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?


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

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