Wednesday, October 05, 2016

The outer limits on visitation

In Petersen v. Petersen, the father brought out the big guns, hiring William Hurd to represent him before the Court of Appeals. The most interesting issue in the case was whether the Circuit Court, on appeal from the Juvenile Court, violated the father's rights by prohibiting him from contacting his young daughter or participating in or being told about her school activities and denying him any visitation. The father's relationship with the child had soured after she learned that he planned to have the mother killed. The Juvenile Court, over a period of time, developed a plan for gradually increased visitation.

While the case was before the Circuit Court, the mother and the GAL moved to suspend visitation. The Circuit Court granted the motion, while observing that the father could seek modification of its order in the future, if there were changed circumstances.

The Court of Appeals, in an opinion for the panel of Judges Beales and Russell and Senior Judge Frank, affirmed the Circuit Court's order, notwithstanding the requirement in the Code that the trial court "shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children," and the constitutional rights of the father.

On brevity

I read with interest the latest essay by Steve Emmert on his website, in which he discusses how the new federal rule will reduce the length of briefs allowed without leave of court, and also discusses the recommendation from Bryan Garner that a lawyer should "strive to halve your page limits." I also studied an article titled "The 5 Edits I Make Most Frequently," from ATL, written by the same fellow who wrote the Curmudgeon's Guide some years ago, one of my favorites, and this post by Jay O'Keefe on the right number of assignments of error.

These ideas are distilled in a joke that Wade Massie told me long ago, where the lawyer appears before the Court and apologizes, saying "I didn't have time to write a shorter brief."

Recently, in reply to my opposition to a petition for appeal, the other side cited my use of only "1/3 of [the] available word count," as if the use of fewer words equals less merit. The shortest of arguments is often the best. "Brevity is enjoined," Rule 1:4 says, "as the outstanding characteristic of good pleading."

Monday, October 03, 2016

Game Day in Farmville

The Richmond paper has this report on the hoopla at Longwood University surrounding the upcoming vice-presidential debate. I've been to Farmville many times, it is about like Galax (they both have a Macados).

On the adverse spousal testimony privilege

I filed a motion to quash not too long ago in a federal criminal case, where the Government was seeking to have the defendant's husband testify against her. In federal law cases, testimonial privileges are determinined under the federal common law. In Trammel v. United States, the Supreme Court held that the adverse spousal testimony privilege would continue to be recognized, but limited the privilege to be asserted by the witness and not the defendant.

In criminal cases arising under Virginia law, the corresponding privilege is found in Va. Code 19.2-271.2, which begins: "In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled to be called as a witness against the other."

On Chief Judge Gregory

The Associated Press has this article about the Commonwealth's own Roger Gregory, the first African-American chief judge of the Untied States Court of Appeals for the Fourth Circuit. Judge Gregory holds the distinction also of having been nominated by both President Clinton and President Bush.