In a slow week, SCOVA granted just one appeal (and reportedly on a petition for rehearing at that): a parol evidence/statute of frauds/estoppel case out of Williamsburg.

As a bit of a contract junkie, I’ve got to admit that I’m interested. Also, Joe Rainsbury and Steve Emmert are involved, so the issues will be presented well.

Details after the jump.

Continue Reading Appeals Granted

Judge Posner has a brilliant article in the Yale Law Journal slamming The Bluebook–in his felicitious phrasing, “a monstrous growth, remote from the functional need for legal citation form.” Hat tip to Eugene Volokh and Ilya Somin, who discuss the article at the Volokh Conspiracy.

I commend Posner’s piece to you. It is short. It is hilarious. I cannot improve on anything he’s written. I wish I could argue that The Bluebook is not a tumor. (Go on, click that last link.) But I can’t. If you have a minute sometime, hit up The Bluebook‘s website, and gaze in horror at is gruesome metamorphosis from a reasonable, 26-page citation guide in the 1926 1st edition to the incomprehensible 511-page absurdity that is the 19th edition.

To illustrate The Bluebook‘s “obsession with abbreviations,” Posner has fun with some of the guide’s more obscure short forms, and that’s a fair point.  (“What does ‘C.Ag.’ stand for? Why, of course, the Codigo de Aguas of Brazil.”) But even the normal abbreviations can get kind of silly. Quick, what does “Rest.” mean? If you said “restatement,” you’re wrong. It’s “restaurant.” T.6. And “Tr.”–trial, transcript, or trustee? Or all 3? Who cares?

Interestingly, Posner himself doesn’t follow The Bluebook. He uses his own citation form, which is appended to the article. (No parallel citations!)  He can do that, because he’s Richard Posner. He could probably, if he tried, also get away with coming to court without any pants. I cannot. But he is so clearly right on this point–The Bluebook, not the pants–that I am willing to follow the Posner citation manual for a month . . . and to see if anyone notices.

After reading about Matthew Butterick’s new book, Typography for Lawyers, on the Appellate Record, I picked up a copy. You should, too.

The book is outstanding. I can’t say enough good things about it. If you want to get a flavor for Butterick’s work, check out his website. It’s loaded with helpful tips and examples.

Butterick’s basic premise is that lawyers are professional writers, and proper document design is part of effective writing. As he puts it, good typography helps conserve reader attention. The typography typically found in legal documents, by contrast, does . . . something else.

The common formatting of legal documents is a holdover from the time when people used typewriters and couldn’t do any better than underlining, double-spacing, using capital letters for emphasis, etc. Those techniques are lazy; they make things easier on the writer, not the reader. They are therefore counterproductive.

Put slightly differently, formatting your document to look like it just rolled off a Selectric undermines all of the hard work that you have put into your writing.

That’s the basic idea. There is far too much great stuff in Butterick to even try to summarize it here.

Instead, I will just prove to you that Butterick’s stuff works and leave it to you to read his book or check his website for further edification.

How will I do that?

By plagiarism reference. In a legal writing nerdgasm, Kendall Gray took an opinion from the Supreme Court of Texas and shipped if off to Butterick for his review and improvement.

Here is the original document.

Here is the Buttericked version.

The difference isn’t subtle. One looks like a college term paper. The other looks like a professionally designed document.

If you would like a detailed explanation of how that worked, check out Kendall’s blog. (Actually, you should do that anyway. It’s really well done.) Butterick lays out the steps. It helps to know words like “kerning” before trying to read this.

If you would like to skip the explanation and learn how to do this yourself, go here.

Could we get Butterick to do the same thing to a SCOVA brief or opinion?

Doubtful. I hate Rule 5:6 more than anyone. Double-spaced 14-point Arial makes my eyes hurt and my heart sad. But after reading his book, I’m pretty sure that seeing a document set up that way would kill a part of Butterick’s soul.

SCOVA granted 9 appeals in recent days, 5 criminal and 4 civil. Highlights include

Complete information about the writs is available on the Court’s website. Here is a summary of the cases, lawyers, and issues involved:

BROOKS v. COMMONWEALTH, Record Number 091047, on appeal from the Court of Appeals of Virginia

Counsel

  • Daniel W. Hall (Office of the Public Defender) for appellant.
  • Cheryl J. Wilson (Office of the Commonwealth’s Attorney) for appellee.

Assignments of Error

  1. The Court of Appeals erred by upholding the trial court’s refusal to suppress the evidence where the consent given for a search for a gun did not justify the search of a folded NTelos bag, rendering the further search a violation of petitioner’s rights under the U.S. and Virginia Constitutions.
  2. The Court of Appeals erred by upholding the trial court’s refusal to suppress defendant’s statements as the immediate fruit of the unlawful search of the NTelos bag.
  3. The Court of Appeals erred by upholding the trial court’s refusal to suppress defendant’s statements where they were made in violation of his Miranda rights under the Fifth and Sixth Amendments.
  4. The Court of Appeals erred by upholding the trial court’s ruling permitting the introduction of a certificate of analysis in violation of the appellant’s rights under the Confrontation Clause.

 

SCHUMAN v. SCHUMAN, Record Number 100967, on appeal from the Court of Appeals of Virginia

Counsel

  • Scott A. Surovell (Surovell Markel Isaacs & Levy PLC) for the appellant.
  • William B. Reichhardt and Colleen C. Sweeney (William B. Reichhardt & Associates) for the appellee.

Assignments of Error

  1. The Court of Appeals erroneously disregarded the trial court’s interpretation of the agreement.
  2. The Court of Appeals erroneously affirmed the trial court’s equitable distribution of the Arlington condominium.
  3. The Court of Appeals erroneously affirmed the trial court’s refusal to equitably distribute the wife’s deferred compensation earned entirely during the marriage.

Continue Reading Appeals Granted

I was flipping through my copy of Aldisert this afternoon and, as often happens, I came across a gem: in your statement of facts, narrate the facts found, not the evidence presented. As the judge explained:

I repeat for emphasis that what counts are the facts found by the factfinder. When a jury determines the facts, the appellate court is required to assume that the jurors accepted the evidence presented by the verdict winner. Too often appellants attempt to argue their evidence unsuccessfully presented to the jury. I do not exaggerate to say that during every court sitting in which I have participated since 1968, there is at least one case where an attorney has done this. Successful appellate lawyers do not.

That is absolutely correct. Aldisert calls arguing rejected evidence “stealing the facts,” and it’s a huge tactical blunder–specially when the appellee is armed with a favorable standard of review.

When an appellant argues the evidence presented, rather than the facts found, he hands the appellee an opportunity to point out–or, more likely, to quote, revel in, and savor–the contrary evidence in the record. That is a direct attack on the appellant’s credibility. Worse, it immediately puts the appellate judge on the defensive, and gives her reason to read the rest of the appellant’s brief with a “what’s-this-guy-trying-pull?” skepticism.

But it’s not over yet. Having scored the easy credibility points, the appellee can note that the appellant is simply rearguing the facts, which were rejected below, rather than any legal error on the part of the trial court.

The appellee can argue, quite correctly, that the appellant’s position is based on a faulty reading of the facts; even if the appellant’s logic were sound, his premises are incorrect.

Only then, after landing two stinging shots without any thought or effort, need the appellee explain why the appellant’s legal reasoning fails. By then, it’s probably too late for the appellant.

So how does an appellant avoid “stealing the facts?” I like to keep in mind another Aldisertism: one of the reasons why briefs have a statement of facts is “to provide the appellate court with an objective account of what occurred before the twist of advocacy is added to the cold facts.” Your statement of  facts is the foundation of your argument. It must be unshakable, and assiduously honest. After all, judges read opponents’ briefs and trial court opinions, too.

This does not necessarily mean that the fact statement should be neutral–we are advocates–but it ought to be impossible to dispute. Refocus or amplify, maybe, but not dispute.

The Supreme Court of Virginia granted 8 appeals over the past week. Highlights include:

Summaries of the appeals are below, and full information is available on the Court’s website.

The Anablogger asked me offline why I’ve started tracking this information,  which he finds a little tedious.

There are a few reasons.

First, I think that it’s neat  to see what appeals are in the pipeline and who is handling them.

Also, I’m interested in the precise wording of assignments of error, and some of the procedural issues that they implicate. Since the Court keeps the below information on its “Appeals Granted” page only until it issues a decision in the case, I thought that it might be helpful to compile it here for reference purposes. If the Court should later reject a challenge to an assignment of error as insufficient, for example, I’d like to see exactly what the appellant said.

Also, it’s my blog and I can do whatever I want. You try coming up with new content every week. It’s not easy.

With that said, here are this week’s appeals granted:

 

MILLER v. COMMONWEALTH, Record Number 092401, on appeal from the Court of Appeals

Counsel

  • Elliott B. Bender (Elliott B. Bender, PLLC) for appellant.
  • Robert H. Anderson, III (Office of the Attorney General) for appellee.

Assignments of Error

  1. The trial court erred in allowing the admission of the firearms and ballistics examination certificate and the conclusion drawn from the certificate. Although it appears that the actual certificate was never viewed by the jury, the Commonwealth was allowed to argue its conclusive effect on the case and the defendant was precluded from arguing the lack of its conclusion.
  2. The Court of Appeals properly concluded that the State forensic analyst’s laboratory firearms and ballistics report prepared for use in a criminal prosecution is testimonial evidence and thus requires a live expert to introduce the results, however, it failed to consider the proper application of this finding in context with the recent U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
  3. Mr. Miller’s constitutional right to confront and cross-examine witnesses against him has been violated. Therefore, the firearms and ballistics examination certificate and any argument made by the Commonwealth should never have been admitted over defense counsel’s objections.
  4. The Court of Appeals applied the wrong legal standard in applying its harmless error argument regarding defendant’s constitutional rights as applied to the admission of the ballistics examination certificate and the effect it had on the parties to argue their prospective cases.

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, INC.,  v. COMMONWEALTH, Record Number 101476, on appeal from the Court of Appeals

Counsel

  • Robert L. Wise and David E. Gluckman (Bowman and Brooke LLP) for appellants.
  • David E. Evans, J. Tracy Walker, IV, and Darin K. Waylett (McGuire Woods LLP), Kristy A. Niehaus Bulleit (Hunton & Williams LLP) and E. Duncan Getchell, Jr. and David C. Grandis (Office of the Attorney General) for appellees.

Assignments of Error

  1. The Court of Appeals erred in applying an “arbitrary and capricious” standard of review, instead of a de novo review, to the Board’s legal determination that it was categorically without legal jurisdiction to regulate the “hot side” of Lake Anna.
  2. The Court of Appeals erred by applying the “arbitrary and capricious” standard of review to conclude that the circuit court erred by not deferring to the Board’s reliance on an erroneous advisory opinion, a deferring EPA no-objection letter, and a “voluminous” record.
  3. The Court of Appeals erred in reversing the circuit court and upholding the Board’s categorical refusal to exercise regulatory jurisdiction over the “hot side” as a “cooling water impoundment,” when the record evidence clearly supported the circuit court’s conclusion that the “hot side” is, indeed, “waters of the United States” and properly under the Board’s regulatory jurisdiction.

HAWVERMALE v. BEST BUY COMPANY, INC., Record Number 101650, on appeal from the Circuit Court of Fairfax County

Counsel

  • Michael M. Pavlovich, Esquire, and Herman M. Braude (BRAUDE & MARGUILES, P.C.) for appellant.
  • John D. McGavin and Amy A. Lombardo (TRICHILO, BANCROFT, McGAVIN, HORVATH & JUDKINS, P.C.) for appellee.

Assignments of Error

  1. The circuit court erred in granting Best Buy Company Inc.’s (“Best Buy”) Motion in Limine to exclude the testimony of Hawvermale’s proposed human factors engineering expert, Dr. William Vigilante, Ph.D (“Dr. Vigilante”)
  2. The circuit court erred in sustaining Best Buy’s objection to, and granting Best Buy’s motion to strike, the proposed testimony of Plaintiff’s witness Dolores Hawvermale concerning the appearance of shopping carts at the Best Buy location in question on relevance grounds.

 More after the jump . . .

Continue Reading Appeals Granted

Each Tuesday, the Supreme Court of Virginia posts information about the petitions for appeal that it has granted over the previous week. The Supremes heard writ arguments last week (h/t to Emmert–and, by extension, Alan Cooper–for that link to the writ docket), and have since granted one petition for appeal:

MORRIS v. CHEDDA, Record No. 101277, on appeal from the Circuit Court of Charlottesville.

Counsel

Assignments of Error

  1. The trial court erred in refusing to instruct the jury that a landowner’s common law duty to warn invitees, when the landowner is personally aware of a hazard on his property that is not open and obvious, cannot be delegated.
  2. The trial court erred in refusing to give a curative instruction after a defense witness testified that Plaintiff had stated he had insurance.
  3. The trial court erred in refusing to permit Plaintiff to rebut the defense testimony that he had stated he had insurance.
  4. The trial court erred in refusing to declare a mistrial given the wholly uncured, unmitigated, and, as a result of the court’s rulings, uncontradicted defense testimony that Plaintiff had stated he had insurance, especially where the defense had assured the court in advance that this witness would not mention insurance and the court itself acknowledged that the mention of insurance would prompt a mistrial.

Initial Thoughts

Insurance? Yikes.*

It’s always tough to appeal a jury verdict–most favored position known to the law and all that–but if you have to do so, this looks to be the way to go: refused jury instructions, a denied request for a mistrial, and proffered but excluded rebuttal testimony. Assuming that everybody did what they were supposed to in the trial court to preserve these points, Morris may tee up some winnable questions of law.

* I participated in a mock trial once before Judge Urbanski. Although I have no recollection of doing so, I am reliably informed that I mentioned an “insurance” investigator in my opening. Judge Urbanski immediately stated that he in real life he’d have declared a mistrial, but graciously allowed us to proceed with the trial ad exercise. There ended the lesson.

It’s like a ghost town around here. How long can we make readers wait for a halfway-decent substantive post?

Unfortunately, the drought continues. I have been busy. Very, very busy. In addition to my day job–which has been crazy, though that’s never really an excuse for not posting–I have spent the time that could have gone to creating original content on the following endeavors:

  • An interview with Peter Vieth from Virginia Lawyers Weekly about blogging (subscription required). Vieth’s piece, which includes input for a number of legal bloggers from around Virginia, has some real gems from me–like this one: “I aim for about a post a week.” Oops.
  • A webinar with Kevin O’Keefe from LexBlog, Cordell Parvin, Travis Crabtree, Lizzette Zubey, and Tricia DeLeon. The webinar is pretty good, my efforts notwithstanding (I think that you can actually hear my train of thought go off the rails after Kevin cold-calls me). It’s similar to the presentation that we did at the VBA meeting this summer. If you’re interested, the folks at LexBlog have made all of the webinar materials available online.
  • Breakfast with Santa–truly, an unmitigated disaster:

Besides, you’re not really missing anything. The only thing I want to blog about right now is the opening on the Supreme Court of Virginia. But I have less than zero credibility on that issue and can’t write about it anyway because (1) my law partner is a candidate (2) my friends are candidates (3) I will have to practice in front of whoever wins, even if they don’t fall into categories (1) or (2).

The Roanoke Times has a thoughtful piece on Justice Koontz, who will step down in January after serving on various levels of the Virginia judiciary since the late-Mad Men era.

The article includes an interview with Justice Koontz. Among the highlights:

  • Justice Koontz confirms what we’ve long suspected: the courts of the ’60s and ’70s presented a “more colorful, character-filled world,” with less extensive discovery and more “trial by ambush. You never were sure who was going to say what or what was going to happen. … It actually made it more fun. … I’m not sure we got better results, but it was a different way of getting to the result.”
  • The biggest changes that he has seen in the courts over his career are (1) the explosion of discovery, (2) a decline in the level of familiarity between lawyers and judges, and (3) an increase in the variety of things people will litigate over. Basically, everything has gone to hell since Roger Sterling lost the Lucky Strike account.
  • When asked if there were any cases he wished he could revisit, Justice Koontz said, “No, not really. There have probably been some that I got wrong, but not any that come to my mind.”

Finally, I don’t know if this will show up when you click on the article, but when I pulled up the article, it ended with a banner ad that reads (and I swear I am not making this up):

Be A Circuit Court Judge Be A Circuit Court Judge W/ An Online Degree. Get Info. www.Univ-Phoenix-Online.com

A fitting coda to Justice Koontz’s elegy on better days gone by?