The Supreme Court of Virginia handed down 20 published opinions and 1 published order last session.
One of those opinions, Galumbeck v. Lopez, contains enough waiver for the entire term. It’s the most waiverlicious opinion I can remember seeing since Commonwealth Transportation Commissioner v. Target Corp., 274 Va. 341 (2007). Galumbeck suggests that, to borrow a phrase from Frank Friedman, we are living through a veritable waiver renaissance.
Exciting times, indeed.
And if trial lawyers are going to compete in this waive–err, brave–new world, they need to know the rules.
So, on that note, a quick stroll through some of the waiver issues in Galumbeck:
First, Galumbeck complains that he was not allowed to question witnesses about a surgical log or introduce that surgical log into evidence as a sanction for discovery misconduct.
Unfortunately, all of the relevant discussions were held in a sidebar conference.
It’s a testament to how customs vary across the state that I literally did not know that people still held sidebars until reading this opinion. I thought that only happened in movies. And after reading Galumbeck, I’m pretty sure that sidebars should, in fact, only happen in movies.
But I digress.
The pertinent discussions all took place in a sidebar. It’s well settled that the appellant has the burden of presenting a record sufficient to let the SCV resolve assignments of error. If he fails to do so, the Court will not consider the affected assignment of error. Rule 5:11(a)(1). After all, a trial court’s judgment is presumptively correct.
Galumbeck tries to sidestep this rule by explaining that he proffered his objections. Wonderful things, proffers. Every time I do a CLE on preserving error, I recommend them.
But here’s the trick: proffers only work if there is someone else in the courtroom to hear them.
And no, I don’t just mean the court reporter. Galumbeck tried the “unilateral avowal of counsel” method to describe his objections and excluded evidence, but he waited to do so until after court had adjourned and opposing counsel had gone home. That doesn’t count. Opposing counsel can’t reasonably be understood to stipulate or acquiesce to things he’s never heard. Either you actually get a witness to give testimony on the record, in the absence of the jury, or you get opposing counsel to stipulate or acquiesce to it. No sneaky stuff in between.
Because opposing counsel was not around to hear Galumbeck’s statement, it did not count as a proffer, and he did not preserve the issue for appellate review.
Second waiver problem: Galumbeck objected to certain testimony in a motion in limine. But he failed to request a ruling on that issue. Thus, he waived it on appeal. Motions in limine can be tricky from a preservation perspective. I just did an article about that in the VTLA appellate journal. If you’re interested, shoot me an email. I’m glad to forward you a copy.
Third waiver problem: Galumbeck objected to a part of one of the plaintiff’s exhibits–but then he offered the same material in his case in chief. The SCV has made it clear that when a party unsuccessfully objects to material, then introduces the same evidence on his own behalf, he waives the objection.
To sum up, a few of the waiver lessons learned from Galumbeck:
- No sidebars off the record
- Proffers are good, but be sure you know what you are doing.
- If you try to exclude evidence on a motion in limine, make sure that you get a ruling. (And it can’t hurt to renew objections as the trial goes on, either).
- Don’t introduce the evidence you object to in your own case in chief.
Finally, if I’m not mistaken, Steve Emmert won both Galumbeck and Target on appeal. I am tempted to buy him a giant foam hand. For waving . . . nevermind.