I'm just hoping for three bars in front of the TV

This Slashdot post says the new WiFi distance record is over 200 miles.

Maybe instead of the router from upstairs, I need to be connecting to something in Staunton.

Good books read lately

Since last week's trial, I've been back to the library.

I just read Kinfolks and re-read Kinflicks by Lisa Alther. (I told Jim Elliott that I first read Kinflicks sometime before 1977, and decided at the time I wasn't old enough to read it. I may not be now, either.)

Having just read a Julius Caesar, I had to read a Cicero.

Now, I'm reading a biography of James Dickey, by Henry Hart, of the College of William & Mary.

One to catch sometime - Weird Virginia, reviewed here by Joe Kennedy.

The new girl

A low-res phone cam image of Jenna, who brought the head of a dead mouse into the house last night.

The Rose Hill website

Here is the new website for Rose Hill, in Lee County.

It says my sister Joan is the webmaster.

Regarding the Rose Hill internet project, it has this report, of stuff that has since happened:

"A grand opening event for the new Rose Hill Library computer center is scheduled for June 11, 2007. The public is invited to attend. The grand opening event festivities will begin at 11:45AM with live music provided by the Wilderness Road Dulcimer Club. Speakers will begin at 12:30PM, including presentations by U.S. Congressman Rick Boucher, Virginia Senator William Wampler, and Virginia Delegate Terry Kilgore. Executive Director of LENOWISCO Planning District Commission, Ron Flanary, reports, "The Connect Rose Hill project is part of regional, collaborative efforts to provide access to broadband Internet across southwest Virginia. We're very proud to be offering broadband service in western Lee County."

Construction of the new wing onto the Rose Hill Library is complete and now houses a 10-station computer center. The project collaborators include LENOWISCO, Sunset Digital Communications, Lee County, Lonesome Pine Regional Library, Appalachian Resources, LLC, Lane Engineering, and Pete Sumpter General Contractor, Inc. LENOWISCO contracted with Sunset Digital Communications, owned and operated by Jonesville resident Paul Elswick, to serve as the Internet service provider for the computer center. Sunset Digital Communications is a Virginia Interexchange Carrier Internet Service Provider that manages the LENOWISCO Rural Area Network - a high speed regional fiber optic network that provides services to the businesses and residents of Southwest Virginia. Lee County owns the Rose Hill Library building and Lonesome Pine Regional Library manages the Rose Hill Library. A Lee County-based firm, Pete Sumpter General Contractor, Inc., completed the construction of the library wing. Lane Engineering prepared the architectural design and engineering services for the library wing construction project. Bobby R. Lane of Lane Engineering stated, "The construction of the library wing was a smooth project, staying within budget and on-time. We enjoyed helping to create such a wonderful facility in western Lee County."

The new computer center will provide free access to high speed Internet and offer free computer and Internet training workshops. Amy Bond, Executive Director of Lonesome Pine Regional Library reports, "Effective June 11, 2007, when the Rose Hill Library's new computer center opens, we will expand the library's operating hours to 40 hours each week, including some evening and weekend hours. Accordingly, the Rose Hill Library will be open as follows: Mondays and Fridays from 8:30AM to 5:00PM, Tuesdays and Thursdays from 11:30AM to 8:00PM, Wednesdays from 8:00AM to noon, and Saturdays from 10:00AM to 2:00PM."

Free computer and Internet training workshops will be provided in the new computer center beginning in June. Workshops will be typically scheduled for Monday mornings at 10:00AM and Thursday evenings at 6:00PM. Workshops scheduled for June and July include Computer Basics, Internet Basics, E-Mail Basics, Basic Keyboarding, Using the Mouse, Microsoft Word 2003, and Digital Photo. The first workshop, Computer Basics, will be held on June 14, 2007 at 6:00PM.

In addition, a Rose Hill website will be launched in June on the Internet at www.rosehillvirginia.org. LENOWISCO has contracted with Appalachian Resources, LLC, a Rose Hill-based consulting firm, to develop and maintain the new Rose Hill community website. Joan Porter, Manager of Appalachian Resources, LLC explains, "The Rose Hill website will include local photos, business directory, church directory, area attractions, and an interactive Rose Hill blog."

The "Connect Rose Hill" project is bringing high speed Internet access to the Rose Hill Elementary School, Rose Hill Library, and Rose Hill homes and businesses.

The U.S. Department of Agriculture (USDA) Rural Utilities Service's Community Connect Broadband Program is providing the primary financial support to LENOWISCO for the "Connect Rose Hill" project. The USDA Community Connect grant is providing $506,048 for the "Connect Rose Hill" project. Additional funding for the project and other regional broadband expansion is being provided by the Virginia Tobacco Indemnification and Revitalization Commission. The C. Bascom Slemp Foundation, Lee County, and Lee County Community Foundation provided further financial support for the Rose Hill Library project."

April speaks

Here at Hillbilly Savant April Cain wrestles with what to think about the proposed new coal-powered electricity generation plant in Wise County.

She concludes:

"But I'd also like to see the store fronts of Saint Paul bustling again. In my dreams I can walk along its main street on the sidewalk and look at all the pretty things that are in the windows, just like in my childhood. In these visions, its main business district will always have a Western Auto, a Norton Floral Shop, a Woolworth's and a Willis Department Store instead of empty storefronts. I wish someone could find a way to make this happen without also making a big ugly mess. In my dreams someone besides Big Power and Big Coal will come a courtin' the Perty Miss Southwest Virginia. But if no one else comes, perhaps a less than perfect marriage might be better than her continuing to be an economic spinster."

The old girl

Here's an old Chrissy picture I just found on this machine. I was talking about her this week, or trying to.

Ouch

Well, we had a trial this week and lost. The Kingsport paper has this account.

As I've written before, I've been in a number of these Elrod cases, and the Democrat side has won every time, as plaintiffs and as defendants, regardless of the judge or the jury division (Big Stone Gap, Abingdon, Roanoke), except for one case where the verdict was overturned on appeal.

In law school, I met John Tucker, the husband of Professor Jayne Barnard, who represented the plaintiffs in the Elrod case, and who wrote a lively and entertaining book about that case and others from his law practice in Chicago.

In one case, we got a remittitur at the trial court level, from $85,000 to $15,000 (then won outright on appeal). In the district court, we made these arguments, back in 1998:

"At trial, the defendant moved for judgment as a matter of law on emotional distress damages, citing the Fourth Circuit’s decision in Price v. City of Charlotte, 93 F.3d 1241 (4th Cir. 1996). The Price court dealt with two issues related to damages. One was the quantity and quality of proof necessary to support a damages claim. The other was the kind of causation that must be shown for the plaintiff to recover.

In Price, the Court noted that "[t]raditionally, common law courts have been reticent regarding compensatory damages in the absence of a physical injury.” 93 F.2d at 1250. "Empathizing with the trepidation of common law courts in analyzing such claims, the federal courts have recognized that emotional distress claims arising from constitutional violations are not immunized from the nebulous, speculative character that plagues their common law analogues." Id. The Court observed that "the only evidence of Appellees’ emotional distress was their own testimony." Id.

"[T]he case law reveals that courts scrupulously analyze an award of compensatory damages for a claim of emotional distress predicated exclusively on the plaintiff's testimony." Id. (citing cases). "If, as in the instant appeal, 'the part[ies] provide the sole evidence [of emotional distress, they] must reasonably and sufficiently explain the circumstances of [their] injury and not resort to mere conclusory statements . . . and seriatim recitations of 'depression' or 'hurt feelings' as evidence of emotional distress offered by the plaintiff fail to meet this standard." Id. "A plaintiff asserting a constitutional violation, therefore, must produce evidence of 'demonstrable emotional distress' or 'demonstrable mental anguish.'" Id.

The Price court examined a number of opinions where emotional distress verdict were rejected and distilled the factors on which the courts relied. Other later opinions are consistent with the analysis in Price. In Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996), the Fifth Circuit struck the emotional distress award in a section 1981 case and directed the court on remand to award only nominal damages. The Court observed:

In order to establish intangible loss, we recognize that Carey requires a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award. . . . Hurt feelings, anger, and frustration are part of life. Unless the cause of action manifests some discernible injury to the claimant’s emotional state, we cannot say that the specificity requirement of Carey has been met. Consequently, based on the above reasoning, we hold that the district court abused its discretion in awarding emotional distress damages to Brown on his § 1981 claim. We vacate the district court's $40,000 emotional distress award and remand the case with instructions for the district court to award nominal damages.

Patterson, 90 F.3d at 940; see Annis v. County of Westchester, 1998 WL 49317 at *10 (2d Cir. 1998) (vacating verdict for employee-plaintiff on grounds that plaintiff’s uncorroborated testimony was insufficient to warrant an award of emotional distress damages, where there were no physical manifestations and plaintiff remained employed).

The same defects in plaintiffs’ testimony in Price are present here: no corroboration, no physical symptoms, no change in lifestyle, no treatment, no out-of-pocket losses related to the alleged emotional distress (in fact, no out-of-pocket losses at all).

. . .

The point of Price is that the causation that is required is that the constitutional violation must cause the damage, as distinct from the loss of government benefits incidental to the violation. "[C]ompensatory damages for emotional distress must be attributed to the actual constitutional violation, as opposed to the denial of the ultimate benefit, and must be proved by a sufficient quantum of proof demonstrating that the violation caused compensable injury." Price, 93 F.3d at 1246 (citing Carey v. Piphus, 435 U.S. 247 (1978)). "Carey . . . teaches that compensatory damages for emotional distress are available for a constitutional violation, but must be attributed to the invidious discrimination, not to the deprivation of an ultimate benefit, to recover more than nominal damages, actual injury must be caused by the constitutional violation must be proved by sufficient evidence." Id. The Price court observed its earlier decision in Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) (per curiam). "In remanding, we observed that in order to recover such damages, Burt must prove that her injury flowed from the denial of due process, not from termination of her teaching position, the denial of her ultimate benefit." Price, 93 F.3d at 1247.

Applying this discussion to the facts of Price, the Court observed "Appellees must establish that their injury is grounded in the denial of equal protection, not their lack of promotions." Id. at 1248. Similarly, the burden is on the plaintiff in this case to prove that his damages were caused by the constitutional right, and not the deprivation of the ultimate employment benefit.

. . .

Where the Court is convinced that a damages award is excessive, it may order a new trial, a new trial on damages, or a remittitur. Defendant has argued above, based on Price, that judgment as a matter of law should be entered. In the alternative, if the Court is of the view that some amount of emotional distress may be recoverable, nevertheless it should order a new trial or direct the remittitur of the award, on the basis of Price and Hetzel v. County of Prince William, 89 F.3d 169 (4th Cir. 1996).

In Hetzel, plaintiff claimed to be the victim of various forms of unlawful discrimination, although she was not discharged. The jury rejected all but one of her claims, yet awarded $750,000 for her emotional distress, which the District Court reduced to $500,000. 89 F.3d at 170. The appeals court reversed and remanded, concluding that the damage award was excessive as a matter of law.

As in this case, Hetzel relied exclusively on her own brief, conclusory statements to prove her emotional distress damages. She kept her job, never sought counseling, suffered no impairment of job performance, and presented no corroborating evidence. 89 F.3d at 171. "Hetzel’s thin evidence of rather limited damages would in-and-of itself entitle her to only a minimal award of damages." Id. The Court also observed the problem of causation, that most of Hetzel’s was caused by factors other than the claim on which the County was found liable. Id.

"That this award is outrageous is confirmed by even a cursory analysis of the impressive array of cases cited by appellee . . . . These cases, all of which contained a substantial award of $25,000 or more for intangible injuries such as emotional distress, involved plaintiffs that were either the victims of invidious discrimination, suffered serious — often permanent — physical injuries, or were discharged and had difficulty finding alternative employment." Id. at 172. "In stark contrast to these cases . . . Hetzel suffered no discrimination, was not physically injured, is not under a physician’s care, and remains an officer in good standing." Id.

. . .

In remanding the case, the Court suggested Bradley v. Carydale Enter., 730 F. Supp. 709 (E.D.Va. 1989) and McClam v. City of Norfolk Police Dept., 877 F. Supp. 277 (E.D.Va. 1995) as "comparable to what would be an appropriate award in this case." 89 F.3d at 173. The plaintiffs in Bradley and McClam were awarded emotional distress damages in the amounts of $9,000 and $15,000, respectively. Bradley, 730 F. Supp. at 726; McClam, 877 F. Supp. at 284. McClam cites Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir. 1989). In Cygnar, the Seventh Circuit approved remittitur from $55,000 to $15,000, in an employment case involving job transfers, which the Court distinguished from discharge cases. 865 F.2d at 848.

The few local decisions in analogous cases highlight the excessiveness of the verdict in this case. In Chester v. Wise County Electoral Board, Civil Action No. 95-0037-B, aff’d, 117 F.3d 1413, 1997 WL 381964 (4th Cir. 1997) (unpublished opinion), plaintiff was out of work for six months, but was awarded only $5,000 for his emotional distress. In Roberson v. Mullins, 876 F. Supp. 100 (W.D. Va. 1995), plaintiff was discharged; the Court awarded $10,000 for his emotional distress. In Bockes v. Fields, 798 F. Supp. 1219 (W.D. Va. 1992), aff’d in part and rev’d in part, 999 F.2d 788 (4th Cir. 1993), plaintiff was discharged without pre-termination due process but reinstated before trial; she was awarded $20,000.

Based on the analysis in Hetzel, the $85,000 in this case is clearly excessive. The Court should order a new trial. In the alternative, the Court should order a remittitur, with the condition that a new trial will be granted unless plaintiff accepts reduction in the verdict to an appropriate amount, which based on Hetzel could be no more than $15,000."

Penalty clause in commercial real estate contract declared invalid

In ACL Realty Corp. v. .Com Properties, LLC, Judge Conrad of the W.D. Va. declared invalid as a penalty a provision in a real estate contract, where the contract provided separately for liquidated damages and the amount of money to be paid under the contested provision was disproportionate to any actual damages.

I tried to argue something similar related to the late fees in an equipment lease, not too long ago, citing among other cases Abbs's Moving Service v. Wooldridge, 612 So. 2d 449, 452 (Ala. 1993) ("We have considered the argument that the late fee provisions of the lease should be declared a penalty and, therefore, void as against public policy. We conclude from a reading of the lease--which allows for a 5% charge for rent 5 days overdue and then an additional 5% charge for every 30 days thereafter that a portion of the rent is outstanding--that the lease imposes a penalty.")

Under Va. Code § 8.2A-108(1), a court can refuse to enforce an unconscionable term in an equipment lease.

Webb and Warner send five names to White House for Fourth Circuit

The Richmond paper reports here, the Roanoke paper reports here, and the Charlottesville paper reports here that Senators Warner and Webb have sent to President Bush the names of Justices Agee and Lemons, U.S. District Judge Conrad, lawyer Thomas Albro, and Richmond law professor John Douglass for nomination to the Fourth Circuit.

If those are the choices, I'm rooting for Judge Conrad, whom my Grandma Conrad claimed was somehow kin to us, and is from Southwest Virginia and lived for a while in Abingdon, and went to William & Mary Law, and clerked in the W.D. Va. before he became magistrate judge.

On being the best-read Virginia law blog

Guy Tower sent out his note to the VBA, saying this week that SW Virginia law blog is the best-read Virginia law blog, according to Justia.

My comments are these:

1. The rankings don't count Steve Emmert's site or the VLW blog, which really are the best.

2. Being the best-read Virginia law blog could be one of those distinctions like best sushi in Buchanan County - not much distance between best and worst.

Primary night

Geez, my friends Mickey McGlothlin and Rip Sullivan both lost - one by less than 600 on turnout of 14%, one by less than 300 on turnout of 6%.

What were the other 80-90% of the registered voters doing today?

Surgery this week

I'm in Richmond area this week, not just for the graduation, but also because my father-in-law is having an operation. He is a fun guy, and here is one of my favorite pictures of him with Dana.

On Justice Lacy's announcement

Years ago, I made my first of so far only two appearances before the Virginia Supreme Court, and took my wife along.

Afterwards, I asked her impressions, and one was that one of the justices wore really nice earrings.

Some time later, I told this story to Justice Lacy, whose earrings they were, and she laughed.

According to this VLW story, Justice Lacy will soon retire from the Court, and so it appears that she will not become Chief Justice in her time on the Court.

On James River graduation

Yesterday, I watched the nephew Andrew graduate with the 500+ members of the James River High School Class of 2007.

Governor Kaine was the main speaker. And, his remarks were very well done, he is an excellent speaker. He said the two things he remembered from his high school graduation in Kansas City were saying goodbye to his ex-girlfriend and watching one of the football guys hugging and carrying on with his parents. So, he said, if he could remember those two things after 35 years, he suggested the grads do likewise - clear the air with those you won't see again, and don't hold back on hugging your parents. He also said, be informed voters, not apathetic non-voters, noting that when Linwood Holton was elected in 1969, more than two-thirds of Virginia's registered voters participated, but when he was elected two years ago, the turnout was less than 50 percent. He said you need to vote because sometimes, every now and then, what elected officials do is important.

From last fall, here are the graduate and I.

But where's Old Zach?

Sic Semper makes a comeback, with a new line-up, including Norm Leahy.

Old Zach of the old SST came up to me at some event and said, "I'm Old Zach," which left me momentarily at a loss, in the sense that when Murphy Brown told Frank Fontana "the stick is blue," he could only reply "the dog barks at midnight."

On protesting in Rome

President Bush is in Rome this weekend, and there are protesters.

I took this picture in Rome in June of last year. There were just about as many guys there with machine guns as there were protesters, but I didn't think pointing my camera at them would be a good idea.

On preserving our culture

Bill Hobbs reports here on what happens when you order a BLT from someone from who doesn't know that the LT stands for "lechuga" and "tomate."

On the problem of older lawyers

The "Joint Committee on Aging Lawyers" of the National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers has produced this somewhat pithy but interesting Final Report, which studies "the challenges raised by aging lawyers."

Judge Williams, now 87, sometimes retells a version of a story described here -

"One of the first of many standard stories recounted about the Supreme Court tells how his brethren went to an aging Justice Oliver Wendall Holmes to get him to step down and reminded the justice of similar entreaties he had made to Justice Stephen Field nearly a half century prior. Holmes is said to have responded to his younger colleagues that he had never himself done a dirtier days work."

Must have been a cat fancier

This TalkLeft post describes a Vermont case, in which the defendant was charged with making faces at a police dog.

Unrelated but equally bizarre is this Volokh post about a judge whose sentencing memorandum contains the titles of 40+ Beatles songs (in two pages).

Avvo, oh no

At Overlawyered, they say the new lawyer rating service Avvo is already the subject of threats of litigation by lawyers wanting better ratings.

I don't Avvo has got around to Virginia or Tennessee lawyers, yet, but if Homer Simpson gets arrested in Washington State, I'm sure he'll call this guy.

Here is an interesting CNET article, listing the Avvo ratings for Alberto Gonzalez, Harriet Miers, and others.