Justice Ketchum: A Practical Approach To Law

by

David A. Stackpole1

Farrell, White & Legg PLLC

1 David A. Stackpole is an associate at Farrell, White & Legg PLLC. Mr. Stackpole‟s interest in appellate work, including the effect that each justice has upon the Court, began while he was a law student at the West Virginia University College of Law. During his time in law school, Mr. Stackpole argued before the Supreme Court of Appeals of West Virginia as part of a Moot Court Competition where he was awarded the Baker Cup. Mr. Stackpole‟s passion for appellate work has continued to grow since joining Farrell, White & Legg PLLC, where he is part of the Appellate Advocacy team. Mr. Stackpole‟s appellate work includes drafting amicus curiae briefs. Farrell, White & Legg PLLC has a long history of appellate work before the Supreme Court of Appeals of West Virginia from its office in Huntington, West Virginia. © David A. Stackpole http://www.farrell3.com

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INTRODUCTION

It is important to know your audience. Whether your audience is a particular Circuit

Judge, a jury, or an appellate court, knowing your audience can make the difference in your ability to be persuasive.

This article is an attempt to help acquaint the reader with the newest member of the

Supreme Court of Appeals of West Virginia. On November 4, 2008, Justice Menis Ketchum was elected to a twelve year term on the Supreme Court of Appeals of West Virginia.2 He was born in 1943.3 He attended Ohio University and West Virginia University College of Law.4

From 1967 until his election in 2008 to the Supreme Court of Appeals of West Virginia, Justice

Ketchum practiced law in Huntington, West Virginia at the firm of Greene Ketchum.5

As of April 15, 2011, Justice Menis Ketchum has authored fifty-five (55) opinions as a justice on the Supreme Court of Appeals of West Virginia. In thirty-one (31) of the opinions,

Justice Ketchum wrote the majority opinion; in seventeen (17) of the opinions, Justice Ketchum wrote a dissenting opinion; and in nine (9) of the opinions, Justice Ketchum wrote a concurring opinion.6

Although all of a justice‟s opinions are important in understanding his or her judicial philosophy, the scope of this article is limited to Justice Ketchum‟s dissents, not including his

2 Justice Workman was also elected to a twelve year term at the same time. Because Justice Workman has been on the Court previously, her judicial approach is well known. This article focuses on Justice Ketchum as the newest member of the Court.

3 Justice Ketchum‟s bio at http://www.state.wv.us/wvsca/ketchum.htm (last accessed Dec. 22, 2010).

4 Id.

5 Id.

6 At first blush, it may appear that I have made a mathematical error (31 majority opinions + 17 dissenting opinions + 9 concurrences should equal 57 total opinions). However, in two (2) opinions, Justice Ketchum concurred in-part and dissented in-part and so, I have included the two (2) opinions in both categories (concurrences and dissents). This footnote is dedicated to my seventh grade math teacher who always made me “show my work.”

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two partial dissents/partial concurrences. While a justice‟s opinions when writing for the majority may provide insight as to that justice‟s judicial philosophy, it is a justice‟s dissents that set him or her apart from the majority and helps to distinguish his or her judicial philosophy.

This article will walk through each of Justice Ketchum‟s dissents in an attempt to determine what sets Justice Ketchum apart from the majority and will then draw conclusions from the same.

FIFTEEN DISSENTS IN LESS THAN FIVE TERMS

To date, Justice Ketchum has authored fifteen (15) dissents, not including his two (2) partial dissents/partial concurrences (Spring Term 2009 – 1 dissent; Fall Term 2009 – 1 dissent;

Spring Term 2010 – 7 dissents; Fall Term 2010 – 4 dissents; Spring Term 2011 – 2 dissents as of

April 15, 2011).

A. Spring Term 2009

Justice Ketchum authored one (1) dissent during the spring term of 2009. The dissent was in a lawyer disciplinary matter. In Lawyer Disciplinary Bd. v. Brown,7 the majority annulled an attorney‟s law license because of his misappropriation of client funds in the amount of

$7,980.00.8 The attorney argued unsuccessfully that his cocaine addiction was a mitigating factor, similar to alcohol addiction.9 Justice Ketchum would have applied the Lawyer

Disciplinary Board‟s recommendation as the attorney “has since sought treatment and has straightened up his life.”10

7 223 W. Va. 554, 678 S.E.2d 60 (2009).

8 Brown, 223 W. Va. at 561, 678 S.E.2d at 67.

9 Brown, 223 W. Va. at 559-60, 678 S.E.2d at 65-6.

10 Brown, 223 W. Va. at 562, 678 S.E.2d at 68.

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B. Fall Term 2009

Justice Ketchum authored one (1) dissent during the fall term of 2009. It was in a civil case. In L.H. Jones Equip. Co. v. Swenson Spreader LLC,11 the majority interpreted the West

Virginia Farm Equipment Dealer Contract Act as extending “to „dealers‟ and „suppliers‟ of

„farm, construction, industrial or outdoor power equipment or any combination.‟”12 Justice

Ketchum‟s dissent focused on the fact that Swenson Spreader does not deal in farm equipment, but rather makes salt spreaders for highway use.13 Justice Ketchum reasoned that because the title of the Act‟s title only mentions farm equipment, a company that makes salt spreaders for use on the highways is not put on notice that the statute applies to salt spreaders:

[I]t is difficult to conceptualize why a person searching through our statutory indexes to determine the law relating to their highway salt spreading business would understand that an Act titled “Farm Equipment Dealer Contract Act” could apply to highway salt spreaders. . . . I submit that Swenson‟s lawyers will now have to read this State‟s entire chapter entitled and indexed as “school law” to be sure that there is no paragraph within relating to highway salt spreaders.14

C. Spring Term 2010

Justice Ketchum authored seven (7) dissents during the spring term of 2010. Three (3) dissents were in criminal cases, one (1) was a petition for a writ of prohibition, and three (3) were in civil cases.

In State ex rel. Marshall County Comm'n v. Carter,15 the majority denied a writ of prohibition in an employment discrimination matter involving a blind man who applied for an

11 224 W. Va. 570, 687 S.E.2d 353 (2009).

12 L.H. Jones Equip. Co., 224 W. Va. at 576, 687 S.E.2d at 359.

13 Id.

14 L.H. Jones Equip. Co., 224 W. Va. at 576-77, 687 S.E.2d at 359-60.

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advertised telecommunications operator position.16 The man alleged discrimination and sought audio recordings of the executive session of the commission in discovery.17 The commission claimed privilege based on [1] attorney/client privilege, [2] work product doctrine, and [3] executive session privilege.18 The ALJ ordered the audio recording to be produced for in camera inspection.19 The commission sought a writ of prohibition for the in camera inspection.20 The majority found that an in camera inspection was proper, even for an ALJ whose function involves findings of fact, for claims of attorney/client privilege and work product doctrine.21 The majority also refused to recognize an executive session privilege.22 Justice Ketchum dissented on the basis that he would have found that an executive session privilege existed.23 He reasoned

“that governmental bodies cannot operate effectively if their executive session (closed session) discussions are subject to lawsuits”; that if the legislature intended to the executive session to be discoverable, then minutes would be required; that “no vote or action can be taken in executive session”; and that a person should be equitably estopped where he or she failed to request an open meeting.24

15 225 W. Va. 68, 689 S.E.2d 796 (2010).

16 Carter, 225 W. Va. at 70, 689 S.E.2d at 798.

17 Id.

18 Carter, 225 W. Va. at 72-6, 689 S.E.2d at 800-04.

19 Carter, 225 W. Va. at 71, 689 S.E.2d at 799.

20 Id.

21 Carter, 225 W. Va. at 72-4, 689 S.E.2d at 800-02.

22 Carter, 225 W. Va. at 76, 689 S.E.2d at 804.

23 Carter, 225 W. Va. at 77-8, 689 S.E.2d at 805-06.

24 Id.

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In State v. Rash,25 the majority found that joinder of claims was proper despite the extended time frame (eleven years) between the alleged sexual misconduct involving the first victim and the alleged sexual misconduct involving the second victim.26 The defendant unsuccessfully argued that severance was proper because of the eleven year time period between the alleged acts and because joinder would was unfairly prejudicial.27 Justice Ketchum dissented based on the amount of time between the alleged acts.28 His concern is that a jury may view the evidence as demonstrating that the defendant is a “bad man” and convict him on that basis:

“[p]rosecutors should be required to prosecute a defendant for crimes committed but not allowed to throw in „kitchen sink‟ charges which are not temporally related in order to show bad character.”29

In Roth v. Defelicecare, Inc.,30 the Complaint set forth allegations of an employee who arrived at work to find her boss and another employee in a state of undress and “in a compromised position.”31 The Complaint further alleged that she was instructed to tell no one about what she saw and that she complied with that request, but was fired nonetheless for the style of her clothing and her hair color.32 The majority overturned the lower court‟s dismissal for failure to state a claim and held that the plaintiff would need to “develop sufficient facts in order ultimately prevail” on her claims of hostile work place, wrongful termination, employment

25 ___ W. Va. ___, 697 S.E.2d 71 (2010).

26 Rash, ___ W. Va. at ___, 697 S.E.2d at 82.

27 Rash, ___ W. Va. at ___, 697 S.E.2d at 77-80.

28 Rash, ___ W. Va. at ___, 697 S.E.2d at 86.

29 Id.

30 ___ W. Va. ___, 700 S.E.2d 183 (2010).

31 Roth, ___ W. Va. at ___, 700 S.E.2d at 187-88.

32 Id.

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discrimination, and intentional infliction of emotional distress, but that she did not plead sufficient facts for a claim of retaliatory discharge.33 Justice Ketchum dissented on the basis that the plaintiff failed to plead sufficient facts to state a cause of action for any of her claims:

The detailed facts in the complaint do not allege that the defendant's firing of plaintiff Tricia Roth was because of her gender, or because she was a victim of or threatened to report unwanted sexual advances, or because she engaged in a protected activity, or that the defendant's misconduct violated a state law, or that the plaintiff's discharge itself took place in an intolerable or outrageous manner. The complaint merely alleges that she stumbled upon her boss and another employee in a sexually compromising position in the office, and then later got fired. While her discovery of this sexual escapade was unfortunate, it does not prohibit her later termination as an at-will employee, no matter how ridiculous Mr. DeFelice's stated reasons for her termination were.34

In State v. McLaughlin,35 three (3) questions were certified to the Court regarding a bifurcated criminal trial process: [1] whether during the penalty phase of a criminal trial the burden is improperly shifted to the defendant; [2] whether the jury must be the same jury for both the guilt and the penalty phases of the trial; and [3] whether the prosecution is limited in the penalty phase to evidence admitted in the guilt phase of the trial and rebuttal evidence.36 The majority held that: [1] “[t]he provisions of West Virginia Code § 62-3-15 (2005) do not place a burden of proof on either the State or the defendant for the mercy phase of a first degree murder trial where that phase is bifurcated”;37 [2] “[t]he provisions of West Virginia Code § 62-3-15

(2005) do not require that the jury that decides the guilt phase of a first degree murder case must

33 Roth, ___ W. Va. at ___, 700 S.E.2d at 188-95.

34 Roth, ___ W. Va. at ___, 700 S.E.2d at 195.

35 ___ W. Va. ___, 700 S.E.2d 289 (2010).

36 McLaughlin, ___ W. Va. at ___, 700 S.E.2d at 292.

37 Syl. Pt. 3, McLaughlin, ___ W. Va. at ___, 700 S.E.2d at 289.

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also be the same jury that decides the mercy phase of the case”;38 and [3] “[t]he type of evidence that is admissible in the mercy phase of a bifurcated first degree murder proceeding is much broader than the evidence admissible for purposes of determining a defendant's guilt or innocence.”39 Justice Ketchum dissented, reasoning that the murder statute does not provide for bifurcated trials and that bifurcation was originally intended to allow a defendant the ability to bring in evidence of good character, but has become an avenue of letting the prosecution bring in evidence of bad character instead:

Prosecutors proffer witnesses who know the defendant kicked a dog 20 years ago, or saw the defendant jaywalk on the way to the courthouse, or heard the defendant say an unkind word to his mother, and then argue to the jurors, “Is this the kind of person we ever want walking our streets?”40

In Michael v. Appalachian Heating, LLC,41 the majority held that [1] the Human Rights

Act‟s definition of person includes insurance company;42 [2] the Human Rights Act “prohibits unlawful discrimination by a tortfeasor‟s insurer in the settlement of a property damage claim when the discrimination is based upon race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status”;43 and [3] a third-party cause of action may exist under the Human Rights Act.44 Justice Ketchum dissented on the basis that the Human Rights Act does not even mention insurance companies and because the same abuses of frivolous litigation which led to doing away with third-party bad faith claims of Unfair Trade Practices Act will

38 Syl. Pt. 6, McLaughlin, ___ W. Va. at ___, 700 S.E.2d at 289.

39 Syl. Pt. 7, McLaughlin, ___ W. Va. at ___, 700 S.E.2d at 289.

40 McLaughlin, ___ W. Va. at ___, 700 S.E.2d at 301-02.

41 ___ W. Va. ___, 701 S.E.2d 116 (2010).

42 Syl. Pt. 6, Michael, ___ W. Va. at ___, 701 S.E.2d at 117.

43 Syl. Pt. 7, Michael, ___ W. Va. at ___, 701 S.E.2d at 117.

44 Syl. Pt. 8, Michael, ___ W. Va. at ___, 701 S.E.2d at 117.

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arise under the Court‟s creation of a new cause of action for third-party discrimination under the

Human Rights Act.45

State v. Lively,46 involved an alleged arson and murder.47 During trial, the prosecution put on Rule 404(b) evidence of [1] a fist fight which occurred three (3) years before the alleged arson and murder; [2] an allege arson which occurred four (4) years before the alleged arson and murder; and [3] an alleged theft of a laptop computer from the decedent‟s other home, which did not burn down.48 The majority held that the evidence was properly admitted because it showed motive, plan, and intent or common plan and scheme.49 Justice Ketchum dissented on the basis that the evidence was unrelated to the murder and arson as it was either remote in time or unrelated (evidence of the theft had nothing to do with the murder and arson because it was a theft from a different house).50 Furthermore, the conspiracy charge was dismissed shortly after the introduction of the evidence.51 Justice Ketchum‟s dissent focuses on the regular problem in criminal cases of convicting a person of being a “bad person” rather than convicting him or her of the particular crime that he or she is charged with:

The State has again convicted a defendant by proving that he had a “bad character” unrelated to the alleged crime. In almost every criminal appeal I review the State prosecutes the defendant's “bad character.” Most prosecutors apparently lack the confidence to prosecute only the defendant's guilt or

45 Michael, ___ W. Va. at ___, 701 S.E.2d at 126-27.

46 ___ W. Va. ___, 697 S.E.2d 117 (2010).

47 Lively, ___ W. Va. at ___, 697 S.E.2d at 123-24.

48 Lively, ___ W. Va. at ___, 697 S.E.2d at 130.

49 Lively, ___ W. Va. at ___, 697 S.E.2d at 132.

50 Lively, ___ W. Va. at ___, 697 S.E.2d at 137-38.

51 Id.

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innocence. I pine for the days when prosecutors had the skills to prosecute the defendant on the issue of his/her guilt.52

State ex rel. Maple Creative LLC v. Tincher53 involved an in-state company‟s bid for an advertising and public relations services contract that was deemed unsuccessful due to the an error in the reporting of resident vendor preference in the bid tabulation.54 The majority held that the company‟s protests were untimely.55 Justice Ketchum dissented regarding the timeliness issue because of a key fact: an employee of the respondent created confusion when he told the company that “we will look at it and if we are wrong, we will reverse it.”56 As to the substantive issues of the case, Justice Ketchum‟s dissent noted that he would remand with directions for the company‟s protest to be considered on the merits because the legislature‟s intent is clear that

West Virginians receive “preference in awarding of public service contracts involving the expenditure of tax dollars.”57 In the dissent, Justice Ketchum analyzed his own view of statutory/rule interpretation when he said, “I am not prone to fanciful interpretations of our statutes and rules and my dissent today does not indicate a departure from that judicial philosophy.”58

D. Fall Term 2010

Justice Ketchum authored four (4) dissents during the fall term of 2010. Two (2) dissents were in criminal cases and two (2) were in civil cases.

52 Lively, ___ W. Va. at ___, 697 S.E.2d at 136-37.

53 ___ W. Va. ___, 697 S.E.2d 154 (2010).

54 Tincher, ___ W. Va. at ___, 697 S.E.2d at 155-56.

55 Tincher, ___ W. Va. at ___, 697 S.E.2d at 156.

56 Tincher, ___ W. Va. at ___, 697 S.E.2d at 159.

57 Id.

58 Id.

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State v. Gibson59 involved a third offense domestic violence conviction where the defendant had two prior convictions, only one of which was within ten (10) years.60 The majority held that the statute was plain and unambiguous and that it only required one of the prior domestic violence convictions to be within ten (10) years.61 Justice Ketchum dissented, reasoning that the statute could be interpreted either way and therefore, the statute was ambiguous.62 Justice Ketchum went on to reason that ambiguous statutes had to be construed against the state.63

State v. Morris64 involved a DUI accident causing injury and death, where the defendant‟s argument was that he was not the driver.65 The police officer testified about a statement that he took from a phlebotomist regarding the defendant‟s bruises as consistent with the driver‟s side seat belt.66 The majority held that the testimony was not hearsay because it was not offered for its truth, but was offered to explain why the officer made the decision to charge the defendant.67 Justice Ketchum dissented, reasoning that there was no reason that the jury needed to know why the officer arrested the defendant and that the prosecutor failed to follow

59 ___ W. Va. ___, 703 S.E.2d 539 (2010).

60 Gibson, ___ W. Va. at ___, 703 S.E.2d at 540.

61 Syl. Pts. 1 & 3, Gibson, ___ W. Va. at ___, 703 S.E.2d at 539.

62 Gibson, ___ W. Va. at ___, 703 S.E.2d at 542-43.

63 Gibson, ___ W. Va. at ___, 703 S.E.2d at 543.

64 ___ W. Va. ___, 705 S.E.2d 583 (2010).

65 Morris, ___ W. Va. at ___, 705 S.E.2d 586.

66 Id.

67 Morris, ___ W. Va. at ___, 705 S.E.2d 588.

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through on the assurances made to the trial court that the nurse would testify.68 Justice Ketchum advocated for a modification of the hearsay rule as it is used in criminal cases that would require prosecutors to use witnesses with first-hand knowledge and would eliminate prosecutorial reliance on hearsay evidence by police witnesses.69

In McClure v. City of Hurricane,70 the majority held that the City could enforce a storm water ordinance that was enacted after the developer had been approved to build a subdivision and had developed infrastructure and more than half of the planned houses; however, the City could only require storm water management for new development and not for existing development under the ordinance.71 Justice Ketchum dissented, reasoning that the Court should have adopted the vested rights doctrine because the developer had already been granted approval for the development of the subdivision prior to the enactment of the storm water ordinance, because the developer had relied in good faith upon that approval, and because the developer had incurred extensive expenses in furtherance of the development in accordance with the approval.72

In McMahon v. Advance Stores Co., Inc.,73 the majority held that a retailer may limit an express warranty to the original purchaser.74 Although Justice Ketchum provides multiple bases for his dissent, it is a specific factual issue that drives his argument.75 The Plaintiff had

68 Morris, ___ W. Va. at ___, 705 S.E.2d 593.

69 Morris, ___ W. Va. at ___, 705 S.E.2d 594-95.

70 No. 35532, 2010 W. Va. LEXIS 151 (W. Va. Nov. 22, 2010).

71 Id. at *1 Syl. Pt. 3, *4-5.

72 Id. at *24-30.

73 ___ W. Va. ___, 705 S.E.2d 131 (2010).

74 Syl. Pt. 2, McMahon, ___ W. Va. at ___, 705 S.E2d at 131.

75 See McMahon, ___ W. Va. at ___, 705 S.E2d at 144-46.

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purchased an automobile battery and was given a receipt.76 The receipt provided an internet address for the store and stated “Warranty Information Available.”77 Justice Ketchum‟s concern about a receipt that directs the consumer to the internet for warranty information goes beyond concern that the warranty was not actually provided to the consumer at the time of the sale.78

Justice Ketchum‟s concern was that some consumers may not have access to the internet and that internet warranties could be modified without notice to the consumer.79

E. Spring Term 2011 (As of April 1, 2011)

As of April 1, 2011, Justice Ketchum authored two (2) dissents during the spring term of

2011. Both dissents were in civil cases.

In Foster Found. v. Gainer,80 there was a dispute over whether the Foundation was exempt from taxation and the parties negotiated an agreement to allow the court to rule on the issue. Following the ruling, which found that the Foundation was required to pay the tax, the

Foundation paid all of the tax and the interest. However, the Foundation was also charged a certification fee, which became the basis of the matter. The majority held that the state could charge the certification fee because of statutory requirements:

W. Va. Code § 11A-3-39 (1994) (Repl. Vol. 2010) imposes upon the West Virginia State Auditor a mandatory, nondiscretionary duty to charge a certification fee as a condition of the redemption of delinquent property that has been transferred to the Auditor.81

76 McMahon, ___ W. Va. at ___, 705 S.E2d at 144.

77 Id.

78 McMahon, ___ W. Va. at ___, 705 S.E2d at 144-45.

79 McMahon, ___ W. Va. at ___, 705 S.E2d at 145.

80 No. 35627, 2011 W. Va. LEXIS 14 (W. Va. Mar. 10, 2011).

81 Id. at Syl. Pt. 9 *2-3.

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Justice Ketchum dissented on the basis that the parties negotiated agreement had been part of the court‟s order and because such agreement prevented the property from becoming part of the sheriff‟s tax sale and the statute only requires the certification fee on properties which are part of the sheriff‟s tax sale: “no statute, regulation, or law allows the auditor to charge a certification fee for property suspended from a tax sale.”82 Furthermore, Justice Ketchum opined that even if he would find that a certification fee was proper, that he would not allow one in this instance on equity grounds based on the pretrial agreement.83

In State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell,84 the majority held that: [1] good cause for the issuance of a protective order was met because plaintiff averred a privacy interest in her medical records; [2] a court may enter a protective order which orders the “[r]eturn or destruction of summaries, which essentially are paraphrased or abbreviated versions of the original documents”; and [3] such order may include a certification requirement stating “that „all medical records, and medical information or any copies or summaries thereof‟ that are not returned to [the plaintiff] have been destroyed.”85 Justice Ketchum dissented on four (4) grounds: [1] “[p]ublic policy should allow the preservation of a plaintiff's medical records”; [2]

“[t]he plaintiff had no privacy interest in the medical records”; [3] the plaintiff waived her right of privacy if one existed; and [4] the Court should not impose “a new duty on defense lawyers and insurance companies.”86 In his reasoning, Justice Ketchum pointed out the cost of such a decision:

82 Id. at *46-8.

83 Id. at *49.

84 No. 35738, 2011 W. Va. LEXIS 16 (W. Va. Apr. 1, 2011).

85 State ex rel. State Farm Mut. Auto. Ins. Co., 2011 W. Va. LEXIS 16 at *13-66.

86 Id. at 66-70.

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My first and greatest concern is a public policy problem that the majority opinion has not fully considered, and it is one that affects everyone: higher insurance costs. Obviously, it will be expensive for insurance companies to catalogue the medical records collected in every lawsuit, and expensive to later make sure that every archived insurance file is scraped clean of any medical records or summaries. But I anticipate there will be even greater expenses in the future, in the form of new lawsuits: when plaintiffs' lawyers discover a copy of a medical record buried in an insurance company's archives -- a record that should have been purged -- there is sure to be a new round of lawsuits looking for more compensation.87 A PRACTICAL DISSENTER

In each of his dissents, Justice Ketchum focuses on practical issues: attorney‟s actions in seeking treatment and in changing his life;88 notice is impossible where title does not indicate substance (i.e., feasibility);89 executive session privilege is necessary to give governmental bodies freedom to deliberate;90 the amount of time elapsed between allegations of separate, yet similar, crimes;91 the plaintiff‟s failure to allege sufficient facts to plead a cause of action;92 bifurcated criminal trials were intended to allow a defendant to put on proof of good character rather than the prosecutor to put on proof of bad character;93 the creation of a new cause of action under the Human Rights Act which will create a new form of frivolous lawsuits;94 404(b) evidence as method of convicting a person of being a “bad person” rather than based on evidence

87 Id. at 66-7 (emphasis in original).

88 Brown, 223 W. Va. at 562, 678 S.E.2d at 68.

89 L.H. Jones Equip. Co., 224 W. Va. at 576-77, 687 S.E.2d at 359-60.

90 State ex rel. Marshall County Comm'n, 225 W. Va. at 77-8, 689 S.E.2d at 805-06.

91 Rash, ___ W. Va. at ___, 697 S.E.2d at 86.

92 Roth, ___ W. Va. at ___, 700 S.E.2d at 195.

93 McLaughlin, ___ W. Va. at ___, 700 S.E.2d at 301-02.

94 Michael, ___ W. Va. at ___, 701 S.E.2d at 126-27.

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of commission of a crime;95 respondent created confusion as to the steps required to preserve the right to protest;96 ambiguous statute construed against the state;97 no reason for the jury to know the police officer‟s motive for arresting the defendant;98 developer‟s reliance upon the original subdivision approval;99 consumer‟s ability to access the internet and potential for warranty modification without consumer notification;100 agreement of the parties that property would not be part of sheriff‟s tax sale makes certification fee improper;101 and excessive cost and burden for ensuring the return of or destruction of all medical records or summaries thereof in medical malpractice cases.102

Although Justice Ketchum‟s desire to ensure a practical fairness seems to weigh in favor of defendants in a criminal actions (as his criminal dissents are supportive of criminal defendants overall), that same drive for practical fairness is party-blind in civil actions (siding with the plaintiff in McMahon103 and the defendant in State ex rel. State Farm Mut. Auto. Ins. Co.104).

His practical concerns include things such as cost and feasibility. Therefore, any approach to appellate work in West Virginia should take into consideration Justice Ketchum‟s practical approach to the law.

95 Lively, ___ W. Va. at ___, 697 S.E.2d at 136-37.

96 Tincher, ___ W. Va. at ___, 697 S.E.2d at 159.

97 Gibson, ___ W. Va. at ___, 703 S.E.2d at 543.

98 Morris, ___ W. Va. at ___, 705 S.E.2d at 595.

99 McClure, 2010 W. Va. LEXIS 151 at *24-30.

100 McMahon, ___ W. Va. at ___, 705 S.E.2d at 145.

101 Foster Found, 2011 W. Va. LEXIS 14 at *46-9.

102 State ex rel. State Farm Mut. Auto. Ins. Co., 2011 W. Va. LEXIS 16 at *66-70.

103 See supra.

104 See supra.

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CONCLUSION: RAMIFICATIONS OF JUSTICE KETCHUM’S PRACTICAL APPROACH

I began the article by saying, “know your audience.” Obviously, if you have to argue a case before the Supreme Court of Appeals of West Virginia, it is important to prepare for questions regarding practical aspects of your case because it is likely that Justice Ketchum will inquire into those areas. However, I would suggest that such preparation alone would be like arriving at the party after everyone has already left; by that point it just may be too late.

The brief is a better place to demonstrate that the practical issues in the case support your client‟s position. Instead of being able to respond to questions about practical issues, it is better to frame your position in such a way as to demonstrate that the practical aspects of the case weigh in favor of your position.

However, the brief is not the best place to begin framing your argument for appeal. The best thing to do is to become intimately acquainted with the practical issues in your case from the very beginning. Place those practical issues in your motions. Argue the practical issues at the hearings. In other words, let the record itself demonstrate that the practical issues weigh in favor of your client, so that if and when you get to an appeal, you can draft your brief and respond at oral argument by pointing to the record in order to make your point.

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