On the passing of Judge Crigler

 I see here that former Magistrate Judge Waugh Crigler has passed away.

Judge Crigler was a ball of fire as a teacher, a mediator, and a judge, and it was a great pleasure to have heard him speak and gotten to known him even a little bit. And, he was a Tennessee Vol.

On the passing of Howard McElroy

In January, my good friend Howard McElroy passed away.

On Facebook, I wrote this:

Howard McElroy was like a profane guardian angel who watched over my career and the rest of my life for over 30 years. I felt his support all that time even though I was way down on the long list of people for whom he did the same thing.

 

Howard decided from day one that I was a bit of a social misfit and that he would help me. He knew, as our mutual friend John Epps once told him, that "Steve Minor is an acquired taste," and so he ran interference, making connections and introductions. Among other things he was the only person outside of family who was well-liked by both my first wife and my second wife, because he made it his business to get to know them and be kind to them and make them laugh. When Jill would come home and say she had seen Howard at the library that day, it was like a bell ringing in "It's a Wonderful Life." His co-conspirator in this and all things was Heidi.

 

Howard always greeted me as "Steven!" whether it was in person or more often on the telephone, and usually it was me calling him for help. He was supremely organized and had his collected research in drawers that were close by. When I was describing to him some legal issue I would hear the handles on those drawers rattle when he was putting his hands on the answer to my question before I even finished asking it.

 

When Howard was retiring, he asked if I would take over a couple of his files. I was thrilled that he trusted me to do this. It felt great. When I started babbling about what to do in the cases, he laughed and said "that's why I want to retire, so I don't have to worry about [those details]," or words to that effect. Of course, he had those cases already won, the other side just didn't know it yet.

 

Howard - gentleman, storyteller, bon vivant, legal scholar, teacher, role model, and friend - thanks so much, for everything.

When does a finger and thumb gun count as a firearm during a robbery

Today in Com. v. Barney, the majority of the Supreme Court of Virginia upheld the conviction of the defendant for use of a firearm in a bank robbery, when the Commonwealth's evidence showed only that she threatened to kill the bank teller and kept her hand in her pocket. Justice Mann, joined by the Chief Justice and Senior Justice Mims, concluded that the evidence was not enough.

When are fees incurred

In today's opinion about fees, both the majority and the dissent seemed to be looking the wrong way in wrestling with the argument about when are fees are "incurred" for purposes of Va. Code 8.01-271.1.  The majority relies in part on the fact that "[h]ere, the lawyers were not working for free." The dissent concludes that fees not paid for are not fee incurred.

But many times there are litigants who would not have a lawyer unless the lawyer would take the case for free, or with the expectation of statutory fees.

In one of my cases, the appellant argued that the appellee was not entitled to fees because the appellee was being represented pro bono. The panel of the Court of Appeals cited the Supreme Court's decision in Blanchard v. Bergeron, 489 U.S. 87 (1989), in concluding that "where there are lawyers or organizations that will take a plaintiff's case without compensation, that fact does not bar the award of a reasonable fee."

Similarly, a panel of the Court of Appeals held in Bahta v. Mohammed that legal aid attorneys were entitled to fees under Va. Code 16.1-278.19.

Fee-shifting statutes put the burden of litigation costs on the bad actors who have misused the courts, which is most important when the victim is unable to pay counsel. Sanctions deter litigation misconduct. Today's decision could be a blow against poor women in particular if it means that they cannot recover fees under other statutes such as Va. Code 16.1-278.19 unless they are actually paying their attorneys at market rates.

In almost all fee litigation, the Court determines a reasonable fee, not the actual fee. Fees incurred should be interpreted to mean the reasonable fee for the attorney work that was reasonably necessary for that part of the case, whether the actual fees paid were $0 per hour or $1,000 per hour.

On the upcoming retirement of Justice Mims

I learned today from Steve Emmert by way of Paul Fletcher that Justice William Mims has announced his plans to retire from the Supreme Court of Virginia in a few months.

Justice Mims laughed out loud at my foolishness the last time I was before the Court. Years ago, we sat at the same table for a VBA banquet, and I spoke with him a little bit. My favorite story about him is one I read in Lawyers Weekly, in which he supposedly said that he stopped writing lengthy concurring opinions after someone in his family pointed out to him that there has never been an appellate jurist known as 'the Great Concurrer."

The judging tree

Earlier this week I appeared before Judge Fred Rowlett who was sworn in two years ago, joining Circuit Judge Randy Lowe, Juvenile Judge Florence Powell, Bankruptcy Judge Trish Brown, ALJ Linda Howell, Magistrate Judge Cynthia Eddy, Circuit Judge John Kilgore, and Supreme Court Justice Cynthia Kinser, among those who clerked for him and became judges themselves. The last of our law clerk reunions with him was eleven years ago this week, which was the only time Jill got to meet him.

On the passing of Brenda Dillard

Years ago my friend Howard McElroy got me on the Board of The Virginia Bar Association.

I went to all the meetings from 2006-2010, and stopped by many of them in the years 2010-2016, and every one of those I hung out for at least a bit with Brenda Dillard, who organized the meetings, but she always made time for me.

In the last few years I kept up with her by message and text, and a couple of years ago she told me about her illness, and I was afraid every time that I heard from her would be the last time, and so if nothing else she knew how much I have enjoyed being her friend, because I told her.

Rest in peace, Brenda.

Appellate arguments that are not waived by the appeal waiver in a plea agreement

In U.S. v. Romero, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Agee, and Diaz ruled that the appellant's three arguments raised on appeal were each of them within exceptions to the general rule that appeal waivers are enforceable, but the arguments were not established by the record or premature.