Last week, the Supreme Court of Virginia answered one of the great open questions in Virginia tort law when it clarified the availability of attorney’s fees under Prospect Development Co. v. Bershader, 258 Va. 75, 92 (1999).

A little background: Virginia follows the American Rule, which provides that without a statute or contract to the contrary, the prevailing party generally cannot recover attorney’s fees from the losing party. Historically, Virginia has recognized some exceptions, like false-imprisonment cases or situations “where a breach of contract has forced the plaintiff to maintain or defend a suit with a third person.” In 1999, the Supreme Court of Virginia added to this list with Bershader, holding that “in a fraud suit, a chancellor, in the exercise of his discretion, may award attorney’s fees to a defrauded party. When deciding whether to award attorney’s fees, the chancellor must consider the circumstances surrounding the fraudulent acts and the nature of the relief granted to the defrauded party.” Bershader‘s facts were pretty bad, as the chancellor found that the defendants had “engaged in callous, deliberate, deceitful acts that the chancellor described as a pattern of misconduct” that misled the plaintiffs and others. The chancellor felt that if he did not award attorney’s fees, the plaintiffs would have won a hollow victory.

That’s all fine as far as it goes, but it left open at least two questions: (1) Are attorney’s fees available only in equity, and (2) are they available only when the defendant has engaged in egregious misconduct?
Continue Reading SCOVA Clarifies Availability of Attorney’s Fees Under Prospect Development Co. v. Bershader

As I’m working my way through my Good Will Hunting library-card master’s program,* I had the chance to revisit Crito. This is a great dialogue! It’s only about 15 pages long. Socrates is in prison awaiting execution. His friend Crito shows up and tries to talk him into escaping into exile. Socrates is having none of it.

And the leads to this amazing exchange:…
Continue Reading Crito: Persuade the Laws or Obey Them

I’m still trying to keep myself honest. For the second month in a row, we get swordfighting Lesbians (although they were way funnier in Gideon than Thucydides):

• The Landmark Thucydides: A Comprehensive Guide to the Pelopennesian War by Thucydides. This is the text of Thucydides’s classic history, with tons of explanatory extras–maps, cross-references, explanations, timelines,

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The Supreme Court of Virginia’s argument schedule for next week is up. Here are a few of the cases that caught our eye and why:

• NC Financial Solutions of Utah, LLC v. Commonwealth: A consumer-finance case raising Federal Arbitration Act and Virginia Consumer Protection Act issues. Strong judge (Judge Ortiz from Fairfax) and a

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After revisiting the Tail End, I realized that there’s only one way to keep me honest about how I’m spending my limited reading time: transparency. So I’m going to start keeping a public list of what I’m reading. As an added benefit, every time I stumble across something good I can let you all know.

With that background, here’s last month’s list:…
Continue Reading What I’m Reading

Here’s an early Christmas present: my favorite blog post in the entire world. It’s an essay called “The Tail End” that Tim Urban wrote about five years ago. It’s so, so good.

In fact, you should really stop reading this and go read it, right now. Then come back.

Back yet?

Okay.
Continue Reading The Best Blog Post Ever

I always hate it at CLEs when people say things like, “There’s no good writing. Only good editing.” Sure, a first draft is just that, and that you can’t compare your first cut at a brief with another writer’s finished product. 10-4. But how are you supposed to get from that first draft to the finished product? Like, mechanically, what are you supposed to do? In GTD parlance, what is the next physical, visible action?

For years, I didn’t know. So I would just print out my brief and read it, and edit, over and over again. How would I know that I was done? Either I would run out of time, or I would get to the point that I was reversing changes from an earlier iteration.

This was a deeply stupid approach. And it took forever.

I’ve gotten a little better at this over the years. Here’s how:…
Continue Reading I Am a Lousy Editor and So Can You!

Brother Emmert has an essay with some updated appellate statistics. I’ll let him do the talking:

Thus far in 2020, The Robes have given us 41 published opinions and seven published orders. We’ve also seen 25 unpublished orders – rulings that adjudicate the appeal but don’t appear in Virginia Reports and don’t carry precedential

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