Jay O’Keeffe practices with Johnson, Rosen & O’Keeffe LLC. in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more
By Jay O'Keeffe on Posted in Opinions and Analysis,Standards of ReviewUnited States v. Carthorne is one of my favorite recent opinions. It turns on whether the standard for showing plain error is the same as the standard for proving ineffective assistance of counsel. That’s a perfectly nerdly and compelling question in its own right, but it’s not why I like the opinion. Carthorne is a winner… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisSo I’m a big nerd. I like trivia, and I enjoy some of the murkier procedural aspects of appellate litigation–in particular, the outer margins of appellate jurisdiction. As you’ve probably guessed, this makes me very popular at dinner parties. In December, the Fourth Circuit handed down a nice little opinion on this point (appellate jurisdiction,… Continue Reading
By Jay O'Keeffe on Posted in Appellate Practice,Opinions and Analysis,Preservation of ErrorFrequent 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 for reversal unless an objection was stated with reasonable… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisThe Supreme Court of Virginia livened up the lull between Christmas and New Year’s with an order vacating the preliminary injunction in Dietz Development, LLC v. Perez. Dietz has everything–First Amendment Issues, appellate procedure, and a sexy social media angle. Background It’s probably the latter that first got Dietz into the Washington Post. In short, Perez, a homeowner,… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisHere’s a fun procedural question for appellate geeks: Can an equally divided Court of Appeals, sitting en banc, reverse a judgment previously entered by a panel of that court? It seems like the answer ought to be a simple no; when an appellate court is evenly divided, the default result is affirmance. But in Conley v. Commonwealth, things… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisOver the summer, we did a couple of posts on Brandon v. Cox, a case that’s important to appellate practitioners who use motions to reconsider to clean up the record before appeal. In Brandon, you’ll recall, the plaintiff raised an argument in her motion for reconsideration that did not appear elsewhere in the record. There… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisTwo opinions from the SCV’s last session help to clarify a topic near and dear to our hearts: the contemporaneous-objection rule. We’ll address one decision this week, and take up the other one shortly. To preserve an issue for appeal, a party has to object with reasonable certainty at the time of the trial court’s ruling. Rule 5:25. Basically, he or… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisThe Supreme Court of Virginia handed down a remarkable bath of opinions on Friday. The 20 opinions included 7 dissenting opinions, which is highly unusual for a court previous notable for its consensus. Stranger still, the 12 civil cases generated all 7 dissenting opinions (one case, Weedon v. Weedon, generated two separate dissenting opinions). It… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisHere’s a question: Is it stranger that the Supreme Court of Virginia decides some cases by unpublished order, or that it publishes any opinions at all? A colleague and I were recently trying to track down a recent unpublished order from the SCV the other day. We weren’t having much luck–we couldn’t find it on Virginia Lawyer’s Weekly,… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisOn 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… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisIn the last batch of SCV opinions, we got a special treat: another foray into the Lovecraftian depths of appellate jurisdiction, Rutter v. Oakwood Living Centers of Virginia, Inc. I would have written something earlier, but I’ve had a busy few weeks–two arguments in Richmond, and the birth of our daughter, Catherine Roberts. Obligatory baby picture… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisI’m pretty sure that written discovery is the worst part of being a trial lawyer. I know for a fact that jurisdictional deadlines are the worst part of being an appellate lawyer. But just in case you needed further convincing, the Fourth Circuit–as reasonable and user-friendly an appellate court as you will find–just dropped an… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisAs promised, here is a write up on the Fourth Circuit’s recent opinion in Barbour v. International Union. I can’t take credit for this one. It’s a guest post submitted a reader, who would prefer to remain anonymous. Can’t say I blame him/her–heck, I wouldn’t want to be associated with this blog, either: For Civ Pro enthusiasts,… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisThe Supreme Court of Virginia handed down 19 opinions in November. 17 were unanimous, one was split 4-3 (Cordon v. Commonwealth) and the other was split 5-2 (Town of Leesburg v. Giordano). For those who are interested–namely, me–here is a quick breakdown of the November opinions by justice: Chief Justice Hassell Votes cast: 17 In majority: 17… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisThe Supreme Court of Virginia dropped a pair of decisions on us last month that highlight the wisdom of Mr. Baldwin’s* worldview–although, oddly enough, neither came up in the context of contracts. Read together, the holdings in Aguilera v. Christian and Shipe v. Hunter make it clear that when the Code or the Rules require a lawyer to… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisEver wonder what would happen if you named the wrong party in your notice of appeal? Thanks to the Supreme Court of Virginia’s February decision in Ghameshlouy v. Commonwealth, we now have the definitive answer: It depends. Our story begins when the Virginia Beach police respond to a call about a domestic altercation at a… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisWhile I was off running silly contests and generally doing my best to single-handedly drive up our insurance rates, the Supreme Court of Virginia handed down a new batch of opinions last week. Of particular note is Walton v. Mid-Atlantic Spine Specialists, P.C., which addresses the attorney-client privilege, and specifically the issue of inadvertent waiver. Walton is a… Continue Reading
By Jay O'Keeffe on Posted in Opinions and Analysis,Preservation of ErrorDon’t look now, but the Supreme Court of Virginia may have just redefined clarified the way you argue a motion to strike at the close of all of the evidence. Trial types may want to take some time to read over one of last session’s most important opinions, United Leasing Corporation v. Lehner Family Business Trust. United Leasing is… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisOne of the themes that we harp on here at De Novo is the importance of answering the Court”s questions. That usually comes up in oral argument, but sometimes, the Court is so kind as to direct the parties to brief certain issues. That was the case in Roberson v. Commonwealth, handed down last session.… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisCivil procedure nerds and defense counsel, rejoice! (I am looking at you, Travis.) In Barbour v. International Union, a fun–if dense–opinion handed down on Thursday, the Fourth Circuit adopts the “last-served defendant” rule for removal. Or in geekspeak, it takes a district court up on its invitation “to clarify whether the ‘first-filed’ ‘dictum’ in McKinney v. Bd. of Tr. of… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisLast Friday, the Supreme Court of Virginia handed down a batch of eighteen opinions and two published orders. One of them, Shapiro v. Younkin, provides a lucid, well-reasoned treatment of the rules regarding transcripts and written statements of fact. Please ignore it in its entirety. To paraphrase one of Caroline’s favorite writers, there is a monster at… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisThe Supreme Court of Virginia's new opinion in Hutchins v. Talbert provides a helpful--albeit procedurally convoluted--cautionary tale for trial lawyers.… Continue Reading
By Jay O'Keeffe on Posted in Opinions and AnalysisThe Supreme Court of Virginia released four unpublished orders on Friday. Steve Emmert has a fun write-up over at his website. The discussion of Browning v. East alone makes it worth reading. Here’s a preview: This is a vehicular-collision appeal, but it really-most-sincerely isn’t your ordinary collision case. The driver of the only vehicle involved struck a… Continue Reading
