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Fourth Circuit Judge Advocates for “Unpublishing” Panel Opinion, Simultaneously Lauds and Criticizes the Court

Appellate practitioners are familiar with the concept of moving to have the court publish an opinion that was initially issued as “unpublished.”   Much rarer is the reverse situation, where a party seeks to have an opinion that was published “demoted” to unpublished status.  And perhaps even rarer is to have that request for  “unpublishing” made by a member of the Court.  In fact, the first and only

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West Virginia Redux (maybe)

As discussed in an earlier blog post, every member of the current West Virginia Supreme Court got into some type of trouble.  According to the American Bar Association Journal’s Weekly Newsletter, Associate Justice Beth Walker, impeached by the West Virginia House, was acquitted by that state’s Senate on a vote of 31-1.

My initial impression is that this outcome is heartening.  Its near-unanimity indicates that the state’s Senate reached

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Court of Appeals: Magic Words Still Have Their Place in Med-Mal Actions

The Court of Appeals again reminded medical-malpractice litigants this week of the importance of including certain magic words about expert review in the complaint. In Fairfield v. WakeMed et al., the Court reconfirmed strict compliance with the heightened pleading standard in medical malpractice cases and affirmed the trial court’s dismissal of an action for straying too far from the language required by Rule 9(j).

Wait, didn’t we just write

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The Plot Thickens: Differing Opinions on No-Merit Briefs

Back in July, the Court of Appeals issued a published opinion in In re L.V. dismissing an appeal from an order terminating parental rights after the parent’s attorney filed a no-merit brief. The parent filed a motion for en banc rehearing, pursuant to new Appellate Rule 31.1, but the motion was denied. After the rehearing motion was filed, the court did modify the opinion slightly to correct quotation of

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Dissent Into The Maelstrom


Something not seen in recent years emerged in a recent opinion from the Court of Appeals.  In State v. Thabet, COA17-1417 (unpublished) (September 18, 2018), the majority held that defendant’s roadside request for “a breathalyzer” was the equivalent of a request for a Portable Breath Test and that the trial court did not err in denying defendant’s motion to suppress evidence of his impaired driving.

Nothing remarkable here until

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