Monday, March 02, 2015

Latest batch of opinions focuses on the law of lawyering

In its decisions issued on Friday, the Virginia Supreme Court dealt with the timeliness of a prisoner's collateral attack on his conviction based on involving prosecutorial misconduct in the failure to disclose exculpatory evidence (Hicks v. Director), the liability of a lawyer for the wrongful death of a process server that he hired to serve what proved to be a dangerous person (Brown v. Jacobs), what damages are recoverable in a legal malpractice case and whether an attorney is negligent in failing to anticipate changes in the law (Smith v. McLaughlin), who the lawyer needs to be name as a party to a zoning appeal (Frace v. Johnson), what attorney fees are recoverable on a motion for sanctions under Va. Code 8.01-271.1 (E.E. Mart F.C. v. Delyon), how to preserve error related to the denial of leave to amend (Roop v. Whitt), and the failure of defense counsel to advise a criminal defendant about the effect of his plea bargain on his immigration status (Zemene v. Clarke). Also, in two cases, the opinion writers addressed the effect in Virginia courts of determinations in the federal courts, in Toghill v. Com. and Cowser-Griffin v. Griffin.

Just reading every one of those opinions ought to be enough to fulfill the ethics CLE hours for the year, but here is the gist:

In Hicks, the Court held that the failure to disclose exculpatory material is the basis for tolling the statute of limitations under Va. Code 8.01-229(D), but the petitioner in that case could not prove that the exculpatory material was important enough to justify relief.

In Brown, the Court held that there was no legal relationship between the process server and the lawyer who hired him that would justify the imposition of tort liability on the lawyer for the criminal acts of someone else.

In Smith, the Court held that the lawyer is not liable for failure to anticipate changes in the law, and that non-pecuniary damages are not recoverable in a legal malpractice case.

In Frace, the Court held that special rules apply to a zoning appeal in naming the necessary parties, and the board of supervisors and not the board of zoning appeals was the necessary party to be joined and served under the certiorari statute as amended in 2010, and the omission of the necessary party could not be cured outside the appeal period.

In Roop, the Court held that the plaintiff had failed to preserver error related to the denial of his motion for leave to amend, where the record did not show "how the amendment would alter the pleading upon which the circuit court had ruled."

In E.E. Mart, the Court held that the sanctions under section 8.01-271.1 could not include attorney fees for prior litigation in another state.

In Zemene, the Court held that the circuit court applied the wrong standard in assessing the petitioner's claim of "prejudice" in connection with the failure to inform him about the effects on his immigration status.

In Toghill, the various opinions rejected the Fourth Circuit's decision on the facial invalidity of Virginia's anti-sodomy statute, and disagreed as to whether it even matter that the the Fourth Circuit had taken up the issue after the defendant's trial.

In Cowser-Griffin, Justice Millette in a dissenting opinion joined by Chief Justice Lemons and Senior Justice Koontz concluded that the Court of Appeals erred in its conclusion on a federal law question pertaining to the vesting of survivor benefits under a QDRO.

Wednesday, February 25, 2015

On the Juvenile Court judgeship in the 28th

I understand that the General Assembly, or at least the House of Delegates, voted to appoint Joe Lyle who practices here in Bristol to the new seat on the Juvenile and Domestic Relations District Court for the 28th District. Congratulations to Joe, who started out at about the same time that I did, and has been a good guy to know these many years.

Heard from an oral argument

One of my friends arguing recently before the Virginia Supreme Court said this:

"The train had already come, it had run over me, and I'm trying to save the case, at the very last stage."

I guess we've all been there.


Tuesday, February 24, 2015

Ten children and one skillet

In the book "The Minor Family of Virginia," published in 1923, my favorite entry has always been this one:



As it turns out, James Minor Quarles was also a member of Congress from 1859 to 1861, an officer during the Civil War in the infantry regiment led by his brother William A. Quarles (who was taken prisoner twice), and a state court judge again after the war.

Somehow, I can relate better now to "10 children and one skillet" than when I first read this book years ago.

It pays to poll the jury

In Webb v. Com., the Court of Appeals in a published opinion by Judge Annunziata reversed and remanded the sentence imposed in a drug case, where the sentence was thirty years plus a half million dollar fine, because when the jurors were polled as to whether that was their verdict on sentencing, one of them said "no." The Court also ruled that the issue was not waived by failure to take it up while the trial court could have acted on it, even though it did not rise to the level of a constitutional violation.

Saturday, February 21, 2015

Why not let your client write the brief

That patent lawyer who has gotten his name in the news for filing an incomprehensible and weird-looking petition for certiorari in the U.S. Supreme Court that was supposedly mostly written by the client is an engineering graduate of Virginia Tech and a member of the Virginia State Bar.

I generally root for engineers from Virginia Tech and fellow members of the Virginia State Bar but that petition would have bothered me. The one United States Supreme Court petition I filed was as smooth and comprehensible as I could possibly make it. I was still thinking about how to make it better for years after it was denied. Bockes v. Fields, 114 S.Ct. 922 (1994). Some years later, I filed an amicus brief for Congressman Boucher in the Missouri municipal telecommunications case but that was a different sort of writing, and so it said what he wanted it to say no more and no less.

Thursday, February 19, 2015

On the exclusion of witnesses at trial and in depositions

In Vince v. Com., the Virginia Court of Appeals in an unpublished opinion by Judge Decker held that the defendant had an absolute right to the exclusion of witnesses (other than the "victim") from her criminal trial under Va. Code § 19.2-265.1, but that the trial court's error in allowing the Commonwealth's expert witness to remain in the courtroom to hear the defendant's testimony was harmless error.

In its discussion, the Court rejected analogies to Rule 615 of the Federal Rules of Evidence, which gives the trial court discretion that the Virginia statute explicitly does not.

The parallel statute for civil cases, Va. Code § 8.01-375, includes a partial exception for expert witnesses, but only "[w]here expert witnesses are to testify in the case" and "at the request of all parties," or when the case involves equitable distribution or child support or spousal support. 

The Rule was not always so in Virginia, evidently mandatory exclusion of witnesses on the motion of the parties became the law by way of an amendment to the Code in 1975, which makes one wonder why the legislature saw fit at that to eliminate judicial discretion on this issue, not a progressive decision in my view.

Arguably, the civil  statute applies during the taking of depositions by way of Rule 4:5(c), which provides that "[e]xamination and cross-examination of witnesses may proceed as permitted at trial." The federal rule on depositions Rule 30(c) excepts Rule 615 from the rules of evidence that apply during the taking of depositions. About this provision, the Rules Advisory Committee wrote:

"[T]he revision addresses a recurring problem as to whether other potential deponents can attend a deposition. Courts have disagreed, some holding that witnesses should be excluded through invocation of Rule 615 of the evidence rules, and others holding that witnesses may attend unless excluded by an order under Rule 26(c)(5). The revision provides that other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate; and, if exclusion is ordered, consideration should be given as to whether the excluded witnesses likewise should be precluded from reading, or being otherwise informed about, the testimony given in the earlier depositions. The revision addresses only the matter of attendance by potential deponents, and does not attempt to resolve issues concerning attendance by others, such as members of the public or press."

Thursday, February 12, 2015

Judge Sargent approves $300 hourly rate in Abingdon Title VII case

In Atkins v. VDOT, Magistrate Judge Sargent awarded fees for plaintiff's counsel in a Title VII case at the hourly rate of $300. As part of her decision, she specifically rejected VDOT's argument that the hourly rate for cases in the Abingdon jury division should be lower than the rate for cases in the Roanoke jury division. Judge Sargent appears to have read every one of the time entries and disallowed the ones that caught her eye as unnecessary. Back in the day, Judge Sargent had to submit her time in some federal court-appointed cases and I expect that she expects counsel to give their time entries something like the same level of attention that she did.

When should a federal court stay a civil case pending the outcome of a criminal case?

In Skinner v. Armet Armored Vehicles, Judge Kiser of the W.D. Va. denied the defendants' motion for a stay of their False Claims Act case pending the outcome of the criminal case against them. Judge Kiser's analysis makes it sound like a stay should rarely be granted. In some other courts, there is almost a presumption in favor of such a stay in some circumstances, and Judge Jones granted a stay in the one case where I raised the issue, even though the result was a delay of some years in the civil cases.

At the time, I wrote something like this:

"The determination by a district judge in granting or denying a motion to stay proceedings calls for an exercise of judgment." United States v. Georgia Pac. Corp., 562 F.2d 294, 296 (4th Cir. 1977). Many courts have recognized that a stay of a civil case is most appropriate when the civil defendant has been indicted over the same subject matter. See In re Julmice, 458 B.R. 657, 662 (Bankr. E.D.N.Y. 2011) ("When an indicted criminal defendant is also a defendant in a related civil action, courts in this Circuit generally grant a stay of the civil matter."); Avalonbay Communities, Inc., v. San Jose Water Conservation Corp., CIV A 07-306, 2007 WL 2481291 (E.D. Va. Aug . 27, 2007), aff'd, 325 Fed. App'x 217 (4th Cir. 2009) ("a stay is most appropriate in situations where a party is under indictment for a serious offense") (citing SEC v. Dresser Indus. Inc., 628 F.2d 1368, 1376 (D.C. Cir. 1980)); Trustees of Plumbers & Pipefitters Nat. Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995) ("A stay of a civil case is most appropriate where a party to the civil case has already been indicted for the same conduct"); Volmar Distributors, Inc. v. New York Post Co., Inc., 152 F.R.D. 36, 39 (S.D.N.Y. 1993) (“The strongest case for granting a stay is where a party under criminal indictment is required to defend a civil proceeding involving the same matter.”); In re Par Pharm., Inc. Sec. Litig., 133 F.R.D. 12, 13 (S.D.N.Y. 1990) (“The weight of authority in this Circuit indicates that courts will stay a civil proceeding when the criminal investigation has ripened into an indictment”). When the individuals who own and operate business entities are indicted, courts granting a stay for the individuals will often do the same for any unindicted co-defendant business  entities. See, e.g., Am. Express Bus. Fin. Corp. v. RW Prof’l Leasing Services Corp., 225 F. Supp. 2d 263, 265-66 (E.D.N.Y. 2002).  


Indeed, the fact that the indictment has been returned is critical because it dictates both the degree of risk of self-incrimination and the length of potential delay to the civil case. See U.S. S.E.C. v. Trujillo, 09-CV-00403-MSK-KMT, 2010 WL 2232388 (D. Colo. June 1, 2010) (holding that after an indictment is returned, “The potential for self-incrimination is greatest during this stage, and the potential harm to civil litigants arising from delaying them is reduced due to the promise of a fairly quick resolution of the criminal case under the Speedy Trial Act.”); Parker v. Dawson, 06-CV-6191 JFB WDW, 2007 WL 2462677 (E.D.N.Y. Aug. 27, 2007) (“although a stay pending resolution of the criminal action may result in an immediate delay in the progress of the civil actions, it is likely that the resolution of the criminal action will, ultimately, further this Court’s interest in the efficient disposition of the civil actions.”); Crawford & Sons, Ltd. v. Besser, 298 F. Supp. 2d 317, 319 (E.D.N.Y. 2004) (“A stay would promote efficiency and avoid duplication as this Court and the parties would have the benefit of the transcripts and rulings in the criminal action. In addition, the public’s interest is also served by preserving the integrity of the criminal case.”); Sterling Nat. Bank v. A-1 Hotels Int’l, Inc., 175 F. Supp. 2d 573, 577 (S.D.N.Y. 2001) (“When a defendant has been indicted, his situation is particularly dangerous, and takes a certain priority, for the risk to his liberty, the importance of safeguarding his constitutional rights, and even the strain on his resources and attention that makes defending satellite civil litigation particularly difficult, all weigh in favor of his interest. Moreover, if the potential prejudice to the defendant is particularly high post-indictment, the prejudice to the plaintiff of staying proceedings is somewhat reduced, since the criminal litigation has reached a crisis that will lead to a reasonably speedy resolution.”)."

Monday, February 09, 2015

Best meal in 2014

If it is not too late for a retrospective, it seems like the best meal of the whole year that was came from Hamiltons and was served by the lady behind me.