ROANOKE—Virginia Supreme Court Justice Lawrence L. Koontz Jr., who retired Jan. 31, says lawyers should be on the lookout for what he sees as the court’s increasingly technical scrutiny of appeals.
Koontz said he has observed the court become gradually stricter on procedural issues, such as the need for explicit contemporaneous objection to preserve a point for appeal.
Koontz, now a senior justice, served on the high court for 15 years, and during his tenure he earned a reputation as “The Chancellor” on the court – a justice who would look to the equities of a case, not just the rote or strict law, and who would be willing on occasion to come down on the side of doing equity in a matter.
Speaking to the Roanoke Bar Association Tuesday, Koontz first described the trend toward technicality as “one of my disappointments.” He then said he may have used too strong a word, and labeled it a “concern.”
Koontz recalled his days on the circuit court bench when appeals were rare and “we used to do a lot of good legal work in chambers over a cup of coffee and a cigarette.”
“We got a lot of good work done off the record. That doesn’t fly anymore,” he said.
Koontz said lawyers often make succinct objections and motions at trial where the basis is clear from the context. “To say that does not advise the trial judge of the reason for the objection essentially makes the trial judge a potted plant,” Koontz said, drawing chuckles from his audience. “I strained over that for 15 years,” he said.
“You are going to find, I predict, more and more strict application of those rules,” Koontz said. “Whether we like it or not, in the present climate you must be absolutely sure that the record reflects what’s going on.”
Koontz, 71, spent most of his career in a robe. He was briefly an assistant commonwealth’s attorney before serving as a J&DR judge, a circuit judge, a member of the Court of Appeals (where he was Chief Judge) and the Supreme Court. Speaking of his 42 years on the bench, Koontz said, “It has not only been an honor and a privilege, but it has been fun.”
Koontz related the tribulations of his first day at court as a member of the Supreme Court. Preparing for the session, he inadvertently took the elevator to the dark, smelly sub-basement of the court building. He then unwittingly occupied the chair reserved for the chief justice in the robing area. After argument, he was critiqued for his expansive questioning of counsel at oral argument. Back upstairs, he broke an unwritten rule about colloquy in the justices’ conference (there wasn’t any).
Koontz said it took about five years to get comfortable with the court’s internal procedures, bearing out a prediction made by Senior Justice Henry H. Whiting as Koontz joined the court.
Koontz reported the no-debate rule for conferences of the justices has long since passed into oblivion. “Our conferences are lively and sometimes go on and on,” he said.
The gray areas of the law produce the most interesting debates, Koontz said. The concept of harmless error frequently occupies the justices at the writ panel stage. “We’ve had many, many discussions over harmless error,” he said.
Another focal point for debate was contributory negligence. Koontz recalled a 2001 appeal where he was on the losing side of a four-to-three split over whether an electrician had been negligent in an incident that led to his severe shock. Koontz authored the dissent, with the late Justice Leroy Rountree Hassell Sr. writing the majority opinion upholding a verdict for the electrician.
Koontz said Hassell did not let him forget their disagreement over electrical safety. “For years after that, in our debates, he would say, ‘Lawrence, I think you’ve got a good point even though you don’t know a damn thing about electricity.’”
Koontz described the respect he felt for his fellow justices in 1998 when the court had to decide a sympathetic case with difficult facts. The court took away a $15 million verdict for a baby injured when it fell through a window. Koontz wrote for a unanimous court, holding that a window screen maker could not be responsible for protecting people from falling through its screens.
“There was not a person on the court who didn’t want to find some way to let that issue be resolved by the jury,” Koontz said. “I walked away from that discussion as proud as I could be of the process.
It had nothing to do with the result. I was proud the court takes its work so seriously and will not bend just because its individual personal sympathies might be on the other side of the case.”
Koontz may have left the building. But unlike Elvis, he gets to return in person, not just in spirit. As a senior justice, he will still make the occasional guest appearance to hear and decide cases.