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Appellate courts finding more procedural defaults

“This is not a game of ‘Gotcha,’ ” insisted Senior Virginia Supreme Court Justice Elizabeth B. Lacy. “We want to deal with substantive issues.”

But she acknowledged that the two state appellate courts are refusing to address more and more of those issues because of procedural defaults. She said she didn’t know whether the blame lay with sloppier lawyering or increased pickiness by the courts.

Lacy said one factor is that the appellees “are doing a better job of scouring the record” to emphasize the defaults.

Whatever the reason, “We can’t just blink and pretend it didn’t happen,” she said. “I can assure you it’s not going to go away.”

Lacy offered the comments Friday at a program at the Virginia State Bar annual meeting on “The Bermuda Triangle of New Litigation Pitfalls – Sanctions, Waivers and Pleadings.”
By Alan Cooper

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