Saturday, April 23, 2005

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 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.)

Friday, April 22, 2005

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 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.

Thursday, April 21, 2005

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.

Wednesday, April 20, 2005

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.

Tuesday, April 19, 2005

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."

Monday, April 18, 2005

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.

Sunday, April 17, 2005

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.