Ever wonder what would happen if you named the wrong party in your notice of appeal? Thanks to the Supreme Court of Virginia’s February decision in Ghameshlouy v. Commonwealth, we now have the definitive answer:

It depends.

Our story begins when the Virginia Beach police respond to a call about a domestic altercation at a hotel. They question our hero, Eric Amir Ghameshlouy (spellings vary throughout the record), who gives “evasive and conflicting answers” about his name and age. [Note to self: when lying to police, give consistent and responsive answers.]

The police arrest Ghameshlouy and charge him with violating a local ordinance that makes it a misdemeanor to provide false identifying information.

The police also conduct a search incident to the arrest, and find a bag of white powder.

I know what you’re thinking: iocaine powder–odorless, tasteless, dissolves instantly in liquid and among the more deadly poisons known to man?

No, turns out it was just run-of-the-mill yayo. That earned Ghameshlouy a felony indictment under state law, in addition to his misdemeanor charge under local law.

Continue Reading Ghameshlouy v. Commonwealth: What Happens if You Name the Wrong Party in Your Notice of Appeal?

VLW reports that the Supreme Court of Virginia has elected Cynthia Kinser to serve as its next Chief Justice. Her term begins on February 1, 2011. The Court’s press release is available here.

Our heartiest congratulations go out to the Court’s first female Chief Justice for this richly deserved honor.

As longtime readers have likely intuited, Chief Justice-elect Kinser is something of a favorite in this corner of the googlesphere because (1) she is really, really smart, (2) she hails from SW Virginia, and (3) she is absolutely terrifying at oral argument. We join current Chief Justice Hassell in his confidence that she’ll serve as Chief Justice with the highest distinction.

 

It’s time for another round of the increasingly bizarre searches that lead people to this blog, and our responses:

  • can appellee attend argument on petition in virginia? Yes, appellees can and often do attend writ arguments. They just don’t get to argue themselves. See Va. Sup. Ct. R. 5:17(j)(i).
  • Supreme Court of Virginia did not have the guts. That’s crazy talk. Next.
  • How do you blue book the Virginia Rules of Professional Conduct? (Yes, the person asking about the Blue Book capitalizes and punctuates his search terms.) I follow the form in Rule 12.8.6 for the ABA Model Rules. I can’t replicate the citation form here, because I can’t do small caps, but it would look something like this: VA. RULES OF PROF’L CONDUCT R. 1.3 (2004).
  • Virginia legal blogs. VLW maintains this list. It’s a good start.
  • zombie appellant. Okay, I admit that I had to look this one up. It has something to do with the strange place where Halloween meets social protest and interpretive dance.
  • NY black angus. I never cease to be amazed by the number of bovine inquiries we get. Thanks for sending all those readers our way, Google. I’m switching to Bing.
  • justice kinser’s phone number. The zombie appellant didn’t bother me, but for some reason this seems creepy. I like Justice Kinser, too–especially after Scialdone–but maybe stick to the publicly available contact information on the Supreme Court’s website.

Remember: I am not your lawyer. None of this is legal advice. It in no way reflects the opinions of the Firm on the Move (TM), or, for that matter, of any right-thinking person.

Rule 5:17, which governs petitions for appeal, includes a few important changes that practitioners should note.

First, Rule 5:17(c)(1) clarifies what you need to include in your assignments of error: Under a separate heading called “Assignments of Error,” the petition must list, “clearly and concisely without extraneous argument” the specific errors in the rulings below upon which you will rely.

That’s all well and good; appellants have long been required to “lay their finger” on the trial court’s error, as it were.

But the new Rule requires even greater digital precision: “An exact reference to the page(s) of the transcript, written statement of facts, or the record where the alleged error has been preserved in the trial court . . . shall be included with each assignment of error.” I suspect that they’re not kidding. Rumor has long held that, when a petition arrives at the Court, it is assigned to a staff attorney who scours the record to confirm that assignments of error have been preserved. Imagine how much simpler it will be to police compliance with this Rule (and how much easier it will make life for the staff attorneys).

Next, as previously discussed, Rule 5:17(c)(3) deletes the requirement that citations to Virginia cases include a cite to the Southeastern Reporter, and Rule 5:17(f) gives petitioners the option of using a page count or a (materially shorter) word count.

In a heretofore under-discussed change, Rule 5:17(c)(5) requires references to the record in your statement of facts. Previously, the coordinate rule had required such references only “when there is any possibility that the appellee may question the statement.” Got that? Statements of facts now need citations to the record. Period. No more “fudging” it. No more making stuff up.

Moving on, Rule 5:17(c)(6) requires that, for each assignment of error, the standard of review and the argument–including principles of law and authorities–shall be stated in one place and not scattered throughout the brief. The reference here to the standard of review is a new addition–but everyone reading this blog knows how important the standard of review is, right? (Don’t make me cite Somerville again.)

Finally, Rule 5:17(h) provides guidance for Anders appeals. Anders is a pen-pal-for-life program that SCOTUS instituted to help criminal defense lawyers stay in touch with their angriest former clients. It also scares gutless appellate practitioners away from court-appointed work. For further guidance, see Rule 5:17(h).

Christina MacIsaac and David Gluckman have a fun article in the VADA‘s most recent Journal of Civil Litigation called, “Yes, They Matter: Recent ‘Commonwealth Cases’ Every Civil Practitioner Should Know.”

Their basic thesis is that civil litigators doing crunch research may have a tendency to gloss over criminal cases–but that they do so “at their peril,” because “these ‘Commonwealth cases’ control and shape appellate-preservation, procedural, and evidentiary issues that civil defense practitioners face every day.”

MacIsaac and Gluckman run through some of the important recent criminal decisions in those areas. They do civil practitioners a big favor, distilling hours of research on procedural and evidentiary issues into a brisk 16-page read. Their piece is well-written and accessible–at least, figuratively accessible, as I can’t seem to find a link on the VADA website. If you’re having trouble finding a copy, drop me a line and I’ll hook you up by email.

My one quibble: I wish that they’d included a discussion of Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010), which has an excellent discussion of preservation of error and the contemporaneous objection rule. But who am I to quibble? MacIsaac and Gluckman show that we’ve probably been remiss in not paying enough attention to cases like Ghameshlouy v. Commonwealth, 279 Va. 379, 689 S.E.2d 698 (2010), and Commonwealth v. Wynn, 277 Va. 92, 671 S.E.2d 137 (2009), on this site.

Two minor changes in the new appellate rules have been generating way too much discussion (and far too many calls to the clerk’s office) here at the Firm on the Move (TM).

On the theory that you, dear readers, operate on the same plane of nerdliness that we inhabit, we now confront  two of the least pressing issues of our time: page limits and parallel citations.

Page Limits

The confusion about page limits stems from changes to Rules 5:17, 5:18, and 5:26. The old versions of these rules provided page limits for petitions and briefs. The new rules still limit the length of submissions, but state those limits alternately in the form of pages or words. For example, under Rule 5:17, a petition for appeal “shall not exceed 35 pages or 6,125 words.”

See the problem? No? Look closer.

You can’t tell whether the petition shall not exceed the greater of, or the lesser of, 35 pages or 6,125 words. The other page/word limits are similarly drafted.

(This is why people hate lawyers.)

Predictably, this sweeping change in the law has caused great anxiety among our brethren. Language has been parsed. Debates have been held. Calls  have been placed to sources in the know.  Listservs have been consulted.

And as a result, we are able to state with some conviction that:

  1. We have it on pretty good authority that the Rules mean that briefs “shall not exceed the greater of” the stated page limit or word count.
  2. Under no circumstances should you ever be approaching the page limit or word count anyway.

And if you thought that was silly . . .

Parallel Citations

. . . then there’s the question of parallel citations. Sadly, we don’t have a good answer for this one yet.

Here’s the issue, such as it is. The old rules specified that citations to Virginia cases should cite to both the Virginia Reports and the Southeastern Reporter (at least in the table of citations). The new rules abolish this requirement, and simply require that citations to authorities include the year thereof.

Whither parallel citations?

In the last few briefs I’ve filed, I’ve cited only to the Virginia Reports. My colleagues call me a lazy, sloppy fool–and also criticize my decision to abandon parallel citations. I don’t know which is the correct answer. I can think of arguments both for and against using parallel citations:

Arguments for parallel citations

  • Even if the state court rules don’t explicitly require them, parallel citations could arguably be proper Blue Book form. The Blue Book defers to state rules, but it favors citation to the regional reporter. See Rule 10.3.1; Bluepages B5.1.3; table BT.1.
  • Presumably, the Court will continue to use parallel citations in its published opinions. Including them in your briefing will make things easier on the justices and their clerks.
  • Parallel citations look more professional.

Arguments against parallel citations

  • Parallel citations are useless and waste space. Everyone has access to Lexis, Westlaw, or Fastcase these days. The odds that anyone reading my brief will ever need a to pull a hard copy of a Virginia case from the Southeastern Reporter are negligible.
  • Cite-checking parallel cites is a pain in the neck.
  • I am lazy.

That’s all I’ve got. What do you think? Am I slacking off, or are streamlined citations the way to go under the new rules?

Here’s a story that’s been bothering me recently: As our buddies at Virginia Lawyers Weekly reported, the Supreme Court of Virginia has issued a show cause order to a Winchester attorney, directing him to explain a comment that he made on the record.

The lawyer, William Crane, represented a sexually violent predator in a case involving two appeals. Finding himself back in front of the trial court, he tried to explain the Supreme Court’s treatment of an appellate issue.

This exchange ensued:

MR CRANE: The Court refused to consider the Fifth Amendment issue. They said there was enough besides that to go ahead an approve the findings.

THE COURT: They didn’t want to touch it?

MR. CRANE: Well, they just stuffed it. They didn’t have the guts to handle it.

As luck would have it, the transcript wound up in the record for a subsequent appeal. The Supreme Court evidently read the transcript and was not amused. Citing the Rules of Professional Conduct, it directed Crane to appear on September 16 to explain whether his comment demonstrates “a patent disregard for the Justices of this Court.”

Yikes.

Virginia Lawyer’s Weekly reports that this appears to be the third show cause order issued since 1987 for a lawyer’s behavior toward the Court. The first involved a lawyer who approached a sitting justice at a social function and told him, “I’m still pissed off at you, you a-hole.”

The second was the Taboada v. Daly Seven, 272 Va. 211, 636 S.E.2d 889 (2006) debacle, where a lawyer signed and filed a petition for rehearing, which employed “intemperate language” to “ridicule and deride the Court” and “express displeasure” with its opinion.

That’s putting in diplomatically. Here’s an excerpt from Taboada:

[The lawyer] made numerous assertions in the petition for rehearing regarding this Court’s opinion. [He] described this Court’s opinion as “irrational and discriminatory” and “irrational at its core.” He wrote that the Court’s opinion makes “an incredible assertion” and “mischaracterizes its prior case law.” [The lawyer] stated: “George Orwell’s fertile imagination could not supply a clearer distortion of the plain meaning of language to reach such an absurd result.” [He] argued in the petition that this Court’s opinion “demonstrates so graphically the absence of logic and common sense.” … [The lawyer] also included the following statement in the petition: “[I]f you attack the King, kill the King; otherwise, the King will kill you.”

 

Continue Reading Supreme Court of Virginia Issues Show Cause Order

It’s been a while since we inflicted one of these posts about the new rules on you, dear readers. Don’t worry. This one will be relatively painless.

That’s because Rules 5:9 (Notice of Appeal) and 5:10 (Record on Appeal: Contents) look pretty much the way they did before July 1. Nothing wrong with that.

Rule 5:11 (Record on Appeal: Transcript or Written Statement) includes a few changes. Subsection (a) explains that it is the petitioner/appellant’s obligation to ensure that the record is sufficient to let the Court resolve the assignments of error. If the appellant fails to ensure that the record contains a necessary transcript or written statement of facts, the Court will not consider any assignment of error affected by the omission. The rule imposes a parallel obligation on the appellee with respect to cross-appeals.

Scary stuff, but don’t panic yet. Rule 5:11(d) creates a mechanism for correcting and supplementing the record. Essentially, if anything material is omitted from a transcript, or if a transcript is untimely filed, by “omission, clerical error, or accident,” the filing “may be supplemented, corrected, or modified at any time within 70 days from the entry of judgment appealed from.” Notice must be provided, just as it would be for filing a transcript under normal circumstances.

After 70 days, the record can be modified, supplemented, or corrected by order of the Court sua sponte, or upon motion of any party, if at least two justices concur in a finding that the change is “warranted by a showing of good cause sufficient to excuse the delay.”

This is good news, and part of the revisions’ overall move away from the death penalty. We’ve all heard the horror stories about people–even experienced appellate practitioners–missing filing deadlines for transcripts. Historically, that’s been one of the great booby traps of Virginia appellate practice. Subsection (d) now provides an explicit mechanism short of dismissal for fixing material errors in the record, which should allow the Court to reach the merits of more appeals.

Finally, Rule 5:11(e) explains what the “incidents of the case” are, in an apparent effort to improve the quality of written statements. In case you were wondering, the term refers to “motions, proffers, objections, and rulings of the trial court” pertinent to the appeal. You know . . . the sort of stuff you’d put in a written statement of the facts.

I’m headed over to the Homestead later today for the VBA summer meeting. I hope to see some of you there.

I humbly predict that one of the highlights of the meeting will be a panel at 2:30 tomorrow put on by the Civil Litigation and Appellate Practice sections, “The Roberts Court at Age Four: The 2009 U.S. Supreme Court Term in Review.” It features former Solicitor General/Supergenius Paul Clement and other luminaries. I participated on the subcommittee that helped organize the panel–which is to say that I sat in on conference calls while Akin Gump’s brilliant and amazingly well-connected Patty Millett and a team of heavy hitters from Troutman Sanders did all the work. From time to time, I would agree with their suggestions and offer to get coffee.

Earlier in the day on Friday, the Law Practice Management Division will be sponsoring a panel on “Helping Lawyers Create and Expand Client Relationships in a Challenging Market.” As a recognized authority on this topic, I will be speaking on the panel. No, seriously, I am on the panel. I’m not kidding. It’s at 10:30. Check it out.

If you can’t make it to the Homestead this weekend–and I recognize that this is somewhat late notice–here is a podcast interview that I did with Cordell Parvin. I expect that it will give you a good overview of what I have to say on the subject.

Back in February, the Supreme Court of Virginia handed down Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010). That decision merits extended discussion. It not only offers the best treatment of preservation of error that we’ve ever seen, but it clarifies Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), thereby dispelling one of the great urban legends of the law.

The facts the case are, shall we say, unseemly. It arose out of a criminal prosecution for various offenses stemming from the defendant’s conduct in a Yahoo chat room with a police officer posing as a minor.

And it all went downhill from there.

During trial, there was a suggestion that defense counsel may have altered a set of Yahoo chat room rules, which they tried to put into evidence. The case was pending before Judge West. Defense counsel was clever enough to use the Yahoo user name “westisanazi” on one version of rules, but apparently not quite clever enough to do a plausible job of altering another version of the document.

A summary contempt proceeding ensued. Defense counsel (now defendants) objected and moved to stay the proceeding on the ground that it violated their due process rights. The trial court overruled the motion and held them in contempt.

Defense counsel appealed to the intermediate Court of Appeals, again arguing that that the trial court had violated their due process rights. The Court of Appeals held that they had failed to preserve that argument for appeal, because they’d failed to specify the relief they sought and asked only for a stay.

On appeal, the Supreme Court reversed. Writing for the Court, Justice Kinser gave a detailed explanation of the contemporaneous objection rule.

Continue Reading Scialdone v. Commonwealth–Best Preservation of Error Opinion Ever?