Virginia: Brain Injury – a Lawyer’s Waiver

Virginia: Brain Injury – a Lawyer’s Waiver

On October 25, 2011, Mr. Waterman files Brief of Appellant in Gagnon v. Burns, No. 110767 c/w No. 110754 in the Supreme Court of Virginia in Richmond, Virginia. Waiver is an issue in that brain injury appeal of the jury’s $6,100,000.00 verdict in Circuit Court for Gloucester County, Virginia, CL08-572.

Under Virginia law, a proponent must “prove the elements of such waiver by clear and convincing evidence,” Baumann v. Capozio, 269 Va. 356, 361 (2005) (emphasis added); based on the opposition’s actions “when considered together,” Shelton v. Commonwealth, 274 Va. 121, 127 (2007)(motion and qualified endorsement of final order preserved) and “taken in context”. Wright v. Norfolk and W. Ry. Co., 245 Va. 160, 168 (1993)(lawyer voicing no objection to the “form” did not waive). Va. Sup. Ct. Rule 5:25 focus is whether the judge had “opportunity to rule intelligently on the issue,” Scialdone v. Commonwealth, 279 Va. 422, 437 (2010); so the Gagnon crime victim party need only have put the judge “on notice of his position,” not use a certain phrase, id. at 438; and the judge ruling on the issue evinces opportunity. Id. at 439 (and all cases therein).

Since 1992, it suffices that the Gagnon brain injury party “at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action the court therefore.” Va. Code Ann. §8.01-384 (A). “No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again to preserve his right to appeal, challenge, or more for reconsideration of, a ruling, order, or action of the court. Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.” Id. (emphasis added).

“Code §8.01-384(A)…is controlling of Rule 5:25, and we must apply the statutory provision.” Helms v. Manspile, 277 Va. 1, 7 (2009) (memo preserved). Brown v. Commonwealth, 279 Va. 210, 217, cert. denied, 131 S. Ct. 217 (2010)(oral argument preserved). “Under Code §8.01-384(A) and our analysis in Helms, if a trial court is aware of a litigant’s legal position and the litigant did not expressly waive such arguments, the arguments remain preserved for appeal.” Id. (emphasis added).

“While the doctrine of invited error remains good law, it simply has no application where, as here, the record shows that a party clearly objected to a specific ruling of the trial court to which error is assigned on appeal, even if the party failed to object to instructions applying or implementing the trial court’s prior ruling.” King v. Commonwealth, 264 Va. 576, 582 (2002). “The undeniable purpose of Code §8.01-384(A) is to relieve counsel of the burden of making repeated further objections to each subsequent action of the trial court that applies or implements a prior ruling to which an objection has already been noted.” Id. at 581 (not objecting to instruction not waiver).

Analogously to the Gagnon brain injury appeal, negligence issue was not waived by not objecting to jury submission, where before and after the judge was “fully apprised,” denied motion, and stated: “The objections to this ruling are preserved.” General Ins. of Roanoke, Inc. v. Page, 250 Va. 409, 412 (1995)(emphasis added). Likewise, there also was no waiver of underlying evidentiary objection maintained post-trial, even though plaintiff’s counsel replied, “‘That’s fine, Your Honor,’ when [disputed] tendered instruction was amended”. McMinn v. Rounds, 267 Va. 277, 280-281 (2004)(emphasis added)(and instruction cases cited therein).