Tuesday, March 05, 2024

How to prove res judicata

Today I read an opinion from the Court of Appeals in Henderson v. McCain, decided on the issue of res judicata. One of the issues was whether the defendant could meet its burden of proof without any more evidence than a memorandum opinion from the prior case, decided in federal court, and specifically without a copy of the separate final judgment.

Part of the opinion went like this:

"The gravamen of Henderson’s argument is that for a circuit court to find sufficient evidence of a final judgment to sustain a plea in bar on grounds of res judicata, the record before the court must contain a copy of a final judgment order. Henderson proffers no federal or Virginia caselaw to support that proposition ...."

The old rule in Virginia was that "(w)hether the former adjudication is affirmatively or defensively asserted, the record of the prior action must be offered in evidence." Bernau v. Nealon, 219 Va. 1039, 1041 (1979), which I thought was a real nuisance, but sounds to me like support for Henderson's position. I have tried to get around Bernau in various ways, including requests for admission and motions for judicial notice. 

The Court of Appeals did not mention Bernau, so perhaps I am off track.

(w)hether the former adjudication is affirmatively or defensively asserted, the record of the prior action must be offered in evidence

Bernau v. Nealon, 219 Va. 1039, 1041, 254 S.E.2d 82, 84 (1979)

Wednesday, October 04, 2023

On the retirement of Judge Humphreys

I saw in Virginia Lawyers Weekly that the Virginia State Bar is being asked to assess candidates for the vacancy on the Court of Appeals of Virginia that is being created by the retirement of Judge Robert Humphreys.

Years ago, I got to meet Judge Humphreys at the Appalachian School of Law when there was some moot court event and I was a last minute substitute for someone else on the panel of moot court judges. Judge Humphreys is delightful. He made me believe that he loved his job on the court of appeals. In more recent years, I appeared before panels that included him a couple of times and have listened to his voice on the audio recordings of many arguments. I hope the legislature picks someone just like him, if that's possible.

Tuesday, May 23, 2023

On the passing of Judge Crigler

 I see here that former Magistrate Judge Waugh Crigler has passed away.

Judge Crigler was a ball of fire as a teacher, a mediator, and a judge, and it was a great pleasure to have heard him speak and gotten to known him even a little bit. And, he was a Tennessee Vol.

Thursday, March 16, 2023

On the passing of Howard McElroy

In January, my good friend Howard McElroy passed away.

On Facebook, I wrote this:

Howard McElroy was like a profane guardian angel who watched over my career and the rest of my life for over 30 years. I felt his support all that time even though I was way down on the long list of people for whom he did the same thing.
Howard decided from day one that I was a bit of a social misfit and that he would help me. He knew, as our mutual friend John Epps once told him, that "Steve Minor is an acquired taste," and so he ran interference, making connections and introductions. Among other things he was the only person outside of family who was well-liked by both my first wife and my second wife, because he made it his business to get to know them and be kind to them and make them laugh. When Jill would come home and say she had seen Howard at the library that day, it was like a bell ringing in "It's a Wonderful Life." His co-conspirator in this and all things was Heidi.
Howard always greeted me as "Steven!" whether it was in person or more often on the telephone, and usually it was me calling him for help. He was supremely organized and had his collected research in drawers that were close by. When I was describing to him some legal issue I would hear the handles on those drawers rattle when he was putting his hands on the answer to my question before I even finished asking it.
When Howard was retiring, he asked if I would take over a couple of his files. I was thrilled that he trusted me to do this. It felt great. When I started babbling about what to do in the cases, he laughed and said "that's why I want to retire, so I don't have to worry about [those details]," or words to that effect. Of course, he had those cases already won, the other side just didn't know it yet.
Howard - gentleman, storyteller, bon vivant, legal scholar, teacher, role model, and friend - thanks so much, for everything.

When does a finger and thumb gun count as a firearm during a robbery

Today in Com. v. Barney, the majority of the Supreme Court of Virginia upheld the conviction of the defendant for use of a firearm in a bank robbery, when the Commonwealth's evidence showed only that she threatened to kill the bank teller and kept her hand in her pocket. Justice Mann, joined by the Chief Justice and Senior Justice Mims, concluded that the evidence was not enough.

Thursday, September 15, 2022

When are fees incurred

In today's opinion about fees, both the majority and the dissent seemed to be looking the wrong way in wrestling with the argument about when are fees are "incurred" for purposes of Va. Code 8.01-271.1.  The majority relies in part on the fact that "[h]ere, the lawyers were not working for free." The dissent concludes that fees not paid for are not fee incurred.

But many times there are litigants who would not have a lawyer unless the lawyer would take the case for free, or with the expectation of statutory fees.

In one of my cases, the appellant argued that the appellee was not entitled to fees because the appellee was being represented pro bono. The panel of the Court of Appeals cited the Supreme Court's decision in Blanchard v. Bergeron, 489 U.S. 87 (1989), in concluding that "where there are lawyers or organizations that will take a plaintiff's case without compensation, that fact does not bar the award of a reasonable fee."

Similarly, a panel of the Court of Appeals held in Bahta v. Mohammed that legal aid attorneys were entitled to fees under Va. Code 16.1-278.19.

Fee-shifting statutes put the burden of litigation costs on the bad actors who have misused the courts, which is most important when the victim is unable to pay counsel. Sanctions deter litigation misconduct. Today's decision could be a blow against poor women in particular if it means that they cannot recover fees under other statutes such as Va. Code 16.1-278.19 unless they are actually paying their attorneys at market rates.

In almost all fee litigation, the Court determines a reasonable fee, not the actual fee. Fees incurred should be interpreted to mean the reasonable fee for the attorney work that was reasonably necessary for that part of the case, whether the actual fees paid were $0 per hour or $1,000 per hour.

Wednesday, July 28, 2021

On the upcoming retirement of Justice Mims

I learned today from Steve Emmert by way of Paul Fletcher that Justice William Mims has announced his plans to retire from the Supreme Court of Virginia in a few months.

Justice Mims laughed out loud at my foolishness the last time I was before the Court. Years ago, we sat at the same table for a VBA banquet, and I spoke with him a little bit. My favorite story about him is one I read in Lawyers Weekly, in which he supposedly said that he stopped writing lengthy concurring opinions after someone in his family pointed out to him that there has never been an appellate jurist known as 'the Great Concurrer."

Friday, June 25, 2021

The judging tree

Earlier this week I appeared before Judge Fred Rowlett who was sworn in two years ago, joining Circuit Judge Randy Lowe, Juvenile Judge Florence Powell, Bankruptcy Judge Trish Brown, ALJ Linda Howell, Magistrate Judge Cynthia Eddy, Circuit Judge John Kilgore, and Supreme Court Justice Cynthia Kinser, among those who clerked for him and became judges themselves. The last of our law clerk reunions with him was eleven years ago this week, which was the only time Jill got to meet him.