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Winning isn’t the only thing . . . sometimes it isn’t anything.

| May 4, 2021 | Firm News, The SoapBox |

So I have been retired from public service for just over seven months and I spent the first several of those months resting, avoiding COVID and just generally contemplating a future that would include the occasional appellate case that caught my fancy.  While I have actually taken on several appellate cases and even filed briefs in two of them, much of my dabbling in a “real law practice” has been confined to the trial courts.  Specifically, I have had four cases that were concluded with favorable results for my clients.  I do not say that I “won” these cases because, even if I thought of lawsuits as win/lose propositions, I am not sure that I would be justified in putting these in the “win” column.  Let me explain.

Rarely does a lawsuit reach the point of a trial, or the cusp of one, in which one party is clearly in the right and the other is just as clearly in the wrong.  It possible that one part is without fault, but this does not mean that the other necessarily shoulders the blame.  Moreover, the justice system — civil or criminal — is often not set up to grant the relief that the party “more in the right” is entitled to.  To one degree or another, every case I have had as a private practice attorney (and countless more I worked on in my prior career) was really not a “win” for anyone.

The first case was a straightforward vehicle accident property damage case.  The plaintiff, who eventually became my client, started out  with an attorney, who quickly realized that there was a sufficient doubt as to liability that a recovery was not likely.  She informed the client and returned the retainer.  The client then waited before filing the suit on his in General District Court, by which time the defendant was no longer at the address he had resided at at the time of the accident, nor was the owner of the vehicle whose liability policy was the principal coverage.  The defendant driver was never located for service, but service was had upon the owner by out-of-state process through the Secretary of the Commonwealth, failed to respond and a default judgment was entered.  When an attempt to enforce the judgment was made, the owner, represented by his carrier, sought to reopen the case and assert lack of longarm jurisdiction.  I will spare you the details of the argument and why I believed it was not correct.  Suffice to say, however, that the pro se plaintiff was not able to convince the general district court that it had proper jurisdiction.  By this time, however, another attorney had become involved and asked me to consult on the issue.  An appeal was noted to the Circuit Court and then things got . . . ahem . . . confused.  First, the defendant made the mistake of thinking that the appeal was limited to the finding that there was no personal jurisdiction and that the circuit court would review that decision.  Except that was not the issue — rather, it was whether circuit court even had jurisdiction to consider the case because the district court had improperly reopened the case — the remedy we were seeking was a remand and reinstatement of the default judgment — and frankly this was the only why the plaintiff was going to recover.  While the remand was not certain, it was sufficiently in doubt that the matter would be worth pursuing in an appeal, and the insurance company that would be footing the bill the whole way was willing to settle for the actual amount that the client could have recovered (not the amount he sued for, which would not have been subject to proof at trial) had liability been found against the owner (itself a doubtful proposition).  So just before the matter was to be heard, we worked out an agreement in the circuit court hallway, explained to the client that this really was the best he could hope for, and he agreed to accept the offer.  But then got cold feet a few days later — and still has not signed off on the release of the claim.  Honestly, this should feel like a “win” as I know that the case could have dragged on for months, even years, before any resolution could have been reached and we got the client a guaranteed payment.

The second case was even more straightforward.  My client was being harassed and wanted a protective order, which requires a court appearance in the general district court after a magistrate issues a temporary protective order.  The level of harassment was probably not to the level that required a protective order, which imposes certain burdens on the defendant and can lead to criminal charges for a violation.  But it was also not insignificant and is the sort of thing that can escalate if not addressed.  The usual way to resolve these matters is by an agreed order of no contact and a stern admonition for the judge.  The defendant agreed with the former and the judge supplied the latter.  This too should feel like a “win,” except that the larger situation soon turned very bad and has left all involved having to deal with a traumatic experience.  I do not suggest that the result in the case had anything to do with what transpired, but it nonetheless was not the outcome I had hoped for.

The third case was my first actual “trial,” again in the district court.  The plaintiff was pro se and my client was a defunct and judgment proof corporation — so there was nothing really at stake and the sit could have just been allowed to go by default.  Except that the purpose of the suit was to obtain a judgment that could then be collected from a recovery fund maintained by the state for just such cases. Whether the plaintiff might have prevailed in obtaining relief with a default judgment was not a given, but the purpose of the trial was to establish whether an application for relief could even be maintained.  I will spare you the dreary details, but suffice to say that the court ultimately ruled that the plaintiff had not made out a prima facie case.  Again, not really a “win” as the client had nothing at stake, and I did feel bad for the plaintiff who might have had a chance, albeit slim, of obtaining relief from the recovery fund if the case had been presented by an attorney — but the potential recovery was not sufficient to warrant a contingency representation, and hourly fees would have truly been the tail wagging the do even if a recover was obtained.

Finally this morning I was in Circuit Court for the first time (recall that I dodged the bullet in the first case by way of a settlement) to argue an issue of first impression, meaning that there was no appellate case law from a Virginia appellate court I could present to support my argument.  What I did have was the persuasive precedent of ten other states that had ruled on the issue and all were going my way.  I also had a Commonwealth’s Attorney who was sympathetic to my argument, and a trial judge that was equally understanding.  The problem was that we also all new that there was really no solution to the problem, which is this:  What does the criminal justice system do with a defendant, presumable competent at the time he was tried and convicted, but who is now on probation or parole who and is no longer sufficiently competent to be judged by the court when he violates the terms of his release, but is also not sufficiently docile that he can be released to the community safely?  He cannot be tried for the new offense, so he cannot be held on that charge, but can he be returned to prison for violating the terms of his release — a proceeding which is not an issue that may or may not be subject to the same standards as a criminal trial. Complicating this matter the utterly insufficient amount of resources to treat those are not competent to be tried, but are still a danger to public safety.  Even if we had adequate resources to restore such persons to competency when properly medicated to function outside a treatment setting, but cannot be adequately monitored if allowed to return to the community and cannot receive the same level of treatment in the penal system.  So, the issue really wasn’t whether the court was going to rule favorably in my motion — I had been called in under the assumption that if the court did not do so, the issue would be appealed so that Virginia could have a chance to clarify the law — but what would happen to the client if the circuit court or the appellate court decided to join the other states in finding that an incompetent defendant cannot simply be returned to prison every time he violates the terms of his release because, in effect, he cannot understand the process or assist his attorney in defending himself?  The court did accept that Virginia almost certainly would follow the existing precedent, and ordered an evaluation for competency, but due to limited resources this could take months — even assuming that the defendant will cooperate, which is doubtful.  It’s a Catch-22 — an that means its a no-win situation.