There it is: the high-water mark of appellate humor.

Finally, although it's a little off-topic, I had a chance to grab a beer this weekend with my law-school classmate, the (urban) legendary Tom Cotton. Tom--Mr. Cotton to those of us in Section 1--was back from tours in Iraq and Afghanistan, and is finishing up his time on active duty. Congratulations, Tom, and thank you for your service. 

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