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Frequent fliers in the Supreme Court of Virginia are all too familiar with Rule 5:25, the Court’s contemporaneous-objection rule.

The rule is straightforward:

No ruling of the trial court, disciplinary board, or commission before which the
case was initially heard will be considered as a basis

We get questions about this a lot.

When the Supreme Court of Virginia issues a mandate affirming a judgment, it will sometimes include this line: ‘The appellant shall pay to the appellee two hundred and fifty dollars damages.”

Ka-ching!

 

Occasionally, the appellee maybe curious about his unexpected windfall. But when you’re

Handling appeal and suspension bonds correctly is one of the more technical but nonetheless important parts of prosecuting an appeal.

We often get questions about this stuff. In fact, a discussion on suspension bonds sprang up on the VTLA listserv last Friday. So it’s important to talk about bonds, even they ultimately prove goatless in

People sometimes send us their final orders for review before submitting them to opposing counsel or the trial court. We’re always glad to help, but I find that I’m often giving the same 3-5 comments over and over again.

In fact, those 3-5 comments are probably the only remotely intelligent things that I have to

It’s not often that I admit that I’ve been wrong (because I’m not often wrong) but I’ll admit it here: I have been mistaken in my approach to petitions for rehearing in the Supreme Court of Virginia.

For a long time, I didn’t take petitions for rehearing seriously. Statistically, petitions for rehearing in merits cases have been all but worthless. Over the past 25 years, the Court has issued something like 18 opinions or orders related to petitions for rehearing, which is well under one a year. I didn’t think much more of petitions for rehearing at the writ stage.

A pair of recent articles make a fairly compelling case that I was wrong.

The first, a piece by Peter Veith in Virginia Lawyers Weekly (subscription required), reports on a presentation that Chief Justice Kinser, Justice McClanahan, and Judge Chafin recently spoke at a Virginia State Bar Solo and Small-Firm Practitioner Forum in Abingdon.

As Vieth notes, that talk came just days after the Court had agreed to hear appeals in two high-profile cases that were initially rejected by the Court. It granted petitions for rehearing in both the Virginia Tech shooting case and the dissolution of The Disthene Group, Inc. (Full disclosure: our firm is involved in other matters concerning The Disthene Group, but is not handling this appeal.)

Anecdotally, I undertand that other lawyers have also been having some luck with petitions for rehearing at the writ stage. Justice Mims gave Steve Emmert credit for successfully using them when he spoke at the VTLA a few years ago.

Anyway, as Vieth reports, Chief Justice Kinser and Justice McClanahan suggest that a petition for rehearing “is nearly always worth a try.” That’s because a petition for appeal is submitted to a panel of three or four justices. A petition for rehearing, by contrast, is circulated to the entire Court. Since you only need to convince a single justice to have an appeal granted, it’s better to share your arguments with seven justices than three.

In fact, Vieth quotes Justice McClanahan as saying: “I can’t think of any reason not to [seek rehearing] if you believe you have a reason to do it.”

I think that Justice McClanahan is correct. I also think that, if you are filing a petition for appeal in the first place, then you should “believe that you have a reason” to file a petition for rehearing.

Going forward, I’ll be filing petitions for rehearing as a matter of course in cases where my initial petition for appeal is unsuccessful.

But petitions for rehearing at the merits stage are another matter altogether, right?


Continue Reading Rehearing Aid? Supreme Court of Virginia Warms Up to Petitions for Rehearing

Here’s a common problem that plaintiffs face: they assert multiple claims and the trial court dismisses one, but not all, of them before trial. That can be especially painful when the dismissed claims form the heart of the suit, and it’s not worth the plaintiff’s time to pursue the remaining claims without them.

State and federal rules provide some relief from this problem, as both allow for entry of an appelable partial final judgment. See Fed. R. Civ. P. 54(b); Va. Sup. Ct. R. 5:8A.

But what’s a plaintiff to do when partial final judgment is not available?

Well, some get creative and dismiss the remaining claims with or without prejudice, thereby creating a final, appealable judgment–they hope. We discussed some of the potential problems with this approach a few years back, calling it the “finality trap.”

Bennett Evan Cooper has a short piece on this phenomenon in the Fall 2012 issue of the ABA Appellate Practice Committee Newsletter, called “‘Manufactured Finality’ and the Right to Appeal in Federal Courts.”


Continue Reading The Finality Trap Revisited