It has been a year since I tried what I affectionately refer to as my leaky basement case to a jury. On behalf of my client, I sued a home seller for common law fraud and two violations of the Virginia Consumer Protection Act (the “VCPA”). The case was tried by a jury, which is the most important civil right in both the Virginia and United States Constitutions.
Despite some overlap, these causes of action are very different in that one is a common law cause of action and another is a statutory cause of action. At trial, I argued that the burden of proof for common law fraud is—without question—clear and convincing evidence, but the burden of proof for a violation of the VCPA is a preponderance of the evidence. The difference between these two burdens is great and heavily influences a jury’s decision on a case.
I liken these burdens to a game of football where a preponderance gets the football into your opponent’s territory by one yard and clear and convincing gets you into field goal range. Both are less than beyond a reasonable doubt in criminal cases which is like the football slightly crossing the plane of the goal line for a touchdown.
The trial judge ruled that the burden of proof for both was clear and convincing evidence. After the jury returned a verdict for the defense, my client filed her notice of appeal in the trial court and, then, her petition for appeal in the Supreme Court of Virginia. The Defendant replied to the petition for appeal and I argued for a writ back in December 2014. The Supreme Court decided that the issue is one that needs to be decided in Virginia and took the case.
Then, I filed an opening brief providing legal support for my position and to my surprise, several other state and national organizations joined in on an amicus brief in support of my client’s position. Even the Attorney General of Virginia filed an amicus brief in my client’s favor. The Appellee filed its brief and now it is my turn to file a Reply Brief, which is due on Monday.
It has been one year after the jury trial on this case and we still do not have any resolution to the issue at hand. The Supreme Court will likely hear oral arguments on this case in April and if we win, the case will be remanded for retrial on the Consumer Protection Act claims.
I can honestly say that I have never known more about the VCPA than I do right now. I’ve always said that law school doesn’t teach you every sophisticated nuance about the law but it teaches you how to think like a lawyer and how to become an expert in the case at hand. I feel that is certainly true in this case. My hope is that it pays off for my client.
