All productive work at the Firm on the Move (TM) instantly ground to a halt today when the VLW reported the finalists in the William & Mary mascot search. The W&M website has pictures of the finalists. I’d post them, but I’m not sure about the trademark implications and I think that I’m still bound by the honor code.

Here are the finalists and our thoughts:

  • The Griffin. What’s that, a nod to our Quidditch team? No D&D mascots, thanks. Nerds.
  • King and Queen. Wow, that’s creative. We’d definitely be the first school in the Old Dominion to use Monarchs as a mascot. On the other hand, the transgender queen is a nice touch.
  • The Phoenix. Crap.
  • The Pug. Dogcrap.
  • The Wren.  I guess this one has potential. We’d get our Tribe with Feathers after all, that late unpleasantness with the NCAA notwitshtanding. And the Wren actually has a connection to the school. (Ahem, Griffin.)  It looks like we have a winner by default–although it really is a shame that not everyone can lose.

And now back to our regularly scheduled programming.

Last week’s post briefly noted Francis v. Giacomelli, the Fourth Circuit’s new opinion clarifying federal pleading standards under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Francis merits further discussion, as it may prove to be one of the most influential civil procedure decisions to come out of the Fourth Circuit in years.

Background

Twombly and Iqbal–collectively, Twiqbal–are, of course, the Supreme Court’s landmark recent opinions on federal pleading standards. To put them in their proper context, I Shephardized the decisions, along with a few less important opinions to use as benchmarks:*

 

Bell Atlantic v. Twombly, 550 U.S. 544 (2007)

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)

Marbury v. Madison, 5 U.S. 137 (1803)

Brown v. Bd. of Education, 347 U.S. 483 (1954)

Total citations

29,939

4,165

11,969

13,224

Citations in the 4th Circuit

1,177

252

81

227

Citations in Virginia state court

0

0

28

7

 

These results suggest that Twiqbal ranks somewhere between the Bible and the Magna Carta in terms of its importance to Western law (though Virginia state courts remain unmoved, implying that the new standard has not yet crept into state-court practice). The Fourth Circuit’s substantive take on Twiqbal will, therefore, prove important to practitioners.

Continue Reading Fourth Circuit Clarifies Twiqbal; Plaintiffs Despair

No substantive post at De Novo yet this week because I am lazy I did a piece for Guest Post Friday over at Chris Hill’s blog, Construction Law Musings. Check it out for an appellate lawyer’s thoughts on construction cases.

On Monday, Steve Emmert lamented the departure (or hibernation) of some of his favorite appellate blogs. We are happy to report that De Novo has been going strong since this summer, meaning that it has passed the dreaded four-month mark. Our business plan proceeds apace. Phase two: ? Phase three: profit.

Finally, I would like to do a post on the Francis v. Giacomelli, the new opinion in which the Fourth Circuit clarifies the Twiqbal pleading standard. (Hat tip to Emmert.) Really, really would. But the World Cup draw starts at noon. And that only comes around every four years. So, um, yeah . . . did I mention that post over at Musings?

A few weeks back, we wrote about appealing evidentiary rulings. That post generated a pretty obvious follow-up question: What do you do when your (clearly correct) objection is overruled, and the bad guys are allowed to introduce their (wildly improper) evidence?

The problem may be most starkly presented when you file a motion in limine, stating a detailed legal objection to harmful evidence, and the judge overrules it. Now what? The other side will present their evidence. Do you cross examine them on it? Can you introduce your own rebuttal evidence? Or will you waive your original objection by doing so, forever forfeiting your right to raise the issue on appeal?

The answer will depend on the specific facts of the case, but–with the help of the World’s Busiest Associate, Mike Finney–we’ve put together a few general principles that should provide some guidance:

  1. Play the percentages. The best thing you can do to help your chances of winning on appeal is to win at trial–especially if the only appeal in your case is a discretionary one to the Supreme Court of Virginia. Very roughly speaking, the Supreme Court grants about 1 in 5 petitions for appeal, and reverses in about 1/2 of the appeals it takes. Let those numbers guide your strategic decisions. They show that it will rarely make sense to risk losing your case to win your appeal.
  2. You only have to object once. Va. Code Section 8.01-384(A) obviates the need for repeated objections. See Drinkard-Nuckols v. Andrews, 269 Va. 93, 102-03, 606 S.E.2d 813, 818-19 (2005) (“[P]rovisions of Code 8.01 § 384(A) obviate the need for repeated objections after having made an objection or motion known to the trial court . . . .”). Make your objection once, clearly, on the record. And before you come close to touching the objectionable evidence on cross examination or your case in chief, gently remind the Court (on the record and outside of the presence of the jury) why you are doing so. That will help you with the next step:
  3. Avoid waiver. This is where it gets tricky. You will waive your objection to evidence if, after it is admitted, you introduce the same evidence yourself. Southern Ry. Co. v. Blanford, 105 Va. 373, 387, 54 S.E. 1, 6 (1906). Put slightly differently, if a party “’unsuccessfully objects to evidence which he considers improper and then on his own behalf introduces evidence of the same character, he thereby waives his objection.” Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970). There are, however, limitations to this waiver rule. An objecting party may “elicit[] evidence of the same character either during cross-examination of a witness or in rebuttal testimony.” Drinkard-Nuckols, 269 Va. at 102, 606 S.E.2d at 818. In addition, to constitute waiver, “the subject matter of the evidence at issue [must] be the same as the subject matter of the evidence to which an objection was made.” Id. at 102, 606 S.E.2d at 818 (citing Pettus v. Gottfried, 269 Va. 69, 606 S.E.2d 819 (2005)).
  4. Object to jury instructions (and, if necessary, move to set aside the verdict). Just to be on the safe side, formally object to any jury instruction regarding the parties’ alleged oral contract. And if–God forbid–the jury should return an adverse verdict, move for both a new trial and for the court to set aside the jury’s verdict on this ground. See Spitzli v. Minson, 231 Va. 12, 341 S.E.2d 170 (1986) (“[W]hen defendant failed to object to the instruction submitting the entire case to the jury, and failed to move the court to set aside the verdict and grant a new trial, she waived her right to assign error . . . .”) (quoting Hilton v. Fayen, 196 Va. 860, 867, 86 S.E.2d 40, 43-44 (1955)).

That, in a nutshell, is an appellate lawyer’s perspective on what to do with an adverse evidentiary ruling. The takeaway from all of this: it’s really just a lot easier to win your motion in limine in the first place.

The Supreme Court of Virginia’s new opinion in Hutchins v. Talbert provides a useful cautionary tale for trial lawyers.

Procedurally, the case is a riddle, wrapped up in a mystery, inside a nightmare. Let’s start at the beginning. Here’s how Justice Goodwyn, writing for the Court, frames the issue presented in the first sentence of the opinion:

[W]hether an order denying a motion to set aside the verdict is a final judgment for purposes of appeal when the trial judge has rendered final judgment in a separate, previously entered order, which is not vacated, suspended, or modified by the order ruling upon the motion to set aside the verdict.

Got that? Yikes. But don’t give up yet.

We’re obviously somewhere in the no-man’s land of procedural default. Let’s unpack the facts one step at a time:

  • On April 25, 2008, the trial court entered a final order.
  • Also on April 25, 2008, the trial court entered an order suspending the final judgment for 14 days, tolling Rule 1:1’s 21-day limit and allowing a total of 35 days for entry of an amended final order. In other words, the order was suspended until May 30, 2009.
  • Hutchins filed a motion to set aside the verdict.
  • On May 28, 2008, the trial court entered an order denying the motion to set aside the verdict, without referring to the final judgment at all.
  • On June 19, 2008, Hutchins filed a notice of appeal.

You can see where Hutchins is coming from, right? He thought that because (1) he’d filed a timely post-trial motion, which (2) the trial court ruled on while it retained jurisdiction, (3) the May 28 order was the final order that set the 30-day notice of appeal deadline running. Ergo, his June 19th notice was timely.

Talbert–represented by hometown favorite and all-around good guy Frank Friedman–moved to dismiss Hutchins’ appeal. He argued that the suspension order expired on May 9th. Under Rule 5:9, Hutchins had 30 days to file a notice of appeal from May 9th, so his June 19th notice of appeal was untimely.

Talbert was right. Here’s how it breaks down:

  • Rule 5:9 requires an appellant to file a notice of appeal within 30 days after entry of final judgment or other appealable order–or within any extension granted under Rule 5:5(a). As appellate practitioners know, this deadline is mandatory and jurisdictional.
  • Rule 5:5(a) states that “[t]he time period for filing the notice of appeal is not extended by the filing of a motion for a new trial, a petition for rehearing, or a like pleading unless the final judgment is modified, vacated, or suspended by the trial court pursuant to Rule 1:1 . . .”
  • Finally, Rule 1:1 provides that all final judgments, orders, and decrees shall remain under the control of the trial court and subject to be modified, vacated, or suspended for 21 days after the date of entry, and no longer.

Applying these rules, the Supreme Court determined that the April 25th order was self-executing, and expired by its own terms on May 9. The 21-day period under Rule 1:1 and the 30-day period under Rule 5:9 both began to run on that date. Hutchins missed  both deadlines, so he was out of court. Consistent with prior caselaw (which it didn’t cite), the Court made it very clear that only an order vacating, suspending, or modifying the final judgment will toll these deadlines; an order denying a motion to set aside the verdict will not do the trick.

What can we learn from Hutchins?

  • Beware of trial judges bearing gifts. Trial court judges will sometimes try to do their dockets litigants a favor by extending deadlines, assuring lawyers that their objections have been preserved, etc. Don’t believe them–you must know the rules and the deadlines, and understand which can be finessed and which cannot. For example, once a final order has been entered, only an order within the Rule 1:1’s 21-day time period that expressly modifies, vacates, or suspends the final judgment will permit the trial court to retain jurisdiction. See Super Fresh Food Markets of Va. v. Ruffin, 263 Va. 555, 563-64, 561 S.E.2d 734, 739 (2002). It doesn’t matter if the trial judge meant well, or honestly intended to extend a deadline–if he or she did not do so effectively under the letter of the Rules, then you can wind up out of court, despite the judge’s best intentions.
  • Read the rules and count the days. It’s simple. It’s boring. But you have to do it. All of the very best appellate lawyers I know go back and read the rules again before a key filing–every time. And they count (and recount) days with religious intensity. (Helpful trick: you can use the Outlook calendar’s “Go to Date” feature to automatically count days. But still double-check the old-fashioned way.)
  • It pays to have an appellate specialist on the trial team. Waiting until an appeal is filed to consult with an appellate specialist is often too late, particularly with respect to issues of finality and preservation of error.

Put slightly differently, the lesson of Hutchins is to trust but verify.

Finally, just in time for the Harvard-Yale game, Super Lawyers will release its inagural ranking of law schools today. According to the WSJ Law Blog, Harvard is #1 and Yale is a lackluster #10. (For all you Wahoos, UVA checks in at a very respectable #4. But you’re still #1 at softball.)

Obviously aware that my birthday is coming up, James Markels over at the Virginia Business Law Blog forwarded a link to FantastySCOTUS.net. Billed as the premier Supreme Court fantasy league, it’s basically fantasy football, except that you win points by picking the outcomes of decisions, the split, and how the individual justices will vote. Hilarious. Josh Blackman seems to be the mastermind behind the site. Well played, sir.

Looks like Green Bag will have to step it up this year.

 

On Thursday, the Supreme Court of Virginia released a batch of opinions. I know that I’m late to the party–I’ve been out sick–but here is a quick run down of the results:

November 2009 Supreme Court of Virginia Opinions

Case

Appellant’s Counsel

Appellee’s Counsel

Result

Hutchins v. Talbert, Record No. 081632

Alfred F. Belcuore (R. Harrison Pledger, Jr.; Montedonico, Belcuore & Tazzara; Pledger & Associates, on brief)

Frank K. Friedman (Frances E. Burgin; Steven B. Gould; Kenneth M. Berman; Woods Rogers; Brown & Gould; Berman, Sobin & Gross, on brief)

 

Appeal dismissed.

Baker v. Commonwealth, Record No. 081715

Daniel W. Hall, Senior Assistant Public Defender

Susan M. Harris, Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Judgment of the Court of Appeals reversed, conviction under Code § 18.2-119 vacated, and indictment is dismissed

Kellerman v. McDonough, Record No. 081718

Mark J. Krudys (Stephen W. Bricker; BrickerAnderson, on brief)

 

David P. Corrigan (Julie S. Palmer; Harman, Claytor, Corrigan & Wellman, on brief)

 

Affirmed in part, reversed in part, and remanded.

Hash v. Director of the Department of Corrections, Record No. 081837

David B. Hargett

 

Eugene Murphy, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Affirmed.

Waller v. Commonwealth, Record No. 081920

Curtis L. Thornhill (Glenn L. Berger; Berger & Thornhill, on brief)

 

Donald E. Jeffrey III, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Reversed and remanded.

Harbour v. SunTrust Bank, Record No. 082023

Phillip V. Anderson (Carolyn N. Dietz; Martin F. Clark; Frith Anderson & Peake, on brief)

 

Monica Taylor Monday (James J. O’Keeffe; Robert W. Mann; Gentry Locke Rakes & Moore; Young, Haskins, Mann, Gregory, McGarry & Wall, on brief) (for SunTrust)

 

Reversed and remanded.

Turner v. Commonwealth, Record No. 082122

Brienne Schaefer, Assistant Public Defender,

 

Donald E. Jeffrey III, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Reversed and remanded.

Dowdy v. Commonwealth, Record No. 082143

Jonathan P. Sheldon (Devine, Connell & Sheldon, on brief)

 

Leah A. Darron, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Affirmed.

Smallwood v. Commonwealth, Record No. 082228

Jason Moore

 

Richard B. Smith, Special Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Affirmed.

Singleton v. Commonwealth, Record No. 082270

Charles B. Lustig (Thomas B. Shuttleworth; Shuttleworth, Ruloff, Swain, Haddad & Morecock, on brief)

 

Robert H. Anderson III, Senior Assistant Attorney General (William C. Mims, Attorney General; Joanne V. Frye, Assistant Attorney General, on brief)

 

Reversed and vacated.

Zedd v. Commonwealth, Record No. 090012

Charles B. Lustig (Thomas B. Shuttleworth; Shuttleworth, Ruloff, Swain, Haddad & Morecock, on brief)

 

Robert H. Anderson III, Senior Assistant Attorney General (William C. Mims, Attorney General; Joanne V. Frye, Assistant Attorney General, on brief)

 

Reversed and vacated.

Commonwealth v. Squire, Record No. 082440

John H. McLees, Senior Assistant Attorney General (William C. Mims, Attorney General; Francis S. Ferguson, Deputy Attorney General; Pamela A. Sargent, Senior Assistant Attorney General, on brief)

 

Alvin A. Lockerman, Jr. (Outten, Barrett, Whitby, and Lockerman, on brief

 

 

Affirmed.

Williams v. Commonwealth, Record No. 082477

Stephanie S. Miller, Assistant Public Defender (Barbara E. Rosenblatt, Assistant Public Defender, on brief)

 

Leah A. Darron, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Affirmed.

Grattan v. Commonwealth, Record No. 082547

Jonathan Shapiro (Peter Greenspun; Greenspun, Shapiro, Davis & Leary, on brief)

 

Jennifer C. Williamson, Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Affirmed.

 

Carroll v. Johnson, Record No. 082566

David B. Hargett

 

Mark R. Davis, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Reversed in part, affirmed in part, and final judgment.

Brown v. Commonwealth, Record No. 090013

Paul S. Roskin (Vergara & Associates, on brief)

 

Robert H. Anderson III, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Affirmed.

Wright v. Commonwealth, Record No. 090308

Joseph A. Sadighian, Senior Assistant Appellate Defender

 

Joshua M. Didlake, Assistant Attorney General (William C. Mims, Attorney General, on brief)

 

Affirmed.

Montague v. Commonwealth, Record No. 090337

S. Jane Chittom, Appellate Defender

 

Gregory W. Franklin, Assistant Attorney General (William C. Mims, Attorney General, on brief

 

Affirmed.

The Piedmont Environmental Council, et al. v. Virginia Electric and Power Company, d/b/a Dominion Virginia Power, et al., Record Nos. 090249, 090253, 090258, 090278, & 090284

Patrick M. McSweeney (Wesley G. Russell, Jr.; Kevin J. Burke, County Attorney; Tracy A. Gallehr, Deputy County Attorney; Ross G. Horton, County Attorney; Kevin P. Black, Assistant County Attorney; Roy B. Thorpe, County Attorney; Charles W. Hundley; James W. Moorman; McSweeney, Crump, Childress & Temple; Cherry, Seymour, Hundley & Baronian, on brief)

 

Stephen H. Watts II; John F. Dudley, Counsel to the Commission (E. Duncan Getchell, Jr.; Vishwa B. Link; Kristian M. Dahl; Erin M. Sine; Karen L. Bell; Lisa S. Booth; Randall B. Palmer; Jeffrey P. Trout; Richard D. Gary; Robert M. Rolfe; Charlotte P. McAfee; William H. Chambliss, General Counsel; Wayne N. Smith, Senior Counsel; McGuire Woods; Hunton & Williams, on brief)

Affirmed.

 

Williams, No. 347945 v. Warden of the Sussex I State Prison, Record No. 090483

James M. Sitton II (Jackson Law Group, on brief)

 

Alice T. Armstrong, Assistant Attorney General II (William C. Mims, Attorney General, on brief)

 

Habeas petition denied.

Judicial Inquiry and Review Commission of Virginia v. Taylor, Record No. 090845

Donald R. Curry, Commission Counsel

 

Kevin E. Martingayle (Stallings & Bischoff, on brief)

 

Judge is censured.

The Supreme Court of Virginia released four unpublished orders on Friday. Steve Emmert has a fun write-up over at his website. The discussion of Browning v. East alone makes it worth reading. Here’s a preview:

This is a vehicular-collision appeal, but it really-most-sincerely isn’t your ordinary collision case. The driver of the only vehicle involved struck a stray cow on a dark country road one night. At trial, the defense offered a full set of contributory-negligence instructions, including the duty to keep a lookout. The defense argued that an ordinarily attentive driver should have been able to see the cow standing in the road in plenty of time to avoid hitting it.

The jury bought that argument, and returned a defense verdict. The plaintiff then undertook the arduous chore of convincing an appellate court that contrib wasn’t a legitimate jury issue in this case. She argued that the only evidence about the collision in the record was from her – and she testified that she hadn’t seen the cow until it was 30 to 40 feet away. Given the statute that requires cars to have headlights that illuminate objects 350 feet away, and the fact that the driver had acknowledged in her deposition that she was driving 57-60 mph in a 55 zone (for shame!), the defense is feeling pretty good about its chances on appeal.

Get ready for a surprise or two . . . .

The cow, of course, was black. Black Angus, actually, like the bovine below. But that’s not the surprise.

Update: Alan Cooper from the VLW Blog chimes in with a piece on the subject, complete with a link to the Browning order.

Having read the order, I am a little surprised that it wasn’t published. Browning is nine pages long. It was decided by a split court; Justice Goodwyn dissents, but does not write to explain his reasoning. In that regard, the case reminds me of the recent Zapata decision, also unpublished, and also decided over a naked dissent (that time from Justice Kinser, if I remember correctly).

If the Justices themselves are split over a decision, it seems like a published disposition would be helpful to the bar almost by definition.

As to the merits, the Court focuses on the lack of proximate causation between any contributory negligence and the accident. That seems like the correct analysis. Proximate causation is an important limiting factor in states like Virginia that still adhere to a pure contrib doctrine. Fun bit of trivia: according to Wikipedia, Virginia is one of five states/jurisdictions that still recognize contributory negligence as a complete defense. The others are Saudi Arabia, Somalia, Nigeria, and Kazakhstan Maryland, Alabama, North Carolina, and the District of Columbia.

Practice point: when warding off a contrib defense, focus on proximate causation.

Finally, looping back to our earlier discussion of assignments of error, it’s worth noting that the assignments in Browning are relatively skeletal:

  • The trial court erred in granting jury instructions relating to contributory negligence (Instructions 16, 17, 18, 19, 20, and 21).
  • The trial court erred in granting the defendant’s motion in limine to exclude from the jury evidence of the defendant’s prior acts of allowing his livestock to stray at other locations.

I would not be confident that those assignments are sufficiently specific. Evidently, they were good enough to get the job done here.

A few months ago, we wrote about the Supreme Court’s treatment of the “right-result-wrong-reason” (RRWR) rule in Whitehead v. Commonwealth. We were relatively critical of the decision, but took heart in the fact that the Commonwealth had just filed a spicy petition for rehearing.

Flash forward a few months. The Supreme Court has reconsidered Whitehead, but the result isn’t exactly what the Commonwealth was looking for. In a revised opinion issued last Thursday, the Court stands by its original ruling, but further explains its reasoning. The result benefits pretty much everyone but the Commonwealth.

Whitehead, you will recall, was living with a boyfriend who was breaking into cars and hiding stolen goods at their apartment. That’s a dealbreaker. Whitehead was convicted of 32 counts of receiving stolen property. The Commonwealth never argued that Whitehead was involved in the actual theft of any of the items. Instead, it based its case at trial on a theory of “constructive receipt.”

The Court of Appeals affirmed on this ground, and the alternate ground of constructive possession. It also added a third ground, concealment of stolen property.

This did not sit well with the Supreme Court. Writing for the Court, Justice Lemons rejected the constructive receipt theory–which the Supreme Court it has never applied to the offense for which Whitehead was convicted. It then turned to constructive possession, which it has recognized. But since the Commonwealth raised that theory for the first time on appeal, the Court refused to consider it. The Court acknowledged that, “in a proper case,” it will affirm where the lower court reached the right result for the wrong reason. And it noted that the RRWR rule applies in civil as well as criminal cases. But the Court declined to apply it in Whitehead because the Commonwealth hadn’t argued constructive possession before either the trial court or the Court of Appeals.

The Court then addressed the concealment theory, which the Court of Appeals apparently came up with on its own. Because this argument was not raised either at trial or in the intermediate appellate court, the Supremes held that the Court of Appeals erred by recasting the evidence to support an argument not previously made.

Now we get to the fun part, where the Court clarifies its reasoning. Justice Lemons explains that the different methods of showing receipt of stolen property carry different proof requirements, which involve the presentation of different facts. Because the Commonwealth had limited its method of proof at trial to constructive receipt, Whitehead was never placed on notice that she had to present her own proof to rebut the other theories that it later advanced. The Constitution of Virginia grants an accused the right to demand the cause and nature of his accusation. To allow the Commonwealth to advance different methods of proof on appeal that were never argued in the trial court would deny Whitehead these rights.

What You Should Know About Whitehead Part Deux:

  • Right result, right reason. ‘Nuff said.
  • It’s a vast improvement. The added language in the revised opinion shows why this case was not a proper one for the application of the RRWR doctrine–namely, the constitutional concerns implicated in a criminal case, where the prosecution changes its theory of the case midstream. This simultaneously clarifies and cabins the Court’s reasoning. One of our concerns with the initial opinion was that it did not seem to give appropriate deference to the lower courts. The expanded opinion addresses this structural concern, and suggests that . . .
  • It probably only applies in criminal cases. Both the original and revised Whitehead opinions note that RRWR rule applies in civil as opposed to criminal cases. That gave the Court’s refusal to apply the doctrine the troubling potential to bleed over into civil cases. But to the extent that the revised opinion highlights the constitutional underpinnings of the ruling, it probably only applies to criminal cases. That seems like the right result, and an appropriate way to balance competing interests.

When we first wrote about Whitehead, we called it a “scary new Supreme Court opinion.” Consider our fears assuaged.