February 2014 First Example Ten-point Answers to Virginia Essay Questions
FEBRUARY 2014 - QUESTION 6 – VIRGINIA BAR EXAMINATION
Following a business dispute, Mike sued Trey in the Circuit Court for the City of Bristol, Virginia for breach of contract, claiming damages in the amount of $250,000. Mike filed an appropriate request for a jury trial. The trial commenced on June 20.
During voir dire, the judge allowed wide latitude to both sides in questioning the jury panel. In questioning Reba, it was revealed that she was Trey's sister. Mike moved to strike Reba for cause. The judge denied the motion, and noted Mike's objection. Mike's lawyer then used one of his peremptory challenges to strike Reba.
In questioning Page, it was revealed that he was a partner with Trey in a business that was unrelated to the business involved in the current lawsuit. Page admitted that he had talked to Trey about the subject matter of the lawsuit and was very familiar with the facts in dispute. When asked if he would benefit in any way if the jury were to return a verdict in favor of Trey, Page responded, "Not directly, but it might free up some money that Trey could then invest in our partnership." Mike's lawyer moved to strike Page for cause. The judge denied the motion, noting Mike's objection. Again, Mike's lawyer used one of his peremptory challenges to strike Page.
During his questioning of the panel, without objection from Mike's lawyer, Trey's lawyer prefaced many of his questions with remarks such as, "Do you think this carpetbagger coming from upstate will affect your judgment?" "Does it bother you that Mike is asking you as residents of Bristol to find against one of your fellow residents?" "Mike comes to town with this high-priced lawyer from upstate to try to scare you into believing Mike's cock and bull story."
At the conclusion of the trial, the jury returned a verdict in favor of Trey. On July 1, the judge entered a final judgment on the verdict. Thirty days later, on July 31, Mike filed a motion in the Circuit Court to set aside the verdict on the ground that the evidence did not support the verdict. The judge declined to entertain the motion.
Later the same day, Mike filed a notice of appeal in the Circuit Court, specifying that he intended to take his appeal to the Court of Appeals of Virginia, where he subsequently timely filed his petition for appeal. The grounds on which Mike based his appeal, were that the Circuit Court erred by (i) denying his motions to strike Reba and Page from the jury for cause, and (ii) allowing Trey's lawyer to ask the jury panel questions (which were set out in detail in Mike's brief) calculated to "poison their minds and create unfair bias." Trey immediately filed a motion requesting the Court of Appeals to dismiss Mike's appeal.
(a) Did the circuit judge err in declining to entertain Mike's motion to set aside the verdict? Explain fully.
(b) Should the Court of Appeals dismiss Mike's appeal? Explain fully.
(c) If Mike's appeal were properly before an appellate court, how would the court be likely to rule on each of the grounds asserted by Mike? Explain fully.
FEBRUARY 2014 - QUESTION 6 – EXAMPLE ANSWER #1
Because Mike filed a motion to set aside the verdict after the trial court lost jurisdcition i.e. beyond the 21 day period cited below, it was proper for the judge not to entertain that motion.
After entry of a final judgment a case rests in the Breast of the Court for 21 days during which time the trial court judge may suspend, vacate or modify said ruling. After the 21 day period the trial court loses and has no further jurisdiction over the matter.
Motions made in an untimely fashion will not be entertained by the court.
The Court of appeals should not dimss Mike's appeal for it was directed to that particular court in error--and shall be transferred to the proper court of appeal--in this instance being the Va Supreme Court.
The Va Court of Appeals hears primarily disputes in the final judgment of cases in the domestic court and those in the Workers Compenstation arena. If this court receives a mistakenly send appeal--it shall see that the appeal is transferred to the apporopriate court--the Va Supreme Court. To dimiss such a case would not be appropriate. For that reason, this appeal is not to be dimissed- -but instead placed in the court to which is properly should be heard by--the Supreme Court of Virginia.
Proper appeal procedure is to notice the trial court of appeal within 30 days and sending copy of said notice to opposing counsel--indicating whether a transcript has been ordered or whether a written statment of the facts is to be used--said transcript must go the trial court clerk witin 60 days (or 55 if written and not transcribed) and it is this clerk who builds the record. An appeal brief must be sent within 3 calendar months. If the appeal petiton is granted then a $500 appeal bond will need to be placed.
On appeal to the proper court--here being the Supreme Court of VA, not the Appeals Court, Mike will succedd in part and not succeed in part.
On appeal Mike will succeed in showing there was error on the part of the trial court in its handling of his premptory strikes of jurors Reba and Page. On appeal Mike will not succeed in an attempt to assign error in the trial court's handling of or lack there of of the language and manner of Trey's voir dire/questiong in of the panel of prosepective jurors.
(i) Reba and Page were jurors who it was proper for Mike to strike premptorily. A lawyer in a civil case, such as this one for breach of contract and resultant damages, may strike 3 jurors for no reason at all during voir dire. In no case shall race or gender play part of this strike--for teh court is a government body and shall not discriminate on race or gender. Reba was a juror it was proper to strike as a family member shall not sit on a jury of a family member. Page was a juror properly struck for Page has pecuniary interest in the defendant's outcome. Reasons cited here as to Reba and Page show that striking these two juror was for cause and it was an error for the court not to grant Mike the motion to strike each for cause. Making Mike use 2 of his 3 premptory strikes may have prejudiced his ability to ensure his client the best postured jury for the case to be heard by.
(ii) Mike should have preserved his objection to the line of inquiry and approach taken in Trey's lawyers questions of the jurors but as he did not it is difficult to take issue with that after the fact. On appeal the court needs a record to work with--and part of the record is an objection that is made and the courts response--without such a record--assigning error is made impossible.
In summary of question 6. (c) as above, Mike will succeed only in part in an appeal of the proceeding in the trial court relating to the empaneling of the jury.
FEBRUARY 2014 - QUESTION 6 – EXAMPLE ANSWER #2
a. The circuit judge did not err in declining to entertain Mike's motion to set aside the verdict. Mike's motion was not timely filed.
In Virginia, a final judgment will remain "in the breast of the court" for 21 days following the entry of the final order. During that time, a party may make several motions for reconsideration, modification or revocation of the order. The party must file the motion within 21 days, and the court must make its decision on the motion within the time period, as well. If the party does not timely file, the original order is considered final and the court no longer has jurisdiction to entertain any such motions.
Here, the court entered its final judgment on the verdict on July 1. The facts state that Mike did not file his motion to set aside the verdict until thirty days later. Thus, he did not timely file the motion, and because the court lacked jurisdiction at that point in time, it correctly declined to entertain Mike's motion.
b. The Court of Appeals should not dismiss Mike's appeal. In Virginia, a party must appeal a lower court decision within 30 days of the final judgment. Here, although Mike filed on the last possible day, he still timely filed, since his notice was filed on July 31. The notice of appeal must be filed in the trial court; because Mike filed his notice in the Circuit Court for the City of Bristol, the notice was properly filed.
The issue here is whether Mike's failure to petition to the correct court will be fatal to his appeal. The facts state that the original case was tried in a Virginia Circuit Court. Therefore, it should be appealed to the Supreme Court of Virginia, rather than to the Court of Appeals. Although there are some types of cases that may be appealed from a Circuit Court to the Court of Appeals, this case does not fall within any of those exceptions. Thus, the appeal should have been filed with the Supreme Court of Virginia. Despite this mistake, however, it is unlikely that Mike's appeal will be dismissed. It is more likely that the court will simply correct the mistake and direct his appeal to the Supreme Court of Virginia instead, or upon motion, grant Mike leave to amend the petition to name the correct court. Under the rules, Mike need not file his petition for appeal until sometime within three months of the filing of the notice. Since he has already filed it, he still has time to motion for leave to amend. Therefore, if necessary, he may make a motion to the court to amend the pleading and correct his mistake before the three month period concludes. Since such motions are typically liberally granted, it is likely his motion would be granted.
Either way, because Mike timely filed, he is likely to be granted an appeal despite the fact that he filed the petition in the wrong court. Moreover, since the facts do not otherwise state, we will assume that he followed all of the other requirements for appeal, such as the payment of the $50 filing fee, the notice of his intent to file a transcript or any other documents from the trial court, and his request for oral argument or briefing.
c. Once an appeal is properly before the appellate court, the court will consider issues that were both preserved in the lower court, and issues that were asserted in the assignments of error in the appellant's petition for appeal.
The court will likely rule on Mike's first ground that denying his motions to strike Reba and Page from the jury for cause was inappropriate, because Mike preserved that issue in the trial court. The facts state that after the judge denied Mike's lawyer's motion to strike both Reba and Page for cause, the judge noted Mike's objection. Thus, it appears that Mike timely objected to both rulings and his objection was preserved in the record. Assuming that Mike also properly included his claims in the assignments of error in his petition for appeal, then the court is likely to entertain this argument.
The court will likely rule in Mike's favor. Here, the trial judge committed an error by allowing Reba and Page to serve as jurors. Virginia law allows a party to strike an unlimited amount of jurors for cause. Sufficient "cause" can include reasons such as apparent impartiality on the part of the juror, or some type of relationship with a party or familiarity with the case that would cause the juror to act in a biased manner.
Here, the facts state that Reba is Trey's sister, a relationship which raises a presumption of bias. Assuming they have a good relationship, it is highly likely that Reba would be inclined to support a verdict in favor of her brother. Moreover, she may have been privy to information regarding the contract or the dispute prior to the trial. Therefore, it is highly unlikely that she could in any way serve as an impartial juror. Mike's motion to strike her for cause is reasonable and should have been upheld by the judge.
There is also reasonable "cause" to justify Mike's motion to strike Page as a juror. Page is a current business partner of Trey's. Though the business is unrelated to the business in the lawsuit, the fact that they are business partners raises a presumption that Page has Trey's best interests in mind (since he or the partnership may be indirectly benefitted). Additionally, Page admitted he discussed the lawsuit with Trey and was very familiar with the facts in dispute; therefore, he is likely to come into the trial with a bias based on the one-sided knowledge of the case he has already gained. Finally, Page also admitted that he could stand to benefit, albeit indirectly, from a verdict in Trey's favor. Therefore, it seems unreasonable that the judge could not find that Mike had good cause to move to strike Page as a juror.
Trey may argue, or the court may consider, the fact that Mike was still able to use his peremptory strikes to remove Reba and Page from the jury, and therefore did not suffer any injury. However, this is a weak argument, as Mike's use of peremptory strikes on Reba and Page precluded him from using those strikes (which are limited in number to three) on other jurors he may have wished to exclude.
Thus, the court is likely to hear Mike's argument with respect to the motion to strike Page and Reba as jurors, and will likely rule in his favor.
However, the court is unlikely to hear Mike's argument regarding the questions that Trey's lawyer asked of the jury. As explained above, to bring a proper appeal, the appellant must have preserved his objection in the record in the lower court. Here, the facts state that Trey questioned the jury "without objection from Mike's lawyer." Thus, absent any other facts, it appears Mike's lawyer did not properly preserve the objection and the appeals court will not entertain this claim.
If the court did hear this argument, it is likely to rule in favor of Mike. Trey's questions are inappropriate; they are likely to incite bias in the potential jurors, and they are extremely opinionated. Thus, had Mike properly objected in the trial court, it seems that he would have won his argument on appeal.