Here is the press release that says Clinton W. Shinn has been named the Dean at the Appalachian School of Law.
It says in part:
" Professor Shinn practiced law in New Orleans, Louisiana for more than 25 years, concentrating in the areas of probate and estate planning, commercial transactions, oil and gas property interests, and environmental regulation.
Professor Shinn returned to full-time academia in 1999, having previously taught for two years as an assistant professor of law at the Tulane University School of Law. From 1999 until 2001, he was a member of the ASL faculty, and then was an associate professor of law at the Mississippi College School of Law from 2001 until 2006. In August 2006, he returned to Appalachian as tenured Professor of Law.
Wes Shinn is a graduate of the Tulane School of Law, where he graduated with highest honors, was elected to Order of the Coif, and served as Editor-in-Chief of the Tulane Law Review. He earned an LL.M. from the Harvard Law School in 1973. He teaches courses in Property, Secured Transactions, and Estates & Trusts at ASL. Dean Shinn has published in the legal fields of civil law obligations, secured transactions, and environmental law, and has been a frequent speaker in the areas of wills and estates. He is a Fellow of the American College of Trust and Estate Counsel, a Charter Fellow of the Louisiana Bar Foundation, and served a term as an elected delegate to the Louisiana State Bar Association."
Speaking of ASL, our annual sojourn to the Willowbrook golf course at the Breaks for the annual fundraiser tournament is fast approaching.
Tuesday, July 31, 2007
Could this be a title for my memoirs?
Here is Cheeseburger Steve.
This important item from the Roanoke paper suggests that the title would not appeal to former President Carter.
This important item from the Roanoke paper suggests that the title would not appeal to former President Carter.
Local rule on ADR for the W.D. Va.
I read on the W.D. Va. website the new local rule regarding alternative dispute resolution, promulgated pursuant to 28 U.S.C. 651.
And, one thing I noticed was where it says this:
"G. Enforceability. The Court will not assist in the enforcement of any agreement, settlement, or fee arrangement from any alternative dispute resolution process which is not annexed by the Court. In all other situations, the parties may invoke any of the Court's traditional enforcement mechanisms."
So, what does it mean to have an "alternative dispute resolution process" "annexed by the Court?" I'm not sure that the answer is obvious, although there are plenty of references to "court-annexed mediation" online. It sounds like the conservative course is to either use the magistrate judge, or get a formal order referring the case to an outside mediator, and then perhaps have the settlement referenced in some manner in connection with whatever papers are filed requesting dismissal.
The next time I get a chance, I may inquire of someone who can set me straight.
UPDATE: Evidently, this has been part of Judge Conrad's standing order on ADR for years. I knew it came from somewhere. Maybe the same language is in local rules everywhere, but it is new to me.
And, one thing I noticed was where it says this:
"G. Enforceability. The Court will not assist in the enforcement of any agreement, settlement, or fee arrangement from any alternative dispute resolution process which is not annexed by the Court. In all other situations, the parties may invoke any of the Court's traditional enforcement mechanisms."
So, what does it mean to have an "alternative dispute resolution process" "annexed by the Court?" I'm not sure that the answer is obvious, although there are plenty of references to "court-annexed mediation" online. It sounds like the conservative course is to either use the magistrate judge, or get a formal order referring the case to an outside mediator, and then perhaps have the settlement referenced in some manner in connection with whatever papers are filed requesting dismissal.
The next time I get a chance, I may inquire of someone who can set me straight.
UPDATE: Evidently, this has been part of Judge Conrad's standing order on ADR for years. I knew it came from somewhere. Maybe the same language is in local rules everywhere, but it is new to me.
Retailer's indemnification agreement with bankrupt manufacturer justifies stay of products liability claim
In an interesting opinion in the case of Midkiff v. Lowe's Home Centers, Inc., Judge Kiser stayed the personal injury claim against Lowe's over a defective ladder, where Lowe's had an indemnification agreement with the manufacturer, now in bankruptcy in Delaware.
Should have learned from that story about Noah
The Bristol paper has been reporting on the case of a minister and gospel radio personality from this side of Bristol, who was apprehended at a car wash in Tennessee while drunk and wearing a skirt and urinating in public and exposing himself indecently and propositioning lewdly some law enforcement officers.
Evidently, some if not all of this is illegal in Tennessee, although there may not be a statute on the skirt.
In the Bible, Noah passed out drunk, his son Ham thought it was funny, and so Noah cursed Ham's son and his descendants - a tale that has been the subject of art and literature ever since, including this image from the Sistine Chapel.
Evidently, some if not all of this is illegal in Tennessee, although there may not be a statute on the skirt.
In the Bible, Noah passed out drunk, his son Ham thought it was funny, and so Noah cursed Ham's son and his descendants - a tale that has been the subject of art and literature ever since, including this image from the Sistine Chapel.
Was there a split between John Brownlee's office and Main Justice over prosecution of Purdue?
This New York Times article suggests that there were some differences between the prosecutors in the Western District of Virginia and Justice Department official in Washington, D.C., over how far to go in prosecuting Purdue Pharma.
The article is interesting, particularly after reading, via the VLW blog, this detailed and disheartening account about how the criminal prosecution in the E.D. Va. aimed at individuals, including some lawyers, connected with the failure of the Reciprocal of America has petered out. Reciprocal of America was the parent of ANLIR, also in receivership in Tennessee, and which was formerly the legal malpractice carrier endorsed by the Virginia State Bar.
The article is interesting, particularly after reading, via the VLW blog, this detailed and disheartening account about how the criminal prosecution in the E.D. Va. aimed at individuals, including some lawyers, connected with the failure of the Reciprocal of America has petered out. Reciprocal of America was the parent of ANLIR, also in receivership in Tennessee, and which was formerly the legal malpractice carrier endorsed by the Virginia State Bar.
On Charlottesville's drug court
At the summer meeting of the The Virginia Bar Association at the The Homestead, I heard a presentation by Judge Hogshire on Charlottesville on the drug court program he oversees. And, he spoke with a missionary's zeal, describing how he was skeptical of the program he inherited when he came on the bench, it had been started by his predecessors including Judge Swett but it was too new for anyone to have completed the program, and he didn't know how it would work. But now, he will talk at any length about the transformations he has observed in some of the lives of people who have gone through the program.
And, C-ville Weekly has this report on some recent additions to that list.
I'd say that Drug Court Graduation Day is a powerful event.
And, C-ville Weekly has this report on some recent additions to that list.
I'd say that Drug Court Graduation Day is a powerful event.
Good idea
This story about a Crohn's disease fundraiser begins:
"It's one of the most important things I'll do all year," says Jim Smith from Lynnwood.
He's talking about the 210-mile bicycle ride this weekend through Western Washington to raise money and awareness about a condition Jim has.
It's the "Get your Guts in Gear" ride for Crohn's disease and Colitis. Fortunately along the route: "There are a lot of rest stops and a lot of bathrooms," says Jim.
"It's one of the most important things I'll do all year," says Jim Smith from Lynnwood.
He's talking about the 210-mile bicycle ride this weekend through Western Washington to raise money and awareness about a condition Jim has.
It's the "Get your Guts in Gear" ride for Crohn's disease and Colitis. Fortunately along the route: "There are a lot of rest stops and a lot of bathrooms," says Jim.
There ought to be a law on this
When I read this great story from the Norfolk paper, it occurred to me that there should be a legal presumption that all VMI men without heirs intended to give all to VMI.
I haven't met a VMI grad yet who didn't fit my image of VMI grads. There might be some bad apples out there, but they don't hang out where I would meet them.
I haven't met a VMI grad yet who didn't fit my image of VMI grads. There might be some bad apples out there, but they don't hang out where I would meet them.
Monday, July 30, 2007
Hey, that's right
I read this post, about how Senator Schumer says he will not go along with any more nominations by President Bush to the U.S. Supreme Court.
One of the commenters points out that what the Supreme Court did in Gonzalez v. Carhart was to uphold the constitutionality of an act of Congress passed with the votes of current and former legislators such as Democrat Senators Bayh, Biden, Daschle, Leahy, and Reid, and the Republican Specter.
When Senator Specter goes back to check his notes, he might see that one of his main complaints in the confirmation sessions was about the Supreme Court overturning acts of Congress.
After all this, I read here that the Chief Justice went to the hospital today.
One of the commenters points out that what the Supreme Court did in Gonzalez v. Carhart was to uphold the constitutionality of an act of Congress passed with the votes of current and former legislators such as Democrat Senators Bayh, Biden, Daschle, Leahy, and Reid, and the Republican Specter.
When Senator Specter goes back to check his notes, he might see that one of his main complaints in the confirmation sessions was about the Supreme Court overturning acts of Congress.
After all this, I read here that the Chief Justice went to the hospital today.
What happened to Virginia?
Here is a book review from American Heritage of Dominion of Memories: Jefferson, Madison, and the Decline of Virginia, which fits well with the account, of how the pre-War South actively opposed the incursion of the telegraph, I read in another book recently, Mr. Lincoln's T-Mails: The Untold Story of How Abraham Lincoln Used the Telegraph to Win the Civil War, which was terrific.
Another book I should like to read
A couple of times, I've seen a fellow named Garrett Epps on C-SPAN, most recently in relation to a book about the Fourteenth Amendment, called Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America.
And, I've wondered, is this fellow kin to John Epps, who I know from Board of Governors of The Virginia Bar Association?
Not having the moxie to ask, I've discovered for myself that the answer is yes, and here is what Professor Epps wrote on the passing of their father, Richmond lawyer A.C. Epps - worth reading, even if you never heard of any Richmonders named Epps.
And, I've wondered, is this fellow kin to John Epps, who I know from Board of Governors of The Virginia Bar Association?
Not having the moxie to ask, I've discovered for myself that the answer is yes, and here is what Professor Epps wrote on the passing of their father, Richmond lawyer A.C. Epps - worth reading, even if you never heard of any Richmonders named Epps.
Books read lately
The father-in-law showed up on Friday with a stash of books, of which I read Sailor on Horseback by Irving Stone, a biography of Jack London, The Sportswriter by Richard Ford, Galatea by James M. Cain, and I started The Old Patagonia Express by Paul Theroux - these were part of the stash Dana's uncle the Book Snake sent to the father-in-law to read while he was recovering from surgery.
The London book is about 70 years old, the Cain book about 50 years old, the others about 30 years old.
The reason for so much reading is that I was the designated sitter of this crew, while the others went to the Virginia Highlands Festival.
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The London book is about 70 years old, the Cain book about 50 years old, the others about 30 years old.
The reason for so much reading is that I was the designated sitter of this crew, while the others went to the Virginia Highlands Festival.
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Friday, July 27, 2007
More on Michael Vick
This piece looks at Michael Vick's lawyers, including Billy Martin and Daniel Meachum.
This interesting commentary from Congressman Bob Barr points out that the Interstate Commerce clause is what put Vick's case in federal court.
This Sports Illustrated piece addresses Vick's case and the impact on the image of Virginia Tech. (The author is that same guy who said Al Groh is the worst.) I prefer the view of Bob Griese, one of my all-time favorites, who said Tech is one of the best this year. I don't think Vick's legal troubles reflect poorly on Tech any more than Ralph Sampson's legal troubles reflect poorly on Virginia.
This interesting commentary from Congressman Bob Barr points out that the Interstate Commerce clause is what put Vick's case in federal court.
This Sports Illustrated piece addresses Vick's case and the impact on the image of Virginia Tech. (The author is that same guy who said Al Groh is the worst.) I prefer the view of Bob Griese, one of my all-time favorites, who said Tech is one of the best this year. I don't think Vick's legal troubles reflect poorly on Tech any more than Ralph Sampson's legal troubles reflect poorly on Virginia.
On the bad driver fees
This AP story and this Richmond paper article (by Bill McElway, so you know it's good) say that a judge in Henrico County will soon rule on the constitutionality of the new bad driver fees that were part of this year's road funding bill.
This Roanoke Times article mocks Delegates Griffith and Kilgore for getting speeding tickets on the interstate between here and Richmond.
This Roanoke Times article mocks Delegates Griffith and Kilgore for getting speeding tickets on the interstate between here and Richmond.
On court-packing
There is an opinion piece in the NY Times, making the rounds, which seems to advocate changing the number of justices on the U.S. Supreme Court to get around the conservative rulings of the current Court.
It says in part:
"If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant."
This post says yeah, but look what happened to them.
It says in part:
"If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant."
This post says yeah, but look what happened to them.
Wednesday, July 25, 2007
On the demise of LEO 1829
Jeff Shapiro of the Richmond paper reports here on the decision by the VSB to take a pass on LEO 1829.
It is a funny sort of contradiction. When the Rules replaced the Code in Virginia, the proscription against the appearance of impropriety was taken out, because it was thought to be too vague, yet under the Code, this vague language led to a nevertheless "bright line" rule, which LEO 1829 would have eliminated.
UPDATE: The Shapiro story contains one misleading point, with regard to the position of the LGA, or so I'm told, who in their comment to the VSB said, among other things: "There was also consensus that our members would prefer a return to the appearance of impropriety standard contained in the former Code of Professional Responsibility."
That's what I think, and a lot of Virginia lawyers think.
It is a funny sort of contradiction. When the Rules replaced the Code in Virginia, the proscription against the appearance of impropriety was taken out, because it was thought to be too vague, yet under the Code, this vague language led to a nevertheless "bright line" rule, which LEO 1829 would have eliminated.
UPDATE: The Shapiro story contains one misleading point, with regard to the position of the LGA, or so I'm told, who in their comment to the VSB said, among other things: "There was also consensus that our members would prefer a return to the appearance of impropriety standard contained in the former Code of Professional Responsibility."
That's what I think, and a lot of Virginia lawyers think.
Tuesday, July 24, 2007
What some elected judges think
"As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else's money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me."
Richard Neely of the West Virginia Supreme Court, quoted on Forbes.com.
Richard Neely of the West Virginia Supreme Court, quoted on Forbes.com.
Another interesting Virginia lawyer profiled
Here is a profile of Eleanor Weston Brown, Newport News lawyer and Regent law professor, and owner of two houses and a hybrid car, among other things.
Monday, July 23, 2007
Jim Webb and Lebanon in Rolling Stone
Some government employee sent me the word about this excerpt from the Jim Webb profile in Rolling Stone magazine, which is largely about Southwest Virginia.
It begins:
"As night settles between the mountain ridges that rise on either side of Lebanon, Virginia, a rough little strip of a town in the state's southwestern corner, Sen. James Webb's people assemble in the Russell County Courthouse. They're coal miners and miners' wives, a third of them in the camouflage strike gear of the United Mine Workers, many of them wearing ball caps declaring them veterans of Korea, Vietnam or Iraq. A leather-skinned veteran named Eldridge tells me in a raspy whisper that he voted for Webb because Webb, a novelist and historian, had gotten these people, mountain people, right in his most recent book, a best-selling history of the Scots-Irish in America called Born Fighting. "We've got our own ghosts and goblins," Eldridge says, and he thinks Webb sees them. "He has the Second Sight.""
It begins:
"As night settles between the mountain ridges that rise on either side of Lebanon, Virginia, a rough little strip of a town in the state's southwestern corner, Sen. James Webb's people assemble in the Russell County Courthouse. They're coal miners and miners' wives, a third of them in the camouflage strike gear of the United Mine Workers, many of them wearing ball caps declaring them veterans of Korea, Vietnam or Iraq. A leather-skinned veteran named Eldridge tells me in a raspy whisper that he voted for Webb because Webb, a novelist and historian, had gotten these people, mountain people, right in his most recent book, a best-selling history of the Scots-Irish in America called Born Fighting. "We've got our own ghosts and goblins," Eldridge says, and he thinks Webb sees them. "He has the Second Sight.""
Another item I missed
VLW Blog posted here that Judge James Benton of the Virginia Court of Appeals has announced his retirement.
National media came to town for the OxyContin sentencing
I was at the Homestead on Friday, but the New York Times and Time magazine were in Abingdon to see the protesters and the proceedings before Chief Judge Jones in the criminal case.
On Judge Widener and senior status
On Friday, the Washington Post had this short article about Judge Widener. It says in part:
"The nation's longest-serving federal appellate judge has stepped down as an active member of the U.S. Court of Appeals for the 4th Circuit, leaving it with five vacancies.
Judge H. Emory Widener Jr. took senior status Tuesday, his secretary, Peg Bishop, confirmed yesterday."
"The nation's longest-serving federal appellate judge has stepped down as an active member of the U.S. Court of Appeals for the 4th Circuit, leaving it with five vacancies.
Judge H. Emory Widener Jr. took senior status Tuesday, his secretary, Peg Bishop, confirmed yesterday."
On Judge Conrad
The Charlotte paper had this article on the announcement that President Bush would nominate Chief Judge Robert Conrad, Jr., of the W.D.N.C. to the long-vacant position on the Fourth Circuit formerly held by Judge Phillips, and to which Judge Boyle was nominated at different times.
Here is a friendly profile of Chief Judge Conrad.
On the flip side, ACS had this negative post about Chief Judge Conrad.
Here is a friendly profile of Chief Judge Conrad.
On the flip side, ACS had this negative post about Chief Judge Conrad.
Commentary on AT&T Wireless
This article links the sole service provider for Apple's new iPhone with terrorism surveillance.
It begins:
"If you didn’t manage to snag an iPhone yet, it might not be the worst thing in the world. In addition to saving some money to pay off those pesky student loans, you also might be successfully avoiding wiretaps from the National Security Agency."
It begins:
"If you didn’t manage to snag an iPhone yet, it might not be the worst thing in the world. In addition to saving some money to pay off those pesky student loans, you also might be successfully avoiding wiretaps from the National Security Agency."
Thursday, July 19, 2007
A Tiger on the Court?
If you haven't heard, it says here that the White House is nominating U.S. District Court Judge Robert Conrad, Jr., from the W.D.N.C. to the Fourth Circuit.
Judge Conrad is the one who played college ball at Clemson.
Also, SC Appellate Blog reports that Judge Widener is announcing for real that he is taking senior status.
Judge Conrad is the one who played college ball at Clemson.
Also, SC Appellate Blog reports that Judge Widener is announcing for real that he is taking senior status.
Tuesday, July 17, 2007
On Michael Vick a/k/a "Ookie"
I looked at the Michael Vick indictment on PACER.
It says he and his friends called their enterprise "Bad Newz Kennels." The indictment describes dog fights in several states, and the killing of some dogs who wouldn't fight.
I'd say they wouldn't want me on the jury.
You can see the indicment here.
It says he and his friends called their enterprise "Bad Newz Kennels." The indictment describes dog fights in several states, and the killing of some dogs who wouldn't fight.
I'd say they wouldn't want me on the jury.
You can see the indicment here.
Monday, July 16, 2007
The record on innocence petitions
According to this story in the Richmond paper, not one of these has been granted.
The article notes: "According to a spokesman for the Virginia Court of Appeals, as of the end of 2006, 92 petitions had been filed. Eighty-five were dismissed and seven were pending."
The article also says: "Critics say that is because the law is impossibly tough."
The article quotes Senator Stolle: "I think that unless somebody is actually innocent and actually has to a large degree irrefutable evidence that they're innocent, they will not be able to take advantage of this writ of actual innocence."
The article notes: "According to a spokesman for the Virginia Court of Appeals, as of the end of 2006, 92 petitions had been filed. Eighty-five were dismissed and seven were pending."
The article also says: "Critics say that is because the law is impossibly tough."
The article quotes Senator Stolle: "I think that unless somebody is actually innocent and actually has to a large degree irrefutable evidence that they're innocent, they will not be able to take advantage of this writ of actual innocence."
On Dr. Hurwitz
This article from the NY Times about the sentence in the case of Dr. Hurwitz from Northern Virginia has mostly generated comments to the effect that he should not be sent to prison at all, for overprescribing pain medication.
All of which reminds me of the case of Dr. Nick, who wrote the prescriptions for Elvis, but was acquitted.
Unrelated to these stories, the Roanoke paper is reporting that there will be a rally against the manufacturer of OxyContin in downtown Abingdon on Friday of this week, to coincide with the hearing on the sentencing of the three manufacturer's executives. I don't recall anything like that since the Pittston strike, or maybe failed effort to enjoin the foreclosure on the hard rockin', flame-throwing FM radio station, which was said to be Abingdon's own version of "The Day the Music Died."
All of which reminds me of the case of Dr. Nick, who wrote the prescriptions for Elvis, but was acquitted.
Unrelated to these stories, the Roanoke paper is reporting that there will be a rally against the manufacturer of OxyContin in downtown Abingdon on Friday of this week, to coincide with the hearing on the sentencing of the three manufacturer's executives. I don't recall anything like that since the Pittston strike, or maybe failed effort to enjoin the foreclosure on the hard rockin', flame-throwing FM radio station, which was said to be Abingdon's own version of "The Day the Music Died."
Sunday, July 15, 2007
John Warner raises $500 in first quarter?
Those at MyDD take the lack of fundraising as a sign that Senator Warner will not run again.
The author of this Wizbang post hopes Jim Gilmore will take his place, now that he has quit the presidential race.
The author of this Wizbang post hopes Jim Gilmore will take his place, now that he has quit the presidential race.
On Drew Weaver and the British Open
I don't know how much of the British Open I'll get to see this week, but one guy's score I'll be checking is Virginia Tech junior Drew Weaver, who as this summer's British Amateur champion will be paired up with defending Open champion Tiger Woods on Thursday and Friday.
On Richard Morgan
Glen Reynolds says he has been reading Richard Morgan.
The Richard Morgan I like to think about is the one who threw down 39 points on the Tarheels, who is now (I think) coaching down at Boone.
I'm not the only still thinking about that game.
The Richard Morgan I like to think about is the one who threw down 39 points on the Tarheels, who is now (I think) coaching down at Boone.
I'm not the only still thinking about that game.
Another one of those "litigation climate" reports likes Virginia for the defense
It says here:
"The liability climate in Virginia is conducive to growth and job creation. Virginia has the second lowest insurance loss ratios in the nation. The Commonwealth abolished joint liability and enacted reasonable limits on punitive damages among other reforms. The Virginia Supreme Court, which is elected by the General Assembly, has a rule-of-law majority. Since 1993, Virginia has elected attorneys general who were all active legal reform leaders, including the incumbent Attorney General Bob McDonnell. As a member of the House of Delegates, General McDonnell introduced several liability reform bills that were signed into law."
"The liability climate in Virginia is conducive to growth and job creation. Virginia has the second lowest insurance loss ratios in the nation. The Commonwealth abolished joint liability and enacted reasonable limits on punitive damages among other reforms. The Virginia Supreme Court, which is elected by the General Assembly, has a rule-of-law majority. Since 1993, Virginia has elected attorneys general who were all active legal reform leaders, including the incumbent Attorney General Bob McDonnell. As a member of the House of Delegates, General McDonnell introduced several liability reform bills that were signed into law."
Saturday, July 14, 2007
On George Brett
In the case of Central Manufacturing, Inc. v. Brett, the Seventh Circuit's opinion begins:
The Pine Tar Incident
It’s undisputed: George Brett was a great baseball player. The statistics from his 21 years in The Show, all with the Kansas City Royals, seal the deal: 3,154 hits, 317 home runs, and a career batting average of .305. Only three other players—Stan Musial, Hank Aaron, and Willie Mays—ended their careers with more than 3,000 hits and 300 home runs, while still maintaining a lifetime batting average over .300. Brett’s selection to the Hall of Fame, on the first ballot in 1999, was richly deserved. Yet for all his accomplishments, many who love baseball will always think of the “Pine Tar Incident” as the capstone of his career. It is a joy to recall.
It was July 24, 1983, and the Royals, trailing 4-3 to the New York Yankees, had a man on first but were down to their final out in the top half of the ninth inning. Brett was at the plate. The Yankees’ ace closer, “Goose” Gossage, was on the mound. And Brett crushed an 0-1 fastball over the 353-foot mark into the right field seats, giving Kansas City the lead, 5-4. Pandemonium broke out in the Royals’ dugout. The Yankee Stadium crowd fell silent. But things were about to change.
While the Royals were celebrating, the Yankees’ fiery manager, Billy Martin, walked calmly (unusual for him) to home plate where he engaged the umpire, Tim McClelland, in quiet conversation. Martin pointed to an obscure rule (and we sometimes think the Federal Rules of Appellate Procedure are obscure!), which provides that any substance (including pine tar) that a player might rub on his bat handle for a better grip cannot extend more than 18 inches. See Major League Baseball Official Rules § 1.10(b). Martin, pointing to a lot of pine tar on the bat Brett left behind as he circled the bases, asked McClelland to check it out. McClelland, using home plate as a ruler, determined that pine tar covered 24 inches of the bat handle. So the bat, McClelland ruled, was illegal.
With his ruling ready for delivery, McClelland took a few steps toward the jubilant Royals’ dugout and gave the signal: for using an illegal bat, the home run was nullified, and Brett was out. Game over. Yankees win 4-3. And all hell broke loose. An infuriated George Brett charged out of the dugout and rushed McClelland as Martin, who looked like the cat who ate the canary, stood off to the side. It was one of the great all-time rhubarbs in baseball history. And that’s how it ended, at least for July 24, 1983.
But baseball, like our legal system, has appellate review. The Royals protested the game and, as luck would have it, American League President Lee MacPhail (to use a phrase with which we are accustomed) “reversed and remanded for further proceedings.” The game resumed three weeks later with Kansas City ahead, 5-4. It ended after 12 minutes when Royals’ closer Dan Quisenberry shut the door on the Yankees in their half of the ninth to seal the win. The whole colorful episode is preserved, in all its glory, on YouTube, at http://www.youtube.com/watch?v=4Cu1WXylkto (last visited June 6, 2007). See also Retrosheet Boxscore, Kansas City Royals 5, New York Yankees 4, at http://www.retrosheet.org/boxesetc/1983/B07240NYA1983.htm (last visited June 6, 2007).
The Pine Tar Incident
It’s undisputed: George Brett was a great baseball player. The statistics from his 21 years in The Show, all with the Kansas City Royals, seal the deal: 3,154 hits, 317 home runs, and a career batting average of .305. Only three other players—Stan Musial, Hank Aaron, and Willie Mays—ended their careers with more than 3,000 hits and 300 home runs, while still maintaining a lifetime batting average over .300. Brett’s selection to the Hall of Fame, on the first ballot in 1999, was richly deserved. Yet for all his accomplishments, many who love baseball will always think of the “Pine Tar Incident” as the capstone of his career. It is a joy to recall.
It was July 24, 1983, and the Royals, trailing 4-3 to the New York Yankees, had a man on first but were down to their final out in the top half of the ninth inning. Brett was at the plate. The Yankees’ ace closer, “Goose” Gossage, was on the mound. And Brett crushed an 0-1 fastball over the 353-foot mark into the right field seats, giving Kansas City the lead, 5-4. Pandemonium broke out in the Royals’ dugout. The Yankee Stadium crowd fell silent. But things were about to change.
While the Royals were celebrating, the Yankees’ fiery manager, Billy Martin, walked calmly (unusual for him) to home plate where he engaged the umpire, Tim McClelland, in quiet conversation. Martin pointed to an obscure rule (and we sometimes think the Federal Rules of Appellate Procedure are obscure!), which provides that any substance (including pine tar) that a player might rub on his bat handle for a better grip cannot extend more than 18 inches. See Major League Baseball Official Rules § 1.10(b). Martin, pointing to a lot of pine tar on the bat Brett left behind as he circled the bases, asked McClelland to check it out. McClelland, using home plate as a ruler, determined that pine tar covered 24 inches of the bat handle. So the bat, McClelland ruled, was illegal.
With his ruling ready for delivery, McClelland took a few steps toward the jubilant Royals’ dugout and gave the signal: for using an illegal bat, the home run was nullified, and Brett was out. Game over. Yankees win 4-3. And all hell broke loose. An infuriated George Brett charged out of the dugout and rushed McClelland as Martin, who looked like the cat who ate the canary, stood off to the side. It was one of the great all-time rhubarbs in baseball history. And that’s how it ended, at least for July 24, 1983.
But baseball, like our legal system, has appellate review. The Royals protested the game and, as luck would have it, American League President Lee MacPhail (to use a phrase with which we are accustomed) “reversed and remanded for further proceedings.” The game resumed three weeks later with Kansas City ahead, 5-4. It ended after 12 minutes when Royals’ closer Dan Quisenberry shut the door on the Yankees in their half of the ninth to seal the win. The whole colorful episode is preserved, in all its glory, on YouTube, at http://www.youtube.com/watch?v=4Cu1WXylkto (last visited June 6, 2007). See also Retrosheet Boxscore, Kansas City Royals 5, New York Yankees 4, at http://www.retrosheet.org/boxesetc/1983/B07240NYA1983.htm (last visited June 6, 2007).
Lawyers miss hearing, assessed costs, because spam filter ate a hearing notice e-mailed from federal court
Via Jim Calloway, this story tells of some lawyers in Colorado who missed a hearing in federal court because they had ratcheted up their spam filter and it started treating the federal court notices as spam.
Calloway says you must white-list the courts no matter what.
The cheapskate that I am, I/we use as our spam filter a program called SpamBayes, which has no white-listing feature, and here's why. The FAQ says in part: "If you really need whitelisting, consider implementing rules in your mailer to intercept the messages before they're passed to SpamBayes." I suppose it would not be too hard to write an Outlook e-mail rule for ECF/CMF messages. Or, we might break down and buy something like InBoxer.
Calloway says you must white-list the courts no matter what.
The cheapskate that I am, I/we use as our spam filter a program called SpamBayes, which has no white-listing feature, and here's why. The FAQ says in part: "If you really need whitelisting, consider implementing rules in your mailer to intercept the messages before they're passed to SpamBayes." I suppose it would not be too hard to write an Outlook e-mail rule for ECF/CMF messages. Or, we might break down and buy something like InBoxer.
Why more questions is a bad thing
This HOWT post weighs proposition, the side that gets the most questions will probably lose.
Arguing an appeal is a rare thing for me, but in the trial courts usually the judge if he or she has read the papers or the cases is going to ask somebody, doesn't this fact or this case mean that you lose?
And, sometimes the answer saves the day, but more often it doesn't. The worst situation is when the court stops asking questions, because they've made up their mind and are no longer interested.
Unfortunately, in state court, where the judges have larger dockets and smaller staffs, the questions are generally less incisive.
Arguing an appeal is a rare thing for me, but in the trial courts usually the judge if he or she has read the papers or the cases is going to ask somebody, doesn't this fact or this case mean that you lose?
And, sometimes the answer saves the day, but more often it doesn't. The worst situation is when the court stops asking questions, because they've made up their mind and are no longer interested.
Unfortunately, in state court, where the judges have larger dockets and smaller staffs, the questions are generally less incisive.
On motions to dismiss and the Bell Atlantic case
Via this post, this article explains why the Supreme Court's decision in Bell Atlantic v. Twombly will lead to more motions to dismiss being granted, even outside the area of anti-trust law.
More on the proposed new bar passage requirements for accredited law schools
The NLJ via law.com has this article, in which various law school deans blast the ABA's proposal, referenced here, to make specific bar passage rates a mandatory condition for continued accreditation.
Only successful prognostication in the past two years
Earlier this month, a split panel of the Sixth Circuit reversed the ruling of the District Court in Michigan on the constitutionality of the NSA's terrorism surveillance program, in the case of ACLU v. NSA.
And, that's what I thought would happen, although I didn't think it would go down for lack of standing.
And, that's what I thought would happen, although I didn't think it would go down for lack of standing.
Watch what you ask for
ACSBlog has this amusing post about how Vice-President Cheney's effort to claim that his office is outside of the Executive Branch might re-open the cases where he has claimed some form of privilege because his office is within the Executive Branch.
On Monroe Jamison
Bluegrass picker, coal lawyer, defender of the poor, Monroe Jamison died this week, at the too young age of 52.
He and his music buddies played on the front porch at my sister's outdoor wedding. He was a mainstay of live music in Abingdon, working on the Highlands Festival for years. He was in Kiwanis with my dad. I tried a hard-fought case against him in Scott County, not too long ago, and he won it. He was a fine fellow, a good lawyer and much more than a lawyer.
The Bristol paper's obituary says, and I believe it, he leaves behind his family and "a grieving community of musicians, colleagues and close friends who cherished his intelligence, warmth, generosity, quick wit and abundant talents.
He and his music buddies played on the front porch at my sister's outdoor wedding. He was a mainstay of live music in Abingdon, working on the Highlands Festival for years. He was in Kiwanis with my dad. I tried a hard-fought case against him in Scott County, not too long ago, and he won it. He was a fine fellow, a good lawyer and much more than a lawyer.
The Bristol paper's obituary says, and I believe it, he leaves behind his family and "a grieving community of musicians, colleagues and close friends who cherished his intelligence, warmth, generosity, quick wit and abundant talents.
Friday, July 13, 2007
Would the Democrats put a Richmonder on the Supreme Court?
SCOTUSBlog has made a list of people who might get picked for the Supreme Court if the next president is a Democrat, and the list includes Chief Justice Hassell and Judge Gregory of the Fourth Circuit.
But, they're not on Tom Goldstein's short list.
But, they're not on Tom Goldstein's short list.
Bad plan
The Roanoke paper reports here on the criminal case against a woman who decided to her boyfriend out by plotting to tamper with the car of the judge on his case, so the judge could not show up for court.
The article says in part:
"A woman who plotted to cut the brake lines on a judge's car was released from jail Thursday after several of the charges she faced were dropped.
. . .
At a preliminary hearing in January, a man testified that Dunford asked if he would help her find Showalter's Montgomery County home. After he pressed her, she admitted she wanted to cut his brake lines, he said.
Dunford's boyfriend, Christian Skye Crockett, was in jail on drug charges and Showalter wouldn't grant him bond. Dunford wanted to keep Showalter from showing up for court so another judge would hear Crockett's case, the man testified."
The trial judge in the girlfriend's case is retired Judge Quillen from the 30th Circuit.
The article says in part:
"A woman who plotted to cut the brake lines on a judge's car was released from jail Thursday after several of the charges she faced were dropped.
. . .
At a preliminary hearing in January, a man testified that Dunford asked if he would help her find Showalter's Montgomery County home. After he pressed her, she admitted she wanted to cut his brake lines, he said.
Dunford's boyfriend, Christian Skye Crockett, was in jail on drug charges and Showalter wouldn't grant him bond. Dunford wanted to keep Showalter from showing up for court so another judge would hear Crockett's case, the man testified."
The trial judge in the girlfriend's case is retired Judge Quillen from the 30th Circuit.
One more on the bandwagon
Here is an editoral from Wheeling, WV, saying that the White House and the Senate need to act now to fill vacancies on the Fourth Circuit.
Thursday, July 12, 2007
On wireless in Harrisonburg
Via Jim Baller, here is an update on a recent setback in the plans of the government in Harrisonburg to establish a wireless network.
Downtown Harrisonburg is kind of funky, with the courthouse on its own island in the middle of town, sort of like one of the squares in Savannah. I can't say that I ever did much good the few times I was in there, but I enjoyed being there.
Downtown Harrisonburg is kind of funky, with the courthouse on its own island in the middle of town, sort of like one of the squares in Savannah. I can't say that I ever did much good the few times I was in there, but I enjoyed being there.
Wednesday, July 11, 2007
On the late Lady Bird Johnson
When I was born, the President was Johnson and the First Lady was Lady Bird.
In 1965, while she was still First Lady, Lady Bird Johnson came to Abingdon, stayed at the Martha Washington Inn, and, as noted here, "bartered a potted plant for a ticket" to the Barter Theatre.
Or, so I've always heard. Actually, this version from Time Magazine says this:
"At Abingdon, the tourists attended the Barter Theater's performance of Julius Caesar, and the First Lady presented the theater's annual award to Presidential Arts Adviser Roger Stevens for his contributions as a Broadway producer. In keeping with the little theater's name, the group bargained its way past the box office: Lady Bird unwrapped another White House seedling, and Mrs. Humphrey brought a bucket of vegetables—'not to be thrown.'"
In 1965, while she was still First Lady, Lady Bird Johnson came to Abingdon, stayed at the Martha Washington Inn, and, as noted here, "bartered a potted plant for a ticket" to the Barter Theatre.
Or, so I've always heard. Actually, this version from Time Magazine says this:
"At Abingdon, the tourists attended the Barter Theater's performance of Julius Caesar, and the First Lady presented the theater's annual award to Presidential Arts Adviser Roger Stevens for his contributions as a Broadway producer. In keeping with the little theater's name, the group bargained its way past the box office: Lady Bird unwrapped another White House seedling, and Mrs. Humphrey brought a bucket of vegetables—'not to be thrown.'"
30th anniversary ignored
This article begins "The State Bar of Arizona last week had no comment regarding the practice of lawyers advertising, nor did it want to say anything about the 30th anniversary of the U.S. Supreme Court ruling on the matter."
On Eugene Derryberry
Here from the Roanoke paper is a story on the life and times of Eugene Derryberry, who was a business lawyer with the Gentry Locke firm.
The article says in part:
"Prominent Roanoke lawyer Eugene E. Derryberry would often sing and play his guitar in the middle of the afternoon to lighten up the office.
"When Gene would sing, everything in the world would be all right," said Mike Pace, a managing partner at Gentry Locke Rakes & Moore. Derryberry worked at the law firm for 34 years and was known as a mentor and a strict grammarian with a love for teaching."
I didn't know him, but I understood that he was the wise counselor for the family business of my mom's cousin's family business in downtown Roanoke. It seems to me that the Roanoke bar has (or had) a lot of interesting characters.
The article says in part:
"Prominent Roanoke lawyer Eugene E. Derryberry would often sing and play his guitar in the middle of the afternoon to lighten up the office.
"When Gene would sing, everything in the world would be all right," said Mike Pace, a managing partner at Gentry Locke Rakes & Moore. Derryberry worked at the law firm for 34 years and was known as a mentor and a strict grammarian with a love for teaching."
I didn't know him, but I understood that he was the wise counselor for the family business of my mom's cousin's family business in downtown Roanoke. It seems to me that the Roanoke bar has (or had) a lot of interesting characters.
Monday, July 09, 2007
Lexis buys Juris
Having bought CaseMap, et al, a while back, now LexisNexis has bought Juris, as reported here.
I told the money lady that soon we will get down to two vendors, West and Lexis.
The usual challenges when these vendors get bought is whether the good customer service will continue, and whether the prices will go up.
I told the money lady that soon we will get down to two vendors, West and Lexis.
The usual challenges when these vendors get bought is whether the good customer service will continue, and whether the prices will go up.
Sunday, July 08, 2007
Another corner heard from
The Bristol paper opines here that it is past time to fill the vacancies on the Fouth Circuit.
Thursday, July 05, 2007
Worth reading
From the Suffolk paper:
Esteemed lawyer, civil servant, dies at 95
By Ashley McKnight-Taylor
Monday, July 2, 2007 10:44 PM CDT
Suffolk can claim a lot of notable people, those whose contributions made a real difference in their chosen professions. Many of them, sadly, have passed on.
Last Friday, Herman T. Benn, 95, joined them.
"He will be missed because he was very supportive of the community," said Jean Copeland, secretary of the Virginia E. Crocker Alumni Chapter of Virginia Union University. "He was just a community-minded person."
Benn earned a Bachelor of Arts degree in education and philosophy from Virginia Union University and remained supportive of his alma mater throughout his life. After graduation, he went on to receive a law degree from Robert H. Terrell Law School of Washington, D.C. It was this choice - to become a lawyer, fighting for civil rights and fairness for all - that would bring Benn distinction.
In 1962, he won a case before the United States Supreme Court that determined that segregating people in courtrooms based on race was unconstitutional, which set precedents for courts everywhere. Benn was co-counsel for Johnson v. Commonwealth of Virginia, a case where college student Ford T. Johnson was charged with a traffic violation. In the courtroom, he sat in the section reserved for whites and refused to move when ordered. He was charged and convicted with contempt of court.
The Virginia Supreme Court of Appeals refused to hear the writ, so the case was appealed to the United States Supreme Court. The Supreme Court reversed the conviction, stating "state-compelled segregation in a court of justice is a manifest violation of the State's duty to deny no one the equal protection of its laws."
It was a victory for many blacks across the country, but those who knew him best remember Benn for all of the little ways he touched their lives, lent his helping hand.
"I can't tell you how valuable he was to us," said Charles Christian, former president of the Nansemond-Suffolk branch of the NAACP.
Benn was chairman of the Legal Redress Committee of that organization. He was thorough in gathering information on the cases that came before him, and was sure to suggest where people could find help for their problems if the NAACP was not the appropriate venue, Christian said.
Suffolk City Councilman Leroy Bennett, who has known Benn's family for years, remembered him as a gentle and kind, but firm and professional, man. His goal was to make the world more fair and equitable for everyone.
"He was very strong about city government ... he pushed others to do the right thing," Bennett said.
Benn made his contributions to government, serving as assistant city attorney in Richmond (the first black to do so there) and later as assistant commonwealth attorney for Suffolk. In 1968, he was appointed to the position of United States Administrative Law Judge and served in that position in both the U. S. Department of Health and Welfare and the Department of Labor.
Before that he served his country as a non-commissioned officer in the Army Reserves during World War II.
Benn died Friday in Bon Secours Maryview Nursing Care Center. The Southampton County native was one of eight children born to Mack Benn Sr. and Mamie Scott Benn.
He is survived by his wife, Marian Waller Benn; two sisters, Dorothy B. Armistead and Bernice B. Maloney, both of Suffolk; three sisters-in-law, Bernice Fletcher of Baltimore, Md., Gladys Pegeas of Richmond, and Elaine B. Benn of Sun City West, Ariz.; and several nieces, nephews and cousins.
A memorial service will be held today at 11 a.m. at Saint Paul's Episcopal Church in Suffolk by Father Joseph Green Jr.
Among his many accomplishments, Benn was the first black member of the Virginia State Bar Association, of which he was a retired member. He also was a retired member of the American Bar Association and the Suffolk Bar Association, as well as a life member of the Alpha Phi Alpha Fraternity and St. Mark's Episcopal Church.
"He was an outstanding person, and in his quiet way, he just did so much for the city," Christian said.
And also read this story from 1997:
" Herman Benn's life is filled with firsts.
In 1958, he was the first African-American member of the state Bar Association . . .
In 1967, he was Richmond's first black assistant city attorney . . .
In 1963, he was the first lawyer to win a legal fight that made it unconstitutional for blacks and whites to be separated in the courtroom . . .
The list goes on.
In 1971, Benn marked a personal first.
He so impressed Marian Waller, a widow and a former elementary school teacher, with his patience and kindness that she agreed to marry him. Later, he would persuade her to study law. Marian passed the bar at 53.
``I thought he was a nice person,'' she recalled of their first encounter. ``. . . It didn't take him long to persuade me to become a lawyer.''
Now, Herman - after 45 years of service - and Marian, who has practiced law for 10, are taking down the Benn & Benn shingle.
They are attending their retirement party today at the Holiday Inn in Suffolk - the town where they've spent the past 23 years of their 26-year marriage.
Looking back, Herman, 85, said he was an unlikely source for breaking racial barriers.
Growing up in the early 1900s, he accepted racial discrimination as a way of life and never had any inclination to change things.
As a child, he simply grew accustomed to the white children in his neighborhood spitting at him out of the school bus window. Blacks didn't ride the bus. So he walked four miles to school.
Herman said he never thought about the separate water fountains or using the back door when he entered restaurants - and much later, while in the Air Force - being forced to work in a separate unit.
Becoming a lawyer to fight racial frustrations was not an ambition until, at 28, he decided not to re-enlist.
``I had experienced so much discrimination, I felt like maybe I could take some actions to correct the situation,'' he said. ``I noticed that black attorneys had won many discrimination cases, and they had come to be recognized as being able to do anything that white attorneys could do.''
Herman moved to Washington and worked as a postal clerk while attending law school. He later graduated from Robert H. Terrell Law School - ``named after the first black judge to sit on the bench in Washington.''
After nearly 50 years, law still excites him.
Of all the cases he's handled, he cherishes most a discrimination suit.
``It was citation number 373 U.S. 61 in 1963,'' he recalled.
He stumbled on the case after he graduated from law school and moved to Richmond. Ford Johnson, the son of a dentist, asked Benn to represent him after he was found in contempt of court for sitting on the white side of traffic court.
When Johnson was asked, he refused to move to the other side.
``Said he was comfortable where he was,'' Herman recalled.
The judge asked him to approach the bench and reminded Johnson that he must sit on the side for blacks. Johnson didn't budge. He was thrown in jail and fined $10.
Herman appealed the case all the way to the Supreme Court and won. It set a new precedent for courts everywhere.
Herman first retired in 1974. He'd been in and out of private practice in Richmond. When he wasn't running his own office, he was a city attorney there and an administrative law judge for the federal government.
Herman, born in Surry, wanted to move back to where he spent much of his childhood. Marian hated Northern Virginia's congestion.
Although retired, Herman wasn't ready to quit law.
So he opened his own practice in Suffolk. In 1976, he became the first black assistant commonwealth's attorney for the city and returned to private practice in 1981.
Marian was his secretary.
``Things were pretty bad,'' Marian, 63, recalled. ``At first, it was difficult because he would tell me to do things, and I would take it personally.''
Marian eventually decided she'd go back to school to be recertified to teach. But Herman wanted her to become a lawyer.
She studied under him for three years. Her third try at the bar exam was the charm.
``We didn't do anything special,'' she said. ``The first time I took the test, I found out how much I didn't know. It was quite an experience.''
The Benns listen intently to each other.
``Do you want to say segregation or discrimination?'' asked Marian.
``Oh, discrimination,'' he said, glancing her way.
Suffolk Commonwealth Attorney C. Phillips Ferguson said he'd give anything to know their secret for youthfulness.
``He looks the same now as he did when I hired him years ago,'' Ferguson said.
``Herman did an outstanding job, and he and his wife have done well in their private practice. I don't know anyone who doesn't like him. He's a nice guy, just a good person.''
The Benns have been in the same office since Marian started practicing. Their downtown office on West Washington is about a 20-minute drive from their home in Northern Suffolk.
Marian no longer makes the commute.
``I stopped taking cases really early,'' she said. ``This is the first day I've been in the office this year.''
His office is almost empty - except for a stack of files and a computer with an Alpha Phi Alpha mouse pad, symbolizing his love for his fraternity.
``The attorney who is in our office now is an Alpha,'' he said, smiling.
Clarence H. Brooks is taking over the practice.
Herman specialized in adult criminal and real estate cases.
Marian handled domestic, social security, worker's compensation and personal injury cases.
Helivi Holland, an assistant commonwealth's attorney in Portsmouth, said the Benns will truly be missed.
The couple gave her a job right out of law school, made space for her in their office and let her use their secretary at no charge.
``A lot of people talk about Mr. Benn, but Mrs. Benn has done very well,'' Holland, 31, said. ``Suffolk is going to be missing two very knowledgeable attorneys.''
The Benns say they will have plenty to do, and their work will be carried on.
``There are a lot of lawyers around here,'' Herman said.
``Yeah,'' continued Marian. ``They'll find somebody else. They forget very easily.''"
Esteemed lawyer, civil servant, dies at 95
By Ashley McKnight-Taylor
Monday, July 2, 2007 10:44 PM CDT
Suffolk can claim a lot of notable people, those whose contributions made a real difference in their chosen professions. Many of them, sadly, have passed on.
Last Friday, Herman T. Benn, 95, joined them.
"He will be missed because he was very supportive of the community," said Jean Copeland, secretary of the Virginia E. Crocker Alumni Chapter of Virginia Union University. "He was just a community-minded person."
Benn earned a Bachelor of Arts degree in education and philosophy from Virginia Union University and remained supportive of his alma mater throughout his life. After graduation, he went on to receive a law degree from Robert H. Terrell Law School of Washington, D.C. It was this choice - to become a lawyer, fighting for civil rights and fairness for all - that would bring Benn distinction.
In 1962, he won a case before the United States Supreme Court that determined that segregating people in courtrooms based on race was unconstitutional, which set precedents for courts everywhere. Benn was co-counsel for Johnson v. Commonwealth of Virginia, a case where college student Ford T. Johnson was charged with a traffic violation. In the courtroom, he sat in the section reserved for whites and refused to move when ordered. He was charged and convicted with contempt of court.
The Virginia Supreme Court of Appeals refused to hear the writ, so the case was appealed to the United States Supreme Court. The Supreme Court reversed the conviction, stating "state-compelled segregation in a court of justice is a manifest violation of the State's duty to deny no one the equal protection of its laws."
It was a victory for many blacks across the country, but those who knew him best remember Benn for all of the little ways he touched their lives, lent his helping hand.
"I can't tell you how valuable he was to us," said Charles Christian, former president of the Nansemond-Suffolk branch of the NAACP.
Benn was chairman of the Legal Redress Committee of that organization. He was thorough in gathering information on the cases that came before him, and was sure to suggest where people could find help for their problems if the NAACP was not the appropriate venue, Christian said.
Suffolk City Councilman Leroy Bennett, who has known Benn's family for years, remembered him as a gentle and kind, but firm and professional, man. His goal was to make the world more fair and equitable for everyone.
"He was very strong about city government ... he pushed others to do the right thing," Bennett said.
Benn made his contributions to government, serving as assistant city attorney in Richmond (the first black to do so there) and later as assistant commonwealth attorney for Suffolk. In 1968, he was appointed to the position of United States Administrative Law Judge and served in that position in both the U. S. Department of Health and Welfare and the Department of Labor.
Before that he served his country as a non-commissioned officer in the Army Reserves during World War II.
Benn died Friday in Bon Secours Maryview Nursing Care Center. The Southampton County native was one of eight children born to Mack Benn Sr. and Mamie Scott Benn.
He is survived by his wife, Marian Waller Benn; two sisters, Dorothy B. Armistead and Bernice B. Maloney, both of Suffolk; three sisters-in-law, Bernice Fletcher of Baltimore, Md., Gladys Pegeas of Richmond, and Elaine B. Benn of Sun City West, Ariz.; and several nieces, nephews and cousins.
A memorial service will be held today at 11 a.m. at Saint Paul's Episcopal Church in Suffolk by Father Joseph Green Jr.
Among his many accomplishments, Benn was the first black member of the Virginia State Bar Association, of which he was a retired member. He also was a retired member of the American Bar Association and the Suffolk Bar Association, as well as a life member of the Alpha Phi Alpha Fraternity and St. Mark's Episcopal Church.
"He was an outstanding person, and in his quiet way, he just did so much for the city," Christian said.
And also read this story from 1997:
" Herman Benn's life is filled with firsts.
In 1958, he was the first African-American member of the state Bar Association . . .
In 1967, he was Richmond's first black assistant city attorney . . .
In 1963, he was the first lawyer to win a legal fight that made it unconstitutional for blacks and whites to be separated in the courtroom . . .
The list goes on.
In 1971, Benn marked a personal first.
He so impressed Marian Waller, a widow and a former elementary school teacher, with his patience and kindness that she agreed to marry him. Later, he would persuade her to study law. Marian passed the bar at 53.
``I thought he was a nice person,'' she recalled of their first encounter. ``. . . It didn't take him long to persuade me to become a lawyer.''
Now, Herman - after 45 years of service - and Marian, who has practiced law for 10, are taking down the Benn & Benn shingle.
They are attending their retirement party today at the Holiday Inn in Suffolk - the town where they've spent the past 23 years of their 26-year marriage.
Looking back, Herman, 85, said he was an unlikely source for breaking racial barriers.
Growing up in the early 1900s, he accepted racial discrimination as a way of life and never had any inclination to change things.
As a child, he simply grew accustomed to the white children in his neighborhood spitting at him out of the school bus window. Blacks didn't ride the bus. So he walked four miles to school.
Herman said he never thought about the separate water fountains or using the back door when he entered restaurants - and much later, while in the Air Force - being forced to work in a separate unit.
Becoming a lawyer to fight racial frustrations was not an ambition until, at 28, he decided not to re-enlist.
``I had experienced so much discrimination, I felt like maybe I could take some actions to correct the situation,'' he said. ``I noticed that black attorneys had won many discrimination cases, and they had come to be recognized as being able to do anything that white attorneys could do.''
Herman moved to Washington and worked as a postal clerk while attending law school. He later graduated from Robert H. Terrell Law School - ``named after the first black judge to sit on the bench in Washington.''
After nearly 50 years, law still excites him.
Of all the cases he's handled, he cherishes most a discrimination suit.
``It was citation number 373 U.S. 61 in 1963,'' he recalled.
He stumbled on the case after he graduated from law school and moved to Richmond. Ford Johnson, the son of a dentist, asked Benn to represent him after he was found in contempt of court for sitting on the white side of traffic court.
When Johnson was asked, he refused to move to the other side.
``Said he was comfortable where he was,'' Herman recalled.
The judge asked him to approach the bench and reminded Johnson that he must sit on the side for blacks. Johnson didn't budge. He was thrown in jail and fined $10.
Herman appealed the case all the way to the Supreme Court and won. It set a new precedent for courts everywhere.
Herman first retired in 1974. He'd been in and out of private practice in Richmond. When he wasn't running his own office, he was a city attorney there and an administrative law judge for the federal government.
Herman, born in Surry, wanted to move back to where he spent much of his childhood. Marian hated Northern Virginia's congestion.
Although retired, Herman wasn't ready to quit law.
So he opened his own practice in Suffolk. In 1976, he became the first black assistant commonwealth's attorney for the city and returned to private practice in 1981.
Marian was his secretary.
``Things were pretty bad,'' Marian, 63, recalled. ``At first, it was difficult because he would tell me to do things, and I would take it personally.''
Marian eventually decided she'd go back to school to be recertified to teach. But Herman wanted her to become a lawyer.
She studied under him for three years. Her third try at the bar exam was the charm.
``We didn't do anything special,'' she said. ``The first time I took the test, I found out how much I didn't know. It was quite an experience.''
The Benns listen intently to each other.
``Do you want to say segregation or discrimination?'' asked Marian.
``Oh, discrimination,'' he said, glancing her way.
Suffolk Commonwealth Attorney C. Phillips Ferguson said he'd give anything to know their secret for youthfulness.
``He looks the same now as he did when I hired him years ago,'' Ferguson said.
``Herman did an outstanding job, and he and his wife have done well in their private practice. I don't know anyone who doesn't like him. He's a nice guy, just a good person.''
The Benns have been in the same office since Marian started practicing. Their downtown office on West Washington is about a 20-minute drive from their home in Northern Suffolk.
Marian no longer makes the commute.
``I stopped taking cases really early,'' she said. ``This is the first day I've been in the office this year.''
His office is almost empty - except for a stack of files and a computer with an Alpha Phi Alpha mouse pad, symbolizing his love for his fraternity.
``The attorney who is in our office now is an Alpha,'' he said, smiling.
Clarence H. Brooks is taking over the practice.
Herman specialized in adult criminal and real estate cases.
Marian handled domestic, social security, worker's compensation and personal injury cases.
Helivi Holland, an assistant commonwealth's attorney in Portsmouth, said the Benns will truly be missed.
The couple gave her a job right out of law school, made space for her in their office and let her use their secretary at no charge.
``A lot of people talk about Mr. Benn, but Mrs. Benn has done very well,'' Holland, 31, said. ``Suffolk is going to be missing two very knowledgeable attorneys.''
The Benns say they will have plenty to do, and their work will be carried on.
``There are a lot of lawyers around here,'' Herman said.
``Yeah,'' continued Marian. ``They'll find somebody else. They forget very easily.''"
Wednesday, July 04, 2007
Another great 4th of July at Monticello
One reason why it is great to be in the W.D. Va., is that Monticello is in our district, and there Chief Judge Jones can be seen swearing in this year's group of new citizens, by way of this extraordinary and delightful post from Rick Sincere.
Also there was Sam Waterston, and former Virginia Supreme Court justice John Charles Thomas.
Also there was Sam Waterston, and former Virginia Supreme Court justice John Charles Thomas.
Tuesday, July 03, 2007
On law schools and the bar exam
In this widely-cited article from the Norfolk paper about the "real" face of the law school at Regent, there is this quote:
"At that hearing, U.S. Rep. Steve Cohen, D-Tenn., asked [Monica] Goodling: "Are you aware of the fact that in your graduating class, 50 to 60 percent of the students failed the bar the first time?"
"I know it wasn't good," said Goodling, who originally claimed Fifth Amendment protection against self-incrimination in refusing to testify."
The article includes this chart comparing Virginia law schools:
A committee of the ABA, in the exercise of its much-maligned role as the overseer of accreditation for the nation's law schools, has propounded a new scheme to nail fledgling law schools with low bar passage rates. The proposal can be found here, with a cover letter signed by Roanoke lawyer Bill Rakes, the committee chairman. The gist is if your graduates pass the bar at a rate of ten points less than average, then you can get the boot.
I'd like to see a chart on which law schools don't meet the new standard.
"At that hearing, U.S. Rep. Steve Cohen, D-Tenn., asked [Monica] Goodling: "Are you aware of the fact that in your graduating class, 50 to 60 percent of the students failed the bar the first time?"
"I know it wasn't good," said Goodling, who originally claimed Fifth Amendment protection against self-incrimination in refusing to testify."
The article includes this chart comparing Virginia law schools:
A committee of the ABA, in the exercise of its much-maligned role as the overseer of accreditation for the nation's law schools, has propounded a new scheme to nail fledgling law schools with low bar passage rates. The proposal can be found here, with a cover letter signed by Roanoke lawyer Bill Rakes, the committee chairman. The gist is if your graduates pass the bar at a rate of ten points less than average, then you can get the boot.
I'd like to see a chart on which law schools don't meet the new standard.
This sounds familiar
The Peninsula Virginia law blog posts here that the once (and future) registrar of voters in Williamsburg has hired Jerry Kilgore to sue over his being put on leave and replaced by the electoral board there.
Those registrars, starting with Kilgore's mother, have mostly won their lawsuits against electoral boards.
Those registrars, starting with Kilgore's mother, have mostly won their lawsuits against electoral boards.
Steve M. to get nominated to Fourth Circuit
SC Appellate Law Blog says here that the White House will nominate Steve Matthews to the Fourth Circuit for the vacancy left by Senior Judge Wilkins, citing this story from The State.
Interesting e-discovery case from W.D. N.C.
Brian Peterson reports here on the spoliation issue in an e-discovery dispute in a case from right here within the Fourth Circuit.
My observation of e-discovery to date is that its main uses are intimidation through cost and embarrassment. E-mails are often useful, whole hard drives are rarely so.
So, I read this in an e-mail flyer for somebody's seminar:
"Many attorneys harbor the false belief that they can demand the production or mirroring of an opponent's hard drive. Federal Rule of Civil Procedure 34(a) does not create a direct route to a party's Electronically Stored Information system. Copying a hard drive is allowed only on a finding that the opponent's document production has been inadequate and that a search of the opponent's computer could recover deleted relevant materials. Diepenhorst v. City of Battle Creek, Slip Copy, 2006 WL 1851243.
One Court refused to allow mirroring of a hard drive on mere suspicion that the opponent may be withholding discoverable information. Another Court allowed for the mirroring of a computer hard drive upon a finding of evidence that copies of emails were altered to downplay or conceal the relationship between plaintiff and a third party. Advante International Corp., et al., v. Mintel Learning Technology, et. al., 2006 WL 3371576 (N.D.Cal)."
My observation of e-discovery to date is that its main uses are intimidation through cost and embarrassment. E-mails are often useful, whole hard drives are rarely so.
So, I read this in an e-mail flyer for somebody's seminar:
"Many attorneys harbor the false belief that they can demand the production or mirroring of an opponent's hard drive. Federal Rule of Civil Procedure 34(a) does not create a direct route to a party's Electronically Stored Information system. Copying a hard drive is allowed only on a finding that the opponent's document production has been inadequate and that a search of the opponent's computer could recover deleted relevant materials. Diepenhorst v. City of Battle Creek, Slip Copy, 2006 WL 1851243.
One Court refused to allow mirroring of a hard drive on mere suspicion that the opponent may be withholding discoverable information. Another Court allowed for the mirroring of a computer hard drive upon a finding of evidence that copies of emails were altered to downplay or conceal the relationship between plaintiff and a third party. Advante International Corp., et al., v. Mintel Learning Technology, et. al., 2006 WL 3371576 (N.D.Cal)."
On Chief Justice Roberts at the judicial conference
This post comments on Chief Justice Roberts' remarks at the Fourth Circuit judicial conference at the Greenbrier.
It says in part:
The late William Rehnquist would always offer to the 4th Circuit a quick summary of the lesser-known decisions of the previous term, which he described, quoting a Thomas Gray poem, as flowers "born to blush unseen." But Roberts said that tradition, along with Rehnquist's gold-striped judicial robe, are "very much his own and should not be imitated."
Instead, Roberts quoted Robert Frost poems titled "The Tuft of Flowers" and "Mending Wall" to draw some conclusions about judicial fellowship. "I'm not an expert on Frost," said Roberts, "but an important part of fellowship is ongoing inquiry, examination and debate."
It says in part:
The late William Rehnquist would always offer to the 4th Circuit a quick summary of the lesser-known decisions of the previous term, which he described, quoting a Thomas Gray poem, as flowers "born to blush unseen." But Roberts said that tradition, along with Rehnquist's gold-striped judicial robe, are "very much his own and should not be imitated."
Instead, Roberts quoted Robert Frost poems titled "The Tuft of Flowers" and "Mending Wall" to draw some conclusions about judicial fellowship. "I'm not an expert on Frost," said Roberts, "but an important part of fellowship is ongoing inquiry, examination and debate."
That cool Seventh Circuit Wiki
Today, I was thinking about some appellate procedure questions, and turned for the answers to the Practitioners' Handbook from the Seventh Circuit - not that my case is in the Seventh Circuit, it is pending in the Fourth Circuit, which has no cool wiki handbook.
Pirated from the Rose Hill library event
Here is a picture I stole of my sister Joan with Ron Flanary at the kickoff event for the public access broadband project in Rose Hill.
Monday, July 02, 2007
Those still vacant seats on the Fourth Circuit
Larry O'Dell of the AP had this interesting update on the vacancies on the Fourth Circuit, quoting among others Virginia appellate guru Steve Emmert.
A little while back, someone at Power Line offered this discouraged post, titled "The Fourth Circuit - Going, Going, Gone?"
The story remains the same - the Bush administration has frittered away their chances to load the circuit bench with their choices, and now they will be lucky to get anyone confirmed. Senator Webb's creditable willingness to cooperate with Senator Warner in putting together a joint list of names for the Fourth Circuit adds to intensity to the question, why doesn't the White House act?
A little while back, someone at Power Line offered this discouraged post, titled "The Fourth Circuit - Going, Going, Gone?"
The story remains the same - the Bush administration has frittered away their chances to load the circuit bench with their choices, and now they will be lucky to get anyone confirmed. Senator Webb's creditable willingness to cooperate with Senator Warner in putting together a joint list of names for the Fourth Circuit adds to intensity to the question, why doesn't the White House act?
At least we're not in Brooklyn
In this Outside Counsel post is told the tale of a call from the clerk's office, in which the clerk says the latest filed motion is no good because the referenced client is not a party, to which the lawyer responds, that's no party, that's the name of the building where I work.
That story makes me think of the time we had some printed forms bearing the name of a circuit court clerk, "Russell V. Presley," that prompted one of the staff construed to mean that we were involved in the lawsuit of Russell versus Presley.
That story makes me think of the time we had some printed forms bearing the name of a circuit court clerk, "Russell V. Presley," that prompted one of the staff construed to mean that we were involved in the lawsuit of Russell versus Presley.
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