Is gross malpractice cause for rejecting a federal court nominee?

The U.S. Court of Appeals for the Fourth Circuit, widely considered the most conservative court in the federal intermediate appellate system, has five or so vacancies. But it’s difficult for a president to get a federal judiciary nominee through the Senate, which plays an “advice and consent” role as to such nominations, without the support (or at least the acquiescence) of the Senators from the nominee’s home state.

Virginia Senators John Warner (R) and Jim Webb (D) “submitted a list of five exemplary candidates to the White House” awhile back. Bush submitted two Fourth Circuit nominees to the Senate on September 6 and — surprise, surprise — none of the Warner/Webb candidates made the cut.

One of the nominees is a raving Federalist Society loon from South Carolina by the name of Steve A. Matthews. That guy warrants an entry all his own.

The Virginian that Bush nominated, and the subject of this entry, is E. Duncan Getchell, Jr. Mr. Getchell has spent the last thirty years fighting the good fight, defending the downtrodden insurance industry from the predatory attacks of the injured and upholding the God-given right of Republicans to draw the electoral map however they see fit. His conservative credentials are impeccable:

Mr. Getchell’s appellate cases include upholding the constitutionality of Virginia’s redistricting (Wilkins); upholding the constitutionality of the Virginia medical malpractice cap (Pulliam); having Virginia consumer finance laws declared unconstitutional (NHEMA); having punitive damages declared unconstitutional as applied (Hugo’s); obtaining dismissal of a case in the United States Supreme Court through a suggestion of lack of jurisdiction contained in an amicus brief (Sylvester); and obtaining a writ of prohibition against a trial court’s exercise of jurisdiction (In re City of Richmond). He has argued numerous products liability cases including one involving the meaning of Virginia’s seat belt statute (Brown).

In short, Getchell is exactly the sort of agenda-driven insurance industry zealot Shrub wants on federal courts. However, Bush’s flagrant disregard of Senators Warner and Webb portends troubled proceedings in the Senate.

Another potential sticking point is this colossal fuck-up. To make a long story short, a seventeen-year-old girl ended up brain damaged as a result of colliding with a snow grooming machine on the slopes of a Virginia ski resort. The girl and his father filed suit against the resort, and the liability carrier defended vigorously. The case went to trial in July 2004 and the resort lost spectacularly, $8.3 million of spectacular, to be precise.

The insurance company was less than pleased with trial counsel’s performance, so they brought in the big gun — Getchell — to run the show from there on. Getchell filed and argued the post-trial motions (for judgment notwithstanding the verdict, new trial, and/or remittitur, I suspect), which the trial judge denied in September 2004.

At that point the insurer’s only option was an appeal to the Virginia Supreme Court. The appealing party bears the burden of getting to the appellate court all the information needed to decide the appeal. In this case, that included a transcript of the trial.

Getchell signed and filed a timely notice of appeal stating that the trial transcript had already been filed. BUT NO! The transcript was never filed!

After expiration of the sixty-day deadline for filing the record on appeal, the Supreme Court notified the parties that a transcript was never filed and issued an order to show cause why the appeal shouldn’t be dismissed. Getchell filed a short response cryptically citing “miscommunication or misunderstanding” as the reason a transcript was never filed. Predictably, the Court dismissed the appeal and denied Getchell’s motion for reconsideration.

Finis. The $8.3 million judgment stands.

The insurance company is laying the whole mess in trial counsel’s lap, up to and including filing a legal malpractice claim against him. Meanwhile, the Bush administration is standing by their man:

A White House spokesman, Blair C. Jones, noted that the legal malpractice lawsuit does not name Getchell or McGuireWoods as defendants but specifically blames the trial lawyer for not filing the transcript.

“Mr. Getchell is a well-respected and accomplished appellate advocate who is highly qualified to serve on the U.S. Court of Appeals for the Fourth Circuit,” Jones said in an e-mail.

Sorry, Jonesy. The shit don’t work that way. Your boy Getchell was lead counsel at all relevant times. He personally signed the notice of appeal advising the Supreme Court that the transcript was already on file. He obviously did nothing whatsoever to confirm the veracity of that statement. (A quick phone call or look at the Court’s online docket would have done the trick.)

Under those circumstances, there’s no blaming an associate. There’s no blaming a paralegal. There’s no blaming a courier service. There’s no blaming trial counsel. Ultimate responsibility lies with Getchell alone. The fact that the insurance company chose not to sue their golden boy is wholly irrelevant.

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  • illusory tenant  On October 9, 2007 at 4:48 pm

    Landmark Legal Foundation (Former officer and Board member)

    And he’s proud of this? For most lawyers, that would be like listing drunk driving convictions, or NAMBLA membership, on their résumés.

  • genghishitler  On October 9, 2007 at 5:10 pm

    It’s all a matter of perspective, I suppose. NAMBLA membership likely falls somewhere between a badge of honor and a sine qua non in the insular, sociopathic world of grown men who get off molesting little boys. So it is with Landmark affiliation and the insular, sociopathic world known as the Bush administration.

  • Clutch  On October 10, 2007 at 10:03 am

    Landmark is the bunch of… one can only assume pranksters, who apparently nominated Rush Limbaugh for the Nobel Peace Prize this year.

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