DeNovo: A Virginia Appellate Law Blog

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By: Johnson Rosen & O’Keeffe

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Jay O'Keeffe

Latest from DeNovo: A Virginia Appellate Law Blog

The Supreme Court of Virginia’s argument schedule for next week is up. Here are a few of the cases that caught our eye and why: NC Financial Solutions of Utah, LLC v. Commonwealth: A consumer-finance case raising Federal Arbitration Act and Virginia Consumer Protection Act issues. Strong judge (Judge Ortiz from Fairfax) and a chance that SG Toby Heytens argues on behalf of Virginia. Barbour v. Carilion Medical Center: Judging from the assignments of error, it looks like the trial judge ruled as a matter of law that the plaintiff was contributorily negligent in  a medical malpractice case?…
After revisiting the Tail End, I realized that there’s only one way to keep me honest about how I’m spending my limited reading time: transparency. So I’m going to start keeping a public list of what I’m reading. As an added benefit, every time I stumble across something good I can let you all know. With that background, here’s last month’s list:…
SCOVA recently granted an appeal in Norton v. Board of Supervisors of Fairfax County, Record No. 201028. Here are the assignments of error: 1. The trial court erred in dismissing Count VIII of the Second Amended Complaint because the Airbnb Hosts produced probative evidence that the Board’s adoption of the STL Zoning Ordinance was unreasonable, arbitrary and capricious where the Board failed to give reasonable consideration for the existing use of property as required by Virginia Code § 15.2-2284 and where the Board offered no evidence (and there was no evidence) of reasonableness to make the issue fairly debatable. 2.…
I always hate it at CLEs when people say things like, “There’s no good writing. Only good editing.” Sure, a first draft is just that, and that you can’t compare your first cut at a brief with another writer’s finished product. 10-4. But how are you supposed to get from that first draft to the finished product? Like, mechanically, what are you supposed to do? In GTD parlance, what is the next physical, visible action? For years, I didn’t know. So I would just print out my brief and read it, and edit, over and over again. How would I…
Brother Emmert has an essay with some updated appellate statistics. I’ll let him do the talking: Thus far in 2020, The Robes have given us 41 published opinions and seven published orders. We’ve also seen 25 unpublished orders – rulings that adjudicate the appeal but don’t appear in Virginia Reports and don’t carry precedential weight. That means there are 73 total dispositions on the merits so far. Let’s take a look backward to see how this pace compares with historical figures. Ten years ago, in 2010, there were 117 opinions and 59 orders, for a total of 176. Another…
I don’t usually get surprised at legal-writing CLEs. But I got surprised this morning. For context, I was lucky enough to moderate a panel  at the VADA’s annual meeting this morning. Justice McCullough, Judge Carson, and Erin Ashwell sat on the panel, which addressed practical legal-writing tips. If you know these folks, then you know that they have varied and fascinating life experiences. We ignored them. Instead of talking about, say, growing up in Marseille (Justice McCullough) or spending summers in the Catskills as a California kid (Judge Carson) or writing novels (Erin), we focused on my idiosyncratic…
Juli Porto has an article in this morning’s VTLAppeal, Is There a New Sheriff in Town Named “A.H. Tingler”?, analyzing SCOVA’s subtle importation of Twiqbal through A.H. v. Church of God in Christ, Inc. and Tingler v. Graystone Homes, Inc. Thoughtful and recommended. Among other things, Juli notes that the Court cited Twiqbal in A.H., then cited A.H. in Tingler as if it had always been Virginia law. She points out:…