Let’s start with the punchline from Hawkins v. Town of South Hill: Merely stating an objection above your endorsement to an order is not enough to preserve the objection for appeal. You must object with reasonable certainty, giving the court a chance to rule intelligently on your issue, and the court must in fact make a ruling.

Hawkins is a FOIA case. Hawkins, a lawyer, submitted several FOIA requests to the Town. The town responded, but Hawkins believed that its responses were incomplete. So he filed a petition asking the trial court to compel the Town to produce the requested documents. FOIA allows the court to award attorney fees and costs when (1) the court finds a FOIA violation and (2) the plaintiff substantially prevails on the merits of its case.

The trial court granted FOIA petition in part, but it did not address the issue of attorney fees. Nor did it determine whether Hawkins had substantially prevailed. Just the opposite, the court asked the Town to draft an order memorializing its rulings, because the court “agreed with the Town’s position more than it did not.”

The Town moved for entry of an order, advising the court that the plaintiff “want[ed] to address the issue of attorney’s fees.” Hawkins did not oppose the Town’s motion. He endorsed the order, specifically objecting to the court’s failure to award attorney fees or hold that he was a prevailing party under FOIA.

Hawkins then appealed the court’s rulings on the merits, as well as its failure to award attorney fees or hold that he was a prevailing party. We’ll skip the merits and focus on preservation.

Justice Mann, writing for a unanimous court, reminded the parties of Rule 5:25–SCOVA’s contemporaneous-objection rule–which says: “No ruling … will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling . . ..” A party satisfies this rule when they give the trial court a chance “to rule intelligently on the issue.” If they don’t give the court that chance, then “there is no ruling by the trial court on the issue, and thus no basis for review or action by this Court on appeal.”

Here, the trial court did not rule on on the attorney-fees or prevailing-party issues. The Supreme Court explained that this was because the court had not been given a fair chance to rule on them:

The absence of a ruling on either issue is understandable because Hawkins did not present either issue to the circuit court. He did not request fees and costs in his opposition to the Town’s demurrer, or in his response to the Towns’ log of documents. Hawkins did not raise the issue of fees at all during either of his hearings before the circuit court. Even when the Town moved for entry of a final order, Hawkins did not raise a request for fees or file any response. The only mention of fees occurred in the Town’s motion, where it stated that “[Hawkins] wants to address the issue of attorney’s fees.” Hawkins endorsed the order with objections but did not notice a hearing or request that the circuit court revise its order to address either issue. Because Hawkins failed to obtain a ruling on the prevailing party issue or the issue of attorney’s fees, we find there is no ruling to address on appeal, and consequently affirm the circuit court on both assignments.

So what are the takeaways from Hawkins?

First, the old preservation formula still holds: object while the court remains in a position to take corrective action, get a ruling, and make a record. Simply appending objections to a final order is not sufficient.

Second, if you find yourself at the end of the case with objections you’d still like to make, try a motion to reconsider. An appellate court can hardly fault you for trying that in light of Lucas v. Riverhill Poultry, Inc. Or you could follow Justice Mann’s implicit advice in Hawkins and notice a hearing and ask the court to revise its order in light of your objections. (Better yet, both. As Justice Mims used to say, “When in danger, when in doubt . . ..”)

Third, I’m sympathetic to the plaintiff in this case. His mistake is understandable and not remotely unusual. In my practice, I see cases from around the Commonwealth, and endorsement practices vary by region and by judge. I also have the general impression that more senior lawyers and judges may tend to put more stock in endorsements. But in light of Hawkins, Cashion v. Smith, and Rule 1:13, I’d give them little weight going forward.

Here is Kyle McNew on Colas v. Tyree.

On January 26th, the Supreme Court of Virginia issued its decision in Colas v. Tyree.  This was a tragic case where a police officer shot and killed Mr. Tyree, who was in the midst of a severe mental health emergency.  The shot followed a multi-hour attempt by the police to deescalate the situation and to disarm Mr. Tyree, who had what is described as a military-style knife with a long blade that was sharp on one edge and serrated on the other.  The officer was called as a witness by the Estate and testified that he shot Mr. Tyree because he believed another officer was in imminent danger of death or serious bodily injury.  We call that the “defense of others” defense, and it’s the same analysis as self-defense.  

Based on the facts recited by the Court, this was a plausible defense.  But the jury saw it differently and returned a verdict for Mr. Tyree’s estate on its battery claim against the shooting officer.  There is a lot going on in the Court’s 4-3 decision between Justice McCullough’s opinion for the majority and Justice Russell’s dissent.  Brother Emmert comprehensively describes the to and fro over at his spot on this internet.  But I want to focus on the legal point that is the heart of the case.

All Virginia lawyers generally know the adverse party witness rule:  if you call an adverse party in your own case, you are bound by the adverse party’s testimony.  We also know the rule is not absolute:  you are not bound by the adverse party’s testimony if it is contradicted by other evidence that you adduce in your case or if it is inherently improbable or incredible.  The problem is that this exception isn’t very predictable in application.  One judge’s contradiction might be another’s immaterial inconsistency, so most lawyers are terrified of the adverse party witness rule.  

The Colas majority opinion, finding that the Estate was bound by the officer’s testimony and thus reversing the jury’s verdict in favor of the Estate, does nothing to ease those concerns, and one aspect really jumped out at me.  In describing the contours of the rule, the Court states:

If testimony from an adverse party witness is uncontradicted on a specific factual point, the plaintiff is bound by it. In addition, we have repeatedly rejected the notion that the “positive testimony” of an adverse party witness – specific factual testimony – can be overcome by other evidence, such as inferences drawn from primary facts, or “negative” testimony from a witness.

This was a record-screeching-to-halt passage for me.  I read this to say that inferences drawn from circumstantial evidence, no matter how strong the inference might be, can never create the contradiction necessary to escape the adverse party witness rule.  For example, if the adverse party testifies in your case that the light was green you are bound by that testimony even if there is a mountain of circumstantial evidence from which one could infer that the light was red.  Only another witness directly testifying that the light was red would create the contradiction with the adverse party’s testimony necessary to escape the rule. 

That did not sit right with me.  I could have sworn that Virginia law generally treated inferences drawn from circumstantial evidence as having equal weight as direct or positive evidence.  And sure enough, there it is right there in the Model Jury Instructions:  

Any fact that may be proved by direct evidence may be proved by circumstantial evidence; that is, you may draw all reasonable and legitimate inferences and deductions from the evidence.  

VMJI (Civil) 2.100.  Flip the page to the Practice Commentary and we see it in even starker terms:

There is no distinction in the law between the weight or value to be given to either direct or circumstantial evidence:  circumstantial evidence, if convincing, is entitled to the same weight as direct evidence.

Id. (citing Commonwealth v. Hudson, 265 Va. 505, 512 (2003) and Britt v. Commonwealth, 276 Va. 569, 573 (2008)).

But now we know that apparently isn’t always true.  Circumstantial evidence has the same weight as direct evidence except, apparently, if the direct evidence comes from the adverse party in your own case.  And I respectfully submit that makes no sense.  If ever we are going to elevate the weight of one type of evidence over another, why would the adverse party’s presumably self-serving testimony be what we give greater weight?  This strikes me as a huge doctrinal inconsistency, and certainly a trap for the unwary.    

The Fourth Circuit just handed down a new regulatory-takings opinion, Blackburn v. Dare County. Judge Richardson wrote for a unanimous panel that also included Judges Agee and Rushing. Here is the opening paragraph:

Joseph Blackburn, Jr. and Linda Blackburn own a beach house in Dare County, North Carolina. In the early days of the COVID-19 pandemic, Dare County banned nonresident property owners from entering the county. As a result, the Blackburns could not reach their beach house for forty-five days. In response, they sued Dare County, alleging that their property was taken without compensation in violation of the Fifth Amendment. After the district court found that the ban was not a Fifth Amendment taking and dismissed the Blackburns’ suit for failure to state a claim, the Blackburns appealed. But we affirm. The ban did not physically appropriate the Blackburns’ beach house. And though it restricted their ability to use the house, compensation is not required under the ad hoc balancing test that determines the constitutionality of most use restrictions.

For a few years now, I’ve taught a spring class at UVA on something called “Federal Litigation Practice,” which I interpret to mean critical motions and appeals. (UVA offers other, much better, classes about trial practice.)

Every year, we start the class by going over “How to Write: A Memorandum from a Curmudgeon” by the incomparable Mark Herrmann.

Poke around the internet, and you can find plenty of other stuff that Herrmann has written, like at Above the Law or the Drug and Device Blog. It’s very good! And “How to Write” is itself just the first chapter of Herrmann’s brilliant book, The Curmudgeon’s Guide to Practicing Law. At my old firm, we gave The Curmudgeon’s Guide to every incoming lawyer. It’s very good!

But “How to Write” is just perfect. It’s 10 pages long. If you click the Amazon link to The Curmudgeon’s Guide in the previous paragraph, you can click “Look Inside” and read almost the entire essay. So Herrmann follows his own advice (“Finally, keep the brief as short as humanly possible.”) He’s also a solid stylist. If BriefCatch wrote a memo, this is how it would read.

And the essay itself is just crammed full of great advice. As it sit here trying to plagiarize it, I’m not even sure where to start. I steal the joke about block quotations almost every time I teach a CLE. So even though it’s great, plenty of readers have heard it before.

Instead, let’s go with Herrmann’s rules for describing a case. That’s what we teach in class. When you give Mark a memo, there is only one way to tell him about a case:

  • Facts
  • Trial court’s holding (granting or denying a motion, or entering a judgment)
  • Appellate court’s holding (affirming, reversing, vacating, or remanding)
  • Whatever else you want to say

All which builds up to his rationale:

Why do I insist on a rigid formula for discussing cases? Because my clients like to win.

On Herrmann’s account, cases vary in their persuasive force. The most persuasive cases show the court doing what the Bad Guy is asking it to, then getting reversed. By discussing that case, you are implicitly telling the court that if you do what the Bad Guy asks, it too will get reversed. They hate that.

Second-best is the case where the court does what you’re asking and gets affirmed. At least you are keeping the court safe.

The least useful case is one where the court says something in dictum. If that’s the best we’ve got, so be it.

But as the Curmudgeon explains:

Your memorandum, however, must tell me the holding of the case first. If you do not tell me the holding in your memo, then I will not believe that you read and understood the holding. I will be forced to go to the library and read the case. I will not like this.

The highlight of the VBA’s annual meeting this year was its Saturday panel on What We’ve Learned from the Expansion of the Court of Appeals of Virginia. Judge Ortiz and Jason Konvicka were the panelists, with Henry Willett moderating.

Here are a few takeaways:

  • Judge Ortiz is funny! I had not realized this. Also, he was careful to point out that he was speaking for himself, not the CAV, and none of his comments represented the Court’s official position.
  • Panel Assignments. Judges are assigned to panels at the beginning of the year by a computer program. Assignments are basically random within a set of defined parameters (length of time between panels, repeat combinations of judges, etc.). After panels are assigned, some judges will trade assignments to accommodate their schedules.
  • Timing. It takes about six months for an appeal to progress from entry of judgment in the trial court through completion of briefing in the CAV. Once the case ripens, it will be set for oral argument. Cases are then assigned to panels, with criminal cases getting priority. The Court hears argument, then conferences–sometimes once in a two-day session, sometimes each day of the session. The Court tries to get opinions out about 45 days after argument, although the process can take longer depending on the case and panel. (So in practice, maybe 45-60 days, and sometimes even longer?) The Court tries to get appeals through the system in 9-12 months after filing, but that may slow to 12-15 months as workload increases.
  • Concurrences & Dissents. The Court is seeing a rise in concurrences and dissents. This, too, can slow the process.
  • Workload. CAV filings are back to pre-pandemic numbers, but with two important caveats. First, the Court is not yet fully up to speed on civil appeals. Second, trial courts are not back to pre-pandemic levels of judgments. So the CAV anticipates that its docket will continue to grow. Right now, it’s running 48 panels a year and handling 18 appeals per panel. It will likely have to increase that to 24-30 appeals per panel, which will slow down the opinion-writing process.
  • Motions. The CAV does not have a motions day. Motions are decided on the papers by a panel of three judges. The Court has seven standing motions panels.
  • Procedural Defaults. When it comes to procedural defaults, the judges generally fall into three groups. First, a group that is relatively quick to find a default. Second, a group that is relatively slow to find one. And third, a group that falls somewhere in the middle, focusing on fairness to the trial judge. The CAV uses 5A:18 as a verb these days–“Let’s 5A:18 that argument.”

One of the nastier waiver traps in Virginia practice is the Drinkard-Nuckols rule–that is, the principle that if you unsuccessfully object to a piece of evidence, you waive that objection if you introduce evidence dealing with the same subject in your case in chief. (You can still introduce the evidence on cross-examination or rebuttal.)

This rule creates an obvious dilemma, especially for a plaintiff: If you lose a motion in limine to exclude evidence, do you then pretend the evidence doesn’t exist and let your opponent stun the jury with it? Do you hit it on rebuttal” Or do you engage it head on, and worry about appellate consequences later?

And then . . . just what, exactly, is it that we can’t introduce again? The case law alternates between formulations like “evidence of the same character” and “evidence dealing with the same subject” and evidence “similar to that to which the objection applies.” These are not self-defining terms. Every piece of evidence at trial “deal[s] with the same subject” to some extent. Otherwise, it would be irrelevant.

For what it’s worth, I follow two principles when working through Drinkard-Nuckols problems. First, I remember that as Kyle McNew says, every preservation-of-error question is really a case-strategy question, balancing trial and appellate interests. Each additional objection or argument that shores up your position on appeal comes at the cost of potentially ticking off the judge or jury. So the whole game is about tradeoffs; there are no perfect solutions, and we are just trying to maximize the value of our position. Generally speaking, winning with the jury adds a lot of value to a position. And generally speaking, decisions excluding evidence will be reviewed on an abuse-of-discretion standard. So as far as tradeoffs go . . .

Second, I like then-Judge Kelsey’s opinion in Isaac v. Commonwealth, 58 Va. App. 255 (2011), which points out that the two justifications for the Drinkard-Nuckols rule are harmless error and waiver. That helps a lot with the whole question of what we’re allowed to discuss! For example, assume that you are right, and the trial judge erred by denying your motion to exclude evidence. Would the material that you are about to introduce render that error harmless? Alternatively, would it seem to the neutral observer that by introducing this evidence, you are intentionally abandoning your earlier objection? If the answer to either question is “yes,” then you have a Drinkard-Nuckols problem.

It’s been a while since I’ve done one of these. Here’s what I’ve been reading:

  • Friday Night Lights by Buzz Bissinger. I loved this book and can’t believe I haven’t read it until now. It’s somehow both clear-eyed and sympathetic, and compelling throughout. My only regret is that coach never said, “Clear eyes, full hearts, can’t lose.” I was waiting the whole book!
  • Lone Star: A History of Texas and the Texans by T. R. Fehrenbach. Covers the parts of Texas history omitted by Friday Night Lights. Really well done. Fehrenbach helped me appreciate important ways in which Texas differs from, say, New York or Wyoming. 
  • The Lightning Rod by Brad Meltzer. First Meltzer I’ve read, and a well-crafted thriller. Liked it and will read more.
  • The Passenger by Cormac McCarthy. So weird. So meta. Kind of barely even a novel? I actually had to pull a cheat sheet from Reddit to follow one of the chapters. I quite enjoyed the parts that I understood.
  • Agamemnon and The Libation Bearers by Aeschylus. Brutal. Is it weird that we teach this stuff in high school? I appreciate the need for cultural literacy, but a lot of this just washed over me in AP English. 
  • The Monster’s Bones by David Randall. So, I loved dinosaurs growing up, and I especially loved the American Museum of Natural History. This is the story of how intrepid fossil hunter Barnum Brown made the Museum what it is today and found approximately . . . all the dinosaurs? At least T-Rex. Bonus points for the picture of Brown on a dig in a 20s-style fur coat. All that was missing was a pennant that said “College.”
  • The Secret History by Donna Tartt. I can understand why a person would like this book but it didn’t really click for me.
  • Allow Me to Retort by Elie Mystal. On the days when I don’t want to be Matt Levine I think I might want to be Elie Mystal.
  • How to be Perfect by Michael Schur. Charming and funny. I think Justice by Michael Sandel is a better treatment of the subject matter for basically the same audience. As was, you know, The Good Place.

I’ve done two oral arguments at the revamped Court of Appeals of Virginia, and I have a few more in the pipeline. Some initial thoughts:

  • Good vibes. The clerk’s office is (as always) extremely helpful, and the arguments have been very enjoyable. The judges are well-prepared and extremely polite. Both panels freely doled out extra time to give discussions room to breathe, and the judges left the bench to shake hands afterward.
  • Better in person. I’ve argued before the CAV remotely during the pandemic and in person since then. The arguments are much more fun (and much easier) in person.
  • iPad fun. For longer than I care to remember, Brother Emmert has been teasing me about when I’d start using an iPad for oral arguments. I’ve been reluctant because it’s much easier to navigate paper than pdfs. But are they that much easier to navigate? And how much time do I actually spend flipping through my podium binder at argument? I’ve been using my iPad Pro to read cases and review the record for a while now. So last time out, I finally gave it a shot: I saved the absurd list of lists, outlines, and argument blocks that makes up my podium binder as a pdf, added it to the file, and brought my iPad to court. For folks interested in the details, I used an app called Good Notes. I created a folder for the case, and subfolders for authorities, briefs, and the record. I’d already thoroughly highlighted and annotated those documents, and I bookmarked key pages for easy access. With that very minimal prep, I had no problem navigating the documents at argument, and it was reassuring to have literally every document in the case at hand and word-searchable. That said, I did make a rookie mistake: I did not sit down ahead of time, think about which documents in the record the Court might want to talk about—there weren’t that many (there are never that many!)—and save them separately for easy reference. That probably could have saved me precious seconds at oral argument. So next time around, I will probably make my own, very limited, Joint Appendix file. 

As the great and the good work on revising the rules for the expanded Court of Appeals of Virginia, I have a question: Should the Court of Appeals have binding assignments of error?

The current rules, of course, require assignments of error, and a key part of the revision project is minimizing any unnecessary changes.

But does it really make sense to require them going forward? Part 5A of the current rules devotes significant real estate to assignments of error, imposing some fairly technical requirements. Consider Rule 5A:12(c):

(1) Assignments of Error. Under a heading entitled “Assignments of Error,” the petition must list, clearly and concisely and without extraneous argument, the specific errors in the rulings below — or the issue(s) on which the tribunal or court appealed from failed to rule — upon which the party intends to rely. An exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken must be included with each assignment of error but is not part of the assignment of error. If the error relates to failure of the tribunal or court below to rule on any issue, error must be assigned to such failure to rule, providing an exact reference to the page(s) of the record where the issue was preserved in the tribunal below, and specifying the opportunity that was provided to the tribunal or court to rule on the issue(s).

(i) Effect of Failure to Assign Error. Only assignments of error assigned in the petition for appeal will be noticed by this Court. If the petition for appeal does not contain assignments of error, the petition will be dismissed.

(ii) Insufficient Assignments of Error. An assignment of error which does not address the findings, rulings, or failures to rule on issues in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence, is not sufficient. If the assignments of error are insufficient, the petition for appeal will be dismissed.

(iii) Effect of Failure to Use Separate Heading or Include Preservation Reference. If the petition for appeal contains assignments of error, but the assignments of error are not set forth under a separate heading as provided in subparagraph (c)(1) of this Rule, a rule to show cause will issue pursuant to Rule 5A:1A. If there is a deficiency in the reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken — including, with respect to error assigned to failure of such tribunal to rule on an issue, an exact reference to the page(s) of the record where the issue was preserved in such tribunal, specifying the opportunity that was provided to the tribunal to rule on the issue(s) — a rule to show cause will issue pursuant to Rule 5A:1A.

What words spring to mind after reading that? Dense? Daunting? Trap for the unwary?*

By contrast, the Federal Rules of Appellate Procedure just ask for “a statement of the issues presented for review.” Fed. R. App. P. 28(a)(5). Short and sweet. Yet the Federal courts still manage to run a functioning appellate system.

In fairness, it might make sense to require assignments of error in requests for discretionary review, because litigants will be asking the Court to review a specific question. But the expanded Court of Appeals will grant litigants an appeal of right. So that justification won’t work.

Historically, SCOVA has explained the need for assignments of error by pointing to a need to identify appeal points, limit extraneous discussion, and allow the appellee to respond:

The purpose of assignments of error is to point out the errors with reasonable certainty in order to direct this court and opposing counsel to the points on which appellant intends to ask a reversal of the judgment, and to limit discussion to these points. Without such assignments, appellee would be unable to prepare an effective brief in opposition to the granting of an appeal, to determine the material portions of the record to designate for printing, to assure himself of the correctness of the record while it is in the clerk’s office, or to file, in civil cases, assignments of cross-error.

These justifications don’t work in the context of the expanded CAV. To begin with, a statement of the issues will identify points of contention as effectively as an assignment of error, without the baroque procedural requirements. Appeals to the CAV will be appeals of right, not petitions for discretionary review, so absolute precision in framing questions presented is less important than it is before SCOVA.

As for the appellees, it’s not at all obvious that without assignments of error, the appellee would be unable to respond. The appellant gets 12,300 words for his opening brief. That, more than his assignment of error, will tell the appellee what the appeal is about and allow her to respond. And if the appellant can’t get his point across in 12,300 words, then it doesn’t really matter what assignments of error he asserts. He is going to lose.

The point about knowing what to designate for the appendix makes sense, until you remember that in a world with electronic filing you don’t need an appendix in the first place. We’ll maybe do a separate post on this.

Even less compelling is the claim that an appellee cannot “assure himself of the correctness of the record” without assignments of error. That’s nonsense: Either the record is accurate, or it is not. The answer cannot possibly depend on the appellant’s arguments.

Finally, we get to the argument that without assignments of error, the appellee wouldn’t know if she needs to assign cross-error. This is just hopelessly circular. Neither the appellant nor the appellee should be limited to binding assignments of error. You can’t bootstrap a justification for binding assignments of error by reference to to an equally arbitrary requirement for assignments of cross-error.

 

*In fairness, Rule 5A:12 governs petitions for appeal. But the proposed revisions plug these requirements into 5A:20, which governs opening briefs in appeals of right.

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 the outcome below? Harmless error won’t get a judgment reversed in state or federal court.
  3. Is the relevant issue already settled in your circuit? Most circuits won’t let a 3-judge panel overrule a prior panel’s ruling.
  4. Can you satisfy the standard of review? Pretty self explanatory. De novo is better than abuse of discretion is better than clearly erroneous.
  5. Do any of your potential issues overlap? This goes to credibility. Any court is going to take a brief asserting 1-3 appeal points more seriously than one saying that the trial court made a dozen outcome-determinative mistakes.

*At least the Second Edition, which I’m still using, does; the link takes you to the Third Edition.