President's Page:
Attacking Lawyer Dissatisfaction
J. Edward Betts

[T]he extent of lawyer dissatisfaction has increased throughout the profession. **** It is now present in significant numbers in firms of all sizes. This increased dissatisfaction is caused directly by a deterioration of the lawyer workplace. In particular, the amount of time lawyers have for themselves and their families has become an issue of major concern for many lawyers. **** [T]he problems also impact lawyers’ hardiness, coping skills, and mental and physical distress levels. Thus, inevitably, they also impact lawyers’ productivity and quality of work, their clients, and — ultimately — their law firms’ economic viability.*

More than a decade after the Airlie House Report, many of these same problems remain. If anything, our present situation may be worse. Although solutions will not be easy, I wanted to share with you how the VBA is beginning to attack these problems through its newly-created Law Practice Management Division.

Having evolved from the former Legal Economics Committee and its successor, the Law Practice Management Section, the creation of the Law Practice Management Division was announced at our Annual Meeting in January. Thus, it is just underway and its work is evolving. It is open to all VBA members without the payment of additional dues.

Unlike the VBA’s substantive sections, which generally attract those members interested in the particular legal practice area involved, the Law Practice Management Division should benefit all VBA members, no matter what their practice areas.

The Division’s mission statement is as follows:

The mission of the Law Practice Management Division of The Virginia Bar Association is to assist attorneys and firms in the management of their practices and in the fulfillment of personal and professional objectives as they provide effective representation to clients as well as positive contributions and leadership to their communities.

Even though all of the parts of this mission statement are related integrally, let me break out four components and discuss how the Division is beginning to fulfill its mission in regard to each.

1. Assisting attorneys and firms in the management of their practices. As to the management of firms large and small, much will be retained from the activities of the former Law Practice Management Section. For example, the Managing Partners’ Roundtable and the Small Firm Practice Luncheon (where practicable firm management ideas are discussed among large and small firms) will continue. Moreover, there will be a continuing emphasis on technology under the auspices of the Division’s Technology Committee.

A new emphasis of the Division is on the individual and personal aspects of law practice management; that is, how you manage your own desk and work. In this connection, the Division is looking at programs on time management, personal marketing skills, and interpersonal relations with clients and others in the law office. A newsletter will begin later this year which will deal with topics of interest in this regard.

Additionally, the Division has begun a program where members will receive a substantial discount for books published by the American Bar Association. Many of these books relate to practice management of individual lawyers, as well as firms.
Finally, other member service committees have been established to aid in firm and individual lawyer practice management.

2. Assisting attorneys and firms in the fulfillment of personal and professional objectives. This goal is directed to the source of many lawyers’ dissatisfaction with the practice of law. The Division’s initial program last January, co-sponsored with the Young Lawyers Division, was entitled “21st-Century Professionalism: A Balanced Life Versus the Bottom Line.” It was presented to an overflowing and enthusiastic audience. One of the Division’s member services committees is “Lifestyle Balance.” Moreover, the professionalism/ethics programs the VBA has provided in the past (often through the indomitable Tom Spahn) will be continued under the auspices of the Division’s General Professionalism Committee.

3. Providing effective representation to clients. To assure this core function of any lawyer is emphasized, a Professional Skills Development Committee has been established. An extensive program on Professional Skills Development is being planned for the January 2003 meeting in Williamsburg. The ABA book program mentioned earlier will allow substantial discounts to members in substantive law areas as well as those involving practice management. This is just the beginning of efforts to help us provide effective representation to clients.

4. Providing positive contributions and leadership to lawyers’ communities. Lawyers who are properly managing their own and their firm’s practices, who are fulfilled in their personal and professional objectives, and who are providing effective representation to their clients, should be willing to “give back” by making positive contributions and providing leadership to their respective communities. Furthermore, the VBA is in the process of establishing a Community Service Council which will interact with the Division to assure that meaningful community service and leadership opportunities are available to all VBA members.

Thus, the mechanism is now in place to allow the VBA to attack the longstanding problem of lawyer dissatisfaction. As I look forward from our present incipient position, the potential appears limitless. Under the chairmanship of the very able Heman Marshall of Roanoke, with the added talents of a terrific initial Board of Governors, the Law Practice Management Division can really help us be better, more contented and productive lawyers. However, we are just starting and it will take a lot of work from a lot of VBA members to make our efforts successful.

What the VBA is attempting to do is critically important and is responsive to the concluding words of the Airlie House Report: “The profession must address these problems to prevent them from becoming even more serious in the future. We owe that effort to our colleagues, our clients and ourselves.”

Please help us make this work.

*At the Breaking Point, A National Conference on the Emerging Crisis in the Quality of Lawyers’ Health and Lives — Its Impact on Law Firms and Client Services, 1991, Airlie House, Airlie, Virginia, at p. 28 (“The Airlie House Report”).

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Legal Focus/Civil Litigation:
Appealable Issues in Virginia: ‘Preserving Error’ and Determining ‘Finality’
Prof. Kent Sinclair, © 2002

In a series of decisions over the past several months, accompanied by legislative action in the 2002 session of the General Assembly, many of the most fundamental aspects of the preserving a client’s arguments at trial, and determining when appeal is feasible in Virginia practice, have been spelled out dramatically. These issues have devastating real-world effects at the trial court level and in appellate practice: appeals are timely or barred, courts either possess or lack jurisdiction to act, claims and issues are either preserved or lost forever – and malpractice is committed or avoided – based upon the application of the principles explained in the recent case law. The interplay of Virginia’s “nonsuit” procedure1 and the “21-day rule” for modification or suspension of judgments2 has also led to several interesting and informative outcomes. A synthesis of these developments in the Commonwealth’s finality and appealability doctrines is therefore both timely and important.

Last year there were some 77,500 trials in the Virginia circuit courts: 19,500 civil trials (1,145 jury trials and 18,415 bench cases) and over 58,000 criminal trials (2,555 jury trials and 55,709 bench trials). Luckily – for the health of the appellate court system in the Commonwealth – while all 77,500 of these cases were contested at the trial level, only a small fraction of the dispositions were later appealed.3 In the most recent statistical reporting year there were a total of 3,500 filings in the Court of Appeals and just under 3,000 in the Supreme Court.4 The goal of good lawyers is always to know what is appealable, when a matter may be appealed, and how to preserve and present the arguments. Armed with this knowledge, counsel and the client can make informed decisions about what issues are available for appeal, how to preserve them, and when to file a notice of appeal. There have been developments in recent months affecting each phase of the process of seeking review.

This article organizes the discussion of the issues in three broad areas:

•Issues in Preserving Arguments at the Trial Level – Part I;
•Finality of Trial Court Dispositions (Nonsuits and the 21-Day Rule) – Part II; and
•Interlocutory Appeal – Part III.

Preserving Arguments and Objections at the Trial Level
Overview of Rule 5:25. In the last decade perhaps the most frequently cited Rule in decisions of the Supreme Court of Virginia has been Rule 5:25, which requires contemporaneous objection at the trial level in order to preserve the opportunity to raise any particular event as possible error in a later appeal. The requirement of timely objection, which every legal system enforces, serves several important functions. As the Supreme Court recently summarized it, the purpose of Rule 5:25 is to ensure that the trial court has an opportunity to rule intelligently on a party’s objections and avoid unnecessary mistrials or reversals.5 “Generally, to satisfy the requirements of the rule, an objection must be made contemporaneously with the introduction of the objectionable evidence or at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.”6

Swimming Upstream. Recent case law has also made it clear that even when the existing law is against counsel’s position, it is necessary to make a record at the trial level by preserving an objection (or making a proffer, if evidence is being excluded) as a prelude to asking the appellate court to revisit the continuing wisdom of the existing precedent. In one recent case, for example, an appellant argued that he was excused from offering an instruction because — at the time of his trial — case law precluded the argument, and only after the trial did new authority change the applicable legal regime. The Supreme Court held that the conclusion mandated by Rule 5:25 in the context of instructions was not altered by that factual context. “The perceived futility of an objection does not excuse a defendant’s procedural default at trial.7 Therefore, despite the prevailing law to the contrary, to preserve the point for appellate review counsel was required to state any objection to the circuit court’s instruction and to ask the court for any other instruction on the subject that was deemed necessary.

Indeed, even where the defect counsel wishes to pursue is so serious that a proceeding is “voidable” upon timely objection, failure to lodge that objection will bar reversal on appeal.8

Recent Example. The complexities of an ongoing trial often make these simple principles more difficult to apply than the abstract statement of the policy and requirements of the Rule imply. In one recent decision which turned in part on the sufficiency of a contemporaneous objection, testimony by medical personnel in a wrongful death case that arguably violated Code §8.01-397 (the “Deadman’s Statute”) was received initially without objection, but the plaintiff moved – prior to the trial court’s instructing of the jury – to strike those portions of the testimony based on that statute9 based on the lack of corroboration. The trial judge allowed the jury to consider the evidence and whether or not it was corroborated, and returned a verdict for the medical defendants.

In reviewing this case, the Supreme Court noted that sufficiency of corroborative evidence under Code §8.01-397 is usually a question for the jury.10 The Court noted that the governing issue for the trial court is “whether, given the entire trial testimony, there is more than a scintilla of corroborative evidence upon which the jury may determine sufficiency.” Because of the nature of that standard, this question “may be unanswerable until the close of evidence because only at that point can all evidence be surveyed to determine if sufficient corroboration exists.”11 In this case, the plaintiff personal representative argued that the jury should not be allowed to consider the testimony at issue because it was uncorroborated as a matter of law. The Supreme Court concluded that the record of the trial proceedings demonstrated that the trial court was aware of the representative’s objection “before the matter was submitted to the jury and, had it agreed with [him], the trial court could have provided the appropriate instruction to the jury regarding the testimony in issue.” Therefore, the personal representative did not waive these assignments of error by failing to preserve the issue in the trial court pursuant to Rule 5:25.12

The “Ends of Justice” Exception. Rule 5:25 contains an “ends of justice” exception allowing the Supreme Court to consider an issue not timely challenged in the trial court, but this safety-valve is rarely applicable. In one recent decision it was made clear that any party on appeal who wishes to argue that the “ends of justice” exception warrant the appellate court in reaching an issue that was not timely objected to in the trial court must – at a minimum – provide the reviewing court with enough of the record to show the extraordinary facts that establish the interests of justice favoring recognition of the “new” argument on appeal. In the recent case, the issue an appellant wished to argue related to findings of voluntariness in the trial court concerning the waiver of jury trial rights.13 It was noted that, of course, if a defendant wishes to challenge the voluntary and intelligent nature of his jury trial waiver, “he must state a timely objection on that basis in the circuit court.” Where an appellant did not question the voluntary nature of that waiver until four months after he was tried and convicted of the present offenses, “he has not preserved that issue for appeal.”14

The Court rejected the inmate’s request that it nevertheless examine the issue under the exception permitted by Rule 5:25 “to enable this Court to attain the ends of justice.” Among other deficiencies found in the record presented, it was noted that the inmate “failed to include on appeal to the Court of Appeals a transcript of the . . . proceeding in which the circuit court accepted his jury trial waiver.” Without the context and background that such a record would provide, the appellant failed “to present a sufficient record to permit a determination whether the circuit court committed an alleged error.”15

Rule 5:25 and Jury Instructions. In another recent case, the Court reiterated the application of the contemporaneous argument requirement in the context of jury instructions. The bedrock rule has been clearly stated: a circuit court ordinarily does not have an affirmative duty to give a jury instruction on a particular legal principle when a criminal defendant fails to request that the jury be instructed on that principle. This principle applies in civil and criminal cases16 discussing Cherrix v. Commonwealth, 257 Va. 292, 310-11, 513 S.E.2d 642, 654, cert. denied, 528 U.S. 873 (1999). Thus, generally a party’s failure to state a timely objection to the court’s instruction or to offer an alternate instruction “precludes us from addressing the merits of [that] assignment of error.”17 Thus the court has “repeatedly . . . refused to consider challenges to jury instructions raised for the first time on appeal.”18

Preserving the Record and Making “Fallback” Arguments. A final recent case construing Rule 5:25, which split the Supreme Court 4 to 3, demonstrates that the ventilation of “fallback” arguments, and taking of evidence in support of theories of the case other than a party’s principal contention can be sufficient to preserve options for appellate argument.

In a widow’s action to compel her husband’s former company to provide her with certain health care coverages, based on a prior written agreement, at the trial court level the widow first argued that the language of the agreement was unambiguous; however, she further asserted that “if the trial court found the agreement to be ambiguous, then she should be permitted to introduce parol evidence to clarify the intent of the parties.”19 The trial court considered the issue of ambiguity, twice ruled that the language of the agreement was ambiguous, and permitted the introduction of parol evidence at trial before reversing its prior rulings and finding the language of the contract was unambiguous. On appeal, the widow took the position that the language of the agreement was ambiguous and that the unrefuted parol evidence introduced at trial supported her interpretation of its terms.

Three Justices of the Supreme Court would have found that the widow’s appellate argument was barred because it was not advanced in the trial court as required under Rule 5:25 because her request to offer parol evidence was a fallback position that did not present the argument that the agreement was ambiguous “with reasonable certainty” at the time of the trial court’s ruling.20

A majority of the Court, however, emphasized that the purpose of Rule 5:25 is “to protect the trial court from appeals based upon undisclosed grounds, to prevent the setting of traps on appeal, to enable the trial judge to rule intelligently, and to avoid unnecessary reversals and mistrials,”21 and concluded that those concerns were absent. The Court noted that – having ruled on the issue three times — the trial court clearly had the opportunity “to rule intelligently” on the issue. Thus the case did not present an appeal on “undisclosed grounds” and that, therefore, Rule 5:25 did not bar the widow from asserting on appeal that the language in the agreement was ambiguous and that the trial court should have considered the parol evidence presented below. The Court proceeded to find the agreement ambiguous, and to consider the parol evidence contained in the record in deciding the matter.

Avoiding Other Mistakes that Give Up Arguments at the Trial Level
Effect of Tendering Instructions Along with Objections. In a personal injury case where plaintiff sustained injuries when she fell after stepping into a hole in a “grassy area” located near the curb of a public street, an area owned and controlled by the defendant city, the Supreme Court held that the city failed to preserve for appeal the issue whether it had intended the fall area to serve as a public way for pedestrians.22 That issue was not mentioned when a motion to strike made at the conclusion of the plaintiff’s evidence. Then, at the end of its own case, the city asked that the evidence be struck for failure to prove that the city had notice of the defect, and the city’s counsel made the ambiguous statement, “And we don’t agree that this area-in this area, there was the kind of duty to-” The Supreme Court held that this statement, however, “did not inform the trial court that the City considered the evidence insufficient as a matter of law to show that the grassy area was intended by the City to serve as a public way for pedestrians.”23 Thus one ground for precluding the argument on appeal was the absence of an express statement of the contention at the time. A second basis on which the Supreme Court concluded that the issue was barred from appellate review was the fact that the defendant city agreed to a tendered instruction stating that the jury was required to return its verdict for the plaintiff if she proved, among other things, “that the place of such defective condition was intended by the City as a public way for the use of pedestrians.” Therefore, under the law of the case, this issue was properly before the jury for its determination.24

Another very recent decision, however, demonstrates that if a party sufficiently states an objection at the time a trial judge considers a legal point, subsequent submission of a jury instruction in accord with the trial judge’s ruling on the principle involved will not work a waiver of the clearly marked objection the party has advanced.

In a colorful factual context, the plaintiff physician brought a defamation case, and related privacy claims under Code §8.01-40, against a television station and its personnel, and won a substantial verdict.25 On appeal the station argued that the right of action under this Code section is not applicable to promotional announcements for news reports on matters of “public concern.” The plaintiff argued that the station had waived this issue by submitting an instruction which stated that this “newsworthiness exception” would not apply to a use which was “willful, wanton, and reckless.” The Court rejected this waiver argument, noting that the television defendants had made a motion to strike the statutory count, made both at the close of plaintiff’s case-in-chief and again at the close of all the evidence, premised in part on the contention that there should be a “newsworthiness exception” to Code §8.01-40. The plaintiff had responded by arguing that such an exception would not apply in this case because the “promotional and so-called ‘news’ broadcasts were infected with substantial and material falsification.” The trial court apparently denied the motion to strike on that ground. Thereafter, both parties proffered instructions on the application of Code §8.01-40.

Plaintiff’s proposed instruction did not address the “newsworthiness exception” and his proposed limitation, but merely stated the elements of misappropriation as defined by the statute. The media defendants objected to this instruction, and, while continuing to contest the applicability of Code §8.01-40 to the facts of the case, proffered an alternative instruction consistent with the position plaintiff had asserted in arguing against the motion to strike.26

The Supreme Court noted that “[n]ormally, when a party proffers or agrees to an instruction which is contrary to a position previously argued during trial, the agreed instruction becomes the law of the case, and the party is deemed to have waived its previous objection.27 However, “when the record is clear that the party is not waiving its objection to the prior ruling, but merely proffering or agreeing to an instruction consistent with the trial court’s prior ruling, the previous objection will not be waived.”28 In the case on appeal, the plaintiff’s proffered instruction, to which the media defendants, did not comport with his prior argument or the ruling of the trial court. By contrast, the defendant’s instruction merely stated the law that the trial court had adopted in overruling their motion to strike. Moreover, it was clear from the post-verdict record that the defendants continued to assert in a motion to set aside the jury’s verdict that Code §8.01-40 was not applicable on the facts of this case. Accordingly, it was held that these defendants did not waive objection to the trial court’s ruling denying the motion to strike by submitting the instruction in accord with the trial court’s ruling. Indeed, the appellate record established that the defendants were was not “inviting error” by proffering the instruction, but “ merely seeking to have the trial court’s position on the law, to which [they] had previously objected, clearly stated to the jury.”29

Finality of Trial Court Dispositions (Nonsuits and the 21-Day Rule)
No feature of litigation in Virginia has more visible impact on issues of finality than the nonsuit mechanism. One common battleground over the last two decades concerns how late in the proceedings a plaintiff may take a nonsuit (often characterized as the issue whether the case has been fully submitted to the court for decision). The appealability of nonsuit determinations is another source of several reported cases, and recent developments also shed light on the interplay of the nonsuit statute with Virginia’s 21-day rule for modification or suspension of trial court judgments.

Cases Fully Submitted. A recent case summarizes a very common issue in determining whether proceedings have reached a stage of finality such as to preclude the taking of a voluntary nonsuit. In a personal injury suit, defendant filed a discovery motion against the plaintiff for failure to respond to interrogatories in timely fashion. The trial court granted the motion to compel, set response dates, and ordered that if complete and accurate responses were not lodged by a date certain, the action would be dismissed with prejudice. When the date for responses passed, defendant prepared a draft order for dismissal of the case and presented the order to plaintiff for endorsement. Plaintiff moved for a nonsuit. A hearing was then held on the proposed dismissal order and the nonsuit application. The trial court found that the motion for nonsuit was not too late, and granted the application.30

Code §8.01-380(A) provides that a plaintiff may not take a nonsuit as to any cause of action or claim, or any other party to the proceedings, unless he does so before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for decision. The Supreme Court has held that a matter that has been decided most assuredly has been “submitted to the court” under the terms of the statute.31 However, the Court recently observed that when further submissions from the parties are contemplated, a matter has not been finally yielded for decision or finally determined.32 In the context of the discovery dispute in the recent case, the trial court ordered the plaintiff to respond to discovery requests propounded by defendant and provided an escalating series of sanctions for failure to do so. The trial court’s order provided, in part, that, “if the plaintiff fails to respond completely and accurately to the defendant’s discovery requests by October 2, 2000, the plaintiff shall pay to the defendant the sum of $250.00 which payment this Court finds to be an appropriate sanction in accordance with Rule 4:12 and other applicable Virginia law.” On appeal, the Supreme Court said: “Clearly, a failure to respond at all would be sanctionable, as would a response that was not complete and accurate. The order, by its very terms, contemplated that further consideration by the trial court regarding compliance may be necessary before the sanction could be imposed.”33

The Court found that the trial judge’s discovery order contemplated a “second level of sanction” by directing that, “if the plaintiff fails to respond completely and accurately to the defendant’s discovery requests by November 2, 2000, the plaintiff’s action shall be dismissed with prejudice, which dismissal this Court finds to be an appropriate sanction in accordance with Rule 4:12 and other applicable Virginia law.” The Supreme Court concluded that, as with the first level of sanctions, the provision for dismissal also contemplated further consideration by the trial court to potentially evaluate the completeness and accuracy of the plaintiff’s responses prior to imposition of a dismissal order as a sanction. Additionally, the last provision in the trial court’s order stated, “[a]nd this action is continued.”34 Thus the express language of the discovery order and the subsequent conduct of counsel and the trial court confirm that further consideration by the trial court was contemplated by the discovery order. On this record, it was clear that the issue of dismissal had not been decided by the discovery order.

Nonetheless, the Supreme Court found that the question whether the issue “submitted to the court for decision” remained for consideration. It noted that “when construing the nonsuit statute, . . . for an action to be ‘submitted to the court,’ it is ‘necessary for the parties, by counsel, to have both yielded the issues to the court for consideration and decision’.”35 In an earlier case, there was no submission of the issue when the trial court permitted the litigants to file additional memoranda in support of their positions on a motion for summary judgment, and the plaintiff took a nonsuit prior to the date upon which such memoranda were due.36 Similarly, in the recent case, the express terms of the discovery order and the conduct of the parties revealed that additional consideration by the trial court was anticipated before the matter of dismissal would be decided. Thus the issue of dismissal was not decided by the discovery order and was not submitted to the trial court within the meaning of Code §8.01-380(A).37

Demurrer Ruling Distinguished. The Court distinguished the more self-executing situation reviewed in another prior decision, where the trial court had ordered that a demurrer be sustained and further that “plaintiff’s action against [the defendants] shall STAND DISMISSED unless on or before [a subsequent date certain], the plaintiff shall file an Amended Motion for Judgment which is sufficient in law.” The plaintiff did not act within the time specified, and on a date more than 21 days after the time specified in the order, the trial court granted plaintiff’s motion for a nonsuit.38 There the entry of a nonsuit was reversed: “[A]n order that sustains a demurrer and dismisses the case if the plaintiff fails to amend his motion for judgment within a specified time becomes a final order upon the plaintiff’s failure to file an amended motion within the specified time.”39 Explaining the difference between that former case and the more recent one, the Supreme Court stated: “An order sustaining a demurrer and dismissing a case is a final order, whereas the discovery order in this case was not.”40

In making a distinction important to the themes of this article, the Court stated that “[b]ecause the discovery order was not final, it was not subject to the limitations upon modification contained in Rule 1:1. . . Because the discovery order was not subject to the limitations of Rule 1:1, the trial court had the power to reconsider its provisions. Clearly, the trial court did so when it entered the nonsuit order rather than the dismissal order.”41 Thus the trial court did not err in doing so.

Post-Nonsuit Modifications. In an important contrast to the preceding decision, the Court recently held that because a trial court entered nonsuit orders and did not vacate or suspend those orders during the 21-day period thereafter, the court lost jurisdiction to take further action on pending sanction motions or to enter dismissal of the cases with prejudice.42

In two litigations on behalf of minor children charging emotional and physical injury by their father, defendant sought sanctions when the children were not produced by their mother and next friend for scheduled independent medical examinations. Acting pro se after withdrawal of counsel, the mother moved for nonsuits, which the court granted, dismissing the cases without prejudice. The sanction motions came on for hearing six days later, and the mother was not present. The trial judge asked counsel for the defendant “[w]here [he] want[ed] to go [that day].” Noting that “we are within the 21-day period from [the court’s] entry of the [nonsuit orders],” counsel replied that he “would ask [the court to] enter an order requiring [plaintiff] to show cause why she’s not in contempt of [the court’s] two orders [requiring independent examination of the infants].” Later on in the discussion, defense counsel asked the court to “set [the nonsuit orders] aside pending a hearing on the matter.” At one point, the trial judge stated that he would “set aside the order[s] of nonsuit and continue to hold that in abeyance until all the matters are heard.” Immediately, however, defense counsel stated that if, within the 21-day period following entry of the nonsuit orders, he obtained an order requiring plaintiff to show cause why she should not be held in contempt, the court would not “really need to set aside the nonsuit”; counsel “won’t really care about that.” The trial judge instructed counsel to “get [him] the order right away.” Two days later the court entered two orders to show cause why the mother should not be held in contempt; these orders did not make any reference to the nonsuit orders, and merely recited that the action continued on the docket.43 Several weeks later the court held a hearing on the sanction applications at which the mother appeared with counsel. A month thereafter the court entered an order finding the mother in contempt, and three months later the court sentenced her to 30 days in jail and imposed a fine of $1,000. The jail term was suspended on condition that the mother pay $20,000 in attorney’s fees of the defendant’s counsel. The two litigations were dismissed with prejudice. The mother appealed.

On appeal the plaintiff argued that the trial court had no jurisdiction to consider her alleged violations of the discovery rules after the expiration of the 21-day period following entry of the orders of nonsuit. The issue required the Court to consider the interplay of the nonsuit statute, Code §8.01-380, and Rule 1:1.

Several prior cases have held that a nonsuit order is not a “final judgment” for appeal purposes unless a dispute exists whether the trial court properly granted the motion for nonsuit.44 In the recent case, however, no dispute existed as to whether the trial court properly granted the motions for nonsuit, and hence it was clear that those nonsuit orders would not qualify as final judgments for appeal purposes. However, the Court observed, “it does not necessarily follow that the nonsuit orders are also disqualified as final judgments for purposes of Rule 1:1.”45

Generally speaking, a final order for purposes of Rule 1:1 “is one which disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.”46

The Supreme Court concluded that “from its very nature, an order granting a nonsuit should be subject to the provisions of Rule 1:1, with or without the existence of a dispute over the propriety of granting the nonsuit.”47 Several considerations led to this conclusion. First, a plaintiff has an absolute right under Code §8.01-380 to one nonsuit,48 and “if he insists upon taking the nonsuit within the limitations imposed by the statute, neither the trial court nor opposing counsel can prevent him from doing so.”49 It has also been held that when a court enters a nonsuit order, the case becomes “concluded as to all claims and parties,” and “nothing remain[s] to be done.”50 Hence “the concept of nonsuit is sufficiently imbued with the attributes of finality to satisfy the requirements of Rule 1:1.”51 The Court said: “Absent some badge of finality, a nonsuit order would be left hanging in the balance, with unintended results.”52

The Court also observed that since the nonsuit statute contains a number of limitations on a party’s absolute right to take a voluntary nonsuit, if a nonsuit is allowed in violation of those limitations, appellate review must be available to correct the error.53 It was held that the same considerations apply to Rule 1:1. If such a violation occurs, a trial court should have the opportunity provided by Rule 1:1 to correct the error.

On the facts of the recent case, each of the trial court’s orders entered within the 21-day period following entry of the nonsuit orders merely required the plaintiff to appear on a later date to show cause why she should not be held in contempt and then provided that the matter was continued on the trial court’s docket. The Supreme Court held that these orders were “completely ineffective to vacate or suspend the nonsuit orders within the intendment of Rule 1:1.”54

The oft-quoted summary of governing principles states that “[t]he running of time under [Rule 1:1] may be interrupted only by the entry, within the 21-day period after final judgment, of an order suspending or vacating the final order.”55

The Court also stated that it had found no reported decision directly on point involving the question whether a trial court retains post-nonsuit jurisdiction to consider pending motions and enforcement of its prior orders. However, there are in the Virginia case law “ several decisions involving the interplay between the 21-day rule and orders imposing sanctions that we consider highly persuasive, if not well-nigh conclusive.”56

First, the fact that motions for sanctions were pending on the 21st day following entry of the nonsuit orders provided no basis for continuing jurisdiction. “Neither the filing of post-trial or post-judgment motions, nor the court’s taking such motions under consideration, nor the pendency of such motions on the 21st day after final judgment, is sufficient to toll or extend the running of the 21-day period prescribed by Rule 1:1.”57 Nor was the argument that the trial court retained jurisdiction to enforce its prior orders viable.58

The Supreme Court also rejected an argument based on the power to impose penalties for contempt. Thus, while prior case law arguably recognizes the inherent power of a court to punish a party in a contempt proceeding for a willful refusal to obey a lawful decree despite the fact that the decree had become final,59 such authority arising ancillary to a divorce decree is inapposite to the present context because once the nonsuit orders became final upon expiration of the 21-day period, there was nothing to which a rule to show cause could be ancillary or of which it could be supportive. At that point, no outstanding obligation existed, the motions for judgment brought on behalf of the infants had been dismissed, the orders for independent medical examination had been superseded, the cases had been “concluded as to all claims and parties,” and “nothing remained to be done.”60

Thus, “once the 21-day period expired in this case without the entry of orders vacating or suspending the nonsuit orders, each action of the trial court taken thereafter was a nullity.”61 Because the trial court lost jurisdiction to take the actions that followed the expiration of the 21-day period after entry of the nonsuit orders, the later judgment was reversed, and the nonsuit orders were reinstated.

Final Judgment. The core issue, therefore, becomes whether a final judgment has been entered, and whether any order is entered within the 21-day period afforded by Rule 1:1 to interdict its finality.

In an important ruling, the Supreme Court recently went to great lengths to explain the operation of the rule and to evaluate judicial attempts to comply with its terms. In the case presented for appeal, the trial court which had entered a final judgment lost jurisdiction over a case once the 21-day period allowed under Rule 1:1 expired because no order that clearly and expressly modified, vacated, or suspended the final judgment was entered within that 21-day period. Appeal from a later order was improvidently granted and must be dismissed.62 In that litigation, plaintiff filed a motion for judgment against a supermarket chain store and two employees, alleging that she was falsely accused of shoplifting. At trial a jury awarded her compensatory and punitive damages. Defendants moved to set aside the jury’s verdict as contrary to the law and the evidence, and requested remittitur or a new trial if the verdict was not set aside. The trial court entered an “Opinion and Order” which denied remittitur and entered judgment consistent with that returned by the jury. Defendants promptly filed a motion for reconsideration. Twenty days after entry of the “Opinion and Order,” the trial court issued a further order stating that it would “retain jurisdiction over this action until such time” as it could consider and rule upon the defendants’ motion for reconsideration. Several weeks later the trial court advised counsel by letter that it would deny the motion for reconsideration and, about five months thereafter, the trial court entered an order, styled as a “Final Order,” overruling the motion for reconsideration and entering judgment for plaintiff. Within 30 days after that “Final Order” defendants filed a notice of appeal. Plaintiff moved to dismiss the appeal as not timely filed in accord with Rule 5:9.63

The Court started its analysis with a red flag for the bar: “This appeal involves our consideration of the requirements of Rule 1:1 to extend the time within which a final judgment remains under the control of the trial court. In addressing those requirements, we take the opportunity to resolve any difference in interpretation that may exist among the trial bench and bar regarding what is required under this rule to forestall the finality of a judgment entered by a trial court.”64

Rule 5:9 provides that “[n]o appeal shall be allowed unless, within 30 days after the entry of final judgment ... counsel for the appellant files with the clerk of the trial court a notice of appeal.” The Court observed that—to determine the timeliness of a notice of appeal from a final judgment —“obviously it is first necessary to determine the date of the action of the trial court that constitutes the final judgment.” Following established law, in general terms, a final judgment is one which disposes of the entire action and leaves nothing to be done except the ministerial superintendence of execution of the judgment.65 However, under Rule 1:1, “final judgments... remain under the control of the trial court and subject to be modified, vacated, or suspended for 21 days after the date of entry, and no longer.”

It is equally clear that the running of the 21-day time period prescribed by Rule 1:1 may be interrupted only by the entry, within the 21-day time period, of an order modifying, vacating, or suspending the final judgment order.66 Neither the filing of post-trial or post-judgment motions, nor the trial court’s taking such motions under consideration, nor the pendency of such motions on the 21st day after final judgment, is sufficient to toll or extend the running of the 21st-day time period of Rule 1:1.67

In its recent synthesis of these principles, the Supreme Court observed that “Rule 1:1 facially contemplates the existence of a final judgment that a court subsequently seeks to modify, vacate, or suspend. The rule is not applicable prior to the entry of a final judgment, and the 21-day time period contained in the rule does not delay the finality of a judgment. Thus, when a trial court enters an order, or decree, in which a judgment is rendered for a party, unless that order expressly provides that the court retains jurisdiction to reconsider the judgment or to address other matters still pending in the action before it, the order renders a final judgment and the 21-day time period prescribed by Rule 1:1 begins to run.”68

A crucial distinction is to be drawn between an order that renders judgment and retains jurisdiction and an order that renders judgment but does not retain jurisdiction for purposes of when the 21-day time period under Rule 1:1 commences to run. The Court explained that this distinction is demonstrated in Concerned Taxpayers v. County of Brunswick,69 In that case, the trial court entered an order on January 3 dismissing a bill of complaint. However, that order expressly stated that the trial court “would reconsider the Concerned Taxpayers’ request to file an amended bill of complaint” and also “granted [certain respondents] leave to file ‘additional submissions and a Notice of Hearing upon their Motion for Sanctions within 21 days after entry of this Order.’”70

On February 10 the trial court entered an order denying the motion for leave to file an amended bill of complaint. That order further stated that the trial court “would ‘retain jurisdiction’ over the... request for sanctions.” On March 31 “the trial court entered its last order in the case, in which it granted... the motion for sanctions and entered judgment against Concerned Taxpayers ... for legal expenses incurred in defending the claim.”71

On appeal, Concerned Taxpayers challenged the award of sanctions on the ground that the respondents had failed to give notice of a hearing on their motion for sanctions within 21 days of the January 3 order. Concerned Taxpayers contended that when the respondents failed to fully comply with the January 3 order, that order became a final order, and the trial court’s jurisdiction expired on January 24. However, the Supreme Court held in that case that “the trial court expressly reserved jurisdiction... in the two orders that preceded the final order entered March 31.”72 In other words, the Court explained, the orders entered January 3 and February 10 were not final orders and, thus, were not subject to the 21-day time period of Rule 1:1. “ By using the term “retain jurisdiction” in the February 10... order, the trial court was not attempting to interrupt the 21-day time period of Rule 1:1. Rather, it was expressly indicating that the order was not rendering a final judgment.” Thus the “final judgment” in Concerned Taxpayers was rendered by the March 31 order, and the 21-day time period of Rule 1:1, and concurrently the 30-day time period of Rule 5:9, commenced only upon the entry of that order.

In the recent case, by contrast, the original “Opinion and Order” clearly rendered a final judgment at the time of its entry, and the Court noted that the record establishes that the trial court and the parties treated it as doing so. Accordingly, upon entry of that order, the trial court’s jurisdiction over the case extended only to the twenty-first day after the entry of the order, unless a subsequent order modified, vacated, or suspended the judgment on or before that date.73 An earlier case held that a letter from counsel requesting that the trial court vacate a final judgment was insufficient to toll the running of the 21-day time period of Rule 1:1 because “[a]n order of the court was necessary” to achieve that end.74

In the recent decision the Court rejected the argument that the trial judge’s second order demonstrated an intent to retain jurisdiction over the cause. “To interrupt the running of the 21-day time period of Rule 1:1, it is not sufficient that the trial court enter an order acknowledging the filing of a post-trial or post-judgment motion within 21 days following the entry of a final judgment. Rather, the rule requires that the trial court enter an order that expressly modifies, vacates, or suspends the judgment. In the absence of such an express order, the 21-day time period is not interrupted, and the case will no longer be under the control of the trial court when the original 21-day time period has run.”75

The second order in the recent litigation stated that the trial court would “retain jurisdiction over this action ... [to] consider and rule on” grocery store’s motion for reconsideration. The Supreme Court concluded that—unlike the context in which the phrase “retain jurisdiction” was used by the trial court in Concerned Taxpayers —it was evident that the trial court in the recent case “was not forestalling the commencement of the 21-day time period of Rule 1:1 but, rather, it was attempting to interrupt the 21-day time period of Rule 1:1 that had begun with the entry of the “Opinion and Order” in which final judgment had been entered.”76 The later order clearly did not vacate, modify, or suspend that judgment. The sole purpose of the later order was to permit the trial court to take under advisement the motion for reconsideration filed after the entry of the final judgment. “Such an action by the trial court does not toll or extend the running of the 21-day time period of Rule 1:1.”77

Thus the Court held that the language of the later order purporting to extend the period of the trial court’s jurisdiction beyond the post-judgment 21-day time period of Rule 1:1 was ineffective because that order did not modify, vacate, or suspend the final judgment rendered by the original order. As a result, the trial court’s subsequent actions were void for lack of jurisdiction, and the time for filing a notice of appeal under Rule 5:9 was 30 days from the date of the entry of the original order. The store’s notices of appeal were filed well beyond that time frame and, thus, the appellate court lacked jurisdiction to consider any appeal from the judgment rendered in the original order.78

The Court concluded the recent opinion as it started, with a message directly to the practicing bar:

Having resolved this particular appeal, we take this opportunity to emphasize that the provisions of Rule 1:1 are mandatory in order to assure the certainty and stability that the finality of judgments brings. Once a final judgment has been entered and the 21-day time period of Rule 1:1 has expired, the trial court is thereafter without jurisdiction in the case. Thus, only an order within the 21-day time period that clearly and expressly modifies, vacates, or suspends the final judgment will interrupt or extend the running of that time period so as to permit the trial court to retain jurisdiction in the case.79 Finally, we also stress that a judgment which has been properly vacated or suspended under Rule 1:1 does not become a final judgment thereafter without a subsequent order confirming it as originally entered or as modified.

The Court therefore held that the appeal from the later actions of the trial judge was improvidently granted. The order permitting the appeal was vacated and the appeal dismissed.

Appeal of “Interlocutory” Orders
A final issue in thinking about the appealability of rulings in Virginia circuit courts is the possibility of an interlocutory appeal—appeal of a ruling which does not end the case. While the basic rule barring piecemeal appeals is clear, Virginia now has both common law and statutory exceptions, and interesting issues arise with respect to the timing of interlocutory appeals.

Generally: The Common Law Final Judgment Rule. In the vast majority of cases, only one appeal is permitted – after a final judgment disposing of all of the claims for relief in the litigation. The Virginia tradition is to enforce the “final judgment rule” in the vast majority of circumstances. This tradition flows in part from the doctrine that there is no appellate jurisdiction in Virginia except that provided by statute.80 The applicable Virginia Constitution provision, Article VI, §1, does not confer jurisdiction upon the appellate courts directly, and thus all exercises of appellate jurisdiction must be by virtue of statutory authority given pursuant to the Constitution. The legislature may deny review of proceedings in the Supreme Court81 and the appellate courts have no power to act if the matter is not appealable, leaving the court without jurisdiction to decide any other issue in the case.82

The jurisdiction of the Supreme Court in relation to appeals from interlocutory decrees is also limited to statutory powers.83 “The jurisdiction of this Court in relation to appeals from interlocutory decrees is purely statutory.”84 The basic statute governing appeals to the Supreme Court is Code §8.01-670, which provides for appeal from broad categories of final judgments, and specific categories of interlocutory rulings, being those rulings:

1. Granting, dissolving or denying an injunction; or
2. Requiring money to be paid or the possession or title of property to be changed; or
3. Adjudicating the principles of a cause.

A final order has been defined as one that disposes of the whole subject, gives all of the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.85 In general, therefore, if it appears upon the face of the proceedings that further action in the cause is necessary to give completely the relief contemplated by the court, then the judgment is not final.86 Courts have held that “the principles of a cause” refers to principles which affect the subject of the litigation and the rules by which the court will determine the rights of the parties in the particular suit; the term suggests that the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case, in order to ascertain the relative rights of the parties with regard to the subject matter of the suit.87 Note that it has been held that the category of appealable semi-final decisions adjudicating the principles of a cause applies only in equity, and does not apply to judgments at law, which, under the plain terms of the statute, must be final to be appealable.88

Judgment regarding fewer than all party defendants. Earlier in the 20th century the it was held that a decree might be final as to one of several parties, though as to any party remaining in the court, it can, in the nature of things, be only interlocutory.89 As explained by the Supreme Court a few years ago, however, the key issue is whether the issues on which the remaining claims will be decided touch the same matters that controlled dismissal of the claim decided early. If there is commonality in issues with the remaining claim, the initial disposition is not final for appeal purposes absent a statute so providing.90

In Leggett v. Caudill,91 the trial court sustained a demurrer to Count I of a motion for judgment, dismissing claims against both defendants (an individual, and a church). Count II remained pending against another entity, and Count III remained pending on a different theory against the church. As to the church, the Court held that the order dismissing Count I was interlocutory in nature, not final.92 In contrast, the order sustaining demurrer to Count I left something further to be done as to the church, because Count III remained pending against it.

While the theories of liability under Count I in the Leggett pleading (allowing emotional distress to be created) were in some ways distinct from the theory in Count III (unlawful discharge of the plaintiff from employment), there is no mechanism in Virginia practice for entry of a partial final judgment, comparable to Federal Rule 54(b). Perhaps more importantly, the bases for liability had important areas of overlap since the conduct of the party charged in the dismissed count was the basis for liability under the remaining count, and certain statutory issues respecting the liability of the dismissed and remaining defendants were the same.

In Leggett the Court noted93 that exceptions to the general rule requiring complete finality had been recognized in Bowles v. Richmond,94 and more recently in Hinchey v. Ogden,95 cases in which orders dismissing one defendant from a multi-party case were held appealable. However, those decisions involved defendant’s dismissed on grounds independent from the bases for liability asserted against the remaining parties.96 The “general rule,”97 however, is that announced in Wells v. Whitaker, in which the Court indicated that only a distinctly “collateral matter” resolved in a partial disposition will be appealable, stating that “an adjudication final in its nature as to a collateral matter, separate and distinct from the general subject of the litigation and affecting only particular parties to the controversy, may be appealed prior to the determination of the case against all defendants.”98 Thus in Leggett the Court held that “a judgment is final and appealable when the interests of the parties before the trial court are ‘severable’ rather than ‘identical,’ under the following definition:

“[The] judgment is severable when the original determination of those issues by the trial court and reflected in the judgment or any determination which could be made as a result of an appeal cannot affect the determination of the remaining issues of the suit, nor can the determination of such remaining issues affect the issues between plaintiff and the dismissed defendants if such defendants are restored to the case by a reversal.”99

It is apparent that under this approach if the legal theories or bases for liability asserted against the remaining defendants are at least in part the same as those governing the liability of the defendant already dismissed, the initial disposition will not be deemed “collateral” and hence will not merit the right to independent appeal.100

Thus, where the liability of the remaining defendant arises from the conduct of the defendant who has secured the initial dismissal, or where the statutes on which liability of the remaining defendant will turn are the same as those governing the liability of the dismissed party, the initial adjudication did not pertain to “a collateral matter, separate and distinct from the general subject of the litigation.”101

Judgments on Some Claims or Defenses in Multi-claim Litigation. Over 90 years ago the Supreme Court held that where two causes of action are heard together and one of them is dismissed and the other continued, the decree is final as to the one dismissed, and unless an appeal is taken within the normal time period provided by statute, the right of appeal is lost.102 Another phrasing of this concept in the early years of the century held that a judgment in an action is final for appeal purposes when it is a determination of the particular action or suit, although it is not a final determination of the right of the parties.103 Given the more recent explanation of case law in Leggett, however, it appears that these holdings will be interpreted to apply only where the theories of liability are wholly distinct.

New Interlocutory Appeal Statute. In 2002, the General Assembly enacted Code §8.01-670.1 which adds a statutory option for appeal of interlocutory orders. The section provides for appeal of interlocutory orders and decrees by permission. Thus, when a circuit court has entered during the pretrial stage of any civil action (except matters appealable to the Court of Appeals pursuant to §17.1-405) an order or decree that is not otherwise appealable, “any party may file in the circuit court a statement of the reasons why an immediate interlocutory appeal should be permitted. The statement must include a concise analysis of the statutes, rules or cases believed to be determinative of the issues and request that the court certify in writing that the order or decree involves a question of law as to which (i) there is substantial ground for difference of opinion, (ii) there is no clear, controlling precedent on point in the decisions of the Supreme Court of Virginia or the Court of Appeals of Virginia, (iii) determination of the issues will be dispositive of a material aspect of the proceeding currently pending before the court, and (iv) the court and the parties agree it is in the parties’ best interest to seek an interlocutory appeal.”104

If the trial court denies such certification, the appeal is precluded. However, if the circuit court grants such a certification, a petition for appeal may be filed within 10 days with the appellate court that would have jurisdiction in an appeal from a final judgment in the proceeding. The appellate court must agree to accept the interlocutory appeal: “If that appellate court determines that the certification by the circuit court has sufficient merit, it may, in its discretion, permit an appeal to be taken from the interlocutory order or decree and shall notify the certifying circuit court and counsel for the parties of its decision.”105

The new Code provision on interlocutory appeals by permission further provides that no petition or appeal allowed under its provisions will stay proceedings in the circuit court unless the circuit court or appellate court so orders.106

Consideration by the appellate court of any petition and appeal under the interlocutory appeals by permission procedure will be in accordance with the applicable provisions of the Rules of the Supreme Court and the statute provides that they “shall not take precedence on the docket unless the court so orders.”107

Interlocutory Appeals of Decisions Denying Motions to Compel Arbitration. Under the Virginia version of the Uniform Arbitration Act, a circuit court has the express power to compel or stay arbitration proceedings.108 Code §8.01-581.016 confers upon the Supreme Court jurisdiction to review a circuit court’s order that denies or stays arbitration, even though such orders would otherwise be considered interlocutory because the proceedings at the trial level on the subject claims are not completed and no final determination has been made at the time such orders are entered.109 This has allowed parties who disagree with trial court decisions denying arbitriation to seek immediate review of that ruling even though the proceedings are ongoing in the trial court and hence there is no “final judgment” in the litigation as a whole.110 Note that — unlike the laws of various other jurisdictions — the Virginia statute does not authorize interlocutory appeal in instances where the trial court compels participation in arbitration under the parties’ contract. The remedy in that situation is to appeal the eventual order confirming the arbitration award (i.e., to participate in the arbitation, and then appeal the implementation of that result).

Time for Seeking Review of Appealable Interlocutory Dispositions. A party aggrieved by the decision of a circuit court in a partial case disposition that is appealable on an interlocutory basis pursuant to statutory or common law authority may either file a notice of appeal within 30 days of the ruling complained of, or await termination of the remainder of the litigation.111 Over a century ago, the Supreme Court held that even where a disposition is arguably appealable under an exception to the final order doctrine, appeal is not mandatory; a party may appeal immediately, or may wait for the interlocutory decree to be embodied in a final disposition clearing up the remaining issues of implementation, and then appeal.112 Thus, there is no longer any fear that a party losing a decision prior to the termination of the case as a whole must file a protective notice of appeal or run the risk of waiving appellate review.113

While the face of the governing statutes is somewhat contradictory, it appears that they are interpreted such that a party presented with an appealable interlocutory disposition has the option to appeal immediately, but may elect to wait and appeal the interlocutory disposition in the course of appeal of the final judgment. Code §8.01-671(B) appears to indicate that review of appealable interlocutory orders must be undertaken within the normal period for appeal.114 However, Code §8.01-670, which authorizes appeals from certain interlocutory decrees, expressly provides that the aggrieved party “may present” a petition for an interlocutory appeal within the required period, and it has been held that a party may elect to await a final disposition for the entire case, and thereafter obtain appellate review of the interlocutory matter at the same time.115 It appears, therefore, that the language of Code §8.01-671(B), not deemed controlling in Dalloul, merely means that an order from which an interlocutory appeal would be permitted may nonetheless be appealed after the final judgment.116 As the Supreme Court clearly summarized the operation of this principle:

This permissive language has been in effect since 1849, and we have consistently held that it merely creates a right to appeal certain interlocutory adjudications; if the right is not exercised, the adverse interlocutory adjudication may be the subject of appeal from the final adjudication. Hess v. Hess, 108 Va. 483, 486, 62 S.E. 273, 274 (1908); Jameson v. Jameson’s Adm’x., 86 Va. 51, 54-55, 9 S.E. 480, 481 (1889). Before 1977, an interlocutory adjudication could be appealed at any time before entry of a final decree, creating obvious uncertainties for the court and opposing counsel in scheduling further proceedings after an interlocutory adjudication. We think the legislature intended only to eliminate that uncertainty by its enactment of Code §8.01-671(B). We do not find a legislative intent to require the losing party to note an interlocutory appeal or otherwise forfeit his right to later appeal the issue after a final adjudication.117

It appears that to preserve the right to appeal a pre-judgment ruling a party must at least object in timely fashion. The Supreme Court has spelled out the logic in the example situation of a motion for summary judgment which is denied at the trial level.118 That ruling is not itself appealable because it is not a final order or disposition of the case. However, such a disposition is “an adjudication of one of the principles of the action that may be appealed after entry of the final judgment.”119 The aggrieved party has “made known its specific objection to the court’s denial of its motion for summary judgment by objecting to the order, and by briefing and arguing its ... defense. [The movant’s] actions afforded opposing counsel an opportunity to respond to [the] contention, and afforded the trial court an opportunity to rule intelligently on the issue presented. Accordingly, [the movant] made a timely objection in conformity with Rule 5:25 and preserved its right of appeal.”120

The foregoing situations may be illustrated in the following example of a multi-claim litigation involving several dispositions:
Example: Plaintiff brings an action with three counts. Count I is dismissed by the sustaining of a demurrer without leave to amend in January. Count II is dismissed in a ruling on a motion for summary judgment in May. Trial is held on Count III and judgment entered in September.

Plaintiff may appeal all rulings within 30 days of the September judgment. Under the case law on interlocutory appeal of distinctly collateral rulings, if the subject matter of Count I is severable from the rest of the case in the sense required by Leggett and the cases there discussed, appeal of the dismissal of that count could be pursued within 30 days of the January ruling, or may await final disposition of the other claims. Similarly, if Count II is severable from the other claims in the case, plaintiff could appeal the summary disposition of that count withing 30 days from the May ruling, or may await final disposition of the remaining issues in the case. Under the new interlocutory appeal statute passed in 2002, the aggrieved party could seek approval of the trial and appellate court for mid-stream appeal of either the January or May rulings without awaiting the “final judgment” entered in September in this example.

Conclusion
A Virginia attorney may waive arguments in a variety of ways during trial-level proceedings, as well as by failing to assign error or brief and argue the points on appeal. Study of the finality and appealability doctrines in Virginia practice will help assure that decisions not to pursue arguments on appeal are made consciously for tactical reasons, and not inadvertently by operation of law because of a procedural mistake or oversight.

NOTES
1. Code §8.01-380.
2. Rule 1:1.
3. Virginia State of the Judiciary Report 2001 (2002) at A-71 and A-73, Tables 13 and 15.
4. Id., at pp. A-43 and A-49, Tables 3 and 6.
5. Johnson v. Raviotta, 264 Va. 27, 563 S.E.2d 727 (2002), citing Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 67, 471 S.E.2d 489, 493 (1996). See also Reid v. Boyle, 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000); Buck v. Jordan, 256 Va. 535, 545-46, 508 S.E.2d 880, 885-86 (1998); Yarborough v. Commonwealth, 247 Va. 215, 221, 441 S.E.2d 342, 345 (1994).
6. Id., quoting Reid v. Baumgardner, 217 Va. 769, 773-74, 232 S.E.2d 778, 781 (1977).
7. Commonwealth v. Jerman, 263 Va. 88, 556 S.E.2d 754 (2002), citing Engle v. Isaac, 456 U.S. 107, 130 (1982); Epperly v. Booker, 235 Va. 35, 44, 366 S.E.2d 62, 67 (1988).
8. Nelson v. Warden, 262 Va. 276, 552 S.E.2d 73 (2001).
9. Johnson v. Raviotta, 264 Va. 27, 563 S.E.2d 727 (2002). The defendant doctor provided prenatal care to a pregnant woman. During the 30th week of the pregnancy the patient suffered complications, which defendant diagnosed and treated as a urinary tract infection. A week later the patient was admitted to a hospital where she was diagnosed with severe preeclampsia and preterm labor. Defendant performed a Caesarean section and delivered the patient’s child, but the patient lost consciousness that day and died three weeks later. Her personal representative brought the present wrongful death action charging medical malpractice by the doctor in failing to recognize signs of preeclampsia in the office examination, and negligence by the doctor and the hospital in failing to monitor the condition of decedent after the surgical procedure. At trial the doctor was permitted to testify that during the office visit at issue he took a second blood pressure reading on the decedent, which was in the normal range, but which was not recorded in the records. He also testified that on the day of her hospitalization he made a personal check on her condition during a key period of time, but the personal representative testified that the doctor was not present in the hospital room at that time. A nurse testified on behalf of the hospital that she performed various checks on the decedent’s condition and vital signs during a crucial period, but no record of the vital signs was made.
10. Id., citing Brooks, 206 Va. at 357, 143 S.E.2d at 845; Taylor v. Mobil Corp., 248 Va. 101, 110, 444 S.E.2d 705, 710 (1994).
11. Id.
12. Id.
13. Commonwealth v. Williams, 262 Va. 661, 553 S.E.2d 760 (2001)
14. Id., citing Rule 5:25; see Schmitt v. Commonwealth, 262 Va. 127, 137, 547 S.E.2d 186, 194 (2001); Burlile v. Commonwealth, 261 Va. 501, 508, 544 S.E.2d 360, 363 (2001); Lenz v. Commonwealth, 261 Va. 451, 467, 544 S.E.2d 299, 308 (2001); Lovitt v. Commonwealth, 260 Va. 497, 512 n.2, 537 S.E.2d 866, 876 n.2 (2000).
15. Id., citing McDonald v. Nat’l Enters., Inc., 262 Va. 184, 195, 547 S.E.2d 204, 211 (2001); White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995); Oliver v. Commonwealth, 35 Va. App. 286, 296-97, 544 S.E.2d 870, 875-76 (2001).
16. Commonwealth v. Jerman, 263 Va. 88, 556 S.E.2d 754 (2002).
17. Id., citing Cherrix, 257 Va. at 312, 513 S.E.2d at 654.
18. Id. See, e.g., Lenz v. Commonwealth, 261 Va. 451, 467, 544 S.E.2d 299, 308, cert. denied, ___ U.S. ___, 122 S.Ct. 481 (2001); Breard v. Commonwealth, 248 Va. 68, 83, 445 S.E.2d 670, 679, cert. denied, 513 U.S. 971 (1994), Quesinberry v. Commonwealth, 241 Va. 364, 380, 402 S.E.2d 218, 228, cert. denied, 502 U.S. 834 (1991).
19. Eure v. Norfolk Shipbuilding & Drydock Corporation, 263 Va. 624, 561 S.E.2d 663 (2002).
20. Id, Justices Lacy, Kinser and Keenan dissenting, citing Rule 5:25. These dissenters found the sequence of arguments to violate the longstanding rule in Virginia is that parties may not take successive positions in the course of litigation that are inconsistent with each other or mutually contradictory. Smith v. Settle, 254 Va. 348, 354, 492 S.E.2d 427, 431 (1997). The dissent quoted the language from an earlier decision: “‘A [litigant] shall not be allowed to approbate and reprobate at the same time.’“ Leech v. Beasley, 203 Va. 955, 962, 128 S.E.2d 293, 298 (1962).
21. Id, majority opinion by Justice Lemons, citing Fisher v. Commonwealth, 226 Va. 403, 414, 374 S.E.2d 46, 52 (1988), cert. denied, 490 U.S. 1028 (1989).
22. City of Richmond v. Holt, 264 Va. 101, 563 S.E.2d 690 (2002).
23. Id.
24. Id.
25. WJLA-TV v. Levin, 264 Va. 140, 564 S.E.2d 383 (2002).
26. Id. Upon the media defendants’ objection, the trial court initially took the plaintiff doctor’s proposed instruction under advisement. When the defense’s competing instruction was proffered, plaintiff at first objected, then agreed to its being given, but further stated that the trial court should also give his instruction. The trial court indicated that both instructions would be given. Plaintiff’s counsel then inquired whether the trial court had “rule[d] on the motion to strike.” The trial court indicated that the motion to strike had been denied. Defendants then objected to the granting of the plaintiff’s instruction because it did not include the “newsworthiness exception,” which had been the basis of plaintiff’s argument against the motion to strike the statutory count. Despite having concurred in the defendants’ instruction, plaintiff insisted that the “[newsworthiness exception] is not the law.” Defendants indicated to the trial court that their instruction included the elements of the statute given in plaintiff’s instruction. The trial court agreed and reversed its decision to give the plaintiff’s instruction.
27. Id., citing T.L. Garden & Associates v. First Savings Bank of Virginia, 262 Va. 28, 31, 546 S.E.2d 705, 706 (2001).
28. Id., relying upon Wright v. Norfolk & Western Ry. Co., 245 Va. 160, 169-70, 427 S.E.2d 724, 729 (1993), and citing Code §8.01-384.
29. Id., citing Wright, 245 Va. at 170, 427 S.E.2d at 129.
30. Liddle v. Phipps, 263 Va. 391, 559 S.E.2d 690 (2002).
31. Khanna v. Dominion Bank, 237 Va. 242, 245, 377 S.E.2d 378, 380 (1989).
32. Liddle v. Phipps, 263 Va. 391, 559 S.E.2d 690 (2002).
33. Id.
34. Id.
35. Id., citing Transcontinental Ins. Co. v. RBMW, Inc., 262 Va. 502, 514, 551 S.E.2d 313, 319 (2001), we held that (Citing Moore v. Moore, 218 Va. 790, 795, 240 S.E.2d 535, 538 (1978)).
36. City of Hopewell v. Cogar, 237 Va. 264, 267, 377 S.E.2d 385, 387 (1989),
37. Liddle v. Phipps, 263 Va. 391, 559 S.E.2d 690 (2002).
38. The Berean Law Group v. Cox, 259 Va. 622, 624-25, 528 S.E.2d 108. 110 (2000).
39. Id. at 626, 528 S.E.2d at 111.
40. Id. The Court noted that discovery orders are not final orders. America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 358, 542 S.E.2d 377, 381 (2001).
41. Id.
42. James v. James, 263 Va. 474, 562 S.E.2d 133 ( 2002).
43. Id.
44. See, e.g., Swann v. Marks, 252 Va. 181, 184-85, 476 S.E.2d 170, 172 (1996); McManama v. Plunk, 250 Va. 27, 32, 458 S.E.2d 759, 761 (1995); Mallory v. Taylor, 90 Va. 348, 349, 18 S.E. 438, 439 (1893); see Wells v. Lorcom House Condo. Council, 237 Va. 247, 251, 377 S.E.2d 381, 383 (1989).
45. James v. James, 263 Va. 474, 562 S.E.2d 133 ( 2002).
46. Id., citing Daniels v. Truck & Equipment Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964).
47. Id.
48. Nash v. Jewell, 227 Va. 230, 237, 315 S.E.2d 825, 829 (1984).
49. James v. James, 263 Va. 474, 562 S.E.2d 133 ( 2002), citing Nash, supra.
50. Dalloul v. Agbey, 255 Va. 511, 515, 499 S.E.2d 279, 282 (1998).
51. James v. James, 263 Va. 474, 562 S.E.2d 133 ( 2002).
52. Id.
53. Id., citing Wells, 237 Va. at 251, 377 S.E.2d at 383.
54. Id.
55. Berean Law Group, P.C. v. Cox, 259 Va. 622, 626, 528 S.E.2d 108, 111 (2000) (quoting School Bd. of the City of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989)); see also Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555, 561 S.E.2d 734 (2002).
56. Id.
57. Berean Law Group, 259 Va. at 626, 528 S.E.2d at 111. See also Smith v. Stanaway, 242 Va. 286, 289-90,410 S.E.2d 610, 612 (1991) (“[T]he September 18 order was final [and this] means that the trial court was without jurisdiction to enter the October 24 order of sanctions. Rule 1:1 provides that final judgments remain under the control of the trial court for only 21 days unless modified, vacated, or suspended during that time....”).
58. Murray v. Hadid, 238 Va. 722, 733, 385 S.E.2d 898, 905 (1989) (“after 21 days elapsed [following entry of final judgment], the trial court no longer had jurisdiction over the matter”).
59. Eddens v. Eddens, 188 Va. 511, 521, 50 S.E.2d 397, 402 (1948).
60. James v. James, 263 Va. 474, 562 S.E.2d 133 ( 2002), citing Dalloul, 255 Va. at 515, 499 S.E.2d at 282.
61. Id, citing Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 (1996) (after expiration of 21-day period following entry of final judgment, trial court was divested of jurisdiction and each action taken thereafter to alter or vacate final order was a nullity).
62. Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555, 561 S.E.2d 734 (2002).
63. Id.
64. Id.
65. Daniels v. Truck & Equipment Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964).
66. Super Fresh, citing Berean Law Group, P.C. v. Cox, 259 Va. 622, 626, 528 S.E.2d 108, 111 (2000); accord Wagner v. Shird, 257 Va. 584, 587, 514 S.E.2d 613, 614-15 (1999).
67. Id., citing In re Commonwealth, Department of Corrections, 222 Va. 454, 464, 281 S.E.2d 857, 863 (1981) (holding that a trial court taking a motion to set aside under advisement “did not ‘modify, vacate, or suspend’ the judgment[]”).
68. Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555, 561 S.E.2d 734 (2002).
69. 249 Va. 320, 455 S.E.2d 712 (1995).
70. Id. at 331-32, 455 S.E.2d at 718.
71. Id., 455 S.E.2d at 718-19.
72. Id. at 332-33, 455 S.E.2d at 719.
73. Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555, 561 S.E.2d 734 (2002).
74. Lyle v. Ekleberry, 209 Va. at 350-51, 164 S.E.2d at 587.
75. Super Fresh, citing Godfrey v. Williams, 217 Va. 845, 845-46, 234 S.E.2d 301, 301-02 (1977).
76. Id.
77. Id., citing In re Commonwealth, Department of Corrections, supra.
78. Id., citing School Board of City of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989); Vaughn v. Vaughn, 215 Va. 328, 329, 210 S.E.2d 140, 142 (1974).
79. See Davis v. Mullins, 251 Va. 141, 150, 466 S.E.2d 90, 94 (1996).
80. Richmond Cedar Works & Liberty Mut. Ins. Co. v. Harper, 129 Va. 481, 106 S.E. 516 (1921); Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va. 595, 471 S.E.2d 827 (1996).
81. Town of Falls Church v. County Bd., 166 Va. 192, 184 S.E. 459 (1936).
82. Lee v. Lee, 142 Va. 244, 128 S.E. 524 (1925); accord: McClure v. Carter, 202 Va. 191, 116 S.E.2d 260 (1960); NAACP v. Committee on Offenses Against Admin. of Justice, 199 Va. 665, 101 S.E.2d 631 (1958); New York P. & N.R.R.Ferry Co. v. County of Northampton, 196 Va. 412, 83 S.E.2d 773 (1954); Dean v. Paolicelli, 194 Va. 219, 72 S.E.2d 506 (1952); Southwest Va. Hosp. v. Lipps, 193 Va. 191, 68 S.E.2d 82 (1951); Anderson v. Patterson, 189 Va. 793, 55 S.E.2d 1 (1949).
83. Lancaster v. Lancaster, 86 Va. 201, 9 S.E. 988 (1889). See Hobson v. Hobson, 105 Va. 394, 53 S.E. 964 (1906). See Smiley v. Provident Life & Trust Co., 106 Va. 787, 56 S.E. 728 (1907).
84. Thrasher v. Lustig, 204 Va. 399, 131 S.E.2d 286 (1963).
85. Burch v. Hardwicke, 64 Va. (23 Gratt.) 51 (1873). See generally Alexander v. Byrd, 85 Va. 690, 8 S.E. 577 (1889); Postal Tel. Cable Co. v. Norfolk & W. Ry., 87 Va. 349, 12 S.E. 613 (1891), appeal dismissed, 163 U.S. 700, 16 S. Ct. 1205, 41 L. Ed. 315 (1896); Salem Loan & Trust Co. v. Kelsey, 115 Va. 382, 79 S.E. 329 (1913); Gills v. Gills, 126 Va. 526, 101 S.E. 900 (1920); Richardson v. Gardner, 128 Va. 676, 105 S.E. 225 (1920); Lee v. Lee, 142 Va. 244, 128 S.E. 524 (1925). See also, Brown v. Carolina, C&O Ry., 116 Va. 597, 83 S.E. 981 (1914); Ashworth v. Hagan Estates, Inc., 165 Va. 151, 181 S.E. 381 (1935); Dearing v. Walter, 175 Va. 555, 9 S.E.2d 336 (1940).
86. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382, 79 S.E. 329 (1913). See Gills v. Gills, 126 Va. 526, 101 S.E. 900 (1920); Johnson v. Merrit, 125 Va. 162, 99 S.E. 785 (1919).
87. Lancaster v. Lancaster, 86 Va. 201, 9 S.E. 988 (1889); Lee v. Lee, 142 Va. 244, 128 S.E. 524 (1925).
88. Baber v. Page, 137 Va. 489,120 S.E. 137 (1923).
89. Lee v. Lee, 142 Va. 244, 128 S.E. 524 (1925). See Dearing v. Walter, 175 Va. 555, 9 S.E.2d 336 (1940).
90. Leggett v. Caudill, 247 Va. 130, 439 S.E.2d 350 (1994).
91. Id.
92. Id. at 133, 439 S.E.2d at 351.
93. Id. at 133, 439 S.E.2d at 351-52.
94. 147 Va. 720, 129 S.E. 489 (1925), aff’d on reh’g, 147 Va. 729, 133 S.E. 593 (1926).
95. 226 Va. 234, 307 S.E.2d 891 (1983).
96. The Court in Leggett summarized the relationship between the theories of liability as to dismissed and remaining parties in these two cases as follows:
In Bowles, the plaintiff sued the City and a railroad for their negligent failure to safeguard an approach to a bridge. On the City’s demurrer, the action of the plaintiff was dismissed as to the City, while the action remained pending as to the railroad. The demurrer was based on the ground that the plaintiff had not given written notice to the City Attorney, as required by the City Charter. Bowles, 127 Va. at 723-24, 129 S.E. at 489.
This Court held that the order sustaining the demurrer was final, because there was “no joint interest between the defendants in the matters decided by the circuit court [i.e., whether plaintiff’s action was barred as against the City for failure to give proper notice], nor does it relate to the merits of the case[;] therefore the judgment is final as to the city.” Id. at 725, 129 S.E. at 490.
Similarly, in Hinchey v. Ogden, in a negligence action against the operator of a motor vehicle, the plaintiff also sued the Superintendent of the Expressway for breach of official duty in failing to provide traffic controls sufficient to prevent drivers from entering the wrong lane of travel. The trial court sustained a motion to dismiss as to the Superintendent on the basis of sovereign immunity. This Court granted the plaintiff an appeal from that order, holding that, under Bowles, the judgment was appealable. Hinchey, 226 Va. at 236-37 and n.1, 307 S.E.2d at 892 and n.1. Leggett, 247 Va. at 133-34, 439 S.E.2d at 352.
97. Id. at 134, 439 S.E.2d at 352.
98. Id. at 134, 439 S.E.2d at 352, quoting Wells, 207 Va. at 628, 151 S.E.2d at 432 (emphasis added).
99. Id. at 134, 439 S.E.2d at 352, quoting Wells, 207 Va. at 629, 151 S.E.2d at 432-33 (emphasis omitted) (citation omitted).
100. As summarized in Leggett, 247 Va. at 134 , 439 S.E.2d at 352, in Wells v. Whitaker “it was claimed that an order dismissing one of several defendants was final at the time it was entered. In that case, a defendant, H.B. Whitaker, was dismissed when the trial court held that he was not a joint venturer with H.W. Whitaker, another defendant who remained in the case. However, we held that the order was not final, because, ‘should plaintiff secure a reversal on his theory that H.B. Whitaker was a joint venturer, then H.B. Whitaker might be charged with liability for the same acts or omissions which are the basis of H.W. Whitaker’s liability.’”
101. Leggett, 247 Va. at 134 , 439 S.E.2d at 352, citing Wells v. Whitaker, 207 Va. at 628, 151 S.E.2d at 432.
102. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301, 43 S.E. 564 (1903).
103. Brown v. Carolina, C & O Ry., 116 Va. 597, 83 S.E. 981 (1914).
104. Code §8.01-670.1.
105. Id.
106. Id.
107. Id.
108. Code §8.01-581.02.
109. See generally Amchem Products, Inc. v. Newport News Circuit Court Asbestos Cases Plaintiffs, 264 Va. 89, 563 S.E.2d 739 (2002).
110. See, e.g., Weitz v. Hudson, 262 Va. 224, 546 S.E.2d 732 (2001).
111. Dalloul v. Agbey, 255 Va. 511, 499 S.E.2d 279 (1998). Footnote * of this opinion, at p. 515 of the official reports, reads:
We also note that an order which is final as to some, but not all, parties may in some circumstances be appealed before the case is concluded as to all defendants, under the “severable” interest rule set forth in Wells v. Whitaker, 207 Va. 616, 628-29, 151 S.E.2d 422, 432-33 (1966). See also Leggett v. Caudill, 247 Va. 130, 134, 439 S.E.2d 350, 352 (1994). In such instances, the order may be appealed either at the time of its entry or when the trial court enters a final order disposing of the remainder of the case. See Code §8.01-670(A)(3); see e.g., Hinchey v. Ogden, 226 Va. 234, 236-37, and n.1, 307 S.E.2d 891, 892 and n.1 (1983).
112. Harper v. Vaughan, 87 Va. 426, 12 S.E. 785 (1891).
113. See note 111 above.
114. Code §8.01-671(B): “When an appeal from an interlocutory decree or order is permitted, the petition for appeal shall be presented within the appropriate time limitation set forth in subsection A hereof.”
115. Smith v. Woodlawn Const., 235 Va. 424, 368 S.E.2d 699 (1988). See Jameson v. Jameson, 86 Va. 51, 9 S.E. 480 (1889). See Hess v. Hess, 108 Va. 483, 62 S.E. 273 (1908). See also, Southern Ry. v. Glenn’s Adm’r, 98 Va. 309, 36 S.E. 395 (1900).
116. See note 111 above.
117. Smith v. Woodlawn Const., 235 Va.. at 429, 368 S.E.2d at 634.
118. Metro Machine Corp. v. Mizenko, 244 Va. 78, 419 S.E.2d 632 (1992).
119. Id., citing Allen v. Parkey, 154 Va. 739, 749, 149 S.E. 615, 619 (1929), aff’d, 154 Va. 739, 750, 154 S.E. 919, 919 (1930).
120. Metro, 244 Va. at 81, 419 S.E.2d at 634, citing Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991).

About the Author: Kent Sinclair is professor of law and director of lawyer training at the University of Virginia. He serves on the VBA Civil Litigation Section Council, and chairs the Advisory Committee on Rules of Practice and Procedure of the Judicial Council of Virginia in addition to other professional activities. He has served as reporter of decisions for the Supreme Court of Virginia since 1985. This article is copyrighted, © 2002 Kent Sinclair.

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Legal Focus/Civil Litigation:
Preservation of Evidence: New Focus on Old Issues
John E. Coffey

Destruction of documents. Spoliation of evidence. Obstruction of justice. In recent months these issues have dominated the headlines, brought a major accounting firm to its knees and refocused attention on this area of the law. This article will examine the basic principles underlying the law of spoliation of evidence and possible consequences faced by clients in the civil arena in the event of improper destruction of documents or failure to preserve evidence.

The Duty to Preserve Evidence
There is a frequent misperception among clients that documents or other evidence (usually of the unfavorable type) need not be preserved and may be destroyed so long as litigation is not pending or a subpoena has not been issued, or so long as the destruction occurs pursuant to a document retention or destruction policy. Both the federal and state court laws are clear, however, that there is a broad duty to preserve evidence regardless of the existence of document destruction policies or the presence of pending litigation
When analyzing evidence destruction issues, courts tend to define the duty to preserve evidence broadly. Every litigant is under a duty to preserve documents, whether in hard-copy form or in electronic form. In this regard, the Fourth Circuit has ruled that this duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.1 Even if a party has no authority or power to preserve evidence, he has a duty to notify the other party of its existence, locations, etc.2

These principles are in accord with decisions in other federal and state courts recognizing that a party’s duty to preserve evidence may arise whenever there is: i) pending or probable litigation involving the party; ii) knowledge by the party of the existence or likelihood of litigation; iii) foreseeability of harm to an adverse party as a result of; iv)destruction of evidence relevant to the litigation.3 While a litigant is under no duty to keep or retain every document in its possession once a complaint is filed, courts have stated that the duty to preserve evidence extends to documents that a party knows or should reasonably know is relevant to an action. The duty to preserve such evidence is generally triggered by the reasonable anticipation of litigation.4

The Duty to Comply With One’s Own Records Retention Policy
Some clients may regard destruction of records in accordance with an ongoing document retention policy as a shield against any liability for destruction of evidence. However, the existence of a document retention policy brings with it certain obligations. In order for a document retention policy to provide any protection regarding a client’s destruction of documents, it must first be deemed reasonable. In this regard, the reasonableness of record retention policy depends on the length of time documents are retained; whether important documents such as customer complaints are retained longer; whether documents at issue in the instant litigation were involved in earlier litigation; whether the policy was promulgated in bad faith in order to limit damaging evidence available to plaintiffs; and whether the plan classifies different types of documents.5

In all events, destruction of documents inconsistent with a party’s own records retention policy may be considered evidence of bad faith.6 Even if a court finds a records retention policy to be reasonable, the court may find that under particular circumstances, certain documents that were discarded should have been retained, because the corporation knew they would become material to litigation in the future.7

Consequences of Failure to Preserve Evidence
So your client may have destroyed or failed to preserve evidence — what are the possible consequences? Aside from the potential criminal implications for obstruction of justice, there are a variety of sanctions which may be imposed in the civil arena.

A breach of the duty to preserve evidence may lead to monetary sanctions, or to the court instructing the jury that it may draw an “adverse inference” — i.e., that the destroyed evidence would have been harmful to the “spoliator.” Further, summary judgment as to the underlying merits of the case may be granted to the harmed party. When considering which sanction is appropriate, courts consider two interests: punishing the culpable party, and deterring others from engaging in similar conduct.8 The purpose of imposing a sanction when a litigant or an attorney has acted in bad faith is to punish the offending party and to deter others from acting similarly.9 In addition to a corporation’s responsibility for a failure to preserve documents, corporate officers and managers can be held personally responsible for a corporation’s failure to preserve relevant evidence.10

“While a district court has broad discretion in choosing an appropriate sanction for spoliation, ‘the applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.’ In addition, a court must find some degree of fault to impose sanctions....”11 When imposing spoliation sanctions, “the trial court has discretion to pursue a wide range of responses both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct.”12 But dismissal should be avoided if “a lesser sanction will perform the necessary function.”13

The court may order the “spoliator” to pay reasonable expenses and attorney fees incurred by the harmed party, as well as punitive sanctions payable to the court.14 The court may in addition permit a “spoliation inference,” allowing the jury to conclude that evidence destroyed by a party would have been unfavorable to it. For example, in Vodusek v. Bayliner Marine Corp., the Fourth Circuit stated that, under the spoliation of evidence rule, an adverse inference may be drawn against a party who destroys relevant evidence. The court held that the district court properly permitted the jury to draw an adverse inference from the plaintiff’s spoliation of relevant evidence. In Vodusek, the court approved the district court’s instruction to the jury that it could draw an adverse inference from the plaintiff’s destruction of evidence and did not require a showing of bad faith to allow the inference. The court held that, to draw an adverse inference from the absence, loss or destruction of evidence, it would have to appear that the evidence would have been relevant to an issue at trial and otherwise would naturally have been introduced into evidence.15

Any application of a “spoliation inference” necessarily must take into account (1) the blameworthiness of the offending party and (2) the prejudice suffered by the opposing party.16 As stated by the U.S. District Court for the Eastern District of Virginia, “[T]he cases require at a minimum that the party must have tampered with the evidence in some way while on notice that the evidence ‘might be necessary’ to some party’s claim.”17 In so stating, the court found that to allow such an inference would be an abuse of discretion because the defendants were not “seriously blameworthy” and because any prejudice to the plaintiffs was “highly speculative.”18

Spoliation sanctions imposed by Virginia trial courts, including dismissal of the action, will not be reversed on appeal unless the trial court abused its discretion.19 In an appropriate case, dismissal for spoliation of evidence may be granted upon a showing of (1) bad faith and (2) prejudice.20 The Virginia Supreme Court has noted, however, that dismissal is not warranted in the absence of bad faith, coupled with a lack of prejudice resulting from the destruction of evidence. In such a case, the court has held that the trial court abused its discretion in dismissing the action, and reversed.21 Specifically, in a wrongful death case in which the record showed that neither the parties nor their attorney acted in bad faith, and that the destruction of evidence was committed by a third party expert witness who acted without the consent or knowledge of the parties or their attorney, however, dismissal was not appropriate.22

The Virginia Supreme Court has yet to recognize a cause of action in tort for either the intentional or the negligent spoliation of evidence. The Court has in fact specifically ruled that an employer has no legal duty to preserve evidence for an employee for use in an injured employee’s suit against the manufacturer of the product allegedly causing the injury.23

In sum, while the law concerning the issue of spoliation of evidence and failure to preserve evidence is not new, recent events bear out the importance of reminding and/or educating clients as to their responsibilities concerning the preservation of evidence. As in most areas of the law, an ounce of prevention is worth a pound of cure; educating clients as to their responsibilities and the possible adverse consequences in this regard can go a long way toward achieving that end.

NOTES
1. Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir.2001).
2. Id.
3. Baliotis v. McNeil, 870 F.Supp 1285, 1290 (M.D.Pa. 1994) (citing Hirsch v. General Motors Corp., 628 A.2d 1108 (N.J.Super.Ct. 1993)).
4. See, e.g. Baliotis v. McNeil, 870 F.Supp. at 1290.
5. 7 James Wm. Moore, Moore’s Federal Practice §37A (3d ed. 1999).
6. In re Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598 (D.N.J. 1997).
7. Lewy v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir. 1988).
8. In re Wechsler, 121 F.Supp 2d 404 (D.Del. 2000).
9. Gentry v. Toyota Motor Corp., 252 Va. 30, 471 S.E.2d 485 (1996).
10. See, e.g., In re Prudential Ins. Co. of America Sales Practices Litigation, 169 F.R.D. 598 (1997); Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 58, 72 (S.D.N.Y. 1991). See also National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556 (N.D. Cal. 1987)(same); Kansas-Nebraska Natural Gas Co. v. Marathon Oil Co., 109 F.R.D. 12, 18 (D.Neb.1983)(same).
11. Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001) (citations omitted).
12. Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995).
13. Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001).
14. See, e.g., In re Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598 (D.N.J. 1997).
15. Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995).
16. Anderson v. National R.R. Passenger Corp., 866 F.Supp 937,945 (E.D.Va. 1994).
17. Id.
18. Id. See also Bolling v. Montgomery Ward & Co., Inc., 930 F.Supp. 234,237 (W.D.Va. 1996): (A court may make a “spoliation inference” that evidence no longer available would have been adverse to the party that made it unavailable. In deciding whether to make such an inference, the court must consider both the blameworthiness of the offending party and the prejudice to the other side.)
19. Blue Diamond Coal Co. v. Aistrop, 183 Va. 23, 31 S.E.2d 297 (1944).
20. See Gentry v. Toyota Motor Corp., 252 Va. 30, 34, 471 S.E.2d 485, 488 (1996).
21. Id.
22. Id.
23. Austin v. Consolidation Coal Co., 256 Va. 78, 501 S.E.2d 161 (1998) (no cause of action for intentional or negligent spoliation of evidence where no legal duty to preserve evidence existed).

About the Author: John E. Coffey is a VBA member and a partner in the Falls Church office of Reed Smith LLP, where he focuses his practice on commercial litigation. He received his B.A. degree from the University of Maryland in 1976 and his J.D. degree from Washington & Lee University in 1979. He is a member of the Virginia State Bar, the District of Columbia Bar and the Alexandria and Federal Bar Associations.

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Young Lawyers Division

Nonprofit Legal Support Program links local groups with experienced attorneys
Rebecca E. Kuehn, Chair, VBA/YLD Nonprofit Legal Support Program

The Nonprofit Legal Support Program is a newly created joint project of The Virginia Bar Association Young Lawyers Division and the Fairfax Bar Association Pro Bono Program.

The program, with its slogan “Connecting Lawyers and Community,” seeks to link local nonprofit organizations in need of legal services with experienced corporate attorneys. In helping the community in this way, corporate attorneys have a unique opportunity to assist nonprofits in carrying out their worthwhile missions.
The Nonprofit Legal Support Program has two missions:

• To provide transactional attorneys with opportunities to effect a difference in the community though providing legal services with their special skills; and
• To coordinate the alliance of the specialized skills of the corporate attorney with the needs of the nonprofit organization.

The Nonprofit Legal Support Program responds to requests by nonprofits for legal advice in such areas as:

•Preparing and amending organizational documents.
•Mergers.
•Corporate authorization of transactions and other actions.
•Buying and selling property.
•Leasing/rental matters.
•Land use/permitting.
•Finance.
•Employment/labor law.
•Insurance.
•Contracts.
•Tax/charitable giving.

The process is simple. The nonprofit contacts the Nonprofit Legal Support Program and completes a questionnaire describing its mission, structure and services, as well as the nature of the request for legal assistance. The Support Program Coordinator then arranges a match with a volunteer lawyer whose practice areas fit the nonprofit’s need.

To volunteer, please contact (703) 246-3779 for a questionnaire identifying your areas of expertise. When the need arises for your particular skill, you will be contacted to determine whether your skills are a good match for the organization.

If you have any questions about the program, or need more information, please contact me at (571) 431-6005 or rkuehn@leclairryan.com. Return to Top

VBA/YLD News

Child Support Enforcement Project saves Virginia dollars
As a result of the thousands of backlogged child support enforcement matters currently pending in Virginia, several years ago the VBA Young Lawyers Division and the Office of the Attorney General jointly developed a project in which attorneys in the Richmond area handle child support enforcement cases in Juvenile and Domestic Relations Court on behalf of the Commonwealth of Virginia.

Currently, there are a total of eight pro bono volunteers handling dockets in Chesterfield and Henrico County. Between now and the end of 2002 these pro bono attorneys will handle 12 dockets on behalf of the Commonwealth in these jurisdctions. As a result, the Commonwealth is not forced to hire outside counsel to handle these cases, resulting in savings of sev