Friday, June 29, 2007

Suspended for cussing

Here's an item from the Tarheel State this a.m., courtesy of the Daily Alert from our colleagues at North Carolina Lawyers Weekly:

A lawyer down there has been suspended from practicing law in Wake County for a year, reports the Raleigh News & Observer. His offense: He cussed at a court clerk.

Lawyers here will recall that back in April, in the case of In re Moseley, the Supreme Court of Virginia upheld the power of a local circuit court to suspend or revoke a lawyer's privilege to practice before it.

That's basically what happened down in N.C. According to the N&O, a Wake County superior court judge found that a lawyer named Mark A. Key had sworn at a court clerk and walked away from a client before a hearing over a payment dispute. His privilege to practice in Wake was suspended for a year. The N.C. Supreme Court declined to take the case; Key said he will serve the suspension at an agreed-upon later time.

Yet more on civil remedial fees

As noted in a post yesterday, the daily papers across the commonwealth are focusing on the new "civil remedial fees," which provide hefty fines for bad drivers.

Here's an update from today's editions: Both The Daily Press and the Bristol Herald Courier have stories on the topic. And The Free Lance Star has an editorial.

The Roanoke Times didn't have a remedial-fees story today. Instead, the paper had a piece on teenagers in the Star City and their reaction to another new statute that prohibits teen drivers from talking on a cell phone while driving. There's a fine of up to $250 for the first offense; the driver can lose his/her license for six months upon a second conviction.

Thursday, June 28, 2007

DNA given in one case can be used in another

A defendant who submits to a DNA mouth swab in one case can’t prevent prosecutors from using it to solve a cold case, according to a new decision from the Virginia Court of Appeals.

In Pharr v. Commonwealth (VLW 007-7-239), the court said that use of the DNA didn’t violate the defendant’s Fourth Amendment rights.

While the issue is one of first impression in Virginia, Judge Jean Harrison Clements wrote that the “overwhelming weight of authority” from other states supports the ruling.

Scott: Abolish mandatory sentencing guidelines

Rep. Bobby Scott, D-Va., has vowed to abolish federal mandatory sentencing guidelines, reports The Daily Press.

Scott, chair of the House Judiciary subcommittee on crime, held hearings in Washington this past week. The leading witness was a federal judge from Utah who noted that he was compelled by the guidelines to give a first-time offender who carried but didn't use or display a gun during a drug deal a total of 55 years; later that same day he sentenced a murderer to 22 years.

Scott's Republican colleague, Rep. Randy Forbes of Chesapeake, countered that while the sentencing system may have problems, it can be fine-tuned instead of scrapped.

'Civil remedial fees' a hot topic

As we noted on this blog in a post last month, the 2007 General Assembly set up a system to whack bad drivers with new hefty fines in the transportation bill.

Most of the new-statute stories in the general press before the July 1 effective date have focused on the new fees. See, for example, pieces in The Washington Post and Richmond Times-Dispatch.

The Supreme Court of Virginia must have been getting a lot of traffic at its Web site. The new civil remedial fee system has been declared a hot topic over there. The court provides a link to its useful primer on the new scheme, which we again recommend.

Tuesday, June 26, 2007

Things are clearly more liberal in Sweden…

Yesterday the U.S. Supreme Court turned in rulings that, according to the pundits, indicate the court’s conservative five-justice majority is flexing its muscles.

Among other decisions, the high court voted to limit student speech in the “Bong Hits 4 Jesus” case, to toss an attempt by taxpayers to challenge the Bush administration's grants to faith-based social services groups and to weaken corporate and union advertising restrictions under McCain-Feingold.

Today’s headline from the Lynchburg paper's Web site: “Court upholds prisoners’ right to porn.”

Yet another new decision from the Roberts Court?

Not exactly. A quick click indicates that the case is from … Sweden. The Supreme Administrative Court in Stockholm has upheld a rape convict’s right to his hardcore girlie magazines. The ruling angered prison officials, who argued unsuccessfully that allowing the magazines will interfere with the inmate’s rehabilitation and could pose a risk for the prison’s female employees.

The Swedish prison system continues to bar pornographic movies, TV channels and Web sites, according to The Associated Press.

In Memoriam: Richard A. "Dick" Williamson

Richard A. "Dick" Williamson, a longtime law professor at the College of William and Mary, died last Friday, June 15. He was 63.

Prof. Williamson taught law at the school from 1970 until his retirement three months ago. He also served for a number of years at the college's coordinator of legal affairs. In that role, he was involved in the school's skirmish with the NCAA over use of two feathers in the college logo.

The Daily Press has an obituary.

Mediation group: Give peace a tag

The Virginia Association of Community Conflict Resolution, an organization for nonprofit community mediation groups, is trying to get the Virginia Department of Motor Vehicles to issue a state license tag that promotes “community peacebuilding.” (See picture).

Considering the commonwealth already has vanity license plates that promote everything from Parrotheads (Jimmy Buffett fans) to bowlers to Friends of Tibet, community peacebuilding shouldn’t be denied, right?

Well, as the Roanoke Times reports, the plate-promoters are about 75 short of the 350 pre-paid commitments required to issue a new license plate. Rebekah Carswell, executive director of the Conflict Resolution Center in Roanoke, is spearheading the effort, which has been going for two years. If the group doesn’t get the 75 extra people by July 1, it will have to start all over. And next week, a new law kicks in that puts a 30-day deadline on any effort to get the 350 pre-payments. Carswell says it’s pretty much now or never for the peace plate.

If the tag makes it, the VACCR hopes to use the effort as a way to raise funds for local centers. Every driver who orders the tag will pay $25 for the privilege; the association would get $15 of that fee.

Monday, June 25, 2007

Defendants prevail in DC pants suit

The judge in the $54 million pants suit in the District of Columbia announced her decision this morning: The defendants won. In fact, the judge ordered the plaintiff, an administrative law judge, to pay the court costs of the defendants, the owners of the dry cleaners that allegedly lost his trousers.

The Washington Post has the story, as well as the judge's 23-page opinion dissecting the plaintiff's case.

Friday, June 22, 2007

Medical board seeks to cut disciplinary backlog

The state Board of Medicine has a backlog of disciplinary complaints that has reached 2,000 cases.

To whittle it down, the board will streamline its disciplinary procedures, reports The Associated Press.

Many of the cases in the glut do not involve a substantial risk to patients, such as advertising complaints. The disciplinary staff has been given the authority to dismiss those cases when there is not adequate evidence to go forward. Since 2004, violations of the appropriate rules were found in only 15 percent of these lower-level complaints, according to the board.

The Board of Medicine, which oversees physicians, chiropractors and other health professionals, is one of 14 regulatory boards under the Department of Health Professions. Gov. Tim Kaine, in his “Virginia Performs” initiative, has asked all boards to resolve 90 percent of complaints about patient care within 250 days. So far in 2007, the boards have met that goal about 40 percent of the time.

Served with syrup, no doubt

A new suit in Norfolk federal court involves … pancakes.

Actually, it involves two companies that run pancake houses, one in the Outer Banks of North Carolina and the other in Williamsburg (where pancake houses are as common as tourists), and their names.

The Virginian-Pilot reports that the company that runs restaurants called “Stack’em High Pancakes,” located in Kitty Hawk and Kill Devil Hills, has filed a trademark infringement suit against a couple that runs “Stack'Em High Pancakes and Waffles Restaurant” in Williamsburg.

The plaintiff company says it has been in operation since 1981 and that its name is a registered trademark. The suit says the defendant company went by another name until 2005.

The Outer Banks “Stack’em High” touts that it has the “Best Breakfast on the Beach.”

The Williamsburg “Stack’Em High” says it has the “Best Breakfast & Lunch in Williamsburg.”

Sounds like the judge might need to order a jury view to decide this one.

(Note: The picture above of the little bowing pancakes was taken from the Web site of the NC "Stack'em High." The Williamsburg "Stack'Em High" site has a picture of a pretty tasty-looking plate-full. Click on the link to see for yourself.)

Wednesday, June 20, 2007

E-discovery ‘grace period’ is over

Any “grace period” litigators have had since the new e-discovery rules went into effect in December 2006 may be coming to a close.

“Courts are becoming increasingly intolerant of e-discovery errors and omissions,” says Jeane Thomas, a Washington D.C. lawyer and expert on e-discovery. Thomas was on a panel program June 15 at Virginia Beach presented by the Intellectual Property Law Section of the Virginia State Bar.

“We’re getting to the end of any grace period,” and seeing more monetary sanctions and adverse inference rulings or preclusion of evidence, Thomas said. “In a few instances, default judgments have been entered. The costs can skyrocket. … Sanctions are not reserved for deliberate misconduct.”

Eastern District U.S. Magistrate Judge Thomas Rawles Jones Jr. describes the e-discovery rules not as a sea change, but as a “useful additional set of traffic rules.” Jones said courts have been “seeing people still unprepared, but not really seeing the consequences. We’re reaching the time right now” when people can expect to see consequences for failure to comply.

As parties figure out how to use the new rules tactically, motions practice will increase, the panel predicted.

What else is hot?

“Text messages and instant messages are becoming the new area to search for ‘smoking guns,’” Thomas said. “A lot of people have gotten better about writing e-mails, but IMs are now a new area of focus. People are typing back and forth and then when they close the box,” they may think the data disappears. “Not always,” she said. It could be linked into an office system or backed up on a provider’s server.

F'burg judge to city: Fix courthouse

Fredericksburg Circuit Judge John W. Scott Jr. has ordered the city council to fix unsafe conditions at the city’s courthouse, reports The Free Lance-Star.

He also ordered all staff to move out of the building while repairs were made.

The judge’s action comes in response to an appearance by Circuit Clerk Sharron Mitchell last week, in which Mitchell reported that office workers suffered from a number of health problems.

Tuesday, June 19, 2007

Garbage truck crash results in $12M settlement

A newspaper carrier who was left a quadriplegic after a garbage truck collided with this 1990 Jeep Cherokee in Fairfax County has settled his claim for $12 million.

Jerome Stewart has medical bills of more than $1 million and has endured every possible complication related to the quadriplegia, according to Richmond attorney John C. Shea, who represented Stewart along with his colleague Roger T. Creager and Joseph M. Caturano Jr. of Manassas.

Stewart suffered a fracture of his neck at the C5-C6 level and has no use at all of his arms or legs.

Shea said the case was “a very highly contested and expensively waged war” that focused on just how the collision occurred. Stewart said the garbage truck backed suddenly into a street as he was driving at about 20 mile per hour on his newspaper route. The driver contended that he had backed slowly into the street and stopped a few seconds before the collision so that Stewart had every opportunity to stop.

The case was mediated by retired Judge Robert L. Harris Sr., who continued to work with the parties for more than a month after the initial session failed to produce a settlement, Shea said.

Read a full account of the case in Monday’s edition of Virginia Lawyers Weekly.

Like moonshine through the pines?

Moonshine has a place in the popular imagination. There was Snuffy Smith, the outdated cartoon hillbilly who fought off “revenooers.” Then, there was “Thunder Road.” Not the Bruce Springsteen song off the “Born to Run” album – the 1958 Robert Mitchum movie in which a Korean War vet came home to the mountains to run the family moonshining business.

Truth is, moonshine is pretty much a thing of the past. The Virginia Department of Alcoholic Beverage Control reports that during the past year, they investigated only 13 stills in Virginia. But as The Virginian-Pilot reports, authorities have an active moonshine case going in Suffolk. Last Friday ABC agents and Suffolk cops busted two elderly friends, ages 84 and 78, and accused them of running a “shot house,” also known as a “nip joint,” a place where untaxed whiskey is served. Among the items seized in a raid: Three gallons of moonshine, some shotguns and many bottles of commercial alcohol.

But the elderly friends didn’t make the illegal hooch. An ABC agent said it likely was from North Carolina. More “Tobacco Road” than “Thunder Road,” in other words. The investigation is continuing.

Saturday, June 16, 2007

Duke lacrosse case prosecutor surrenders license

It was a few hours after a disciplinary panel of the North Carolina State Bar found that Mike Nifong, the Durham district attorney handling the Duke lacrosse team rape case, had withheld crucial evidence from the defendants and that engaged in fraud and deceit.

And it was just a few minutes before the panel was going to announce his punishment.

Nifong's attorney announced about an hour ago that his client had decided himself that disbarment was the proper sanction and that he was surrendering his law license to the NC bar.

The Washington Post has the full story.

Friday, June 15, 2007

Mandatory malpractice insurance debate resumes

The Virginia State Bar Council has agreed to conduct a thorough discussion at its Oct. 19 meeting on whether the VSB should require that all lawyers who represent the public carry malpractice insurance.

Darrel Tillar Mason, the chairman of a subcommittee studying the issue, came to council Thursday with a more modest proposal: requiring submission of a document verifying the fact and amount of malpractice insurance if a lawyer has it, as almost 90 percent of lawyers who represent the public say they do.

Mason said the information would help the subcommittee bridge a serious philosophical split between those who would require empirical proof of a problem before requiring anything mandatory and those who regard it as "almost sinful" not to have malpractice insurance as a matter of public protection.

But Thomas A. Edmonds, VSB executive director, contended that the information "will not be worth the angst or staff work" that such a requirement would generate.

He likened the debate to the one that occurred before the VSB adopted mandatory continuing legal education. Some members insisted on strong evidence that the proposal would improve the practice of law while others thought improved public perception and the likelihood of improvement were enough.

The decision ultimately is a philosophical one, he said, and by a show of hands, council members indicated that they want to explore the issue—without the intermediate step of insurance verification.

$54M pants trial concludes in DC

The trial of the $54 million pants suit in DC came to an end on Wednesday, and the presiding judge said she will issue a ruling next week.

This case involves an administrative law judge, Roy Pearson, who took a pair of pants to a dry cleaners. He claims they lost the trousers and he says for that he is owed 54 million bucks, citing the District’s consumer protection laws. The cleaners had posted a sign, since removed, that said, “Satisfaction guaranteed.”

Marc Fisher of the Washington Post wrote that the judge pretty much telegraphed the ending to this story. She said, “This is a very important statute to protect consumers. It's also very important that statutes like this are not misused.”

The American Association for Justice, formerly known as ATLA, recognizes red meat for the tort reformers when it comes along. Pearson easily could replace the McDonald’s coffee lady in the public mind as the symbol of a frivolous lawsuit. Last month, the AAJ issued a call for a DC bar ethics investigation of Pearson, stating that the idea of seeking that much money for a pair of pants “is not only ridiculous – it is offensive to our values.” AAJ's top leaders added that they personally were contributing to a defense fund set up for the benefit of the owners of the dry cleaning shop.

Thursday, June 14, 2007

Senators back five for 4th Circuit

Virginia’s U.S. senators, John Warner and Jim Webb, have recommended five candidates to President Bush for two pending seats on the 4th U.S. Circuit Court of Appeals, reports The Associated Press.

They are U.S. District Judge Glen E. Conrad, Virginia Supreme Court Justices G. Steven Agee and Donald W. Lemons, University of Richmond law Professor John Douglass and Charlottesville lawyer Thomas E. Albro.

Wednesday, June 13, 2007

Gov. Kaine delays Danville man’s execution

Just hours before Christopher S. Emmett was scheduled to die for beating a co-worker to death while stealing money for drugs, Gov. Tim Kaine granted him a reprieve, reports The Associated Press.

The governor said he wants to give the U.S. Supreme Court until Oct. 17 to consider granting Emmett’s appeal.

Emmett is claiming his defense attorney was incompetent, arguing that the lawyer ignored evidence of an abusive childhood that could have helped at sentencing.

The Supreme Court of Virginia in 2004 agreed with Emmett’s current defense team that his trial lawyer was inadequate, but the justices cited a defferent reason; the court said he had failed to object to a faulty sentencing form given to the jury. But that didn’t matter, the high court concluded. The error wouldn’t have stopped the jury from giving Emmett the death penalty, the court said, affirming the conviction.

Earlier today, the U.S. Supreme Court rejected Emmett’s request for a stay of execution, although four justices said they would have granted the reprieve. The U.S. high court now will have an opportunity to determine if it wants to take Emmett’s case.

Workers’ comp: Neck claim came too late

Foot bone connected to the leg bone. Leg bone connected to the knee bone.

You could almost hear the Court of Appeals humming “dem bones, dem bones, dem dry bones” when they decided a workers’ comp case yesterday.

Under Virginia workers’ comp jurisprudence, the hip bone is not connected to the back bone, and the shoulder bone is not connected to the neck bone, legally speaking.

In Corporate Resources Mgmt. Inc. v. Southers, the court had to decide whether a woman who landed on her left shoulder when she fell in 2003 filed too late to collect comp for her neck symptoms over two years later. The commission awarded benefits, but the employer said the woman’s initial claim only cited a shoulder injury and her neck claim was time-barred.

The appellate panel said that Shawley v. Shea-Ball Constr. Co., a 1975 Virginia Supreme Court case, controlled. There a claimant who first won comp for injuries to his “right hip and left ankle” was too late to subsequently claim benefits for back and right-leg injuries.

But in Southers, the commission interpreted the Shawley time bar to apply “only to a body part unrelated to” the body part named in the initial claim for benefits, Judge D. Arthur Kelsey wrote.

Kelsey said the panel could see no reason “for the commission to assert that the right hip is unrelated to either the back or the right leg (thus not close enough to excuse the time bar in Shawley, but the left shoulder is related to the neck (thus close enough to excuse the time bar in Southers’ case).

“This ad hoc distinction is no distinction at all, much less one to which our judicial imprimatur can be given,” the panel majority said, reversing the claimant’s award.

Election roundup

Yesterday was primary day across Virginia, with turnout at pitifully low levels. Among the results:

McEachin beats Lambert. Longtime Democratic Sen. Bennie Lambert of Richmond endorsed former U.S. Sen. George Allen last fall, and he paid for it last night. Trial lawyer Donald McEachin, the Dems’ 2001 nominee for Attorney General, gave up his House seat to challenge Lambert and bested him by a comfortable margin. Joe Morrissey, the former Richmond commonwealth’s attorney who has been disbarred, topped a five-candidate field for McEachin’s House seat. The Richmond Times-Dispatch has details.

Stosch survives. The T-D also reports that Senate Majority Leader Walter Stosch of Henrico County spent a whole lot of money to fight off a challenge from the right. Attorney Joe Blackburn made it close. Stosch spent almost a million dollars and garnered a 272-vote victory.

Williams, Bell don’t make it. Two other Republican senators weren’t so lucky. Sen. Marty Williams of Newport News lost to conservative GOP activist Patricia Stall, per The Daily Press. Out in Southwest Virginia, Sen. Brandon Bell was narrowly defeated by former Roanoke Mayor Ralph Smith, reports the Roanoke Times. Both incumbents had supported former Gov. Mark Warner’s tax reform package in 2004.

Another Stolle in politics. Chris Stolle, a physician and brother of Sen. Ken Stolle, R-Virginia Beach, won his primary race for the GOP nomination for a House seat, according to The Virginian-Pilot.

Joannou survives. Portsmouth Del. Johnny Joannou, the lone Democrat to oppose Warner’s tax package three years ago, faced a tough race from Henry Light, a retired Norfolk Southern lawyer. Warner endorsed the challenger, but as The Virginian-Pilot reports, Joannou prevailed.

Holtzman Vogel wins nod for Potts seat. Jill Holtzman Vogel, the former chief counsel to the Republican National Committee who now practices in Northern Virginia, will seek the seat of retiring Sen. H. Russell Potts Jr., after defeating restaurateur Mark Tate, who was indicted for election fraud last month. The Winchester Star has the story.

Sunday, June 10, 2007

Justice Lacy to retire

Justice Elizabeth B. Lacy, the longest serving member of the Supreme Court of Virginia, has told her colleagues that she will retire in August.

Lacy made the announcement Friday at the end of the court’s June argument week. She said she intends to continue to serve as a senior justice, participating on three-justice panels that decide which cases the court will hear and filling in when a justice decides tno to sit on a case.

Lacy, 62, became the first woman on the Supreme Court in November 1988, when Gov. Gerald L Baliles elevated her from the State Corporation Commission. Baliles’ predecessor, Charles S. Robb, had named her the first female member of the SCC.

She was in line to become the court’s first woman chief justice in 2004 upon the retirement of longtime Chief Justice Harry L. Carrico, but the General Assembly changed the method of selecting the chief justice the previous year. The chief justice now is chosen from among his or her colleagues, and the justices selected Justice Leroy Rountree Hassell Sr., the court’s only black member and the second senior member on the court in terms of service. The court recently elected him to a second four-year term as chief.

Lacy has been active in law-related organizations. She is a member of the advisory committee for judicial ethics at the American Judicature Society and is a former chairman of the American Bar Association’s Section of Legal Education and Admission to the Bar.

Friday, June 8, 2007

The weekly recap

The following selected stories appeared in the Virginia Lawyers Weekly Daily E-Mail Alert from June 5 to June 8. The originating source of a story is indicated after the item. Please note that not all links may remain active. If you are not presently receiving the Daily Alert, please click here to sign up.

June 5

Rep. Jefferson indicted on corruption charges

Rep. William J. Jefferson, D-La., has been indicted on corruption charges in federal court in Alexandria, reports the Washington Post.

Roanoke law firm mulls move, stays put

Officials at Gentry Locke Rakes Moore thought long and hard about moving into the Heironimus Building in downtown Roanoke, a structure built as a furniture store in 1905. But according to the Roanoke Times, the firm will remain in the SunTrust Bank Building.

Father sues restaurant following teen's death

The father of a teen killed in March by a man police say was a drunken driver has filed a $10 million lawsuit against the restaurant that allegedly served alcohol to the man and allowed him to drive, reports The Virginian-Pilot.

June 6

Richmond grocer’s case now with the jury

A Richmond circuit jury will resume deliberations this morning in the case of a former grocer who claims a Minnesota-based grocery wholesaler ruined his business, reports the Richmond Times-Dispatch. The jury got the case yesterday after 11 days of testimony.

Suffolk prosecutor leaves post to head hospital program

Marie Walls, the deputy commonwealth’s attorney in Suffolk, is leaving that position after almost seven years on the job to become the director of the child-abuse program at a local hospital, reports The Virginian-Pilot.

Law firm to advise Tech shootings panel

Gov. Tim Kaine and Attorney General Bob McDonnell announced yesterday that they have agreed to have an outside law firm advise the special panel studying the Virginia Tech shootings, reports The Associated Press. Lawyers from the DC office of Skadden, Arps, Slate, Meagher & Flom LLP will handle the work on a pro bono basis.

Spotsylvania J&DR clerk to run for circuit clerk

Christy Jett, clerk of the Spotsylvania County J&DR Court since 1999, has announced that she will run for Circuit Clerk, reports The Free Lance-Star. She is challenging incumbent Paul Metzger.

Couple who served alcohol to teens headed to jail

George and Elisa Robinson, the now-divorced Albemarle County couple that was sentenced to 27 months in jail for serving alcohol to teens nearly five years ago, will be reporting the jail Monday, reports The Daily Progress. The U.S. Supreme Court has declined to hear their appeal.

Abingdon’s Judge Brown dies at 77

Retired General District Judge David Brown, who served as Washington County commonwealth’s attorney for many years before going on the bench in 1982, died last week at the age of 77. The Bristol Herald Courier has the obituary.

June 7

Abingdon drive-in gets landmark status

Two state agencies yesterday approved placing the Moonlite Theatre, an old-style drive-in near Abingdon, on the Virginia Landmarks Register, reports the Bristol Herald Courier. The agencies also will recommend that the Moonlite be added to the National Register of Historic Places.

Ex-grocer wins $16M verdict in Richmond

Johnny Johnson, former owner of the Community Pride grocery stores in the Richmond area, sued Supervalu, a large grocery supplier, for essentially forcing him out of business. Yesterday the jury returned a $16 million verdict in his favor, reports the Richmond Times-Dispatch.

Longtime Pittsylvania Circuit Clerk to seek another term

H.F. Haymore Jr., who has served as Circuit Clerk in Pittsylvania County for 23 years, announced yesterday he will seek a fourth term in November, reports the Danville Register & Bee.

June 8

Feds search Vick property in Surry County

Federal agents and state police, apparently using a federal search warrant, were digging at the Surry County property owned by Atlanta Falcons quarterback Michael Vick, reports the Richmond Times-Dispatch. The Surry commonwealth’s attorney said he was “absolutely floored” to see the feds involved in the dogfighting investigation at the Vick home.

Damages: First see the jury, then apply the cap

Personal injury defendants enjoy the protection of certain caps on damages in Virginia. At times, defendants have been able to invoke that protection sooner, rather than later, by getting trial courts to reduce ad damnum clauses to cap levels before a case ever goes to the jury.

But the Supreme Court of Virginia today rejected one such effort to cut to the chase. In Torloni v. Commonwealth (VLW 007-6-090), a unanimous high court reversed a Fairfax Circuit Court decision that trimmed a woman’s pretrial request for damages from $1.5 million to $100,000, the statutory cap under the Virginia Tort Claims Act.

Passenger Suzanna Torloni, who was injured in an auto accident, sued the commonwealth for faulty road maintenance. The Fairfax court granted the commonwealth’s motion to reduce Torloni’s ad damnum, then dismissed the case altogether. Torloni already had settled her claim against the tortfeasor for $100,000, and the credit the commonwealth received under Va. Code § 8.01-35.1 meant it was “effectively insulated” from liability, the trial judge reasoned.

The trial court erred in reducing the ad damnum before a jury verdict, wrote Justice Donald W. Lemons, and erred in interpreting the cap and credit statutes.

Here’s the right order in a suit against the commonwealth, according to Lemons: If the jury returns a verdict in excess of $100,000, the trial court reduces the verdict by the amount received from the settling tortfeasor, and then applies the $100,000 limitation on the commonwealth’s liability.

Supreme Court reverses commonwealth cases

It was a bad day for the commonwealth in the Supreme Court of Virginia.

The high court reversed seven lower court rulings in favor of the state, including four criminal cases, a sexually violent predator designation, an analysis of the “good cause” requirement for a change of name by a prison inmate, and an interpretation of the Virginia Tort Claims Act.

In one criminal case, the court held that Virginia Code Sec. 46.2-894, the felony hit-and-run statute, applies only when there is physical contact or the defendant is the proximate cause of the crash.

The others involved the standard for withdrawing a guilty plea before sentencing, the proof of specific intent required for an attempted murder conviction related to a traffic stop, and the continuing limitation on the ability of police to search items that have both an innocent and drug-related element—in this case a dollar bill folded to contain cocaine.

On the civil side, the court said the $100,000 limit on recovery under the Tort Claims Act should be applied after a jury verdict rather than before. The court invalidated the sexually violent predator designation because an initial psychological evaluation did not meet the test for further study of the inmate. And the judge who rejected the inmate’s name change petition erred in focusing on what he found to be the lack of religious significance for a name the inmate said was “for religious purposes.”

The day was hardly a complete loss for the Commonwealth, however. In fact, the attorney general’s office prevailed in the three cases it probably most wanted to win: the affirmation of the death penalties of Teresa Lewis, the only woman on death row, and Ricky Javon Gray, who murdered two children and their parents in Richmond, and a ruling that an adult defendant can be convicted of consensual sodomy when the victims are minors.

These and the rest of the 26 cases the Supreme Court decided today are on our Web site at

Thursday, June 7, 2007

So you want fries with that?

There is a legal story that's been floating around the Internet that is worth pulling to ground and blogging about.

Last month a lawyer from a big firm in Chicago was handling a case in federal bankruptcy court in Miami. Lawyer is head of the bankruptcy section of said big firm.

The judge holds an emergency hearing. As reported in the court transcript posted by the legal blog Above the Law, said lawyer was not the most deferential to the judge. Judge seemed to be wanting to do something the lawyer didn’t like, so the lawyer told her, “I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place.”

First, anytime you see someone preface a remark to you with the phrase, “with respect,” watch out. You're about to do a turn as Rodney Dangerfield.

Second, Ronald McDonald is not recognized as much of a legal authority. He is, after all, a clown.

And third, if you insult a judge in open court, you do so at your peril.

Needless to say, the judge at whom the Happy Meal remark was aimed was not so happy. She issued a show cause to the lawyer, scheduling a hearing on why he shouldn’t be suspended from practicing in her court and have his pro hac vice admission revoked.

Above the Law broke the story; the Daily Business Review provides an update on the fallout for the lawyer and his firm. Among other developments, the client is no longer his client.

The show cause hearing is set for June 25. Stay tuned.

Acceptance of check moots suit

By accepting a $2,000 check from the defendant to cover medical bills, the plaintiff is not entitled to the $800,000 he later sought in a personal injury lawsuit.

A Rockingham County Circuit Court jury returned a defense verdict in the case of Shifflett v. Shifflett, based on accord and satisfaction.

The suit stemmed from injuries received at a party attended by both Shiffletts (relation undetermined). While swinging a beer bottle, the defendant accidentally struck the plaintiff in the face and broke his tooth.

In an out-of-court meeting shortly after the incident, the defendant, along with his ex-wife, issued a $2,000 check to cover the estimated cost of a tooth implant. "Dentist bill" was noted in the memo line. The plaintiff took the money, then went on to file suit, alleging $3,970 in dental bills in addition to disfigurement and pain and suffering.

Liability was not contested at trial. However, the defense successfully argued that the plaintiff had already settled the dispute by accepting his payment.

Jason J. Ham and Jason A. Botkins of Harrisonburg served as counsel for the defendant.

Look for details of this case and others in the Verdicts & Settlements section of the upcoming June 11 edition.

Sex offender affidavit implicates Confrontation Clause

A Gloucester General District judge ruled today that use of an affidavit to establish that a sex offender did not register as required by state law violates the Confrontation Clause of the U.S. Constitution.

Under Virginia Code § 18.2-472.1(D), a Virginia State Police affidavit of the defendant’s history of registration as a sex offender is prima facie evidence that he has failed to register or reregister. The affidavit must be provided to the defendant or his attorney seven days before a hearing or trial.

In the case today, Gloucester attorney Will Moore contended that such evidence is testimonial under Crawford v. Washington, 541 U.S. 36 (2004), and that the defendant had no opportunity to challenge its basis.

Judge R. Bruce Long agreed and refused to consider the affidavit.

Abingdon’s Moonlite gets landmark designation

Join me for a drive from Bristol to Abingdon down in Southwest Virginia. We’ll avoid Interstate 81 and choose old Lee Highway instead.

Past the building that a guy made into a church by putting a steeple on an old auto-parts store. Past the mom-and-pop motels from the 1950s. Past the Wal-Mart and other big boxes near the Bristol city line.

Once we’re in Washington County, we might start to see some farms and not a few cows. Then just past Dixie Pottery, where you can find just about anything, there's something you don’t see too often anymore: A drive-in – the Moonlite Theatre, unmistakable for the silvery tower that rises up with the neon sign featuring the moon and stars. (Photo above from the Moonlite Web site).

There are only eight drive-ins still operating in Virginia, and the Moonlite is one of them. They have first-run stuff, too – for example, there’s a double feature this weekend of “Ocean’s 13” at 9 p.m. and the new “Pirates of the Caribbean” flick at 11:00.

Yesterday, the Bristol Herald Courier reports, two state advisory boards approved adding the Moonlite to the Virginia Landmarks Register; they will recommend it for listing on the National Register of Historic Places. The landmark designation will make the Moonlite eligible for tax credits and help its owner, a guy named William Booker, to complete the restoration of the premises. If approved for the national designation, the Moonlite would become just the third drive-in on that list.

If you’re planning to go, a few details: Admission is five bucks a person, with kids under 12 free. Plenty of food, including popcorn and Papa John’s pizza, is available. And don’t worry about having to put one of those tinny, clunky speakers on your car window. The sound is now broadcast on a low-band FM frequency you can pick up on your radio.

Wednesday, June 6, 2007

Booze for minors appeals finally end

The brief marriage of George and Elisa Robinson is all over the Virginia appellate reports, but its absence from the U.S. Supreme Court reports means that each will finally beginning serving a 27-month jail term.

They were sentenced to three months on each of nine counts of contributing to the delinquency of a minor for serving alcohol at the 16th-birthday party of Elisa Robinson’s son from a previous marriage in August 2002 in Albemarle County.

That case hit every step in the appellate process before the U.S. Supreme Court refused recently to review their contention that their arrest stemmed from an illegal search that resulted in their arrests.

The Robinsons' divorce while the appeals of the criminal case were pending produced an important en banc opinion in the court of appeals, Robinson v. Robinson (VLW 005-7-382). That case held that trust fund money that George Robinson used buy a home and two trucks and set up a savings account were not gifts to his wife, even though the property was held in both names.

The Daily Progress has an account of the criminal case and the order for the former couple to surrender to authorities on Monday.

Smith elected chief judge in Fairfax Circuit

Virginia’s largest circuit court, Fairfax County, has elected a new chief judge. On July 1, Judge Dennis J. Smith will be taking over from current Chief Judge Michael P. McWeeny, who has served as chief judge for the past six years.

An alumnus of Brooklyn College, Smith graduated from American University’s Washington College of Law. He went on the Fairfax County Circuit Court bench in June 1995. Prior to joining the circuit court, Smith served as a substitute judge in the general district and juvenile and domestic relations courts in Fairfax, according to the court’s Web site.

Under the Virginia Code, a circuit chief judge’s duties include assignment of work among the judges. And of course, in the past few years, the Fairfax chief judge likely has been involved in the major expansion and renovation of the Fairfax Judicial Center. According to the contractor, Dick Corporation, the project is scheduled for completion next spring.

Skadden, Arps lawyers to advise Tech review panel

Gov. Tim Kaine and Attorney General Bob McDonnell announced yesterday that they have agreed to have an outside law firm advise the special review panel studying the Virginia Tech shootings.

Spokesmen for the two officials said that the AG’s office has been advising the panel, but it also has been providing counsel to Virginia Tech and the state police. Since the review panel is independent, it made sense for the group to have outside counsel, they said.

Two partners from the DC office of Skadden, Arps, Slate, Meagher & Flom LLP – Richard Brusca and Amy Sabrin -- will be the lead partners for the project, which Skadden, Arps will handle work on a pro bono basis, according to The Associated Press.

Tuesday, June 5, 2007

In Memoriam: Judge David D. Brown

Retired General District Judge David D. Brown died last week at his home in Abingdon. He was 77.

Judge Brown was the longtime commonwealth’s attorney in Washington County, serving from 1964 to 1978. He was named to the general district bench in 1982, where he served until his retirement.

The Bristol Herald Courier has an obituary.

Leesburg attorney a candidate to lead Virginia State Bar

Jon D. Huddleston, a Leesburg lawyer who has long been active in the Virginia State Bar, has announced his candidacy for president-elect of the organization.

Huddleston has been on Bar Council since 2001 and became a member of its executive committee last year. He has been a member of the VSB’s budget and finance committee since 2003 and its leadership task force since 2004.

He was on the board of governors of the young lawyers conference from 1993 to 1996 served for seven years on the Conference of Local Bar Associations, where he was chairman in 1998.

Huddleston is a partner in the eight-lawyer firm of Sevila, Saunders, Huddleston & White and was president of the Loudoun County Bar Association in 2003-04. He has a general practice that includes family law, traffic and criminal defense, personal injury and civil litigation.

He graduated from the College of William and Marry in 1986 and from its law school four years later.

The filing deadline for the position is Oct. 1. The successful candidate will become president in June 2009. The current president-elect, Howard W. Martin Jr. of Norfolk, will succeed Karen A. Gould of Richmond as president later this month, and Manuel A. Capsalis of Arlington will become president-elect.

Monday, June 4, 2007

Edmonds to receive award from NABE

Thomas A. Edmonds, executive director and chief operating officer of the Virginia State Bar, has been named the 2007 recipient of the National Association of Bar Executives Bolton Award for Outstanding Bar Leadership.

The Bolton Award, the NABE’s highest accolade, is presented annually to a bar executive who epitomizes the highest standards of professional excellence. It is named in honor of Fred Bolton, executive director and secretary of the Pennsylvania Bar Association from 1966–77.
Edmonds will receive the award during the NABE annual meeting in San Francisco, Aug. 9–14.
He was president of the organization in 2005-06 and served as its representative to the American Bar Association’s House of Delegates from 1997-2003. Edmonds plans to retire in December after more than 18 years as the VSB’s top administrator.

Friday, June 1, 2007

The weekly recap

May 29

Unmowed grass in medians becoming an issue in Fairfax

The grass in roadside medians and along sidewalks is getting high in Fairfax, prompting angry residents to complain to their local officials, reports the Washington Post. The problem is, mowing that grass is VDOT’s responsibility, and the agency has cut back on maintenance due to funding shortfalls.

May 30

Warrant to search Vick property in Surry going unused

Surry County officials got a warrant on May 23 to search property owned by Michael Vick for as many as 30 dog carcasses, but the warrant has yet to be used, reports The Virginian-Pilot.

May 31

Ex-lawyer, activist Garrison dies at 65

Sam Garrison, who went from Roanoke’s youngest elected commonwealth’s attorney to Senate Watergate committee counsel to gay rights activist, died of leukemia Sunday at 65. The Roanoke Times reviews his career.

Five indicted for identity theft at Hanover gas station

Five people have been indicted for allegedly stealing credit card information at a Hanover County gas station and withdrawing money from ATMs, reports the Richmond Times-Dispatch. More than $600,000 has been taken from more than 500 victims, according to federal authorities.

June 1

High court won't review Richmond school case

The Supreme Court of Virginia has declined to hear the appeal of a case that gave Richmond Mayor Doug Wilder control over when funds are distributed to city schools, reports the Richmond Times-Dispatch.

Judge upholds finding ODU discriminated against white officer

A Norfolk circuit judge has upheld a hearing officer's finding that Old Dominion University discriminated against a white campus police officer who was fired, reports The Virginian-Pilot.