Saturday, March 05, 2005

Contingent fee dispute before the Fourth Circuit

Tax & Biz has this post explaining the Fourth Circuit's analysis of the contingent fee dispute in the case of Sanders v. Mueller, worth reading even though it is a Maryland law case.

Another Virginia law blog

Here is Shane Jimison's Virginia Law Blog. Check it out.

The perils of section 1983 litigation

Section 1983 litigation is the most fun area of the law there is. You work with the Constitution. You are in federal court (whenever possible). There are many issues to litigate, and motion practice is likely to carry the day. There's a fair amount to learn just to get started, and in some respects the case law changes quickly. Some of the stuff in the brief you wrote last year is timeless, some of it is worthless. This article describes a case where the defense lawyers apparently lost their way in unraveling section 1983 concepts - including Leatherman. (I used to argue for heightened pleading in every case, then in every case as to the individuals only, then . . . .) In its opinion, the Court notes "a puzzling failure on the part of the movants to review, much less appreciate, the governing judicial opinions and statutory provisions applicable to the claims presented in the Complaint."

I've been there, not in quite the same way, but you have to rethink what you are saying in every case.

Private employer liable for conspiracy with state actor to retaliate for protected speech

In Dossett v. First State Bank, the facts were these: the plaintiff worked for defendant bank. She went and told off the School Board on some issue at a public meeting. School officials declared their unwillingness to deal with her in their business with the bank, which was substantial. The bank fired the plaintiff. The plaintiff sued the bank under section 1983. The case went to trial and the jury awarded more than $1.5 million. The trial court ordered a new trial. The second jury found for the Bank.

One of the issues on appeal was what did the plaintiff have to prove to show that the school officials who dealt with the bank were acting under color of state law. The trial court made up its own instruction. On appeal, the plaintiff argued, in effect, that the trial court should have given the instruction tendered by the bank. The Eighth Circuit agreed, that the trial court's definition was overly restrictive.

The bank argued the error was harmless, because it couldn't be liable anyhow, as a private actor. The appeals court disagreed, stating: "We see no reason why a private actor may not be liable under § 1983 for conspiring with state officials to violate a private citizen’s right to freedom of speech under the First Amendment." The Court rejected the bank's argument that it was stuck between a rock and a hard place, get sued by the plaintiff or lose to School Board's business - the Court explained that the plaintiff's claim was that the bank joined in the unlawful objective of retaliating against the plaintiff on account of her protected speech. So, the critical evidence was that the bank was on board with the idea that the plaintiff's expression was of no account.

On the issue of punitive damages, the Court also explained, "absent willful participation in 'joint action' with state officials to retaliate for the exercise of constitutional rights, the Constitution does not prevent the Bank, as a private actor, from terminating an employee’s at-will employment if her public speech would damage the financial interests of the Bank." The Court concluded that the bank might have stepped over the line so far as to be liable under section 1983, but not far enough to support punitive damages.

The case is the subject of this post called "Small Town Setting, Big Time Legal Issues," which includes many related links. You'd think a case like this has Southwest Virginia written all over it, one of these days, somebody who reads this blog is going to call me up and ask, what about that bank case, I've got a woman here who just got fired after her husband chewed out the Zoning Administrator, can I give you her number . . . .

Balkin calls it on the Ten Commandments case

Professor Balkin offers this prediction on the Supreme Court's Ten Commandments case: "Justice O'Connor upholds five, strikes down five."

The country lawyer and ABA TECHSHOW

Via Denise, I see that the upcoming ABA TECHSHOW has its own blog, including this post about why a country lawyer would attend.

Well, I'm a country lawyer, and I might even attend but for the fact that this event has never been held within 400 miles of here, so far as I know. I generally drive to Atlanta or D.C. (ok, I drove to Chicago once, but that took two days). The country lawyer takes his wife along to the Big City whenever he can and she won't tolerate the expense or anxiety of plane travel.

Washington Post takes on Judge Boyle

On Thursday, the Washington Post published Judges May Be Vetted for Mainstream Values, which discussed among others the nomination of District Judge Terrence Boyle to the Fourth Circuit.

The article notes that Judge Boyle has been "trying to win promotion" to the Fourth Circuit for 14 years. The article says that the Fourth Circuit "is considered perhaps the nation's most conservative appellate court." The article cites critics who claim that "the appeals courts have overturned more than 150 of his decisions." The article says the Senate Democrats are deciding whether to add Judge Boyle to the list of their targeted appeals court nominees, which they call "outside the political mainstream" and therefore plan to filibuster.

In other circumstances, you'd think would be evidence of liberality, if the Fourth Circuit is so conservative, and so often disagrees with Judge Boyle.

Friday, March 04, 2005

Senator John Edwards drops his statewide campaign

After a few weeks of thumbing his nose at conservative Virginia during the General Assembly session, Senator Edwards has now chucked his candidacy for the Democratic nomination for Attorney General, according to this report ("Roanoke senator drops statewide nomination bid," 3/4/05) in the Roanoke paper.

More on how odd it is there has been no ruling yet in the Muhammad case

In this article ("No ruling on sniper's execution," 3/4/05), the Richmond paper notes how it is a "a highly unusual development" that the Virginia Supreme Court went through a second session without an opinion in the sniper Muhammad case.

No joy on appeal for Sassy Cheese lady

The Daily Press reports here ("Sassy cheese conviction upheld," 3/4/05) that the Virginia Supreme Court affirmed the criminal conviction of the woman who refused to allow state employees to inspect the facilities of her cheese-making business.

On the passing of a Virginia lawyer who specialized in murder cases

The Norfolk paper has this account of life and times of Richard Brydges, who practiced in Virginia Beach for 50 years.

Thursday, March 03, 2005

Jaded JDs

Jaded JD is back with, among other things, this post about jaded young lawyers.

How judges cope with threats

The Christian Science Monitor has this article titled How judges cope with everyday threats on the job.

The magnitude of this problem struck me a few months back when one of the local judges who is about my age told me a story that freaks me out completely, and so of course I insisted that it be retold the next time after that when we were again in a tale-telling mode.

When I was a law clerk, it was about the time of the letter bomb that killed an appeals court judge in the 11th Circuit (as I recall). So, we got a memo from the Administrative Office of the United States Courts, and it read like a script from the Road Runner cartoon - don't open a mysterious package if it has exposed wires or is ticking or says Acme Bomb Company on the return address. (OK, I made that last part up.)

Soon after we got the memo, the computers showed up.

"I'm not opening it," I said. "You open it."

When the gavel strikes, you will bark like a dog

The Washington Post reports here ("Hypnosis Evidence Fought in 'Stalker' Trial," 3/3/05) on the unusual use in the Route 29 stalker case of the testimony of witnesses who have undergone hypnosis to remember what happened to them.

Two of the three Loudoun County spam convictions get the boot from trial court judge

Via CNN, the AP reports that a circuit court judge has thrown out the convictions of two of the three convictions in Virginia's first spam prosecution.

On the Loudoun County downzoning case

Leesburg2Day has this report (with reader comments) with the background on the monster zoning litigation from Loudoun County, as to which the Virginia Supreme Court ruled against the County in a case decided today, on interlocutory appeal.

Radford takes Penny Kyle, will Lady Luck declare for William & Mary job?

Now that it has been announced that the head of the Virginia Lottery will be the next president of Radford University, perhaps the leadership at the College of William & Mary will expand its search to consider a real Virginia icon.

On the future Judge McElyea

Here is the Coalfield's article on the selection of Tammy McElyea to be the next circuit court judge for the 30th Circuit.

Supreme Court case summaries - get 'em while they're hot

Here from the Virginia judiciary website and here from Steve Emmert are summaries of today's opinions from the Virginia Supreme Court. Maybe I'll get around to them myself in a little while.

Three-way split on panel for DOC employee vs. employee case

In Givens v. O'Quinn, the Court reversed in part and affirmed in part the judgment by Chief Judge Jones. The panel included Judges Luttig, Wilkins, and Gregory, and each wrote separately:

"Affirmed in part and reversed in part by unpublished per curiam opinion. Judge Luttig wrote a separate opinion concurring in the judgment. Chief Judge Wilkins wrote a separate opinion concurring in the judgment in part and dissenting in part. Judge Gregory wrote a separate opinion concurring in the judgment in part and dissenting in part."

The disagreement is over the question of whether there was action under color of state law, as would support a section 1983 claim, when two DOC employees beat up the plaintiff DOC employee.

Still no ruling in the sniper Muhammad case

This report notes how the Virginia Supreme Court did not include the Muhammad case among its opinions released today (a rare Thursday opinion day).

The first thing we do, let's boot the insurance defense lawyers

According to this report, 20 insurance defense lawyers were split off from the Virginia office of Shaw Pittman in advance of that firm's big impending merger.

Southwest Virginia lawyers for Steve Baril

I saw a copy of this letter not too long ago, with names of lawyers from Roanoke south and west who are supporting AG candidate Steve Baril.

From way out here, the names on the letter include Greg Edwards, Ronnie Montgomery, Tom Scott, Bill Bradshaw, and Joe Wolfe. In the last 24 hours, I've sent a letter, made a call, or sent an e-mail to three of those five, about something or the other.

Bristol telephone ruling

On February 25, the State Corporation Commission ruled in favor of BVU on Sprint's claim that BVU is cross-subsidizing its local telephone service.

To see the opinion, type in this case number (PUC-2002-00231) at this site.

I guess I was out of town that weekend, missed the whole thing.

Wednesday, March 02, 2005

Death can't and won't be sought for Malvo

This article from the Fredericksburg paper says that the Prince William County prosecutor has abandoned plans to try the teen sniper Malvo on additional charges in the attempt to secure the death penalty.

Another Hokie has it figured

In this column from the Virginia Tech paper, the writer explains how the candidacy of Sen. Potts as an independent will take votes away from Tim Kaine.

Big lot of confusion

In Adventis, Inc. v. Consolidated Property Holdings, Inc., a panel of the Fourth Circuit in an opinion by Judge Duncan, joined by Judge Motz, reversed Judge Turk's ruling in a trademark case, concluding that he should acted on the party's admission on the likelihood that the likelihood of confusion between the various marks involving the words "Big Lot" and "Big Lots".

Both sides made admissions during discovery on the confusion, both sides moved for summary judgment, and after Judge Turk denied the motions, both sides sought an obtained permission for interlocutory appeals. The majority ruled that since there were admissions on the issue of likelihood of confusion, Judge Turk erred by denying summary judgment based on the conclusion that there was no likelihood of confusion between the marks. THe majority remanded the case for determination of the issue of priority of use.

Judge Luttig wrote separately: "I am sufficiently unclear as to the reasons for the majority’s holding, and therefore the implications of the court’s decision, that I simply concur in the judgment reached by the court."

One contract defense I'll never get to use

Today in Tenet v. Doe, the unanimous Court affirmed the rule that secret contracts made with spies are not enforceable in court.

I'm always looking for contract defenses, but I can't figure out how to apply this one in my normal practice. ("Your Honor, my client is actually a front for the CIA . . . .")

More doubletalk from the Roanoke Times

In this editorial, the Roanoke paper applauds the Supreme Court's turnabout on teen murderers, then goes on to say: "Bush needs to base his choice not on political ideology but on a prospective justice's intellectual ability and respect for court precedent."

If respect for court precedent was the measure, the majority in the death penalty case would not have made the grade. It is the absence of justification for deviation from precedent that makes the ruling objectionable.

Three Virginia teen murderers were executed back when it was legal

The Roanoke Times has this article ("Before Supreme Court outlawed death penalty for juveniles, Virginia executed 3 in such cases," 3/1/05) by Laurence Hammack, which says that three juvenile murderers were executed in Virginia since 1998.

Tuesday, March 01, 2005

The Virginia mold case dealing with subject matter jurisdiction - and Daubert has this Legal Times article about Roche v. Lincoln Property Co., as to which the Supreme Court has granted certioriari. The issue on appeal is whether there was diversity jurisdiction between the parties. The subject matter of the case is personal injury caused by toxic mold.

The appeals court opinion was written by Judge Gregory, joined by Judge Widener and Senior Judge Beam from the Eighth Circuit. It is not that clear to me that the case is very important, because you'd think that normal business are not so ambiguously structured as the corporate defendant in this case.

To me, the most interesting aspect of the case is that in the district court, the trial court judge applied Daubert, booted the plaintiffs' evidence, and granted summary judgment. Roche v. Lincoln Property Co., 278 F. Supp. 2d 744 (E.D. Va. 2003). The application of Daubert in a mold case is in itself interesting, because there is much chicanery and not much in the way of real standards in the mold investigation business.

By appealing subject matter jurisdiction, the plaintiffs have escaped the judgment for the defendants, and may get back to Virginia state court, where Daubert (as such) does not apply. If the case is remanded, how will the state court trial judge view the preclusive (or persuasive) effect of the federal court's Daubert ruling? Some, none, or total? It is very interesting to consider - a rare chance under almost laboratory conditions to test the differences between the law of the Commonwealth and the federal evidence rule.

Award of $350,000 in fees to would-be kicker in Title IX case against Duke affirmed

In Mercer v. Duke University, the Fourth Circuit in an opinion by Judge Traxler, joined by Judges Luttig and King, affirmed the award of substantial attorneys' fees in the case of the placekicker who was discriminated against on account of being a woman, even though she only got nominal damages, as her award of punitive damages was wiped out when the Supreme Court determined that punitive damages are not available under Title IX.

Wiliam & Mary grad among the contested appeals court picks

The Washington Post notes here that William G. Myers, III, a nominee to the U.S. Court of Appeals for the Ninth Circuit, is one of the persons renominated by President Bush. The article says that he graduated from the College of William & Mary and also the law school at the University of Denver.

Supreme Court strikes down death penalty for persons under age of 18

The Norfolk paper has this AP report which says the U.S. Supreme Court has ruled 5-4 that the death penalty for juveniles is unconstitutional. The article says that the laws of Virginia and 18 other states allowing executions of persons under 18 are affected by the decision.

Baril calls for tougher sentencing guidelines

The Richmond paper reports here that AG candidate Baril wants sentencing guideline reform "because too many criminals are getting out of jail too soon."

The article concludes: "Baril said the Criminal Sentencing Commission should hold public hearings for commonwealth's attorneys and law enforcement, add jury trials to the sentencing statistics, and give the General Assembly and governor more oversight."

You didn't hear of him here first

The Richmond paper has this story characterizing Senator Puckett as "a little-known state senator from Russell County in rural Southwest Virginia."

Monday, February 28, 2005

No insult added to injury

Chief Judge Jones, having ruled for the defense in a bench trial, denied the defendants' requests for attorneys' fees in Brandon Enterprises, LLC v. U.S., concluding that the U.S. position was not that bad.

Math Olympics

From, a candidate for statewide office was asked to:

"Name three things you'll find in your briefcase,"

and replied:

"A daily schedule, two BlackBerry devices and an extra cell phone."

First, the inauguration; next, the party dollars

The Newport News paper has this article that says the City of Williamsburg, now that it will be the site of the 2006 inauguration, is trying to make sure the inaugural parties are also held in Williamsburg.

Those trailblazers

On Saturday, the Bristol paper opined: "Trailblazing lady lawyers earn praise."

I've spent a lot of time talking to people about these judgeships, as it is a favorite pastime, but the gender of any of the candidates has not been part of the discussion.

Notwithstanding all that liberal thinking, I was more intrigued by an article in today's Bristol paper about a young woman who said she has not seen much racial prejudice growing up as a person of color here in Bristol. I think perhaps she has been more fortunate than others. Also, she wasn't asked whether she had experienced sex discrimination.

Brandishing a gun by describing it in a note

In U.S. v. Groce, Judge Luttig concluded that the government met its burden of proof on the charge of brandishing a firearm in connection with a bank robbery, where there was evidence that the robber had the gun with her (even though no one saw it) and that she made its presence known by way of the note she gave the teller, which said, among other things, "I have a gun."

On Judge Merhige and privacy

The Cavalier Daily has this commentary on Judge Merhige's ruling in the Virginia sodomy case from 1975.

Turnover among Virginia school superintendents

The Norfolk paper has this interesting article ("Pressures haunt school division chiefs," 2/28/05) about the turnover in the position of school superintendent for school divisions in Virginia.

In the old days, out here in the hills, the powers that be ran the County, whichever County, and the school superintendent could do their bidding and keep his job forever. Now, that's no longer the case. I am unaware of any statistics, but I think that having elected school boards has contributed in some measure to the increased turnover among superintendents.