I was reading through CA4’s recent opinion in Le Doux v. Western Express, Inc., ___ F.4th ___ (4th Cir. 2025), when I came across this footnote:

Western Express and Worthy contend that we review the decision for plain error because Le Doux never briefed or argued in the district court whether Virginia law permits a negligent hiring claim to proceed where the employer has conceded its employee acted within the scope of their employment. That’s an odd contention, for two reasons. First, plain error review applies only in criminal cases. See United States v. Lavabit, LLC (In re Under Seal), 749 F.3d 276, 285–86 (4th Cir. 2014) (comparing the “fundamental error” standard in civil cases with the “plain error” standard we apply in criminal cases). But more importantly, the reason Le Doux never addressed the issue was that Western Express and Worthy never pursued it in the district court; in fact they disclaimed it. J.A. 465. The district court decided on its own. And Le Doux subsequently objected. J.A. 629. That’s enough to preserve the issue. “Lawyers and clients need not pursue the persistent strategies of rebuffed suitors in Victorian courtship novels.” Ward v. Soo Line R.R., 901 F.3d 868, 882 (7th Cir. 2018).

Brutal. But what, exactly, is the difference between these two standards? I posed that question to Westlaw’s AI assistant, and this is what it told me:

The “plain error” standard of review and the “fundamental error” standard of review are distinct in their application and criteria.

The “plain error” standard of review is applied in criminal cases when an error was not raised at trial. Under this standard, an appellate court may correct an error if the following four conditions are met: (1) there is an error, (2) the error is plain, (3) the error affects substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings (In re Under Seal, 749 F.3d 276 (2014))[1], (U.S. v. Robinson, 460 F.3d 550 (2006))[2]. This standard is codified in Federal Rule of Criminal Procedure 52(b) (Federal Rules of Criminal Procedure, Rule 52)[3].

In contrast, the “fundamental error” standard of review is more stringent and is typically applied in civil cases. This standard allows an appellate court to consider issues raised for the first time on appeal only if the error is “plain” and if refusal to consider the error would result in a denial of fundamental justice. The error must be so serious and flagrant that it goes to the very integrity of the trial (Snyder v. Ridenour, 889 F.2d 1363 (1989))[4]. The fundamental error standard is more limited than the plain error standard applied in criminal cases (In re Under Seal, 749 F.3d 276 (2014))[1].

In summary, the plain error standard is used in criminal cases to correct unpreserved errors that meet specific criteria, while the fundamental error standard is used in civil cases for errors that are exceptionally serious and affect the integrity of the trial.

The above response is AI-generated and may contain errors. It should be verified for accuracy.

Not bad.

Sometimes I worry that AI is going to replace lawyers. And then the universe hands me an opinion like Llewellyn v. Fechtel, showing that nothing that able to pass the Turing test could ever do our jobs.

Llewellyn is a trusts-and-estates case; basically, Fechtel claimed the Llewellyn breached her fiduciary duties as trustee. The trial court granted partial summary judgment against Llewellyn on two issues. It got flipped on each, with Judge Lorish writing for a panel that included Judges O’Brien and Ortiz. (As an aside, this is a very fun panel. Credit to the algorithm for putting it together.)

First, the trial court relied on Llewellyn’s interrogatory responses to conclude that she’d admitted to borrowing about $75K of trust assets from a personal bank account. The Court of Appeals reversed, pointing out that interrogatory answers are not binding admissions and must be read together with a party’s explanations. Because Llewellyn maintained that the personal joint account was not necessarily funded with trust money, the Court found that genuine factual disputes remained and that summary judgment on this first issue was unwarranted.

Second–and much more hilariously–the trial court deemed thousands of Llewellyn’s responses to requests for admission as admissions that she’d misused another $235,346.35 from the trust. Except the RFAs had nothin to do with the authenticity of particular documents and really just boosted the plaintiff’s theory of the case. For context, Fechtel served 8,984 RFA spanning thousands of pages, of which 8,920 addressed 446 identified transactions. (Why even try to do this?) CAV concluded that the trial court had erred by failing to recognize the limits set by Rule 4:11(e), which caps RFAs at 30, with an exception for verifying the genuineness of documents. Most of Fechtel’s 8,984 requests sought facts and legal conclusions about the source and legitimacy of transactions, not the authenticity of any single document. To illustrate, the Court quoted RFA 337 (!) in its entirety, including all 20 subparts (!!). (Again, WHY EVEN TRY TO DO THIS?!) So the Court held that the vast majority of those requests exceeded the permissible scope and could not be used to support summary judgment.

Terrific opinion, with a helpful treatment of summary-judgment and discovery rules–all of which work only when courts enforce them. That’s actually the answer to “Why even try to do this,” right? Because maybe the trial court will let you get away with it. (And 5 years ago, maybe you evade discretionary appellate review.) Glad to see CAV shut this abusive silliness down.

Senator Surovell has introduced SB999, which would change the CAV’s standards for granting oral argument to track federal practice. Specifically, it would make these changes to Code Section 17.1-403:

The Supreme Court shall prescribe and publish the initial rules governing practice, procedure, and internal processes for the Court of Appeals designed to achieve the just, speedy, and inexpensive disposition of all litigation in that court consistent with the ends of justice and to maintain uniformity in the law of the Commonwealth. Before amending the rules thereafter, the Supreme Court shall receive and consider recommendations from the Court of Appeals. The rules shall prescribe procedures (i) authorizing the Court of Appeals to prescribe truncated record or appendix preparation and (ii) permitting the Court of Appeals to dispense with oral argument if the parties agree that oral argument is not necessary or if the panel has examined the briefs and record and unanimously agrees that oral argument is unnecessary because (a) the appeal is wholly without merit or; (b) the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed; or (c) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.

This change will sunset on June 30, 2027 unless reenacted by the 2027 General Assembly. SB990 would also specify that the amount of a suspension bond would be the principal amount of the judgment plus 2.5 years’ interest.

For comparison, Federal Rule of Appellate Procedure 34(a)(2) says:

Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:

(A) the appeal is frivolous;

(B) the dispositive issue or issues have been authoritatively decided; or

(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.

I don’t see much daylight between “wholly without merit” (in Code Section 17.1-403) and “frivolous” (in FRAP 34). Black’s Law Dictionary defines “frivolous” as, among other things, “[l]acking a legal basis or legal merit; manifestly insufficient as a matter or law.” So let’s consider these standards equivalent.

The question becomes whether adopting the federal standard is a good idea. Anyone with a substantial civil CAV practice will tell you that things are moving slowly through that court at the moment, and I have it on pretty good authority that oral argument is a major bottleneck. Under the current version of 17.1-403, it’s hard to avoid scheduling a case for argument. So a rule intended to give the judges more flexibility in scheduling seems like a good idea.

The immediate objection, of course, is that the Fourth Circuit is notoriously stingy with oral argument. Here’s a table from Allison Orr Larsen and Neal Devine, Circuit Personalities, 108 Va. L. Rev. 1315, 1325 (2022):*

We don’t want the CAV to be like the Fourth Circuit! So we shouldn’t adopt the federal standard.

But the standard SB999 incorporates is from Rule 34, which applies to all federal circuits, even the oral-argument friendly ones. And to keep the bars above in perspective, the Seventh Circuit–with an oral argument rate of somewhere around 45%–grants oral argument in just about every case with a lawyer on both sides. That seems like a good standard! Also, culturally, the Fourth Circuit values efficiency–it’s home to the Rocket Docket, after all–and in a lot of ways, it is built for speed. None of that is necessarily true of the CAV. I wouldn’t expect a court full of judges who came through the Virginia state court system, which grants oral argument in every case, to start denying oral argument in ~90% of cases like some of their neighbors.**

Finally, if the CAV just immediately stops granting argument as a docket-control mechanism, then the General Assembly can just let the changes to 17.1-403 expire in 2027.

Best of luck to SB999, and a robust and speedy oral argument docket.

* Circuit Personalities is excellent.

** One article clocked CA4’s oral argument at 8%. Eight percent!!

You hate to see it: In Wolfe v. Wolfe, the ex husband filed a pro se motion to modify child support. The court granted the motion in part and denied it in part. In its final order, it said: “Should either of the parties wish to appeal they must at the moving party’s cost obtain the recording of the hearing and pay for a certified court reporter to transcribe the hearing in lieu of a statement of facts.”

A trial court obviously cannot do that. Rule 5A:8 lets a party submit a written statement of facts, and it provides a mechanism for correcting any mistakes in that statement. Nor was this an especially novel question; SCOVA dealt with a similar set of facts in Shapiro v. Younkin, 279 Va. 256 (2010). And so the CAV had no trouble reversing, vacating, and remanding. It pointed out that if it’s impossible to prepare a written statement of facts, then the proper remedy is a new trial.

The deeper issue is more interesting: Given the prevalence of smart phones and AI transcription software, for how much longer will court reporters be a thing? What is the objection to letting a litigant like Mr. Wolfe bring a phone (or tablet or laptop) to the hearing, have an app transcribe it in real time, and copy-paste that transcript into a written statement of facts?

Adam Feldman takes a look at “The Changing Face of Supreme Court Oral Arguments” at his Legalytics Substack. The whole article is interesting and worth reading. Here are his takeaways:

· Oral arguments are taking longer and there is no evidence that this will change soon.

· Attorneys are speaking more on the balance (than the justices) since the 2014 Term but this ratio is about on par with where it was in 2010

· Even if 2020 was an outlier term due to Covid-19, justices’ interruptions of attorneys are way up since pre-Covid years although they’ve shown a slight decrease over the past few terms.

· Justice Gorsuch and Kagan are both speaking more and are jumping in more frequently while attorneys are speaking. Although there are changes in the other justices’ behavior these two show the most prominent changes.

SCOVA just handed down Baez v. Commonwealth, holding that the trial court did not abuse its discretion by admitting police body-cam footage. While some of the analysis is context-specific–commercial litigators and PI attorneys maybe aren’t going to spend too much time worrying about the Confrontation Clause–the opinion does have a few points worth considering as video becomes more and more prevalent.

First, the Court held that the video did not implicate the Confrontation Clause’s prohibition on testimonial hearsay because it wasn’t hearsay in the first place. Baez argued that (1) the video was testimonial hearsay because body-cam footage is a medium intended to be used in litigation, and (2) the video’s content was testimonial hearsay because it was meant to assert the truth of the matter that the officer wearing the camera searched Baez and found drugs. The Court disagreed. It found that the body-cam footage was not an inherently testimonial statement automatically triggering the Confrontation Clause. Instead, as would be the case with an affidavit, it was the footage’s content that determined whether it was testimonial. Assertive intent is necessary for nonverbal conduct to qualify as a statement under the hearsay rule. Here, nothing in the content of the video qualified as an assertion of fact for purposes of the hearsay analysis. Viewing the evidence in the light most favorable to the Commonwealth, the video just showed a routine search incident to an arrest.

Second, the Court allowed an officer other than the one wearing the camera to authenticate the video. Photographs and video are generally admissible to to illustrate a witness’s testimony, or as an “independent silent witness” of the matters they record. A photograph or video that a witness verifies to fairly represent what the witness observed is admissible. And video is admissible as a silent witness when it is given an adequate foundation assuring the accuracy of the process of producing it. Here, another officer at the scene was able to authenticate the footage, even though he wasn’t wearing the camera and did not observe every minute of the search, including the key moment when the drugs were found. Authentication is just a threshold requirement to prove that the thing in question is what the proponent says. It does not have reach each moment of the video. The observing officer could simply testify that the video accurately represented what he saw. On top of that, he testified generally about the process of uploading body cam footage. That was enough to get the footage into evidence.

SCOVA handed down a fun published order recently in a local-government case, Rebh v. County Board of Arlington County. I know, right? But bear with me.

Rebh and a bunch of landowners challenged a land-use plan adopted by the County Board of Arlington County. (That is a very silly name, County County Board County.) The trial court sustained the Board’s demurrers to all three of the residents’ claims. On appeal, the CAV found in the residents’ favor on one of their claims: that the Board had failed to give proper notice under Code Section 15.2-2204, rendering its actions void ab initio. The CAV then purported to rule in favor of the Board on the residents’ two other, independent claims. These claims were, importantly, “analytically distinct” from the notice claim. They concerned the statutory resolution and certification requirements and uniformity requirement. (I do not know what these things are, but they sound very important and very, very boring.) Concluding that the trial court did not err in sustaining the Board’s demurrers to those claims, the CAV purported to “hold” that the Board did not violate the resolution and certification requirement or the uniformity requirement.

And so “[d]espite winning a complete victory on their primary claim,” the residents filed a petition for appeal to SCOVA challenging the second two holdings. From their perspective, that was totally reasonable, because the CAV made it clear that it meant for the rulings to have the presidential effect of resolving those issues if they arose in future proceedings.

SCOVA dismissed the petition for appeal. It explained that advisory opinions rendered on moot questions are beyond the scope of the judicial power. “Consistent with this tradition,” Code Section 17.1-411 allows only an aggrieved party to file a petition for appeal. The Court discussed Commonwealth v. Harley, 256 Va. 216 (1998), where the CAV ruled that a criminal defendant (1) had a constitutional right to receive a transcript, but (2) was not prejudiced when he failed to receive one. As such, it affirmed the defendant’s conviction. When the Commonwealth tried to appeal the first “holding” to SCOVA–on the theory that it was aggrieved by a published opinion establishing a constitutional right to a transcript–SCOVA disagreed. The CAV’s advisory holding about the constitutional right to a transcript was nonbinding, the Court explained, as it was rendered moot and advisory by the later holding that the trial court’s error was harmless. Whether the CAV described its constitutional ruling “as a holding or not, it was simply dicta.” While it might later be cited as persuasive authority, it would have no binding effect on lower courts, other CAV panels, or anyone else.

Similarly, in Rebh, the CAV’s second and third rulings presented a “dicta-qua-holding scenario.” Once the CAV ruled that the Board’s actions were void ab initio for lack of notice, there was nothing left for a Virginia court to do. By succeeding on their first point, the residents won the case outright.

If you’ve practiced law for more than five minutes, you’ve received a responsive pleading or set of discovery responses telling you that x or y document “speaks for itself.” This claim usually answers a question or allegation about that document, intended in good faith to clarify a party’s position. For example, a complaint might allege that Exhibit A is an accurate copy of the parties’ contract, or that Exhibit B gives the plaintiff this or that right. But instead of engaging the substance, the answer will just say that the document speaks for itself.

Not helpful!

Of course the document doesn’t speak for itself; it’s a mute sheet of paper, which is part of the problem. Even if we indulge the metaphor, we’re obviously trying to find out what it has to say.

So it cheered me up to see a panel of the Court of Appeals dig its teeth into a claim that “the document speaks for itself.” In Lorenz v. Parker, Clayton Givens died intestate and Rachel Parker filed suit to establish that she was his daughter. To that end, she sent a request for admission to the defendants, asking them to ““[a]dmit that the document attached hereto as Exhibit A is a true, authentic, accurate, and admissible copy of the DNA Test Report evidencing that Clayton Paul Givens is the biological father of Rachel Wetzel Parker.” The defendants responded that “the document speaks for itself.”

Not helpful!

At a bench trial, Parker tried to introduce this statement into evidence as authentication of the DNA test report, on the theory that it admitted the accuracy and authenticity of the report. The defendants argued that their response was “nonresponsive.”

Big problem here: Failing to respond to a RFA is the same as admitting it. And so the trial court deemed the request admitted. it found that the response authenticated the DNA report and admitted it into evidence.

The defendants appealed, arguing that at most, their response established the DNA’s report’s genuineness. The trouble, as the CAV pointed out, is that this was enough to authenticate the document, and the defendants did not point to another rule of evidence rendering it inadmissible. The defendants claimed that the report lacked a sufficient foundation, but did not say what else might be necessary to get it into evidence. “While [their] brief insinuates in some places that the court erred by not requiring expert testimony before the report could be admitted into evidence, [they] did not assign error to the court’s conclusion that the test was relevant and reliable enough to be admitted.” Once the report was admitted into evidence, it was up to the trial judge as fact-finder to determine its weight.

Moral of the story: Just answer the RFAs.

I’m always amazed at how people find new ways to lose appeals. Longtime friend of De Novo Monica Monday showed me a new one earlier this year: In two interlocutory appeals she was resisting, the petitioner missed the 15-day deadline for filing a petition for appeal. Because the Court of Appeals lacked authority to extend that deadline, the appeals were dismissed.

I’ll run through the issue a few potential solutions below.

To start, Code § 8.01-675.5(A) authorizes interlocutory appeals from a circuit court to the Court of Appeals, provided that the circuit court makes a specific, four-part certification. The statute then says that a petition for appeal may be filed within 15 days of that certification order, making no provision for extending that deadline. Rule 5A:12 governs petitions for appeal and other petitions for discretionary review, including petitions for appeal under Code § 8.01-675.5(A). It, too, specifies that the petition for appeal is due within 15 days of the trial court’s certification, and without providing for an extension of time. Rule 5A:3 explains that the time prescribed for filing a petition for appeal is “mandatory.” While the Rule allows the Court of Appeals to extend the deadlines for filing a notice of appeal, a petition for rehearing, or a petition for rehearing en banc, it affords no such relief for a petition for appeal. Instead, the deadline for filing a petition for appeal under Rule 5A:12 is a jurisdictional requirement. Long v. Commonwealth, 7 Va. App. 503, 506 (1988). “A petition for appeal that is filed after the deadline must be dismissed.” Chatman v. Commonwealth, 61 Va. App. 618, 627 (2013). 

Thus, it seems that the Court of Appeals lacks authority to extend the petition for appeal deadline under Code § 8.01-675.5. (The rules governing respondents are more forgiving. While the brief in opposition is due within 7 days of the petition for appeal, Rule 5A:13(a) allows the respondent to move for an extension of this deadline.)

Set aside, for a minute, that it should be impossible to miss this deadline: Code § 8.01-675.5(A) clearly sets out the timeline. Securing certification will require a petitioner to study that statute, and it is hard to see how they could miss the part about the deadline. Nor is the 15-day deadline particularly onerous. Assembling a petition for appeal will be relatively little work once the petitioner has gone through the process of securing certification, as the research and analysis needed for the petition will largely duplicate the work done to support the motion for certification. 

Even so, you can imagine things happening that would prevent even a diligent petitioner from making the 15-day deadline—the petitioner’s attorney could get sick, for example, or suffer a death in the family.

So what then? True, the petitioner can’t ask the Court of Appeals for an extension. But if they catch the problem before the 15 days run, they could ask the circuit court to suspend, modify, or vacate its certification order, which would presumably toll the deadline for filing a petition for appeal. After all, it preserve the trial court’s jurisdiction and tolls the deadline for filing a notice of appeal.

If more time has passed and the petitioner has already missed the 15-day deadline, they could ask the circuit court to recertify its order. Note that in the federal system, the circuits split over the efficacy of recertification. Most, including the Fourth Circuit, hold that recertification resets the 10-day petition deadline, though in more recent opinions the Seventh Circuit and the D.C. Circuit have disagreed. See Strange v. Islamic Rep. of Iran, 964 F.3d 1190, 1202 (D.C. 2020) (discussing split). The outlier Seventh and D.C. Circuits focus on SCOTUS’s “renewed emphasis on the federal courts’ lack of authority to read equitable exceptions into fixed statutory deadlines . . . .” Id. at 1198. For obvious reasons, that factor is less relevant in state-court practice.

Finally, they could wait until the end of the case, then appeal the circuit court’s final order. 

On Tuesday, the CAV handed down its opinion in Pegasystems Inc. v. Appian Corporation, reversing the largest jury verdict in Virginia history. Pegasystems is a trade-secrets case. The jury tagged Pegas with a verdict of more than $2 billion. (Fun fact: This case was tried in Fairfax at the same time as the Johnny Depp/Amber Heard fiasco, so the media was completely distracted.) The CAV reverses, with Judge Friedman writing for a panel that includes Judges Beales and Callin. I don’t have anything intelligent to say about trade secrets or corporate espionage,* but the Court’s treatment of evidentiary issues–particularly the excluded software evidence in Part IV–seems pretty compelling.

Given the stakes this opinion won’t be the end of the line for this case. It will be interesting to see if Appian petitions for rehearing en banc or just goes straight to SCOVA for a writ. An en banc rehearing would give Appian a chance of getting a dissent, which in turn would improve their chances of having a writ granted. And judging by the lawyers involved, money appears to be no object. On the other hand, this is the largest verdict in Virginia history, so the parties already have SCOVA’s attention. And speed could be important. Under Code Section 8.01-676.1, a suspension bond cannot exceed $25 million irrespective of the size of the judgment. So if Appian has concerns about Pega’s continued financial health or ability to cut a check for $2,036,860,045, it may choose to press ahead.

Finally, nice to see an amicus brief from longtime friend of De Novo and all-around genius Willy Jay.

* Unintelligent comment: It is objectively funny that Appian hired Pega’s head of competitive intelligence, whose job apparently involved spying on Appian. (At Pega, he literally hired a consultant with access to Appian’s products who he described as a “spy.”) In a twist we all saw coming, that hire led to this lawsuit.