Friday, December 31, 2004

On the retirement of a distinguished Roanoke general district court judge

The Roanoke paper has this interesting profile of Judge George W. Harris, Jr., retiring after nearly 20 years as judge of the General District Court.

The article provides, in part:

"Harris graduated from all-black Dunbar Senior High School in Lynchburg in 1955 and was one of the first blacks to attend the University of Virginia.

Social pressures at UVa during the late 1950s forced him to transfer out after two years.

At Virginia Union University in Richmond in 1960, he was arrested for trespassing during a civil rights sit-in, but his conviction was later overturned by the Virginia Supreme Court.

With a bachelor's degree in business administration, Harris set out to find a job, but the only job he was offered was as an assembly line worker at General Electric. Instead, he decided to go to law school.

Three years later, in 1967, Harris had obtained his law degree and passed the bar exam on the first try. He set up a general practice in Roanoke, taking over the practice of a black lawyer who had died.

. . .

After gaining a reputation as a tireless adversary of the school board and school administration, Harris was named to the Roanoke School Board in 1980.

"I think if a devil's advocate is needed, yes, I'll be one," he said in a 1980 interview with The Roanoke Times. "If I feel that basically the board is doing the best it can, I guess you could classify me an establishment man."

But few could really call Harris an "establishment man." He remained a watchdog of the school administration and, when it was time to hire a new superintendent, was one of a minority on the board who voted against hiring Frank Tota.

When Harris was considered for a judgeship, he received the honor of being endorsed by both the Roanoke and the Salem-Roanoke County bar associations, something that does not happen with regularity. Even Tota agreed that a judgeship would suit Harris."

The article goes on to describe an occasion when Judge Harris put a then-young assistant prosecutor in jail:

"One day in May 1988, [Ray] Ferris, then a prosecutor, showed up for court a half-hour late. Harris responded by reducing the defendant's felony charge to a misdemeanor.

"Judge, you don't have the authority to do that," Ferris said. "Either dismiss the case or certify it."

Ferris was warned, then found in contempt and thrown in jail. Sixteen years later, he says he learned quite a lesson from Harris that day."

No law against having a dog on the roof

In this NC story about a dog that apparently hangs out on the roof of a house, a law enforcement official is quoted as saying, there's no law against it.

When we lived on Valley Street, the dog back in her fit and trim days would go up the back stairs, through the porch railing, onto the kitchen roof, and at least once, my wife was at the sink in the bathroom and looked up to see the dog looking down at her through the sky light in the bathroom ceiling.

Washington County has more wrecks than Wythe County?

In this AP article about the decision by Washington County Sheriff Fred Newman to patrol Interstate 81, it says that there were more wrecks on the interstate in Washington County than in either Smyth County or Wythe County.

Missing woman not missing

Yesterday, the Bristol paper had a story about a missing local woman. Today, the paper had TriCitiesthis article that says the woman called into the police and denied that she was missing.

Virginia's Status for 2005

Not that anyone has any better knowledge than anyone else, but this lengthy MyDD post with a series of comments takes a look with the MyDD-Democratic-slant at the 2005 Kilgore-Kaine campaign.

Suppression orders reversed

In U.S. v. Perez, the Fourth Circuit in an opinion by Judge Traxler, joined by Chief Judge Wilkins and District Judge Titus, reversed the district court's ruling on a motion to suppress, concluding that the good faith exception to the requirement of a search warrant supported by probable cause applied.

In U.S. v. Dickey-Bey, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Luttig and Senior Judge Hamilton, reversed the district court's suppression order, concluding that there was probable cause to arrest the defendant where he showed up to take delivery of packages that contained cocaine and that the defendant's vehicle could be searched incident to his arrest.

John Dean takes on Fourth Circuit nominee Haynes

In this Findlaw article, John Dean considers ther nomination of William J. Haynes to the Fourth Circuit.

Dean, famous for his role in the Nixon administration, says this: "Plainly, the case in favor of Haynes's nomination - extremely poor even before the torture memoranda came before the public eye - is now appallingly poor. So why in the world is Bush renominating Haynes?" His answer seems to be that Haynes was renominated so the Democrats can exorcise themselves of their indigation over "Torturegate" in dealing with Haynes, thereby taking the heat off of others.

The best I can make of this article is that it does sound like something from the stereotypical thinking attributed to the Nixon administration.

Judge Conrad rules for bank on negligence and conversion claims

In Terry v. Bank of America, N.A., Judge Conrad of the W.D. Va. granted the bank's motion to dismiss the plaintiffs' negligence and conversion claims, concluding in essence with respect to money that was withdrawn from an account, the bank had no duty to the plaintiffs and the money in the account belonged to the bank and could not be converted.

New book by Helen Prejean takes on a Virginia murder case

The Christian Science Monitor has this review of a new book by Helen Prejean called The Death of Innocents, which includes her account of the Virginia case of Joseph Roger O'Dell.

From the Amazon page, one review says: "O'Dell was denied appellate review by the highest court in Virginia because his lawyers typed one wrong word on his petition's title page."

Thursday, December 30, 2004

The proposed Virginia Litigation Reduction and Consumer Personal Responsibility Act

The Fredericksburg paper has this article about the proposed "Virginia Litigation Reduction and Consumer Personal Responsibility Act of 2005," which is online as HB 1617, and provides, in part, as follows:

§ 8.01-44.7. Product liability; products containing open and obvious dangers.

A. A product liability action may not be brought in any federal or state court under Virginia law against any manufacturer or seller of a qualified food product where the claim arises from an injury, potential injury or death resulting from a person's consumption of a food product and weight gain, obesity or any health condition that is associated with a person's weight gain or obesity.

B. In a product liability action, a manufacturer or seller shall not be liable under Virginia law where the claim arises from an injury to or the death of a voluntary user of the product that is directly caused by an open and obvious danger of the product.

It's ludicrous to think a terrorist will attack a rural courthouse in rural Virginia

So says a critic of homeland security spending quoted in this article from the Daily Press, which looks at what Virginia localities have been able to buy with homeland security money.

What would Bill Hobbs say about this - Tennessee imposes income tax on sale of Illegal Drugs

The Bristol paper has this AP report that says: "Beginning Saturday, a new law will require drug dealers to pay taxes on the drugs they sell."

In fact, here is what Bill Hobbs said, which included the following:

"While I'm generally opposed to tax increases, I would heartily support the legislature raising the excise tax on the sale of illegal drugs to 100 percent. They also ought to require drug-pushers to charge sales tax, and penalize them if they don't."

More on ignorance, the Internet, and the election

Somebody at the Volokh Conspiracy in this post cites Mickey Kaus' take on the commentary from ABC News in August that it was "Kerry's election to lose," a conclusion which turns out to have been completely bogus.

Kaus concludes:

"How could brilliant genuine experts like Mark Halperin & Co. get it wrong? Because at some level they were conned by their peers and their Dem campaign sources (who were probably conning themselves) in a way I doubt they could be conned by Republican sources. ... And Halperin is known as a relatively non-partisan straight-shooter. What does this tell you about the rest of the press corps? ..."

I told Jim Elliott not long after Election Day, this campaign year is going to be the death of expertise, every stupid thing any of the pollsters and pundits said is going to live forever on the internet and henceforth when they opine, the 2004 election is going to be a black mark against every one of them.

More on ASL settlement

This press release from the Appalachian School of Law describes the settlement in the shooting cases.

UPDATE: I've removed some of my earlier comments, which were inappropriate.

Virginia Politics News Review

Via Waldo, Virginia Politics News Review is added to the line-up of Virginia blogs.

Those Elizabeth Minors

This story about Republican dominance in the Winchester area caught my eye because it mentioned that the mayor of Winchester is a woman named Elizabeth Minor, which was also the name of my grandmother.

Not too long ago, I went to a little seminar on networking, and fired up with ideas about the need to meet and greet, I proceeded to a cocktail party and dinner with a bunch of lawyers and their wives and decided to try out the techniques that had just been instilled in my brain. Instead, I spent the biggest chunk of my time telling stories about Elizabeth Minor to the wife of a Richmond lawyer, but at least she was not bored. Grandma was not boring.

More on medical malpractice reform talk in Virginia

The Washington Post has this report ("Premiums Also an Issue For D.C. and Va.," 12/29/04) on efforts to change damage limits in medical malpractice cases in Virginia and elsewhere.

Settlement expected today in law school shooting case

The Bluefield paper reports here ("Settlement expected today in law school shooting civil suit," 12/29/04) that Judge Weckstein, sitting by designation, is expected to approve the settlement of the civil cases brought against the Appalachian School of Law and others related to the shooting deaths at the school in January 2002.

5-year statute of limitations applies to misdemeanor bad check charge

In Foster v. Com., the Virginia Court of Appeals in an opinion by Judge Bumgardner, joined by Judges Benton and Kelsey, held that the five-year statute of limitations for petit larceny applied to a misdemeanor charge under the bad check statute.

Court of appeals finds no Miranda violation in case of college student convicted of murdering her baby

In Aldridge v. Com., the Virginia Court of Appeals in a lengthy opinion by Judge Humphreys joined by Senior Judge Coleman held. among other things, that the police did not violate the 18 year-old defendant's Miranda rights when they questioned her about the death of a newborn baby, whose body was found in a rented storage facility, and that the Commonwealth had met its burden of proving that the baby had lived and was killed. Judge Benton dissented on the Miranda and corpus delicti issues, based on which he would have reversed the defendant's conviction.

Chief Judge Jones dismisses Stanley suit against Judge Stump and Wise County clerk of court

In Stanley v. Smith, Chief Judge Jones of the W.D. Va. dismissed for lack of jurisdiction the claims brought by computer guy and sometime fugitive David Stanley against Wise County Circuit Court Judge Robert Stump and the Clerk of Court for Wise County, Jack Kennedy, related to the handling of his probation. Judge Jones concluded that Mr. Stanley could make his points in his ongoing state court proceedings, which are now assigned to retired Judge Persin.

Wednesday, December 29, 2004

Chief Judge Jones enters stay of execution

The Washington Post has this report ("Federal Judge Stays Jan. 7 Execution of Va. Inmate," 12/28/04) on an order entered by Chief Judge Jones of the W.D. Va. staying the execution of a Virginia man convicted of murdering a police officer. The stay was entered to allow the defendant to take his federal appeals.

Del. Bryant removed from Appropriations committee

The Lynchburg paper reports here ("Del. Bryant removed from Appropriations Committee," 12/29/04) that Delegate Preston Bryant has been removed from the Appropriations Committee, of which he was a member for seven years. The move is apparently in retaliation for his support of last year's tax increases.

Another rocket docket crashes?

This article says, among other things, that after intellectual property cases flooded the E.D. Va., the judges advised lawyers to go elsewhere, so they went to Texas, which is now overburdened with IP cases.

Why does Virginia matter?

Redstate has this very interesting post on the national political implications of a possible 2006 showdown between Mark Warner and George Allen in Virginia.

Cert petition filed in Virginia redistricting case

Votelaw reports here that the losers have filed a petition for certiorari to the U.S. Supreme Court in a Virginia congressional redistricting case. The petition is here, and it involves an appeal from a Fourth Circuit ruling on the application of the Voting Rights Act to Virginia's 2001 redistricting of the Fourth Congressional District.

The mediation

Rufus has this true-to-life account of a day-long mediation from the perspective of in-house counsel.

It sounds authentic to me.

Circuit court judge claims JIRC was biased against him

The Richmond paper has this remarkable article with the details of the opposing legal positions presented to the Virginia Supreme Court in the case of Judge Peatross' appeal from the findings against him made by the Commonwealth's Judicial Inquiry and Review Commission.

Tuesday, December 28, 2004

The Ruth Greiner story

The Bristol paper had this story on the millions of dollars bequeathed by Ruth Greiner, whom I knew as a court reporter here in Bristol.

With no disrespect intended, I often retell the story that I was more or less afraid of Ms. Greiner until at one deposition I told a mildly off-color joke (something about a spelling contest between Dan Quayle, Bill Clinton, and Clarence Thomas, which I heard told by Professor Erwin Chemerinsky at a section 1983 litigation seminar at the Georgetown University Law Center), and she found it to be delightful, and asked me to repeat it every time thereafter when we met for depositions.

Sunday, December 26, 2004

Another Virginia politics blog

Virginia Progressive is another blog about Virginia politics. I'll add it to my list, whenever the list shows up again.

I suspect there will be more Virginia political blogs before the New Year is out, what with the big statewide elections and all. In fact, sooner or later, the candidates will not only have websites, but might even have blogs.

I bet if Chad Dotson was running for re-election in 2005, he would have a blog.

Predictions from the savvy bloggers

Adam Smith, Esq., has this interesting year-end post with comments from his selection of "Savvy Bloggers" on the future of the law business.

There is too much interesting stuff there to describe it.

Bush to renominate Haynes and Boyle to Fourth Circuit, perhaps not Allen

It's old news now, but ACS has this post on the plans of President Bush to renominate Judge Boyle of North Carolina and William J. Haynes, II, late of the Defense Department to the Fourth Circuit in the next Congress.

Howard Bashman deduces here that Claude Allen, like Judge Kuhl from California, may not have wanted to be renominated. Mr. Allen faced opposition from the two Democratic Senators from Maryland, who complained among other things that a Maryland lawyer should be the replacement for the late Judge Francis Murnaghan.

Thursday, December 23, 2004

More on Accused in Appalachia

Here is the link to the description of the A&E program that aired last night on the Merry Pease murder case from Wise County.

I saw the second run of it last night. It was fascinating to see Judge Stump, Don Earls, and particularly Tim McAfee and Gerald Gray on television. I went on a bit of a road trip with Tim and Jerry earlier this year, and many tall tales were told by one and all, but nothing about the Pease case.

Wednesday, December 22, 2004

Proposed Virginia law would allow death penalty for accomplices

The Washington Post reports here, the Richmond paper reports here, and the Roanoke paper reports here on a legislative proposal that woudl allow imposition of the death penalty on accomplices in cases like the D.C. sniper killings.

Pease case from Wise County on A&E tonight

The Roanoke paper has this article ("Wise County murder case comes to prime time," 12/22/04) on the Merry Pease murder case, featured on A&E tonight.

The Bristol paper has this article ("Pease case back in court
," 12/22/04) about a post-conviction hearing held in the case yesterday before Judge Kilgore in Wise County.

Monday, December 20, 2004

Sunday, December 19, 2004

Virginia dog is the Great American Mutt

I've been following the candidacy of Toby, the blind hound from Albemarle County, who as reported here, has been named the Great American Mutt of 2004. Here is the story on Toby.

More on medical malpractice in Virginia

The Richmond paper has this article and this article, both of which suggest the economics of medical malpractice laws have the greatest effects in rural areas, where the decisions of a few doctors to move elsewhere or take early retirement could force rural residents to travel far afield for professional care.

Norfolk paper endorses former Governor Gilmore to head Homeland Security

In this editorial, it appears (incredibly) that the Norfolk paper is endorsing former Virginia Governor Gilmore to be named by President Bush as the new head of the federal Office of Homeland Security.

That's sort of like George Will writing a favorable column about Mark Warner.

Picture of candidate with a shotgun in his hand

This profile of Republican Attorney General candidate Steve Baril includes a photo of him shooting a shotgun (or so it appears to my untrained eye).

The best picture on his website, however, is this one from Scott Stadium. (You thought we were through with football references for the year?)

On money and the race for Attorney General

The Daily Press says here that it's no surprise that former Prince William County attorney Sharon Pandak withdrew her candidacy for the Democratic nomination for Attorney General if she thought she wouldn't have to raise a pile of money, and that without a pile of money, either of the other two Democratic candidates are probably going to lose to one of the two Republican candidates.

Still more from the Washington Post on Virginia's criminal justice system

In this editorial, the Washington post complains that neither Governor Warner nor Attorney General Kilgore is interested in dialogue with the newspaper about the crimiinal justice system in the Commonwealth, concluding that "Jerry Kilgore and Mark Warner should be ashamed to preside over a system that melts down so completely and so often."

Since neither Attorney General Kilgore nor Mark Warner can change the criminal procedure statutes, I'm not sure that the Post has launched its broadside in the right direction.

Walter Olson takes on the Vermont-Virginia same-sex custody battle

In this post, Walter Olson offers his take on the Virginia-Vermont same-sex custody battle, blasting a National Review Online article by David Frum.

Olson says the central issue is this: "can a party dissatisfied with a custody outcome litigated in one state ignore a resulting court order while reopening proceedings in a more favorable state?" So far, the answer in Virginia is yes, at least where the outcome in the first state is based on the rights of same-sex couples which are at odds with the public policy of the Commonwealth.

On format rules

The other day, I read Rule 5A:4, which says among other things: "All such papers shall be produced on pages 8-1/2 x 11 inches; printed matter shall occupy approximately 5 by 8 inches of a page, and typewritten matter shall occupy approximately 6 by 9 inches." Perhaps, I thought, I should make the left and right margins 1.25 inches each.

In this Minor Wisdom post, it says, don't cheat on the format rules, citing a Florida case in which a lawyer was fined $500 for format issues.

Richard Burrow speaks

In this commentary from the Roanoke paper, former D-Day fundraiser Richard Burrow presents his take on the power of the federal government to bring criminal cases, blasting the prosecutors who twice tried him, without success, while thanking his lawyers and supporters.

I don't Richard Burrow, but I think the National D-Day Memorial is really cool.

On a somewhat related topic, the Washington Post had this story on Saturday about local crimes that are increasingly prosecuted in federal court.

George Will takes on Mark Warner

George Will wrote this on Virginia's Governor Mark Warner.

Seventh grader in Spotsylvania County allowed to sit out Pledge of Allegiance

The AP reported here that Spotsylvania County will allow a seventh grade student to sit while others stand to recite the Pledge of Allegiance.

How many claims of error are too many

Regarding the appeal dismissed where the lawyers claimed 104 assignments of error (as described here on law.com), Evan in this post says: "With 104 issues on appeal, there must have been a reversible error in there somewhere."

What's wrong with making a federal case out of almost everything

Via How Appealing, this article says, among other things: "Forcing the federal courts to handle workaday criminal matters crowds out civil suits and leads to huge delays for civil litigants because criminal defendants have a constitutional right to a speedy trial and everyone else has to wait in line."

On witness credibility

George's Employment blog has this post that includes a useful catalog of an ALJ's explanation of his credibility findings in a case under the NLRA. Check it out.

In at least one NLRA case with which I am familiar, the ALJ listened to the head man for the employer and determined that his testimony was so untrustworthy, whatever he said would support an inference that the opposite was true, even in the absence of any other evidence on point.

This conclusion has always boggled my mind, these many years, but it seems to describe what often happens in litigation - the most demonstrable and offensive liars often lose, whether or not they deserve it. Two famous examples are the O.J. Simpson criminal and civil trials. In the civil case, O.J. was impeached most obviously by the photographs showing him wearing the shoes he denied ever owning, even the shoes were not the most important evidence; in the criminal case, law enforcement despite all the blood evidence was impeached by the Fuhrman tapes, etc.

A question I have sometimes heard in trials and even asked a time or two myself is this: "Mr. Witness, are you as sure about this as you are about everything else you've said in this case" - meaning, you have just told us a magnificently transparent whopper of a lie, which ought to taint every other word you've said today.

One new Treasury circular that affects me not a whit

Benefitsblog has this post with links to an amended directive from the Treasury Department on ethical standards for lawyers and other professionals who provide advice on tax avoidance. At it happens, there is no evidence that I know anything in particular about tax avoidance.

Would you buy stock in a British law firm?

Adam Smith, Esq. has this post about proposals in England that would, among other things, allow law firms to be owned by non-lawyers and even to become publicly-traded corporations.

Friday, December 17, 2004

Another Virginia blog on the right

This bunch claims to be "The Commonwealth of Virginia's Ultimate Blog."

I'll add them to the list directly. One thing they are talking about as is Waldo (from the other direction) is this article about whether State Sen. Potts will quit the Republicans and run for governor against Kilgore and Kaine.

Virginia's escape statutes

Almost a dozen years ago, I had a criminal case where the defendant was stopped in the rain on suspicion of drunk driving, sat in the police car for a while, then ran off and got charged with escape under Va. Code 18.2-479.

I wrote a brief that said there was no escape because the accused was not in custody, and Judge Flannagan agreed.

Earlier this week, interpreting the similar language of Va. Code 18.2-478 in Coles v. Com., the Virginia Court of Appeals in an opinion by Judge Annunziata held that the defendant could not be guilty of escape because he was not in lawful custody when no criminal process had issued.

Judge Stump to retire as circuit court judge in 30th Circuit

The Coalfield Progress has this report on the upcoming retirement as an active-duty judge by Judge Robert Stump, for whom a successor will be named in the next session of the General Assembly.

The article notes: "Wise County attorneys Tim McAfee, Greg Stewart, Leonard Rogers, Bill Bradshaw and Walt Rivers are vying for the appointment, along with Tammy McElyea, commonwealth attorney in Lee County."

The article notes that Virginia judges must retire at age 70. Judge Birg Sergent, also of the 30th Circuit, was born in 1937 (according to Martindale.com), and so he may be retiring in 2007.

Chief Judge Jones says no Princess Lida here

In Pax, Inc. v. Veolia Water North America Operating Services, Inc., Chief Judge Jones ruled, among other things, that the plaintiff's motion to remand the case to state court or abstain based on the Princess Lida doctrine should be denied.

The Princess Lida doctrine has something to do with the federal courts not getting involved with property over which a state court (or another court) has assumed jurisdiction, most probably in rem jurisdiction. The Court ruled, in essence, that there was no in rem aspect to the claims that were removed. The other part of the ruling was to reject the defendant's venue argument based on a forum selection clause.

Normally, I don't cite to opinions involving my own firm, but how often do you come across the Princess Lida doctrine?

RIAA suits filed in Virginia

The Norfolk paper has this report ("Five local people sued over music file-sharing," 12/16/04) on some file-sharing suits brought by the Recording Industry Association of America in the Eastern District of Virginia.

Bluefield paper takes on WV legal system

The Bluefield paper editorializes here against the civil justice system in West Virginia.

Thursday, December 16, 2004

Ah, more typography madness

Painting with Print, a great article if ever there was one, says among other things:

"The practice of using two spaces between sentences and indented first lines to begin the new paragraph are merely remnants of days when attorneys had only typewriters at their disposal and were forced to use a monospaced font."

Within the last week, a lawyer somewhere in these United States went through my draft of a document and he or she added a space after each period, and when I got it back, I typed "Command-H" (find and replace) and replaced all those double spaces with single spaces.

Hmm, so much for that CERCLA contribution claim

In Cooper Industries, Inc. v. Aviall Services, Inc., the U.S. Supreme Court held that a party may not sue potentially responsible parties for contribution under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) after the plaintiff has incurred cleanup costs but before the plaintiff itself has been sued for cleanup costs.

Does this mean it just doesn't pay to clean up before being sued, if there is someone else ought there who is also potentially responsible? There is some kind of chicken and egg problem here.

Still knowing when to say Whren

In Devenpeck v. Alford, the U.S. Supreme Court in an opinion by Justice Scalia considered the question of "whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not 'closely related' to the offense stated by the arresting officer at the time of arrest."

The answer, based on the Whren case, is yes.

Good new qualified immunity case

A while back, I wrote an article about qualified immunity in section 1983 cases, and the law continued on, and my few points of understanding about this area of the law continue have been sometimes reaffirmed in the case law in subsequent cases, including Brosseau v. Haugen, a per curiam opinion from the U.S. Supreme Court issued on December 13, an excessive force case in which the Court overturned the denial of qualified immunity by the Ninth Circuit.

Fairfax lawyer files complaint against U.S. Attorney for going easy on Republicans

The Charlottesville paper had this version about the story of a Northern Virginia lawyer filing a complaint with the government alleging that the U.S. Attorney for the Eastern District of Virginia went easy on the hierarchy of Virginia Republicans in connection with the Matricardi affair.

Special prosecutor named for Gate City election

From earlier this week, the AP reported here that the Commonwealth's Attorney from Botetourt County, Joel Branscom, has been appointed as the special prosecutor for matters related to the Gate City town elections.

Delegate on a mission from God, plans to run against Boucher in 2006

It says here: "Fifth District Del. Bill Carrico, R-Fries, says the Lord is calling him to run for Congress [in 2006], and he's listening."

The link is from MyWiseCounty.com, where seldom is seen an encouraging word about Virginia Republicans.

Sunday, December 12, 2004

SVLAS' Larry Harley among Virginia's Legal Elite

Virginia Business has come out with this year's list of the "Legal Elite" within the Commonwealth, and one category this year is Legal Services/Public Services, and one of those on the list is Larry Harley, the head man of the Southwest Virginia Legal Aid Society.

Anatomy of a medical malpractice case in Virginia

As background to the debate over the need for further changes of the law in Virginia, the Richmond paper has this compelling article ("Medicine may fail, and justice might not heal," 12/12/04) detailing a medical malpractice case against an obstetrician tried in Danville. The article includes comments from the lawyers and the litigants.

More on Virginia football bowl mess

Jerry Ratcliff, still the Man for U.Va. sports at the Daily Progress as he was back in the day when I ate the fried chicken in the press box, has this column with more on the goofiness of U.Va. going to a bowl game in Idaho in December. I mean, that's weird.

The only thing good about is that the other team, Fresno State, is kind of interesting. I'm unaware of any prior Fresno State - U.Va. connection, except in the person of Courtney Alexander, the basketball player who transferred from Charlottesville and Thomas Jefferson to Fresno and Jerry Tarkanian.

Highland County heads to the Capitol to see their tree

The Washington Post reports here ("Town Follows the Light Of a Tree in the East," 12/12/04) on a bunch from Virginia who went to D.C. to see the Christmas tree from their hometown standing in the U.S. Capitol building.

Some W.D. Va. lawyers mad about Chief Judge Jones' decision to cut some fees in the Church case

The Roanoke paper reports here ("Lawyers decry pay-cut ruling in capital case," 12/12/04) that some local lawyers are upset with the analysis by Chief Judge Jones of W.D. Va. in cutting the fee application for one bunch of lawyers in the successful defense of the Pocahontas murder cases.

The sources quoted in this article say many interesting things. One is that the federal government stirs these costs by seeking the death penalty in the wrong cases. Another is that there is something ex post facto about cutting fees after the case is over without some kind of advance notice about the limitations. A third is that why should the defense lawyer, and no one else, be the one to take a pay cut when a case costs too much.

Blog rules, mostly broken

It says here bloggers should blog as often as they eat, not blog at work, and not blog about work.

I've been doing it all wrong. For one thing, I need to get more food.

More on the irrationality of sex laws

Balkinization has this post with links and discussion on the topic of how "raising a legal obstacle to first-time sex without a condom would reap benefits for public health."

Would those public health benefits make such a law constitutional? They would seem to supply the rationale the Supreme Court missed in Lawrence v. Texas.

Saturday, December 11, 2004

Inmate in prison for life won't be charged with additional rapes to which his DNA is linked

The Washington Post has this article ("Inmate Will Not Be Tried in 1981 Norfolk Rapes," 12/11/04) and earlier in the week the Norfolk paper had this article ("DNA from 3 rapes points to one man," 12/8/04) about an inmate whose DNA is consistent with his being the perpetrator of other rapes from 1981 for which two innocent men were imprisoned - yet he will not be charged, because the prosecutor is concerned about the chain of custody of the evidence, and in one case, the victim's identification, which she says remains unchanged in spite of the DNA evidence.

Virginia college team wins moot court tournament at Oxford

Here it says a pair from Patrick Henry College in Virginia won a moot court competition at Oxford University. Patrick Henry College is 4 year-old Christian college, and most of its students were home-schooled.

Do they have Hardees in New York City?

The Conspiracy in this post mocks the decision of the NY Times to editorialize against the latest big burger from Hardee's.

Everyone knows that the real menace to society from Hardee's is their biscuits and gravy, which I would eat every day if I had the time and money. I can't recall when last I ate an actual hamburger from Hardee's, maybe never.

On the goofiness of U.Va. sports

Doug Doughty has this column which more or less says the University's posture on no bowl during exams comes across as really weak, Heath Miller is likely to go, D'Brickashaw Ferguson will stay, Ahmad Brooks and Darryl Blackstock will wait to see based on their grades, and there is still no figuring the way Pete Gillen uses timeouts.

Someone was telling me the other day that this year's offensive coordinator was being hired away to East Carolina. Geez, what a shame.

Legal assistance

I've got a trial coming up, and I'm sitting upstairs at the computer with stuff all over the place, and the wife has company downstairs, so the old dog is up here with me.

The dog has decided to lie down on the evidence. I gave her a fanny scratch and told her to move, but she just gave me the hairy eyeball, had a big sneeze, and went back to sleep.

Fortunately, most of the good stuff is in the CaseMap database, and anyhow I think the papers beneath the dog were written by me, so how important can they be?

The dog (at age 13) is definitely losing her fastball. This morning we're out getting the newspaper, she assumes the position for her morning constitutional, and tips over (backwards). Oh, no, I think, and rush to rescue her, then realize I've thrown the paper down in the wet grass. The dog, ignoring the paper, takes off on her post-constitutional victory lap, with tail wagging.

Some time ago, Scheherazade (I think it was she) had a post that said something like, what you give up for your dog. My answer then was that I'm just afraid that when the time comes, whatever I've got won't be enough. At a minimum, it appears, I'm willing to ditch the front page of the Bristol paper, without a second's thought.

Friday, December 10, 2004

The little red car that could

My friends, etc., heckle me about my '94 Saturn (made in Tennessee by Tennesseeans), which has gone past 225,000 miles.

I filled it up today, which took 9.67 gallons. The trip odometer said 320 miles. So, the little red car still gets 33 mpg (when driven mostly on the interstate).

Budget pressure relieved somewhat for W.D. Va.

Via VLW, Chief Judge Jones is cited in this Roanoke Times article ("Court gets good news on budget," 12/10/04) for the proposition that the W.D. Va. will not have to slice its hours or personnel, in light of the big budget bill recently passed by Congress, which includes some money for the courts.

Drunk driver gets nine years in jail in Botetourt County

The Roanoke paper reports here ("Man protests 9-year DUI sentence," 12/10/04) that Judge Trumbo sentenced a man to nine years in jail after he was arrested for one of many drunk driving offenses.

Attorneys' fees of $2.4 million bill to win water cases on sovereign immunity

The AP reports here the attorneys' fees for the defense of the City of Chesapeake in the bad water cases was $2.4 million. The Virginia Supreme Court ultimately ruled that the claims were barred by sovereign immunity.

What became of the Harvard law class of 1980?

According to this report, one became the chief justice of the Supreme Court of Virginia, one became lieutenant governor of Virginia, and one became Governor of Virginia, and they all showed up for the 225th birthday party of the Virginia Supreme Court.

Another, I think, was a fellow from Alabama I once met a meeting in Chicago, and he asked me whatever became of Mark Warner. Oh, he got elected governor, I said.

Heath Miller wins Mackey Award as best college tight end

It says here that Heath Miller from Honaker has won the award for best tight end in college football.

Com. Conservative says here that Heath, a red-shirt junior who was part of this year's Senior Day, will go pro next year.

Thursday, December 09, 2004

More on the Kilgore-Kaine debate

This column from the Richmond paper says of the performances at the debate of the gubernatorial candidates, Mr. Kilgore is less smooth, and the candidates really don't like each other.

The article quotes Professor Sabato, the moderator, as saying: "They've developed a real antipathy for reach other," and the two have "far more differences than I realized."

Com. Conservative has much more on the debate here.

Hampton wants charter change so city attorney answers directly to council not city manager

Local government lawyers might be interested in this story, which says that the City Council in Hampton has endorsed a resolution asking the General Assembly to change the city's charter so that the city attorney serves at the direction of council rather than both the council and the city manager.

More on Chief Judge Spencer

The Washington Post has this profile ("Judge Adds to His History-Making Career," 12/9/04) on Chief Judge James R. Spencer of the E.D. Va.

Supreme Court of Virginia reaches age of 225

The AP reports here on the ceremonies marking the 225th anniversary of the establishment of the Virginia Supreme Court. The Court's website has this detailed press release, which notes among other things: "Until 1788, the judges never rendered written opinions or gave reasons for their decisions."

Subsequently, the Court has produced about 270 volumes of opinions collected in the Virginia Reports.

Standards for bloggers?

I got an e-mail today that said one of my recent posts was really stupid, and then I read this post which says:

"We'd like to join the litany of bloggers wondering what, exactly, CBSNews.com senior political writer David Paul Kuhn was thinking when he put together a piece lamenting the fact that there are no government regulations keeping bloggers honest."

That's weird, government regulations for bloggers.

Virginia lawyer kidnapped and abused over estate case

The Washington Post hasthis wild story ("Legal Foe Jailed in Lawyer's Abduction," 12/9/04) about an estate case, where one of the litigants is now charged with abducting opposing counsel from his home and taking him out into the woods and threatening him at knifepoint if he would not drop a will challenge.

What's your lawyer's hourly rate?

Law.com has the latest on the rates charged by the big firms. Dennis Kennedy has this post with more on the topic.

Country lawyers like myself enjoy these articles, sort of like reading science fiction.

Those legal thinkers

Via How Appealing, This poll asks who are the top 20 legal thinkers in America.

Maybe I'll click the names of all the bloggers on the list and send that in.

Groh as Coach of the Year, Welsh in Hall of Fame

It says here that Al Groh was named regional coach of the year by the American Football Coaches' Association and here is another piece on the induction of George Welsh into the College Football Hall of Fame.

Attorneys' fees in the Pocahontas murder cases

In U.S. v. Church, Chief Judge Jones explained his reasons for not awarding all of the attorneys' fees sought by one group of lawyers in the Pocahontas murder cases. One thing he did was to compare their fee application with the fees sought by counsel for other defendants in the cases.

Can't smoke at depositions in D. Md.

In the Local Rules for the U.S. District Court for the District of Maryland, it says: "Unless all persons present otherwise agree, smoking is prohibited in the room in which a deposition is being taken."

I'm not sure that I've ever been in a deposition where there was smoking.

On the blarging and the meeping

This Waldo post contains the following summary of the Kaine campaign's response to comments by AG Kilgore:

"To recap, in brief:

Kilgore: Blaaarrrghhhh!
Kaine: Meep?"

Wednesday, December 08, 2004

Brits offended by rebel flag in Winchester town seal

The Winchester paper reports here ("Winchester’s Seal Is ‘Offensive,’ Sister City Official Says," 12/7/04) that the sister city in England of Winchester, Virginia, needs to ditch the rebel flag from its seal. The article quotes some fellow as saying: "We trade with the town of Giessen, in Germany. I find it as offensive to have the Stars and Bars as if they had a swastika on their coat of arms."

Limitations on legality of making a new contract with a public school superintendent in Virginia

The Richmond paper reports here ("New contract called illegal," 12/7/04) that the school board for the City of Richmond may have violated a couple of statutes when they renegotiated the contract for the superintendent of schools.

Virginia man on trial for pretending to be a lawyer

The Washington Post reports here ("Man on Trial, Accused of Pretending to Be Lawyer," 12/7/04) on the trial in Alexandria of a man who faces 15 felony charges for alleged taking "money from unwitting clients who thought he was a lawyer."

What fraction of federal civil cases are employment claims

It says here: "In many Federal district courts, employment-related litigation represents 50% or more of all court filings."

Invited error doctrine sinks criminal appeal based on error in instructions appellant tendered

In McBride v. Com., the Virginia Court of Appeals in an opinion by Judge Benton joined by Judges Bumgardner and Kelsey held that the appellant's argument on appeal was barred as invited error, where it was based on a legal mistake in the jury instructions which the trial court gave after they were tendered by appellant's counsel at trial.

Abduction conviction reversed

In Hoyt v. Com., the Virginia Court of Appeals in an opinion by Judge Annunziata joined by Chief Judge Fitzpatrick and Judge Elder reversed the defendant's abduction conviction, concluding that it was not a separate offense from the robbery charge, where the defendant ordered some people at gunpoint to move around a bit during the few minutes he was in the store he robbed.

What's wrong with listening in by telephone?

Following up on the settlement this week in the Matricardi case, Becky Dale has Virginia this article in VLW about whether dialing into a conference call really is unlawful interception.

Monday, December 06, 2004

On blogs and blogging in Roanoke

Last week, the Roanoke paper had this article on bloggers and blogging.

Expert barred for life because of errata sheet

Blog 702 has this post with the tale of an expert witness in Georgia who was barred for life from testifying before that trial court on account of the way he zig-zagged back and forth in his affidavits, deposition testimony, and errata sheet to his deposition.

Files on those who have been executed by Virginia

Yesterday, the Richmond paper had this very interesting article on what Virginia's archives tell about persons executed by Virginia in the early 20th century.

A related article is this one about a Martinsville case of seven men executed for rape in 1951.

Another related article is this one with racial statistics going back before the Civil War.

Somewhere in one of these articles is the proposition, previously unknown to me, that early in the 1900s, Virginia and other Southern states made the criminal process in murder cases go faster in part to avoid lynchings, which is a horrible thought.

Fightin' Gobblers goes down

The Virginia Tech paper has this article about the demise of the lettering on Lane Stadium.

Friday, December 03, 2004

Traveling

I'm hitting the road tomorrow, Richmond-bound, mostly for the purpose of trying to mediate a civil rights case next week.

One odd aspect is that a claims manager I've known only by phone for the better part of 10 years will be there.

Thursday, December 02, 2004

Some guy from Prince William County joins Republicans running for Lieutenant Governor

The Richmond paper reported here ("Connaughton Launches Bid," 12/1/04) that the chairman of the Prince William County board of supervisors has opened his campaign for statewide office.

The other Republicans running are said to be Senator Bolling, Delegate May, and lawyer Gil Davis.

Martians wanted in Virginia

Earlier this week, the Roanoke paper had here ("Extras needed to fight Steven Spielberg's martians," 11/30/04) on the search for extra-terrestrials in Rockbridge County, where a remake of "War of the Worlds" is being filmed.

Who's the better Republican

In Hall v. Babb, the Seventh Circuit recognized the possibility of a First Amendment party affiliation discrimination claim based on "differing degrees of support for a single party, just as it reaches favoritism based on simple party membership." The Court concluded, however, the plaintiff had not proven that he lost out because he was not as good a Republican as the other guy who got the job.

Wednesday, December 01, 2004

Lawyer gets public reprimand for accusing Virginia Supreme Court of conspiracy

The Roanoke Times reports here ("State bar reprimands Roanoke lawyer," 12/1/04) that the Virginia State bar has issued a reprimand in the case of the Roanoke area lawyer who made the claim that the Virginia Supreme Court was in cahoots somehow with the Gentry Locke law firm, affecting the rights of his client.

His client was the plaintiff in Snyder-Falkinham v. Stockburger, 249 Va. 376, 457 S.E.2d 39 (1995), which deals with the question, as my contracts professor would have phrased, "how many times to you have to ask each other to dance before you start dancing?" Or, more to the point, when do you have a settlement agreement that you can't back out of? Sometime after the appeal, the lawyer filed a federal lawsuit, as to which at one time Judge Wilson was going to consider sanctions under Rule 11, see Snyder-Falkinham v. Stockburger, 1996 WL 1171800, *1+ (W.D.Va. Aug 05, 1996). The judge backed off on the sanctions, and I think the case was reassigned to someone else.

If you're scoring at home, etc.

Wonkette (whom I saw on TV over the weekend) has this post about Keith Olbermann, who inspired this drinking game with his catch phrases as an anchor for ESPN's Sportscenter.

Olbermann says journalists should not be allowed to vote. That's probably a good idea, in his case. I've always understood that part of the reason that he left the "other Bristol" (in Connecticut, home of ESPN world headquarters) is because he doesn't drive. What's up with that?

Judge Spencer becomes chief judge of the E.D. Va.

The Richmond paper reports here that Judge James Spencer is the new chief judge of the E.D. Va.

Did I say Shreveport? I meant Boise

The Richmond paper reports here the Virginia Cavaliers are going bowling in Idaho.

The Tackler

The Norfolk paper has this delightful recollection about a fellow who as a 65 year-old came off the sideline to tackle a William & Mary runner heading for a touchdown.

Tuesday, November 30, 2004

Counting to three

In Perry v. Delisle, the Virginia Court of Appeals in an opinion by Judge Benton, joined by Senior Judge Coleman, held that the Workers' Compensation Commission erred in its conclusion that the employer did not have enough employees to be subject to the Workers' Compensation Act. Judge Humphreys dissented, as he would defer to the factfinding by the Commission.

Fourth Circuit reversed in Truth in Lending Act case

In Koons Buick Pontiac GMC, Inc. v. Nigh, the U.S. Supreme Court reversed the Fourth Circuit in a case under the federal Truth in Lending Act, on the issue of whether a statutory cap on damages survived a less than nifty amendment to the Act. The Fourth Circuit said no, the majority of the Supreme Court said yes, the cap remains.

Donald Ayer from Jones Day argued for the petitioner, Hugo Blankingship, III argued for the respondent.

Why plea bargain

Ken at CrimLaw has this post on why we plea bargain, at least in state court in Virginia.

I was just trying to explain these things to somebody not too long ago.

The clout of rural voters in Virginia

Via this post from Commonwealth Conservative, I see this article ("Rural voters' clout rising," 11/30/04) on the increasing clout of rural voters in the Commonwealth.

While I'm on a roll

This NY Times editorial on the Title IX retaliation case shows me that one of us is way off the mark. In Title VII of the Civil Rights Act, the Congress created an express remedy for retaliation; if Title IX lacks the same language, then there is no remedy.

The editorial says: "When someone suffers retaliation for complaining about sex discrimination, that is itself a form of sex discrimination." It is not. Why torture the language in this way? Why not write an editorial that says, if Title IX as it is does not contain an anti-retaliation claim, it should be amended?

Ack, I don't know why I even read the NY Times, but Jim Elliott is out-of-town, and so I have no one to argue with here on the premises.

Monday, November 29, 2004

No way

If the Solomon Amendment litigation is a civil procedure and constitutional law quiz, and this Third Circuit opinion in FAIR v. Rumsfeld has all the answers, I think I would get an 'F,' because I disagree with almost every single bit of this opinion from standing on down. Law schools as victims of civil rights violations! Why not a suit brought on behalf of the philosophy department? Or the field hockey team? The comic book section of the library? These are bogus plaintiffs, with bogus injuries, incapable of speech in any sense that makes sense to me. "The law schools are expressive associations," said the Court. As one of my old clients would say: "Balderdash!" If they are, they should not be. I say this having read all the recent Liberty Law School-bashing in recent weeks.

I wonder, how can a state allow its public-funded law school to have a particular "message", but can't sell "Choose Life" license plates? (Then again, maybe none of the unidentified members of the plaintiff association were state schools.) Also, in the brave new world of law schools as civil rights victims, I wonder, what sort of lawsuits will be filed by the law school at Liberty?

The good news and the bad news

The good news is that Virginia basketball got in at No. 24 this week. The bad news is that there are 6 other ACC teams in front of them.

Did I say Boise? I meant Shreveport

The Washington Post reports here ("U-Va. Close to a Bowl Bid," 11/29/04) on a tentative deal that would have U.Va. football going up against Oklahoma State in Louisiana's Independence Bowl on December 28.

The Post still down on Virginia criminal justice system

Following up on its summertime commentary on the criminal justice system in Virginia, the Washington Post opines here that the criminal justice system in Virginia is still "in crisis," citing among other things the lawyer who missed the appeal deadline in the sniper Malvo case. (Didn't I read somewhere that was deliberately done?)

Sunday, November 28, 2004

Boise, here we come

This post from an NC State sports blog heckles the University of Virginia's decision to decline an invitation to a bowl game scheduled during December exams. The writer asks:

"Shouldn’t schools who derive so much benefit from their affiliation with the Atlantic Coast Conference feel some level of obligation to inform the ACC (and their fans, their players, and their recruits), of decisions like these BEFORE the conference puts together its bowl agreements?"

The post concludes:

"After holding the entire conference hostage during expansion in 2003, the Cavs continue to exhibit a level of audacity and selfishness that only one other conference affiliate could dream about." (I'm not sure that I understand that latter reference.)

He's probably right, if it is true that Virginia is changing the rules at the last minute, the University deserves whatever it gets, which may be nothing more than a lump of coal (or Idaho snow) for Christmas.

Roanoke paper opposes mandatory sentencing

The Roanoke paper opines here that mandatory minimum penalties are mostly a bad idea.

The article notes:

"Drawing inspiration from the case of Sid Clower, the ex-Henry County administrator convicted of embezzlement, Del. Roscoe Reynolds, D-Henry County, sponsored a bill creating tougher sentences for government officials who steal public money.

Fortunately, lawmakers rejected the proposal by an 11-9 vote. They understood that rubber-stamping the proposal would hamstring judges, requiring them to impose blanket punishment rather than considering the circumstances of each case and meting out an appropriate penalty."

Another take on the Breaks

The Lexington, KY paper has this article ("The gorge is wild and rugged, but it's not overly grand," 11/28/04) on the Breaks Interstate Park along the Kentucky-Virginia border.

More on the Big Game

Even after the Big Game, this post is worth reading.

Fortunately, I made no wagers on the outcome.

Fees Virginia college students pay to support sports

The Richmond paper has this article ("Fees for sports don't get much play," 11/28/04) on the fees charged by Virginia's colleges and universities to defray the costs of intercollegiate athletics programs.

Virginia woman can proceed with prison sex abuse suit

The Charlottesville paper reports here ("Inmate allowed to sue prison," 11/27/04) and the AP reports here that the Virginia Supreme Court has reversed the dismissal of a woman's claims against the Virginia Department of Corrections and individual corrections officials, where the circuit court had ruled that the plaintiff failed to correctly exhaust her administrative remedies.

The Court's opinion, by Senior Justice Russell, in the Billups case came out on November 5. It deals not only with the issue of whether the plaintiff had exhausted her administrative remedies for purposes of both Va. Code 8.01-195.3(7) and 42 U.S.C. 1997e(a), but also whether the plaintiff's section 1983 and common law battery claims were time-barred.

There are surprisingly few Virginia Supreme Court cases dealing with civil constitutional claims (not counting condemnation and habeas corpus), but I think their number and frequency will increase. Prisoner litigation is on the rise, federal civil procedure is perceived by some as more favorable to defendants, the Eleventh Amendment does not apply in state court, the state courts (to the extent their views are unknown) might be viewed as possibly better places to litigate the merits of constitutional claims than the federal courts in the Fourth Circuit (certainly, the Virginia Supreme Court leaned more to the side of individuals vs. the government in the two recent First Amendment cases that were reversed by the U.S. Supreme Court), and as demonstrated by the Goodrich case in Massachusetts, litigants generally who are frustrated with the federal law and procedure may try using the state constitution as a source of substantive rights.

Ode to fudge cake

Inspired by this Kingsport Times article, I note that before I ever went to a Shoney's, at least 30 years ago, I ate fudge cake (with the ice cream, fudge sauce, etc.) in Lee County at the home of Grace Davis and Eva Rush, the aunts of my aunt Rose.

This has nothing in particular to do with the law, except I know that one of Grace Davis' many students was Judge Glen Williams, who spoke at her funeral, and somehow Rose, et al., are kin to Judge Birg Sergent, a fact I never would have guessed.

Kilgore and Kaine as speakers

Thursday's Washington Post had this piece ("Kilgore, Kaine Give Previews of Very Different Styles," 11/25/04) comparing the speechmaking styles of gubernatorial candidates Jerry Kilgore and Tim Kaine.

Friday, November 26, 2004

The Big Game

Saturday I'm going to see the Cavaliers play in Blacksburg for the sixth time.

The two best ones were the great comeback game in 1984 (26-23) when I was a student and the even greater comeback game in 1998 (36-32).

First Thanksgiving was really in Virginia

The Boston Globe in this article dismisses the idea that the First Thanksgiving was in Virginia.

The article notes: "When the dandies and fortune hunters of Jamestown first encountered them eating roast oysters and wild strawberries on the beach, they chased the Powhatans off and devoured their food."

Now it can be told

In this tale from the Daily Press about how Governor Warner got Virginia Tech in the ACC, he says he did it all for his good friends in Southwest Virginia.

Thursday, November 25, 2004

On writing

I noticed a bit of contrast between this Lawpundit post on plagiarism in academic writing with this Uncivil Litigator post on the pain of delegation in legal writing.

In the writing that I do, plagiarism is good, winning is the goal, and "style" doesn't count for much. (If it did, I might increase my hourly rate.) Nothing that goes out with my signature has not been touched by something that somebody else wrote - I try to steal good ideas every day, all the time. I reused a motion yesterday that I wrote several years ago that was mostly taken verbatim from a court order.

Having said that, I am persnickety about many things, somewhat in the manner of UCL perhaps. Earlier in the week, I was commenting on the part of an opponent's brief which said, among other things, that my position on the matter was "disingenuous." (Ah, disingenuity as grounds for summary judgment.) Adjectives, I declared to my legal assistant, should be banned from legal writing. Then I saw this Rainman2 post, and sent it around immediately, to which my assistant replied: "Damn good advice."

Is that a Constitution in your pocket?

No. 84 (I forget his real name) has a post titled They're not getting my pocket Constitution.

I too have a pocket Constitution, somewhere on my office desk. Its origins are obscure to me now, but I think I got it in the year of the Bicentennial. Somewhere printed it on it is the name of Congressman Wayne Hays, a committee chairman of some kind, who along with a secretary named Elizabeth Ray got a fair amount of publicity in that 1976 year, which publicity spread so far as to reach the notice of a 11 year-old boy reading Newsweek in Southwest Virginia.

Cronyism, nepotism, and equal protection

In Alexander v. Eeds, a panel of the Fifth Circuit held, among other things: "While we do not approve of promoting friends over others who may have superior objective qualifications, we cannot say that such a practice is not rationally related to a legitimate governmental objective."

Dennis Kennedy on CaseMap 5

Here is a review of CaseMap 5 from Dennis Kennedy.

My own use of CaseMap is sporadic but it is an excellent program.

Wednesday, November 24, 2004

News from the old neighborhood

According to this report in the Bristol paper, a meth lab was found in Abingdon three doors down from our old house, if the address in the article is correct. Washington County leads the Commonwealth in methamphetamine lab seizures. I don't know if that means our county has better enforcement or worse criminals.

Vermont ruling has no immediate effect on prior Virginia custody ruling

The Winchester paper has this update on the Virginia side of the litigation over the custody of the child of two women who were married or whatever you call it up in Vermont. The article notes that the appellant's brief is due in the Virginia Court of Appeals on December 8.

Look, bloggers made Jerry Falwell's Thanksgiving prayer list

It says here that among other things for which Jerry Falwell is offering a prayer of Thanksgiving: "I thank God for the Internet bloggers."

That's telling 'em

Fred from Floyd holds forth about foiling the foibles of foragers with firearms in the forest.

Muslim woman from SW Virginia sues on claim of religious discrimination

The AP reports here that a Muslim woman has filed suit against Goodwill Industries of the New River Valley, claiming that she was discharged because the company would not accommodate her religious beliefs about wearing a scarf.

Tuesday, November 23, 2004

The potentially rising cost of speeding in Virginia

The Washington Post has this article ("Raising the Stakes on Bad Drivers," 11/23/04) in which Virginia legislators discuss the possibility of increasing the fines charged to bad drivers in Virginia as a means of financing road construction.

Fortunately for old lead-foot drivers, these changes would not be retroactive.

New methods of public finance discussed

This article from the Scott County paper details the efforts of former members of Town Council in Gate City to obtain reimbursement for their attorneys' fees in connection with the election litigation.

The article says: "Henry Keuling-Stout, a Big Stone Gap attorney, told the board that even if they needed to hold a bake sale to pay all the attorneys' fees involved in the Gate City contest suit that they should do so."

Why drug-testing for high schoolers

In this article from the Williamsburg paper, school officials explain why they are working on a drug-testing program for high school athletes.

On asportation

In McAlevy v. Com., the Virginia Court of Appeals in an opinion by Judge Felton, joined by Judges Humphreys and McClanahan, held that the asportation element of the offense of larceny can be satisfied through the removal of the property by an innocent purchaser.

Judge Felton explains: "In order to establish a wrongful taking of the property, the Commonwealth must
prove that there was an asportation or carrying away of the property."

Those federal judges probably know what they are talking about

In Cherry v. Com., the Virginia Court of Appeals, in an opinion by Judge Elder, joined by Chief Judge Fitzpatrick and Judge Annunziata, said among other things: "Absent an express pronouncement on this issue by the United States or Virginia Supreme Courts, we follow the Fourth Circuit’s approach." This on the issue of the constitutional standard for warrantless entries.

Split panel of Court of Appeals overturns murder conviction based on after-acquired evidence of multiple personalities

In Orndorff v. Com., the Virginia Court of Appeals in an opinion by Judge Clements, joined by Judge with Chief Judge Fitzpatrick dissenting, overturned the appellant's first-degree murder conviction based on after-acquired evidence that she suffers from "dissociate identity disorder" and had at least "three different alter personalties:"

“The first,” according to Dr. Dell, “was a personality named Jacob who is apparently male and who was very
strong, forceful, given to speaking constantly with cuss words and who . . . [was] angry, confronting, challenging, tough.” According to Dr. Dell, Jacob was Orndorff’s “angry protector,” the alter personality that is usually “created in childhood” as a result of abuse and has “the job . . . of coming out and absorbing physical punishment that was more than the child could take.” The second alter personality encountered by Dr. Dell was “a character named Jean Bugineau,” who “insisted on speaking French.” The third alter personality was “a part” named “Janice Nanney” who was “twelve-and-a-half years old.”

Evidently, these other personalities did not start coming out in front of the doctors until after the guilt-phase of the criminal trial.

Chief Judge Fitzpatrick in her dissent agreed with the trial court that the appellant had not shown that this evidence could not with diligence have been discovered before the trial, and that the evidence was not such that there would have been a different outcome on the merits at another trial.

Court of appeals reverses circuit court order of medical examination under adult protective services laws

In Cavuoto v. Buchanan County Department of Social Services, the Virginia Court of Appeals in opinion by Judge Felton, joined by Judge Humphreys and Retired Circuit Court Judge Diane Strickland, reversed a decision by Judge Williams of the Buchanan County Circuit Court to order a physical examination of the appellant under the adult protective services laws, because the Circuit Court did not make the necessary finding that she was incapable of making informed medical decisions. The lawyers in the case were T. Shea Cook and Russell Vern Presley, II.

No Equal Pay Act claim despite similar job titles and similar general duties

Yesterday in Wheatley v. Wicomico County, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Luttig and District Judge Hudson, held that the plaintiffs had not proven a violation of the Equal Pay Act, concluding that: "plaintiffs present a classic example of how one can have the same title and the same general duties as another employee, and still not meet two textual touchstones of the EPA — equal skills and equal responsibility."

After explaining that some of the other department director jobs required advanced degrees, unlike the plaintiffs' positions, the Court noted: "to accept plaintiffs’ position would mean that although market demand for different skills may vary greatly, the salaries that employers pay for such skills must be the same."

Just in case you were wondering

Periodically, I get spam e-mails from LegalMetric, and I noticed among the other nuggets of claimed insight on the web page the following: "Medical defendants, including doctors, have a 50% greater chance of losing before Democratic appointed judges."

That is a very odd way of looking at things, even if it is true. Unless I'm mistaken, back when I started practice, every single state court judge in Virginia was appointed by Democrats, if you agree that the General Assembly picks the judges (but for the occasional recess appointment by the Governor).

Monday, November 22, 2004

Tennessee federal court OKs service of initial process by e-mail?

This post has a link to this opinion in which a federal court judge in Knoxville says the no account defendant could be served via e-mail.

Still more on the Liberty law school, this time from the NY Times

The New York Times reports here ("Giving the Law a Religious Perspective," 11/22/04) on the new law school at Liberty University, beginning with this sentence:

"The class in civil procedure, at the new Liberty School of Law here, began with a prayer."

The topic in class that day was the Supreme Court's decision in Erie v. Tompkins, and the professor declared it was bad:

"The Erie decision, which is viewed as uncontroversial in much of the legal academy, represented a disastrous wrong turn, Professor Tuomala said. In ruling that federal courts may not apply general principles in some cases but must follow state laws, he said, the Supreme Court denied the possibility of 'a law that's fixed, that's uniform, that applies to everybody, everyplace, for all time.'"

Now, that's odd. I can't remember what if anything we learned in law school about the Erie doctrine, but that wasn't it. Just the other day I was thinking that questions of federal common law are a royal pain to unravel.

Ann Althouse has more here. She says, in essence, don't teach those kids to go around arguing against the Erie doctrine, that would really be a legal argument without a prayer (or something like that).

Notes from a Virginia Democrat

A bigtime Democratic activist from Virginia had this piece in Sunday's Washington Post.

It begins:

"Many Democrats in Virginia have processed John Kerry's loss in the presidential election in stages: disbelief (the stunned befuddlement of Nov. 3), sadness (the sinking stomach of Nov. 4) and outrage (the rapidly spreading conviction, beginning roughly on Nov. 5, that the election had been 'stolen' by nefarious, Terminator-like voting machines).

Now many are contemplating a closing stage -- acceptance."

The article goes on to contrast the votes that Governor Warner got in 2001, with the returns for John Kerry, noting among other things:

"Unlike Kerry, Warner carried the 9th Congressional district, the state's most rural and conservative, which stretches west from Roanoke to the Kentucky border. In Lee County, at the very tip of Southwest Virginia, where Bush beat Kerry by 17 points, Warner won by 7 points. He also posted victories in conservative strongholds such as Bath and Alleghany counties, both bordering West Virginia; Kerry lost both."

Day 2 of Richmond paper's Supreme Court candidate review focuses on Judge Luttig

The Richmond paper has this article ("4th Circuit's Luttig said potential high-court pick," 11/22/04) about Judge J. Michael Luttig of the Fourth Circuit, another potential nominee to the U.S. Supreme Court.

Sunday, November 21, 2004

Who says we're a football school now?

While I wasn't looking, the Cavaliers snuck up on and beat Arizona in basketball earlier today.

As a result, I may find a way to be at the Siegel Center in Richmond for the Wahoos' game against Auburn on Friday night, December 3 - if I can figure out how to get some tickets.

LA Times discovers Liberty law school in Lynchburg

Via Yahoo! News, the LA Times has this story on the new law school at Liberty University in Lynchburg.

Proposal for secession of Northern Virginia

In this post, Dave Tepper (who links to this blog!) runs the numbers on the idea of the secession of Northern Virginia from the rest of the Commonwealth.

The Southwest Virginia - U.S. Supreme Court connection

As noted here by Howard Bashman, this morning's Bristol paper reported here ("Grayson County Fraser fir to adorn U.S. Supreme Court," 11/21/04) that this year's Christmas tree for the United States Supreme Court is from Grayson County right here in Southwest Virginia.

What about the Wal-Mart proposed for Exit 14?

Here in Abingdon, periodically there is talk about a new Wal-Mart to be built off Jonesboro Road at Exit 14. Exit 14, must be one of the worst-designed and therefore most dangerous interchanges of Interstate 81 in Virginia. Supposedly, a necessary precondition for the opening of the Wal-Mart is the reconfiguration of the exit with private funds, which in itself might be a good bargain for the public.

This topic came to mind as I read Is Wal-Mart good for America? by Bruce Bartlett.

Legal Fiction takes on the Virginia Gay Codes

Legal Fiction explains constitutional analysis with this post, against the background of what he calls "the Virginia Gay Codes," but he does not explain how to interpret these words: "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage."

More on the horse race for AG in 2005

This column from the Charlottesville paper says that of the two Republican candidates for Attorney General in 2005, Del. Bob McDonnell is ahead in terms of number of politician endorsements over the other candidate, Steve Baril. As for lawyer endorsements, the Baril campaign recently posted this list of Richmond lawyers who are supporting him, which list includes most (but not quite all) of the few Richmond lawyers within my limited sphere of acquaintance.

I looked up these two campaigns on VPAP to see if I could figure out which candidate is preferred by Southwest Virginians, or even, Southwest Virginia lawyers. Right now, McDonnell has received $1,945 from Southwest Virginia out of roughly $802,000 total, while Baril has received $0 from Southwest Virginia (which evidently accoding to VPAP excludes New River Valley locales like Radford) out of roughly $785,000 total. These figures make me think that the two candidates have not yet paid much attention to Southwest Virginia, and vice versa (or, the data are wrong).

Richmond paper looks at Judge Wilkinson for Supreme Court

In this article ("On short list for high court?," 11/21/04), the Richmond paper considers the prospects of Judge J. Harvie Wilkinson, III, of the Fourth Circuit as a candidate for nomination to the U.S. Supreme Court.

The only time I had Judge Wilkinson on a panel he voted in dissent against my side of the case, but I don't think the White House will hold that against him. Probably if he is not nominated it will because he is too old and has written too much, as a scholar and as a judge (unlike Miguel Estrada or even David Souter). Certainly, they could not pick a more pleasant fellow; from my limited observation he is a very congenial man, unlike, say, Robert Bork, who might be a great guy, but comes across as scowling and belligerent (but sometimes amusing) in his frequent TV appearances.

Two Roanoke lawyers who take big federal cases

Saturday's Roanoke paper has this article ("Good lawyers, good people," 11/20/04) on Roanoke lawyers John Lichtenstein and John Fishwick.

The article notes: "Lichtenstein, John Fishwick and their firm have the distinction of defending clients in two of the highest-profile federal criminal prosecutions locally: the cases of Burrow and Roanoke pain specialist Cecil Byron Knox."

It also says: "Federal Judge James Turk said in an interview that if John Kerry had won the presidential election, he thought Fishwick - one of Turk's former law clerks - might have been tapped to serve in the presidentially appointed position of U.S. Attorney."

The article includes this listing of notable cases:

"Dr. Cecil Byron Knox -- Helped defend the Roanoke pain specialist on allegations that he prescribed medication outside the scope of legitimate medical practice and other charges. Knox was acquitted on some some charges; others ended in hung jury; re-trial pending.

Richard Burrow -- Defended the former National D-Day Memorial Foundation President on perjury and fraud charges. Two trials ended in hung juries; charges eventually dismissed.

Larry Frazier -- Won a $350,000 settlement from Virginia for Frazier's survivors in the stun gun-related death of the Wallens Ridge inmate.

OTHER NOTABLE CASES

John McCloskey -- Fishwick has joined Roanoke attorney Jonathan Rogers in representing the family of the teenager who was brutally attacked at Western State Hospital in Staunton and later died.

Chris Henley -- Won a settlement of almost $1 million for a boy who was improperly diagnosed at a federally funded clinic in Saltville and almost died.

Amos Law -- Fishwick defended the only person to be acquitted as part of the moonshine crackdown called Operation Lightning Strike. His argument was that Law did not understand prosecutors' questions when he testified under oath before the grand jury, also known as the 'double negative' defense."

Vermont judge thumbs nose at Virginia again

The AP reports here and a Vermont paper reports here that the Vermont judge in the same-sex custody case has ruled that both women are the parents of the child in question.

Admissibility of web pages under the Federal Rules of Evidence

Denise Howell has this fine post with many interesting links on the topic of the admissibility of web pages as evidence. She says, among other things: "There's no reason to deem Web pages any more unreliable than any other form of scribbling."

This blog, then, will eliminate my efficacy as an expert witness, not that there was ever any prospect of that (except in the up and coming obesity litigation - related to which, I ate both a Big Mac and a Filet-o-fish earlier today).

Friday, November 19, 2004

More on the 225th anniversary of William & Mary Law

This press release includes the following account of Attorney General Kilgore's remarks on the occasion of the 225th anniversary party for the William & Mary law school, my alma mater:

"Attorney General Kilgore spoke on [a] much more personal level, being himself an alumnus of the William and Mary School of Law, class of 1986. He jokily mentioned the teaching vigor of, then Professor, Tim Sullivan at 8 in the morning in his contracts class. He also mentioned Dean Butler's property class. He continued in his joking manner and said, she taught the rule against perpetuities so well, that the first thing his twin brother did when elected to the Virginia legislature was to abolish it. Changing his tone to one of reverence, the Attorney General spoke of the great history of the law school, at one point calling it the alma mater of the nation."

The mention of Professor Butler causes me to recollect that she was the law school professor of whom I was the most afraid during the first semester. I think that the reason what that I learned somehow that she had been a math teacher. To this day, she figures prominently whenever I have the "Exam Dream," which generally ends with the happy realization that I have no more exams and that, in fact, calculus is not a subject on which examinations were generally given in law school.

All-stars

Here are the collected mugs of the Law.com affiliated bloggers, most of whom I've read for a while.

Used to be a blonde myself

Walter Olson has this post which chronicles a opinion in which it was held that blondes are not a protected class under Title VII of the federal Civil Rights Act.

The only blonde joke I can ever remember is this one:

"Two blondes walk into a building. You'd think at least one of them would have seen it."

Plaintiff in Richmond gets $500,000 award for eye surgery without anesthesia

The Richmond paper reports here ("Doctor, group at fault in surgery," 11/19/04) on the jury verdict in a medical malpractice case tried in the Circuit Court for the City of Richmond.

Four opinions from the W.D. Va.

In Meredith-Clinevell v. Department of Juvenile Justice, Judge Conrad of the W.D. Va. held, among other things, that the Eleventh Amendment bars state employees from suing the Commonwealth under the Fair Labor Standards Act for unpaid overtime.

In Greene v. Reliance Standard Life Ins. Co., Judge Wilson ruled that a disability insurer abused its discretion in its use of the Dictionary of Occupational Title's definition of "salesperson" for purposes of determining eligibility for disability benefits of the plaintiff, a former industrial equipment salesman.

In Fuller v. Camus, a case removed from Roanoke City Circuit Court, Judge Wilson dismissed with prejudice the plaintiff's claims against the United States and remanded the individual claims to state court.

In Brown v. Principi, Judge Wilson dismissed the plaintiff's employment discrimination claims, in part for failure to prosecute, as she had failed to participate in discovery, failed to show up for court hearings, and failed to abide by the Court's scheduling order.

Judge Flannagan awards $2,500 for Roanoke city manager in defamation case

The Roanoke paper reports here ("Burcham wins in her lawsuit against online columnist," 11/18/04) that retired Judge Flannagan found for the Roanoke City Manager Ms. Burcham and awarded damages of $2,500 in a defamation case against an online newspaper.

More on pro se litigants

This story from law.com contrasts the handling of pro se appeals in the Ninth Circuit and the Fourth Circuit, and includes some comments from Fourth Circuit Judge Paul Niemeyer.

The artice notes:

"The 4th Circuit has a three-tier method for dealing with pro se cases, Niemeyer said.

First, a staff attorney reviews a self-representing litigant's appeal and gives an oral or written presentation to a three-judge panel, which either recommends it for further review or dismisses it. At the second phase, staff lawyers send a lengthy memo to a three-judge panel recommending the case for oral argument.

At the third phase, a lead judge has moved the case to oral argument, and at that point assigns an attorney to argue it."

No constitutional violations in case of alleged gun at school

In Wofford v. Evans, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Williams and District Judge Titus, affirmed dismissal of the constitutional claims brought against Botetourt County School Board and various school officials in connection with its response to information that a student had brought a gun to school.

Judge Wilkinson wrote: "School officials must have the leeway to maintain order on school premises and secure a safe environment in which learning can flourish. Over-constitutionalizing disciplinary procedures can undermine educators’ ability to best attain these goals. Imposing a rigid duty of parental notification or a per se rule against detentions of a specified duration would eviscerate the ability of administrators to meet the remedial exigencies of the moment. The Constitution does not require such a result."

Thursday, November 18, 2004

McDonnell hits the road

The Richmond paper has this report ("McDonnell running for attorney general," 11/18/04) and the AP has this report on the formal start of the campaign of Del. Robert McDonnell as a Republican for Attorney General of Virginia in 2005.

Wednesday, November 17, 2004

Hunting for lawsuits in West Virginia

This story from one of the Charleston WV papers tells of how hunting season in West Virginia gives rise to much litigation.

The article quotes one fellow as saying: "If we continue this march of suing every aspect of our society, we'll be eating skinless chicken and drinking lukewarm coffee the rest of our lives."

On dealing with pro se litigants

May it Please the Court has this interesting post about pro se litigants, with many interesting links.

Mother's emotional distress claim preempted by birth-related neurological injury law

In Cooper v. Adler, a panel of the Virginia Court of Appeals in an opinion by Judge Frank joined by Judge Clements and Senior Judge Willis held that the plaintiff's mother's claim for emotional distress as the result of malpractice committed on her unborn child was barred by the Birth-related Neurological Injury Act.

Tuesday, November 16, 2004

Lawyer says his client thought Bush $200 bill was real

Backcountry Conservative has this delightful post describing a news story about a woman who protests her innocence even though she was caught trying to pass a $200 bill with the face of President Bush on it.

Monday, November 15, 2004

Squishiness and squirreliness

In this column about Tim Kaine, from the Charlottesville paper: "One wonders if Republican leaders will go as far as calling Kaine, or Catholic bishops and Jesuit priests for that matter, squishy or squirrelly for moral opposition to the execution of inmates in a state and nation in which DNA keeps governors saying 'oops' for having innocent men on death row."

Why did so many Virginia social services workers steal

The Newport News paper has this report ("Cases of Isabel food stamp fraud grow," 11/15/04) which speculates on the question of why so many social services employees are facing criminal charges for bogus food stamp claims in the wake of Hurricane Isabel.

One expert was quoted as saying that college degrees "don't necessarily lead to a higher moral system... or mean that you are more honest."

Burrow throws a party

The Roanoke paper reports here ("Burrow shares laughs with allies," 11/15/04) that D-Day Memorial fundraiser Richard Burrow had a big party with his friends on Sunday to celebrate his triumph over federal criminal charges that were tried in 2002 and again in 2004 before the U.S. dropped the case after a second hung jury.

Without the one-term limit, there would be fewer ex-governors

The AP reports here and the Washington Post reports here ("Gilmore Urges Panel to Change Va.'s Term Limit," 11/15/04) that Virginia's ex-governors agree that the one-term limit for the office of Governor of Virginia should be abolished.

This term limit makes as much sense to me as the limitations on the legislative and judicial branches, with the compressed legislative schedule and no appeal as of right in civil or non-capital criminal cases.