Rule 5:8A, “Appeal from Partial Final Judgment in Multi-Party Cases,” is a completely new–and highly technical–rule. It is intended to clarify who may appeal and when in cases involving multiple claims and multiple parties. The advisory committee’s report indicates that the Rule was adopted in response to a general sense of confusion about appellate rights in multi-party litigation; procedure geeks will recognize it as an effort to allay some of the uncertainty created by the so-called “severable interest rule.” See, e.g., Thompson v. Skate Am., Inc., 261 Va. 121, 127, 540 S.E.2d 123, 126 (2001).

This a thorny, technical area. The new Rule addresses it by placing the burden squarely on the parties and the trial court. It provides that, when claims for relief are presented against multiple parties, the trial court may enter final judgment as to one or more but fewer than all the parties only by entering an order expressly labeled “Partial Final Judgment,” which contains explicit findings that:

  • the interests of the parties and the grounds upon which judgment is entered are separate and distinct from those raised by the issues and the claims against the remaining parties; and
  • the results of any appeal from the Partial Final Judgment cannot affect the claims against the remaining parties; and
  • decision of the claims remaining in the trial court cannot affect the disposition of the claims against the parties subject to the Partial Final Judgment if those parties or later restored to the case by reversal of the Partial Final Judgment on appeal.

Got that? Now close your eyes and try to imagine yourself persuading a circuit judge to make those findings.

Rule 5:8A states that “no appeal shall lie from a refusal by the trial court to enter a Partial Final Judgment under this rule.” It specifies that, absent a Partial Final Judgment order entered under its terms, an order that adjudicates fewer than all of the claims or rights and liabilities of fewer than all the parties in an action is not a final judgment.

The timing of an appeal under Rule 5:8A follows the normal deadlines in Rules 5:9 and 5:17.

This is bad stuff. Hairy procedural issues? Magic words and special incantations? Deadlines tied to the lunar calendar? It’s almost like . . .

What Practitioners Need to Know about Rule 5:8A:

  • Rule 5:8A requires entry of a Partial Final Judgment order with certain explicit findings as a prerequisite to the appeal of an order that is final as to some but not all of the parties.
  • It is therefore imperative to develop an appellate strategy early in the case and to carefully analyze rulings that are dispositive as to part, but not all of the case, in order to ensure that the trial court takes the necessary steps and makes the required findings to preserve the right to an immediate appeal.
  • If the trial court dismisses some (but not all) parties, but does not comply with Rule 5:8A, you may still be able to save your right to an immediate appeal by nonsuiting the remaining claims. But that is a high-risk and high-degree of difficulty maneuver. You will need to investigate statute of limitations and waiver issues (among other things) before even considering it.

And here’s one last chilling thought: beware the interplay of Rule 5:8A, with its heady technical requirements, and Rule 5:1A, which provides that, if an attorney’s failure to comply with the Rules results in dismissal, the Court may report the attorney to the State Bar.

Here are some more of the questions that have led readers to our humble blog (or left them hopelessly confused after getting here):

  • One reader emailed to ask how we thought the Supreme Court’s recent decision in Walton would affect “claw back” agreements in context of electronic document productions. Hopefully, not at all. Walton sets up a flexible five-part test for determining the effects of inadvertently disclosing privileged material. In the context of that test, I’d consider a claw-back agreement to be a reasonable and prompt (really, prophylactic) step to rectify an inadvertent disclosure. It’s certainly one of the “factors arising from the posture of the case . . . that have a material bearing on the reasonableness issues,” which Walton directs courts to consider. Ideally, courts applying Walton will use it to effect the goals of claw back agreements entered into by the parties.
  • What cases did appellate lawyer John Ward win? Beats the heck outta me. But we can find out. The Supreme Court of Virginia maintains a webpage called “Counsel in Cases Decided,” which lists the lawyers in the Court’s most recent cases. You can use this page to find out who’s winning and who’s losing. (As it turns out, Mr. Ward is not listed among the counsel in cases decided on June 10, 2010.)
  • In Virginia law is Off the record discussions part of record? No. Of course not. Why would you ever think otherwise? And if something is not in the record, then, for appellate purposes, it did not happen. That is why it is so important to keep your trusty court reporter nearby.
  • How to count 30 day notice and appeal courts of Virginia? Very carefully. The notice of appeal deadline is mandatory, and missing it will likely be fatal to your appeal. In terms of mechanics, you start counting on the day after the final order and keep going until you get to 30. But here’s a handy shortcut: the “Go to Date” function in Microsoft Outlook counts days just like the Supreme Court does. So if you go into your Outlook calendar and tell it to go to a date 30 days after the date of your final judgment, it should take you to the date on which your notice of appeal is due. This is an easy way to double check your calculations.
  • How do you say Alford plea? You’d be surprised how often we get this question. I don’t know. I assume “Alford” sounds just the way it looks (AL-ferd), but there is apparently some dispute on that point.

This last question highlights one of my great fears about oral argument: mispronouncing a word in front of a room full of people. The best solution I’ve found is to look words up on the Merriam-Webster website, which has a neat function that allows you to hear how a word is pronounced. This occasionally leads to even more problems, because some words are just not pronounced the way they should be. For example,”gravamen” actually sounds like grav-VAY-men”–but you can’t say it that way, at least not in this part of the state.

Time to dive like an Italian midfielder back into our analysis of Virginia’s new appellate rules:

 

 

Today’s Rule is 5:5, which governs filing deadlines, post-trial proceedings, timely filing by mail, and extensions of time. The Court makes a few material changes here, which are by and large practitioner-friendly.

As amended, Rule 5:5(a) specifies that the time periods for filing the notice of appeal (or cross appeal), a petition for appeal, or a petition for rehearing are mandatory. Notably, the Rule no longer states that the time period for filing a transcript or written statement of facts is mandatory. This appears to rectify (or at least ameliorate) one of the great booby traps of Virginia appellate practice.

Great news for practitioners and appellants; bad news for my practice.

Additionally, Rule 5:5(a) specifies that a single extension, not to exceed thirty days, may be granted if at least 2 justices find that the extension is “warranted by a showing of good cause sufficient to excuse the delay.” This replaces the old, and somewhat draconian, standard that an extension is “warranted by the intervention of some extraordinary occurrence or catastrophic circumstance which was unpredictable and unavoidable.”

Make of this change what you will. I’ll continue to operate under the assumption that nothing short of a zombie apocalypse will win me a deadline extension.

Moving on, Rule 5:5(c) modernizes delivery options to specify that a document will be deemed timely filed if “it is transmitted expense pre-paid to the clerk of this Court by priority, express, registered, or certified mail via the United States Postal Service, or by a third-party commercial carrier for next-day delivery,” and the sender keeps and produces on demand the receipt showing the transmission.

Finally, Rule 5:5(e) explains what to do when the zombies come. It states that, except as provided in Rule 5:5(a), a motion for an extension of time is timely if it is filed within the original filing deadline or any extension period specified by the governing rule. Simply filing the motion does not itself toll the original filing deadline or further extend the extension period.

While I was off running silly contests and generally doing my best to single-handedly drive up our insurance rates, the Supreme Court of Virginia handed down a new batch of opinions last week.

Of particular note is Walton v. Mid-Atlantic Spine Specialists, P.C., which addresses the attorney-client privilege, and specifically the issue of inadvertent waiver.

Walton is a med mal case. The defendant doctor wrote a letter to his lawyer in which he suggested that he may have reviewed the wrong x-ray before assessing the plaintiff. That letter was produced in a workers’ comp proceeding, and it eventually made its way into the plaintiff’s hands.

Walton advised the defendants that she had this letter in her interrogatory answers. About a year and a half later, the defendants moved for a protective order against the use or distribution of the letter. The circuit court granted that order. It found that the letter was privileged and had been involuntarily disclosed, so the privilege had not been waived. The plaintiff went to trial without the letter, and the jury found in favor of the defendants.

On appeal, the Supreme Court reversed. The dispositive issue before it was whether the doctor’s inadvertent disclosure of the letter waived the attorney-client privilege. The Court ruled that it had.

Continue Reading Walton v. Mid-Atlantic Spine Specialists, P.C: Supreme Court of Virginia Defines Test for Inadvertent Waiver of Privilege

A few weeks ago, I asked for help explaining a trial to my niece, and promised a copy of The Curmudgeon’s Guide to the person who provided the best answer.

Responses ran the gamut from sweet and informative to almost unbelievably creepy. (Oddly, that last one came via email from our marketing manager here at TFOTM. I can’t publish it, because this is a family blog.)

The winner came from fellow blogger Lauren Ellerman:

A trial is when people get dressed up and try to convince strangers they are not lying. It’s not an easy way to earn a living.

Lauren has four blogs. I have one. Hers are updated more often, she has no apparent need to bribe her readership, and she has time to train for a triathlon. Clearly, I am doing something wrong.

Honorable mention to James Markels, who notes that:

To an appellate attorney, a trial is where errors are made.

How true. Thanks to everyone who participated.

We continue our journey into the depths of madness through Virginia’s revised appellate rules with a completely new addition: Rule 5:1A, “Penalties for Non-compliance; Show Cause; Dismissal.” This Rule contains both good and bad news for practitioners.

Let’s start with the good: As its caption suggests, this Rule governs what happens when lawyers screw up. It provides that the Court “may dismiss an appeal or impose such other penalty as it deems appropriate for non-compliance” (emphasis added) with the Rules. Except in cases of defective assignments of error and missed jurisdictional deadlines, the Court may issue a show-case order prescribing a time in which to cure a defect, or to otherwise show cause why the appeal should not be dismissed or other penalty imposed. That sounds a lot better than automatic dismissal, doesn’t it?

So much for the good news; now here’s the bad: Under new Rule 5:1A, if an attorney’s failure to comply with the Rules does result in dismissal, the Court may report the attorney to the Virginia State Bar. The Advisory Committee’s report notes that the Committee “wanted to make the public, and the legal community, aware that the Court does report attorneys to the Bar when their failure to comply with the rules results in a dismissal of an appeal.”

Practitioners, you may want to read that last paragraph again.

On balance, I like this new Rule–and not just because it may (literally) scare us up some business. There is a misperception among some lawyers that the Court just goes around looking for reasons to dismiss an appeal. That’s not correct, but there are sound policy reasons for strictly enforcing certain mandatory deadlines. And, as we’ve mentioned once or twice, assignments of error are really important. Those key rules are important and easy to understand. It’s reasonable to expect the Court to impose the death penalty when an appellant gets that stuff wrong, and there should be consequences for a lawyer whose mistake costs his client an appeal.

But by and large, it’s the other stuff–like formatting, non-prejudicial errors, and non-jurisdictional deadlines–that scares people and trips them up. This new rule gives the Court some leeway in addressing those mistakes.

Another round of our answers to the imponderable questions that lead people to this blog:

  • chances of supreme court of virginia providing a petition rehearing: Not good. For example, in 2007, the Court decided 358 petitions for rehearing. It granted 13. In 2008, it decided 367 petitions for rehearing and granted 23. I suspect that this is because the petition for rehearing is a fundamentally poor advocacy vehicle; it is short and (because of its procedural posture) inherently lacking in credibility.
  • roger creager to hire: Creager to hire, you wish? Contact him you must! Yes, yes. That is the way of things. The way of the Force.
  • how often does virginia supreme court accept medical malpractice appeal? Although I don’t have statistics to back this up, it’s my impression that the SCV accepts med mal appeals disproportionately often. Same goes for appeals in local government cases.
  • attorneys who write pet trusts in va: Thankfully, I have not yet sunk to that level of desperation. Call me when Whiskers is ready to sue her trustee. (Just kidding. I hate cats.)
  • supreme court of virginia appellate practice: This is a dangerous one, because I am sure to leave someone out by accident. That’s how feelings get hurt. Off the top of my head, the lawyers I can think of with established SCV appellate practices (loosely defined as “the people I bump into a lot”)–beyond your appellate friends here at the Firm on the Move (TM)–are Steve Emmert, George Somerville and the assorted luminaries at Troutman Sanders, John Davidson, the aforementioned Roger Creager, Frank Friedman, John Eure, Official Friend of De Novo Melissa Scoggins, Joe Rainsbury at LeClair, and the Biglaw legions at Hunton and McGuire Woods.

Disclaimer: As always, this is not legal advice. We are not your lawyers. Depending on where you are when you read this, we may not even be lawyers. If you are coming here for legal advice, you have bigger problems than we can solve.

A little while ago, I promised to share my thoughts on the revised appellate rules that take effect on July 1. (Okay, so it was a more than month ago. Things have been busy.)

Let’s start at the beginning. Rule 5:1 has been amended to include two new substantive provisions:

  • Certificate of Service. Rule 5:1(d) provides that, unless service or notice is otherwise specified in a Rule, any paper filed must include a certificate of service showing that the document has been transmitted to all counsel, and noting the date and manner of transmittal. If a word count is used, the certificate must also state the number of words.
  • Citing Unpublished Opinions. Rule 5:1(f) specifies that lawyers may cite unpublished judicial dispositions, but only as a persuasive authority. If the document cited is not available in a publicly accessible electronic database, the party must file and serve the document along with the brief or motion in which it is cited.

These seem like perfectly reasonable–and helpful–changes. On the certificate of service point, there are few things more annoying than being retained as appellate counsel, and immediately having to call clerks, printers, and/or opposing counsel to reverse engineer a deadline because someone has certified service without noting the method.

As for citing unpublished opinions, that’s fine, as far as it goes. I doubt that the Court will give too much weight to an unpublished opinion (otherwise, it would be published), but I can also imagine situations where it might be helpful to cite one. I am a little curious about what qualifies as a “publicly accessible electronic database.” Fastcase is available to every member of the bar; does that count? Some law libraries have public access to Lexis or Westlaw, but I doubt that brings them within the scope of the rule. Absent further guidance, I suspect that you will have to err on the side of attaching opinions.

 

I hope that you’re all enjoying the holiday weekend. I was relaxing by the lake this morning and talking to my adorable and precocious niece when the conversation turned to what I do for a living. We didn’t get very far, because she cut me off, oral-argument style, with the titular query–“What’s a trial?”

Good question.

I did not have a particularly satisfying answer. I’ll send a copy of The Curmudgeon’s Guide to the reader who comes up with the best way to explain a trial to an (admittedly brilliant) young elementary schooler. Arbitrary response deadline: June 12th.

 

It’s time for another trip to the electric mailbag to see what’s on your collective mindgrapes.

At the behest of some of my colleagues and our insurance carrier, I’d like to reiterate that this post is not legal advice. Nobody reading this blog should expect to enjoy any kind of attorney-client relationship with me whatsoever. Frankly, if you’re coming here for legal advice, then you’ve got bigger problems than I can solve.

So with that out of the way, what searches are leading folks to our humble blog?

  • appellate lawyer fourth circuit. Howdy. (That was an easy one.)
  • virginia supreme court raise issue at oral argument. Indeed it does. Our robed friends are not shy. If, however, you are thinking of raising an issue for the first time at oral argument, think again. That’s dirty pool. If you’ve found a new case or legal point that absolutely must be brought to the Court’s attention, the most professional way to do so is by sending a short letter to the clerk as far in advance of oral argument as possible (and copying opposing counsel, of course). But really, that stuff is properly addressed at the briefing stage.
  • practitioner’s guide virginia supreme court. The VSB put one out in the late 1990s. If you can’t find it, drop me a line and I’ll shoot you a pdf version. The VSB is in the process of updating the guide. I will be sure to let everyone know when it is available. Virginia CLE also publishes an excellent guide called Appellate Practice–Virginia and Federal Courts.
  • “elena kagan” “admitted to the bar”. Seriously? I mean, it’s fine if you don’t like her, but to question whether she’s actually a lawyer? Why not just spread the rumor that she can’t read? According to her Judiciary Committee questionnaire–and how creepy cool is the internet for giving us instant access to that?–among her many other accomplishments, Kagan clerked for Justice Marshall, worked at Williams & Connolly, and served as Associate White House Counsel, Solicitor General of the United States, and Dean of Harvard Law School. Generally speaking, those are law jobs. For lawyers. More to the point, she’s admitted to the bar in NY and DC. It is probably time to concede that Kagan may in fact be a lawyer, and move on to her other shortcomings. Like height.
  • “elena kagan” & “scary smart”. That’s more like it.
  • virginia contract law for martial arts. Strong. If ever there was a niche just begging to be filled . . .

Once more, this is just for fun. I am not your lawyer. As far as you know, I am writing this with my fingers crossed. Or from jail. (Actually, from Charlottesville–anyone else headed to the Advanced Business Litigation Institute today?)