Virginia Lawyers Weekly

Litigation over a blown deadline in the appeal of an $8.3 million judgment has expanded to four lawsuits in state and federal court.

The focus of all the cases is whether Christopher C. Spencer and his former law firm, Bowman and Brooke LLP, or E. Duncan Getchell Jr. and his firm, McGuireWoods LLP, was responsible for filing trial transcripts with Albemarle County Circuit Court and the Supreme Court of Virginia.

The logical answer would appear to be both. Spencer represented Wintergreen Partners Inc., which operates the Wintergreen resort in Nelson County, against the claim of a brain-damaged skier. With a seven-figure verdict or a finding of contributory negligence strong possibilities in the case, both sides expected an appeal, however the jury decided.

As a result, Wintergreen’s insurers, subsidiaries of American International Group Inc., retained Getchell and McGuireWoods to provide a second set of eyes in the courtroom. After the jury returned its verdict, Getchell and McGuireWoods filed post-trial motions and Getchell argued them.

All papers filed after the verdict had the names of Spencer, Getchell and their respective law firms on them.

Spencer asserts that a meeting occurred in September 2004 after the hearing on post-trial motions at which he insisted that one firm should be entirely responsible for handling the appeal to avoid the possibility of a missed deadline. Getchell agreed and took full responsibility for the appeal, Spencer alleges.

McGuireWoods, on the hand, contends that Spencer had the original copy of the trial transcript and ultimately filed it, albeit much too late. The Supreme Court of Virginia refused to hear the appeal because of the late filing of the transcript.

Surface logic did not prevail in the initial filing of a legal malpractice suit by Wintergreen and the insurers. They filed suit only against Spencer and his firm in July 2007 and waited almost a year to serve it. Before doing so, they amended the complaint in July to add McGuireWoods as a defendant.

The blown appeal and the lawsuit became a political issue after President George W. Bush nominated Getchell in September 2007 for a vacancy on the 4th U.S. Circuit Court of Appeals.

A reporter for The Virginian-Pilot learned of the blown appeal and asked the White House and Getchell for comment. Getchell made no direct response, but the White House told the reporter that it stood by its support of Getchell and referred him to the legal malpractice suit against Spencer.

Spencer then filed the first of what are now three defamation lawsuits, this one in Richmond Circuit Court, in November. He named as defendants Getchell and William Allcott, a McGuireWoods attorney who is executive vice president and director strategic communications at McGuireWoods Consulting LLC, the firm’s lobbying and public relations arm.

Spencer alleges that Allcott communicated with the White House on Getchell’s behalf and was therefore responsible for its response that the lawsuit was accurate when Allcott and Getchell knew it falsely accused him of being responsible for the blown deadline. Spencer sent an e-mail to The Virginian-Pilot reporter denying any responsibility for the error but did not mention Getchell or McGuireWoods.

The complaint also contends that Getchell and Allcott took those steps because Getchell was aware that he faced an uphill battle to win Senate confirmation for the 4th Circuit seat.

Although Republican senators John Warner and George Allen had recommended Getchell for a vacancy before the 2006 elections, the

political landscape changed when Democrat Jim Webb defeated Allen.

Warner and Webb subsequently submitted a list of candidates for the 4th Circuit post that did not include Getchell. Webb reacted angrily to the nomination of someone not on the list, and Getchell withdrew his name. Bush since has appointed one candidate from the Warner-Webb list, former Virginia Supreme Court Justice G. Steven Agee, to the 4th Circuit.

Spencer’s suit survived demurrers that argued that Getchell could not be liable because he never made any public statement about Spencer. Spencer on the other hand invited comment with his statement to The Virginian-Pilot reporter, the demurrers contended. They also argued that the article could not be viewed as defamatory because it was based on an accurate report of the allegations in the lawsuit.

Judge Melvin R. Hughes Jr. rejected those arguments and has set the case for trial in June.

Spencer upped the ante substantially in September when he filed a second defamation case in Richmond Circuit Court and a third in U.S. District Court. The state action names as defendants McGuireWoods and John S. Barr, the attorney there who serves as the firm’s general counsel.

The federal defendants are AIG and three subsidiaries; James Maddiona, identified in the complaint as a senior AIG officer; and Washington attorney Patrick M. Regan and the firm of Regan, Zambri & Long PLLC.

Regan and his firm filed the legal malpractice complaint against Spencer, and Spencer alleges that Regan defamed him in a conversation with The Virginian-Pilot reporter by saying that the insurer blamed only Spencer and his firm and that Wintergreen and AIG did not have enough information to support a claim against Getchell and McGuireWoods.

The most recent suits allege that Barr attempted to persuade Maddiona and his employer that they could not prove certain elements necessary for a legal malpractice claim and offered a goodwill payment to maintain McGuireWoods’ ongoing relationship AIG. Barr succeeded in persuading AIG and Maddiona to name only Spencer and his firm as defendants in the legal malpractice action, the suits allege.

The second state defamation suit has been consolidated with the first one for purposes of discovery. A trial date had been set for June 9 before the second suit was filed. The defendants in the federal case have filed motions for dismissal under Federal Rule of Civil Procedure 12(b)(6). No date has been set for a hearing on the Rule 12(b)(6) motions.

The trial date for the legal malpractice case is April 14. Hughes has ruled that the insurers cannot maintain a legal malpractice claim on their own but has allowed the case to go to trial on the claim by Wintergreen.

© Copyright 2010 Virginia Lawyers Media. All Rights Reserved.