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Enforce the rules: Kelsey takes strict line on procedure

ROANOKE—Lawyers seeking mercy for their procedural mistakes will find no comfort from Virginia Court of Appeals Judge D. Arthur Kelsey. Kelsey brought his crusade for unapologetic strict rule enforcement to a Roanoke bench-bar meeting last month, saying the Virginia bar is starting to come around to his view.

Kelsey welcomes what he sees as a new emphasis on enforcement of procedural rules in litigation, heralded by the recent cases of John Crane and Benitez.

“The tide is lifting and I believe that it’s lifting all boats,” said Kelsey. “It’s time to give this topic some pretty serious attention.”

Kelsey warned of an effort to undermine the harsh penalties for procedural violations exemplified by the decision of the Supreme Court of Virginia in Ford Motor Co. v. Benitez, 273 Va. 242 (2007). The Benitez court approved a $2,000 sanction against a defense attorney who persisted with baseless affirmative defenses.

“There’s a move afoot, which I absolutely object to … to adopt a safe harbor provision to § 8.01-271.1 [Virginia’s sanctions law], much like the federal safe harbor provision works for Rule 11 in the federal system,” Kelsey said.

Under the “safe harbor” provisions of Federal Rule 11, a litigator must give his opponent a chance to correct a Rule 11 violation before he can file a request for sanctions against the opponent.

Federal litigators, said Kelsey, report that the federal safe harbor provision has been problematic. He promised to dissent if a safe harbor proposal emerges from the Boyd-Graves Conference, which annually recommends various changes to Virginia law.

Kelsey sees no need to fix Virginia law in light of Benitez. “Ford v. Benitez does not change anything in the law. What it does do is it shows a certain response to the existing law that many lawyers and many trial judges did not know would exist,” he said.

Kelsey expounded on a multitude of pitfalls for the unwary litigator.

“If one lawyer in the group pays attention enough to avoid stepping on one land mine, then I feel like I’ve contributed something of value,” Kelsey said.

One potential land mine awaits a plaintiff who loses on demurrer. Given another bite at the apple, that plaintiff files an amended complaint. If the amended complaint also fails on demurrer, an appeals court will consider only the amended complaint, not the original complaint.

According to Kelsey, that was the ruling in a 2006 Supreme Court case, Hubbard v. Dresser, 271 Va. 117 (2006) (VLW 006-6-010).

Kelsey urges the plaintiff fighting demurrer to include in that amended complaint the objectionable language from the original complaint as well as the “corrected” language. Otherwise, he may never have a chance to get a ruling on whether his original pleading was sufficient to withstand demurrer. “That is a curious rule, but it is the rule,” said Kelsey.

Kelsey reminded lawyers that, with the merger of law and equity, the new rules call for jury demands to be made early in the pleadings. And with the need for early jury demands, Kelsey says, comes the need to make sure your judge knows that you have demanded a jury. If you arrive at court to find only a judge and no jury, you cannot rely on the fact that you demanded a jury in your initial pleading, now buried deep in the file. Kelsey urges lawyers to check with the court as trial approaches to make sure that someone noticed your jury demand.

Kelsey defended the result in the much-discussed case of John Crane Inc. v. Jones (VLW 007-6-113), where expert witnesses were cut off from testifying about subjects that were not disclosed in answers to interrogatories. Like the trial judge, Kelsey was unmoved by arguments that the experts’ opinions had been thoroughly explored in depositions.

“It’s a subtle principle, but I personally believe it to be a legitimate principle, an important principle. The reason for expert disclosures is not to tell the other side what the expert believes, what the expert’s opinions are, what the expert has done in his life. The reason is to tell the other side what portion of that huge mass of information that the litigant is going to offer, advocate, defend and insist upon at trial.

“I want to know what the jury’s going to be told. Just tell me that straight. And, John Crane says you’ve got to do that.”

Kelsey sees the ruling in John Crane as signaling a cultural change for some circuit court judges, but he notes the opinion does not require the same result in all cases. The Supreme Court ruled only that the trial judge did not abuse his discretion. Kelsey said that appellate courts properly defer to the “battlefield commanders,” as he referred to trial judges.
Kelsey had little to say about a recent Supreme Court of Virginia opinion suggesting that both of Virginia’s appellate courts have been too quick to bring down the hammer on inadequate appellate briefs. The Supreme Court of Virginia, in Jay v. Commonwealth (VLW 008-6-040), declared that dismissal is too harsh a remedy for undeveloped arguments in appeal briefs, sending two criminal cases back the Court of Appeals for reconsideration.

Kelsey commented only that appellate lawyers “need to write briefs that don’t require the judges to make arguments on your behalf.”

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