More wolves and Indians, less literature and history

I've been reading Boone: A Biography.

It's good not great - great story, so much of it about places right here or hereabouts, but told with too many literary, social, psychological, historical allusions, similes, metaphors, and references.

So, probably it reads about like one of my briefs. At the hearing yesterday, the judge said this brief looks much shorter than what I usually get from you, to which I replied, Judge, I've been out of town a lot lately.

On matters of excuse and recusal

The big trial scheduled for next week got pushed back because one of the lawyers said he was ill. If he said he was ill, I'm taking his word for it.

In the big hearing in another case yesterday, we learned when we got there who the judge would be, and - it was the same judge who had the same case in the earlier filed version, before the non-suit. Is that surprising?

I had done some research on the point:

"Some courts, state and federal, have explicit rules regarding the reassignment of refiled cases to the judge who had the first case between the same parties regarding the same subject matter. See, e.g., Local Rule 40.3, U.S. District Court for the Northern District of Illinois (“When a case is dismissed with prejudice or without, and a second case is filed involving the same parties and relating to the same subject matter, the second case shall be assigned to the judge to whom the first case was assigned.”); Rule 3.2, Georgia Uniform Rules of the Superior Court (“When practical, all actions involving substantially the same parties, or substantially the same subject matter, or substantially the same factual issues, whether pending simultaneously or not, shall be assigned to the same judge. Whenever such action is refiled, . . . such actions shall be assigned to the judge to whom the original action was or is assigned.”). Local rules of this kind “exist for the purpose of governing the flow of work in the district court as sensibly and efficiently as possible.” U.S. v. Dichiarinte, 385 F.2d 333, 337 (7th Cir. 1967). Even without local rules, courts have recognized their inherent authority to limit the ability of a litigant to draw a different judge just by taking a voluntary dismissal. See, e.g., Vaqueria Tres Monjitas, Inc. v. Rivera Cubano, 341 F. Supp.2d 69, 72 (D.P.R. 2004) (citing cases in support of the Court’s power “to act to preserve the integrity and control of its docket”) (cited with approval in Wilson v. Com., 46 Va. App. 408, 442, 617 S.E.2d 431, 447 (2005) (Kelsey, J., concurring))."

And, I got a ruling today from the Southern District of West Virginia. Rooting around on their website, I noticed that the judges there have posted a recusal list. How odd, and yet how reasonable.

On immunities, by John Williams

Here from PLI Toolbox is an article on immunities in section 1983, by Connecticut lawyer John Williams, who of course is not the fellow who wrote the theme to Superman and the NBC Nightly News.

"Serif? Don't like it," says Supreme Court

Not long after I wrote about the absurdity of the Virginia Supreme Court's continued use of the Courier font in its own documents, I get the word by way of the VLW Blog that the Court now proposes to require lawyers to use Courier (or Arial or Verdana) in all filings with the Court.

Wow, that's cheesy - especially the Arial and Verdana. In many courts, such as this one, the use of sans serif fonts is prohibited. See generally Rule 32, FRAP. This report from the Seventh Circuit website says: "Studies have shown that long passages of serif type are easier to read and comprehend than long passages of sans-serif type."

On proving discriminatory motive

ACS has this guest post, about the case before the Supreme Court called Sprint/United Management Co. v. Mendelsohn.

The issue is about whether in an employment discrimination case the plaintiff can attempt to prove discriminatory intent by the use of "'other supervisor' evidence — evidence that an employer's supervisors, other than the one who supervised the plaintiff, may also have engaged in acts of discrimination; and 'culture evidence' — evidence of a pattern and practice of discrimination."

Having litigated illegal motive a few times, part of me says - balderdash. Company-wide "culture" is as variable as anything else under the sun - some have it, some don't. A blanket rule on "culture" evidence as regards the intentional discrimination claims of individuals seems to me wrong, whichever way it goes, and the same goes for "other supervisor" evidence, except that I can't recall a case where the motives of some remote supervisor would have convinced me of anything.

The cert petition suggests there is dictum from the Fourth Circuit that comes down against the use of "me too" evidence, citing Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180 (4th Cir. 2004). The brief in opposition questioned this reference.

Reading below the Mendoza line

I have read only one of the books on the NY Times' Ten Best for 2007 list - Out Stealing Horses, which was very entertaining, but does it count as a 2007 book? I thought it was just published in English in 2007.