Saturday, April 17, 2004

Interesting Delaware dispute involving University of Virginia law alumni

According to this report, an appeals court judge in Delaware told the lawyer the outcome of a case, who told somebody else about it before the opinion came out, with the result that the judge was investigated for misconduct, but cleared.

I wonder what Sneaking Suspicions or this Delaware law blog or ethicalesq would make of this.

Virginia county apologizes for closing schools to avoid integration

According to this report ("Closed school 'regret' stated," 4/17/04) in the Richmond paper, the county board of supervisors in Prince Edward County, where the schools were shut down to avoid integration, has approved a resolution 40 years later apologizing for that decision.

The article notes:

"As part of Virginia's policy of Massive Resistance to court-ordered desegregation, Prince Edward supervisors cut off funding to the school system. As a result, a private school was organized for white students, but black students were left on their own, with some going elsewhere to live with relatives, friends or sympathizers so they could continue their education. But many never returned to the classroom. They collectively became known as the 'Lost Generation.'"

Also, the Daily Press has this article ("Closed during 'massive resistance,' schools now a model of integration," 4/17/04) on the current state of integration in the Prince Edward County schools.

Only qualified immunity for pre-prosecution acts of patent and trademark examiners

Insurance Defense Blog has this post on the decision by the Fourth Circuit in the case of Goldstein v. Moatz, in which the Fourth Circuit held in a Bivens action that employees of the federal patent and trademark office were entitled only to qualified rather than absolute immunity.

More on the Car Tax

Ben Domenech is appalled at the latest talk about the car tax.

I can't say that I've quite got my mind around what was involved with the elimination of the car tax - my impression these days is that it involved elimination of a local tax on personal property that is reimbursed to the localities by the Commonwealth, with the result that the places with the most affected property get most of the money. So, now the Commonwealth has to raise more money (according to some) to pay for this subsidy to the localities, while not fully funding other obligations to localities (education), causing localities to raise real property taxes (in some places). Is that the way it works? Heck, back in 1997 or whenever it was, "no car tax" sounded like free lunch to me, who could oppose it, but now I'm still driving the car I had then, so the difference to my bank balance wouldn't buy me lunch today. I don't take the election of Gilmore as conclusive evidence that the elimination of the car tax, in retrospect, was fiscally wise (though it was certainly good politics, besides which I'm a Gilmore fan for other reasons). It seems like the distribution of funds from the Commonwealth to localities ought to be on some sounder basis than which places have the most expensive cars.

I was told by a local lawyer long ago when I was trying to rationalize the language of a settlement agreement that I was making the mistake of trying to get the settlement to make sense, when he was trying to get it approved by his client. Maybe budget-making is something like that.

Your faithful correspondent

As stated here in flattering terms, I have signed up as the Virginia court-watcher for the excellent Blog 702.

To my understanding, the Virginia Supreme Court has not quite adopted Daubert. See John v. Im, 263 Va. 315, 322, 559 S.E.2d 694, 698 (2002) ("we have not previously considered the question whether the Daubert analysis employed by the federal courts should be applied in our trial courts to determine the scientific reliability of expert testimony"). The relationship between the federal evidence rule and Virginia law, see Va. Code 8.01-401.1, et seq., remains largely unexplored, but I have heard at least one circuit court judge (Judge Weckstein from Roanoke) opine (at a seminar, years ago) that the gist of Daubert was Virginia law even before Daubert.

Some of the black-letter language is the same:

FRE Rule 702 says: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

Section 8.01-401.3(A) says: "In a civil proceeding, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise" -- and there it ends, leaving out the rest of Rule 702, and leaving it to the courts (as they have done, in my view) to add those provisos to the statute.

Friday, April 16, 2004

I'll be happier in a couple of years if you don't read this blog

According to this post from boingboing, people are happier at around age 42 when they realize for sure that they are not going to be rich and famous after all. (If everyone read my blog, I might still think I was going to be rich and famous.)

Governor Warner's press release on today's bill signings, amendments, and vetos

This press release describes the actions Governor Warner took today, including an amendment to Del. Marshall's same-sex marriage bill, HB 751; an amendment to the fetal homicide bill, HB 1; and amendments to the Home Schooling bill, HB 675.

Also, interestingly, the Governor vetoed a bill relating to dumping in the Big Sandy River, after Buchanan County figured out the law they requested would have some unintended consequences.

Fourth Circuit affirms conviction of WV traffic judge under honest services mail fraud statute

In U.S. v. Long, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Williams, and Michael affirmed the conviction of a municipal judge from West Virginia who engaged in a scheme that would allow drunk drivers to keep the licenses while causing large fines to be paid to the town.

Another listing of top Virginia business litigators

Via Robert Ambrogi, among those listed here are a few with whom I've had some lesser or greater dealings - Tom Slater, Ed Fuhr, Robert Rolfe, Bill Poff, David Harless - and some others I've met, and some others I've only read about on lists like this one.

When I was a law clerk, Jim Farnham (also on the list) tried a Snapper lawnmower case and got a defense verdict, and he was just fantastic. I've seen him a couple of times since then and told him (most recently at the Judicial Conference at The Homestead last summer) what a huge impression that trial made on me, almost 15 years ago.

Appeals court campaign ad - We lost 167 doctors, but got 169 new lawyers

As reported here, the West Virginia Chamber of Commerce is placing ads trying to influence the upcoming elections for the West Virginia Supreme Court - one ad includes the line, "In one year, we lost 167 doctors. On the other hand, we did get 169 new lawyers."

Virginia AG asks for contempt citations against Earl Washington lawyers for leaks

The AP reported here earlier in the week that the Virginia Attorney General's office sought contempt sanctions from the U.S. District Court for the W.D. Va. against lawyers for Earl Washington who allegedly leaked sealed documents to the Washington Post.

Spam defendant claims Virginia AG office has conflict because of AOL support

One of the defendants in the anti-spam prosecutions has filed some kind of motion to disqualify lawyers from the Attorney General's office because the AG received campaign contributions from AOL, according to this report from the Leesburg paper.

Governor Warner expands 21-day reform bill

The Washington Post reports here ("Warner Aims to Lift Limit on Felons' Appeals," 4/16/04) that Governor Warner offered an amendment to the legislation altering the 21-day final order rule for felony convictions, eliminating the one petition limit to conform the bill to the original Crime Commission proposal.

Governor Warner riles nudist park manager

According to this AP report, Governor Warner had some fun in signing the prohibition against juvenile nudist camps, and a nudist resort owner was made really mad thereby.

The latest great big Jim Baller interview

Via Al Bonnyman, CNET has this lengthy interview with municipal telecom guru Jim Baller, with whom I worked on some of his Virginia cases.

When asked about municipal broadband success stories, the first example he gave was this: "The fiber-to-the-home network in Bristol, Va., is more than a year ahead of projections only after a few months of being operational."

One of those FEC commissioners looks familiar

The Federal Election Commission's Michael Toner was at U.Va. and an editor of the University Journal at the same time when I was on the staff of that now-defunct student newspaper. I got learned into watching him and others on C-SPAN this week by the ongoing commentary on Rick Hasen's election law blog.

Thursday, April 15, 2004

Judge Jones takes on the captain of the ship doctrine

In Blevins v. Shesadri, Judge Jones of the W.D. Va. in a published opinion denied summary judgment on the issue of whether the defendant surgeon against who there was no evidence of direct negligence could nevertheless be liable under the doctrine of respondeat superior for the negligence of the nurse anesthetist.

It seems like not too long ago I read some article (see "'Negligent' receptionist tags doctors with liability," Virginia Lawyers Weekly, 2/5/01) about a case in Northern Virginia where the doctor group was held liable for the negligence of its receptionist, which outcome agitated me so much I e-mailed it to the lawyer in Pennsylvania for whom I wrote a memo about the captain of the ship doctrine in the summer of 1988, with a note that said, in effect, just as old generals fight the last war, old law clerks are still rewriting their very first research projects.

Arms export act affirmed as constitutional

In U.S. v. Hsu, the Fourth Circuit in an another opinion by Judge Motz, joined by Judges Widener and Gregory, rejected the constitutional challenge raised by the defendants in opposing their convictions for the unlawful exportation of encryption technology. Via the Paper Chase, the AP has this story on the case.

Liability but no damages in securities fraud case affirmed

Lyle Roberts has this post describing the outcome on the case of Miller v. Asensio & Co., Inc., in which the Fourth Circuit in an opinion by Judge Motz, joined by Judges Gregory and Duncan, affirmed judgment on a no-damages jury verdict in a securities fraud case.

On using Bloglines

This post from LawLibTech says why using Bloglines is great, and I use it myself, with 70 subscriptions.

When you come upon a blog that apparently has an XML feed, like mine, but the new posts don't show up on Bloglines or Bloglines can't seem to find, copy the URL for the xml site (e.g., and paste into Bloglines down where it says, "Subscribe by Entering URL."

One thing about using a RSS reader - some of these blogs have too much graphics and whatnot on the page and load so slowly, I would never wait long enough to see what they've got if I could read the posts via the RSS reader.

On the necessities for e-filing in federal court

PDF for lawyers offers this account of what is required.

His nutshell description is this:

"Create your pleading or other filing using your regular word processing software. If it allows you to save as a PDF, do that. If you use Acrobat or some other PDF-creating software, go through the required steps. If this basic creation process is any harder than selecting a printer and printing the document, think about a different software package.

Scan your paper, save the files as PDFs. Although the court basics don't say so, I'd OCR these documents as a courtesy in order to allow text searches. Give your documents human readable names if possible.

Log on to your court’s website using your (approved) browser, and let her rip."

Here is a short summary of my latest e-filing experience: I uploaded an unopposed motion with a draft order and got the confirmatory e-mail at 3:06 pm on Wednesday, and got back the e-mail notice with the link to the signed order at 11:37 am Thursday morning.

The only ambiguity about the e-filing interface is figuring out how to pick from the list of choices (which party, which kind of filing, related to which other filing) and fill in the blanks to correctly describe what it is that you are filing. (Another mini-anxiety I have is whether I uploaded the right file.)

Worth reading from Ernie

See "The Groundhog Day objection" from Ernie the Attorney.

Wednesday, April 14, 2004

Judge unhappy with weekend phone call from legislator about pending case

The Norfolk paper reports here ("Call from legislator about suit concerns judge," 4/14/04) that a circuit court judge got a phone call from a Virginia legislator about a pending civil case.

On legal writing and civility

Marcia Oddi has this worthwhile post about an opinion by a magistrate judge cracking down on the incivility and hyperbole in a brief.

I've read some briefs (or worse, heard oral argument) more or less like what the magistrate judge described, targeted straight at me, and it bothers me when it happens, but once in a blue moon, I see some evidence that not everyone regards me as a "blind pig." A few years back, I got a call from a young lawyer down in Johnson City, who said that his boss had told him that he'd got in a Miller Act complaint written by me, and he didn't understand why the case was styled as it was (The United States for the use . . .), but if I wrote it there must be a good reason for it, and so he wanted the associate to call me up for an explanation (which I gave). Another time I recall a judge turning to me in some motion hearing and saying essentially this: "since you're here, I expect you're going to tell me that you've got some redhot law that says the opposite." (And, I did.)

Stop the presses - rule on unpublished opinions gets by committee vote

Howard Bashman has this post updating the status of the proposed FRAP 32.1, of which I've tried to state my views, but I'm not sure whether I've done it yet.

Nobody would cite a federal case on a state law question if there is a state law case, nobody would cite an unpublished case where there is a published case, and no judge would be persuaded by an unpublished case that doesn't say anything. The niche for the use of unpublished cases is when there's nothing better to cite, and in those circumstances, what's the harm in being able to cite them, as Judge Turk might say, "for whatever it's worth"?

Caught by the Under Toad

Ben Domenech has this post blasting the toad swallowers who voted for tax hikes in the Virginia House of Delegates this week.

Unfortunately, I am distracted by the use of "toad". The Under Toad is a notion that I read about years ago in The World According to Garp and it has yet to escape my imagination, the story (explained more fully here) was one of the sons heard warnings of the undertow at the shore and misheard the adults to be saying there was an "Under Toad" lurking in the water just off the beach. Garp and the musical The Phantom of the Opera ("A toad, madam? Perhaps it is you who are the toad") and a ceramic object my dad once bought us for the yard, sort of an upside down pot (the Toad Abode) are the three things that automatically come to mind at any mention of the word, "toad."

Suspension without pay followed by reinstatement with pay is still adverse employment action

In White v. Burlington Northern & Santa Fe Railway Co., the majority of the Sixth Circuit sitting en banc concluded that the employer's actions in suspending the plaintiff without pay then reinstating her and paying back wages was enough of an adverse employment action to be actionable as a retaliation claim under Title VII.

Also, the en banc court ruled that the burden of proof for punitive damages under Title VII and 1981a is simply the usual preponderance of the evidence, rather than clear and convincing evidence. The dissent on the burden of proof issue attaches a lengthy appendix summarizing state law cases dealing with the burden of proof for punitive damages.

Well, I got the "clear and convincing" language in a section 1983 case some years ago, and the issue was not even litigated whether that was proper, but maybe state law is incorporated somehow into section 1983 cases by means of section 1988(a), which wouldn't be true of Title VII cases under 1981a (or something like that).

Risk-management principle in Virginia - get a room

The Daily Press opines in this commentary that persons in Virginia who might have sex in public would do better to get a room, but also that police officers who catch people having sex in public should avoid overcharging the case (as in the now-famous pending Newport News case).

Snake handling on Easter ends with death of Southwest Virginia minister

As evidence of the state of that old time religion right here in Southwest Virginia, the AP reports here that a minister was bitten during the rattlesnake-handling part of church services in Lee County on Easter Sunday and later died of the poison. The minister was said to be from Rose Hill, which is the town where my sister lives.

The Southwest Virginia connections of public radio's Noah Adams

I often shout at the car radio when I hear something really stupid on National Public Radio's "news" programs, but that doesn't mean I don't listen to "All Things Considered" (and "Morning Edition" and "Weekend Edition") at least some of the time. The Coalfield Progress has this report earlier in April on the Southwest Virginia connections of NPR on-air voice Noah Adams, who has also written this book about riding the New River in western Virginia (and West Virginia).

Is there race discrimination in law review write-on competitions?

This article details proposed changes in the write-on competition for slots on the law reviews at Vanderbilt, aimed at getting more minority members on the reviews.

Tuesday, April 13, 2004

First Amendment Center offends with their annual list of offenders

Professor Robert O'Neil from Charlotteville and his free speech friends are out with their annual list of government "muzzlers," as reported here in the Richmond paper. One of the finalists was the Charlottesville school in the NRA t-shirt case.

This year's list is really lame, with awards going to three non-government entities, which makes no sense at all, and also it seems to me that boycotters who refused to endorse the speech of Tim Robbins, the Dixie Chicks, and the producers of the fake Reagan bio-pic made the list merely for engaging in the expression of their own points of view and urging others to do likewise.

Opinions from last week in the Fourth Circuit

In McCoy v. Holland, the Fourth Circuit in an opinion by Judge Karen Williams, joined by Judges Niemeyer and Gregory, reversed Judge Glen Williams of the W.D. Va. and sided with the trustees and against the claimant in a UMWA pension eligibility case.

On the same day in a different case involving District Judge Williams, a different panel including District Judge Bennett, Judge Niemeyer, and Judge Traxler in Lone Mountain Processing, Inc. v. Bowser-Morner, Inc., where Lone Mountain was claiming against a design firm for work done on its coal slurry impoundment area for the operation near St. Charles in Lee County. Judge Williams threw the case out on the 5-year statute of limitations for written contract claims in Virginia. Final payment to the design firm was in 1995, the big accident was in 1996, and the lawsuit was filed in 2000. The court of appeals reversed, concluding that the claims for bad work were time-barred, but there was a contractual claim for indemnification that was not time-barred. Judge Traxler dissented on the point that the bad work claims were untimely, concluding that the claim did not accrue until sometime after final payment.

In EEOC v. Warfield-Rohr Casket Company, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Michael and Judge Hamilton, reversed the district court's summary judgment for the employer in an age discrimination case, concluding that there was a material dispute of fact on the issue of whether the employee would have been terminated even if age had not been considered.

Circuit court erred in dismissing appeal where body of petition named agency

In proceedings under the Virginia Administrative Procedure statutes, the Court of Appeals held in William Steel Erection Co., Inc. v. Department of Labor and Safety that the Circuit Court erred in dismissing the employer's appeal and denying its motion to amend, where the petition for appeal under Rule 2A:4 did not name the right party in the caption but mentioned it in the body of the petition.

Penalty for driving drunk with an underaged passenger not exclusive

In Wolfe v. Com., the Court of Appeals in an opinion by Judge Annunziata joined by Judges Frank and McClanahan affirmed the felony child abuse and neglect conviction under Va. Code 18.2-371.1 of a fellow who was caught driving drunk with his young child in the car, where the defendant argued that Va. Code 18.2-270 provided the exclusive penalty for driving drunk with a minor in the car.

Appeal of termination of parental rights dismissed for failure to list GAL in notice of appeal

In Watkins v. Fairfax County Department of Social Services, the Court of Appeals in an opinion by Judge Humphreys joined by Chief Judge Fitzpatrick and Judge Clements dismissed the appeal (regarding termination of parental rights) for appellant's failure to name all the right parties as appellees in her Notice of Appeal. Specifically, the appeal was dismissed because the guardian ad litem, an indispensable party, was not named as an appellee.

Goofy bank robber can't avoid robbery conviction by claiming no one was afraid of him

In the case of Seaton v. Com., the Court of Appeals in an opinion by Judge Kelsey joined by Judges Annuziata and Clements affirmed the robbery conviction of a fellow who came into a bank with a mask with home-made eyeholes and his hand in his pocket and demanded money from the bank teller, whose initial response was, "you've got to be kidding. The defendant took the money from the bank and drove to a convenience store, where he bought $800 worth of "beer, cigarettes, porno movies, [and] money orders."

Interesting medical malpractice appeal

One of the appeals granted recently by the Virginia Supreme Court includes this one in a case involving Mary Lynn Tate from Abingdon, where the issues are these:


1. The trial court erred in permitting defendants to introduce the opinion of the Medical Malpractice Review Panel (“MMRP”) and members’ testimony in violation of Va. Code § 8.01-581.7:1 because the Panel’s decision was rendered beyond the mandatory six month time required after the Panel was designated.
2. The trial court abused its discretion and violated the statutory requirement for panel impartiality when it permitted trial testimony from two (2) MMRP members as retained defendants’ experts and as panel members, after they had rendered panel opinions in defendants’ favor.
3. The trial court abused its discretion when it permitted the defendants to call two MMRP members as retained defendants’ experts at trial without disclosure of their retained expert status to plaintiffs.
4. The trial court erred in giving jury instructions on the issue of contributory negligence because the claimed negligent conduct of decedent was not contemporaneous with defendants’ negligence as a matter of law.
5. The trial court erred in refusing Plaintiffs’ Instructions No. P3 and No. P4 regarding concurring negligence because the evidence showed both King and Graffeo were negligent.
6. The trial court abused its discretion in permitting defendant Dr. Graffeo to recite hearsay opinions of non-testifying physicians to confirm his patient assessment.

Scorecard on electronic filing in the federal courts

The Federal Judiciary website has this update on the status of the implementation of electronic filing in the federal district and bankruptcy courts.

Sunday, April 11, 2004

Awesome Masters

I've probably watched at least part of the last 30 Masters tournaments, and this one rates up there with 1986 as the best.

On the subject of golf, I mentioned in my "welcoming remarks" on Friday afternoon a bench-bar golf tournament held at the Bristol Country Club, which I described as "memorable." The unstated part of what made it memorable was that I received a "trophy" (a broken 7-iron, still on display in my office) for coming in tied as the worst golfer in the 28th Circuit, a title I've yet to relinquish.

Mayhem on the railroad tracks in Charlottesville

This post comments on why two underaged students would not be anxious to report to law enforcement that they were robbed on the railroad tracks near Rugby Road.

On the criminalization of spam in Virginia, when 50% of all e-mail goes through Virginia

This post and related comments reflect on whether it is a good or bad thing for Virginia to be prosecuting people who send out spam that passes through servers in Virginia.

The dark history of Western State at Staunton

This post gives one account of the history of Western State Hospital, for which Staunton officials are now seeking new uses.

Democrat delegate from Fairfax may run for lieutenant governor

The Richmond papers reports here ("Petersen weighs bid for No. 2 spot," 4/10/04) on the possible candidacy of Del. J. Chapman Petersen from Fairfax for the Democratic nomination for lieutenant governor in 2005.

Another judge needed for 28th circuit?

In this article from the Bristol paper, Judge Kirksey took advantage of one of his few opportunities to speak to the paper to mention that it would be a good thing if another judge was added to the 28th Circuit, perhaps the only circuit in Virginia with only two judges.

When I've heard this topic discussed in the past, one idea was that the 28th Circuit would be merged with the 29th Circuit, and a new judgeship added that would be split between the two, which sounds complicated. I don't know whether that idea was anything more than idle talk.

New, specific medical criteria for brain-injured children fund

The Richmond paper reports here ("New criteria may limit entry to brain-injury program," 4/11/04) that new medical standards are being proposed for the receipt of compensation under the Virginia Birth-Related Neurological Injury Compensation Act, Va, Code 38.2-5000, et seq.

Lynchburg delegate among those who see the Earth as round

The Lynchburg paper has this report ("GOP mavericks hold fate of budget," 4/11/04) on the efforts of Delegate Preston Bryant to reach a budget compromise.

The article quotes Professor Sabato as saying with regard to the "maverick" Republicans, "Apparently not everyone is a member of the flat Earth society."

The effect of redistricting on the budget

This column from the Charlottesville paper links the budget mess to redistricting that leaves Republican legislators with no fear of defeat at the polls.

Bond rating talk is irrational?

This Washington Post article ("A Wealth of Pride Behind Bond Rating," 4/11/04) suggests to me that of all the things that ought to be important to elected officials in Virginia, the AAA bond rating is neither worth much money nor is it worth many votes, so where's the beef? Nobody is going to get re-elected on the slogan - "Keeping the Commonwealth's creditworthiness as good as Maryland's."

(Professor Sabato apparently disagrees, as he is quoted as saying, "This is the kind of thing we expect from Maryland or D.C. Everybody will be in trouble, potentially.")

Governor Warner as beneficiary of budget mess?

This Richmond Times article ("Tax-plan passage could roil GOP, boost Warner," 4/11/04) suggests that Governor Warner may come out as the political winner of the budget mess.

I don't know. The ex-governor down in Tennessee, Sundquist, who changed his tune on taxes, is apparently the least-popular fellow in the state. Perhaps the circumstances are different in Tennessee.

Tech community divided over lasting effects of flip-flops on affirmative action

The Roanoke Times reports here ("Virginia Tech still haunted by decisions on affirmative action policy," 4/11/04) that everybody has an opinion about the lasting effects of the zig-zagging by the Virginia Tech Board of Visitors regarding the use of race in admissions policies and other programs. The article says: "opinions differ on whether the board and university administration have regained some of the trust that was lost among members of minority communities and others on campus. There is also disagreement about whether changes to minority recruitment programs in recent months will help or hurt Tech's efforts to build a more diverse campus."

Some at U.Va. protest police tactics in hunt for serial rapist

Tactics applied by the police department of the City of Charlottesville in the hunt for a serial rapist has some members of the African-American community at the University of Virginia crying foul, according to this AP report.