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

On Friday, the Supreme Court of Virginia handed down 18 published opinions and two orders. As always, Steve Emmert has a witty write-up (along with a new photo on his web page--looking good, Steve). The VLW Blog also discusses some of the highlights. The bulk of January cases are either criminal appeals or habeas proceedings; I haven't done the math myself, but Emmert breaks it down to 15 criminal appeals/habeas proceedings and 5 civil matters.

As you might have noticed, I wasn't exactly on top of this breaking news--or much of anything else that happened over the past week, for that matter. Here's my excuse:

From January 8-14, I attended the the National Trial Advocacy College at the University of Virginia. It's off-topic, so I won't bore you with the details, but it was probably the best educational experience of my life. The faculty was spectacular, the exercises were demanding, and the feedback was brutally honest. Further, I got to spend a week with dozens of talented and motivated lawyers working to get better at their job. That was fun. It was also a neat reminder of how lucky we are to do what we do.

But it gets better. I capped that off with an oral argument before the Supreme Court on Friday. For obvious reasons, I can't discuss the case. But I really treasure the opportunities I get to argue before the Court. Oral argument is the reward for all of the hard work you put into briefing and preparing (although somehow, thinking of it that way doesn't make me any less nervous). Different people go to law school for different reasons. If you ask me, the coolest thing you can do with a JD is to have a conversation with the Commonwealth's highest court about what the law is (or should be), and help them get to a fair result that will justly govern future cases. It was a brilliant end to a perfect week.

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The Supreme Court of Virginia's new opinion in Hutchins v. Talbert provides a useful cautionary tale for trial lawyers.

Procedurally, the case is a riddle, wrapped up in a mystery, inside a nightmare. Let's start at the beginning. Here's how Justice Goodwyn, writing for the Court, frames the issue presented in the first sentence of the opinion:

[W]hether an order denying a motion to set aside the verdict is a final judgment for purposes of appeal when the trial judge has rendered final judgment in a separate, previously entered order, which is not vacated, suspended, or modified by the order ruling upon the motion to set aside the verdict.

Got that? Yikes. But don't give up yet.

We're obviously somewhere in the no-man's land of procedural default. Let's unpack the facts one step at a time:

• On April 25, 2008, the trial court entered a final order.
• Also on April 25, 2008, the trial court entered an order suspending the final judgment for 14 days, tolling Rule 1:1's 21-day limit and allowing a total of 35 days for entry of an amended final order. In other words, the order was suspended until May 30, 2009.
• Hutchins filed a motion to set aside the verdict.
• On May 28, 2008, the trial court entered an order denying the motion to set aside the verdict, without referring to the final judgment at all.
• On June 19, 2008, Hutchins filed a notice of appeal.

You can see where Hutchins is coming from, right? He thought that because (1) he'd filed a timely post-trial motion, which (2) the trial court ruled on while it retained jurisdiction, (3) the May 28 order was the final order that set the 30-day notice of appeal deadline running. Ergo, his June 19th notice was timely.

Talbert--represented by hometown favorite and all-around good guy Frank Friedman--moved to dismiss Hutchins' appeal. He argued that the suspension order expired on May 9th. Under Rule 5:9, Hutchins had 30 days to file a notice of appeal from May 9th, so his June 19th notice of appeal was untimely.

Talbert was right. Here's how it breaks down:

• Rule 5:9 requires an appellant to file a notice of appeal within 30 days after entry of final judgment or other appealable order--or within any extension granted under Rule 5:5(a). As appellate practitioners know, this deadline is mandatory and jurisdictional.
• Rule 5:5(a) states that "[t]he time period for filing the notice of appeal is not extended by the filing of a motion for a new trial, a petition for rehearing, or a like pleading unless the final judgment is modified, vacated, or suspended by the trial court pursuant to Rule 1:1 . . ."
• Finally, Rule 1:1 provides that all final judgments, orders, and decrees shall remain under the control of the trial court and subject to be modified, vacated, or suspended for 21 days after the date of entry, and no longer. 

Applying these rules, the Supreme Court determined that the April 25th order was self-executing, and expired by its own terms on May 9. The 21-day period under Rule 1:1 and the 30-day period under Rule 5:9 both began to run on that date. Hutchins missed  both deadlines, so he was out of court. Consistent with prior caselaw (which it didn't cite), the Court made it very clear that only an order vacating, suspending, or modifying the final judgment will toll these deadlines; an order denying a motion to set aside the verdict will not do the trick.

What can we learn from Hutchins?

• Beware of trial judges bearing gifts. Trial court judges will sometimes try to do their dockets litigants a favor by extending deadlines, assuring lawyers that their objections have been preserved, etc. Don't believe them--you must know the rules and the deadlines, and understand which can be finessed and which cannot. For example, once a final order has been entered, only an order within the Rule 1:1's 21-day time period that expressly modifies, vacates, or suspends the final judgment will permit the trial court to retain jurisdiction. See Super Fresh Food Markets of Va. v. Ruffin, 263 Va. 555, 563-64, 561 S.E.2d 734, 739 (2002). It doesn't matter if the trial judge meant well, or honestly intended to extend a deadline--if he or she did not do so effectively under the letter of the Rules, then you can wind up out of court, despite the judge's best intentions.
• Read the rules and count the days. It's simple. It's boring. But you have to do it. All of the very best appellate lawyers I know go back and read the rules again before a key filing--every time. And they count (and recount) days with religious intensity. (Helpful trick: you can use the Outlook calendar's "Go to Date" feature to automatically count days. But still double-check the old-fashioned way.)
• It pays to have an appellate specialist on the trial team. Waiting until an appeal is filed to consult with an appellate specialist is often too late, particularly with respect to issues of finality and preservation of error.

Put slightly differently, the lesson of Hutchins is to trust but verify.

Finally, just in time for the Harvard-Yale game, Super Lawyers will release its inagural ranking of law schools today. According to the WSJ Law Blog, Harvard is #1 and Yale is a lackluster #10. (For all you Wahoos, UVA checks in at a very respectable #4. But you're still #1 at softball.)

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On Thursday, the Supreme Court of Virginia released a batch of opinions. I know that I'm late to the party--I've been out sick--but here is a quick run down of the results:

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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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The VLW Blog reports that the Senate Judiciary Committee has unanimously approved Justice Keenan's nomination to the Fourth Circuit. Justice Keenan is President Obama's second nominee for one of the five open spots on that court. The National Review Online states that ranking minority member Jeff Sessions called Justice Keenan a "fine nominee." 

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Justice Keenan, who has been nominated for a seat on the 4th Circuit, will appear before the Senate Judiciary Committee on Wednesday at 4:00 p.m. Our friends at The VLW Blog report that the entire nomination hearing will be webcast.

Yesterday, Virginia Lawyer's Weekly reported that eight candidates have alerted the Virginia State Bar that they would like to be considered for the vacancy that Justice Keenan's appointment to the 4th Circuit would create. They candidates interested in the potential opening are:

• Virginia Court of Appeals Judge Robert J. Humphreys;
• State Sen. John S. Edwards of Roanoke;
• Petersburg Circuit Judge Pamela S. Baskervill;
• Loudoun County Circuit Judge Thomas D. Horne;
• Alexandria Circuit Judge Lisa B. Kemler;
• Fairfax Circuit Judge Jane M. Roush;
• Stuart A. Raphael, a partner in the McLean and Washington offices of Hunton & Williams; and 
• Elwood E. Sanders Jr., an attorney with Lantagne Legal Printing in Richmond.

The VSB's judicial nominating committee recently vetted Senator Edwards and Judges Humphreys and Horne, so it will not reinterview them. It will meet with the remaining candidates on October 12.

Of course, the candidates may be in for a long wait. As an editorial in this morning's Baltimore Sun notes, President Obama nominated Judge Andre Davis for another opening on the 4th Circuit. The Senate Judiciary Committee approved Judge Davis 16-3 in June, but he is still awaiting a vote on his nomination.

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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."

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The Supreme Court of Virginia released 15 published opinions today. For the true appellate geeks/scorekeepers out there, the Court also makes available a list of counsel in cases decided.

Our friends at VLW have promised a special Supreme Court edition of their daily alert later this afternoon. We'll keep you posted.

Finally, one of the highlights of opinion day is Steve Emmert's take on the opinions, which he usually manages to crank out the same day. Keep an eye on his page.

Update: The VLW Blog has numerous write-ups of the decisions on its website; it's easire to link to their site than each individual post. As always, Mr. Emmert has done a fine (and funny) job of summarizing the opinions.

And as an unexpected bonus, the Virginia Business Law Blog has a nice discussion of our favorite decision of the bunch, Dunn Construction v. Cloney.

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The VLW Blog reports that Chief Justice Hassell was hospitalized recently with an infection and will not participate in the Supreme Court of Virginia’s oral argument session next week. The story is here. One of the Court's senior justices will likely sit in for him during his absence.

We wish the Chief a speedy recovery, and are glad to read that he is feeling better.

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A little something to tide you over until the Supreme Court of Virginia hands down its next set of opinons on September 18th: on Friday, the Court unpublished orders in two cases. One, D.R. Horton, Inc. v. Zambrana, deals with prejudgment interest. The other, Higgs v. Director, Dep’t of Corrections, is a habeas case.

Credit to Steve Emmert, who has the write-up here.

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You won't see it cited too often, but Rule 5:6 is without a doubt one of the most revolting recent developments in Virginia appellate practice. It's the Supreme Court rule that says, "Except by leave of Court, all pleadings and briefs, including footnotes, must be in at least 14 point type, [and] must use Courier, Arial, or Verdana font...."

The resulting product is visually abhorrent. A brief in 14-point Arial looks kind of like what my daughter might put together with her markers--the major difference being that paper is not Caroline's medium of choice.

It's difficult to understand the logic behind Rule 5:6. If shorter briefs are the goal, then it seems like the right move would be to limit length, like Federal Rule of Appellate Procedure 32(a)(7)--not to mess with fonts. If the rule is aimed at legibility, on the other hand, it could have required 14-point type, but given lawyers their choice of fonts. I'm far from sold on the readability of the sans serif fonts, and Courier is garbage. Also, it's worth asking why, if the Century fonts are good enough for the SCOTUS...

Anyway, Rule 5:6 is on my mind today because I've been working on a Fourth Circuit brief. One of the relative pleasures of practicing in the Fourth Circuit, as opposed to the Supreme Court of Virginia, is the opportunity to make reasonable design choices and put together a more professional-looking piece of work.

Not that I'm any sort of an expert. But there are plenty of resources available for lawyers looking to learn about basic typography for briefs and filings. One of my favorites is this guide, which is available on the Seventh Circuit's website. It convinced me to stop using Times New Roman. (Times New Roman was originally designed to allow the reader to skim quickly over words. That's not what you're looking for in a brief--you want the reader to linger.)

The Seventh Circuit also offers this law review article. It's long, but there's some good stuff in there. Finally, Bryan Garner offers some characteristically good advice in The Winning Brief. Some of his tips for designing text:

• Put a little more white space above a heading than below it;
• Use a 13-point serifed typeface (14-point in federal court);
• Set tabs at the equivalent of 5 characters for the first inch, .15 inches after that;
• Set margins at 1.2 inches on the side, and 1 inch on the top and bottom;
• Leave the right margin ragged (not justified) for greater readability; and
• Avoid all-caps text, which is basically impossible to read.

And this brings us full circle. I was at one of Garner's CLEs last summer, and I mentioned Rule 5:6 to him. He looked at me like--well, see the above photo.

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The Supreme Court of Virginia has posted its September 2009 argument docket. The Court will hear argument in 31 cases. Here's the quick break down:

• 15 criminal cases;
• 9 civil cases;
• 5 State Corporation Commission cases;
• 1 original jurisdiction case; and
• 1 Judicial Inquiry and Review Commission case.

What are the arguments to watch this September? Let me know what you think.

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