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‘Scary’ stuff: Defaults and sanctions on the rise

Lacy: Court isn’t playing ‘gotcha’ with litigants

VIRGINIA BEACH—Senior Virginia Supreme Court Justice Elizabeth B. Lacy insisted that the court is not playing “gotcha” with litigants.

“We want to deal with substantive issues,” she said as a member of a panel at the Virginia State Bar annual meeting earlier this month.

But she acknowledged that the two state appellate courts appear to be refusing to address more and more of those issues because of procedural defaults. She said she didn’t know whether the dismissals are the result of sloppier lawyering or more pickiness by the courts.

One factor has been that appellees “are doing a better job of scouring the record” to emphasize the defaults, Lacy said.

Whatever the reason, she warned, “We can’t just blink and pretend it didn’t happen.” She assured the audience and fellow panelists Fairfax Circuit Judge Jane M. Roush and Salem attorney C. Kailani Memmer that issue preclusion “is not going away.”

The session was entitled “The Bermuda Triangle of New Litigation Pitfalls – Sanctions, Waivers and Pleadings,” which Memmer described as “this slew of scary things” that have come down from the court in the last couple of years.

She noted that the court probably has handed down more opinions dealing with sanctions in the last two years than it published in all its previous history. Many of the cases interpreted Virginia Code § 8.01-271.1, which provides for sanctions when a pleading is not well-grounded in law or fact or is filed for an improper purpose.

Chief among them was Ford Motor Co. v. Benitez (VLW 007-6-001), which startled many litigators by holding that a lawyer could be sanctioned for the same laundry list of affirmative defenses that attorneys typically put in their grounds of defense. Many plaintiffs’ attorneys were quick to realize that the same logic could apply to their pleadings that included every conceivable – and not so conceivable – theory of recovery.

“Then I read the facts,” Memmer said and concluded that “we’re all panicking about something that’s not really that big a deal.” The facts were that the attorney repeated the same list of defenses in response to a revived case that had been nonsuited after discovery was essentially complete.

The opinion said amendment of pleadings is safer than half-baked legal theories and strained facts in the original documents, a suggestion that has led to more late continuances even in Fairfax, which is notorious for being reluctant to grant them, Roush said.

Another unwelcome result of the case has been that “sanctions are requested too often,” she said. “They should be limited to the most egregious cases.”

Instead, she said, lawyers are asking for sanctions simply because they prevailed.

In talking about issue preclusion, Lacy said the record all too often does not show that the objection was clear enough to give the trial judge fair notice of the point being challenged. When it is clear, attorneys sometimes do not follow through by proffering the evidence necessary to show what would have happened if the objection had been sustained.

Lacy said such failings may be part of a trial strategy of not wanting to annoy a judge or a jury but the risks of that strategy should not be compounded by “not understanding what you need to do” to preserve an issue.

Appellate willingness to consider issues waived appears to have gotten the attention of litigators, Roush said. “It’s hard to get through a trial when lawyers feel like they’ve got to object to everything three times.”

‘Because’ clause

In a related issue of appellate practice, Virginia Beach attorney L. Steven Emmert is warning his colleagues of strong hints that the court appears to be looking for a “because” clause in assignments of error.

He noted that the court dismissed earlier this month an appeal for an insufficient assignment of error in a legal malpractice case. The only assignment of error read, “The trial court erred in granting [the appellee’s] motion for summary judgment.”

And in a recent oral argument, Chief Justice Leroy Rountree Hassell Sr. asked an assistant attorney general whether “the trial court erred in excluding the expert testimony of” a specifically named psychologist.

Emmert contends that such assignments of error have been considered sufficient in the past because they specify the exact legal issue being challenged.

He says the assignments clearly would have been sufficient by the addition of just a few words, such as “because issues of material fact remained in dispute” in the malpractice case or “because the testimony was speculative” in the AAG’s case.

Emmert said he did not consider such phrases necessary previously, but he’s putting them in his briefs now.

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