Longtime readers know that my favorite appellate genre is probable the “The Standard of Review Decides Cases” opinion. The Fourth Circuit just handed down a solid example in Burgess v. Goldstein.
Writing for the panel, Judge Quattlebaum leads off with a grabby TSORDC intro:
The facts underlying this appeal are dramatic and emotional. They
United 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
One of my favorite recent SCV cases is Landrum v. Chippenham & Johnston-Willis Hospitals, Inc., 282 Va. 346, 717 S.E.2d 134 (2011).
I love Landrum, in part, because it gave me an excuse to write this:
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.
The whole post is here.
And a funny thing about that post: After I wrote it, I went to the Virginia State Bar’s Harry L. Carrico Professionalism Course. (Before you leap to the obvious conclusion that I was ordered to attend the class as a sanction, please understand that I am somehow, inexplicably, on the faculty.) 
At lunch, the keynote speaker was the Honorable Donald W. Lemons. Guess who was seated at his table?
Awkward.
Although, in fairness, it was not nearly as awkward as it could have been, because Justice Lemons is a delightful guy, and he’s blessed with a very good sense of humor. He would never intentionally humiliate me outside of a courtroom.
But Landrum‘s enduring legacy isn’t my personal discomfort at lunch with its author, however exquisite that might have been.
Instead, the opinion adopted a three-part test for finding an abuse of discretion. Under that test, an abuse of discretion principally occurs when (1) a trial court fails to consider a factor that should have been given significant weight; (2) the trial court considers an irrelevant or immaterial factor and gives it substantial weight; or (3) the trial court weighs the right factors but commits a clear error of judgment. Landrum, 282 Va. at 352, 717 S.E.2d at 352 (quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984)).
One of Landrum‘s oddities is that it was decided by five justices, and two of them concurred–leaving only a three-justice majority. The two concurring justices noted that, under prior case law, a trial court abused its discretion by definition when it makes a mistake of law. Id. at 357, 717 S.E.2d at 139 (Millette, J. concurring).
But again, only two justices felt strongly enough about that point to write separately, and only three signed the majority opinion. This left the treatment of a trial court’s mistake of law in an area governed by abuse-of-discretion review somewhat unsettled.
It stayed that way until the Court revisited the issue earlier this year in Lawlor v. Commonwealth, 285 Va. 187, 738 S.E.2d 847 (2013), a loooong opinion in a capital-murder case that the Court handed down in January, and which I’ve just finished reading. All seven current justices signed on to the Lawlor opinions. Justice Mims, a member of the Landrum triumvirate–err, majority?–wrote for the Court.Continue Reading Lawlor v. Commonwealth: SCV Clarifies Abuse-of-Discretion Review
Just came across this delightful explanation of how an appellate court treats the facts when reviewing a grant of summary judgment:
We limn the facts in the light most hospitable to the summary judgment loser, consistent with the record support. In doing so, we ignore “conclusory allegations, improbable inferences, and unsupported speculation.”
Appellate texts and practice guides recite solemn homilies about the importance of the standard of review (and with good reason–but that’s another post). We are told that that standard of review defines the strength of the lens through which the appellate court will review the lower court’s decisions. Our standard of review should not be