Monday, April 30, 2007

You can’t bargain away child support

Any number of divorcing couples has learned – usually the hard way – that you can’t use child support as a bargaining chip in trying to strike a deal on a property settlement agreement.

A couple in Roanoke is the latest to get this lesson. In Wykle v. Wykle (VLW 007-8-130), the husband and wife entered into a PSA: The dad, “in lieu of” paying child support, would pay the first and second mortgages on the house where the mom and their minor daughter, Savannah, lived until the girl turned 21.

As some point, the dad decided he didn’t like this arrangement and moved to have the PSA declared to be unenforceable. The mom argued that the dad was supporting his daughter by paying the mortgage.

But Roanoke Circuit Judge Charles N. Dorsey struck the PSA. He found that the arrangement, which called for the payment of fixed mortgage payments, deprived the court of its jurisdiction to modify or enforce child support. That violated one of the tests set out in Shoup v. Shoup, the 2001 case from the Court of Appeals on the issue.

As a result, the agreement was unenforceable. Motion granted.

U.Va. law students score a coup, get writ

Many lawyers in Virginia may never take an appeal to the Supreme Court of Virginia, let alone the U.S. Supreme Court.

But law students at the University of Virginia, working in the school’s Supreme Court Litigation Clinic, will be able to put a trip to the nation’s high court on their resumes. One of their cases, on behalf of a Louisiana inmate named Michael Watson, won a writ of certiorari from the U.S. high court, according to The Daily Progress.

The clinic filed four petitions this term, and the court chose a case that could resolve a split in the federal circuits – the issue is just what constitutes “use” of a firearm in furtherance of drug trafficking. Watson, who was convicted on drug and weapons charges, got an extra 10 years in prison for trading drugs for a gun. Prosecutors argued he was “using” the weapon.

Judges file bar complaint against Beach prosecutor

A lawyer might understand a distinction between “illegal conduct” by a judge and a lack of statutory authority for judicial action, but everybody at a Republican breakfast in Virginia Beach on Feb. 3 probably wasn’t a lawyer.

Or maybe it’s a distinction without a difference to Virginia Beach’s nine circuit judges.

The Virginian-Pilot reports that Bryant acknowledged in a news release that he mentioned to the gathering that he was keeping track of instances in which judges act without statutory authority.

But he insisted that he had not accused the judges of illegal conduct.

He said the judges have filed a complaint with the Virginia State Bar that the alleged “illegal conduct” comment violates legal ethics.

Bryant issued the press release after he learned that the newspaper intended to run a story about the controversy and said at the most recent breakfast that he has been praying for the judges since the allegations was made. “Maybe I should have started a long time ago,” he said, according to The Virginian-Pilot. He did not say in the press release what the actions without statutory authority might have been.

Friday, April 27, 2007

Sexual harassment matter of ‘public concern’

Here’s one for the public-sector employment lawyers.

Those lawyers know that public employees have First Amendment rights and can sue employers who abridge those rights.

But the First Amendment only protects employee speech on matters of “public concern.” A lot of workplace speech can involve issues peculiar to that workplace and personal to that employee. It isn’t always easy to see when an employee crosses the line.

Even a case close to the line can result in qualified immunity for the defendant, the 4th U.S. Circuit Court of Appeals ruled last week. The “speech” at issue was of public concern but the defendants were off the hook because it wasn’t clear from existing case law that it was, the court said in Campbell v. Galloway (VLW 007-2-061).

Amy Campbell contended that she was fired from the Southern Pines, N.C., police force after she wrote a 13-page memo to the chief. Some of the complaints in the memo were clearly personal and peculiar to the police department—the male cops didn’t invite her to breakfast, for example—but other allegations of sexual harassment were another matter, the court said. Campbell cited one instance in which a male officer reached down Campbell’s pants to retrieve a gun and another in which a male officer required a female DUI suspect to use the toilet with the door open, even though Campbell was available to act as escort.

The 4th Circuit said that sexual harassment complaints are not “per se” a matter of public concern. But its decision in Campbell might be the type of case law that “clearly establishes” just what type of sexual harassment allegation is a matter of public concern and make qualified immunity a more difficult plea to sustain.

Thursday, April 26, 2007

Recovering costs: Private process server fees allowed

A prevailing party can recover certain costs of litigation under Fed. R. Civ. P. 54. Under 28 U.S.C. § 1920, these costs include clerk and marshal fees, court reporter fees, printing and witness fees and copy fees.

Mollie Kennedy lost her products liability suit arising from her husband’s death in a coal mining accident in which he was pinned against a coal rib by the continuous miner he had been operating. U.S. District Judge James Jones, Chief Judge of the Western District, granted summary judgment for the defendants Joy Technologies and Matric Ltd.

In a decision yesterday in Kennedy v. Joy Technologies Inc. (VLW 007-3-152), Jones ruled on Matric’s petition for costs.

In its request for costs for serving summons and subpoenas, Matric asked for extra fees that stemmed from using private process servers, including rush fees and same-day service fees. The widow objected, arguing that § 1920 only covered service fees paid to U.S. marshals.

Jones said that the 4th Circuit hasn’t ruled on private process server fees, and judges in the Western District have been split.

Noting a shift from the marshals’ service to private process servers, Jones cast his lot with the “majority of the courts of appeals that have addressed this issued,” and said the defendant could collect the extra amount.

But Jones drew the line at rush-service and same-day service fees. The ruling still meant an extra $296 for the defendant.

Wednesday, April 25, 2007

Wiccans win round on military tombstones

The Washington Post reports that the Bush administration has given up its efforts to block Wiccans from putting their religious symbol, a pentacle (a five-pointed star in a circle), on the tombstones of soldiers who are buried in a military graveyards, including Arlington National Cemetery. Wicca, apparently one of the nation’s fastest growing faiths, is a “blend of witchcraft and nature worship,” the Post notes.

It took a lawsuit to get this result, though – one that will cost taxpayers $225,000. The government agreed to pay that much in attorney’s fees to settle; the VA also will approve immediately the 10 pending applications seeking a pentacle.

The Wiccans argued that there are over 30 other religious emblems one can have placed on a military tombstone. If you’re wondering what they are, here is the list. Many of the symbols represent variations of Christianity, although there are several Muslim symbols, the Star of David, a Buddhist wheel and an atom for atheists.

The only reference on the VA Web site to the Wiccan controversy is a note at the link to the list of permissible symbols stating, “A new emblem of belief has been added to the list.”

Tuesday, April 24, 2007

4th Circuit told to revisit abortion law ruling

Last week, the U.S. Supreme Court, by a 5-4 vote, upheld the Partial Birth Abortion Ban Act passed by Congress in 2003.

The ruling already is causing a ripple in Virginia. The high court has ordered the 4th U.S. Circuit Court of Appeals to revisit a ruling from 2005 in which a three-judge panel found a Virginia statute outlawing the same procedure to be unconstitutional, according to the Washington Post.

The Supremes vacated the 4th Circuit’s decision and told the court to reconsider “in light of” its new ruling. The 8th Circuit, which struck a similar law in Missouri, also has been ordered to review its prior decision.

Stolle, Norment cleared of conflict charges

Roanoke lawyer David Nixon claimed that two senators – Ken Stolle and Tommy Norment – broke the conflict of interest of rules when they worked to rewrite Virginia’s eminent domain laws during the past General Assembly session. Their firm, Kaufman & Canoles, represents a number of local governments that could benefit from the changed condemnation statutes, he said. Even though Attorney General Bob McDonnell said a vote would be OK, both Stolle and Norment abstained when the measure came to a vote. The Senate Ethics Advisory Panel looked at Nixon’s claims and even held a closed hearing last week. But as The Virginian-Pilot reports, the panel dismissed all the charges against Stolle and Norment.

Friday, April 20, 2007

Bad land use day for Alexandria

The plant was built in 1949 but in recent years has become a point of concern as residential development that has crept closer and closer to it. However, the stratagems the city attempted to use to authorize the plant’s removal ran afoul of Virginia Code § 15.2-2307 Justice Elizabeth B. Lacy wrote for a unanimous court in Alexandria City Council v. Mirant Potomac River LLC.

That statute generally prohibits localities from the impairment “the impairment of any vested right,” and that was precisely the effect of the city’s effort to remove the plant, Lacy wrote.

In the second case, the city attempted to block the subdivision of one parcel into two parcels that even in their subdivided state would have been larger than the typical site in an established neighborhood. Residents there objected because they feared the construction of “McMansions” out of scale with other homes.

The high court ruled, however, in Seymour v. City of Alexandria, that the city subdivision ordinance governed only the consistency of lots, not the type of structure that goes on them.

No statutory cause of action in Landlord/Tenant Act

A new rack of cases came down from the Supreme Court of Virginia this morning...

Among the holdings: The court says that there is no statutory cause of action for personal injury in the Virginia Residential Landlord and Tenant Act.

Justice Cynthia Kinser wrote the unanimous opinion in Isbell v. Commercial Investment Assocs. Inc.

Lemons, Albro are VSB's top picks for 4th Circuit

The judicial nominations committee of the Virginia State Bar announced its endorsements for seats on the 4th U.S. Circuit Court of Appeals at the VSB’s Executive Committee meeting at Stratford Hall yesterday and this morning.

Committee chair Joe Condo, VSB President Karen Gould and several others met with Sens. John Warner and Jim Webb earlier this week. Condo said Webb was “delighted” with the format the VSB chose, naming potential nominees as either “highly qualified” and “qualified,” and including a detailed summary of the candidate's qualifications. Condo added that Webb pressed the bar to rank the candidates, but the VSB declined to do so, citing confidentiality concerns.

But Condo said that for the “highly qualified” candidates, the bar was providing the committee votes on those people, and that the senators could let those tallies be a reflection of any ranking.

Of the “highly qualified” candidates, Virginia Supreme Court Justice Donald W. Lemons and Charlottesville lawyer Thomas E. Albro both gained a 12-0 vote. The others were:

• U.S. District Judge Glen E. Conrad, 11-1
• Roanoke lawyer Frank E. Friedman, 10-2
• Richmond lawyer E. Duncan Getchell Jr., 9-3
• Washington DC lawyer H. Christopher Bartolomucci, 7-5

The committee found three potential nominees to be “qualified.” The bar does not announce vote totals for candidates in this category. They are:
• Virginia Supreme Court Justice G. Steven Agee
• Richmond lawyer Orran L. Brown
• William and Mary law school Professor Alan J. Meese

Diaz, O’Connell leave Rees, Broome & Diaz

Ray Diaz and Ed O’Connell, both experienced community association lawyers, have left Vienna-based Rees, Broome & Diaz to join Whiteford Taylor & Preston. The latter firm, with its home base in Baltimore, has over 155 lawyers in five offices throughout Maryland, DC and Virginia.

Both men will staff WTP’s new Northern Virginia office, which will open later this year, according to a statement from Andrew Terrell, head of the firm’s present Virginia office in Alexandria.

Diaz has practiced in Northern Virginia since earning his law degree from Georgetown in 1973; he was one of the pioneers of condominium law and community association work in the metro DC area. He served as president of the Virginia State Bar in 1991-92. He is counsel to WTP.

O’Connell, who received his law degree in 1994 from the Catholic University law school, is a partner with the new firm.

Wednesday, April 18, 2007

Discovery: voice-mail recording admissible

What happens when a speaker leaves a voice-mail message for an attorney, whose recording device doesn’t shut off?

The message left on the machine can come into evidence in a real estate case, according to Loudoun County Circuit Judge Thomas D. Horne. In Pacific Century Development & Realty Inc. v. Wheatland Farms LLC (VLW 005-8-197), a developer is asking for specific performance of a contract to buy a vineyard.

On March 28, Horne handed down discovery rulings in the case, including denying the plaintiff developer’s motion in limine to exclude evidence of the conversation between two parties to a planned three-party call that was inadvertently left on the attorney’s voice mail.

The parties apparently planned a three-way call. When the attorney’s voice mail answered, the callers left a message. But “the device, unbeknownst to the parties to the conversation, continued to record a conversation between the two parties,” Horne wrote in his March 28 decision (VLW 007-8-112).

Any lawyer who has had her voice mail roll over on a long-winded caller knows what she is hearing is a monologue, not a conversation. The law agrees, according to the court.

Virginia’s statute on using recorded conversations, Va. Code § 8.01-420.2, deliberately uses the word “conversations,” not “communications,” which doesn’t cover the one-way message left on a voice mail.

VBA recommends 11 for 4th Circuit vacancies

Two Virginia Supreme Court justices, two federal judges and two law professors are among the Virginia Bar Association’s recommendations for two vacancies on the 4th U.S. Circuit Court of Appeals.

Virginia Sen. Jim Webb asked bar groups earlier this year to submit recommendations for the vacancies created by the senior status of Judge H. Emory Widener Jr. and the resignation of Judge J. Michael Luttig. Webb and Sen. John Warner will submit names to the Bush administration, which will nominate candidates subject to confirmation by the Senate.

The VBA list in alphabetical order:

Supreme Court Justice G. Steven Agee

Thomas E. Albro, a civil litigator in the Charlottesville firm of Tremblay & Smith LLP who typically represents plaintiffs in personal injury cases

H. Christopher Bartolomucci, a partner in the Washington firm of Hogan & Hartson and a former special assistant to President Bush in the White House counsel’s office who specializes in appellate litigation

U.S. District Judge Glen E. Conrad of Roanoke

John G. Douglass, a University of Richmond law professor and a former federal prosecutor

Frank K. Friedman, a partner and appellate specialist at Roanoke’s Wood Rogers PLC

E. Duncan Getchell Jr., a partner in the Richmond office of McGuireWoods who argues cases frequently in appellate courts

U.S. District Judge Walter D. Kelley Jr. of Norfolk

Virginia Court of Appeals Judge D. Arthur Kelsey

Virginia Supreme Court Justice Donald W. Lemons

William and Mary law school Professor Alan J. Meese who teaches antitrust, economic analysis of law and torts

On the Virginia Tech shootings

The news of Monday’s shootings at Virginia Tech was horrific and unsettling and unfathomable. Our thoughts are with the families and friends of the victims, and with all who have been affected. The support for the school from all corners of the commonwealth and of the nation has been strong and resounding. Much has been written and said over the last few days, and much more will be added as the story continues to unfold.

But give the final word for now to Tech professor and poet Nikki Giovanni, who closed the convocation held yesterday afternoon. She led the crowd of thousands in a defiant cheer.

“We are strong and brave and innocent and unafraid. We are better than we think and not quite what we want to be,” Giovanni said. “We are the Hokies. We will prevail. We will prevail. We will prevail. We are Virginia Tech.”

For the best continuing news coverage of the Virginia Tech story, we commend the Roanoke Times and the Collegiate Times, the Virginia Tech student newspaper. The student journalists especially have soldiered on, getting the story while dealing with the tragedy on campus.

Monday, April 16, 2007

VTLA’s amicus track record: A few more notches on the belt

Roger Creager, outgoing chair of the amicus curiae committee for the Virginia Trial Lawyers Association, touted a 75 percent “lifetime win rate” for the association in the 43 appellate cases heard since 1992 in which the VTLA filed a friend-of-the-court brief. In those cases, the majority of which have been in the Supreme Court of Virginia, the VTLA tallied 30 wins, 9 losses and two ties, with two cases still pending for decision by the Virginia high court. Creager congratulated association members who have written briefs at the VTLA's annual meeting at The Greenbrier on April 13.

Last year’s highlights, according to Creager, included Ford Motor Co. v. Benitez, the sauce-for-the-gander case that applied sanctions to a defense lawyer for filing a frivolous grounds of defense, and Kondaurov v. Kerdasha, the car-crash case that originally featured some scary language on damages for plaintiff’s lawyers.

When the Supreme Court releases its next batch of opinions this Friday, the p.i. bar is looking for a decision in another case in which VTLA filed an amicus brief – Isbell v. Commercial Investment Associates Inc., which deals with the Virginia Landlord-Tenant Act as the basis for a tenant’s p.i. suit.

Creager is handing over the committee chair reins to Virginia Beach lawyer Steve Emmert and Richmond lawyer Josh Silverman.

Saturday, April 14, 2007

A race for Fairfax prosecutor, two NoVa vets get a pass

Ray Morrogh, the longtime deputy prosecutor in Fairfax who hopes to succeed his retiring boss, Bob Horan, filed as expected for the local Democratic nomination for commonwealth’s attorney. But he'll have an opponent this fall: Arlington assistant commonwealth’s attorney Patrick McDade will seek the GOP nod for Fairfax commonwealth’s attorney, reports the Washington Post.

With yesterday’s filing deadlines in Fairfax, Arlington and Prince William County, a pair of veteran prosecutors in the area will get a free pass for another term. In Arlington, Dick Trodden, a Democrat, won’t have a Republican opponent. Trodden said nice things about McDade, who graduated from the George Mason law school in 2004, but he won’t endorse McDade over Morrogh. Democrat Butch Ebert in Prince William likewise won’t have a GOPer running against him.

Republican prosecutor Jim Plowman in Loudoun County doesn’t have a Democrat running against him yet; the Dems in Loudoun have until April 26 to file.

Friday, April 13, 2007

Supreme Court adopts Clients’ Protection Fund fee

The Supreme Court of Virginia approved on Friday the assessment of a $25 fee on all active members of the Virginia State Bar to support the Clients’ Protection Fund.

The approval had been expected because the VSB Council had recommended the measure and the General Assembly had adopted enabling legislation earlier this year. The assessment will be added to the VSB’s annual dues of $250.

The fund was set up to reimburse by up to $50,000 the victims of theft by lawyers when no other source of recovery is available.

The court also approved doubling the delinquency and reinstatement fees for lawyers who are late in completing their continuing legal educations requirements or in paying their annual dues. Those fees will increase to $50, $100 or $150, depending on the delinquency or reinstatement involved.

Thursday, April 12, 2007

Barry new president of Allen firm

The personal injury firm of Allen, Allen, Allen & Allen has named Douglas A. Barry president.

As its name indicates, the Allen firm is a family shop and Barry is the first president who is not a family member. Founded in 1910, the Richmond-based firm has the largest personal injury practice in the state.

Barry, 49, joined the firm in 1996 after stints as a state prosecutor and an FBI agent and three years with another personal injury firm.

He has directed the firm’s non-media marketing for several years and last year began supervising all its marketing efforts.

Barry noted that the firm has brought in such lawyers as P. Christopher Guedri and Trent S. Kerns and given them the opportunity to try major cases. “It’s a family business,” he said. “They’re still the majority shareholders, but they’re letting other people succeed.”

Wednesday, April 11, 2007

Butler receives Groot professionalism award

The Ted Dalton Chapter of the American Inn of Court has given its annual Roger Groot Professionalism Award to M. Caldwell Butler, the former congressman and longtime Roanoke lawyer.

Butler is best known for the political courage he displayed as a relatively new Republican member of Congress in supporting the impeachment of President Richard M. Nixon in 1974.

He served in the House of Representatives from 1973 to 1984 and practiced at the firm of WoodsRogers in Roanoke until he retired in 1998.

Butler received the award at the Inn’s annual banquet on Tuesday at Roanoke College.

The award is named for Groot, the beloved Washington and Lee University law professor who suffered a heart attack while hunting in 2005.

Fairfax prosecutor Horan to quit after 40 years

Fairfax Commonwealth's Attorney Bob Horan announced yesterday that he will call it quits after 40 years on the job. The Washington Post reports that Horan, 74, had been concerned that a gradual hearing loss would affect his performance in the courtroom. Both parties will be scrambling to field candidates before Friday's filing deadline, although Ray Morrogh, Horan's longtime chief deputy, has said he would seek the Dems' nod if his boss did not make another run.

Tuesday, April 10, 2007

Soccer player’s sex harassment suit revived

Apparently the “take it like a man” defense has limits when it comes to women’s sports.

When Melissa Jennings played soccer for the legendary women’s team at the University of North Carolina at Chapel Hill, she tried to keep a low profile as coach Anson Dorrance indulged in sexual banter with team members during warm-ups. According to Jennings, Dorrance liked to get up close and personal with his players, speculating on their sexual interests and practices, and sharing his own freewheeling fantasies about his players.

But Jennings could no longer duck Dorrance’s attention when he asked her in a hotel room whether her love life was interfering with her grades. After Dorrance cut her from the team, Jennings sued the university under Title IX and sued Dorrance and the university’s lawyer for sexual harassment. A year ago, a 4th Circuit panel upheld summary judgment for the defendants.

The panel indicated that coaches – who use profanity, slang, sarcasm and “ham-handed humor” to make their points – may have more leeway in a locker room than in a classroom. Such “lapses in linguistic gentility” don’t necessarily equate to a sexually hostile environment, the panel said.

What a difference a year, and a full court, makes.

Yesterday the en banc court vacated summary judgment for three defendants in Jennings v. University of North Carolina (VLW 007-2-054). The court said that Jennings could proceed on her Title IX claim against UNC, and on her § 1983 claim against the coach for sexual harassment and her claim against the university lawyer for supervisory liability. The court said that Jennings had enough evidence to get in front of a jury, but the district court should first consider the coach’s and lawyer’s claims to qualified immunity.

Consultant to advise on Richmond circuit dockets

A California court consulting firm will help Richmond Circuit Court judges develop a new case management system.

Chief Justice Leroy Rountree Hassell Sr. recently wrote Richmond Chief Judge Walter W. Stout III that he has selected Christopher Crawford of Justice Served for the work.

The Richmond circuit has been the only one in the state in which judges specialized in civil or criminal cases.

Few of the judges appointed recently to the court have had a criminal practice, and some judges have insisted on a different method of handling cases and took their complaints to Hassell.

After a contentious meeting between Hassell and the circuit judges, Stout told Hassell that he would attempt to develop a system in which each judge would be randomly assigned civil and criminal cases.

After that suggestion drew a complaint from two judges that the caseloads are inequitable now, Hassell decided to bring in the consultant.

Monday, April 9, 2007

Pro se ‘frequent filers’ whacked in E.D.

Eastern District judges are cracking down on their frequent filers – pro se plaintiffs who keep using federal court filings as therapy for grievances, real or imagined.

U.S. District Judge Walter D. Kelley Jr. in Newport News says that plaintiff Ned N. Cary Jr. has filed at least eight separate actions in state and federal court since 1987, in an effort to redress his treatment by his former employer, the Anheuser Busch brewery in Williamsburg.

In his opinion in Morning Star Baptist Church v. James City County Police (VLW 007-3-104) Kelley develops an elaborate military metaphor to detail Cary’s “litigation war of attrition” against all things Bud. Cary filed his latest federal-court salvo after local police arrested him for picketing the plant with a sign that described a Busch HR employee as a “Negro Nazi.” Kelley pointed out that a Virginia state court already had ordered Cary to pay this particular HR employee $5,000 in attorney’s fees. Kelley then ordered Cary to pay an additional $5,070 in attorney’s fees for violating FRCP 11 with his frivolous and harassing lawsuit.

And in Alexandria, U.S. District Judge T.S. Ellis III dismissed a prisoner’s 17th motion for reconsideration, filed after the inmate had been warned when he filed his 16th motion about the consequences of continued abusive and harassing filing behavior. The judge dismissed the inmate’s latest motion in Miles v. Angelone (VLW 007-3-106).

In both cases, the judges instituted a mother-may-I rule for the litigants. The pro se plaintiffs must seek leave of court to file again, and their lawsuits are subject to mandatory pre-filing review to weed out repetitive and frivolous claims.

Two Central Virginia divorce practices to wed

Two prominent Central Virginia family law practices have joined forces. Effective today, Hopewell attorney Lawrence D. Diehl will merge his practice with The Barnes Law Firm, headed by Edward D. Barnes. The firm will operate under the name Barnes & Diehl PC, and remain at the Barnes Firm's current Chesterfield office.

Sunday, April 8, 2007

Fairfax prosecutor Horan to retire?

Longtime Fairfax Commonwealth’s Attorney Bob Horan may retire. Horan, 74, told the Washington Post that he is considering not running for reelection. He has a Friday deadline to decide whether to stand as the Democratic candidate for the position. The local GOP has put up candidates against Horan only twice since 1975. If Horan chooses to retire, his chief deputy, Ray Morrogh, says he is ready to make the race.

Friday, April 6, 2007

Oakey, U.Va. center to get VSB’s pro bono award

The Virginia State Bar has named two winners for its 2007 Lewis F. Powell Pro Bono Award: John M. Oakey Jr. and volunteers at the Mortimer Caplin Public Service Center at the University of Virginia law school.

Since his retirement from McGuireWoods LLP, Oakey has handled numerous pro bono projects in the Richmond area. The Caplin Center at U.Va. coordinates the law school’s public service outreach efforts, including pro bono work.

The Powell award, given by the VSB’s Committee on Access to Legal Services, is named for the late associate justice to the U.S. Supreme Court. The awards will be presented next month at the VSB’s pro bono conference.

Jury decides for defendants in med mal retrial

The 2005 Supreme Court of Virginia case that defined what constitutes an “active clinical practice” for expert witnesses in medical malpractice cases has ended in a second defense verdict.

Elizabeth Hinkley filed suit against two obstetricians and their practice in Montgomery County Circuit Court after both of her identical twin sons died at birth as a result of twin to twin transfusion syndrome (TTTS). She alleged that the obstetricians were negligent in failing to detect the syndrome and promptly deliver the second child by cesarean section after the first died in utero. Twins with the syndrome share a blood supply and a disproportionate share of blood goes to one twin.

The defendants prevailed in the first trial, but Hinkley argued successfully on appeal that a defense expert should not have been allowed to testify because he had not delivered a child in several years before his testimony, although he had practiced in the field for 33 years and still taught and consulted.

Bevin R. Alexander Jr. of Lynchburg, the attorney for the defendants, said a jury returned a defense verdict in February and Hinkley’s attorney told him recently that he will not appeal it.

Thursday, April 5, 2007

Kaine’s appointed pay hike for juvenile court killed

The House of Delegates yesterday killed amendments from Gov. Tim Kaine that would have increased the pay of court-appointed lawyers in juvenile court.

Kaine had sought to shoehorn the increase through changes to House Bill 2361, which will permit a judge to waive the fee limits for court-appointed counsel in certain cases. While killing that group of amendments by a 91-6 vote, the House left intact the broader portions of the bill. For the record, all of Kaine’s changes passed the Senate unanimously.

Both Houses approved Kaine’s amendment to the bill that requires court officials to track the number of court appointments, including offenses charged, and the number of fee cap waivers, including dollars paid. The court must report those statistics quarterly to the governor and to the legislature.

Wednesday, April 4, 2007

No FMLA liability for park supervisor

Federal courts continue to fill in the puzzle pieces for liability under the Family & Medical Leave Act. From Harrisonburg, U.S. District Judge Glen Conrad says that a supervisor for the Upper Valley Regional Park Authority has no individual liability for a park manager’s claim that the supervisor violated the Act by denying the manager leave to care for her 22-year-old stepson who was injured in an ATV.

In Miller v. County of Rockingham (VLW 007-3-130), Conrad said the 4th Circuit has yet to rule on the question of individual FMLA liability for employees of public agencies, and the federal circuits are split. Conrad followed a 6th Circuit decision to dismiss the case against the individual park director, but let the case go forward against Rockingham and Augusta Counties.

Local government lawyers headed to the annual conference of the Local Government Attorneys of Virginia in Hampton Roads later this month should take note of the Miller ruling. Conferees are scheduled for game-show style CLE on April 20, and they could score points during “Employment Law Jeopardy,” or “Deal or No Deal.”

Tuesday, April 3, 2007

Peeling sticker case to be reheard en banc

Back in February, a panel of the Court of Appeals ruled that the mere fact that a guy’s car had a peeling inspection sticker wasn’t enough to justify a police officer’s stop. That fact alone didn’t provide the “reasonable suspicion” of criminal activity needed to make the stop, according to the panel, which suppressed evidence and drugs and a gun found in the car.

The 2-1 panel opinion was written by Chief Judge Walter S. Felton Jr., joined by Senior Judge Johanna L. Fitzpatrick. Judge Elizabeth A. McClanahan dissented. This morning, the appeals court issued a notice that it will rehear the case, Moore v. Commonwealth, en banc.

By the way, the defendant’s lawyer, John B. Mann of Richmond, told us that the actual sticker on the defendant’s car was in a lot better shape than the illustration we used with our story in February (see above).

Monday, April 2, 2007

Hunton hires 93 Texas lawyers

Hunton & Williams, the Richmond-based legal giant, will absorb the core of the defunct Jenkens & Gilchrist law firm, the Dallas-based group that closed its doors last week after settling claims that it provided legal advice justifying phony tax shelters.

Those activities were conducted out of the firm’s Chicago offices, and Wally Martinez, Hunton’s managing partner, told the Dallas Morning News, that none of the lawyers it is hiring had anything do with the fraud.

Jenkens agreed to pay a $76 million fine to resolve all civil and criminal claims against the firm.

The firm had 605 lawyers when the scandal broke in 2001, but was down to 208 attorneys in February 2007.

The new attorneys will increase Hunton’s contingent in Dallas from 70 to 157 and make it one of the largest non-Texas-based firms in that state. Five of the lawyers will be in Austin and one in Houston.

Hunton has had a substantial presence in Dallas since 2002, when it absorbed the firm of Worsham, Forsythe & Wooldridge LLP.

Hunton now has almost 1,000 lawyers in 19 offices.

In Memoriam: J. Jay Corson IV

Retired Fairfax lawyer Jay Corson served as president of both the Virginia State Bar and of the Virginia Association of Defense Attorneys. He spent 37 years practicing with McGuireWoods LLP and its predecessor firms, defending products liability and personal injury cases, until his retirement in 2000. He died last week at the age of 71, reports The Washington Post.

Sunday, April 1, 2007

Pack your bar card when going to Arlington…

If you’re going into the Arlington County Courthouse, and you want to carry your cellphone, be aware that pretty soon you’re going to need to have your Virginia State Bar membership card with you.

Here’s why: Cellphones, pagers, cameras and a number of other electronic devices will be banned from the courthouse effective April 23, according to the Arlington sheriff’s department. But attorneys with a current bar card will be exempt from the ban.

If you forget your card, not to worry: The sheriff’s office will have lockers nearby to store any banned items. The Washington Post has the story.