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.


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).