Virginia once again a battleground site for the national conflict

This article from the Washington Times about outside forces wanting to jump into the Virginia governor's race make me think of the Civil War.

Minor solidarity

The Kingsport paper reports on a recent local government meeting at which Jonesville residents questioned proposed road name changes. Included among the citizen comments was this: "Allen Minor questioned why two streets named after his daughters had to be renamed and countered the argument that streets bearing personal names often had signs stolen with the argument that signs had never been stolen on Linda and Elaine streets. Minor said he donated the right of way for the streets and dedicated the names for his daughters, and he did not believe the streets should be renamed."

I'm with him all the way, not that I'm entirely sure who he is, but he must be related. In fact, there should be more streets in Jonesville named for Minors.

Good thing this blog was not mentioned

In this story from the Richmond paper, a VCU professor says: "Blogs can be very amateurish, unethical hack jobs."

Still no joy getting out of committee for Fourth Circuit nominee Judge Boyle

Again, via How Appealing, I see that the Winston-Salem paper reports here ("Third postponement no charm for judge," 4/29/05) that the Senate Judiciary Committee has postponed yet again taking action on the nomination of District Judge Boyle from North Carolina to the Fourth Circuit.

Rev. Falwell double-dog dares Sen. Warner to defy him on filibuster vote

Via How Appealing, I see that the Lynchburg paper is reporting here ("Falwell lays down marker for Warner," 4/30/05) that SW Virginia's own Rev. Jerry Falwell is challenging Sen. John Warner to come across on the vote to limit filibusters on the President's judicial nominees.

Senator Warner, I suspect, is not going to run again and will do whatever he pleases.

From 1975 - an interview with Kentucky writer and lawyer Harry Caudill

Here is an interesting interview with the late Harry Caudill, from 1975, on the nature and origin of the people of Apalachia.

Last year's most bizarre employment cases

Via Strategic HR, here is a list of the most bizarre employment cases from 2004.

Predicting the outcome of death penalty cases

This ACSBlog post links to a CSM report about a computer program that predicts the outcome of death penalty cases and is mostly accurate but is troubling because it considers all the wrong factors.

Denial of qualified immunity affirmed in Earl Washington civil case

In Washington v. Wilmore, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Motz, and with Judge Shedd concurring separately, affirmed the denial of qualified immunity to one of the defendants sued by Earl Washington in the W.D. Va. The defendant, now deceased, was an agent of the Virginia State Police.

Denial of habeas relief reversed in Walton case

In the case of Virginia deathrow inmate Percy Walton, the Fourth Circuit in an opinion by Judge Motz, joined by Chief Judge Wilkins, with Judge Shedd dissenting, reversed Judge Wilson and sent the case back to the District Court.

The AP had this report on the decision.

Three sentencing opinions from the Fourth Circuit

Today, in U.S. v. Bartram, the panel of Judges Widener, Niemeyer, and Gregory agreed on the result, and Judge Widener and Niemeyer agreed on part of the analysis, in finding no reversible error in the defendant's sentence following his guilty plea. Judge Niemeyer wrote that the appellant had not met its burden under U.S. v. White, decided earlier this week, and distinguished U.S. v. Hughes.

In U.S. v. Gray, the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Widener and District Judge Cacheris, remanded the case for resentencing, citing Hughes and Booker.

In U.S. v. McKoy, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener and Wilkinson and District Judge Payne remanded the case for resentencing, citing Hughes and Booker.

Magistrate judge recommends against default judgment in discovery dispute

In Tunnell v. Ford Motor Co., Magistrate Judge Urbanski recommended against the plaintiff's request that a default judgment be entered against the defendant for failure to provide certain information in response to plaintiff's discovery requests.

Results from Rule 11 study: judges like the rule as it is, oppose mandatory sanctions

Here from the Federal Judicial Center is a 2005 study on the attitudes of federal judges toward Rule 11.

Paralegals and legal assistants generally not exempt from overtime requirements

Via Benefits Blog, I see this DOL opinion that confirms that paralegals and legal assistants are generally not exempt under the overtime provisions of the Fair Labor Standards Act.

Should William & Mary no longer be known as The Tribe?

The AP has been reporting that somebody is after William & Mary to change its nickname.

Perhaps if enrollment is boosted a little bit, instead of the Tribe, they can be known as the 10,000 Maniacs, if that name were not already taken. (A full house at William & Mary Hall is 10,000, which would also be a mostly full house at Zable Stadium.)

Honorable mention in the Duck calling contest

Here is the ruling by John B. on his caption contest for the picture of the guy in the Tim Kaine duck suit being confronted by a state trooper at the Shad Planking.

Charlottesville paper gets its own march

This Yahoo! News story details the new Daily Progress march.

A Pittsburgh perspective on Heath Miller

The Pittsburgh Post-Gazette has this fine article on the Steelers' No. 1 draft pick for 2005.

NC lawyers don't get the Boyle debate

The Raleigh paper has this article about Judge Boyle, the N.C. U.S. District Court judge nominated to the Fourth Circuit. The Durham paper has a shorter version of the same article under the headline: "N.C. law community doesn't get debate over Boyle nomination."

Johnson City judges vent on bad conduct in the courtroom

In this article from the Kingsport paper, various judges of the Washington County, TN, courts express their grievances about the appearance and decorum of the litigants (and counsel) who appear before them.

The article begins: "From women wearing swimsuits to their divorce hearings to well-dressed cranky attorneys, no one is above being reprimanded for improper attire, or attitude, in the courts of Washington County."

I once sat in a courtroom in Johnson City for about eight hours, and nothing bad happened to me.

One minute on busting the filibuster

First, I read this CSM article, which quotes Professor Chemerinsky, saying I'm not sure what - that filibusters are sometimes good, and not unconstitutional, but the Senate can change its rules, which is not really what I expected from him.

Then, I googled "Chemerinsky" and "filibuster" and discovered this article by Professor Chemerinsky, which seems to say the same thing, that filibusters are sometimes good (and sometimes bad) and not unconstitutional, but that the Senate can change the rules:

"Our conclusion is that supermajority voting rules in Congress are not inherently unconstitutional. Neither the Constitution's text nor an underlying philosophy of majoritarianism impose a general rule that a majority vote must be sufficient in all instances. However, it is unconstitutional for Congress to bind future sessions of Congress. It is a clearly established principle of constitutional law, supported by fundamental democratic principles, that one Congress cannot tie the hands of future Congresses."

Next, I see this Professor Bainbridge post, which cites the 1997 article, but also that Professor Chemerinsky has been going around saying that retaining the filibuster is a good idea.

Next, I see this ACS post, which is no different.

So, my guess is that the Democrats would change the rules the first chance they get, and Professor Chemerinsky (and friends) would say it's not only legal (as he has already concluded) but also it's not so undemocratic as if the Republicans had done it, because the Democrat states are bigger than the Republican states (or whatever his lame point is, and it is lame, the whole idea of the Senate is anti-majoritarian in favor of small states). By then, perhaps, the Republicans appointed to the Supreme Court by President George W. Bush will be very old. (Professor Bainbridge, evidently, fears that such a day will come much sooner than he would like.)

More Google site-seeing - the Triple Crown tracks

Here are Churchill Downs in Louisville, Pimlico in Baltimore, and Belmont Park on Long Island.

Unlikeliest country music fan

Yahoo News has this report of an appearance by Donald Rumsfeld on the stage of the Grand Ole Opry, including a picture of him with East Tennessee's own Dolly Parton.

The gardener and her garden before the snow

 

Earlier in the week, my wife wanted some pictures of her flowers. Today, right here in Southwest Virginia, it has snowed just about all day. The ground was white when I went out to get the paper. The tulips bit the dust.

The kind of law that would bring out the pom-pom tail

 

Here is a link to the Yahoo news story about a new law in Italy requiring that dogs must be walked three times a day.

In this action photo, our dog wig-wags her satisfaction with yet another walk as she heads back up the driveway.

On Law Day

This David Giacalone post, in the manner of Linus explaining the true meaning of Christmas, articulates the true meaning of Law Day.

Some members of the Bristol Virginia Bar, through the good offices of facilitator emeritus Rogers McCall, go into two high schools for Law Day and appear before groups of seniors to discuss the subject matter raised by this brochure, prepared by the Virginia State Bar. I have done this but once before and will again on Tuesday, if I don't get stuck in court in Lee County.

A playbook of Booker defense strategies

In this Professor Berman post, he links to the manual for Booker defense strategies from the public defenders' office for the E.D. Pa.

One thing I never knew about before I starting reading about Booker is the excellence of the materials prepared by and for the federal public defenders.

Watching Hoos taken in the draft

From NFL.com, this list shows the five Virginia Cavaliers taken so far in this year's draft, along with the names of a couple of others who might be drafted, and here is a list of all the Virginia players taken in the draft since 1982.

In 1997 and again in 1999, six Cavaliers were drafted. Only one, Matt Schaub, was taken last year.

Winner gets no attorney fees in contract case for failure to prove fees at trial

In Lee v. Mulford, the Virginia Supreme Court reached the interesting conclusion that the successful litigant in the circuit court gets no attorneys fees, because it failed to prove them before the jury during the trial, and made the mistake of waiting until post-verdict proceedings to try to get fees.

In Safrin v. Travaini Pumps USA, Inc., in a footnote, the Court explained that in Lee, the holding was "that absent specific provisions in a contract or statute to the contrary, or a prior agreement of the parties with the concurrence of the trial court, a litigant is not entitled to have attorney’s fees decided by the court in post-verdict proceedings." What does the contract (or statute!) have to say for the fees to be resolved post-verdict? Is it enough that the contract or statute refers to a "prevailing party"? When such language applies, doesn't one have to prevail before it can claim fees?

This decision is very interesting to contemplate. It is not clear to me why the jury even addressed the attorneys' fees. The Court's opinion tries to make something out of the jury instruction that the jury should consider the whole contract. The jury, apparently, decided on its own to specify fees and costs - nothing in the opinion indicates that the lawyers or the judge said anything in particular about fees prior to the verdict. It is not clear to me that Lee had any reason to expect that the jury was going to make a decision on fees.

There are cases when attorneys fees from prior litigation are an element of damages, but the fees in the Lee case were for the case that was being tried. The Court concludes that Mulford had a right to a jury trial on the fee issue, but I'm not sure why that is so. In federal practice, under Rule 54(d)(2)(A), "Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial." Were the fees in Lee v. Mulford really "an element of damages" in the case? I'm not sure that is a given, even though the opinion says that Lee sought fees as part of the damages, as least not "legal" damages. In any event, I don't think there was any such jury trial right, at least not as to the amount, and maybe not at all. See, e.g., Ideal Electronic Security Co., Inc. v. International Fidelity Ins. Co., 129 F.3d 143 (D.C. Cir. 1997); McGuire v. Russell Miller, Inc., 1 F.3d 1306 (2d Cir. 1993); The Scotts Co. v. Central Garden & Pet Co., 256 F. Supp.2d 734 (S.D. Ohio 2003); Murphy v. Stowe Club Highlands, 171 Vt. 144, 761 A.2d 688 (2000).

In the Lee case, should the lawyer have proved during the trial an up-to-the-minute account of his hours? ("Well, it's 2:00, so I've got 5 hours in the case today, ladies and gentlemen of the jury.") Suppose the other side decides to dispute the amount of fees. Would trial counsel be subject to cross-examination about his rates and hours? Doesn't the policy behind the usual prohibition against advocates acting also as witnesses suggest that this will create a huge problem? Besides, the lawyering in many cases does not end with the verdict on the merits. Indeed, in the Lee case, the lawyering went on through the appeal to the Virginia Supreme Court. Is there a right to jury trial to decide who gets attorneys fees for working on an appeal?

The idea of a jury trial on fees makes me wonder, what do they get to decide. What if the jury decides lawyers shouldn't be charging more than minimum wage? What if the jury decided the lawyers over-worked a case? I wonder what the jury would have said about the fee applications in some of the cases I've seen. Probably, they would have said, why does the lawyer get more than the plaintiff?

I am also wondering about the jury verdict on costs. Surely, there is no right to a jury trial on court costs, which are controlled by statute. Va. Code 17.1-600, et seq. What is the meaning of the jury's verdict on costs in the Lee case? In federal practice, under some statutes such as 42 U.S.C. 1988(b), attorneys fees are costs, but there are no such Virginia statutes, that I can find.

Mountain lions in Virginia?

Bill Cochran from Roanoke.com has this column with ruminations over reports of people seeing mountain lions in Southwest Virginia.

I've heard of people seeing big cats between here and Exit 7. (I've not seen any myself, but then I'm really near-sighted.)

Va. Supreme Court overturns defamation jury award to public official

In Jordan v. Kollman, the Virginia Supreme Court in an opinion by Justice Agee overturned a defamation verdict in favor of the former mayor of the City of Colonial Heights, based on statements made in an advertisement purchased by the defendant on the eve of municipal elections.

The jury awarded compensatory damages of $75,000 and punitive damages of $125,000. The trial court judge ordered a remittitur of these amounts to $15,000 and $35,000.

The defendant basically won the case because of his ignorance, that he didn't know what he was saying in the ads was untrue. The Supreme Court agreed, that there was insufficient proof of actual malice within the meaning of that term from the NY Times v. Sullivan line of cases. Actual malice was required because the plaintiff, as a political candidate and public officeholder, was plainly a public figure. So, the judgment was reversed on the insufficiency of the evidence.

Larry O'Dell for the AP has this story about the case, in which the defendant says he thought the case was "frivolous" all along. Osita Iroegbu has this report for the Richmond paper.

I have to laugh when the defense loses on demurrer, loses on a motion for summary judgment, loses on the jury verdict after a three-day trial, loses on post-trial motions, and then wins on appeal, and then says the case was frivolous. Whatever it was, it was not frivolous.

More on the Nelson County hunting case

The AP reports here that the circuit court judge has toured the premises of the rural hunting reserve at the center of a land use dispute in Nelson County.

Laurence Hammack from the Roanoke paper has this report ("Sighting in on the issue in right to hunt trial," 4/23/05), in which he (or some headline writer) notes that "Deciding whether shooting clay targets is hunting will require a judge to make distinctions as fine as No. 12 shot." Mr. Hammack offers this account of Judge Gamble's view of the property: "During the three-hour visit, a caravan of four-wheel-drive vehicles carried the judge and a small army of attorneys and journalists through creeks and across cornfields to tour the estate and witness shooting demonstrations by Barton, an Orion employee."

Carlos Santos from the Richmond paper has this report ("Judge takes to the fields in Nelson case," 4/23/05), which begins with this excellent sentence: "Judge Michael Gamble of Nelson County Circuit Court clambered over hill and dale via four-wheel-drive vehicle yesterday to watch shotgunners plug clay targets and live game birds in a quest to legally define the meaning of hunting."

Braxton Williams for the Charlottesville paper has this report ("Orion case takes to woods," 4/23/05), which begins: "A judge, a handful of lawyers wearing suits and hiking boots and a swarm of news reporters watched Freckles, a shaggy, dirt-caked English setter, as he sniffed through the brush in search of a pheasant."

Va. Supreme Court refuses to sanction Judge Peatross

Zinie Chen Sampson for the AP has this report, Alan Cooper for the Richmond paper has this report, and Liesel Nowak for the Charlottesville paper has this report on the Virginia Supreme Court's decision regarding the effort to remove a circuit court judge from the bench in Albemarle County.

Here is the Court's opinion, written by Justice Kinser, in the matter of Judicial Inquiry & Review Commission v. Peatross. In this case as well, the Court concluded that there was insufficient evidence to support the Commission's allegations.

More on the birth certificate case

Kristen Gelineau of the AP has this report, from the Daily Press website, which begins: "The Virginia Supreme Court on Friday ruled that the state must provide new birth certificates for children born in Virginia and adopted by gay couples in other states."

Alan Cooper of the Richmond paper has this article ("Court: Give birth certificates to gay parents," 4/23/05), which begins: "Virginia must issue birth certificates to three same-sex couples who adopted children born in the state, the Virginia Supreme Court ruled yesterday."

Blawg De Novo says "this case didn’t have anything to do with gay couples, gay adoption or gay rights." That's true, the majority tried very hard, and not necessarily to its credit, to avoid any such ruling.

More on the Muhammad case

Check out these:

TalkLeft: Virgina Sniper's Death Sentence Upheld

the Washington Post, "Va. Court Upholds Muhammad Sentences": "The Virginia Supreme Court yesterday upheld the convictions and death sentences of sniper John Allen Muhammad, saying he had acted with 'breathless cruelty' in the shootings that killed 10 people in the Washington area in the fall of 2002."

the NY Times, "Virginia Justices Set Death Sentence in Washington Sniper Case": "John A. Muhammad's 'breathtaking cruelty' in masterminding a series of 16 sniper shootings that left 10 people dead in late 2002 warrants the death penalty, the Virginia Supreme Court ruled yesterday."

the Richmond paper, "Muhammad death sentence upheld": "Ebert said he was confident of proving Muhammad was an immediate perpetrator, even though 'a lot of people at first blush didn't think so.' He added, 'Where two people actually participate and do something proactive to cause the death of another, why, they're equally responsible. . . . The jury was given instructions to that effect that if they didn't feel like they were actual participants, they could not fix the death penalty.'"

the Norfolk paper, "Court upholds death penalty for sniper mastermind Muhammad,": "The Virginia Supreme Court rejected the death-penalty appeal of convicted sniper John Allen Muhammad, concluding that he set out to intimidate the civilian population."

the Potomac News, "Sniper's conviction upheld," "Prince William Commonwealth's Attorney Paul B. Ebert can uncross his fingers. Friday, the Virginia Supreme Court released its opinion of convicted Washington, D.C.-area sniper John Muhammad's appeal. His conviction and death sentence were upheld."

the Fredericksburg paper, "Sniper death ruling stands": "Yesterday, at a news conference inside the Manassas Courthouse, Prince William Commonwealth's Attorney Paul Ebert said he was relieved by the Supreme Court's ruling and thanked the lawyers in the Attorney General's Office who handled the appeal."

Memo to Joe Gibbs - take Heath Miller

Power Line has this post outlining some of the difficulties Redskins' coach Joe Gibbs has had in matching his stated goals of finding players of good character and the reality that some of his good players are not quite up to snuff in that area.

I read in this morning's Bristol paper, which has been all Heath Miller all the time this week, as the Russell County native/U.Va. award-winning tight end, figures to be picked in the first round of the NFL draft, and one of the prognosticators cited thinks the Redskins will take the "Big Money" at No. 9. Do it, Coach Gibbs.

On less is more in legal writing

This George's post talks about the joys of whacking a piece of legal writing to make it shorter.

One of my favorite ways: whack all of the adjectives. The adjectives are usually the most childish, least professional parts of the brief. I often laugh at the adjectives chosen by my opponents and sometimes make a little tally of them. When I read a brief addressed to me with a bunch of bad words like "absurd," "disingenuous," "frivolous," "baseless," and the like, I think that the opponent might be right but he can't write - name-calling is no substitute for analysis.

(I must confess, however, to one use of the word "bogus" in a recently-filed brief.)

Steve Emmert's take on today's Virginia Supreme Court opinions

Here is the analysis by Virginia Beach lawyer Steve Emmert on today's decisions by the Supreme Court.

I've not read them yet, but for the birth certificate case, which I initially thought would be of no harm to anybody but now I am thinking that it is quite possibly a very bad administrative law decision. In other words, I'm more convinced by the Chief Justice's dissent. I note that the Chief Justice indicated in a single sentence that he also rejects the constitutional arguments.

Welcome, Sabre readers

A few hits have come from TheSabre.com message board, where someone wrote that this blog is written by "an old Hoo."

The Kaine-Kilgore contribution map

This remarkable map purports to show what percentages the gubernatorial candidates are getting of the campaign contributions from different parts of the Commonwealth.

Virginia murder trial verdict thrown out after juror shown on video buying newspapers

The Legal Reader links to this article describing how a judge in a Prince William County case has ordered a new trial in a murder case after the defense presented a convenience store video showing a juror buying newspapers.

Overlawyered has this post and TalkLeft has this post with additional links.

Virginia Supreme Court affirms death penalty in Muhammad case

In an opinions totalling 139 pages, the Virginia Supreme Court affirmed the death sentence in Muhammad v. Com., the D.C. sniper case. The majority opinion was written by Justice Lemon. Justice Kinser wrote a separate concurrence. Justice Agee wrote a partial dissent, and was joined by Justices Lacy and Koontz.

Probably I will have to study this over the weekend.

On the opinion, the AP has this report.

Why I read Ernie the Attorney

In this post from Mr. Svenson, he recalls the magistrate judge who was an inspiration to him, the woman who called him "Ernie the Attorney." Read it.

More on wireless devices in the federal courts

This Law Librarian Blog post summarizes a report from the Administrative Office on the use of wireless devices in federal courtrooms, listing pros and cons.

Why not pick older people for those lifetime jobs

In this Balkinization post, an interesting parallel is made between the selection of a 78 year-old pope and the selection of Supreme Court justices.

Three very interesting Virginia cases

The Daily Press reports here ("Civil rights name goes to court," 4/21/05) that yesterday the Virginia Supreme Court heard the case of who in Virginia owns the right to use the name of the Southern Christian Leadership Conference.

The Connection has this article with more details on the proceedings before Judge Horne in Loudoun County on the remand of the big zoning case, in which the judge allowed landowners to intervene, and in which he dealt with the choice between no zoning and the old zoning as the law after the invalidation of the new zoning.

The Daily Progress has this report on the start, on Wednesday, of the trial of the Nelson County hunting case, where the group is claiming the county is infringing on its hunting rights by requiring a special use permit for the outdoor sports facility that involves shooting.

Google siteseeing the PGA Tour

I think this image includes the 15th and 16th greens at Augusta National, here is the short par-3 at Pebble Beach or someplace close to it on that peninsula, and here is the island green par-3 from the TPC-Sawgrass.

Come to think of it, all three of these might be wrong, there are not many places where I've never been, but seen only on TV, that would look familiar to me on a satellite image.

Identity crisis and also Wharton's Rule

In this opinion from the Fourth Circuit, the defendant/appellant is identified as "RAJUL RUHBAYAN, a/k/a Creme, a/k/a Kreem, a/k/a Day-Ja, a/k/a Deja, a/k/a Amir Ruhbayan, a/k/a Jibra’el Ruh-alamin, a/k/a Jibrael Ruhalamin, a/k/a James Vernon Wood, a/k/a James Vernette Johnson."

The opinion goes on to discuss, among other things, the application of Wharton's Rule (which has to do with whether a defendant can be convicted of both conspiracy and an underlying crime that takes multiple people to commit), and sentencing issues, on which the Court found an unconstitutional sentence enhancement and ordered a remand under Booker. Judge King wrote the opinion, joined by Chief Judge Wilkins and Judge Duncan.

Curiously, the Virginia Court of Appeals also discussed Wharton's Rule this week, in the case of Schartz v. Com., an opinion by Judge Clements, joined by Judge Frank and Senior Judge Willis.

First time I ever saw reasons to attend the Shad Planking

This post from SST makes the Shad Planking sound like fun.

But, I'm not entirely sure where it is - far from here.

On footnotes

The blogger formerly known as Rainman posts here and here on the use of footnotes in legal writing.

Some time last year, a lawyer from Knoxville asked me why did I use footnotes as I had done in a particular brief and was a disciple of Bryan Garner.

The honest answer (as opposed to what I told her) was that I wanted the judge to know that they were there, but I didn't care too much whether he read them. I had not much experience with the judge, and so I cited a bunch of case law, more than necessary (but not more than usual). What I wanted him to be thinking about was at the top, but if he thought I was making it up (as he may have done), he could check the notes at the bottom. He read the brief and knew the case, of that I'm sure, but whether the footnotes made any difference I could not say.

More on sentencing in Tennessee

Here Professor Berman posts a note from a Tennessee practitioner knowledgeable about the Gomez case, who describes it as "an embarrassment the likes of which Tennessee had not seen since the Scopes monkey trial spectacle."

Abingdon lawyer argues before the U.S. Supreme Court

According to today's Washington County News, Mark Hurt argued before the Court today in Graham County Soil & Water Conservation District v. U.S. ex rel. Wilson, on appeal from the Fourth Circuit. (I would link to the article but I can't find it online.) Here is the petitioner's brief, here is Mark's brief for the respondent, and here is the split decision by the Fourth Circuit - an opinion by Judge Duncan joined by Judge Michael with Judge Wilkinson dissenting. Here is the SCOTUSblog post about the case.

Mark clerked (with me) for Judge Glen Williams in 1989-1990.

Still more on the evils of Internet legal research per Congressman DeLay

In this post, Professor Bainbridge declares of Rep. Delay's outrage over Justice Kennedy's use of the internet for legal research, that it "transcends mere asininity and achieves true imbecility."

Professor Bainbridge's characterization has got me laughing all over again at the unexpectededness of Delay's remarks. It is as if he endorsed the Great Pumpkin.

The life-cycle of a coal mine

The Coalfield Progress has this report on a coal mine in Wise County mined out after 26 years.

Correction: I am told that the mine was in Dickenson County.

Does his own research on the Internet?

ACS, via Atrio, has this quote from Rep. Delay on Justice Kennedy:

"We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous, and not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous."

Wait 'til Rep. Delay finds out that West Publishing is owned by a Canadian corporation.

The end of ABC's Monday Night Football

It has been variously announced that ABC will no longer carry Monday Night Football, beginning some time or another.

Here is the wikipedia entry for MNF, which got started a few weeks before my sixth birthday.

As I've written here previously, I can't tell what I had for breakfast a week ago, but I can tell you the starters for the 1973 Miami Dolphins, and I loved TNT's Monday Night Mayhem, the movie about Monday Night Football, with John Turturro as Howard Cosell. I got someone to buy me one of Cosell's books, when I was maybe 10, and it is still on the shelf somewhere in this room. (In it, he brags absurdly about the selection of Fred Williamson for the MNF team. This list shows that The Hammer was there only for one year.)

Here is Ben Domenech's take on this development. His list includes the Earl Campbell game from 1978, a bitter defeat for the Dolphins, and of course, the Bears' lone defeat in Miami in 1985, which preserved the Dolphins' record as the only undefeated team.

No point in appointing new counsel to explain Booker

In U.S. v. Fulk, Senior Judge Michael denied a convicted federal defendant's request for the appointment of counsel to figure out whether he can get his sentence reduced in light of Booker.

From the PLI Toolbox - Federal law of privilege

Here is an interesting article on the federal law of privilege.

Privileged evidence is not discoverable. Rule 26(b)(1), Fed. R. Civ. P. (limiting discoverable evidence to what is "not privileged"). Evidentiary privileges apply "at all stages of all actions, cases, and proceedings." Fed. R. Evid. 1101(c). "The policy behind extending privilege law to all proceedings is that the values protected by privileges can be destroyed by permitting disclosure of privileged material in any judicial context." WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 8076. "Neither a subpoena duces tecum, nor any other procedure in a civil action, may be used by a party to obtain privileged documents." Id. at § 2458.

The Federal Rules of Evidence determine what is “privileged” under Rule 26(b)(1). See, e.g., Matter of International Horizons, Inc., 689 F.2d 996, 1002 (11th Cir. 1982); Armour Intern. Co. v. Worldwide Cosmetics, Inc., 689 F.2d 134, 135 (7th Cir. 1982). Under Fed. R. Evid. 501, federal law apparently governs privilege except on state law claims.

Magistrate Judge Sargent approves fees of $206.84 per hour in SSA case

In Thomas v. Barnhart, counsel filed a motion for reconsideration with the missing paperwork to get paid, and Magistrate Judge Sargent approved the fee application, at an effective rate of $206.84 per hour.

McGuireWoods ads to target hourly rate billing

Marketing guru Larry Bodine writes in this post that the Richmond-based international law firm of McGuire Woods will soon be placing advertisements that are critical of hourly-rate billing.

NYT says divorce rate not what it was thought to be

The Times says here: "studies find that the divorce rate in the United States has never reached one in every two marriages, and new research suggests that, with rates now declining, it probably never will."

The article goes on to say: "for college graduates, the divorce rate in the first 10 years of marriage has plummeted to just over 16 percent of those married between 1990 and 1994 from 27 percent of those married between 1975 and 1979."

The Virginia connection to the filibuster vote

The Richmond paper has this article describing Virginia's own Senator Allen as a cheerleader, Senator Warner as a holdout, and the ubiquitous Professor Gerhardt from William & Mary as a pundit, on whether to eliminate the filibuster for the judicial nominees.

Whenever I hear the argument that says, don't mess with the filibuster because someday the Democrats will be in the majority again, that makes me think, so this is a reason for Republican restraint? What would the Democrats do if they had 51 votes and one of their own in the White House? The better reason for Republicans not to end the filibuster for judicial nominees is because it is wrong, if it is wrong. I'd like to read Professor Gerhardt's constitutional analysis of the filibuster.

LA Times looks at the appeals courts

In this David Savage story in Sunday's LA Times, it says that the Fourth Circuit has 4 judges nominated by Democratic presidents, and 9 nominated by Republican presidents - but doesn't mention that one of the nine (Judge Gregory) was nominated by both.

More on the gubernatorial campaign via Google ads

Moral Contradictions has this post about the campaign-related ads for online search engines, interestingly titled, Vote for Tom Kaine!!.

Horserace update: Kilgore 44, Kaine 36 as of April 14?

I think this is a new poll about the Virginia governor's race, reporting figures from an April 14 survey, with a margin of error of +/- 4.5 percentage points.

The SurveyUSA poll from March 10 said Kilgore 46, Kaine 36.

What happens in Loudoun County following Supreme Court ruling against zoning ordinance

The Washington Post has this interesting report on the hearing before the circuit court judge trying to implement the Virginia Supreme Court decision striking down a Loudoun County ordinance. What makes it interesting is that the winners from the Supreme Court case might not get what they want, which is a return to the conditions under the prior zoning ordinance.

BC Googlemaps the ACC football stadiums

This Backcountry Conservative post has links to satellite images via Googlemaps of most of the places where the ACC plays football.

For whatever reason, the resolution is not great enough for Blacksburg and Charlottesville.

At a bit lower resolution, here is the Bristol Motor Speedway.

Defense lawyer seeks gag order in inn fire wrongful death case

The Charlottesville paper reports here that a defense lawyer is asking for a gag order on the lawyers in the wrongful death case, now pending in federal court, arising out of the deaths of two recruiters from a New York law firm.

The defense lawyer is D. Cameron Beck of Morris & Morris. Plaintiff's counsel include Matthew B. Murray of Raymond and Fishburne and Thomas E. Albro of Tremblay & Smith. There are or were many other lawyers in the several cases, which before Judge Moon and Magistrate Judge Crigler.

I've not seen a gag order as such before either, but I am mindful of Local Rule 83.2 of the E.D. Tenn., cited here previously, which says, regarding civil cases:

No lawyer or law firm associated with a civil action shall, during its investigation or litigation, make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will interfere with a fair trial and if such dissemination relates to:

(1) evidence regarding the occurrence or transaction involved;
(2) the character, credibility, or criminal record of a party, witness, or prospective witness;
(3) the performance or results of any examinations or tests or the refusal or failure of a party to submit to such;
(4) the attorney's opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule; and
(5) any other matter reasonably likely to interfere with a fair trial of the action.

Bruce Shine lowers the boom on CNN's Nancy Grace

In this commentary, Kingsport's well-known labor lawyer Bruce Shine states his views on CNN legal commentator and former prosecutor Nancy Grace, declaring that she is of no account.

The ABA ratings on the renominated appeals court candidates

Here are the ratings from the American Bar Association, including the court of appeals' candidates renominated by President Bush.

The ABA rates Judge Boyle as "well-qualified," and the majority rated William J. Haynes, II, as "well-qualified," while the minority concluded that he was only "qualified."

Another voice heard from on the Virginia governor's race

This SouthNow Blog post says, among other things: "Kaine will be the Democrats' first big test of the new 'red-state' strategy espoused by DNC Chairman Howard Dean."

More on the Fourth Circuit's decision in U.S. v. Washington

On reading this post from Professor Berman about U.S. v. Washington, it appears that the case presented a variation of the most interesting Apprendi issue there is, not that I exactly follow these matters, but that is the issue of when it is going to be declared unconstitutional for the judge to impose an enhanced sentence based on the prior criminal record of the defendant. The case deals with the sentencing enhancement for a "crime of violence." The majority held that the court's findings about the prior offense were not within the currently-recognized exception to Apprendi.

Tennessee Supreme Court drops the ball on Blakely issues?

A commenter to this Professor Berman about the Tennessee Supreme Court's attempts to distinguish Blakely in the Gomez case says the "majority opinion reads like it is from the Bizzaro universe."

This morning in Grundy I met a 3L who is going to clerk for Justice Birch. Justice Birch joined in the dissent by Justice Anderson in the Gomez case.

Notwithstanding the debate among the Virginia AG candidates over the sentencing guidelines, one good thing about what we have in Virginia - is no Blakely/Booker problem, so far as I understand these things. On this constitutional issue, it is conceivable that fiddling with the guidelines in ways that would provide for the imposition of enhanced sentences by judges would be a big step in the wrong direction.

More on the Chesterfield County invocation case

This Logos post contains a much more detailed and sensible analysis of the Fourth Circuit decision's in the Chesterfield County invocation case.

Unlike mine, it contains no Wizard of Oz links or references.

Bill Frist website on eliminating the filibuster on the stalled judicial nominations

Via How Appealing, I went to Senator Frist, M.D.'s anti-filibuster website, and never got past the UT football player pictured at the top. Who is it? Kelley Washington? How many games did he play? 17 in two years? Tee Martin (the QB on the national championship team) was No. 17. Why not put Tee on your web page, Senator?

I did however, read the whole of this fake news post, with the headline, CIA Says Senator Frist Lacks Nuclear Capability.

Suing sheriffs in their official capacity

According to this post, the law is all over the place in the 11th Circuit as to whether sheriffs can be sued in their official capacity, or whether they are viewed as the States, and therefore protected from money damages suits by the Eleventh Amendment.

In the Fourth Circuit, sheriffs sued in their official capacities are protected by the Eleventh Amendment in South Carolina (Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996); Gulledge v. Smart, 1989 WL 69302 (4th Cir.)), but perhaps not in North Carolina (Harter v. Vernon, 101 F.3d 334 (4th Cir. 1996)). The Virginia courts have generally in the more recent cases concluded that Virginia sheriffs are protected by the Eleventh Amendment. See Smith v. Fisher, 2002 WL 192563 (W.D. Va.); Harris v. Hayter, 970 F. Supp. 500 (W.D. Va. 1997); Blankenship v. Warren County, 918 F. Supp. 970 (W.D. Va. 1996); Williams-El v. Dunning, 816 F. Supp. 418 (E.D. Va. 1993); McCoy v. Chesapeake Correctional Center, 788 F. Supp. 890 (E.D. Va. 1992).

My secret plan to get on the federal appeals court

This ACS post describes the research done by Senator Lott's office, which concludes that dumb, obscure guys get confirmed to the federal appeals courts easier than those with lots of fancy qualifications.

Congressman Boucher makes the Honor Roll

In lists like this one, some Democrats are lamenting the fact that SW Virginia's own Congressman Boucher and thirty others Democratic representatives like him voted in favor of both the House bill that toughens up the bankruptcy laws and the House bill against the estate tax.

In the manner of a Civil War substitute, I go to Grundy

As a good deed toward Jack and Sylvia, I am filling in as a fake appellate court judge for some group of 1Ls in Grundy tomorrow, and the worthwhile part is that the issue in a vague sort of way makes me think of the Apple blogger case, about which here is the Bear Flag League brief.

Suppose - the bloggers paid somebody who went and stole Apple trade secrets, and because of the theft and disclosure on the blogs, Apple lost $1 million. If the blogger was merely negligent as to whether the thief would engage in his thievery, can the blogger be liable to Apple for causing the loss? That is sort of more like what is being mooted about in this case at ASL tomorrow, except also it is not about bloggers or Apple, as such.

Today's rant - the evils of auto-reply

I hate auto-reply. It is, in a word, SPAM - directed at your colleagues and paying clients, who are otherwise treated as the good guys. It is a declaration of non-service. Why would a lawyer want to send to his clients an e-mail that says I'm not helping you? Get someone to read the e-mail!

When I am gone, I access my e-mail from afar and/or before I leave, I make a list of the usual and unusual suspects, and implement an e-mail rule that forwards all the messages from them to my assistant and to our receptionist.

Fortunately, those on the forward list (which is saved, and never changes much) are the people for whom or with whom I actually do paying work, and so they are not going to send messages with pictures of the Swedish Bikini team (and if they did, I guess I'd have to charge them extra, after my assistant and/or the receptionist punched me in the nose).

Also, almost as an unrelated matter, I hate auto-replies that get on list servs. In the old days, it happened on a few lists I've seen, that every post would generate an auto-reply from some poor schmo who went on vacation. When he got back to Omaha, an angry mob of list serv-reading lawyers had flown in from every corner of the nation and joined in burning his office down to stop the escalating flow of auto-replies into their respective inboxes. (OK, that never really happened, but it was often proposed.)

AG candidate fundraising numbers

I was just reading some e-mails from the Baril campaign that say they raised more money in the first quarter than did the McDonnell campaign.

Now, if this difference was in part the result of some ban on fundraising during the General Assembly session, that applied to McDonnell and not to Baril, you'd think they would have disclosed that fact, but I can't seem to find that part in the e-mails.

Split decision on plain error in pre-Booker sentence

In U.S. v. Washington, Judges King and Duncan decided that Apprendi and Booker required the reversal and remand of the defendant's conviction and sentence, while Judge Luttig in a dissenting opinion asserted that an exception to Apprendi applied and as to Booker, the error, if any, in the defendant's guideline sentence was harmless and not enough to justify a reversal.

I'm not sure but what this is the first opinion from Judge Luttig on the effects of Booker.

U.S. Route 11 around 1920

This Big Salt Lick post includes a picture of Route 11 as it looked long ago.

En banc Court of Appeals affirms conviction for obscene display, as opposed to exposure, by defendant who showed the victim a picture

In Moses v. Com., the Virginia Court of Appeals, sitting en banc, disagreed with the earlier panel decision and affirmed the criminal conviction for obscene display under Va. Code 18.2-387 of a criminal defendant who went up a pre-teen girl at a Walmart and showed her a dirty picture. Judge Benton wrote a dissenting opinion, joined by Chief Judge Fitzpatrick and Judge Elder.

John Whitehead of Rutherford Institute comes to Grundy

According to this press release, Paula Jones' other lawyer, the one AFTER Gil Davis, made a recent visit to the Appalachian School of Law, as a guest of their Federal Society and Christian Legal Society.

Dog cases in Virginia

The Washington Post has this story about what makes a dog dangerous under Virginia law.

I did once represent my sister's dogs Buck and Summer in dog court in Washington County. They were observed at the scene of a dead cow. The farmer would have shot them if he had been closer. Instead, they ran off, so the farmer took a warrant. My brother-in-law paid for the cow, we got a little release from the farmer, and Buck and Summer were put on good behavior. I think Summer was given away. The mellow dog Buck is still around, relocated with that family to Lee County. It was one of my best cases ever in general district court.

The case of the Cumberland Gap speeder

I've been cogitating over this opinion for a few days, and it appears that in U.S. v. Hall, that the defendant's arrest might have been illegal but even if it was, there was enough evidence separate and apart from whatever the guy said after he was arrested to support his conviction.

So, does that mean he can sue the arresting officer on some kind of Bivens claim? And, what could he get for it?

It is an interesting case involving a fellow who was spotted speeding through the tunnel in the national park at Cumberland Gap but was not arrested until another officer saw him in beautiful downtown Middlesboro, KY, outside the park service's domain.

Today's classic rant - the futility of the discovery letter

One of my pet peeves is the existence in the events list for electronic filing in the Western District of Virginia of an entry called the "discovery letter."

By "discovery letter," I mean simply the cover letter for written discovery requests, that gets sent to the Court without the enclosures sent to the parties. Under the Court’s standing orders, "discovery material" is not to be filed in most judges' cases. Similarly, under Rule 5(d) of the Federal Rules of Civil Procedure, specified discovery documents "must not" be filed. There is no provision for "discovery letters" (or any other letters) in the Rules.

Over the years I have argued, threatened, and pleaded with my co-workers and staff to not send any mail related to written discovery to the clerk’s office in federal court cases. With the advent of e-filing, however, the clerk’s office is encouraging people to e-file these discovery letters. I believe that the docketing of "discovery letters" conflicts with the reasons for non-filing of discovery material; does not match the way the Court handles other, similarly insignificant cover letters (which aren't even filed, mostly); and is not done in other courts (at least not the ones for which I have e-filing passwords). These "discovery letters" contain no information of use to the Court. Instead of requiring lawyers to add these letters to the online docket, the Court should be discouraging the lawyers from sending out such letters at all.

I last ranted on this subject in August 2004, and it has been building up again, so I thought I would let it out.

Fourth Circuit throws water on the Chesterfield County witch

In Simpson v. Chesterfield County Board of Supervisors, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Williams and Judge Niemeyer, and with a separate concurring opinion by Judge Niemeyer, held for the County in the witch/plaintiff's Establishment Clause challenge to her exclusion from the list of people who can lead the opening prayer at Board of Supervisors' meetings - I mean, the "non-sectarian invocation."

There was no account given in the opinion of the substance of these invocations.

The Chesterfield County Attorneys' office must be an interesting place to work.

Unrelated to Chesterfield County, the scene from the Wizard of Oz in which the Wicked Witch got doused can be seen and heard here.

Deal would use VDOT rights-of-way for fiber-optic lines in rural Virginia

The Roanoke paper has this report on a deal that would allow the installation of fiber-optic telecommunications lines within the VDOT's rights-of-way in parts of Virginia.

Judge grants a view in the Nelson County hunting rights case

In this report, the Roanoke paper explains that the trial court judge will view the premises in the land use case in Nelson County that has become a celebrated gun rights case.

Fourth Circuit approves DirecTV civil actions under federal wiretap statutes

In DirecTV Inc. v. Nicholas, the Fourth Circuit in an opinion by Senior Judge Hamilton, joined by Judges Widener and Shedd, reversed District Judge Boyle and ruled that DirecTV could bring civil claims based on 18 U.S.C. 2511 and 18 U.S.C. 2520, based on the "plain language" of the Code sections.

Roanoke paper adds anti-Big Coal writer to editorial board?

This post from the Salt Lick says the new guy on the editorial staff at the Roanoke paper is a liberal, and when he worked in West Virginia, he most wrote stuff like this:

"When a coal company throws a miner out of work for purely economic considerations, everyone accepts it. But when a federal judge decides that societal good is served by delaying a mine permit for several months to sort out whether the permits are legal, he is demonized by the coal industry and the miners union."

Can a small firm lawyer be AG?

In reply to SST, I wrote this:

I can't say that it's true that small firm lawyers are unqualified to be AG. I would argue that there have been no big firm lawyers who have been elected AG, although some of them (Miller, Baliles, Gilmore) became big firm lawyers afterwards. (I think of Kilgore as a SW Virginia lawyer.) The last big firm nominee, Dolan, lost in part because Gilmore ran ads claiming that Dolan "botched" his only criminal prosecution. Criminal law experience might count more with voters.

I would want the AG to be a good lawyer, but there are all kinds of lawyers. The big firm litigators are more likely to be involved in interesting, complex civil matters involving big businesses. The smaller firm lawyers are closer to the ground, representing more people and smaller businesses. Even those generalizations have their limits.

Here's an awkward example: you can get on Westlaw and see how many times a lawyer's name is on there associated with the opinions in the database for the state and federal courts in Virginia. Baril's name is there 26 times, McDonnell's name is there 3 times, and mine is there 44 times. Who is most qualified to be AG? Not I.

Besides, the AG is more than a lawyer. No lawyer in private practice will learn all the substantive areas of the law touched by the workings of the AG's office - there's too much to know. And, he doesn't have to know it - the AG has hundreds of lawyers working under him. The selection of AG is more like hiring a coach than picking a quarterback.

And so, the more important difference between candidates might be their ideas. The AG gets to choose the legal position of the Commonwealth on many kinds of legal matters, including disputed social issues. The AG also has a role in the shaping the justice system for all Virginians. It is interesting to me to learn what priorities and perspectives the different candidates bring to those tasks.

Last night's Baril-McDonnell debate

This account in the Washington Post about last night's debate between the Republican candidates for attorney general makes it sound like the debate was very interesting.

I don't understand why Baril is muddying the waters by talking about his plan for transportation. He might have the greatest plan in the world, but it doesn't seem relevant to the office he is seeking, and wasting time on it detracts from his other qualifications from the job and makes it appear that he is rehearsing slogans for a gubernatorial campaign.

One good point Baril made was to call out McDonnell for the activities of the House Courts of Justice committee in dealing with judges up for reappointment during Del. McDonnell's watch. Some strange things have happened, the strangest being the matter of former Judge Askew from Newport News.

Justice Carrico and deference to the legislature

As I have recently read Virginia Hasn't Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving, it gave me occasion to read the Virginia Supreme Court opinion in the Loving case, written by Justice Carrico.

In that opinion, Justice Carrico applied the Court's earlier opinion in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (1955), and refused to recognize that the U.S. Supreme Court's intervening decision in McLaughlin v. State of Florida, 379 U.S. 184 (1964), justified a different course. Loving v. Com., 206 Va. 924, 147 S.E.2d 78 (1966). Rejecting the policy arguments of the appellants, Justice Carrico wrote:

"A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate."

Justice Carrico joined in the dissent in the case of Lockhart v. Commonwealth Educ. Systems Corp., 247 Va. 98, 439 S.E.2d 328 (1998). In his dissent, Justice Compton explained that the majority had bypassed the statutory prohibition in then-Va. Code 2.1-725 against new causes of action based on the public policy of the Virginia Human Rights Act.

I compare these opinions with the analysis of the Court in Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005). Although not cited in Martin, the Court had recently applied the fornication statutes, in Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000), where the Court found that those statutes provided independent basis in public policy for the plaintiff's wrongful discharge claim, thereby avoiding the limitations of the amended section 2.1-725. In Mitchem, again with Justice Carrico joining in the dissent, the Court characterized the fornication statutes as among the "[l]aws that do not expressly state a public policy, but were enacted to protect the property rights, personal freedoms, health, safety, or welfare of the general public," on which a wrongful discharge claim could be based. After the intervening decision by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), however, the same Court was willing in Martin to conclude that the fornication statute was irrational, and therefore unconstitutional. I suspect that Justice Carrico would have dissented in Martin, as well.

New York City!

I might be making a trip in the near future to New York City.

Coincidentally, I just read Downtown - My Manhattan by Pete Hamill, an excellent book. Hamill knows lower Manhattan better than I know Piedmont Avenue.

I did, however, once take my nephew's home-made version of Flat Stanley on a tour of Abingdon. Sometime later, I took the nephew on the same tour. He wanted to look for wolves in the cave behind the Cave House.

More on opposition to confirmation of Judge Boyle to the Fourth Circuit

The AP has this report that begins: "Black leaders urged the U.S. Senate to reject the nomination of U.S. District Judge Terrence Boyle to a federal appeals court seat, saying his hostility to civil rights and high rate of reversal makes him unfit for the job."

The article quotes Congressman Mel Watt, the chairman of the Congressional Black Caucus. I like Mel Watt because of his stories about growing up in North Carolina, some of which are told here in a rough transcript of an interview on C-SPAN.

Xeni is from Richmond?

Blogmistress extraordinaire Xeni Jardin of Boing Boing fame is originally from Richmond, right here in the Commonwealth, according to this profile reprinted from the LA Times. Now, who'd have thunk that?

One good thing about Crohn's disease

Just now I was reading the current issue of Digestive Health & Nutrition magazine, and one of the columnists suggested (once again) that persons with Crohn's might try Flintstones Chewables.

So, I do. Whenever I go see some new doctor and fill out the list of medicines I take, I put down "Flintstones Chewables." And, it always gets a laugh.

What better way to start the day, than by eating a pet dinosaur who tastes like candy?

On paying for spousal abuse and adultery in Tennessee

The Kingsport paper reports here on proposals before the current session of the Tennessee legislature to increase the financial cost in divorce proceedings of one party's adultery.

Photoblogging Tennessee courthouses (and one outhouse)

Via Tennessee's own Instapundit, I see this collection of Tennessee courthouse photos.

Tiger, Tiger, Tiger, Tiger

I guess my golf-watching makes me a bit of a couch potato, but after watching the thrilling back nine of the final round of the Masters, I think I need a shower.

Supposedly my wife's sister's husband was there at Augusta National today, lucky dog.

The Hatfield and McCoy Marathon

This delightful article describes, among other things, 2004 running of the Hatfield and McCoy marathon - check it out.

Voice from the past

Do my ears deceive me or are some of the ads and intros for the Masters broadcast done by Pat Summerall?

Indeed, it says here: "The voice of Pat Summerall will be part of the Masters' television coverage."

Jim Nantz and Lanny Wadkins have got nothing on Pat Summerall and Ken Venturi - as they would themselves agree.

Who is an idea lawyer?

I read with interest this Georgia lawyer post on the idea of an "idea lawyer."

Pink jerseys out, Elton John-style unis in

It says here that the University of Arkansas has stopped using pink jerseys for spring practice slackers, but in this post, it is said that the new uniforms for the Clemson Tigers "look like something Elton John might wear if he put on the pads."

Lynchburg's new federal courthouse opens April 25

The Lynchburg paper is reporting: Debut nears for new federal courthouse.

Varsity Hall gets moved to make way for new Comm School building

For a couple of years, I lived on Brandon Avenue in Charlottesville, with a gang the last year including three AFROTC guys. So, I've walked around Varsity Hall many times and even may have been in it a few times (in what I'm sure was some kind of breach of military regulations). So, it seems like a remarkable thing to me that the 150 year-old building has been moved, according to this story in the Daily Progress.

Chief Judge Jones approves agreed sentence, notwithstanding government's about-face

In U.S. v. Bundy, the defendant entered a guilty plea, the government argued for a sentence at the upper end of the guidelines, the trial court agreed, and the defendant appealed. The Fourth Circuit reversed and the case was remanded. On remand, the government approved a deal that would limit the defendant's jail time to the 16 months served, and on reflection, Judge Jones agreed, "notwithstanding the government's dramatic about-face."

Two ways not to get attorneys' fees under section 1988

In State of Tennessee v. City of Chattanooga, the Sixth Circuit held that there was no section 1983 remedy, and thus no statutory attorney fees under section 1988, for the City's violation of the federal Telecommunications Act of 1996, citing the U.S. Supreme Court's recent decision in City of Rancho Palos Verdes v. Abrams, another tower-siting case.

Somewhat similarly, in Virginia Office for Protection and Advocacy v. Reinhard, the Fourth Circuit in an opinion Chief Judge Wilkins, joined by Judges Niemeyer and District Judge Wilson, concluded that on the claim under the Protection and Advocacy for Mentally Ill Individuals Act of 1986 against the defendant in his official capacity there was no proper section 1983 claim because the plaintiff Office was not a person under section 1983 and therefore there could be no attorneys' fee award under section 1988. (In the Sixth Circuit's case, the actual use plaintiff was a private outfit, and so the issue of the state as a section 1983 plaintiff evidently did not come into play.)

On the face of it, I would have thought that not only was there no proper plaintiff, there also was no proper section 1983 defendant, since in the Will case, among others, that neither States nor state officials acting in their official capacities are "persons" within meaning of 1983. Perhaps I am missing something, since that aspect was apparently not discussed.

What these cases have in common are plaintiffs bringing claims to enforce federal rights who tried but failed to also make out section 1983 claims, without which they had no statutory right to attorney fees.

Punitive damages reduced in First Amendment retaliation case

The Norfolk paper reports here on a decision by the federal magistrate judge in a section 1983 case to reduce the award of punitive damages against two Virginia Beach school officials.

The issue had something to do with whether there was evidence of the defendants' net worth.

The case I typically cite on this issue, in trying to explain the law to people, is the Joe Morgan airport case, Morgan v. Woessner, 997 F.2d 124 (9th Cir. 1993). Joe Morgan, the baseball Hall-of-Famer and broadcaster, got arrested at an airport, and sued under section 1983 and California law, and won. In fact, he got $300,000 in punitive damages on the federal law claim, and $150,000 in punitive damages on the state law claim, and both were appealed. California law requires evidence of the defendant's net worth to support a punitive damages claim, and so the state law punitive award was reversed. Under the federal law, by contrast, the inability to pay is viewed as more of a defense to punitive damages, and so the plaintiff has no burden to prove the defendant's net worth to get punitive damage under section 1983.

In Kemezy v. Peters, 79 F.3d 33 (7th Cir. 1996), Judge Posner explains: "The usual practice with respect to fines is not to proportion the fine to the defendant's wealth, but to allow him to argue that the fine should be waived or lowered because he cannot possibly pay it. . . . Given the close relation between fines and punitive damages, this is the proper approach to punitive damages as well. The defendant who cannot pay a large award of punitive damages can point this out to the jury so that they will not waste their time and that of the bankruptcy courts by awarding an amount that exceeds his ability to pay." 79 F.3d at 36.

I'm not entirely sure how the foregoing analysis squares with the ruling of the magistrate judge in the Virginia Beach case.

More on evaluating Virginia judges

Alan Cooper of the Richmond paper has this report ("Weighing Va. judges in the balance," 4/10/05) with more information about the new system for evaluations of Virginia's judges, including feedback from the judges in the pilot program on the feedback about themselves.

How to read the Kingsport paper by RSS

An editor from the Times-News explains here how to use the brand spanking new RSS feed for the Kingsport paper. Well done, I say.

The Kingsport paper's RSS feed is here.

On red light cameras in Virginia and elsewhere

Virginia is not alone in doing away with red light cameras, according to this SoCalPundit post.

Getting attorneys' fees in Social Security cases

In McClanahan v. Barnhart, Hughes v. Barnhart, Thomas v. Barnhart, Lambert v. Barnhart, and Coley v. Barnhart, Magistrate Judge Sargent denied motions for attorneys' fees. Apparently, these were all or mostly cases that were remanded, and on remand the claimants obtained successful outcomes, but then the lawyers failed to file all of the necessary documentation to support their fee petitions, which were unopposed by the Commissioner.

On cruciverbalism

Notwithstanding the study cited in this report, which says crosswords help ward off dementia, I'm up to December 16 in the "NY Times Crossword-A-Day" calendar I got for Christmas and not feeling a bit sharper.

On obesity and poverty in Appalachia

Via YahooNews, this report says some food banks in Appalachia are trying to give away diet food.

Why would a Virginia lawyer read sunEthics

sunEthics is the website of Appalachian School of Law Professor Tim Chinaris - and it is to Florida what Jim McCauley's website is to Virginia legal ethics, only somewhat more user-friendly.

Running and walking for Dean Sutin and Professor Blackwell

This press release gives an account fo the Third Annual Run/Walk at the Appalachian School of Law in memory of Dean Tony Sutin, Professor Tom Blackwell, and Angela Dales.

Debating the nine year sentence for the Virginia spam convict

In this post, TalkLeft says that the nine years the spammer got in Loudoun County Circuit Court was too much. Techdirt seems to agree that more than a little jail time is probably too much. The Legal Reader apparently takes the opposite view in this post. Here also are the DailyKos post, with many comments, and a very informative post from Cyberethics, including a link to a 50-state survey of spam statutes.

I wonder what the Republican AG candidates have to say about this sentence.

The Virginia gubernatorial race and Google ads

It says here: "If a Google user searches for Republican contender Jerry Kilgore, a sponsored link to Democrat Tim Kaine's election site pops up in addition to the Republican's ad."

LeClair Ryan and Allen firm merge

This press release describes the merger of two Richmond firms.

This just in . . .

It appears from this photograph that General Eisenhower is endorsing Tim Kaine, who'd have believed it? 

TechnoLawyer Blog

Before there were blogs, I got law tech news from Technolawyer, but now there is the TechnoLawyer Blog - check it out.

The Norfolk paper's report on the Republican AG candidates' debate

The Norfolk paper reports here that the primary bones of contention in the debate between Bob McDonnell and Steve Baril were over qualifications and the sentencing guidelines.

I would have thought that the sentencing guidelines and the bifurcation of criminal trials between the guilt phase and the sentencing phase were among the more progressive aspects of the criminal justice system in Virginia.

On Roanoke lawyer Ellen Moore

Lucas from the office is in Blacksburg this morning, for the funeral of Ellen Moore, a lawyer and runner, about whom the Roanoke paper wrote here: "Ellen Moore crossed her last finish line Thursday, ending her race against cancer just the way she began it: vigorously and optimistically, never once letting it slow her down."

What to ask in the debate of the Republican candidates for Attorney General

It says in this SST post that there is a debate tomorrow between AG candidates Bob McDonnell and Steve Baril.

Here's my list of questions, off the top of my head, and in no particular order?

1. Why should Virginia continue to have an elected attorney general - what is the added value to Virginians of having an elected rather an appointed attorney general?
2. Why do candidates for attorney general address topics which do not pertain to the office of the attorney general - and will you refrain from doing so in this debate and for the rest of the campaign?
3. Would you agree that the Attorney General as the person most responsible for pursuing equal justice for all Virginians should be leading the fight to provide fair levels of funding for the legal representation of the poor in criminal and civil matters in the Commonwealth? And full state funding for all the prosecutor slots?
4. Would you agree that another priority for the Attorney General should be to lead the fight for judicial independence in Virginia, including whatever reforms are necessary to make sure that good judges are hired and don't lose their jobs for unpopular decisions?
5. Would you agree that the Attorney General should also be at the forefront of the enforcement of the open government and conflict of interest laws in Virginia - and that this starts with the AG's office itself, which ought to have a better website, one that includes the actual names of all the lawyers who work there?
6. Do you agree that the hiring of outside counsel for the legal work of the Commonwealth should be based on non-partisan factors?
7. What is the relevance of the substance of a candidate's law practice to whether he should be elected Attorney General?
8. Can you state now, unequivocally and for all-time, that a desire to be Governor of the Commonwealth is not even one-tenth of one percent of your motivation for entering this campaign - and, is your answer to this question as honest and truthful as everything else you've said to date as a candidate?
9. What can or will the next AG do to make it so that Time magazine will have to change its Mar. 28 characterization of Tazewell County - if it writes about it again four years from now?
10. Have you heard that all it takes to hire John Behan is an offer of barbecue?

Sovereign immunity in bankruptcy case has Virginia origins

This Reuters report describes the background of the case before the U.S. Supreme Court dealing with a state's immunity from being sued in bankruptcy court, and explains that the claims by the estate of a bankruptcy college bookseller against Central Virginia Community College, Virginia Military Institute, New River Community College, and Blue Ridge Community College.

Interview with Gene Nichol, the president-elect of the College of William & Mary

In this interview published in the Norfolk paper, Gene Nichol talks about a lot of boring stuff - then the interview took a sudden turn, and concluded like this:

Q. OK, now for the fun stuff. Tim Sullivan is known as “Timmy J.” among students. You’ve said you’d be willing to acquire a nickname. Is “Genie R.” out of the question?

A. (Much laughter) Oh, God, I hope so.

Q. Any other suggestions?

A. I’ve gone by “Dean Gene” for many, many years. Many people who know me call me “Nick.” I have said I would leave that to the creative minds of the College of William and Mary students. I only hope that most of the time the names will be printable.

Q. You listed your experience as a varsity quarterback in Oklahoma on your resume. How come?

A. I think great lessons can be learned from athletics, not the least of which is the lesson of getting up off the mat. The question that athletics can put to you is: How successful are you getting up and facing the problems and questions of life? I have three daughters, and they’re very involved athletes. It’s been marvelous to watch them learn those lessons early in life.

Q. Do you still play?

A. I played intramural football with law school teams the first five or more years that I was dean, but at some point a 40-year-old playing against 18-year-olds is not a wise venture.

Q. Last but not least, I don’t know if they told you this during the interview, but there’s supposedly a ghost of a soldier that haunts the president’s house. What are you going to do about it?

A. I’ll give you a side story on that one. My family and I came to visit Tim (Sullivan) and Anne a couple of years ago. Anne took my daughters upstairs and started explaining these various ghost stories and scared the life out of them, particularly my youngest daughter.

When we started discussing coming to William and Mary, my 11-year-old said, “Does that mean we’re going to live in the ghost house?”

As you know, the house will be undergoing renovations. We suggested to my 11-year-old that they’re going to get the ghosts out. She’s hopeful that occurs.

Charlottesville area public defenders want more pay

In this article from the Charlottesville paper, the question is raised once again as to why the public defenders aren't paid as well as the prosecutors.

Supreme Court refuses to take on the case against congressional redistricting in Eastern Virginia

Bob Lewis for the AP writes here that the U.S. Supreme Court denied the appeal of the Virginia redistricting case, in which it was claimed that the Republican redistricters squished all the black voters into Congressman Bobby Scott's district.

Still more reflections on the Haysom case

Here Darrell Laurant of the Lynchburg paper weighs in on the case of Jens Soering and Elizabeth Haysom, 20 years after Haysom's parents were murdered, including comments from the trial court judge, now retired, and more strange quotes from and about Soering and Haysom.

That Pennsylvania case that said there was no fair report privilege for the media

In Norton v. Glenn, the Supreme Court of Pennsylvania held that neither the state nor federal constitutions require recognition of a neutral reportage privilege for the media. last week, while I was down at the beach, I read that the U.S. Supreme Court denied certiorari on the media's appeal in the case.

Rightly so, I say. The first amendment does not mean that you report that somebody said, "the king is a fink," and that somebody said, "the king is not a fink," and declare that's fair and balanced reporting. I mean, some protesters and protestees are not saying anything that ought to be in the paper at all. If you know that neither President Bush nor John Kerry are Communist agents, then you should not print that someone says they are, at least not without saying that the someone has got it wrong.

U.S. Supreme Court denies Commonwealth's appeal in Earl Washington case

The Norfolk paper reported here that the U.S. Supreme Court denied the Commonwealth's petition for certiorari sought in the matter of the order for the production of Virginia State Police records in the Earl Washington civil case.

For the recent Certworthy newsletter of the DRI Appellate Practice section, I wrote the following about the Fourth Circuit opinion in that case, Virginia Department of State Police v. Washington Post, 386 F.3d 567 (4th Cir. 2004):

After his release from Death Row, Earl Washington filed a civil suit and subpoenaed records from the Virginia State Police, a non-party. The State Police produced its records under seal. After some records were unsealed, some reporters concluded from the unsealed documents that the State Police had DNA evidence linking the crime to another man. In light of the news reports, the District Court decided to unseal all but one of the remaining documents, and the State Police appealed.

In an opinion by Judge Shedd, the Court of Appeals affirmed the District Court’s orders. In footnotes, the Court resolved some interesting side-issues. First, the Court allowed that an order unsealing documents is appealable under the collateral order doctrine. Second, because of the media’s participation, the Court distinguished its refusal in Pittston Co. v. U.S., 368 F.3d 385 (4th Cir. 2004), to unseal documents at a party’s request.

On the merits, the Court’s task was to weigh the public’s right to information about Washington’s case against the need to protect the state’s investigation into the unsolved murder. Because Washington filed several of the sealed documents with his opposition to defendants’ summary judgment motions, the First Amendment requires the state to show a compelling government interest to avoid disclosure. The state’s interest in non-disclosure of the documents was less than compelling, because the facts they contained were already being published in the newspapers. Also, without deciding whether the public’s right of access extends to the transcript of a pretrial hearing on a non-dispositive motion, the Court ordered disclosure of a disputed transcript, because the State Police had offered no reason at all for keeping it sealed.

Chief Judge Jones moves Knox trial to Abingdon

In U.S. v. Knox, Chief Judge Jones granted the government's request to move the trial from Roanoke to Knoxville - but not because of all the really bad publicity in the Roanoke paper for its earlier efforts to prosecute Dr. Knox.

The most amusing aspects of the earlier press coverage of the Dr. Knox trial included the testimony about the voodoo Teddy Bear in the doctor's office, and also an expert on the smells of the 1960s, as described more fully in this post.

This is my favorite part:

Chief U.S. District Judge Samuel Wilson interjected.

"You didn't think you were doing Mr. Fitzgerald any harm by sticking pins in the stuffed animal?" Wilson asked.

Durham replied that she didn't think she was doing any harm. Fitzgerald was sick one day, but no link to the stuffed bear was ever established.

On Coach Tubby Smith

It says here that Tubby Smith will stay as basketball coach at Kentucky.

Last week, we were talking about whether he would come to Virginia, and I was saying he would never do it, and my brother-in-law said no he doesn't like Kentucky. We debated this for a while.

On Tuesday, as we were picking up our golf bags, the fellow working there noticed the U.Va. head covers on my clubs and asked us who we thought would be the next coach. The brother-in-law said Smith. The fellow in front of us, also loading up his clubs, heard this exchange and declared: "You can have him. We're sick of him at Kentucky. If we still had Pitino, we'd have won that last game. He knows how to win the big games."

Hmm, maybe it's true that KY is not so nice for Coach Smith.

More on the Boucher bill to protect reporters from federal investigators

Someone from the Village Voice has this post about the need for Congressman Boucher's bill to protect reporters from federal investigations.

I don't dislike Congressman Boucher's bill, but the idea that reporters should be entitled to a privilege like doctors or priests or lawyers or spouses is not just wrong, it's offensive, and the rationale that the public won't know what the government is doing unless government officials can secretly break the law by telling state secrets to reporters is absurd.

The remedy is - either the stuff, whatever it is, should not be secret in the first place, or if the secrecy is justified, the leaking should be punished, not encouraged.

College football loafers get pink jerseys

Reporting from the Razorbacks' spring football practices, it says Arkansas debuts pink jerseys for slackers.

New program for evaluating Virginia judges up for reappointment

The Washington Post reports here on a new program for evaluating Virginia judges who are up for reappointment. The program calls for evaluations by lawyers, jurors, and retired judges. It was formulated by a task force headed by Justice Keenan.

The article also says that since the Republicans assumed the majority in 2000, other changes they have implemented include the establishment of "local citizen commissions to screen nominees for circuit and district court judgeships."

Curing the effect of court-appointed lawyers missing appeal deadlines

The Washington Post opines here that Virginia did the right thing with the new law that allows relief from missed deadlines for appeals by defense counsel in criminal cases.

Why not drive the Dakota to Wise?

This SST post quotes Tim Kaine bragging on how many miles he has put on his Dodge Dakota driving around the state since he became lieutenant governor.

I've always wondered, why didn't he drive down to Wise for the kick-off event that was cancelled because of bad weather at the airport?

Proposals to improve Virginia's criminal justice system

The Norfolk paper reports here on proposals by the Innocence Commission for Virginia on ways to improve the criminal justice system in Virginia, including the videotaping of confessions, the methods of handling photo arrays, and discovery for defense lawyers.

A similar report from the Richmond paper is reproduced here on the NACDL website.

Judge Kelley of the E.D. Va. to decide whether U.S. attorney can charge defense lawyers for copies

The Norfolk paper reported here on a dispute between federal prosecutors and court-appointed defense lawyers over who should pay for copies of documents to be provided to the defense lawyers.

The coal camps of Wise County

The Coalfield Progress reports here on a new pictorial history of the coal camps in Wise County.

My favorite coal camp doctor book is Appalachian Passage by Helen Hiscoe. She was the wife of a doctor who worked in a coal camp in West Virginia for a year beginning in 1949.

Twenty years after the Haysom murders

The Roanoke paper has this retelling of the sensational case against Jens Soering and Elizabeth Haysom for the murder of her parents twenty years ago today. The article notes that Haysom is eligible for parole again this year and Soering is eligible for parole again next year.

Kilgore campaign does the Bristol race

Bob Lewis for the AP reports here that the Jerry Kilgore campaign logo appeared on a car at today's Bristol NASCAR race and that Mr. Kilgore was the grand marshal of the event.

Extra $2 million for court-appointed attorneys not enough

Larry O'Dell for the AP reports here that the slight increases allowed by the General Assembly this year for the lawyers who represent the poor in criminal cases do not go far enough.

Bill Bovender as Peter Pan

In this column from the Kingsport paper, lawyer Bill Bovender declares: "God forbid that I ever grow up and cease attending games and supporting the Tar Heels."

Funky weather day

Yesterday as we were driving across SC, my wife talked on the phone to her mom, who said she had seen blossoms in the air and thought they were snow. Snow, we laughed.

As we headed out of NC, we passed two snow trucks going up the mountain. When we got to the TN line, it was a blizzard.

So, Saturday morning we walked on the beach; Saturday evening we walked the dog while holding an umbrella sideways to block the blowing slush.