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.

Longtime readers know that my favorite appellate genre is probable the “The Standard of Review Decides Cases” opinion. The Fourth Circuit just handed down a solid example in Burgess v. Goldstein.

Writing for the panel, Judge Quattlebaum leads off with a grabby TSORDC intro:

The facts underlying this appeal are dramatic and emotional. They involve unsavory characters from the Baltimore drug underworld, a brutal murder, a wrongful conviction and a $15 million judgment against a Baltimore Police Department officer for withholding and fabricating evidence. But the questions presented to us are not materially different from those we face in much more mundane cases. Was there sufficient evidence to support the jury’s verdict? Did the district court err in failing to give a requested jury instruction? And did the district court allow inadmissible hearsay evidence?

Our answers to those questions are determined largely based on the standard of review we must employ. Because there was evidence from which a reasonable jury could have found police misconduct, we affirm the district court’s denial of motions for judgment as a matter of law or a new trial under Rules 50 and 59 of the Federal Rules of Civil Procedure. Because the district court’s jury instructions, taken as a whole, complied with the law and the court’s earlier rulings, we find no error in them. And, although the district court improperly admitted hearsay evidence, the error, in the context of the record as a whole, was harmless. For those reasons, as more fully explained below, we affirm the jury’s verdict and the district court’s denial of the Rule 50 and Rule 59 motions. But we do reverse the district court’s dismissal of Burgess’ claim against the Baltimore Police Department under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), as described below.

The opinion then runs through a fact section that reads like a true-crime podcast. I’m not even going to try to summarize it, but its worth checking out.

And then CA4 considers the district court’s rulings on Goldstein’s Rule 50 and Rule 59 motions. It gives what seems like a fair explanation of his arguments. But then it reminds us that TSORDC:

Goldstein’s arguments are compelling. Indeed, Burgess’ case here appears thin. But thin evidence is not the same as no evidence. And under our standard of review, we are required to construe the evidence in the light most favorable to Burgess and to draw reasonable inferences in his favor. If we do that, we conclude that Burgess introduced enough evidence from which the jury could have inferred that Goldstein interviewed Brian, who told him that he saw a man who was not Burgess enter the home, and that, despite this knowledge, Goldstein wrote that all the children were asleep during the murder. That evidence includes . . .. Of course, there was evidence from which the jury could have rejected both conclusions Burgess advances. But under our standard of review, it is not our job to weigh the evidence or judge credibility. “On such appellate review we determine if a reasonable jury could have found the verdict.” First Union Commercial Corp., 411 F.3d at 556. Here, our standard of review compels the conclusion that a reasonable jury could have agreed with Burgess.

Did you notice the ellipses I threw in there? That’s the part of the opinion where the panel explained precisely what evidence got Burgess over the Rule 50 motion (and, by extension, the Rule 59 motion). This sort of guidance helps the bench and bar a ton.

Finally, Judge Quattlebaum explains why the standard of review works this way:

In affirming the district court’s denial of Goldstein’s Rule 50 motion, we emphasize the importance of the jury’s role in trials, a role enshrined in the Seventh Amendment. That role is, of course, important in any trial. It is even more important in trials, like the one here, that boil down to credibility determinations. The jury here was tasked with making a number of difficult credibility decisions. It had to decide what testimony to believe and what to reject. It had to decide how the various pieces of evidence offered over the course of a ten-day trial fit together. It did this with a front row seat to the testimony offered by the witnesses. From that vantage point, the jury was able to examine not only the words the witnesses said, but also how they said them—their facial expressions, their body language, their pauses, their mannerisms and all the other intangible factors that are present in a trial. In contrast, we, reviewing words on a transcript many years after they were spoken, lack the ability to appreciate those factors. For that important reason, we disturb a jury’s factual determinations only if they lack evidentiary support. United States v. Shipp, 409 F.2d 33, 36 (4th Cir. 1969) (“[W]here the evidence is in conflict, the jury’s opportunity to observe the witnesses’ demeanor is especially important in judging credibility.”). Here, we conclude that the evidence offered by Burgess was sufficient for a reasonable jury to conclude as it did on the withholding and fabrication claims.

Terrific opinion. Highly recommended.

  • King Lear by William Shakespeare (No Fear Shakespeare edition). Bear with me here. For school, Jack was assigned to read the No Fear Shakespeare edition of Julius Caesar. Have you seen these books? Each page has the text of the original play on one page, with a modern English translation on the facing page. You never miss a pun. These books make the Bard accessible to middle-school students and their tired, middle-aged dads. That said, too much checking back and forth can ruin the flow of the language.
  • Justice: What is the Right Thing to Do? by Michael Sandel. Reading this book feels like auditing a great undergrad lecture on political philosophy. Sandel’s use of concrete examples and hypotheticals is just masterful.
  • No Death, No Fear by Thich Nhat Hanh. A remarkable meditation on the nature of birth and death. Some parts land better than others.
  • The Thousand Autumns of Jacob de Zoet by David Mitchell. This book is bananas–a beautifully written story about working for the Dutch East Indies Company off the coast of Japan at the turn of the 19th century. I’m still not sure how Mitchell made Jacob de Zoet an engaging character because he really should come off as a dick.
  • Living by Vow: A Practical Introduction to Eight Essential Zen Chants and Texts by Shohaku Okumura. Hilarious title; it’s hard to imagine anything less practical than 256 pages on Zen chants. But if you want some historical context for the Bodhisattva Vows, have at it.
  • Never Split the Difference by Christopher Voss. Solid. Voss is a former FBI hostage negotiator who largely rejects Getting to Yes on the ground that people are irrational. This book is an engaging outline of his principles of negotiation heavily leavened–overleavened, really–with war stories. Still, the negotiation one-sheet at the end is probably worth the price of the book.
  • Zen Mind, Beginner’s Mind by Shunryu Suzuki.  I think I’m supposed to say something about how insightful this book is, but I tried my best and really didn’t get big chunks of it. I guess Steve Jobs liked it?
  • What is Zen? Plain Talk for a Beginner’s Mind by Norman Fischer and Susan Moon. This is a much more accessible book, structured as as conversation between Fischer and Moon. Worth reading if you’re curious.
  • Woe is I by Patricia O’Conner. This month’s grammar book? O’Conner tries hard to be funny, sometimes succeeds. I’m going to have to take a break from these for a while.
  • Legends of the Fall by Jim Harrison. This collection of three novellas is kind of what you’d get if you crossed Richard Bachman with Cormac McCarthy. I actually liked the first of the three stories in this collection more than the Brad Pitt showpiece, but if I’m being honest, none of them really did much for me.

Join me for a moment in considering Myers v. Commonwealth. Myers is a recent SCOVA opinion reversing a conviction for carrying a concealed weapon in a zippered backpack on the floor of the passenger seat of his car. The relevant statute, Code § 18.2-308, generally bars carrying a concealed weapon but carves out several exceptions.

The exception relevant here, subsection C(8), provides that the statute does not apply to “[a]ny person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.”

So the question presented in Myers was whether a handgun in a zippered backpack was “secured.” Continue Reading Justice Kelsey’s Dictionaries

The Fourth Circuit is notoriously stingy when it comes to granting oral argument. Last year (admittedly an odd year), CA4 terminated 696 private civil cases. It terminated 86 of them, or 12%, after oral argument. It reversed in 36 of them, or just over 5%. Steve Klepper has a nice essay from 2014 about all of this over at the Maryland Appellate Blog. He argues that given modern Fourth-Circuit practice, the statement concerning oral argument under Local Rule 34(a) is the most important part of a brief. Steve urges appellants and appellees alike to include a robust statement about the need for oral argument, drawing on the criteria for publishing opinions under Local Rule 36(a):

Opinions delivered by the Court will be published only if the opinion satisfies one or more of the standards for publication:
i. It establishes, alters, modifies, clarifies, or explains a rule of law within this Circuit; or
ii. It involves a legal issue of continuing public interest; or
iii. It criticizes existing law; or
iv. It contains a historical review of a legal rule that is not duplicative; or
v. It resolves a conflict between panels of this Court, or creates a conflict with a decision in another circuit.

This is great advice! I’ve cribbed it before. But why are we going back to the well now? Continue Reading Oral Argument and Revised Code Section 17.1-403

  1. Dharma Bums by Jack Kerouac.  “Kerouac” is a cool name, I guess. It has almost all the vowels. Why is this book supposed to be good?
  2. Making Your Case: The Art of Persuading Judges by Antonin Scalia and Bryan A. Garner. I read this every year with our federal litigation class. It’s my favorite book about how to practice law. The Curmudgeon’s Guide to Practicing Law by Mark Herrmann is a close second. And since we’ve somehow fallen into a best-of list, my favorite book on brief writing is probably The Winning Brief, also by Bryan Garner. But in fairness to Ross Guberman, I keep a tabbed copy of Point Made close at hand so I can find spicy verbs (pages 198-99) and smooth transitions (pages 274-77) when my brain fails. And I always use BriefCatch. As a practical matter, I rely on the Guberverse resoruces much more than Making Your Case or The Winning Brief. On the other hand, I also use Garner’s Redbook (a lot) and Modern American Usage (not so much). And Reading Law (whenever possible). And Black’s Law Dictionary, of course (you wouldn’t believe how often, yet somehow not as much as Webster’s Third). This is exhausting. What were we talking about?
  3. Would You Kill the Fat Man? by David Edmonds. Nope. I would not push a large man off a bridge and into an onrushing trolley’s path to save the lives of five people tied to the track. I am a moral monster. Edmond’s treatment of trolley problems is quick and fun, but I would have liked more depth.
  4. Leadership in Turbulent Times by Doris Kearns Goodwin. Okay, I actually read this last month but forgot to include it in the post. Leadership follows the careers of Lincoln, Teddy Roosevelt, FDR, and LBJ, pulling lessons from their performance. The first part of the project is fantastic; FDR’s hundred days and LBJ’s push for the Great Society read like science fiction today, and are a useful reminder that government can actually do stuff. The second part of the book–the leadership lessons–didn’t land as hard for me. There’s an awful lot of survivorship bias here. We’re talking about four of the most talented Americans who lived in the past two centuries. Looking at how they handled crises is interesting, but if we’re going to learn from them it would help to know if, say, 10 million less talented people tried the same strategies and failed.
  5. Ask a Pro by Phil Gaimon.  I’m not sure that this even counts as a book. It’s more like the cycling equivalent of that collection of golf jokes that every dentist keeps in their bathroom. Anyway, I liked it.
  6. Eats, Shoots & Leaves by Lynne Truss. An angry little book about punctuation. Too British. Otherwise good.
  7. Alexander and Caesar from Plutarch’s Lives. Alexander didn’t do that much for me, although it was interesting to learn how crosswise he got with Aristotle. Caesar, by contrast, was amazing. Imagine Game of Thrones but all about Tywin.
  8. Meno and Crito by Plato. Back to freshman year Intro to Western Philosophy. (Hi, Professor Fowler!) Meno is worse than I remember. Crito is way better: either persuade the law or obey it.
  9. The Story of Philosophy by Will Durant. There’s a lot in here that I liked–in particular, the good work Durant does placing great philosophers and their ideas in historical context, and tracing lines of thought and inquiry down through the ages. As a work of synthesis, this book is fantastic. Also, everybody’s favorite line from Aristotle–“[W]e are what we repeatedly do. Excellence, then, is not an act but a habit.”–isn’t Aristotle at all. It’s Durant talking about Aristotle in this book! And the the whole chapter about Voltaire is awesome (especially the bit about him making a fortune by being better at math than the Parisian bond lottery). That said, the book has more than its share of cringey moments; the author and his subjects were all, shall we say, creatures of their time.
  10. Opening the Hand of Thought: Foundations of Zen Buddhist Practice by Kosho Uchiyama Roshi. This is a refreshingly lucid explanation of zen sitting meditation, or zazen. It helps illuminate the differences between zen practice and generic  mindfulness exercises.

Last week, the Supreme Court of Virginia answered one of the great open questions in Virginia tort law when it clarified the availability of attorney’s fees under Prospect Development Co. v. Bershader, 258 Va. 75, 92 (1999).

A little background: Virginia follows the American Rule, which provides that without a statute or contract to the contrary, the prevailing party generally cannot recover attorney’s fees from the losing party. Historically, Virginia has recognized some exceptions, like false-imprisonment cases or situations “where a breach of contract has forced the plaintiff to maintain or defend a suit with a third person.” In 1999, the Supreme Court of Virginia added to this list with Bershader, holding that “in a fraud suit, a chancellor, in the exercise of his discretion, may award attorney’s fees to a defrauded party. When deciding whether to award attorney’s fees, the chancellor must consider the circumstances surrounding the fraudulent acts and the nature of the relief granted to the defrauded party.” Bershader‘s facts were pretty bad, as the chancellor found that the defendants had “engaged in callous, deliberate, deceitful acts that the chancellor described as a pattern of misconduct” that misled the plaintiffs and others. The chancellor felt that if he did not award attorney’s fees, the plaintiffs would have won a hollow victory.

That’s all fine as far as it goes, but it left open at least two questions: (1) Are attorney’s fees available only in equity, and (2) are they available only when the defendant has engaged in egregious misconduct? Continue Reading SCOVA Clarifies Availability of Attorney’s Fees Under Prospect Development Co. v. Bershader