On Friday, Virginia appellate lawyers breathed a sigh of relief as the powers that be filled a crucial vacancy–and not a moment too soon. I think I speak for all of us when I say that we congratulate Jurgen Klinsmann on being named the 35th coach of the U.S. National Team, and look forward to his tenure.
Also, the General Assembly elected some judges and justices in Richmond.
All five have their work cut out for them, but at least Klinsi’s mission is relatively straightforward: make it 2002 again through science or magic.
Our four newly robed friends and friends in new robes, however, face a more perplexing array of problems. Their position is complicated by stare decisis, separation of powers, and the fact that they are only able to answer the questions presented in the cases before them.
I’m going to ignore all of that.
Instead, I will take this opportunity to welcome our new jurists by offering my list of five strange things about Virginia law that somebody (ahem) ought to fix:
- Contributory negligence. Contributory negligence is an outdated, patently unfair doctrine. If we’re going to hold on to this one, we might as well offer plaintiffs trial by ordeal. I’d like my chances of snatching a pebble from a cauldron of boiling water better than my odds of convincing a jury that I wasn’t 1% to blame for whatever happened–Enron, the Spanish Inquisition, or a rear-ender. When last I checked, only Alabama, D.C., Maryland, North Carolina, and Virginia still applied a pure contrib rule. This means that the development of our law lags such bleeding-edge jurisdictions as Arkansas, South Dakota, and West Virginia.
- Binding assignments of error. Okay, now it’s really time to break out the powdered wigs. A few years ago, I heard a statistic to the effect that only five states still use binding assignments of error. Since then, North Carolina–one of our sister contrib states–has abandoned them. The federal system seems to get along just fine without them. Without having done the research remotely necessary to back this statement up, binding assignments of error seem like an artifact from a time when the appeals process worked differently, and reproducing parts of the record was a big deal. Today, not so much. They’ve become just another mechanism that clever appellees can use to raise procedural default (or that the Court could use to duck a difficult question, were it ever so inclined). I’d call them a trap for the unwary, but they catch the cautious as well–in part because different justices interpret Rule 5:17 differently. This means that you can hear one day that a particular assignment is insufficient, appeal dismissed, then see an almost identical assignment upheld against a challenge in a published opinion a few months later.
- No intermediate appellate court of general jurisdiction. Try explaining this to one your out-of-state colleagues. We tell our civil clients that the SCV grants about 1 in 5 petitions for appeal. This creates a system where some lawyers seem to think that it’s worth their time to try to trick the trial judge into doing something goofy, like granting a motion to strike on the ground of contributory negligence; after all, there’s only a 1-in-5 chance that anyone will ever review it on the merits. Trial courts are also more likely to make substantive mistakes on their own, because there is less binding guidance. Developing the law is one of an appellate court’s basic functions, and it’s asking a lot of the Supremes to expect them to do all of that themselves. Further, basically every civil appeal–from dog-bites to the Episcopal church case–goes straight to the SCV, no matter how wacky, without a buffer court to explain that this argument has been waived, that argument is nonsense. etc.
- No motion for summary judgment may be based on discovery depositions. Because why should a man be bound by his sworn testimony in a formal proceeding, recorded by an officer of the court and possibly a video camera? Adding to the weirdness, you can use a discovery deposition to resist a motion for summary judgment, but not to support one. So basically, you can use depositions to increase the cost of litigation, but not to end it.
- No rules of evidence. These rules would help. A lot. It’s not like there aren’t some out there we could borrow.
(Yes, I know that some of these require legislative solutions. Please see above disclaimer.)
If any of these points are well-taken, credit should go to my partner, TJ, because (believe it or not) this is what we talk about in our spare time, and he is smarter than I am. All errors and unsupportable claims are solely my fault.