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.
Tags: , , , , ,

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!
Tags: , , , , , ,