7.24 Litigation: Appeals

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

7.24 LITIGATION: APPEALS

7.2401 In General. Perhaps the most important litigation rules governing defamation actions apply at the appellate level. These unique rules may result from the important constitutional issues commonly involved, which appellate courts seem to handle better than trial courts, and from the tendency of juries to find against defamation defendants. Litigants should always keep these special appellate rules in mind.

7.2402 Standard of Review.

A. In General. Two possible appellate standards of review apply in defamation actions.

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B. Constitutional Malice Issues. If the case raises constitutional malice issues, the appellate court must independently examine the entire record. ¹³¹⁹ This review must assess whether the evidence supports a finding of constitutional malice "by clear and convincing proof." ¹³²⁰ The Virginia Supreme Court sometimes determines that the record contains sufficient evi-dence ¹³²¹ and sometimes determines that it does not. ¹³²²

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. ¹³²³ The Virginia Supreme Court has applied this standard to awards of compensatory damages in private figure defamation cases. ¹³²⁴ The Virginia Supreme Court applies a de novo standard when reviewing questions of law ¹³²⁵ and a lower court's demurrer rul-ing. ¹³²⁶

D. Federal Courts' Standards of Review. Federal courts review lower court legal determinations de novo. ¹³²⁷

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

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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." ¹³²⁸

Although at least one circuit court had compared a jury verdict to earlier verdicts upheld by the Virginia Supreme Court, ¹³²⁹ in Government Micro Resources, Inc. v. Jackson, ¹³³⁰ the Virginia Supreme Court made it very clear that the court declines "to compare verdicts as a means to measure a verdict's excessiveness." ¹³³¹

C. Punitive Damages. Appellate courts have much 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." ¹³³²

The Virginia Supreme Court has taken this standard seriously. Although it has upheld punitive damage awards, ¹³³³ it has often reversed them. ¹³³⁴ 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." ¹³³⁵ Section 8.01-38.1 of the Virginia Code establishes a cap of $350,000 for punitive damages.

D. Virginia Trend. In the last decade, the Virginia Supreme Court seems to have moved toward an acceptance of large damage awards in defamation cases.

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In Ingles v. Dively, ¹³³⁶ 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, ¹³³⁷ the Virginia Supreme Court approved the trial court's remit-titur 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...