The brief in opposition is one of the great underappreciated joys of Virginia appellate practice. It comes at the writ stage, when we’re just trying to convince the Supreme Court that it should/should not grant a petition for appeal. We’re not necessarily arguing the merits. Sometimes, the petitioner will not yet have hired specialist appellate counsel. Even when they do, some nominal appellate lawyers fail to appreciate this distinction.

Continue Reading Dead Man Walking

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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

The SCV’s second waiver decision from last term, Brandon v. Cox, deals with two questions–one about the use of a motion to reconsider to preserve error (easy), and the other about applying the ends-of-justice exception to the contemporaneous-objection rule (much harder).

Brandon was a Section 8 tenant whose landlord withheld her security deposit without justification. The trial court ruled in favor of the landlord. On appeal, Brandon argued that the trial court had erred in ruling that the landlord and its management company could retain her security deposit to satisfy an alleged rent obligation of the housing authority.

The interesting question on appeal wasn’t whether that argument was right or wrong, but whether she’d properly raised it in the trial court in the first place.

There was no court reporter at trial, so Brandon prepared a written statement of facts. The written statement of facts did not contain any details about the parties’ arguments or the trial court’s rulings. Nor did the order or any written pleading from the trial.

Brandon did file a motion to reconsider advancing her appellate argument, but she didn’t request a hearing or get a ruling on the motion.

Of course, to preserve an issue for appeal, you always need to get a ruling. So why is this question even worth writing about?

Code Section 8.01-384(A), which abolishes exceptions and basically establishes that you only need to object once, provides that arguments made in writing at trial are preserved:

Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.

Brandon v. Cox presented a question of first impression: in light of this statute, does simply filing a written motion to reconsider after trial preserve an objection?

Stop me if you know the answer . . .


Continue Reading More on the Contemporaneous-Objection Rule: Brandon v. Cox

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.


Continue Reading Galumbeck v. Lopez: Supreme Court of Virginia Catches Some Waives

From an appellate lawyer’s perspective, one of the trickiest parts of trial practice is preserving issues for appeal.

And one of the most difficult–and, unfortunately, the most common–variations of the problem arises when the trial court does something important off the record. That can happen in chambers, at sidebar, in the hall, or practically anywhere.

Back in February, the Supreme Court of Virginia handed down Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010). That decision merits extended discussion. It not only offers the best treatment of preservation of error that we’ve ever seen, but it clarifies Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), thereby dispelling one of the great urban legends of the law.

The facts the case are, shall we say, unseemly. It arose out of a criminal prosecution for various offenses stemming from the defendant’s conduct in a Yahoo chat room with a police officer posing as a minor.

And it all went downhill from there.

During trial, there was a suggestion that defense counsel may have altered a set of Yahoo chat room rules, which they tried to put into evidence. The case was pending before Judge West. Defense counsel was clever enough to use the Yahoo user name “westisanazi” on one version of rules, but apparently not quite clever enough to do a plausible job of altering another version of the document.

A summary contempt proceeding ensued. Defense counsel (now defendants) objected and moved to stay the proceeding on the ground that it violated their due process rights. The trial court overruled the motion and held them in contempt.

Defense counsel appealed to the intermediate Court of Appeals, again arguing that that the trial court had violated their due process rights. The Court of Appeals held that they had failed to preserve that argument for appeal, because they’d failed to specify the relief they sought and asked only for a stay.

On appeal, the Supreme Court reversed. Writing for the Court, Justice Kinser gave a detailed explanation of the contemporaneous objection rule.


Continue Reading Scialdone v. Commonwealth–Best Preservation of Error Opinion Ever?

Don’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 a breach of contract case. The plaintiff, the Lehner Family Business Trust, was not actually a party to the contract; one of the parties attempted to assign its claims to the Trust, and the validity of that assignment would play a major role in the litigation.

The parties went to trial before a jury. At the close of the Trust’s case in chief, United Leasing moved to strike on two grounds:

  • The Trust had failed to prove an assignment; and
  • The Trust had failed to prove damages.

The trial court overruled United Leasing’s motion to strike. United Leasing put on its own evidence, and the Trust presented evidence in rebuttal. After the jury retired at the close of all of the evidence, counsel for United Leasing stated:

Renew my motion to strike. For the record, I wanted to renew my motion to strike.

Instead of addressing the motion to strike, the trial court spoke to counsel for a while about exhibits and jury instructions. After closing argument and after the jury began its deliberations, the trial court asked United Leasing about its renewed motion. At that point, United Leasing argued only that the Trust had failed to prove damages. It did not reargue the assignment issue.

The jury returned a $1.1 million verdict for the Trust. United Leasing appealed, arguing that the Trust had failed to prove an assignment.


Continue Reading United Leasing Corp. v. Lehner Family Business Trust: When Renewing Your Motion to Strike, Do Not Renew Your Motion to Strike

A few weeks back, we wrote about appealing evidentiary rulings. That post generated a pretty obvious follow-up question: What do you do when your (clearly correct) objection is overruled, and the bad guys are allowed to introduce their (wildly improper) evidence?

The problem may be most starkly presented when you file a motion in