DeNovo: A Virginia Appellate Law Blog

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By: Johnson Rosen & O’Keeffe

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Jay O'Keeffe
Jay O'Keeffe

Latest from DeNovo: A Virginia Appellate Law Blog

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…
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.…
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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…
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…
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…
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.…
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 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…
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? 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…
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,…