Saturday, October 21, 2006

What he said

Steve Dillard: "No appellate court should ever require the lawyers who practice before it to double space footnotes and block quotes in a brief."

Steve might have agreed with me when I freaked out on a Richmond brief printer for changing the font size of a brief without telling me. (No one else did.)

Lessig on net neutrality

Here L. Lessig debunks someone else's debunking of his latest article on net neutrality.

When does statute of limitations run on defamatory website posting?

This Jurist post cites a decision by a federal judge in Texas to the effect that the one-year Texas state for defamation claims begins to run when the defamatory material is posted, regardless of how long it stays posted.

So, maybe we're in the clear for anyone we've defamed before October 21, 2005, as the Virginia statute is also one year.

Just in time for Halloween - Judge Kelsey's article should scare every Virginia lawyer

In the latest VSB magazine appears an article titled Procedural Defaults in Virginia Trial Courts, by Judge Kelsey of the Court of Appeals.

Some of the highlights:

You can lose your right to claim the trial court should not have sustained the defendant's demurrer to your first pleading. Judge Kelsey explains: "The Virginia Supreme Court, however, has held that 'when a circuit court sustains a demurrer to an amended motion for judgment which does not incorporate or refer to any of the allegations that were set forth in a prior motion for judgment, we will consider only the allegations contained in the amended pleading to which the demurrer was sustained.'"

Res judicata can apply to claims never stated in a pleading. Judge Kelsey explains: "Another variant of procedural default, res judicata, should also be considered. In 2003, a divided Virginia Supreme Court held the narrow 'same evidence test' exclusively governed claim preclusion principles under Virginia law. That holding has been superseded by the recent promulgation of Rule 1:6, which broadened res judicata to cover, with some exceptions, all unpled claims arising out of the same 'conduct, transaction, or occurrence.' Such unpled claims will be 'extinguished regardless of whether the claimant is prepared in the second action to present evidence or theories of the case not presented in the first action, or to seek remedies or forms of relief that were available but not demanded in the first action.'" Now, I had not understood Rule 1:6 to supersede anything, but rather to express the ancient Virginia proscription against splitting the cause of action.

A defendant is in default if he submits only a demurrer and the demurrer does not cover the whole complaint. Judge Kelsey explains: "If the defendant files a demurrer as to some counts in a complaint, but not others, the others will be in default absent a timely responsive pleading directly addressing them." This is an area of the law made even more confusing by the recent changes to the rules. What pleadings cover the whole case?

Judge Kelsey finds some pitfalls in the language of the form scheduling order. He notes: "Rule 1:18’s pretrial scheduling order ... warns that experts 'will not ordinarily be permitted to express any non-disclosed opinions at trial . . . .' Two lesser-known deadlines ... appear in Rule 1:18’s pretrial scheduling order. This order provides that any motion in limine 'which requires argument exceeding five minutes' must be noticed for a hearing and presented to the trial court for decision before the day of trial. The order also requires that all 'dispositive motions shall be presented to the court for hearing as far in advance of the trial date as practical.'" The scheduling order is rarely used in Southwest Virginia, and its provisions mostly ignored, in my experience.

Judge Kelsey reminds us of the perils of Rule 1:1, as he says: "[T]he contemporaneous objection rule can almost never be satisfied merely by indorsing a court order 'seen and objected to.' Only if 'the ruling made by the trial court was narrow enough to make obvious the basis of appellant’s objection' will the otherwise inadequate indorsement suffice to preserve the issue on appeal."

Judge Kelsey concludes:

"I have no doubt that some procedural default principles may need to be recalibrated, either more tightly or loosely, to better balance the equities of particular forms of waiver. But whether that is true or not, this much is certain: No procedural default principle has ever produced even the slightest injustice to litigants who know the principles well enough to stay out of trouble. The benign goal of procedural default law, therefore, is to render itself harmless by being so well known."

Another point of advice - read everything Judge Kelsey writes, and listen to whatever he says.

Interesting unpublished opinion affirming denial of preliminary injunction in West Virginia non-compete case

In McGough v. Nalco Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Michael and Motz affirmed the denial of a preliminary injunction against the former employee for violation of his non-compete agreement, where the trial court judge in balancing the hardships under the Blackwelder test found that they "approached equipoise," but the non-compete was probably unenforceable under West Virginia law.

The panel remanded the case, however, for consideration of the plaintiff's trade secret claims as the basis for injunctive relief.

This case and the Gastonia case were the only two cases decided by the Fourth Circuit this week after oral argument, the other 65 or so cases were decided on the briefs without argument.

Wish I'd been there


Richmond Times-Dispatch

Oct 21, 2006

Grant Collins tossed two touchdown passes, and Andrew Brooks (my nephew) blocked a punt (he says he blocked two punts) resulting in one score and caught a pass for another as James River stopped Midlothian in the Dominion District (battle for the Coal Bowl and Chesterfield bragging rights).

Collins (12 of 18, 169 yards) chalked up TD passes of 27 yards to Larente Hamlin and 6 yards to Brooks for the Rapids (1-3, 1-6 - OK, so it was their first win of the season). His quarterback counterpart, Eric Waagner (8 of 19, 109 yards) passed for one TD -- 27 yards to Kevin Solomon -- and ran for another.

Markese Stovall began the scoring with a 1-yard run for James River in the first quarter. Thomas Metcalf recovered Brooks' block in the end zone for a third-quarter touchdown.

James River 6 7 7 6 -- 26
Midlothian 0 7 7 0 -- 14

JR -- Stovall 1 run (kick failed)

M -- Solomon 27 pass from Waagner (Moore kick)

JR -- Hamlin 27 pass from Collins (Brecht kick)

M -- Waagner 1 run (Moore kick)

JR -- Metcalf block punt recovered in end zone (Brecht kick)

JR -- Brooks 6 pass from Collins (kick failed)

Thursday, October 19, 2006

The specialist

In Chadwell v. Lee County School Board, before granting partial summary judgment to the individuals based on legislative immunity, Chief Judge Jones included this footnote:

"Political discrimination cases from Lee County are not novel, regardless of the particular political party in power. See Cooper v. Lee County Bd. of Supervisors, 188 F.3d 501 (4th Cir. 1999); McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987); Ramey v. Harber, 589 F.2d 753 (4th Cir. 1978); Gilliam v. Lee County Sch. Bd., No. 2:01CV00083, 2002 WL 31906274 (W.D. Va. Dec. 30, 2002)."

Besides his role in the Chadwell case, Judge Jones was the judge in Cooper and Gilliam and a lawyer in McConnell and Harber.

(OK, this is interesting to me largely because I was a lawyer in Chadwell, which goes on, and Cooper and Gilliam.)

That Virginia Court of Appeals split on funky Crawford application

In Gilman v. Com., on rehearing en banc, the Virginia Court of Appeals split 5-5 on whether to affirm or reverse the conviction of a woman found guilty of criminal contempt of court based on the affidavit of a juvenile court judge.

In the panel decision, Judge Fitzpatrick dissented, on the issue of whether the affidavit was used "testimonial hearsay" used in violation of the defendant's rights under the Sixth Amendment as construed by the Supreme Court in the famous Crawford decision.

What makes it funky to me is that I'm not sure that the juvenile judge could testify. The Code says: "No judge shall be competent to testify in any criminal or civil proceeding as to any matter which came before him in the course of his official duties." Va. Code 19.2-271. If the Commonwealth can't use an affidavit, and can't call the judge as a witness, how can it prove this kind of criminal contempt case? I wonder.

Whoever heard of 28 U.S.C. 2105?

In Hyman v. City of Gastonia, the Fourth Circuit in an opinion by Judge Karen Williams, joined by Judge Gregory and District Judge Floyd, held that it was without jurisdiction for the appeal pursuant to 28 U.S.C. 2105, which says simply: "There shall be no reversal in the Supreme Court or a court of appeals for error in ruling upon matters in abatement which do not involve jurisdiction."

I'm not at all sure that I understand what are "matters in abatement."

In Virginia civil procedure, we know that "pleas in abatement" have been abolished, and that statutes deal with the question of, for example, when and whether death, change of name, or marriage shall result in abatement of an action.

Of the Gastonia decision, Howard Bashman notes:

"Recognizing that "Section 2105 [of Title 28, U.S. Code] may be '[o]ne of the most commonly ignored provisions of the Judicial Code,'" today a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a decision refusing to ignore the statutory provision. . . .

Today's ruling arguably creates a circuit split and also criticizes other federal appellate courts for having construed the statutory provision in a manner that could cause federal appellate courts to give advisory opinions in violation of Article III's case or controversy requirement."

Chief Judge Jones upholds constitutionality of prisoner exclusion from FOIA

In Giarratano v. Johnson, Chief Judge Jones of the W.D. Va. upheld the provision of Virginia's Freedom of Information Act that excludes prisoners from requesting public records.

Of course, all the prisoner has to do is find a friend on the outside.

Wednesday, October 18, 2006

Nobody told me this about Jim Leyland

It says here (and here) that the manager who led the Detroit Tigers to the World Series this year made his managerial debut with the Bristol Tigers of the Appalachian League in 1971 at the age of 26 for a salary of $6,000.

Hanging out in district court

I spent yesterday from about 2:00 to about 7:00 in Russell County General District Court. As my appearances in district court are rare, I always study the scene. If there are contested matters, the day goes into overtime.

In my case, there were too many witnesses, and they had been hanging out together all afternoon, so we kept them all in the courtroom so counsel and the Court could inquire of any of them at any time as necessary. At one point, the question was "how many of you would say the same thing" and we took the testimony of the assembled masses by a show of hands.

The judge was the Honorable Jack S. Hurley, Jr., with whom I had no prior acquaintance before the several trips to Lebanon for this case. New judges are always interesting. Particularly since he ruled mostly in favor of my mostly-deserving client, he rates as a gentleman and a scholar in my view.

Monday, October 16, 2006

Virginia appellate gurus in Grundy

From Steve Emmert's website:

"The third in a series of appellate practice symposia will be held Friday, October 27 at the Appalachian School of Law in Grundy, Virginia. Greg Lucyk, the Chief Staff Attorney for the Supreme Court, and I will present the program.

As with previous symposia, the program will be limited to about 25 participants. We will discuss two topics in detail; the first of these is entitled, "Handling Your First Appeal (or Your First Appeal in a While)." The second phase will address appellate briefwriting. I expect the program to be approved for 3.5 hours of CLE credit.

Admission is free to Virginia State Bar members. If you're interested in a seat at the table, please call (757) 499-8971 and ask for Cathryn Chitty."

I would be there if I could be.

On the head man of the new W.D. Va. public defender's office

Here the Roanoke Times profiles Larry Shelton, the boss of the new federal public defender's office for the W.D. Va.

Sunday, October 15, 2006

How Virginia can beat the Hokies and the Hurricanes

There is some cause for hope that Miami and Virginia Tech will run out of scholarship players by the end of November.