On snow days

In the winter, I hear talk about schools cancelling classes because of snow.

One part of that discussion is that school officials are afraid of liability. In Virginia, the liability of school employees and school boards for simple negligence is limited by sovereign immunity and the school bus insurance statute, Va. Code 22.1-194, as Judge Wilson held in this opinion granting a motion to dismiss claims against individuals related a school bus accident in Botetourt County.

Another part of the discussion is what is the effect of school days on learning. The answer according to this article is that school days cause lower test scores.

The Media General article on Justice Kinser

I finally got around to checking out the fine article on Justice Kinser, who is becoming the Chief Justice of the Virginia Supreme Court. It seems like not so long ago that she joined the Supreme Court, yet with the retirement of Justice Koontz, all the other justices have less tenure than she does, but for current Chief Justice Hassell.

One fact in the article that I had never heard was that Judge Samuel G. Wilson of the W.D. Va. was one who urged her to apply for the Supreme Court position in 1997, but then Judge Wilson was U.S. Magistrate at the time when Justice Kinser was clerking for Judge Williams, and so perhaps they have known each other for many years.

Whatever works

In this VLW post, a Virginia legislator is cited for the proposition that the Governor proposed taking money from the Virginia State Bar to fund judgeships because the Virginia State Bar complained about the lack of funding for judgeships.

There ought to be a constitutional amendment that says the legislators are thrown out and barred from public office if they don't pass a budget and fill all the judgeships, in every session. Having said that, it is hard to imagine that the VSB surplus could be spent on anything more important.

Enzyte and the warrantless search (or is it seizure?) of e-mail

The Sixth Circuit ruled today in U.S. v. Warshak that the Fourth Amendment prohibited federal law enforcement from obtaining the defendant's e-mails from his internet service provider without a warrant. The case is a big deal to legal scholars, and is also interesting because the defendant was the owner of the company that puts on those late night ads with Smilin' Bob.

The FRCP amendments

The latest amendments to Rules 26 and 56 went into effect on December 1. The Rule 26 amendment limits the discoverability of draft reports by expert witnesses. The Rule 56 amendment is supposedly only procedural. Rule 56(b) specifies a default deadline for filing summary judgment motions, as 30 days after the close of all discovery. The typical scheduling order in the W.D. Va. shortens that period. It requires parties to cite to particular parts of the record to show the absence or presence of a genuine dispute of material fact, which seems odd. It says the Court can rely only on cited materials, or may use other parts of the record. It allows the Court to grant summary judgment for non-movants, on notice to the parties.

A further explanation of the rationale for the changes to the Rules is contained in this excerpt.

Judge Hudson strikes down health insurance mandate

I've read Com. v. Sebelius, and what struck me on the first reading was that Judge Hudson seemed to say that if the Congress and the Administration had characterized the individual insurance mandate as a revenue measure from the get-go, the outcome might have been different. "In concluding that Congress did not intend to exercise its powers of taxation under the General Welfare Clause, the Court's analysis begins with the emphatic denials by the Executive and Legislative branches that [the penalty for not buying health insurance] was a tax," Judge Hudson wrote.

In other words, by hedging on the extent to which the penalty for failure to buy health insurance was an outright money grab by the United States, the proponents of the scheme forfeited a potential basis for upholding its constitutionality.

On the constitutionality of the health insurance mandate

GMU law professor Ilya Somin has this take on the constitutionality of the health insurance mandate, which concludes if nothing else that the challenges to the mandate are not frivolous and what the law requires is something new, for which there is no binding precedent upholding its legality. Professor Barnett from GULC has this paper that concludes the individual mandate is unconstitutional.

By contrast, in this Bristol paper article about the lawsuit against the health insurance mandate filed by Gil Davis and Strother Smith on behalf of Smith, Tucker Davis and others, W & L law professor Tim Jost describes the claim as frivolous.

There is a website devoted to the litigation of this issue, called Health Care Lawsuits.

Court of appeals' "digital brief" guidelines

I read with some interest the "digital brief package" from the Virginia Court of Appeals. What is required is something quite different from the ordinary files we print to PDF and upload to federal court every day.

I enjoyed particularly the checklist of reasons for rejecting the digital briefs, such as "Paper Brief was not the same Brief on the CD."

Another part of what makes this interesting is that the Court evidently requires digital briefs, yet there is apparently no reference to such a requirement in the Rules, which were just amended - unlike in Rule 5:26(e), which says "(e) Copies for Filing. One electronic version, in Adobe Acrobat Portable Document Format (PDF) format, must be filed with the clerk of this Court and served on opposing counsel, unless excused by this Court for good cause shown."

In my opinion, most Virginia lawyers either lack the software necessary to insert bookmarks into PDF files or would not know how. I sometimes insert bookmarks to navigate around complaints and long contracts that other people send me.

The cheaper than Adobe Acrobat alternative software that I use is called NitroPDF, which is $99 as opposed to $299 for Acrobat 9 standard or $499 for Acrobat 9 pro. I think it could do what is required but I guess I'll send the work to one of the print shops in Richmond.

She said yes

Elliott Lawson & Minor is announcing this week that Dawn Figueiras has joined the ownership of the firm.

This is a great thing, as she is one of the best lawyers and best people I know.

On Justice Carrico

This article from the Richmond paper on Chief Justice Carrico of the Virginia Supreme Court at age 94 includes some interesting views on his five decades as a justice, chief justice, and senior justice. The article suggests that his most famous opinion as a justice was in the Loving case, affirming Virginia's ban on inter-racial marriage, the case that was then reversed by the United States Supreme Court, but that he makes no apology for applying the law as he found it at that point in time.

On sentencing in the W.D. Va.

The Roanoke Times had this interesting article on the role of the federal probation office in federal sentencing in Western District of Virginia cases. It quotes among others Judge Conrad and Judge Turk - and Paul Dull, distinguished graduate of the Appalachian School of Law and a fine fellow. The occasion for the article was the fuss raised by defense counsel in a case where the confidential part of a pre-sentence report was accidentally made available to him.

Wait, do I still have some of these?

The Virginia Gazette reports here on a William & Mary grad who returned an overdue book he checked out from the Williamsburg library in 1975. He told the library his lawyer had advised him to turn himself in. There was no fine since the library's records did not go back so far.

He said it.

"The judiciary acts as a ballast on our ship of state, and it prevents the ship from being wrecked on the reefs of inappropriate judgment, and should not be steered by the whims of hysterical opinion."

- Judge Burton Roberts, quoted today in his obituary in the New York Times.

Unusually high quality briefs lead to reprimand

Via this ABA Journal article, I saw this opinion about a lawyer who was sanctioned for plagiarizing page after page of an article and filing it as his own briefs.

The opinion from the Iowa Supreme Court says the trial court judge got suspicious having found the briefs to be of "unusually high quality," which surely is better than a plagiarized brief of unusually low quality but unethical nonetheless under the circumstances of this case.

The Court explained:

"We recognize that the term "plagiarism" is something of a scarlet letter that imposes a brand on a wide variety of behaviors. We do not believe our ethical rules were designed to empower the court to play a "gotcha" game with lawyers who merely fail to use adequate citation methods. This case, however, does not involve a mere instance of less than perfect citation, but rather wholesale copying of seventeen pages of material. Such massive, nearly verbatim copying of a published writing without attribution in the main brief, in our view, does amount to a misrepresentation that violates our ethical rules."

On the ethics of fake friending

An ethics committee for the Bar of the New York City Bar has concluded, unsurprising, that it is unethical for a lawyer to pretend to be someone else to become your friend on Facebook in order to get at your secrets.

The opinion concludes:

"Rather than engage in 'trickery,' lawyers can -- and should -- seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful 'friending' of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual’s social networking page. Given the availability of these legitimate discovery methods, there is and can be no justification for permitting the use of deception to obtain the information from a witness on-line."

When does $74,139.24 exclusive of interest and costs exceed $75,000

In Merial Limited v. Rasnic, Judge Sargent concluded that a claim for $74,139.24 satisfied the amount in controversy requirement under 28 U.S.C. 1332, which gives the federal courts subject matter jurisdiction of certain "civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs."

Back when I was law clerk, Judge Williams dealt with something similar in the case of Allstate v. Brown, 736 F. Supp. 705 (W.D. 1990), where the insurer brought a declaratory judgment related to the defendant's suit in state court, in which the claim was for precisely the jurisdictional amount. Judge Williams unlike some federal judges was always a big fan of diversity cases, and decided in favor of federal court jurisdiction in the Brown case.

The last to know

I finally noticed that the website of the W.D. Va. indicates that the Chief Judge is now Judge Glen Conrad, right next to where it says that Julie Dudley is the Clerk.

Judge Jones (like Jack Nicklaus) was born in 1940. Under 28 U.S.C. 136, no district judge gets to act as chief judge beyond the age of 70 if there are others who qualify to be chief judge.

On twenty years with Crohn's disease

In 1990, I was about to get married, and I knew there was something wrong with me, but didn't know what. I went to see old Dr. Shaffer, who referred me to a gastroenterologist, who figured out that I have Crohn's disease, and who has been my good friend and doctor for twenty years. The Crohn's diagnosis was more than confirmed in November 1996 or thereabouts when a Bristol surgeon removed eighteen inches of bad guts, that were tormenting me.

Over the years, I've taken some medicines that were gentle and did nothing, steroids that made me gain a pound day, other medicines that say on the label they can kill me, I've endured iron shots with the big needle, given myself B-12 shots with the little needles, munched on chewable children's vitamins, shared yogurt with my dogs almost every day. So far I've taken a pass on Remicade and Humira; maybe I get too many advertisements for plaintiff's products liability seminars.

Probably the last 150 pizzas have given me cause for regret, but I'll eat one every now and then. Green peppers, raw onions, orange juice, chocolate, bearnaise and hollandaise are all taboo, but I break bad and have some sometimes. My weight has fluctuated between 145 and 205, and so there are both fat boy and skinny man suits in my closet. I eat too fast, and often have dessert. On the upside, my blood pressure and cholesterol levels are no problem at all.

I've met some lawyers and witnesses with the same problem, and they are always relieved to find out what we have common. "Oh, I don't have to tell you about it," they say - about for example the perils of sitting around in a deposition for hours. Say, I flew to Europe and back a couple of times, imagine that. They could. One of my cousins has it. She and her lawyer husband Steve just flew to China and back to meet their new baby. When I heard this news, I thought about that plane ride.

I've been to a few meetings where the stomach rumblings were so loud I was surprised they were not made a part of the official minutes. ("... and Mr. Minor said grklbklmrkmogl.") One such occasion was at a VBA board meeting, when I was seated by Cheshire Eveleigh, who merely turned and gave me her broadest, crinkliest smile, leaving me no choice but to smile back. In this (and all matters, by the way), I recommend following her example.

A lot of my lawyer buddies or courthouse friends or even clients whom I see just every once in a while keep me up to date on how I'm doing, or at least whether I look better or worse than the last time they saw me. My assistant generally schedules my hearings and depositions for the afternoons, since the mornings are the iffiest part of the day (and I was a night owl even before). When I heard that a friend of mine's son was diagnosed with Crohn's, I said tell him it hasn't been fun but it hasn't held me back from doing what I wanted and going places. There are still some days though when the bad guts flat out betray me, like last November, and today, which gave me the notion to write this post.

Last night of Bluefield Orioles baseball, after 53 years

As reported here, tonight is the last home game of the Bluefield Orioles, ever.

The Bluefield Orioles figured prominently in a famous opinion by Judge Williams of the W.D. Va.

Justice Kinser to be the next Chief Justice

The Virginia Supreme Court has announced the selection of Justice Kinser as the next Chief Justice.

Justice Kinser clerked for Judge Williams, along with George Allen, who appointed her to the Supreme Court, after she had served for some years as magistrate judge for the W.D. Va. She was sworn in as a member of the Virginia Supreme Court in a memorable ceremony at the Lee High School in 1997, and many of the readers of this blog were there, as I was.

The funniest story I ever heard her tell was about the time she sat on a writ panel and some idiot lawyer (my words, not hers) kept addressing her as "Justice Lacy." She said nothing, but the lawyer persisted. Finally, unable to take it any longer, Chief Justice Carrico told the lawyer that in fact his colleague was Justice Kinser, not Lacy, whereupon the lawyer squinted up at the bench and said, "oh, you've changed your hair."

Justice Kinser is a soft-spoken, congenial person, who has been a free thinker on the Court, writing a fair share of separate opinions, including for example her dissent in Almy v. Grisham, with which I agree completely, no matter what the other six justices thought.