On the late Judge Turk

I enjoyed my dealings with Judge Turk of the W.D. Va., including a couple of jury trials and a bunch of hearings, and seeing him at the courthouse many times and a few times at the judicial conference.

Years ago I represented an older woman in a case before Judge Turk. She was a super lady, somehow referred to me by the NAACP. The lawyer on the other side was from D.C. The security officer asked if I wanted the hearing in the courtroom. I tried not to laugh and said no, so we all went back into the library, gathered around a single table - my client, her daughter, son-in-law, and grandchild, the judge, and opposing counsel. Baby Girl his little dog was there. It was more like a prayer meeting than a summary judgment hearing, with a few amens from the congregation. The judge talked to everybody - including the little girl - about everything, then declared the case needed to be settled and got the magistrate judge on the phone and set the date for a settlement conference on the spot, and told the D.C. lawyer to offer something. The D.C. lawyer was a bit non-plussed. The gist was that Judge Turk thought we had no case but wanted us not to go away empty-handed - even if all we got was some kind words from him.

Roy Wolfe, the former magistrate, told me that there were no rules in the Western District other than Judge Turk's hearsay rule, which was "I'll let it in for what it's worth." A few years later, at the first trial I had before Judge Turk, I impeached the plaintiff's expert pretty well I thought, to the point I asked Judge Turk to rule that his opinions were not even admissible. The judge said no, he would let it in for what it's worth, with an inflection that suggested it was worth nothing. It was all I could do not to laugh.

Judge Turk loved juries. He figured that they would get it right, and if they didn't he could fix it. Judge Williams used to tell the story that Judge Turk was the only judge in America to ever try an ERISA case to the jury. At the memorial service for Judge Williams, I told the story of the juror who called me after a trial, which scared me to death. When we went in for post-trial motions, the first thing the judge said was "fellas, it's good to see ya, now tell me, what have you heard about what the jury was thinking when they decided this case?" Again I tried not to laugh.

One of the security guys in Abingdon told me a story once about the case where Judge Turk did not shake the criminal defendant's hand. The defendant was in court for violating his house arrest. The judge was unconvinced by his excuses. He was a restaurant owner. One of his character witnesses testified how his goal in life was to own a restaurant, and how much the defendant had helped him toward that goal. "Stick around," Judge Turk said. "There's going to be a restaurant up for sale here in just a few minutes." I don't know if that story is true but if not it ought to be.

On the upcoming retirement of Chief Justice Kinser

I have been around Chief Justice Cynthia Kinser from time to time the whole time I have been a lawyer. Kurt Pomrenke, now a judge himself, used to tell a story about going to argue against her in the Fourth Circuit and she had her children with her, and all the judges were smiling at the children, and he felt like he was going up against motherhood and apple pie. When she became the Magistrate Judge, I remember her saying that she wasn't able to greet the lawyers with stories like Judge Williams did, because she didn't know that many stories, but in time she came to know a few. The funniest story I ever heard her tell of her days on the Virginia Supreme Court was the one where the hapless lawyer kept calling her "Justice Lacy," until Chief Justice Carrico had enough and explained that the woman on the bench was instead Justice Kinser, whereupon the lawyer said, "oh! you've changed your hair." When she first got on the Court, I rooted for her to do well and later I was pleased that she had done well, a gracious person but also a strong voice for common sense and the rule of law.

Virginia CLE in Bristol

The big boss of Virginia CLE, Ray White, is bringing the trial practice seminar from his years of teaching for NITA to Bristol on July 24 at the Holiday Inn at Exit 7. Check it out here.

Come see us at the Sweet 300

I had a call last week from a lady who agreed to send me a document if I told her the address, and she wrote down exactly what I said. The envelope reads: "110 Piedmont Avenue, Sweet 300." Life is good upstairs in the Sweet 300.

On the news that Judge Wilson will soon retire

The Roanoke Times reports here that Judge Samuel G. Wilson of the W.D. Va. will be retiring August 1, 2014. I have written here not too long ago about trying one last case before him in Big Stone Gap. Before that trial, I saw him at the Judicial Conference in 2011 and told him I was getting married and taking on a bunch of girls. "It's a good thing you ran into me," he said, and proceeded to give me his advice on dealing with teenage daughters. When I saw him again in 2013 I told him his advice had been timely and accurate. He laughed. I remembered him talking about a daughter in 1995, when we were waiting for a jury and telling stories to kill time during a trial in Big Stone Gap, when John Brownlee was one of his law clerks - and now I could relate, completely. Good luck, and thanks.

How to make Yelp come across

In Yelp, Inc., v. Hadeed Carpet Cleaning, the Court of Appeals in an opinion by Judge Petty, joined by Judge Frank with Senior Judge Haley dissenting in part, upheld a civil contempt finding against online review site Yelp for failure to disclosure identifying information of some reviewers. The opinion is pretty free-ranging, with a lengthy Shakespeare quote, lots of legislative history, discussion of case law from other states - completely at odds with the Virginia Supreme Court style from before 2000 that I described in the prior post. In the dissent, Judge Haley gets to the nub of what strikes me as the peculiarity of the case - the failure to state a cause of action. You can't sue a bunch of John Does for falsely claiming to be customers posting negative reviews and then go looking for evidence, the John Does if anyone of them were actual named persons would have had the case dismissed before the subpoena was enforced. Even so, this opinion is chock full of information about how to proceed to get information of this kind.

Blackstone and you

I read with interest Judge Kelsey's article in the current VBA Journal about the current relevance of the common law of England, in which he addresses and contradicts various criticisms of the application of the English common law as precedent in Virginia, and cites a list of recent cases in which the common law was prominent in the bases for decision.

The list of recent cases included Wyatt v. McDermott and Jenkins v. Mehra, among others. I recall reading these when they came out and thinking how strange that they turned to such a significant degree on the common law when they seemed to be in areas of the law where the legislature has acted in considerable detail. In Wyatt, the Supreme Court concluded that there was a common law writ for interference with the relationship between parent and child, or close enough, while recognizing that there are many differences in the law as it is today. To me, the many differences swallow up the similarities, and the incorporation of medieval concepts of the status of children is and was unwarranted, and the dissenters seemed to have the better view. In Jenkins, the Court found that the legislature had not spoken clearly enough to overrule the common law on a point of appellate procedure, of all things. The Constitution of Virginia gives the legislature the exclusive power to define appellate jurisdiction, there is no appellate jurisdiction except by way of legislative enactment, and so it seems a rare thing that the legislature is limited by the common law.

In Jenkins and in Wyatt, the Court referenced opinions from other states in explaining the common law rule. For a long time, I thought the Virginia Supreme Court was particular hostile to authority from other states, or even more so from the federal courts. I often suspected that part of the reason for this was the view that there is a fish in the sea for every taste, when searching through case law - there are conflicting precedents within and among the several states. The federal courts often get it wrong in guessing what is the law of Virginia, much less what the Virginia Supreme Court will think was the law of England in 1607. Certain justices I can picture in my mind's eyes seemed to relish the idea that only way to get a case right was to look to the opinions of the Virginia Supreme Court.

At least, with the internet, it is surely easier now than it was in 1800 to research the common law. You can read Blackstone's Commentaries on your mobile device for free. There might even be an app for that.

For those who find these topics interesting, there is a session titled "Democracy of the Dead: The Relevance of Legal History in Modern Litigation” on the agenda for the winter meeting of The Virginia Bar Association in Williamsburg later this month.

The awesomeness of Twitter on the AG vote count developments

If you are not doing it, you should be following the back and forth over the adjustments to the vote totals including what Ben Tribbett @notlarrysabato, Dave Wasserman @redistrict, and others, particularly in regard to the "missing" Fairfax County absentee ballots described here (in the Washington Post) that if "found" would likely carry the day for Democratic candidate Mark Herring who otherwise still is trailing the Republican Mark Obenshain. 

On trying a case before Judge Wilson

Last week's trial in Big Stone Gap was before Judge Samuel G. Wilson, who came on the bench of the Western District of Virginia in 1990, while my clerkship was still going on, and so I met him at that time. When I went to work in Bristol, we had a case against the United Mine Workers, that went to trial twice before Judge Wilson, with Jim Vergara on the other side. In 1995, I tried the Wise County Electoral Board case before Judge Wilson, against Ed Stout and Jerry Gray. Some other time we had the MSHA employees case before Judge Wilson, with Don Huffman on the other side, and then an auto accident case in Roanoke where I represented a fellow from the Netherlands before Judge Wilson, with B.L. Conway and Zane Dale Christian for the plaintiff. Those were all interesting cases because of the people involved and the back and forth in the courtroom, and I have to laugh at the preposterous level of detail with which I can recall them all. Not everyone gets to try a civil case before a jury in federal court, much less seven before the same judge. Strangely, I still think of Judge Wilson as sort of a "new" judge and myself as sort of a "new" lawyer still learning the ways things are, despite the twenty-some years of our acquaintance. Last week's trial was not one for the record books, the details might soon be forgotten but the part I will remember was from after the verdict at the tippy tail end of the case, when one of the Marshals was upset that some people in the gallery refused to stand. The judge sent the jury on their way, then stood up and gave a little speech that has stuck in my head. One side is always upset with a jury's verdict, he said. We don't stand when the bailiff cries "all rise" at the end of a case because we believe there has been perfect justice. What we honor is the pursuit of justice, through this jury system we have that is the best system there is, however imperfect. So, he concluded, he would not punish them for protesting this particular verdict, if that was what they wanted to do, but he wanted them to know that it was earnest quest for justice that makes our justice system worthy of respect. Or that's the gist of what I heard. It was a unique courtroom moment, memorable and unexpected. Probably I won't try another case before Judge Wilson, the odds are against it, but I am grateful for all I have learned in court with him and from him, including in Big Stone Gap last week.

Classmate in the running for Tennessee Supreme Court

One of my William & Mary classmates, Steve Mulroy, is a candidate for the Tennessee Supreme Court. His resume is here. At one time there were Steve Marshall, Steve Minor, Steve Mister, Steve Morris, and Steve Mulroy in all of the same sections in our first year in law school.

On the passing of Judge Karen Williams

I read here that Judge Karen Williams died at her home on Saturday, at age 62. Judge Williams served on the Fourth Circuit. She sat on almost all of the panels for the cases with the best outcomes I ever had anything to do with in appellate practice - the Arnold case, the Terwilliger case, the Cooper case, the Wiley case. I liked everything about her, like a groupie.

Thinking skeptically about thinking

One of the best books I've read in 2013 was Robert Burton's "A Skeptic's Guide to the Mind: What Neuroscience Can and Cannot Tell Us About Ourselves." The title was of interest when Jill was in the process of being diagnosed about why she had her car wreck back in December. The book revisits issues from the philosophy of the mind that I studied in undergraduate days, namely how can we ever figure out how the mind works when we've only got our minds to figure with. Notwithstanding the discussion of technology and philosophy, the book is accessible and interesting.

On Roy Wolfe

I understand that Roy Wolfe, the former United States Magistrate, passed away this week. He was someone I saw every day during my clerkship in Abingdon, during the last few months before his retirement. He was a good-humored man who liked to egg on Judge Williams to tell stories, even though he knew as many himself, and he thought it was hilarious that one of the demonstrators outside the courthouse hollered out "there goes the judge and his henchman" as Roy and the judge walked to a car. Evidently, he was also a lion in the courtroom, back in the day. He was a good friend to me who helped make my year at the courthouse the great experience it was.

On Martha Weisfeld

Here is an obituary in today's Bristol paper for Ms. Weisfeld, who was the publisher of the Abingdon Virginian. When I moved back to Abingdon after law school in 1989, I was walking around town with my future first wife and looked in the big glass window at her office on Courthouse Hill and she looked back and beckoned us in. She cross-examined us at some length as to who we were and what we were doing there, and I told her I was going to start working for Judge Glen Williams. She said, "oh, I love Judge Williams. He always hugs me and kisses me whenever we meet. None of the other judges do that." When I recalled this story not too long ago at the judge's memorial service, I pointed out that I could not imagine a more courageous act. Ms. Weisfeld was not shy about voicing her disapproval in her newspaper about whatever or whoever was bothering her. Judge Williams back in the day thought it was funny that she was such a big fan of his, and confessed that he had read some of what she wrote, or at least the headlines. He told me that once when he had ruled against Washington County on some issue or another, the resulting headline in Ms. Weisfeld's paper was "County Attorney Screws Up Again." She was very nice to us, the one time we spoke at length, and no one who knew her at all will ever forget her.

Senator targets the Conference

In this article, Senator Coburn from Oklahoma complains about the Fourth Circuit Judicial Conference being held at the Greenbrier. Obviously, I disagree with his view of the value of the event, and hope to attend it many more times.

Summer of fun

The youngest in our house declared that this would be her summer of fun.

For me, the most fun this summer outside of time with the family was time with my lawyer friends - in their homes, and at the Fourth Circuit Judicial Conference, events for the new judges, even events for Jill's library. The last of the swearings-in is today, when Eric Thiessen is made a judge of the General District Court, with my friends Roy Jessee and Jim Hodges speaking on his behalf. Previously, there were the events for Circuit Court Judge Deanis Simmons and Juvenile Court Judge Kurt Pomrenke, my long-time friend and co-worker and occasional co-conspirator in fun, as we saw the Virginia Cavaliers lose a lot of ball games together (and win some, too). I never had more fun at the Judicial Conference than I did this year, never saw more judges singing and dancing even in the absence of the late Chief Justice Rehnquist. I used to feel like an impostor there, with so many fancy people, and yet there are so many people there whom I am delighted to see. It is an occasion for the retelling of the very kind of stories that I most enjoy collecting.

These gatherings, combined with the 30th Circuit bench-bar event, the VSB event in Abingdon, and the memorial for Judge Williams, make it seem like in the past few months I have reconnected with almost all of the lawyers, and especially the Southwest Virginia lawyers, whom I have known these many years.

Miss K seems to have had the summer she wanted, including most recently her week at camp on the New River.

Blast from the past

The new quarterback recruit who just signed to play at Virginia Tech had Jim Cantafio as his high school coach - as did I. Coach Cantafio has won more than 250 games since he started at the old high school in 1980.

New takes on the judicial conference

This year, I tried to explain to Erin that we were going to an event that would include the Chief Justice of the United States Supreme Court. To make sense of it to her, I said that "he is like the Lebron James of judges." She got my meaning.

Jill asked me what was the hashtag on Twitter for the event. I didn't know. I don't think anyone was tweeting from the Greenbrier, although the AP article on the Chief Justice's remarks showed up while we were having lunch a few minutes after the conference had ended.

Keeping score

In this week's opinions, the Supreme Court

1. Somewhat cracked down on affirmative action, in the Fisher case (7-1 vote),

2. Somewhat made it more difficult to employee plaintiffs to win in Title VII cases, in the Nassar case (5-4), and the Vance case (5-4),

3. Somewhat made it more difficult to sue drug manufacturers for bad products, in the Bartlett case (5-4),

4. Somewhat struck down the Voting Rights Act in the Shelby County case (5-4),

5. Somewhat cracked down on impact fees, in the Koontz case (5-4),

6. Somewhat cracked down on the Indian Child Welfare Act in the Baby Girl case (5-4),

7. Cracked down on DOMA, in the Windsor case (5-4),

8. Punted on Proposition 8 in the California case (5-4),

9. Overturned an extortion conviction in the Sekhar case (9-0).

What do all these cases have in common? I have no idea, other than that Justice Kennedy wins again. Probably the right won more than it lost - the impact fee case, the voting rights case, the products liability case, the Title VII cases, and the affirmative action cases sound like big victories for the right. Perhaps the experts will explain it all this weekend at the Fourth Circuit Judicial Conference, which you can watch live on C-SPAN on Saturday morning. The conference is at the Greenbrier as in 2011.

The Virginia Constitution of 1902 and the Voting Rights Act

The Virginia Bar Association is a product of the Progressive era. Forward-thinking lawyers joined together to promote the highest ideals of the profession. Many of the same lawyers who were leaders in the Bar Association were also delegates to the Virginia Constitutional Convention of 1901.

The Virginia Constitution of 1902 contained some remarkably progressive elements - for Virginia. It established the State Corporation Commission as an independent rate-setting entity for the railroads and public utilities. It incorporated an express Double Jeopardy clause.

It also sought to take the right to vote away from black Virginians. In this effort, the new constitution was a success. Black voting was suppressed for decades. At the distance of barely more than 100 years, it is troubling to think that the best and the brightest of Virginia's lawyers worked so carefully and intentionally to prevent black voters from voting.

The Twenty-Fourth Amendment was adopted in 1964, prohibiting the poll tax in federal elections. The Supreme Court did not rule until 1966, in a Virginia case, that the poll tax was illegal as a violation of Equal Protection in state elections. Congress passed the Voting Rights Act of 1965.

Yesterday, the Supreme Court held in the Shelby County case that the premises of the Voting Rights Act could no longer support the imposition on certain states of the burden of pre-approval for all voting law changes. The commentary I have read is full of the view that racism remains a fact of life for millions of Americans.

There has been a reversal, however, between 1901 and the attitudes of the legal elite. I have never met a lawyer who would say in private the outrageous things that Virginia's best lawyers were saying proudly on the record in 1901. Black voter turnout exceeded white voter turnout for the first time in 2012. Whether the Chief Justice got it right or wrong in his conclusions, I agree that a fundamental change has taken place since 1902, that is not going to change back. There will not ever be another Virginia constitutional convention for the express purpose of keeping racial minorities from voting.