In the case of Central Manufacturing, Inc. v. Brett, the Seventh Circuit's opinion begins:
The Pine Tar Incident
It’s undisputed: George Brett was a great baseball player. The statistics from his 21 years in The Show, all with the Kansas City Royals, seal the deal: 3,154 hits, 317 home runs, and a career batting average of .305. Only three other players—Stan Musial, Hank Aaron, and Willie Mays—ended their careers with more than 3,000 hits and 300 home runs, while still maintaining a lifetime batting average over .300. Brett’s selection to the Hall of Fame, on the first ballot in 1999, was richly deserved. Yet for all his accomplishments, many who love baseball will always think of the “Pine Tar Incident” as the capstone of his career. It is a joy to recall.
It was July 24, 1983, and the Royals, trailing 4-3 to the New York Yankees, had a man on first but were down to their final out in the top half of the ninth inning. Brett was at the plate. The Yankees’ ace closer, “Goose” Gossage, was on the mound. And Brett crushed an 0-1 fastball over the 353-foot mark into the right field seats, giving Kansas City the lead, 5-4. Pandemonium broke out in the Royals’ dugout. The Yankee Stadium crowd fell silent. But things were about to change.
While the Royals were celebrating, the Yankees’ fiery manager, Billy Martin, walked calmly (unusual for him) to home plate where he engaged the umpire, Tim McClelland, in quiet conversation. Martin pointed to an obscure rule (and we sometimes think the Federal Rules of Appellate Procedure are obscure!), which provides that any substance (including pine tar) that a player might rub on his bat handle for a better grip cannot extend more than 18 inches. See Major League Baseball Official Rules § 1.10(b). Martin, pointing to a lot of pine tar on the bat Brett left behind as he circled the bases, asked McClelland to check it out. McClelland, using home plate as a ruler, determined that pine tar covered 24 inches of the bat handle. So the bat, McClelland ruled, was illegal.
With his ruling ready for delivery, McClelland took a few steps toward the jubilant Royals’ dugout and gave the signal: for using an illegal bat, the home run was nullified, and Brett was out. Game over. Yankees win 4-3. And all hell broke loose. An infuriated George Brett charged out of the dugout and rushed McClelland as Martin, who looked like the cat who ate the canary, stood off to the side. It was one of the great all-time rhubarbs in baseball history. And that’s how it ended, at least for July 24, 1983.
But baseball, like our legal system, has appellate review. The Royals protested the game and, as luck would have it, American League President Lee MacPhail (to use a phrase with which we are accustomed) “reversed and remanded for further proceedings.” The game resumed three weeks later with Kansas City ahead, 5-4. It ended after 12 minutes when Royals’ closer Dan Quisenberry shut the door on the Yankees in their half of the ninth to seal the win. The whole colorful episode is preserved, in all its glory, on YouTube, at http://www.youtube.com/watch?v=4Cu1WXylkto (last visited June 6, 2007). See also Retrosheet Boxscore, Kansas City Royals 5, New York Yankees 4, at http://www.retrosheet.org/boxesetc/1983/B07240NYA1983.htm (last visited June 6, 2007).
Saturday, July 14, 2007
Lawyers miss hearing, assessed costs, because spam filter ate a hearing notice e-mailed from federal court
Via Jim Calloway, this story tells of some lawyers in Colorado who missed a hearing in federal court because they had ratcheted up their spam filter and it started treating the federal court notices as spam.
Calloway says you must white-list the courts no matter what.
The cheapskate that I am, I/we use as our spam filter a program called SpamBayes, which has no white-listing feature, and here's why. The FAQ says in part: "If you really need whitelisting, consider implementing rules in your mailer to intercept the messages before they're passed to SpamBayes." I suppose it would not be too hard to write an Outlook e-mail rule for ECF/CMF messages. Or, we might break down and buy something like InBoxer.
Calloway says you must white-list the courts no matter what.
The cheapskate that I am, I/we use as our spam filter a program called SpamBayes, which has no white-listing feature, and here's why. The FAQ says in part: "If you really need whitelisting, consider implementing rules in your mailer to intercept the messages before they're passed to SpamBayes." I suppose it would not be too hard to write an Outlook e-mail rule for ECF/CMF messages. Or, we might break down and buy something like InBoxer.
Why more questions is a bad thing
This HOWT post weighs proposition, the side that gets the most questions will probably lose.
Arguing an appeal is a rare thing for me, but in the trial courts usually the judge if he or she has read the papers or the cases is going to ask somebody, doesn't this fact or this case mean that you lose?
And, sometimes the answer saves the day, but more often it doesn't. The worst situation is when the court stops asking questions, because they've made up their mind and are no longer interested.
Unfortunately, in state court, where the judges have larger dockets and smaller staffs, the questions are generally less incisive.
Arguing an appeal is a rare thing for me, but in the trial courts usually the judge if he or she has read the papers or the cases is going to ask somebody, doesn't this fact or this case mean that you lose?
And, sometimes the answer saves the day, but more often it doesn't. The worst situation is when the court stops asking questions, because they've made up their mind and are no longer interested.
Unfortunately, in state court, where the judges have larger dockets and smaller staffs, the questions are generally less incisive.
On motions to dismiss and the Bell Atlantic case
Via this post, this article explains why the Supreme Court's decision in Bell Atlantic v. Twombly will lead to more motions to dismiss being granted, even outside the area of anti-trust law.
More on the proposed new bar passage requirements for accredited law schools
The NLJ via law.com has this article, in which various law school deans blast the ABA's proposal, referenced here, to make specific bar passage rates a mandatory condition for continued accreditation.
Only successful prognostication in the past two years
Earlier this month, a split panel of the Sixth Circuit reversed the ruling of the District Court in Michigan on the constitutionality of the NSA's terrorism surveillance program, in the case of ACLU v. NSA.
And, that's what I thought would happen, although I didn't think it would go down for lack of standing.
And, that's what I thought would happen, although I didn't think it would go down for lack of standing.
Watch what you ask for
ACSBlog has this amusing post about how Vice-President Cheney's effort to claim that his office is outside of the Executive Branch might re-open the cases where he has claimed some form of privilege because his office is within the Executive Branch.
On Monroe Jamison
Bluegrass picker, coal lawyer, defender of the poor, Monroe Jamison died this week, at the too young age of 52.
He and his music buddies played on the front porch at my sister's outdoor wedding. He was a mainstay of live music in Abingdon, working on the Highlands Festival for years. He was in Kiwanis with my dad. I tried a hard-fought case against him in Scott County, not too long ago, and he won it. He was a fine fellow, a good lawyer and much more than a lawyer.
The Bristol paper's obituary says, and I believe it, he leaves behind his family and "a grieving community of musicians, colleagues and close friends who cherished his intelligence, warmth, generosity, quick wit and abundant talents.
He and his music buddies played on the front porch at my sister's outdoor wedding. He was a mainstay of live music in Abingdon, working on the Highlands Festival for years. He was in Kiwanis with my dad. I tried a hard-fought case against him in Scott County, not too long ago, and he won it. He was a fine fellow, a good lawyer and much more than a lawyer.
The Bristol paper's obituary says, and I believe it, he leaves behind his family and "a grieving community of musicians, colleagues and close friends who cherished his intelligence, warmth, generosity, quick wit and abundant talents.
Friday, July 13, 2007
Would the Democrats put a Richmonder on the Supreme Court?
SCOTUSBlog has made a list of people who might get picked for the Supreme Court if the next president is a Democrat, and the list includes Chief Justice Hassell and Judge Gregory of the Fourth Circuit.
But, they're not on Tom Goldstein's short list.
But, they're not on Tom Goldstein's short list.
Bad plan
The Roanoke paper reports here on the criminal case against a woman who decided to her boyfriend out by plotting to tamper with the car of the judge on his case, so the judge could not show up for court.
The article says in part:
"A woman who plotted to cut the brake lines on a judge's car was released from jail Thursday after several of the charges she faced were dropped.
. . .
At a preliminary hearing in January, a man testified that Dunford asked if he would help her find Showalter's Montgomery County home. After he pressed her, she admitted she wanted to cut his brake lines, he said.
Dunford's boyfriend, Christian Skye Crockett, was in jail on drug charges and Showalter wouldn't grant him bond. Dunford wanted to keep Showalter from showing up for court so another judge would hear Crockett's case, the man testified."
The trial judge in the girlfriend's case is retired Judge Quillen from the 30th Circuit.
The article says in part:
"A woman who plotted to cut the brake lines on a judge's car was released from jail Thursday after several of the charges she faced were dropped.
. . .
At a preliminary hearing in January, a man testified that Dunford asked if he would help her find Showalter's Montgomery County home. After he pressed her, she admitted she wanted to cut his brake lines, he said.
Dunford's boyfriend, Christian Skye Crockett, was in jail on drug charges and Showalter wouldn't grant him bond. Dunford wanted to keep Showalter from showing up for court so another judge would hear Crockett's case, the man testified."
The trial judge in the girlfriend's case is retired Judge Quillen from the 30th Circuit.
One more on the bandwagon
Here is an editoral from Wheeling, WV, saying that the White House and the Senate need to act now to fill vacancies on the Fourth Circuit.
Thursday, July 12, 2007
On wireless in Harrisonburg
Via Jim Baller, here is an update on a recent setback in the plans of the government in Harrisonburg to establish a wireless network.
Downtown Harrisonburg is kind of funky, with the courthouse on its own island in the middle of town, sort of like one of the squares in Savannah. I can't say that I ever did much good the few times I was in there, but I enjoyed being there.
Downtown Harrisonburg is kind of funky, with the courthouse on its own island in the middle of town, sort of like one of the squares in Savannah. I can't say that I ever did much good the few times I was in there, but I enjoyed being there.
Wednesday, July 11, 2007
On the late Lady Bird Johnson
When I was born, the President was Johnson and the First Lady was Lady Bird.
In 1965, while she was still First Lady, Lady Bird Johnson came to Abingdon, stayed at the Martha Washington Inn, and, as noted here, "bartered a potted plant for a ticket" to the Barter Theatre.
Or, so I've always heard. Actually, this version from Time Magazine says this:
"At Abingdon, the tourists attended the Barter Theater's performance of Julius Caesar, and the First Lady presented the theater's annual award to Presidential Arts Adviser Roger Stevens for his contributions as a Broadway producer. In keeping with the little theater's name, the group bargained its way past the box office: Lady Bird unwrapped another White House seedling, and Mrs. Humphrey brought a bucket of vegetables—'not to be thrown.'"
In 1965, while she was still First Lady, Lady Bird Johnson came to Abingdon, stayed at the Martha Washington Inn, and, as noted here, "bartered a potted plant for a ticket" to the Barter Theatre.
Or, so I've always heard. Actually, this version from Time Magazine says this:
"At Abingdon, the tourists attended the Barter Theater's performance of Julius Caesar, and the First Lady presented the theater's annual award to Presidential Arts Adviser Roger Stevens for his contributions as a Broadway producer. In keeping with the little theater's name, the group bargained its way past the box office: Lady Bird unwrapped another White House seedling, and Mrs. Humphrey brought a bucket of vegetables—'not to be thrown.'"
30th anniversary ignored
This article begins "The State Bar of Arizona last week had no comment regarding the practice of lawyers advertising, nor did it want to say anything about the 30th anniversary of the U.S. Supreme Court ruling on the matter."
On Eugene Derryberry
Here from the Roanoke paper is a story on the life and times of Eugene Derryberry, who was a business lawyer with the Gentry Locke firm.
The article says in part:
"Prominent Roanoke lawyer Eugene E. Derryberry would often sing and play his guitar in the middle of the afternoon to lighten up the office.
"When Gene would sing, everything in the world would be all right," said Mike Pace, a managing partner at Gentry Locke Rakes & Moore. Derryberry worked at the law firm for 34 years and was known as a mentor and a strict grammarian with a love for teaching."
I didn't know him, but I understood that he was the wise counselor for the family business of my mom's cousin's family business in downtown Roanoke. It seems to me that the Roanoke bar has (or had) a lot of interesting characters.
The article says in part:
"Prominent Roanoke lawyer Eugene E. Derryberry would often sing and play his guitar in the middle of the afternoon to lighten up the office.
"When Gene would sing, everything in the world would be all right," said Mike Pace, a managing partner at Gentry Locke Rakes & Moore. Derryberry worked at the law firm for 34 years and was known as a mentor and a strict grammarian with a love for teaching."
I didn't know him, but I understood that he was the wise counselor for the family business of my mom's cousin's family business in downtown Roanoke. It seems to me that the Roanoke bar has (or had) a lot of interesting characters.
Monday, July 09, 2007
Lexis buys Juris
Having bought CaseMap, et al, a while back, now LexisNexis has bought Juris, as reported here.
I told the money lady that soon we will get down to two vendors, West and Lexis.
The usual challenges when these vendors get bought is whether the good customer service will continue, and whether the prices will go up.
I told the money lady that soon we will get down to two vendors, West and Lexis.
The usual challenges when these vendors get bought is whether the good customer service will continue, and whether the prices will go up.
Sunday, July 08, 2007
Another corner heard from
The Bristol paper opines here that it is past time to fill the vacancies on the Fouth Circuit.
Thursday, July 05, 2007
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.''"
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.''"
Wednesday, July 04, 2007
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.
Also there was Sam Waterston, and former Virginia Supreme Court justice John Charles Thomas.
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