Tuesday, January 16, 2007

Odds and ends

The Norfolk paper reports here on Senator Stolle's efforts to get some new judgeships for Chesapeake and Virginia Beach.

The Roanoke paper reports here on a Virginia Supreme Court ruling from last Friday, reinstating a $200,000 jury verdict involving the death of a toddler in a swimming pool.

The Daily Progress reports here on the case of the parents who were nabbed for giving alcohol to minors when the police officer figured out what was going on when he came up their driveway.

The Fredericksburg paper reports here on bar endorsements of two juvenile court judges for circuit court judgeships.

The Culpeper paper reports here on the town's settlement with a contractor, who "will never work here again," as if they'd want to.

This page
from WDBJ says that court documents show the former priest accused of embezzling was married and living a double life. (Subsequent articles say the former priest denies that he was married.)

This Daily Progress article profiles the Williams Mullen lawyer who is the honorary Canadian consul in Richmond.

On arguing the Blacksburg sewer case

The Roanoke Times had this piece on the thrill for the lawyers who argued the Blacksburg sewer case before the Virginia Supreme Court last week.

It says in part:

"Win or lose, arguing a case before the state Supreme Court is both exhilarating and nerve-racking for attorneys on both sides.

After a hearing Thursday in Richmond that could reignite debate over public utilities in Blacksburg and set a new precedent for enforcing Virginia annexation agreements, Blacksburg Town Attorney Larry Spencer and his opposing counsel Darrel Tillar Mason were slightly nonplussed.

. . .

For Mason, it was stressful to condense folders full of legal wrangling into a 15-minute oral argument in front of seven sharp legal minds who sometimes pepper attorneys with adversarial questions.

"If you're not nervous, something is wrong with you," Mason said minutes after the hearing.

Attorneys arguing other cases before the court Thursday had to apologize to the justices for various gaffes.

One lawyer presented arguments to the court that he hadn't included in his brief. Justices chastised him for exerting an unfair advantage over his opposing counsel.

Another attorney was so flustered after an eight-block sprint to get to the court on time that he had trouble answering questions from the bench. Chief Justice Leroy Hassell showed mercy, giving the attorney 60 extra seconds to address them.

Still, arguing before the state Supreme Court is a challenge many lawyers relish."

Even in Virginia?

The Virginia Injury Lawyer Blog has this instructive post titled, YES, EVEN IN VIRGINIA -- GOOD SETTLEMENTS OF PERSONAL-INJURY CASES -- A PROVOCATIVE PRIMER.

Federalization of the practice of law?

The ABA Journal for January 2007 had a number of items with what struck me as a recurring theme:

In the letters section, a woman wrote: "I urge those responsible for state bar admission rules to consider amending them to support military spouses attempting to sustain legal careers. Rules should allow spouses of active-duty military members who meet the character and fitness requirements to waive in without sitting for a bar examination . . . ." Of course, the rights of veterans and their families are the subjects of considerable federal legislation, including USERRA.

An article addressed the lawsuit filed by a New York-licensed lawyer who lives in Florida, and wants to provide legal advice on New York law matters from a Florida office without obtaining a Florida license. The article says in part, "some experts wonder if someday [the New York lawyer's] approach may become acceptable, particularly if the issue continues to come under scrutiny from the federal courts," and quotes one fellow as saying, "We could have the federalization of the regulation of lawyers," and cites a Third Circuit case where the appeals court ruled that federal law preempted Pennsylvania law with respect to whether a lawyer admitted to practice in federal court but not in state court could have an office in Pennsylvania. The Court is cited as holding that "Where federal law authorizes an agent to practice before a federal tribunal, the federal law pre-empts a state's licensing requirements to the extent those requirements hinder or obstruct the goals of federal law."

An article about the changes to the Bankruptcy Code discussed the statutory issue of whether Congress intended for attorneys to be considered "debt relief agencies" under 2005 amendments to the Code.

Finally, an article begins with reference to the "pervasive role that administrative hearings play in sorting out disputes arising under federal law."

There are many lawyers who never go to federal court, and some of them send work to those of us who do. The differences between state and federal practice have arguably widened since I became a lawyer, particularly as the federal court practice has changed more rapidly in response to modern technology. Will there someday become separate federal bars, exempt from some state practice rules, somewhat like patent practice and tax practice? It wouldn't surprise me.

Fourth Circuit Blog rediscovered

The public defenders in several circuit courts have excellent blogs dealing with the criminal justice issues from the several circuits.

I would include among these the Fourth Circuit Blog, which I have added (or re-added) to the blog roll.

Sunday, January 14, 2007

Another one bites the dust

One of the few points on which I have agreed with Legal Fiction is that it is a shame that it is closing down.

Who are those big law firms representing Guantanamo detainees?

This JURIST post lists Virginia-based Hunton & Williams among the law firms named by a Defense Department official who said in an interview that their clients should make them quit doing it or find other lawyers.

I don't like it when the ABA takes a stand on political matters, but when the big firms get involved in "political" pro bono, they are acting in accordance with their ethical obligations, to their credit, even when they are on the "wrong" side and even when their arguments are losers.

This certainly adds some excitement to our next European vacation

The last stop on our next trip to Europe is at Athens, where this weekend somebody shot a grenade into the U.S. Embassy.

On judgeships

Jeff Schapiro writes this week that Chad Dotson might get a general district court judgeship in the Lee-Scott-Wise-Norton district.

Mr. Schapiro's column implies that Chad's main qualification is that as a Republican politico in the far Southwest he is connected with Delegate Kilgore and Senator Wampler, who decide such things as who becomes a state court judge in this part of the state.

Indeed, most judges are former party regulars, going back to the origins of the United States. The concept of judicial review originated in the case of one such appointee, William Marbury, one of the midnight judges named by the Adams administration as they were on their way out, who filed a petition for writ of mandamus against the new Secretary of State, James Madison, to get him to turn over his commission to some judicial post in the District of Columbia. The new Jefferson administration had no intention of letting Marbury in. The Chief Justice John Marshall, himself a Federalist appointee, famously enhanced the power of the Court while declaring it was powerless to grant Marbury's petition, concluding that the act of Congress authorizing such writs was itself unconstitutional.

The problem of judicial selection is not figuring out how to avoid the selection of lawyers who were politically-active, because many of them are the best and the brightest, but rather how to improve the chances of picking the best and the brightest, and not merely those who were politically-active.

Chad Dotson, separate and apart from his blogging, has a better resume than many - he is a well-educated (U.Va. and Georgetown Law), well-spoken, amply-experienced, and good-humored fellow. I don't know that he is in line for a judgeship, but if he is, that's a good outcome, even if the process by which Virginia judges are selected is not always the best it could be.

I have no doubt that we do better in Virginia, I think, than in surrounding states where the judges are elected, which leads to some degree of demagoguery of complex issues (one fellow in Tennessee declared in his campaign ads that he was "The Truth Machine") plus the ever-present issue of money - how can judges ignore their knowledge of who did and did not contribute to their campaign coffers.

Something that strikes me as odd is the proposal this year from Delegate Kilgore that would allow an exception to the residency requirement for circuit court judges "to any sitting judge who resides within the Commonwealth of Virginia upon property that is located contiguous to his respective circuit." Is there some judge out there who doesn't live in his or her circuit? How strange. One mostly-sensible limitation on whom the legislators can select for local judgeships is that they have only the local lawyers to pick from.

On crossing the street in Virginia

In Maybury v. Morton, Magistrate Judge Urbanski ruled regarding the applicability of Va. Code 46.2-924 to the accident between the plaintiff pedestrian and defendant driver, that subsection B and not subsection A was controlling, as to which party had the right of way.

Subsection A provides:

A. The driver of any vehicle on a highway shall yield the right-of-way to any pedestrian crossing such highway:

1. At any clearly marked crosswalk, whether at mid-block or at the end of any block;

2. At any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block;

3. At any intersection when the driver is approaching on a highway or street where the legal maximum speed does not exceed 35 miles per hour.

Subsection B provides, in relevant part:

B. Notwithstanding the provisions of subsection A of this section, at intersections or crosswalks where the movement of traffic is being regulated by law-enforcement officers or traffic control devices, the driver shall yield according to the direction of the law-enforcement officer or device.

Under the facts of the case, the judge ruled that the crosswalk was controlled by the "traffic control device" even though there was some slight distance between the light and the walk in downtown Wytheville.