On Friday, the Supreme Court dropped 13 published opinions and 2 published orders. That’s a bit surprising, because there were 29 cases listed on the September docket. Even counting the unpublished opinions that have come down in the meantime, we still have decisions in about 10 cases outstanding from September. (This is all back-of-the-envelope stuff; I’d welcome corrections.)

Another little anomaly: based on a quick flip through the opinions, it doesn’t look like the Chief Justice wrote any of them.

I suspect that any weirdness is a combination of three factors: (1) the recent turnover at the Court; (2) Chief Justice Kinser’s administrative responsibilities, particularly with regard to the rules of evidence and judicial realignment; and (3) luck of the draw.

At any rate, quality is far more important than quantity, and we picked up some fun opinions last week–even a rare dissent!

One of my early favorites is Justice Lemons’ opinion in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc.

A little background: Justice Lemons is President of the American Inns of Court. He is unfailingly gracious, and probably takes civility and professionalism more seriously than anyone you will ever meet.

Also, Landrum looks to be a holdover from June, when the depleted five-member Court was hearing cases. In Landrum, we have a 3-justice majority and a 2-justice concurrence. That alone makes it something of a collector’s piece.

Now back to our story. Landrum was represented by out-of-state counsel, who was pro hac vice. Kind of. The record lacked a motion by local counsel to associate him pro hac, or an order granting such a motion. Both are required by Rule 1A:4(3)(b)-(c). So he was clearly off to a good start.

But I digress. More importantly, so did the Court, in a footnote on the first page of the opinion.

This brings us to one of O’Keeffe’s Immutable Rules of Legal Practice: if you have somehow managed to irritate Justice Lemons to the point that he (politely) goes out of his way to make you look like a fool on page one of a published opinion, you should probably just turn in your bar card.

It’s the judicial equivalent of getting kicked in the nuts by Gandhi.

You must have done something horribly wrong to deserve that.

And indeed, Landrum (or more precisely, her Missouri counsel) did.

The defendants asked Landrum to identify her expert witnesses in discovery. She waited two months, until the expert disclosure deadline, to respond. Depending on where you practice, that might be okay. But she only sent them the names and addresses of two expert witnesses. That’s not okay anywhere.

The defendants promptly moved to exclude the (for all intents and purposes, undisclosed) expert witnesses.

Upon learning of the motion, Landrum’s out-of-state counsel forwarded the experts’ reports, which the defendants received about two-and-a-half weeks after the expert disclosure deadline. Landrum never formally supplemented her expert designation to comply with Rule 4:1.

After a hearing, the trial court denied the defendants’ motions and gave Landrum until January 28 to supplement. It explicitly warned Landrum that, if she failed to respond to the interrogatories “in the proper manner,” the trial court would reconsider the defendants’ motions.

On January 27, out-of-state counsel filed a supplemental designation. It was not signed by local counsel. In other words, it was a legal nullity, and not what you would necessarily call a response provided “in the proper manner.”

At a subsequent hearing, Landrum’s out-of-state lawyer conceded that he’d violated Rule 1A:4(2) by filing the document without local counsel’s signature. Worse, he admitted that he’d filed many pleadings in the case in violation of the Rule, including his original designation.

But he argued that exclusion of the expert witnesses was unwarranted because he had remedied the violation by refiling the supplemental designation with local counsel’s signature on February 17–that is, about 3 months after the expert disclosure deadline.

The trial court wasn’t buying it. The court excluded the experts, and entered summary judgment in favor of the defendants.

Landrum filed a petition for appeal. The Supreme Court granted her appeal on five assignments of error. That was great news. But Landrum’s lawyers rescued defeat from the jaws of victory, by making substantive changes to four of the five assignments of error. That’s really, really not allowed. So the Court predictably struck those four assignments.

The remaining issue on appeal was whether the trial court had abused its discretion, a less than compelling appeal point. The legally correct answer is OF COURSE NOT!!! >:(

(Yes, that’s right. I’ve taken to using emoticons instead of case citations. I’ve found that they’re about equally effective about 85% of the time.)

Anyway, you can probably skip that part of the opinion.

But Landrum does include a terrific discussion of the abuse-of-discretion standard of review.

The majority adopts a standard under which an abuse of discretion can happen in three principal ways:

  1. When the trial court does not consider a factor that should have been given significant weight;
  2. When the trial court considers an improper or irrelevant factor, and gives it significant weight; and
  3. When the trial court considers all proper factors, and no improper ones, but commits a clear error of judgment in weighing those factors.

Sounds good–but what about those cases that say that an error of law is, by definition, an abuse of discretion?

Justice Millette and Chief Justice Kinser concurred. They differed with the 3-justice majority on precisely that point: the new rule does not account for the principle that a trial court abuses its discretion by definition when it commits a legal error.

Finally, I had a blast in Richmond last week. It was great to see everybody. I’m headed up to DC at the end of the week for the AJEI conference, so please drop me a line if you’re in town.