Saturday, March 31, 2007

Will I still be interested by the time this comes about?

BeSpacific links to this article from the Third Branch newsletter, which says in part:

"Some day in the not-too-distant future, locating and reading a brief filed in a federal appellate case will become as easy as finding an appeals court opinion. And electronic appellate briefs will feature hyperlinks to lower court rulings, statutes, regulations, and other cited materials."

Lawsuit filed in W.D. Va. challenging application of Title IX to Virginia's public higher ed schools

A group calling themselves Equity in Athletics, Inc. have filed a constitutional challenge in the federal court in Harrisonburg to the federal government's application of Title IX to the sports programs at James Madison University, the College of William & Mary, Longwood University, Old Dominion University, and Virginia Tech. The case, Docket No. 5:07-cv-00028, is assigned to Judge Conrad. Here is a press release about the case. One of the USAToday blogs had this post.

A young man from our neighborhood went to JMU for cross-country, only to see the program eliminated, as was reported in the NY Times and elsewhere.

Are tax returns protected from discovery by a qualified privilege?

Via this TaxProf blog post, I see this law student article, The Qualified Privilege Against Discovery of Federal Income Tax Returns, which references among other cases the decision by Judge Williams in Terwilliger v. York Int'l Corp., 176 F.R.D. 214 (W.D. Va. 1997), which I argued, and cite from time to time.

On Jason Ray

Read here, here, here, here and here about the life and times of a good guy who died too young.

Digital audio is no substitute for a readable transcript

Matt Conigliaro links here to a Florida decision, in which the author of the concurring opinion says this:

Many trial courts, especially criminal courts, are courts of record. Their proceedings are expected to be available for the public to review after the fact. We do significant damage to the legitimacy of this branch of government when we accept records that do not accurately explain the proceedings that occurred in open court. I am convinced that modern digital methods can eventually produce adequate records to safeguard courts of record; I am less convinced that those methods are currently providing adequate transcripts for appellate review. Hopefully, both the public and the legislature understand that there are real costs associated with any change in technology that deteriorates the quality of the record in courts of record.

Employment law evidence issues

This great post explains the significance of the evidentiary rulings from the Sixth Circuit in Maday v. Public Libraries of Saginaw.

First, the point of employment discrimination cases is the intent of the decisionmakers, and therefore evidence can be admitted of what they were told, not as hearsay offered for the truth of what they told, but to show what they knew as it affects the question of why they acted. The trial judge observed: this evidence is being introduced "to show the reason why the employer took the action it did in accordance with its progressive discipline policy which means something had to happen earlier."

Second, the case deals with the admissibility of statements in medical records. The trial court admitted the record from a social worker's file, which contained this statement: "Claimant is unhappy with her attorney who told her he didn’t want to be used as a tool for her revenge. He wanted claimant to settle out of court, but claimant said they had not discussed it before." The defense claimed that part of the plaintiff's many issues affecting her mood (other than what the employer did) was that she was not getting along with her lawyer. The trial court ruled: "This document suggests there might be some alternate source of her distress and, consequently, its relevance is manifest, and . . . not unfairly prejudicial."

The other issue on the appeal was the unruliness of the remarks and facial expressions of the defense lawyer, of which the trial court said they more likely helped rather than hurt the plaintiff's side: "Bartos’s actions may have flirted with impropriety, but it is likely that her demeanor and tactics negatively influenced her own client’s case as much as they might have Maday’s."

Thursday, March 29, 2007

A judge and his dog

This story with the picture is great, about Judge Turk of the W.D. Va. bringing his dachshund Baby Girl to court, and into the courtroom, on Tuesdays.

The dog looks sort of like Jenna, but shorter.

C'mon get it together

SC Appellate Law Blog says here that Senator Graham and the White House cannot agree on a nominee for the Fourth Circuit, that Graham wants District Judge John Floyd for the position but John Floyd ruled against the government in the Padilla case.

Polluted water can flow from Bedford County to the ocean, who knew?

In U.S. v. Cooper, the Fourth Circuit affirmed the conviction of a Bedford County landowner from whose sewage lagoon at a trailer park he owned pollutants flowed into a creek which "a tributary of Sandy Creek, which is in turn a tributary of the Roanoke River. The Roanoke River flows from the foothills of the Appalachian Mountains in Virginia, through North Carolina, and into the Albemarle Sound. There is no dispute that, as a tributary of an interstate water, the small creek into which the lagoon discharges constitutes a water of the United States."

The guy argued on appeal that the United States failed to prove that he knew all of that. The Fourth Circuit ruled that it didn't matter whether he knew it or not.

The defendant's name is D.J. Cooper, which is not to be confused with the mysterious hijacker, D.B. Cooper.

Wednesday, March 28, 2007

There goes the neighborhood

Virginia Lawyers Weekly now has its own blog.

Well done, Paul and company.

Secret perks at my firm

The rumor is true that we've trying to hire lawyer no. 7, and the occasion has caused me to reflect upon the perquisites of employment in this office which may not be generally known:

1. Frozen food and bread delivery. The Schwan's man and the Bread Lady both deliver here. (I used to buy the cinnamon raisin bread and eat it sort of like a watermelon, since I was not allowed to take any home.) In the interest of fairness, I should say that the frozen food deliveries are not a perk for me personally, since the freezer is in the closet next to my office at the back of the building.

2. In-house sauna (winter only, not counting Mondays after power outages). We have a nice room where the temperature often approaches 85 degrees. I spend most of my time there, since it is my office (and my thermostat).

3. Rock City Jr. From our office, you can see into two different states.

4. Wildlife. Over the years, a series of robins (can it be just one?) have tried to pick a fight with their own reflections in the back door and the side windows. Sometimes, sitting at my desk, I see a bird flying toward me, determined to kick the butt of that nasty bird he sees in my window.

5. Free parking for both Food City Race night and the Rhythm and Roots Reunion. At least twice a year, thousands would like to take my parking space.

The Bristol paper's report on Judge Widener's swearing-in in the summer of 1969

In the summer of 1969, the astronauts landed on the moon, Andrew Miller and Henry Howell were fighting for statewide nominations, Ted Kennedy drove off a bridge on an island, and Emory Widener became a federal judge. On the latter, the Bristol paper reported this:

"In impressive ceremonies punctuated by laughter, H. Emory Widener, Jr., of Bristol yesterday received the oath of office as federal judge for the Western District of Virginia.

And Widener, grinning widely and obviously deeply moved by the event, said presiding over the sprawling district, which runs from Lee County to Winchester and contains half a million residents, is 'a sobering thought. I have no profound statement but I am just as happy as I can be.'

Widener received the oath from Chief Western District Judge Ted Dalton of Radfod. Widener and Dalton be chiefly responsible for presiding over federal court cases in Western Virginia, although retired Senior Judge A.D. Barksdale of Lynchburg can still hear cases of his own choosing.

The ceremonies, preceded by brief remarks by a number of Widener's associate's and friends, took place in the federal building on Main Street here. An estimated 300 persons attended the administering of the oath and a reception in Widener's honor at the Martha Washington Inn.

For Widener, who hears his first cases in Abingdon Monday, it was the culmination of a drive begun in January in his behalf. He fills the vacancy of retired Judge Thomas J. Michie of Charlottesville, who was appointed in 1961 by President Kennedy and who stepped down in 1967 due to illness.

After President Nixon was inaugurated on Jan. 20 the drive to place Widener on the bench began in earnest and was climaxed by his nomination by Nixon and confirmation about two weeks ago on the floor of the Senate.

Widener, after repeating the oath and being helped into the judicial robes, paid tribute to many persons who had assisted him in getting the $42,000 per year lifetime appointment.

'I must thank my close friend, Congressman William Wampler, who worked so hard on my behalf, and all of the local bar associations, both Virginia U.S. Senators Harry Byrd, Jr., and William Spong, Jr.,' he said.

'I also want to thank four women who have worked so hard for me over the years - Miss Judy Beth Entler, Miss Lisa Sevier, Miss Katy Minnick, and my secretary, August Weller,' he said.

'I feel quite inadequate in the face of all the oratory that has preceded my taking the oath. I might say, however, that it is not true that lawyers and judges get together and pick someond for this job but they can get together and keep someone from getting it. I want to personally thank them all for their kindness in my behalf.'

Judge Dalton said that Widener's father, the late H.E. Widener, Sr., was one of the most respected jurists in Southwest Virginia. 'We know that at the hands of this son our people and our district will receive just benefits,' he said.

'We might, however, recommend to Judge Widener four things four things that are essential for a judge to remember. He must have patience, humility, practice equal justice, and should view this honored position as an opportunity of service to others,' he said.

Widener then slowly but distinctly repeated after Dalton the following oath . . . .

Widener is the first federal judge in history to come from Bristol.

Dalton told Widener that he received 'the judgeship of what is the greatest district in the United States and it comes a few hours after man has walked on the moon.'

Widener was visibly moved earlier when Wampler, among those in attendance, said that, besides his parents, the late Mr. Widener had had the most profound influence on him.

Widener was associated with his father in law practice in Bristol until the elder Widener's death and, in recent years, had been a partner with David Frackleton. Upon receiving the judgeship, he disoolved the partnership but it will remain Widener and Frackleton in honor or his father.

Widener, who twice managed the successful campaigns of Wampler, also resigned as Ninth District Republican chairman. The GOP District Committee last night in Abingdon elected Billy Frazier of Scott County to succeed Widener.

'I am delighted to share with you the historic significance of this occasion. I wish for Judge Widener much happiness and good fortune and God's blessings,' Wampler said, his voice betraying emotion.

Others who paid tribute included State Sen. George Warren Jr. of Bristol, visiting Judge John Hayes of middle district of North Carolina, Circuit Judge Aubrey Matthews, and John Dabney Carr of Roanoke representing the American Bar Association. Notes of tribute were acknowledged from Eastern District Judge Robert R. Merhige, who has presided in Abingdon, and Chief Judge Clement Haynsworth Jr. of Greenville, S.C., of the U.S. Fourth Circuit Court of Appeals.

Warren, representing the Washington County and Bristol bar associations and a close personal friend of Widener, said, 'It is appropriate that this host of friends and distinguished guests have assebled here today to share in some degree with him their joy and price in a great personal accomplishment.'

Warren said Widener for 16 years has practiced law and is widely acquainted throughout the area and the state. 'And while his gratitude for the great honor is shared by many friends, it is understandable that this is a particularly proud day for the bar and the people of Bristol,' he said.

Warren said the court was established by Congress in the early 1800's and the first Judge was Isaac C. Pennybaker appointed by President Van Buren in 1839.

He said he was succeeded by John W. Brockenborough of Lexington, named by President James Polk in 1846, and the third judge was Alexander Rives, named in 1871 by President Grant.

Warren said for an interim period following the death of Judge Rives the court was served by Judge Robert W. Hughes of the Eastern District.

He said Judge John Paul was named by President Chester Arthur in 1893 and served until 1901 at which time Judge Henry C. McDowell was appointed by President Theodore Roosevelt.

Judge McDowell served until his death in 1932, according to Warren, and was succeeded by Judge John Paul II appointed by President Hoover. Judge Paul served for almost 30 years until his retirement in 1961 and was a senior retired judge until his death a few years ago."

On wardrobe malfunctions

A few years back, I went to my first lawyer event at the Homestead requiring a tuxedo, and so I waited until I was there to try to figure out how to wear it. One item I couldn't cipher was the relationship between the tips of the collar and the tie - under or over, in front or behind. So, whenever I passed a mirror, I looked to see if something was amiss, and generally, the collar was pointed straight up, in the manner of James K. Polk.

Earlier this month, I got up on the morning of my meeting in downtown Richmond, looked around and found that I had packed the business suit, the black socks and shoes, the necktie, and no shirt. So, I borrowed one from the father-in-law, whose neck is about two inches bigger around and his arms are an inch or two longer. It was sort of the David Byrne/Stop Making Sense look in a shirt. Anyhow, none of my friends at the meeting said mentioned it to me, which I figured was about 25% politeness and 75% prior knowledge of my less than splendid sartorial attainment.

Tuesday, March 27, 2007

Governor Kaine talking about the real Virginia

Am I the only one to raise my left eyebrow every time I hear Governor Kaine's reference in his Jamestown ad on the radio to "the real Virginia"?

Roanoke Times throws down on thirteenth-century English common law

In this editorial, the Roanoke Times opines that the Virginia General Assembly should abolish the year-and-a-day rule, which means you can't be charged with murder if it takes the victim more than a year and a day to die.

They say: "The practice of medicine has advanced since 1278, when the year-and-a-day rule was established in Gloucester. So, too, has English law evolved: Parliament abolished the rule in 1996."

Great BVU Optinet article

Here is a great article on the success and latest offerings of the BVU Optinet fiber-to-the-home network.

I'm a fan of all things BVU Optinet, including their trademarked logo, for which I filed the application with the USPTO.

Monday, March 26, 2007

On bringing your dog to work

The New York Times has this story on people bringing their dogs to work.

I don't know if it's a trend, but I've never been to Bill Bradshaw's office in Big Stone Gap without seeing something quite like one of these:

On taxation of emotional distress damages

Here is a cornucopia of links regarding the rehearing of the D.C. Circuit's decision in Murphy v. IRS, where a panel held that section 104(a)(2) of the Internal Revenue Code "is unconstitutional under the 16th Amendment as applied to a recovery for a non-physical personal injury unrelated to lost wages or earnings."

You know it's a big tax case when I've read it myself. I've had a few tense arguments with opposing counsel at the end of a hard-fought case when there is a settlement (or worse) and then somebody starts talking about taxes.

Rule of Law conference

If I wasn't going to be out of the country, I'd be sure to attend the Rule of Law conference, sponsored by the University of Richmond School of Law, the Virginia Bar Association Foundation, the American Arbitration Association, the American Inns of Court, the English Inns of Court, Federal Jamestown Commission, the John Marshall American Inn of Court, John Marshall Foundation, The Lewis F. Powell, Jr. American Inn of Court, and the National Center for State Courts, which include presentations by Chief Justice Roberts, Justice Breyer, retired Justice O'Connor, Chief Judge Spencer, Judge Wilkinson, Ken Starr, Erwin Chemerinsky, and that's just the ones I've heard of.