The Supreme Court of Virginia released four unpublished orders on Friday.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
The Supreme Court of Virginia’s recent treatment of assignments of error has been inconsistent, and that makes life difficult for appellants and appellees alike.
Background: Supreme Court’s Crackdown on Assignments of Error Alarms Appellate Practitioners
For the past year or so, the Supreme Court of Virginia has been getting increasingly demanding in its treatement to assignments of error. Steve Emmert contributed an excellent essay on this topic last summer. He pointed out a few specific instances in which the Court had found assignments of error lacking:
This was troubling. Virginia case law has long required an appellant “lay his finger” on an error by pointing out the exact legal ruling he was challenging. That was the standard, and these lawyers seemed to have their fingers in the right place.
Worse, the second assignment of error was almost identical to one granted in 2006, which read: “The trial court erred in granting the defendant’s motion for summary judgment.”
Emmert notes that the news alarmed–even stunned–experienced appellate practitioners, himself included. He determined that the best advice for appellants, which he attributed to an unnamed justice, was to include the word “because” in your assignments of error.
Emmert’s observations match our experience here at the Firm on the Move (TM). For example, we represented the appellees in a recent case where one of the assignments of error cited an evidentiary issue, then stated that the trial court had erred by overruling the appellants’ motion on that “and other grounds.” The Supreme Court reached the merits of the evidentiary issue, but ruled as to the other grounds that it would not address such a general and unspecific assertion of error.”Continue Reading What’s an Appellant (or Appellee) to Do? Supreme Confusion Over Assignments of Error
In Howell v. Sobhan, the Supreme Court of Virginia clarifies the law of proximate cause and gives us a new opinion replete with appellate practice pointers.
The Case
The plaintiff, Esther Howell, went to a gastroenterologist for a colonoscopy. He found 3 polyps in her colon, but was only able to remove one. The gastroenterologist sent Howell in for a “probable subtotal colectomy”–yes, it’s as bad as it sounds. Before surgery, the gastroenterologist determined that her polyp was benign.
Not that it mattered.
Howell’s surgeon, Dr. Sobhan, removed almost all of her colon, reattaching it to her small intestine through an anastomosis. After she was discharged from the hospital, Howell developed a fistula, or leak, that was penetrating her abdomen and coming through her wound. While she was in the emergency room, the incision in her abdomen split open, and “the bowel contents came out” through her incision.
This led to two more surgeries, and ultimately a suit against Dr. Sobhan for removing too much of her colon and using inappropriate anastomosis techniques.
At trial, Howell produced two experts. Both testified that Dr. Sobhan breached the standard of care by removing too much of her large intestine.Continue Reading Howell v. Sobhan: Appellate Practice Points from the Supreme Court’s New Opinion
Apologies for the delay since my last post. I was tied up in trial for part of last week, and recovering for the rest of it. I was so busy, in fact, that I almost missed this post from the Volokh Conspiracy about Newman v. Commonwealth, 2009 Va. App. LEXIS 360, 2009 WL 2431289