Seven candidates for Albemarle circuit court answer questions

The Daily Progress has this report on a forum for the candidates to succeed Judge Peatross.

Locally, the General Assembly will replace Juvenile and Domestic Relations Judge Gene Lohman. I don't think we will see a similar event for would-be judges looking to replace him.

Best reason to boycott Kingsport

They're putting in those red-light cameras, according to this report.

Some guy with the City is quoted as saying: "This has never been about revenue. It was about safety from the beginning. It still is and will continue to be."

I guess he never read the study described here, or the others like it.

Not a convert

Somewhat in the manner of the Jaded JD, it has been written over at the Booby Hatch that "Mr. Minor" hasn't a clue.

I'm arguing collateral estoppel this afternoon, yet hoping that the adjudication from the Booby Hatch will not be binding.

Bad news from Roanoke

Ruby the Tiger has been put to sleep, or so it says here. The Roanoke paper has pictures of Ruby here.

Motley crew

I just saw this month-old collage, and decided to pirate it. Here's the place of origin. Well done, Badrose.

An unexpected dividend of blogging is having met all those people, or most of them.

Blog v. dog

As we debate morning, noon, and night how much longer to keep Chrissy, I recollect this Scheherazade post, where she asked the question, which would you give up, the blog or the dog?

My answer in January, 2004:

"My dog is 13, bad legs, bad hearing, bad breath, bad manners. She was once declared 'cute' by a future federal judge as she wagged her tail at him in the middle of our town.

I'd say we'd give up about everything we've got for her, if it comes to that, but I'm afraid it won't."

Almost three years later, that's about the size of it - there's nothing much we can do but try to figure out when enough is enough. In this old photo, the dog looks like she is expressing her view of the situation.



S. also wrote this memorable post about her favorite Google search term, which makes me think that things could be worse.

The Christians and pagans in Albemarle County

Reason has this post which begins:

"Albemarle County Virginia public schools allowed pagans to distribute flyers in the backpacks of school children inviting them and their families an event this weekend where they can learn about and participate in pagan yuletide rituals. Some outraged Christian parents objected. But the delicious part of this story is that a threatened lawsuit by Jerry Falwell's Liberty Counsel legal aid group is the reason the pagans can issue such invitations through the public schools."

On the bright line rule of Jones v. Jones

Back in October, in the case of Jones v. Jones, the Virginia Court of Appeals in an opinion by Judge Humphreys joined by Judge Elder and Senior Judge Annunziata held that the notice of appeal was a nullity because appellant's counsel was suspended from practicing law at the time it was filed.

The ABA Journal eReport published this article about the case, which begins: "If an attorney with a suspended license files a notice of appeal, the client will pay a price, even if neither the lawyer nor the client knew of the suspension, the Virginia Court of Appeals has ruled."

Carolyn Elefant weighs in: "Stupid result, in my view. Where an attorney knowingly files an appeal and isn't licensed to practice, he deserves blame for the result. But where an attorney doesn't know, why should the client be penalized? In this case, the events all took place over a short period, with the former attorney withdrawing at the beginning of July 2005, the new attorney filing notice of appeal August 9, 2005 and the suspension ending on August 25, 2005. Had the client's new attorney realized that he was suspended through the end of August 2005, he could have asked the client's former attorney to lodge the appeal (or the client could have filed pro se) and stepped in to the case when his suspension concluded. The court's approach rejected this sensible outcome and penalizes the client for an easily avoidable situation."

Fair or not, it sounds like a Virginia ruling to me. Appellate practice in Virginia is gotcha-law. The Court of Appeals based its decision on Nerri v. Adu-Gyamfi, 270 Va. 28, 613 S.E.2d 429 (2005), which in turn relies on Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671 (2002), the case involving the multi-million dollar judgment from Buchanan County where only the Kentucky lawyer signed the notice of appeal. Similarly, the Washington Post series on the sorry state of funding for indigent defense in Virginia noted the high level of appeals in criminal cases that are dismissed on procedural grounds. It's pass/fail, the Rules are not intuitive, counsel has relearn them for every appeal. Somehow, the federal appeals court manages to get by without the same harshness, in fact, the clerk's office pretty much spoon-feeds the lawyers from start to finish. I've never heard any of the judges or justices state why they believe the state court rules are just. Steve Emmert in his commentary on the case charitably attributes to Virginia's appellate benches the view that they "genuinely dislike procedural dismissals, and try to avoid them where they can."

Also, I don't know whether the outcome in Jones would be different in a federal case As Marcia Oddi explains here, linking to this article by Howard Bashman, lawyers get fried in federal appeals, too (particularly by two famous Seventh Circuit judges).

I also wonder whether Jones would have been different if the client had also signed the notice of appeal - unlike the parties in the Wellmore case, an individual could represent himself or herself.

Get your bargain lawyer

Some excerpts from the ALJ lawyer fee survey, with rates for associates of different degrees of seniority:

Dickinson Wright (226) (Detroit)
1st $160 5th $200
2d $165 6th $220
3d $175 7th $230
4th $185 8th $240

Dinsmore & Shohl (306) (Cincinnati)
1st $160 5th $200
2d $170 6th $210
3d $180 7th $215
4th $190 8th $225

Hiscock & Barclay (160) (Syracuse, N.Y.)
1st $160 5th $170
2d $160 6th $180
3d $170 7th $180
4th $170 8th $195

Morris, Manning & Martin (174) (Atlanta)
1st $170 5th $305
2d $225 6th $315
3d $270 7th $340
4th $285 8th $350

Phillips Lytle (173) (Buffalo, N.Y.)
1st $130 5th $175
2d $145 6th $185
3d $150 7th $195
4th $165 8th $210

Shumaker, Loop & Kendrick (162) (Toledo, Ohio)
1st $165 5th $195
2d $170 6th $200
3d $180 7th $215
4th $190 8th $220

Those were the lowest figures on the list.

Carolyn Elefant at My Shingle says small firm lawyers ought to use this list to show what bargains they are.

Still more on one space v. two spaces

Via this week's Blawg Review, I learned of AdamsDrafting, which has this post siding with the one space camp, of which I am a member.

It says in part:

"The Chicago Manual of Style 2.12 (15th ed. 2003) says 'A single character space, not two spaces, should be left after periods at the ends of sentences (both in manuscript and in final, published form) and after colons.' To my mind, that settles it, but I’ll note that The Associated Press Stylebook (2004) also calls for one space. So does Bill Walsh’s Lapsing into a Comma (2000). . . .

Of course, law firms and most lawyers are wedded to two spaces. It would be a mistake to assume that this is the result of a reasoned decision. Instead, you can attribute it to the same oblivious conservatism that has caused them to perpetuate any number of other deficient usages.

As the online Chicago Style Q&A states, there's no evidence that using two spaces makes text easier to read. Consequently, the only conceivable defense of the practice is that it's harmless. But as also noted in the Chicago Style Q&A, using two spaces is inefficient, requiring an extra keystroke for every sentence, and is harder to control, in that any document created using the two-space rule is likely to contain a 'a smattering of instances of both three spaces and one space after a period, and two spaces in the middle of sentences.'

So if you're still using two spaces, stop it - your credibility is at stake!"

Plaintiff/counter-defendant cannot remove case based on federal question in counterclaim

In Great Eastern Resort Association v. Bluegreen Corporation, Judge Wilson ordered the remand of a case where the original plaintiff sued some former employees in state court, the employees counterclaimed under the Fair Labor Standards Act, and the original plaintiff filed a notice of removal based on the counterclaim.

Can you even bring a counterclaim under the FLSA in state court? Maybe so.

Maybe he needed a referral from my wife's uncle

In Underwood v. U.S., on the petitioner's claim for post-judgment relief from his conviction, Judge Wilson concludes his opinion with these words:

"Underwood, who is not an uneducated man stubbornly states, apparently for effect: 'my lawyer done me wrong.' Yet, here the facts are equally as stubborn, and his lawyer is simply that, a lawyer. He is not a magician. He cannot make the stubborn facts disappear."

The uncle, by the way, is the author of Inclined Toward Magic: Encounters With Books, Collectors, and Conjurors, which I think is his mostly first-person account of a lifetime of collecting books about magic. He also put together a book called Wizard Exposed: Magic Tricks by and Interviews With Harry Houdini Howard Thurston and Other Past Masters of Magic. Many years ago, we had dinner at the in-laws with David and one of his old magician buddies, who then performed a few magic tricks, successfully and without damage to persons or property.

Pain doctor's conviction affirmed

In U.S. v. McIver, the Fourth Circuit in an opinion by Judge Duncan affirmed the conviction of a physician for over-prescribing pain medication.

The facts of the case prompted this insightful Loblaw post, which says in part:

"A doctor getting prosecuted for overprescribing narcotics? That’s pretty common. But what’s uncommon – I hope – in this Fourth Circuit appeal is how the defendant got caught. A patient’s insurance company contacted the DEA because the patient was filling so many prescriptions for oxycodone. I suppose that is one way to keep insurance costs down."

Bear Bryant and civil rights

Today's Bristol paper had an article on the local author of Career in Crisis: Paul "Bear" Bryant And the 1971 Season of Change, David Briley, a professor at ETSU. The article is here, and it is far better than average for the otherwise incompetent Bristol paper.

It notes: "The scholarly accent to Career In Crisis is based around a lawsuit that was filed by the Afro-American Student Association. The association filed a lawsuit against Bryant, the University of Alabama, its board of trustees, chairman of the executive committee, university president and secretary of the U.S. Department of Health, Education and Welfare on July 2, 1969."

As I've written elsewhere, the first bowl game I recall was the 1973 Sugar Bowl.

Last look back at Commonwealth Conservative caption contests - my personal favorites

With both thumbs still upright, the finale of celebrity thumbwrestlemania was declared a draw.



When neither would agree to be the tail end, they both showed up only half-assed.



Overestimating the comic book literacy of the Blacksburg co-eds, he never understood the failure of what he thought was his best line: “If you like my Hulk, wait ’til I show you my Thing.”



Deciding what face to wear for rural voters, she chose the mule chewing briars.



After the Communists invaded Afghanistan, my original thought was to boycott the World Series, but then Mondale suggested the Olympics.



The whole gang on Easter Island loves the Reds.



In subsequent litigation, the manufacturer came to regret its advertising claim that the new model was great for cooking brats.

More on Chief Judge Wilkins taking senior status

Here are more articles on the "retirement" of Chief Judge William Wilkins of the Fourth Circuit:

From The State in South Carolina: Judge Wilkins stepping down

From the AP: Chief judge of 4th Circuit to step down

From the Richmond paper: Appeals court's chief judge to retire

The gossip at Southern Appeal is that Judge Wilkins plans to run for Governor of South Carolina, which sounds absurd to some of the commenters.

Time Magazine takes on the Derek Tice case

The Time article begins:

"Eight years ago, Derek Tice walked out onto his porch and found an entire swat team with all their guns pointed at him. He was convicted of murder, twice, in two separate trials, and sentenced to life in prison. To many observers in Norfolk, Virginia at the time, it had seemed like an open and shut case — a tape of Tice's own confession to the 1997 rape and murder of Navy newlywed Michelle Moore Bosko, 18, was played for the juries. But Tice and two other former Navy sailors convicted in the murder later insisted that they had fabricated the confessions after detectives had subjected them to harsh and manipulative questioning. The one other man convicted for the murder — and the only one whose DNA was linked to the crime — has since recanted his claim that the other men were involved and now insists that he acted alone. The whole argument may seem like a stretch — it certainly did and does to the victim's family — but on Wednesday a Virginia judge accepted enough of it to rule that detectives had not honored Tice's right to remain silent and overturned his sentence after almost a decade in custody."

UPDATE: The Washington Post has this editorial on the case.

Volokh on Miller-Jenkins

This Volokh post takes on the Virginia Court of Appeals' decision in the Miller-Jenkins case.

One of the commenters gets to the nub of the matter, as I see it:

"I am curious as well whether under Vermont law the child custody determination is considered an intrinsic claim/remedy in the dissolution of the civil union as it is in divorce actions. This would create the Catch 22 where a parent wishing to dissolve a civil union (so as to sever the property/inheritance/etc. rights created thereby)might have to submit to Vermont's jurisdiction over custody issues because their new home state doesn't recognize civil unions or a cause of action to dissolve them."

The related discussion poses the question, could a Virginia court dissolve a Vermont "civil union"?

Another hearsay gem from Buchmeyer

This one made me laugh out loud:

Prosecutor: On the photograph, what are on the brown, blood-like smudge?

Mr. Heu: From my zoological background, I keyed in on it because it had ants on it. [This was significant because it] indicated to me that it was fresh material rather than something that was days or weeks old.

Prosecutor: First of all, is there a difference between worker ants and soldier ants?

Mr. Heu: Yes. The soldier ants have large heads and the worker ants have small heads. The worker ants go out to forage - to find something. If it's a large find, the word will go back to the ant nest. The ants will send out more workers and if it's a big find, they'll send soldiers along.

Defense Attorney: I object to the materiality of the witness' statement.

The Court: Your objection is on the grounds of relevance?

Defense Attorney: Yes, sir. It's also hearsay as to what the ants tell each other.

The Court (wisely): Objection overruled.

On being oppressed by paper money

Overlawyered has this post which says a federal judge has ruled that "the U.S. Treasury Department is violating the law by failing to design and issue currency that is readily distinguishable to blind and visually impaired people."

The opinion from the D.C. District Court is here.