The saying “half a loaf is better than none” sometimes applies in the law, but it depends on which half of the loaf you get. Yesterday I, along with co-counsel, had a court appearance on behalf of a client who was opposing a request for an injunction that was based on an interpretation of a prior order of the Court. We were of opinion that the order contained an error in that there was language that seemed to be directly in conflict with the ruling the Court had indicated it was making in its summation. However, “a trial court speaks only through its orders,” and more than 21 days after the fact (under Virginia’s Rule 1:1 the order is not final for 21 days) it’s difficult to get the Court to change an order — and the Court in this case chose not to do so.
Moving on to the substance of the injunction, the plaintiffs argued that the former order, with its intact language, barred a certain action by the defendant, while it was our contention that it allowed that action — it all depended on whether the Court meant to say that something had already happened and barred further action by our client, or merely might have happened, which would not have barred the defendant from acting until it was determined for certain. So while the maxim about how court’s speak probably sunk our first argument, a different maxim came to our rescue here — that one says that “the Court is in the best position to interpret its own order.” Because the order, in the Court’s view, merely found that the occurrence might (or might not) have happened, the matter was not settled and remained unresolved. Because that issue remains to be resolved in a different proceeding (the one the injunction sought to stop), there was a legal remedy for the plaintiffs and, thus, an injunction was not proper.
So our client was left with half a loaf that tasted sweet, while the other side had to take half a stale loaf, having won the first skirmish, but losing the battle. The war remains to be concluded in the other proceeding.
An attorney observing the virtual oral argument of the appeal of a case he had tried in the lower court was apparently not happy with the opposing side’s argument and made a certain gesture, considered rude in many circles, to his computer’s camera. When confronted with this behavior by the panel during the oral argument, the attorney said he was merely pointing at his broken computer. And that excuse did NOT fly with the judges. The story on Above the Law indicates that the Court fined the attorney $3,000. The attorney is sticking with his story that he was flipping off the computer, which he says was not displaying the video feed of the argument. Which begs the question, “Is there such a thing as transferred intent for ‘flipping the bird’?”
I have heard tell of more than one attorney who let an “f-bomb” slip out during questioning or a jury closing, and the judges in those case were sympathetic — though not so much as to forego a fine. In one case, the attorney immediately realized his error and turned, pinked-faced, to the judge saying “I’m sorry your Honor, it just slipped out.” “I understand, Counsel,” replied the judge, “but I hope you brought your check book.” If I recall correctly, the jury found for the attorney’s client, who happily include the amount of the sanction in paying the lawyer’s fee.
I try to stay in my lane of summarizing and commenting on Virginia Court of Appeals’ opinions, leaving the commentary on the Mighty Seven to my colleague Steve Emmert. But today’s opinion in Galiotos v. Galiotos has such a gem of legal wisdom that I could not resist. I will leave the summary of the tale of woe — two brothers who were co-executors of their mother’s substantial estate who simply could not agree about, well, anything — to the aforementioned sage of Virginia Beach. Instead I will simply offer this slim quotation from the Court’s opinion under the astute pen of Justice Goodwin as one for every attorney to file away and use the next time someone says “just what is abuse of discretion?”
When we say that a circuit court has discretion, we mean that “the [circuit] court has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Landrum v. Chippenham and Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011) (internal quotation marks omitted). There are three principal ways in which a circuit court can abuse its discretion: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment. Id. (internal quotation marks omitted). “Thus, only when reasonable jurists could not differ can we say an abuse of discretion has occurred.” Sauder v. Ferguson, 289 Va. 449, 459 (2015) (internal quotation marks omitted).
WOW! That’s about as succinct and yet all encompassing definition of abuse of discretion that one could hope for. Thank you Justice Goodwyn!