The Supreme Court of Virginia now says it will consider appeals from both sides of the Virginia Tech wrongful death trial.
The court has agreed to hear an argument from the families of two victims of the 2007 shootings that – if they prevail on appeal – could allow recovery of more than $100,000 each.
The two families won jury verdicts of $4 million each, but each award was capped at $100,000 under the Virginia Tort Claims Act.
The Supreme Court already had agreed to hear the state’s argument that the families were not entitled to any recovery because university officials owed no duty to warn of danger from a third party.
The court decided Thursday to also consider whether Virginia Tech president Charles Steger should have remained in the case. Trial Judge William Alexander ruled the families’ claim against Steger was barred because Steger had been sued in an earlier action that was dismissed.
With Steger as a defendant, the plaintiffs would have a chance to avoid the $100,000 cap of the VTCA.
The families had asked the Supreme Court to reconsider its earlier decision not to take up the Steger issue.
The original petition for appeal would have been considered only by a three-judge panel. The petition to reconsider went before the full court, with any judge having the ability to grant an appeal. The court’s order granting the writ does not reflect which justice, or justices, agreed to take up the Steger issue.
The families’ successful petition for rehearing highlights the choice facing a lawyer who fails to get a writ. Two Supreme Court justices had some advice Friday for lawyers considering a request for a second look.
A lawyer might worry about appearing a sore loser, but neither Chief Justice Cynthia D. Kinser nor Justice Elizabeth A. McClanahan suggested the lawyer’s reputation should be a consideration.
“I can’t think of any reason not to do it if you believe you have a reason to do it,” McClanahan said, addressing lawyers at the Virginia State Bar’s Solo & Small Firm Practitioner Forum in Abingdon.
McClanahan said the court does not keep any tally of which lawyers ask for rehearings, and the lawyer’s name does not appear on the cover page.
Kinser said a petition for rehearing after denial of a writ will bring the issue before the entire court, improving the odds of success, but she urged lawyers not to hide their best arguments deep in a brief.
“I think the important thing, if you’re going to file one, is you need to catch our attention in the first paragraph,” Kinser said. “We have so much to read, it’s really important to tell us right in the beginning why somebody should grant your petition.”