A dog's life

Chrissy was a former Death Row inmate, whose sentence was commuted to house arrest, when we brought her home from the Animal Shelter. Still, she felt the Call of the Wild, and lived in absolute certainty that beyond the friendly confines of the fences of our backyard, there were kitties and squirrels running amok, and other puppies wanting to play. So, Chrissy sought every way she could to see more of the Outside. When a misplaced winter boot knocked off a chunk in the side gate, leaving just enough room for a black nose and two black eyes, ever after the puppy Chrissy used that spy hole to peer out at the Town.

The house where we lived was old and odd. At one time in its history it had been rented out as two apartments, upstairs and down. In the back, there was a rickety wooden staircase leading up to the small deck by the upstairs door. The kitchen and downstairs bathroom were a single story, attached to the back of the house, next to the stairs. From the deck atop the stairs, the puppy learned she could slide through the rails and step on to the shingled roof of the kitchen.

"What's that?" asked my wife, standing at the bathroom sink. She heard a noise on the roof above her, and looked up to see the puppy's tail swishing above her. The dog had walked over the crest of the kitchen roof, so she could peer around the corner to see the World, and now she could also look through the sky-light down into our bathroom. We ran out to the backyard to rescue the puppy. Terry, the next door neighbor, hollered out, "Hey, Steve, you've got a dog on your roof."

From then on, we had to block the stairs, so the puppy could not go all the way to the top. So long as we lived there, the dog lounged on the stairs. When she grew too old and wide to fit through the rails, she liked to sleep under the stairs, on the cool bricks, peering out at trespassers in the alley behind the house -- the kitties and squirrels and sometimes dogs and people. If they trespassed too long, Chrissy would run up the length of the yard to bark at them through the wire fence. As for the squirrels and the kitties who dared to set foot inside the fence, the puppy chased after them, hoping to sink her teeth into their swishy-swishy tails.

As Chrissy became old, we moved from the old house with the rickety stairs to a new place, in a neighborhood with many dogs, and bunnies and squirrels, and little girls who called out, "Hey, can we pet Chrissy?" There was an exciting boy-dog across the street. Chrissy won every staring contest with the curious young cows who caught her eye in the field behind us.

But in the years at the new house, our walks got shorter and shorter. At first, she could walk to the other end of the street, then just to the stop sign, then just two doors down, then one door, then to the mailbox, then not at all. To the end, she took in a breeze like some people take in a concert, with her head back, eyes blinking, enjoying the the full range of the symphony of scents. Her last day was Wednesday, a sunny day, the hardest day.

Bye, old friend

What I got myself for Christmas

Thanks to Robbie and the Mid-Mountain men.

Jimmy Stewart and his old dog

With the end near for our dog, I am reminded of Jimmy Stewart's poem about his dog, which is more compelling when you watch this clip from the Tonight Show.

Waiting for Hillary

The Washington Post has this article about how the so-called balance of power on the Fourth Circuit may change if the Bush administration continues to fiddle with the increasing number of vacancies.

One quote from the article: "Imagine the people Hillary Clinton would appoint to the 4th Circuit."

That's what I did here. I note that Ms. Tate is tight with the Senator Webb camp, that's one way to become a federal judge.

There's a typo in that earlier post, I wrote Nadine "Strosser," when I meant Nadine Strossen. "Strasser" was the name of the evil Nazi major shot by Bogart at the airport in the final scene of Casablanca. I apologize for this error.

New dean at ASL

It says here that the Board of Trustees of the Appalachian School of Law have selected Professor Wes Shinn as the new dean.

Professor Shinn at one time was part of the Stone Pigman firm in New Orleans. (I always look people up on Westlaw.) Stone Pigman is, among other things, the liaison counsel for Merck in Louisiana where the Vioxx MDL proceedings are ongoing.

Dairy diet litigation gets booted from E.D. Va.

The Washington Post reported here on the dismissal of litigation against the dairy industry for promotion of the "dairy diet." The article says in part:

"But a federal judge has ruled that under Virginia law, Holmes and other people can't take on the industry in court -- only a government entity such as the Virginia attorney general's office can. The decision last week by U.S. District Judge Leonie M. Brinkema in Alexandria threw out the lawsuit Holmes filed last year.

In her ruling last Thursday, Brinkema said Virginia consumer protection law allows people to seek monetary damages but not a broad injunction regulating an industry. She did not address the science of the debate, writing that such federal agencies as the Food and Drug Administration and the Federal Trade Commission are better equipped to do so.

In the lawsuit, filed in Alexandria Circuit Court and moved to federal court, the physicians committee accused the dairy industry of promoting the weight-loss notion through a "massive, deceptive advertising campaign." The committee says overwhelming scientific evidence shows that dairy products cause weight gain or have no effect. The only studies showing otherwise, the committee contends, are industry-funded.

Holmes is the sole plaintiff in the lawsuit, filed against such companies as General Mills Inc. and the Dannon Co. Inc. and three dairy industry trade groups. In addition to damages for Holmes, the suit seeks an order halting the dairy industry campaign."

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."