Saturday, February 07, 2004

No relief from 21-day rule for those who plead guilty

As reported here ("Senators' effort on 21-day bill falls short," 2/6/2004) in the Roanoke paper, a Senate committee rejected an amendment to the 21-day rule that would allow felons who plead guilty to get submit evidence of innocence more than 21 days after the entry of the final order in their criminal cases. As reported here ("Senate Votes to Lift Time Limit on New Evidence," 2/7/2004) in the Washington Post (registration required), the Senate passed a more limited alteration to the 21-day rule, that may face difficulties in the House of Delegates.

E.D. Va. prosecutors blast Judge Lee's rulings on appeal of the Lentz case

According to this AP report, the lawyers for the U.S. Attorney's office in the Eastern District of Virginia have harshly criticized the rulings of the trial court in the kidnapping case of Jay Lentz. The trial judge found, among other things, deliberate misconduct by one of the trial counsel for the government, in a case where improper evidence somehow turned up in the jury room for their deliberations.

Hoping for an employee discount at the Cheese Shop

According to this report ("Study shows W&M faculty looking for other jobs," 2/6/2004) in the Norfolk paper, a recent survey found that one-third of the faculty at the College of William & Mary have looked for other jobs in the last couple of years.

Senator Robb back in the news

I noted that former U.S. Senator and Virginia Governor Charles Robb was among those named by President Bush to the panel to investigate intelligence failures leading up to the war with Iraq. The Richmond paper describes here and the AP describes here the background of Senator Robb, who is still identified in part as the "son-in-law of the late President Lyndon Johnson."

Senator Robb's story is pretty well-known to Virginians: Marine marries the President's daughter, becomes a lawyer, gets elected to a succession of greater offices, gets bored with it all, gets run out of town for a scandal involving a beauty queen, lives happily ever after.

In his last successful campaign, Senator Robb defeated Iran-contra figure Oliver North, of whom Robb declared that North was a "document-shredding, Constitution-trashing, Commander in Chief-bashing, Congress-thrashing, uniform-shaming, Ayatollah-loving, arms-dealing, criminal-protecting, résumé-enhancing, Noriega-coddling, Social Security-threatening, public school-denigrating, Swiss-banking-law-breaking, letter-faking, self-serving, election-losing, snake-oil salesman who can’t tell the difference between the truth and a lie," according to Bartleby's.

U.S. drops charges in Shenandoah Nat'l Park double-murder case

The Roanoke paper reports here ("U.S. to drop Rice's charges," 2/7/2004), the Richmond paper reports here ("U.S. moves to drop Rice charges for now," 2/7/2004), and the Washington Post (registration required) reports here ("Charges Dropped In Hikers' Slayings," 2/7/2004) that federal prosecutors are dropping all charges against the defendant accused of murdering two women in the Shenandoah National park.

Carroll County Courthouse tragedy

This column from provides a summary of the shootout in 1912 at the Carroll County courthouse.

Lawyers in Super Bowl halftime lawsuit - do as I say, not as I do

Blog 702 has this post with a link to this page from the website of the Tennessee lawyer who filed the class action on behalf of all the victims of the Super Bowl halftime show.

The Supremes' Greatest Hits

Tim Sandefur is working out here the 10 most important Supreme Court opinions every lawyer should read (or something like that).

I haven't the breadth and depth to answer the question, but I can say which ones have the greatest effect on my work in section 1983 cases:

1. Monroe v. Pape, 365 U.S. 167 (1961)
2. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978)
3. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)
4. Harlow v. Fitzgerald, 457 U.S. 800 (1982)
5. Malley v. Briggs, 475 U.S. 335 (1986)
6. Graham v. Connor, 490 U.S. 386 (1989)
7. Heck v. Humphreys, 512 U.S. 477 (1994)
8. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)
9, 10, 11, 12. Pickering/Connick/Elrod/Branti

Also, my top two personal favorites:

1. Garcia v. SAMTA - a case I studied to death in college, only to find it on a law school exam the next fall, resulting in a book award
2. Stanley v. U.S. - what I once wrote about this case got me onto the Law Review and helped get me into a U.S. district court clerkship

Protecting our troops

Incredibly, with a local reserve unit about to deploy Iraq, local people have been raising money to buy for them bullet-proof vests. The failure to provide this equipment would be quite a scandal, and Republican congressional candidate Kevin Triplett is trying to pin the blame on Congressman Boucher, as reported here ("Ninth District hopeful Kevin Triplett lashes out at Boucher," 2/7/2004) in the Bristol paper. On Thursday, for what it's worth, military officials gave assurances that the reservists from Southwest Virginia would all be fitted with the proper gear before leaving Fort Dix, New Jersey, according this report ("Officials say soldiers assured of receiving body armor ," 2/6/2004) in the Bristol paper. Senator Allen's office put out this press release that he had been reassured by the Defense Department that the Southwest Virginians would get their body armor.

Clark and Edwards come to Bristol

The Bristol paper reports here ("Wesley Clark cites war as "last resort" of foreign policy," 2/7/2004) and the Kingsport paper (registration required) reports here ("Clark serves up red meat rhetoric," 2/7/2004) on the Wesley Clark visit to Bristol, while the Bristol paper reports here ("Edwards: 'We can't change this country without you,'" 2/7/2004) and the Kingsport paper (registration required) reports here ("Edwards campaigns in Bristol ," 2/7/2004) on the John Edwards visit to Bristol on Friday.

The Norfolk paper reported here ("Clark pulls ads, puts most of his focus on Tennessee," 2/6/2004) on Friday that Clark was giving up somewhat on Virginia and focusing more on Tennessee, to save money, particularly since TV ads in Northern Virginia cost a lot of money. Earlier in the week, former Governor Baliles endorsed Senator Kerry, as reported here by the AP.

Friday, February 06, 2004


This correction by the Fourth Circuit reads as follows: "The court amends its opinion filed January 23, 2004, as follows: On page 4, line 6 -- the phrase 'term of sixty years' is amended to read 'term of sixty months.'"

Another corner heard from - SENATOR Warner takes on state budget

U.S. Senator John Warner is on board with a group that says new state taxes in Virginia are necessary, according to this report in the Richmond paper and this report in the Washington Post.

Primary fever strikes Southwest Virginia, Northeast Tennessee

The Richmond paper reports here ("Southwest eager for primary," 2/6/2004) and the AP reports here ("Clark, Edwards campaign in southwest Virginia," 2/6/2004) on the excitement in Southwest Virginia about the Virginia presidential primary. The Roanoke paper reports here ("Democrats fear storm of confusion at primary," 2/6/2004) that it will be possible to vote for the candidate of your choice and attend a monster truck show on the same day in Roanoke. This article and this article say the Kerry, Edwards, and Clark campaigns were on the loose today in Eastern Tennessee.

Supposedly, Wesley Clark is having a rally right now down the street from here on the Tennessee side at the Stateline Grille.

With primaries on both side of the line, Bristol is in fact the center of the political universe this week, at least until Tuesday.

Another possible Republican candidate for Lt. Governor

The Gainesville Times reports here ("Connaughton considers bid for lt. gov. ," 2/6/2004) that the chairman of the Board of Supervisors of Prince William County may run for the Republican nomination for lieutenant governor in 2005.

Thursday, February 05, 2004

Delegates want Va. S.Ct. to change rule to encourage electronic filing

The Coalfield Progress reports here on this House resolution submitted by Delegates Phillips and Kilgore asking the Virginia Supreme Court to change Rule 1:17 to eliminate the language that says ""by the consent of the parties and agreement of the clerk" and replace it with "by election of any party to the litigation." The resolution notes that "the Office of the Executive Secretary of the Supreme Court of Virginia is now preparing for a statewide electronic filing system to be enabled during the next year." (That's news.)

The change in the Rules might be a noble concept, but I found out the other day that there are some lawyers in Bristol, Virginia, who have no fax machines, much less e-mail or Internet access. I'd say that's the case for a few lawyers in every jurisdiction in the state. Would it be beyond the bounds of zealous advocacy to require electronic filing of such a lawyer on the other side of a case?

No new birth certificates for children born in Virginia adopted elsewhere by gay couples

I'm not entirely sure what this case is about, but I think the article says that Judge Johnson of the Circuit Court for the City of Richmond agreed with the Attorney General's office that new birth certificates should not be issued for children born in Virginia who were adopted by out-of-state same sex couples.

I never heard that anybody could get their birth certificates re-written, that sounds like some kind of scam. It sounds like rewriting history.

On state lines and horses' behinds

Rory Perry has a link to this delightful speech by an Australian judge who explains why the width of the booster rockets for the space shuttle is limited to twice the width of a horse's behind (the historic width of the railroads, including existing tunnels still in use), as an introduction to the problems of integration national legal practices in Australia to overcome entrenched local differences among the states there.

We are on the state line here in Bristol, and once upon a time I encounter stuff that I can't understand over on the other side, but I wouldn't attribute it to horses' behinds.

Ernie on the use of magistrate judges and summary judgment motions

Ernie the Attorney has this post regarding the use of magistrate judges in his ongoing "law clerk" chronicles.

Ernie asks: "But why would a district judge routinely refer dispositive motions to a magistrate for decision? Whoever loses the motion before the magistrate is probably going to appeal to the district judge, who will have to conduct de novo review of the merits of the motion. This practice seems like a complete waste of everyone's time: the litigants, the lawyers, and the magistrate."

Ernie goes on to say that his judge would not grant motions for partial summary judgment unless they were sure-fire winners or unless they would save time at trial. Of course, all of my motions meet that standard.

Then again, maybe not. One time I filed for summary judgment on some issue about 10 years ago and when the judge wouldn't rule I told him I needed to at least know which way the wind was blowing, a figure of speech which was very poorly received. On the top 10 list of stupidest things I've said or done as a lawyer, that would make the list.

Woman files class action as representative for all who saw Super Bowl halftime show

This delightful post from Shots Across the Bow and this post from Instapundit and this post from Overlawyered tell the story of a Knoxville woman who has filed a class action on behalf of 80 million Americas who watched the Super Bowl and suffered emotional distress because of the halftime show.

This post from the Trademark Blog makes the point that the last thing we need is for the law to recognize an implied contract between TV and TV viewers.

New standing order on CM/ECF for the W.D. Va.

Here is the new standing order for the W.D. Va. on case management and electronic filing - which a reader from Roanoke pointed out to me earlier this week.

The order says, among other things, that "[a]ll attorneys appearing before this Court on or after December 13, 2004, shall be required to file all documents electronically, unless otherwise authorized by the presiding judge or the electronic filing procedures."

I saw a memo last summer listing the members of a committee for electronic case filing in the W.D. Va. The members of the committee at that time (July 9) were stated as Chief Judge Wilson, Magistrate Judge Sargent, Jeremy Carroll of Danville, Henry Keuling-Stout of Big Stone Gap, the Clerk John Corcoran, Norman Kinnier from Lynchburg, AUSA Julie Dudley, Deputy Clerk Patti Nelms, Bill Eskridge, Bill Poff, and Gary Kendall from Charlottesville. Of the lawyers, I know that Mr. Poff is a real cyberdog, I don't know about the others, but maybe a panel of tech-savvy people is not what was desired.

I imagine the procedures once promulgated will be something like these I have been studying from the Southern District of Ohio.

Wednesday, February 04, 2004

Amendment to rule for production from non-parties

This week posted on the Virginia judiciary website was an amendment to Rule 4:9:

Rule 4:9. Production of Documents and Things and Entry on Land for Inspection and Other Purposes; Production at Trial.

(c) Production by a Person Not a Party.
(1) Subpoena duces tecum issued by clerk of court. Upon written request therefor filed with the clerk of the court in which the action or suit is pending by counsel of record for any party or by a party having no counsel in any pending case, with a
certificate that a copy thereof has been served pursuant to Rule 1:12 upon counsel of record and to parties having no counsel, the clerk shall, subject to paragraph (c-1), issue to a person not a party therein a subpoena duces tecum which shall command the person to whom it is directed, or someone acting on his behalf, to produce the documents and tangible things (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form) designated and described in said request, and to permit the party filing such request, or someone acting in his behalf, to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 4:1(b) which are in the possession, custody or control of such person to whom the subpoena is directed, at a time and place and or the period specified in the subpoena; but, the court, upon written motion promptly made by the person so required to produce, or by the party against whom such production is sought, may (1) quash or modify the subpoena if it is unreasonable and oppressive, (2) condition denial of the motion to quash or modify upon the advancement by the party in whose behalf the subpoena is issued of the reasonable cost of producing the documents and tangible things so designated and described or (3) direct that the documents and tangible things subpoenaed be returned only to the office of the clerk of the court through which such documents and tangible things are subpoenaed in which event, upon request of any party in interest, or his attorney, the clerk of such court shall permit the withdrawal of such documents and tangible things by such party or his attorney for such reasonable period of time as will permit his inspection, photographing, or copying thereof.
(2) Subpoena duces tecum issued by attorney. In a pending civil proceeding, a subpoena duces tecum may be issued by an attorney-at-law as an officer of the court if he is an active member of the Virginia State Bar at the time of issuance. An
attorney may not issue a subpoena duces tecum in those civil proceedings excluded in Virginia Code § 8.01-407. An attorneyissued subpoena duces tecum must be signed as if a pleading and be accompanied on the subpoena by the attorney’s address, telephone number and Virginia State Bar identification number. A copy of any attorney-issued subpoena duces tecum must be mailed or delivered to the clerk’s office of the court in which the case is pending by the attorney on the day of issuance with a certificate that a copy thereof has been served pursuant to Rule 1:12 upon counsel of record and to parties having no counsel. If time for compliance with an attorney-issued subpoena duces tecum is less than fourteen (14) days after service of the subpoena, the person to whom the subpoena is directed may serve on the party issuing the subpoena a written objection setting forth any grounds upon which such production, inspection or testing should not be had. If an objection is made, the party issuing the subpoena shall not be entitled to the requested production, inspection or testing, except pursuant to an order of the court in which the civil proceeding is pending. If an objection is made, the party issuing the subpoena may, upon notice to the person to whom the subpoena is directed, move for an order to compel the production, inspection or testing. Upon a timely motion, the court may quash, modify or sustain the subpoena as provided above in subsection (c)(1) of this Rule.

Wasn't all this already in the Rules somewhere, or am I thinking of FRCP 45?

Still the champ

In Harris v. Holland, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams, Motz, and King, with Judge Williams dissenting, affirmed the ruling of Judge Glen Williams against the UMWA Funds on a disability pension claim.

I think Judge Glen Williams knows more about these claims that anyone.

Six more weeks of?

Punxsatawney Phil saw his shadow, meaning six more weeks of winter. In an unrelated development, Judge Jones denied in this opinion the last round of pre-trial motions to dismiss in the Gilmore and Church cases, meaning six more weeks of trial.

Tuesday, February 03, 2004

Judge Richard Williams overturns Virginia abortion law

Just in time for the General Assembly session, Judge Richard Williams of the E.D. Va. has overturned the new partial-birth abortion law from last year's General Assembly session, as reported here on, here on, in this article ("Abortion curbs ruled illegal," 2/3/2004) from the Richmond paper, in this article ("Va. Late-Term Abortion Ban Struck Down," 2/3/2004) from the Washington Post, this article ("Federal judge overturns ban on late-term abortion in Va.," 2/3/2004) in the Norfolk paper, and this AP article.

P.S. The Attorney General's statement is here, and the Lieutenant Governor's statement is here.

Satellite-based internet service available in parts of western Virginia

This press release declares the availability of a satellite-based internet service for some rural areas of western Virginia, with connection speeds at 400 kbps, though the Rockbridge Global Village.

Monday, February 02, 2004

Preliminary caseload statistics for Virginia state courts

Posted on the Virginia judiciary website are preliminary statistics for the circuit courts and the district courts.

Southwest Virginia chools fear claims of employees who got detention?

The Bristol paper reported here ("School systems targets for alleged violations of Fair Labor Standards Act," 2/1/2004) over the weekend that some local school systems are worried about overtime claims under the Fair Labor Standards Act.

I never heard of an FLSA against a school system in Southwest Virginia, more common are claims of emergency workers - rescue and law enforcement workers.

Court-appointed lawyers in Virginia doing a bad job?

The Richmond paper has this report ("Va. cited for weak counsel," 2/2/2004) on a study which concludes that the lawyers receiving appointments by Virginia's state courts to represent the indigent are doing a bad job.

Environmentalists don't like proposed coal-burning power plant for Southwest Virginia

As you might expect, the environmental lobby has nothing good to say about the proposed new coal-burning power plant to be built in Southwest Virginia, as reported here ("Coal plant derided as dinosaur," 2/2/2004) in the Roanoke paper.

Doctors come to Richmond to cure what ails medical malpractice law in Virginia

The Roanoke paper reported here ("Doctors to swarm Richmond," 2/1/2004) on the lobbying efforts of the medical establishment for reform in the law of medical malpractice in Virginia.