Friday, November 12, 2004


For the fifth time this season, I'm heading up to Charlottesville.

I'm hoping that whatever hex we put on Akron, UNC, Syracuse, Clemson, and Maryland extends to this week at Scott Stadium.

Thursday, November 11, 2004

First posted article in Spanish

I can't quite read computer articles even when they are in English, but who could resist a title like El Big Mac de Virginia Tech.

Making a list and checking it twice

Via this Bashman post, the Fifth Circuit in U.S. v. Andrews removed the trial court judge from the case on account of his antagonism toward the federal sentencing guidelines.

Virginia Farm Bureau declares rural vote made a difference

The president of the Virginia Farm Bureau declares here: "Strong support from rural Virginians made a significant difference in the recent presidential election. It also showed the importance of the farm vote in the upcoming race for governor in 2005."

Economic development commission says put Commonwealth's money in local banks

The Coalfield Progress reports here ("Commission wants state to bank at home," 11/11/04) that the Southwest Virginia Economic Development Commission is considering the idea that the Commonwealth should place its deposits in Virginia's community banks.

Spammer's bond set at $1 million

The Loudoun Times-Mirror reports here that the Circuit Court judge in Loudoun County has set bond $1 million for the NC man convicted in the Virginia spam case.

The life and death of Audie Murphy

The Roanoke paper reports here ("Veterans remember hero," 11/11/04) that war hero (and war movie actor) Audie Murphy died in a plane crash in Southwest Virginia in 1971.

Details of the spam operation underlying the criminal case in Virginia

Leesburg2day has this very interesting article ("Spam Case: How They Did It," 11/11/04).

Virginia pig facts

Via this post, the Virginia origins of "chitlins" are explained on this page, which begins: "In colonial Virginia, December was the time that hogs were slaughtered."

While my grandparents raised pigs outside of Christiansburg, we literally ate "high on the hog." The tenderloin and shoulder meat were great stuff, and the rest I have blocked out of my mind. Any excuse to recollect the food at their house is a good one.

I have often told the story of eating there twice on the day of the Virginia-Virginia Tech football game in 1984 (the game of the fourth down pass to John Ford) when my college roommates, those suave and debonair cosmopolitans, decided the best plan after the game was to go back and eat more at Grandma's house.

Chief Judge Jones grants summary judgment in slip-and-fall case

In Marchant v. Boddie-Noell Enterprises, Inc., Chief Judge Jones of the W.D. Va. granted summary judgment for the defendant on the issue of causation under Virginia law in a case about a fall outside a Hardee's restaurant, where the plaintiff had some vision problems and no one saw what made him fall.

Judge Williams awards attorneys' fees in the Doe v. Chao litigation

In Doe v. Chao, Senior Judge Williams of the W.D. Va. awarded attorneys to the lawyers who took the case to the U.S. Supreme Court, for their efforts on behalf of the one plaintiff who was a winner in the case.

The last time I tried to figure this case out, I blew it completely, so I won't try to explain what happened.

VMI man walks from Cumberland Gap to Virginia Beach

The Norfolk paper reports here ("From the mountains to the ocean, walker crosses Va.," 11/11/04) on a fellow who walked the long way across Virginia in 32 days.

On Virginia's not seeking NCLB waiver

This story ("Virginia lawmakers frustrated by Bush's education mandates," 11/11/04) from the Norfolk paper begins: "State lawmakers on Wednesday vented frustration with President Bush's education mandates but lost their nerve when it came time to register an official protest."

U.S. Supreme Court denies request to block disclosure of state polic papers in Earl Washington case

The Richmond paper reports here ("Murder-case papers unsealed soon?," 11/11/04) that the U.S. Supreme Court rejected the last-ditch effort by the Commonwealth to avoid discovery of state police documents in connection with the Earl Washington civil case pending in the W.D. Va.

More on the 225th anniversary of William & Mary Law

This press release has more detail on the 225th anniversary of legal education at the College of William & Mary in Virginia.

Swipe at NLRB on sexual harassment

In this post, a guest blogger at ACS takes issue with the decision of the National Labor Relations Board in the Holling Press case, on the point of whether a sexual harassment claimant was acting for the "mutual aid and protection" of other workers (as to fall within the scope of section 7 of the NLRA) when she tried to get a co-worker to testify in support of her claim.

Wednesday, November 10, 2004

Clash of the titans

From today's opinion list, in Stamathis v. Flying J, Inc., the Fourth Circuit in an opinion by Judge Widener, joined by Judges Michael and Gregory, affirmed the award of compensatory and punitive damages against a truck stop in Virginia for defamation and malicious prosecution.

The lawyers who argued the appeal were former D.C. Circuit Court of Appeals nominee Miguel Estrada from Gibson Dunn & Crutcher and appeals expert Monica Taylor Monday from Gentry Locke in Roanoke. Since Ms. Monday's arguments carried the day, maybe President Bush should nominate her to a judgeship.

Virginia doctors want tort reform

This article from the Washington Times begins: "Physicians and surgeons in Virginia, stung by rising medical-malpractice insurance costs, want state lawmakers to cap pain and suffering awards and limit how much money lawyers can make in malpractice cases."

From the Virginia prosecutor and Slashdot on harsh sentences for spammers

In the wake of the nine years imprisonment recommended for the NC spammer in the Virginia case, Slashdot has this thread on the topic of harsh prison sentences for spammers, which includes a link to this interesting article written by Russell McGuire, one of the prosecutors in the Virginia case, who is employed as an assistant attorney general in the Computer Crime Unit of the Office of the Attorney General of Virginia.

Wondering where's the money for Democrats running for AG

In this post, Waldo points out with respect to the race for Virginia attorney general in 2005, the Republican candidates McDonnell and Baril have each raised roughly $800,000, while the two Democrats Deeds and Edwards have raised less than $70,000 combined.

Waldo says: "If memory serves, my campaign raised more than John Edwards when I was running for City Council."

The return of Falwell

Commonwealth Commonsense has this post that says Southwest Virginia's own Jerry Falwell is rejoining the fray.

State supreme court justices at ASL

This press release identifies three and a half of the four state Supreme Court justices from Virginia and West Virginia who came to Grundy in October to judge the moot court competition at the Appalachian School of Law.

As I was in Grundy yesterday, I went by ASL, as I do almost every chance I get. It is a marvelous place.

More on John Preston Sheffey

A reader writes:

"You may be interested in knowing that John Preston Sheffey served 8 years (1895-1903) as judge of what is now the Circuit Court of Washington County and Smyth County. You will find his portrait hanging in the courtroom for the Circuit Court of Washington County. I also understand his life experiences included being an Emory & Henry graduate, a prisoner of war, and a member of the General Assembly of Virginia."

Tuesday, November 09, 2004

When does Virginia trial court lose jurisdiction to modify sentence of defendant who doesn't go to state prison

In Neely v. Com., the Virginia Court of Appeals in a decision by Judge Benton, joined by Judge Humphreys with Senior Judge Coleman dissenting, held that the trial court erred when it concluded it no longer had jurisdiction to modify the sentence of a criminal defendant who apparently was transferred from the local jail not to the custody of the Virginia Department of Corrections but instead to federal prison.

Federal jury finds for defense in free speech case

The Norfolk paper reports here ("Jury rules former Suffolk mayor did not suppress free speech," 11/9/04) that a jury in the E.D. Va. held that the defendant City Mayor did not violate the plaintiff's First Amendment rights by cutting off his comments at a public meeting.

Southwest Virginia lawyer's contemporary account of the Civil War in Southwest Virginia

The Roanoke paper reports here ("Eyewitness account of Civil War action in Southwest Virginia uncovered," 11/9/04) of the new book by James Robertson, "Soldier of Southwestern Virginia: The Civil War Letters of Captain John Preston Sheffey."

Westlaw suggests that J.P. Sheffey in his post-war guise as a lawyer appeared before the Virginia Supreme Court on brief or for argument at least five times between 1886 and 1892.

When is probation not the same as a suspended sentence

The answer is when you get probation in federal court, according to the Fourth Circuit's holding in U.S. v. Pollard, in which the Court in an opinion by Chief Judge Wilkins joined by Judge Traxler with District Judge Titus dissenting concluded that there was no violation of the constitutional right to counsel where the defendant was given probation for a speeding ticket (among other charges) at Quantico Marine Corps base, then faced incarceration when he got another ticket a few days later.

Monday, November 08, 2004

Not responsible for blogs other than my own

Having read this Jaded JD post, I can declare that I have no idea who he is, which is the key to how I got on his list, as he prefers to remain non-namous.

This afternoon, the partner down the hall said a judge asked him today about "his young associate." Oh, you mean, Dawn. No, the guy. Oh, you mean Eric. No, I thought his name was Minor. Oh, that guy, he's a partner now, he's been here 14 years.

Evidently, I can blog in all caps 24 hours a day without stirring the waters too much here in Bristol.

SW Virginia man sues over competing fantasy baseball website

The Roanoke paper reports here ("Fantasy baseball site plays hard ball," 11/8/04) that the Roanoke man who owns has filed suit in federal court against the owner of fantasybaseballheadquarters (if I understood the article correctly).

I was in a rotisserie baseball league for a while at the end of college and the beginning of law school. We had a player draft at a Chinese restaurant that I remember as being down Rte. 29 in some inscrutable location. I think my players were no good but I ate a lot of shrimp toast.

Greatest Shakespeare quote I only just now discovered

790. William Shakespeare. 1564-1616. John Bartlett, comp. 1919. Familiar Quotations, 10th ed.From The Taming of the Shrew. Act i. Sc. 2.: "And do as adversaries do in law, - Strive mightily, but eat and drink as friends."

What's former Virginia attorney general Mark Earley doing?

The Norfolk paper has this interesting article ("Mark Earley returns to his first calling, the ministry," 11/8/04) that says former Virginia Attorney General Mark Earley is now bringing the Gospel to bikers.

Sunday, November 07, 2004

Former DEA agent allowed to work in Afghanistan while manslaughter appeal pending

The Roanoke paper has this article ("Afghan deal draws criticism," 11/7/04) which begins: "Convicted of killing a Roanoke man in a restaurant parking lot two years ago, a former Drug Enforcement Administration agent is spending his time in Afghanistan rather than a prison cell."

You read it here first . . .

In this article from the Christian Science Monitor, a "rural strategist" for the Democrats is quoted as saying: "If a Democrat like John Kerry comes out to southwest Virginia and he tells everybody out here he's going to give him a $1,000 check, they'd never vote for it."

Tribe law students could work on trial of Saddam Hussein

This page from the William & Mary Law School says: "As the world awaits the trial of Saddam Hussein sometime next year, a group of students at the William and Mary Law School could find themselves working directly with the military tribunal that will hear the case of the ousted Iraqi leader."

Woman who brought phony injury claim gets jail time for fraud and perjury

The Richmond paper reports here ("Woman who sued sent to jail," 11/6/04): "A woman who sued on a claim that her arm was paralyzed - until the other side produced video of her lifting grocery bags and hanging laundry - is serving four months in jail after pleading guilty to fraud and perjury charges."

In her civil case, the woman was ordered to pay $27,000 in fees to the defendant after surveillance videos showed her claim of partial paralysis was false.

Fourth Circuit affirms application of German law

In Grecon Dimter, Inc. v. Horner Flooring Company, Inc., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Niemeyer and Shedd affirmed the enforcement of a choice of law provision that provided for the application of German law to the parties' dispute.

W.D. Va. standing order for redaction of personal data

Effective November 1, this order requires redaction of personal data in papers filed electronically or otherwise in the U.S. District Court for the Western District of Virginia.

Two-party system in West Virginia?

The Bluefield paper has this article considering whether there is now a two-party system in West Virginia, noting that in 2004, "Republicans made strides toward their goal of establishing competition in politics in the Mountain State rather than one-party rule."

Med mal panelists cannot be retained experts

In Chandler v. Graffeo, the Virginia Supreme Court in an opinion by Senior Justice Stephenson held, among other things, that experts who serve on a Medical Malpractice Review panel cannot then be retained as experts to testify in the subsequent trial of the case.

Justice Stephenson explained: "We find nothing in the statutory scheme respecting a panel's procedures that gives either party the right to retain an impartial panel member as an expert. In addition, we think that the impartiality required by Code 8.01-581.3 must remain through the conclusion of the trial. Indeed, impartiality would become an impossibility if either party were permitted to retain panel members as experts because no potential panel member would be without any anticipation concerning future consultation regarding the claimant or his family. Moreover, the panel members' appointment to and service on the panel would tend to clothe the expert, in the jury's view, with superior qualifications and greater credibility. We hold, therefore, that the trial court erred in
permitting the Panel members to testify as the Defendants' retained experts. Their testimony violated the intent and spirit of the statutory scheme; i.e., the impartiality of the Panel proceeding."

On this point, Justice Agee, joined by Justice Keenan dissented. Justice Agee concluded: "Nothing in the statutory scheme prohibits the additional step, should a party chose to do so, of retaining a Panel member as an expert witness to testify at trial on matters beyond the Panel opinion, once that opinion has been rendered."

Two Virginia defamation opinions by Justice Koontz

In Union of Needletrades, Industrial and Textile Employees v. Jones, the Virginia Supreme Court in an opinion by Justice Koontz reversed the award for the plaintiff in a defamation case, concluding that the plaintiff had failed to prove that the alleged defamatory statement was false. At trial, the jury in Fredericksburg had awarded $150,000 compensatory and $350,000 punitive damages. The trial judge reduced the punitive damages to $150,000. The Supreme Court reduced the damages to $0.

In Lindeman v. Lesnick, the Virginia Supreme Court in another opinion by Justice Koontz reversed the trial court on the issue of whether the alleged defamatory statements were privileged because they were made in connection with worker's compensation litigation. What happened in the case is instructive. The defendant was being treated by the plaintiff for his worker-related injuries, but wanted to get another doctor. He gave his lawyer some notes about of raw comments made by another doctor about the plaintiff doctor, and the lawyer accidentally sent them on to the insurance company. (The lawyer was also sued but later non-suited.) The notes said bad things about the doctor. The defendant claimed the notes he gave his lawyer were privileged because they related to his comp case. The trial court overruled the claim of privilege, because there were no ongoing proceedings in the comp case at the time of the communication. The case went to verdict in the Circuit Court for Williamsburg and James City County, and the jury awarded $350,000 compensatory and $25,000 punitive damages against the appellant. The Supreme Court agreed that the communication was not privileged, even though there was a potential for litigation.

Physician's testimony about what he did and why he did it does not open door to cross-examination on standard of care

Treating physicians are fact witnesses with expert knowledge, and in various contexts it becomes necessary to consider whether they may be treated like expert witnesses.

In Smith v. Irving, a medical malpractice case, the Virginia Supreme Court held on Friday in an opinion by Justice Keenan that the direct examination of the defendant surgeon about what he did and why did it did not open the door to cross-examination on the expert question of the standard of care for the treatment at issue in the case.

E.D. Va. clerk's office hours reduced

The AP reports here that the clerk's office in the federal courts of the E.D. Va. will be open only from 10 am to 4 pm. The E.D. Va. has clerk's office in Alexandria, Richmond, Newport News, and Norfolk.

Murder on the interstate

According to this report, a Pennsylvania jury has determined there is no jurisdiction in Pennsylvania to try a man for the murder in the case where he allegedly found his fellow traveler dead at a rest stop in Bristol, Tennessee, torched the victim's RV in Virginia, and tossed the body in the Susquehanna River in Pennsylvania.

With friends like this . . .

My old Pennsylvania Congressman Robert Walker was quoted in this article from the Lancaster paper on the faithlessness of Senator Specter from Pennsylvania, who has said some stupid stuff about future judicial nominations by President Bush. Walker said that Specter's nonsense "may have caused permanent damage to the senator among conservative groups."

UPDATE: Today's Lancaster paper has more here, as some Pennsylvania Republicans are saying Specter should not be chairman of the Judiciary Committee no matter what he says now.

Closer to home, in Tennessee, the state senate went Republican, but enough Republicans have cut deals that the old Speaker will keep his job, as reported here ("It's our Senate now, some in GOP tell Wilder," 11/7/04). One Republican candidate for Speaker is NE Tennessee's own Ron Ramsey, who won re-election in what was probably the nastiest campaign in this area.

So, I guess there are Republicans reaching out to Democrats, every where you look, and in ways that are driving other Republicans crazy.

Are we back in business?

Blogger has not been up to snuff lately, or I've been otherwise occupied, these last couple of days.

Meanwhile, the Virginia Supreme Court came out on Friday with a large group of interesting opinions. Of the ones that made some news, one was the Chesapeake water case, where the Supreme Court held that the design of the water system for the City of Chesapeake was a governmental function covered by sovereign immunity. See Cunningham v. City of Chesapeake. For press coverage, see this story ("Court rebuffs Chesapeake lawsuits over miscarriages," 11/6/04) in the Norfolk paper, this story from the AP.

Also regarding immunity, in Cowan v. Hospice Support Care, Inc., the Supreme Court in an opinion by Justice Keenan held that the doctrine of charitable immunity does not provide a defense to claims of gross negligence. The AP has this report on the case.

The Richmond paper had this story ("Va. high court lets localities contest zoning," 11/7/04) on Board of Supervisors of Fairfax County v. Board of Zoning Appeals of Fairfax County, in which the Supreme Court held that the county has standing to appeal a decision of the BZA. Also, related to zoning, the Supreme Court heard oral arguments in the General Shale case, as reported here ("Va. high court hears Orange County case," 11/7/04) in the Fredericksburg paper and here ("Mining disputed in state's high court," 11/6/04) in the Charlottesville paper.

In McCloskey v. Kane, the Supreme Court overruled the sovereign immunity defense asserted by individual physicians in the case of the young man who died at Western State hospital. The AP had this report and the Roanoke paper has this story ("High court of Va. rules medical suit can proceed," 11/6/04) on the case.

In telecommunications, the Richmond paper reports here ("Court upholds SCC ruling on Level 3," 11/6/04) that the Court affirmed denial of CLEC status to the appellant in Level 3 Communications of Virginia, Inc. v. State Corporation Commission, an opinion by Justice Lacy. The decision, according to the Richmond paper, would have the effect of thwarting "the effort by Level 3 Communications of Virginia Inc. to win the power of eminent domain so that it would have less trouble installing fiber-optic cable."

In criminal cases, the Court upheld the three death sentences imposed by the Circuit Court for the City of Lynchburg in the case of Winston v. Com., a lengthy opinion by Justice Lemons. The AP had this report on the decision.