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.''"

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.

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.

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.

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)."

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."

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.

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?

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.