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.

  • Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes by Anderson J. Little. Basically a mediator’s playbook, so helpful in that regard. I hadn’t realized that giving opinions was so controversial in mediator world; I ask for opinions all the time. Little’s responses to mediation cliches were especially helpful, and the bid sheets in the appendix were interesting.
  • The Plant-Based Athlete: A Game-Changing Approach to Peak Performance by Matt Frazier and Robert Cheek. The nutrition advice, recipes, and meal plans in here are good. The constant affirmations and success stories are a bit much, but I understand why books in this genre need to proselytize and those portions were clearly not aimed at me.
  • Avoiding Extinction: Reimagining Legal Services for the 21st Century by Mitchell Kowalski. Fluff. There are definitely a few good ideas scattered throughout this book, but they are swamped by lots of wildly impractical ones. No useful advice about implementation, and the presentation is cloying at best.
  • What the Buddha Taught by Walpola Rahula. Decent introduction, a little dry. As a beginner I’ve found other writers to be livelier and more helpful.
  • Radical Acceptance: Embracing Your Life With the Heart of a Buddha by Tara Brach. I know that this book is highly regarded but . . . I just couldn’t do it and had to quit less than halfway through. Tara Brach’s guided meditations are still the best I’ve ever heard.
  • Cloud Atlas by David Mitchell. Just amazing. This book is so good–and so out there–that I’m literally afraid to say anything about it for fear of spoiling it. Loved it.
  • Selected Poems by e. e. cummings edited by Richard Kennedy. I love these poems. This book arranges much of Cummings’s best work thematically and introduces each section with a short essay from Kennedy. Fun fact: George Lucas once tried to make a movie out of anyone lived in a pretty how town. So the prequel trilogy was really just his second-biggest affront to my childhood.
  • Nine Nasty Words: English in the Gutter by John McWhorter. I read lots of books about words. They all try to be funny. This is the smartest and funniest book about words that I can remember reading. I will never look at Folger’s the same way again.
  • The Complete Musashi: The Book of Five Rings and Other Works by Miyamoto Musashi. This is a book on sword fighting by Japan’s greatest swordsman. It’s strangely familiar and utterly alien at the same time: Familiar, because this is at heart an elite athlete talking about competition, and that’s exactly what it reads like–you can imagine some of this advice coming from Kobe Bryant or Phil Jackson. And alien, because Musashi was a guy who killed folks with a sword (okay, two swords), so much of this book necessarily reflects the brutality of samurai culture 500 years ago.
  • The Three Body Problem by Cixin Liu. I appreciate that this is a very imaginative book by someone who knows and loves science. I love that it’s set in China and gives a frank look at the Cultural Revolution and its aftermath. But I think I liked the ideas better than the execution and may just read summaries of the next two books in the series . . .

I’m still trying to wrap my head around SCOVA’s recent opinion in Lucas v. Riverhill Poultry, Inc.

Lucas seems to say that a plaintiff who fails to move the trial court to reconsider an interlocutory ruling has waived the issue for appeal.

That strikes me as patently wrong–and not in an academic way, but in a way that will cause real-world problems.

So I’m going to try to work my way through this. Follow along and tell me what I’m missing.

Lucas follows a defense verdict in a motor-vehicle-accident case. A farm-use truck owned by Riverhill Poultry ran off I-81, killing its two occupants, Lucas and Hilliard. Lucas was found outside the vehicle. Hilliard was found in its cab with his hand on the steering wheel. Hilliard worked for Riverhill, and Lucas was his “friend and neighbor.”

Lucas’s personal representative sued both Riverhill and Hilliard’s personal representative. She argued that Hilliard was driving the truck, while the defendants insisted that Lucas was the driver. (Based on these two paragraphs alone, I have . . . questions? . . . about this theory of the case. But the defense lawyers involved are both very good–and both straight shooters–so who knows.)

The plaintiff’s theory of the case was that Hilliard fell asleep at the wheel. She wanted to support this with evidence that he had a sleeping disorder and, at the time of his death, had drugs in his system that could cause drowsiness. All that seems reasonable enough. Continue Reading Lucas v. Riverhill Poultry, Inc.: SCOVA Announces Brutal New Waiver Rule

What better way to celebrate Memorial Day than 1000 or so words about some recent SCOVA appellate arcana?

(You can probably tell by now if this post is for you.)

Last week, SCOVA handed down Bonanno v. Quinn, an opinion that Justice Mims has thoughtfully crammed with nerdiana. If you’re still reading, Bonanno grew out of an adoption proceeding. Dr. Bonanno’s daughter, Elizabeth, married Michael Quinn. Elizabeth had a daughter from an earlier relationship. She and Dr. Bonanno had joint legal custody of the child; Elizabeth had physical custody and Dr. Bonanno had visitation rights. Continue Reading Bonanno v. Quinn: SCOVA on Non-Party Appeals, Standing, Jurisdiction, & Appellate Attorney’s Fees

Courtesy of Farnam Street, here is some writing advice from John Swartzwelder, the funniest writer from the Golden Age of The Simpsons (and the guy who wrote the lyrics to Spider Pig):

Since writing is very hard and rewriting is comparatively easy and rather fun, I always write my scripts all the way through as fast as I can, the first day, if possible, putting in crap jokes and pattern dialogue—“Homer, I don’t want you to do that.” “Then I won’t do it.” Then the next day, when I get up, the script’s been written. It’s lousy, but it’s a script. The hard part is done. It’s like a crappy little elf has snuck into my office and badly done all my work for me, and then left with a tip of his crappy hat. All I have to do from that point on is fix it. So I’ve taken a very hard job, writing, and turned it into an easy one, rewriting, overnight. I advise all writers to do their scripts and other writing this way.

Garnerphiles will have heard similar advice before.

SCOVA handed down a new Rule 1:1 opinion this week, Kosko v. Ramser. The basic setup is straightforward: A med-mal plaintiff took a nonsuit on the second day of trial, September 11, 2019. Because the nonsuit was within seven days of trial, the defendant asked for its costs under Code § 8.01-380(C).

The trial court scheduled argument on the motion for costs for October 1–that is, 20 days after entry of the nonsuit order. The court ruled from the bench that the defendant was entitled to $20,000 in costs, directing the defendant to prepare an appropriate order. But it did not enter that order until November 5, which was way more than 21 days after entry of the nonsuit order.

The plaintiff appealed, arguing that under Rule 1:1, the trial court lost jurisdiction to award costs 21 days after entry of the nonsuit order.

SCOVA agreed. It reversed the trial court and entered final judgment in a tight  opinion written by Justice McCullough. While Kosko‘s result is unsurprising, the opinion is worth reading because it quickly recaps some key rules about final orders.

The Court explained that under Rule 1:1, final judgments remain in the trial court’s control and may be modified, vacated, or suspended for 21 days after the date of entry. An order’s date of entry is the date on which it is signed by the judge. And a final order is one which “disposes of the entire action and leaves nothing to be done except the ministerial superintendence of execution of the judgment.”

Nonsuit orders are generally treated as final orders. A court’s oral ruling from the bench indicating that it would modify a final order typically does not qualify as entry of an order for purposes of Rule 1:1. Neither party asked the Court to modify its approach to finality under Rule 1:1 or overrule its precedent about rulings from the bench.

Thus, the narrow question in Kosko was whether the nonsuit statute, allowing for recovery of costs when a plaintiff nonsuits within seven days of trial, changed these background rules. The defendants argued that the costs provision rendered a nonsuit order nonfinal when the nonsuit is taken within seven days of trial, because then defendant is then entitled to costs. Nonononononon.

The Court disagreed. It explained that an order is final when it disposes of the entire action. An “action” comprises the claim or claims in the plaintiff’s complaint and any counterclaims. In Kosko, the nonsuit resolved all that. So the nonsuit order disposed of the entire action. That was true irrespective of the motion for costs: “The filing of ancillary motions for the recovery of costs or the filing of other post-trial motions does not suddenly transform an otherwise final order into a nonfinal order.”

What’s more, the defense argument had no limiting principle; nothing would cabin it to nonsuit orders. Instead, “anytime a litigant seeks other kinds of recoverable costs, or for that matter files any post-trial motion, there would, by definition, remain something to be done. Cases could be placed on indefinite hold by the filing of post-trial motions.” The Court saw little to recommend that approach.

Finally (heh), once a final written order is entered, Rule 1:1 gives the trial court 21 days to either

  • enter a new written order, or
  • enter a written order modifying, suspending, or vacating the prior order to allow the court sufficient time to address the post-trial motion.

This comports with the notion that a trial court speaks only through its written orders, and those written orders speak as of the day they were entered. Orders are “entered” on the day they are signed by the judge.

Predictable as its outcome may have been, Kosko offers some handy takeaways:

  • Beware trial judges bearing gifts. Trial judges try to do the right thing–like, for example, awarding the defendant costs here. But they’re not always sensitive to the nuances of the limits on their jurisdiction. The litigants need to keep on top of that. Remember Reagan’s quip about the nine most terrifying words in the English language? Well, judges work for the government.
  • “Final” is a term of art. I’ve never liked the definition of final order–an order that “disposes of the entire action and leaves nothing to be done except the ministerial superintendence of execution of the judgment”–because it’s not really true. There’s a bunch of stuff that can be “left to be done” in a case after entry of a final order. As Kosko makes clear, this includes the “filing of ancillary motions for the recovery of costs or the filing of other post-trial motions.” The rules here are not always intuitive and they can trap the unwary.
  • Suspend, modify, or vacate IN WRITING. Yes, I’m shouting. Rule 1:1(a) lets a trial court suspend, modify, or vacate a final order within 21 days of entry. That’s a great tool and Kosko explicitly tells us how to use it: “Once a final written order is entered, a trial court has twenty-one days to enter a new written order or to enter a written order modifying, suspending, or vacating the prior order to allow the court sufficient time to address the post-trial motion.” So if you’re even thinking of messing with a final order, IMMEDIATELY ask the court to enter a written order modifying, suspending, or vacating that final order to allow consideration of the post-trial motions. There is literally no reason not to do this.
  • Do the order at the hearing. I will never understand this thing Virginia judges do where they make a ruling and tell counsel to prepare an order memorializing that ruling. Why?! The judge is the only person in the courtroom who knows exactly what that order is supposed to say, and by the time she sees it, she will have forgotten. This is a bad system. It gives everybody one more thing to fight about and it can delay entry of the order by weeks. Federal judges, by contrast, ask lawyers to tender proposed orders with their motions, and then write their own orders. Which, after all, memorialize their own rulings. Much better! Yet if we have to live in a world where the litigants write the orders, at least follow Steve Emmert’s advice and bring a written order ruling in your favor to the hearing. Put it in front of the judge and ask her to sign it then and there. Opposing counsel will protest and ask for time to review the proposed order. In many parts of the state, the judge will agree. Opposing counsel will then spend the next three weeks considering 30 words that basically say “the demurrer is overruled for the reasons stated from the bench.” Or they’ll never respond at all. Whatever. But if we’re in ticking-clock finality land under Rule 1:1, I would politely insist that the order–or at least an order suspending the final order to allow consideration of the post-trial motion–be entered at the hearing, and I would explain why.

When it comes to finality, I try to heed Justice Mims’s advice: When in danger/When in doubt/Run in circles/Scream and shout. Kosko shows why.