7.24 Litigation: Appeals

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.24 LITIGATION: APPEALS

7.2401 In General.

Important litigation rules governing defamation actions also apply at the appellate level. Litigants should always keep these rules in mind.

7.2402 Standard of Review.

A. In General.

Two possible appellate standards of review apply in defamation actions.

B. Constitutional Malice Issues.

If the case raises constitutional malice issues, the appellate court must independently examine the entire record. ⁵⁰³² This review must assess whether the evidence supports a finding of constitutional malice "by clear and convincing proof." ⁵⁰³³ The Virginia Supreme Court sometimes determines that the record contains sufficient evidence of malice ⁵⁰³⁴ and sometimes determines that it does not. ⁵⁰³⁵

C. No Constitutional Malice Issues.

If the case does not involve constitutional malice, appellate courts follow the "plainly wrong" standard of section 8.01-680 of the Virginia Code. ⁵⁰³⁶ The Virginia Supreme Court has applied this standard to awards of compensatory damages in private figure defamation cases. ⁵⁰³⁷ The Virginia Supreme Court applies a de novo standard when reviewing questions of law ⁵⁰³⁸ and a lower court's demurrer ruling. ⁵⁰³⁹

D. Federal Courts' Standards of Review.

Federal courts review lower court legal determinations de novo. ⁵⁰⁴⁰

7.2403 Damages.

A. In General.

Virginia appellate courts also follow a dual approach to damages depending on the type of damages awarded.

B. Compensatory Damages.

Although there must be some correlation between the jury award and the injuries the plaintiff suffered, an appellate court generally will overturn an award of compensatory damages only if the amount is "so excessive as to shock the conscience" or creates the impression that the jury was "influenced by passion or prejudice." ⁵⁰⁴¹

At least one circuit court compared a jury verdict to earlier verdicts upheld by the Virginia Supreme Court, ⁵⁰⁴² but in Government Micro Resources, Inc. v. Jackson, ⁵⁰⁴³ the Virginia Supreme Court made it very clear that the court declines "to compare verdicts as a means to measure a verdict's excessiveness." ⁵⁰⁴⁴

C. Punitive Damages.

Appellate courts have more discretion over punitive damage awards than over compensatory damage awards. The Virginia Supreme Court has indicated that a review of a punitive damage award should include "consideration of reasonableness between the damages sustained and the amount of the award and the measurement of punishment required, whether the award will amount to a double recovery, the proportionality between the compensatory and punitive damages, and the ability of the defendant to pay." ⁵⁰⁴⁵

The Virginia Supreme Court has taken this standard seriously. Although it has upheld some punitive damage awards, ⁵⁰⁴⁶ it has often reversed them. ⁵⁰⁴⁷ As the court has explained, "[t]he amount of punitive damages awarded should bear some reasonable relationship to the actual damages sustained and to the measure of punishment required." ⁵⁰⁴⁸ Section 8.01-38.1 of the Virginia Code establishes a cap of $350,000 for punitive damages.

D. Virginia Trend.

In the last three decades, the Virginia Supreme Court has accepted large damage awards in defamation cases. But given courts' key role in defamation cases, it is not surprising that courts have sometimes used their remittitur power to reduce a damage award. ⁵⁰⁴⁹

In Ingles v. Dively, ⁵⁰⁵⁰ the jury awarded $50,000 in compensatory damages and $100,000 in punitive damages. The Virginia Supreme Court reversed both awards and remanded for a new trial. In Williams v. Garraghty, ⁵⁰⁵¹ the Virginia Supreme Court approved the trial court's remittitur of $100,000 of $125,000 in punitive damages based on the defendant's $30,000 annual salary and the fact that her only "substantial asset" was a one-half interest in a house purchased for $29,500 approximately 18 years before the trial. ⁵⁰⁵²

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