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Pamela A. MacLean

The National Law Journal

10-11-2007

As if E. Duncan Getchell Jr.'s nomination to the 4th U.S. Circuit Court of Appeals wasn't already struggling just a month out of the gate, now a Virginia newspaper reports a clerical error that cost a client an $8 million jury verdict could be tagged to Getchell or his firm, McGuireWoods.

Although it is still unclear who was responsible, someone failed to file a trial transcript in an appeal of the $8 million case stemming from a ski accident at Wintergreen Resort, near Charlottesville, Va.

Getchell and his prominent Richmond, Va., firm took over the appeal after the 2004 verdict. He reportedly signed a notice of appeal stating, inaccurately, a trial transcript had been filed, according to the Virginian-Pilot.

The insurance company that paid the money is not suing Getchell or his firm for its return. Instead, the insurer is suing the trial attorney, Christopher Spencer, and his Minneapolis law firm, Bowman & Brooke, in a malpractice dispute, in Wintergreen Partners v. Bowman & Brooke, CL07-3578-1, but could still add Getchell and McGuireWoods.

William Allcott, a spokesman for the McGuireWoods firm, said the facts are as represented in the malpractice suit. Although McGuireWoods was brought in on appeal, the trial counsel was responsible for the transcript and had it in their offices. Getchell declined to comment.

President George W. Bush nominated Getchell, 57, for a seat on the 4th Circuit, even though his name was not among five consensus candidates recommended by Democratic Sen. Jim Webb, D-Va., and John W. Warner, R-Va. This prompted immediate criticism from Webb that he and Warner "have been ignored." With the Democrats in control of the Senate, a single home-state senator's opposition can leave the nominee dangling without action on the vacancy.

Carl Tobias, University of Richmond Law School professor, said the kind of clerical error in the Virginia case happens from time to time but is not the sort of thing that, alone, would keep a nominee off the court.

McGuireWoods is one of the pre-eminent law firms in Virginia and Getchell has been an appellate attorney for some time, Tobias said. Getchell currently chairs the firm's appellate practice team and is a member of the conservative Federalist Society.

His practice consists generally of corporate defense work, representing Fortune 500 firms, the state and local governments in complex appeals. His appellate cases have including upholding Virginia's medical malpractice cap and the constitutionality of the state's redistricting law. He has also litigated election law and voting rights cases.