On the Rules of Evidence

The Charlottesville paper has this article on how the adoption of the Virginia Rules of Evidence was a long-term project for law professor Kent Sinclair.

It begins: "A University of Virginia law professor spent 18 years sorting through centuries worth of case law to develop the Virginia Rules of Evidence, a comprehensive guide to govern the admission of evidence in civil and criminal trials across the state."

Interestingly, I never noticed before today that the new and improved version of Va. Code 8.01-3, dealing with the Rules of Evidence, includes this proviso: "The General Assembly may, from time to time, by the enactment of a general law, modify or annul any rules adopted or amended pursuant to this section. In the case of any variance between a rule and an enactment of the General Assembly such variance shall be construed so as to give effect to such enactment."

On getting the lower court to do what the higher court decided

A traditional office of the writ of mandamus is to "'confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Will v. United States, 389 U.S. 90, 95 (1967) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)). Mandamus to compel an inferior court to follow an appellate mandate is closely related to the doctrine of law of the case. Litigants who have proceeded to judgment in higher courts "should not be required to go through that entire process again to obtain execution of the judgment." General Atomic Co. v. Felter, 436 U.S. 493, 497 (1978). The Supreme Court long ago emphasized that when acting under an appellate court's mandate, an inferior court "is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution." In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895).

The same principles apply in Virginia state court. Mandamus is available to get lower courts to do what they should do. In re Commonwealth, 278 Va. 1, 22, 677 S.E.2d 236, 246 (2009) (mandamus directed to an inferior court “may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act ...”); Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878) (mandamus "may be appropriately used and is often used to compel courts to act [when] they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered."). A ministerial act is “one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.” Dovel v. Bertram, 184 Va. 19, 22, 34 S.E.2d 269, 370 (1945). Under the “mandate rule,” a “trial court has no discretion to disregard [a] lawful mandate.” Rowe v. Rowe, 33 Va. App. 250, 257, 532 S.E.2d 908, 912 (2000), quoted in Powell v. Com., 267 Va. 107, 127-28, 590 S.E.2d 537, 549 (2004). The “mandate rule” is “merely a ‘specific application of the law of the case doctrine,’” and “in the absence of exceptional circumstances, it compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), cited in West v. West, 59 Va. App. 225, 230-31, 717 S.E.2d 831, 833 (2011).

We first heard the term "mandamus" in junior high civics, in connection with the case of Marbury v. Madison. Marbury wanted the writ to issue against Madison, requiring him to come across with Marbury's commission. Curiously, the Virginia rules require a different style for petitions for writ of mandamus against a judge: "A petition for writ of mandamus or writ of prohibition against a judge shall not bear the name of the judge but shall be entitled, 'In re , Petitioner.'" Rule 5:7(b)(4), Va. S.Ct.

On second depositions

Back in the day, I had a case that got tried a couple of times, various weird things happened in between the trials, and the magistrate judge ruled that my client had subject himself to a third deposition. While the case was going on, in 1993, Rule 30 of the Federal Rules of Procedure was amended to provide that leave of court was required to take a deposition if the deponent had already been deposed in the case. Rule 30(a)(2)(A)(ii), F.R.C.P. In 2000, Rule 30 was further amended, to provide that "a deposition is limited to 1 day." Rule 30(d)(1), F.R.C.P. The result is that in the absence of agreement, leave of court is always required for a second (or third) deposition of the same witness.

A few years later on, I had another case where the Magistrate Judge, affirmed by the District Judge, ruled that my clients should be deposed a second time. So we argued that at least the subject matter of the second depositions should be limited to new matter, citing Judge Urbanski's decision in Schwarz & Schwarz of Virginia, L.L.C. v. Certain Underwriters at Lloyd’s, Civil Action No. 6:07cv042, 2009 WL 1913234 (W.D. Va. July 1, 2009). In the Schwarz case, the poor fellow had been depose once, given a recorded statement, and suffered through an examination under oath.

The Schwarz & Schwarz case fit with other decisions we found. “Several courts faced with similar situations have granted a party the right to take a second deposition, but have limited that deposition to matters not addressed in the first deposition.” Christy v. Pennsylvania Turnpike Com’n, 160 F.R.D. 51, 53 (E.D. Pa. 1995) (citing cases). See also San Francisco Bay Area Rapid Transit Dist. v. Spencer, 2006 WL 2734289, 2 (N.D. Cal.) (limiting scope “to those areas not already covered in the previous depositions.”); Collins v. International Dairy Queen, 189 F.R.D. 496, 498 (M.D. Ga. 1999) (“these supplemental depositions should not involve substantial repetition of questions previously asked and answered and instead should focus on subjects not previously inquired about and facts or alleged facts and developments since their initial depositions.”); Schbley v. Gould, 1993 WL 135427, 1 (D. Kan.) (“The general rule adhered to by this court is that depositions of witnesses or parties already deposed will be permitted, but their depositions should be limited to those areas not covered in the earlier depositions.”); Perry v. Kelly-Springfield Tire Co., Inc., 117 F.R.D. 425, 426 (N.D. Ind. 1987) (“The second deposition of the plaintiff shall be limited to those areas not covered during the initial deposition.”).

This week we had a "discovery" deposition in a state court case; plaintiff's counsel said he would decide later whether he would re-depose the doctor "for trial." Neither the 1993 nor 2000 amendments to Rule 30 were ever adopted into the Virginia rules. Doctors are regarded as unavailable under the Virginia rules, Rule 4:7(a)(4)(e), and so their testimony is generally given by deposition. As Judge Welsh observed, "the use of trial depositions (both video-taped and stenographic transcriptions), taken after the close of pretrial discovery, have been routinely used efficiently and effectively for many years, both in this court and in the state courts of Virginia." Lucas v. Pactive Corp., No. 5:08cv00079 (W.D. Va. Dec. 22, 2009). Notwithstanding the common practice, "[t]here is no statute or Rule of Court specifically authorizing a de bene esse deposition." Boyer v. Dabinett, 74 Va. Cir. 19, 24 (City of Winchester Cir. Ct. Feb. 28, 2007). It is not obvious that a litigant is entitled to a second deposition of any witness, as a matter of right, or that the first deposition of a physician is any less "for trial" than a second one would be.