TWO SHORT APPELLATE NOTES   (Posted March 22, 2024) With no new business in the opinion mill at Ninth and Franklin this week, let’s take a look at a couple of developments this week.   April writ panels The Supreme Court has posted a list of cases on the April 2 writ-panel docket. There are 46 appeals on the list, a healthy uptick from recent panels. (There were 29 cases in February, 28 in December, and 36 in October.) The number of appeals on panel dockets is a fair indicator of appellate business overall at the court, so this jump is nice to see.   A return to the keyboard I w ..read more

REPORT ON TWO IMPORTANT APPELLATE ITEMS   (Posted March 18, 2024) There’s significant appellate news out of Richmond, coming from opposite sides of Ninth Street.   A tweak to the preservation-rescue statute I learned today that the General Assembly has passed, and the Governor has signed, a bill that expands slightly the wording of the appellant’s old friend, Code §8.01-384. For years now, that statute has eliminated the need for a party to keep renewing arguments on each adverse ruling again and again until final judgment. The general premise is that once a judge rules against you ..read more

A TRUNCATED OPINION DAY AT THE SCV   (Posted March 14, 2024) It’s opinion day! Sort of. The Supreme Court of Virginia decides two appeals this morning, both by published order. But there’s no new analysis; both Warren v. Commonwealth and USAA v. Estep are affirmed on the reasoning of the Court of Appeals. Warren is a DUI appeal involving a circuit court’s decision to strike a venireman for cause and its exclusion of evidence relating to a claimed defense of necessity. In a quirk of timing made possible by last month’s Leap Day, the Court of Appeals handed down its published ruling one yea ..read more

ANALYSIS OF FEBRUARY 29, 2024 SUPREME COURT OPINION   (Posted February 29, 2024) The Supreme Court today decides Commonwealth v. Smith, an appeal of convictions for rape and object sexual penetration, where the victim was a child under the age of 13. You’ll readily appreciate that this is a very serious charge; the mandatory sentence for the charges is life in prison. The defendant appealed to the Court of Appeals, which reversed the convictions, holding among other things that the trial court erroneously denied his request for funds to hire an expert. The Commonwealth sought and received ..read more

ANALYSIS OF FEBRUARY 15, 2024 SUPREME COURT OPINION   (Posted February 15, 2024) The Robes by the beautiful banks of the James continue to whittle away at their argument docket. Today the court hands down a single published opinion that resolves the last remaining undecided appeal argued in 2023.   Bailments The focus of McCants v. CD & PB Enterprises, LLC is sacred to me: a Mustang. It isn’t just any Pony; this one is a vintage model, a 1970 Mach 1. As the owner of a late-model Mustang, I salivate at the prospect of one of these, despite the fact that my modern Pony has roughly ..read more

ANALYSIS OF FEBRUARY 1, 2024 SUPREME COURT DECISIONS   (Posted February 2, 2024) Just when you thought we would endure another dry week from the Supreme Court of Virginia, word arrived by e-mail early this morning that the justices had handed down two unpubs yesterday. Harmless-error analysis permeates both decisions. Let’s take a look.   Actual-innocence petitions In a short (3½ pages) order, the justices reverse a decision of the Court of Appeals and direct remand to the circuit court for supplemental factfinding. The case is Richardson v. Commonwealth, an actual-innocence proceedi ..read more

APPELLATE NEWS AND NOTES   (Posted January 18, 2024) Here’s a quick report on some developments in the world of appeals.   A published opinion, sort of The Supreme Court of Virginia hands down one published ruling today. In Fary v. Commonwealth, the justices summarily affirm an en banc decision of the Court of Appeals in a criminal case. Instead of writing a new opinion, the SCV merely affirms for the reasons set out in the CAV’s published opinion. It’s a sufficiency challenge in a prosecution for attempted malicious wounding, brought against the operator of a boat that rammed anothe ..read more

ANOTHER MILESTONE PASSES   (Posted January 15, 2024) Yesterday marked 19 years since I began to publish this website. It’s been an enjoyable ride thus far, made all the more so by the notes of appreciation that I get from time to time. I’m very glad that so many of you find the site useful. Yes, Virginia, there will be a twentieth year. I intend to continue posting case analyses, essays, and updates, complete with the occasional appellate joke. But this will very likely be the final year of this site, as I plan to hang up my legal pad a little over a year from now. Setting a career sunset ..read more

REPORT ON CURRENT APPELLATE EVENTS   (Posted January 10, 2024) The gears of government have resumed turning after the holidays – the 2024 General Assembly session began a few hours ago – and there are just enough notable appellate matters for a quick report to you.   A coming appellate vacancy Bloomberg Law is reporting that Fourth Circuit Judge Jim Wynn of North Carolina has decided to take senior status. His honor will turn 70 in a couple of months, and while he doubtless has plenty still in the tank, this retirement enables President Biden to appoint a younger jurist to the life-t ..read more

THE DELICATE ART OF ANSWERING QUESTIONS   (Posted January 5, 2024) I can’t read minds – my wife will confirm this, as I’m terrible at reading hers – but my best guess is that non-appellate lawyers envision the process of preparing for an appellate oral argument as primarily writing, polishing, and eventually memorizing a speech. Not so among the appellate guild. For us, the speech is second in importance to the inevitable interruptions with a judicial question or three. That’s what we focus on. As I’ve noted here, we’re silently begging to be interrupted when we get to the lectern. Let’s ..read more