Mayer Brown’s Federal Appellate Practice has a useful checklist of questions to ask when evaluating potential issues for appeal:

1. Was the issue properly preserved with an objection or timely argument below? If not, you’ll likely be facing the plain-error standard in federal court, or the ends-of-justice exception in state court.
2. Did the mistake materially affect

…

• Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes by Anderson J. Little. Basically a mediator’s playbook, so helpful in that regard. I hadn’t realized that giving opinions was so controversial in mediator world; I ask for opinions all the time. Little’s responses to mediation cliches were especially helpful, and the bid

…

I’m still trying to wrap my head around SCOVA’s recent opinion in Lucas v. Riverhill Poultry, Inc.

Lucas seems to say that a plaintiff who fails to move the trial court to reconsider an interlocutory ruling has waived the issue for appeal.

That strikes me as patently wrong–and not in an academic way, but in a way that will cause real-world problems.

So I’m going to try to work my way through this. Follow along and tell me what I’m missing.

Lucas follows a defense verdict in a motor-vehicle-accident case. A farm-use truck owned by Riverhill Poultry ran off I-81, killing its two occupants, Lucas and Hilliard. Lucas was found outside the vehicle. Hilliard was found in its cab with his hand on the steering wheel. Hilliard worked for Riverhill, and Lucas was his “friend and neighbor.”

Lucas’s personal representative sued both Riverhill and Hilliard’s personal representative. She argued that Hilliard was driving the truck, while the defendants insisted that Lucas was the driver. (Based on these two paragraphs alone, I have . . . questions? . . . about this theory of the case. But the defense lawyers involved are both very good–and both straight shooters–so who knows.)

The plaintiff’s theory of the case was that Hilliard fell asleep at the wheel. She wanted to support this with evidence that he had a sleeping disorder and, at the time of his death, had drugs in his system that could cause drowsiness. All that seems reasonable enough.
Continue Reading Lucas v. Riverhill Poultry, Inc.: SCOVA Announces Brutal New Waiver Rule

Courtesy of Farnam Street, here is some writing advice from John Swartzwelder, the funniest writer from the Golden Age of The Simpsons (and the guy who wrote the lyrics to Spider Pig):

Since writing is very hard and rewriting is comparatively easy and rather fun, I always write my scripts all the way

…

• King Lear by William Shakespeare (No Fear Shakespeare edition). Bear with me here. For school, Jack was assigned to read the No Fear Shakespeare edition of Julius Caesar. Have you seen these books? Each page has the text of the original play on one page, with a modern English translation on the facing page.

…

Join me for a moment in considering Myers v. Commonwealth. Myers is a recent SCOVA opinion reversing a conviction for carrying a concealed weapon in a zippered backpack on the floor of the passenger seat of his car. The relevant statute, Code § 18.2-308, generally bars carrying a concealed weapon but carves out several exceptions.

The exception relevant here, subsection C(8), provides that the statute does not apply to “[a]ny person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.”

So the question presented in Myers was whether a handgun in a zippered backpack was “secured.”…
Continue Reading Justice Kelsey’s Dictionaries

1. Dharma Bums by Jack Kerouac.  “Kerouac” is a cool name, I guess. It has almost all the vowels. Why is this book supposed to be good?
2. Making Your Case: The Art of Persuading Judges by Antonin Scalia and Bryan A. Garner. I read this every year with our federal litigation class. It’s my favorite book

…