One of my favorite recent SCV cases is Landrum v. Chippenham & Johnston-Willis Hospitals, Inc., 282 Va. 346, 717 S.E.2d 134 (2011).

I love Landrum, in part, because it gave me an excuse to write this:

This brings us to one of O’Keeffe’s Immutable Rules of Legal Practice: if you have somehow managed to irritate Justice Lemons to the point that he (politely) goes out of his way to make you look like a fool on page one of a published opinion, you should probably just turn in your bar card.

It’s the judicial equivalent of getting kicked in the nuts by Gandhi.

The whole post is here.

And a funny thing about that post: After I wrote it, I went to the Virginia State Bar’s Harry L. Carrico Professionalism Course. (Before you leap to the obvious conclusion that I was ordered to attend the class as a sanction, please understand that I am somehow, inexplicably, on the faculty.) 

At lunch, the keynote speaker was the Honorable Donald W. Lemons. Guess who was seated at his table?

Awkward.

Although, in fairness, it was not nearly as awkward as it could have been, because Justice Lemons is a delightful guy, and he’s blessed with a very good sense of humor. He would never intentionally humiliate me outside of a courtroom.

But Landrum‘s enduring legacy isn’t my personal discomfort at lunch with its author, however exquisite that might have been.

Instead, the opinion adopted a three-part test for finding an abuse of discretion. Under that test, an abuse of discretion principally occurs when (1) a trial court fails to consider a factor that should have been given significant weight; (2) the trial court considers an irrelevant or immaterial factor and gives it substantial weight; or (3) the trial court weighs the right factors but commits a clear error of judgment. Landrum, 282 Va. at 352, 717 S.E.2d at 352 (quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

One of Landrum‘s oddities is that it was decided by five justices, and two of them concurred–leaving only a three-justice majority. The two concurring justices noted that, under prior case law, a trial court abused its discretion by definition when it makes a mistake of law. Id. at 357, 717 S.E.2d at 139 (Millette, J. concurring).

But again, only two justices felt strongly enough about that point to write separately, and only three signed the majority opinion. This left the treatment of a trial court’s mistake of law in an area governed by abuse-of-discretion review somewhat unsettled.

It stayed that way until the Court revisited the issue earlier this year in Lawlor v. Commonwealth, 285 Va. 187, 738 S.E.2d 847 (2013), a loooong opinion in a capital-murder case that the Court handed down in January, and which I’ve just finished reading. All seven current justices signed on to the Lawlor opinions. Justice Mims, a member of the Landrum triumvirate–err, majority?–wrote for the Court.Continue Reading Lawlor v. Commonwealth: SCV Clarifies Abuse-of-Discretion Review

On Friday, the Supreme Court dropped 13 published opinions and 2 published orders. That’s a bit surprising, because there were 29 cases listed on the September docket. Even counting the unpublished opinions that have come down in the meantime, we still have decisions in about 10 cases outstanding from September. (This is all back-of-the-envelope stuff; I’d welcome corrections.)

Another little anomaly: based on a quick flip through the opinions, it doesn’t look like the Chief Justice wrote any of them.

I suspect that any weirdness is a combination of three factors: (1) the recent turnover at the Court; (2) Chief Justice Kinser’s administrative responsibilities, particularly with regard to the rules of evidence and judicial realignment; and (3) luck of the draw.

At any rate, quality is far more important than quantity, and we picked up some fun opinions last week–even a rare dissent!

One of my early favorites is Justice Lemons’ opinion in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc.

A little background: Justice Lemons is President of the American Inns of Court. He is unfailingly gracious, and probably takes civility and professionalism more seriously than anyone you will ever meet.

Also, Landrum looks to be a holdover from June, when the depleted five-member Court was hearing cases. In Landrum, we have a 3-justice majority and a 2-justice concurrence. That alone makes it something of a collector’s piece.

Now back to our story. Landrum was represented by out-of-state counsel, who was pro hac vice. Kind of. The record lacked a motion by local counsel to associate him pro hac, or an order granting such a motion. Both are required by Rule 1A:4(3)(b)-(c). So he was clearly off to a good start.

But I digress. More importantly, so did the Court, in a footnote on the first page of the opinion.

This brings us to one of O’Keeffe’s Immutable Rules of Legal Practice: if you have somehow managed to irritate Justice Lemons to the point that he (politely) goes out of his way to make you look like a fool on page one of a published opinion, you should probably just turn in your bar card.

It’s the judicial equivalent of getting kicked in the nuts by Gandhi.

You must have done something horribly wrong to deserve that.

And indeed, Landrum (or more precisely, her Missouri counsel) did.Continue Reading Benchslapped by a Three-Justice Majority? Landrum v. Chippenham & Johnston-Willis Hospitals, and Other Oddities