Wednesday, June 18, 2003

Why would anyone want to cite unpublished decisions in Virginia

The Curmudgeonly Clerk says here that he (or she, for all I know, but can there be a female curmudgeon?) doesn't like the new rule in the works on citation to unpublished authority, cited here by How Appealing.

There must be 50 opinions put out by the Fourth Circuit so far this week, and I don't think it is much of a stretch to say that at least 40 of them could never be cited because they don't say anything, or they say almost the same exact thing as the other non-substantive per curiam opinions disposing of like cases for the same reason. It is also possible for the appeals court to write about the facts of a case at length without saying anything new about the law, as in this Cooper case (one of my personal favorites), which will never get cited other than for the fact of the outcome.

In Virginia, sadly, we need all the law we can get. The 200+ years of work of the Virginia Supreme Court fit into less than 300 tidy little volumes, and the publication of trial court opinions is better than ever but sporadic and erratic and unofficial. The federal court opinions are too often the only source of authority on a question of Virginia law which the Supreme Court has not addressed. (This is in contrast to, for example, Howard Bashman's Pennsylania, where there are collections of trial court opinions for almost every county, and some odd statewide collections of trial court opinons, and two intermediate appeals courts which together have much broader jurisdiction that does the Virginia Court of Appeals.)

Of course, the federal courts sometimes get it wrong, in their attempt to guess what the Virginia Supreme Court might do. In the last ten years, for example, district courts have guessed wrong about direct claims by minority shareholders, compare Byelick v. Vivadelli, 79 F. Supp.2d 610, 625 (E.D. Va. 1999) (minority shareholder “has a cognizable claim against an inside director for breach of fiduciary duty”), with Simmons v. Miller, 261 Va. 561, 576, 544 S.E.2d 666, 675 (2001) (no such claim); medical write-offs, compare Mitchell v. Hayes, 72 F. Supp.2d 635, 637 (W.D. Va. 1999) (write-offs “do not represent actual loss”), and Acuar v. Letourneau, 260 Va. 180, 192, 531 S.E.2d 316, 322 (2000) (write-offs are recoverable); negligent retention, compare, e.g., Frye v. Virginia Transformer, 1995 WL 810018 at *4 (W.D. Va.) (negligent retention “is not recognized in Virginia”), and Southeast Apartments Management, Inc. v. Jackman, 257 Va. 256, 260, 513 S.E.2d 395, 397 (1999) (recognizing negligent retention); and crashworthiness, compare Euler v. American Isuzu Motors, Inc., 807 F. Supp. 1232, 1236 (E.D. Va. 1992) (Supreme Court “would adopt the ‘crashworthiness’ doctrine”), and Slone v. General Motors Corp., 249 Va. 540, 525, 457 S.E.2d 51, 53 (1995) (“we reject this doctrine”). On issue after issue, as these examples demonstrate, the law builds up first in the federal courts, then the Virginia Supreme Court comes along and either agrees or not, but until that happens, those federal opinions (including opinions from the court of appeals) really hit the spot for lawyers litigating those unresolved issues.

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