Publisher's Notebook

Today is National Punctuation Day.

It’s not one of those made-up holidays that Hallmark concocted to sell greeting cards. It’s a made-up holiday created by a former reporter, Jeff Rubin, who was fed up with commas, and apostrophe’s being put in the wrong place.

2010 marks the seventh annual celebration of the punctuation movement. Last year, they had a bake sale. This year, they are running a haiku contest. Really. The deadline is Sept. 30. The entries, available at the NPD website, include items similar to this one:

Raised by two parens
I’ve been bracketed since youth.
I’m an inside job.

How does one celebrate National Punctuation Day? The owners of NPD (yes, it’s trademarked) suggest going to a bookstore to buy a copy of E.B. White’s The Elements of Style and carefully observing the signs along the way, helpfully correcting those with errors. Then go home and write an error-free letter to a friend.

Good advice, I suppose. You don’t want to be a person who doesn’t know what an apostrophe’s for.

Here’s one for the civil procedure junkies.

A veterinary supplies company says that a vet named Rasnic owes it $74,139.24 and wants to sue to collect. Can the company, Merial Ltd., sue in federal court?

It’s a contract action and there’s no federal statute involved, so the plaintiff has to rely on diversity of citizenship under 28 U.S.C. § 1332(a) to get into federal court. Company is based in Georgia, defendant is from Scott County. Check. The magic number for diversity jurisdiction, any one-L will tell you, is $75,000. So Merial is about 800 bucks short.

Wait, Merial also wants interest of about 15 grand and $2,500 in attorney’s fees, based on language in its invoices. However, the federal rule says $75K, “exclusive of interest and costs.” Rasnic asked that the claim be dismissed.

Merial still can go forward in federal court, according to U.S. Magistrate Judge Pamela Meade Sargent in Merial Ltd. v. Rasnic. The judge provides a handy primer on what to argue when you’re oh-so-close to that 75K figure. Tuck a copy of this one in your federal procedure file.

The judge noted there were a number of exceptions to the interest-doesn’t-count rule, although they didn’t apply here. And some states may allow interest as “incidental damages,” although Virginia doesn’t.

Merial argued the interest and attorney’s fees were part of the parties’ agreement, citing language in its invoices. The wording on the front of the invoices, copies attached to the pleadings, says the merchandise sold was subject to the terms and conditions printed on the back of the invoice. The words on the back allowed for 12 percent annual interest and reasonable attorney’s fees if the balance wasn’t paid, according to the complaint.

But the judge noted, “Merial has not provided copies of the back of these invoices.” So close, then again, so far away.

Actually, not a problem. Sargent applied the “legal certainty test” to Merial’s claim, which saved the day. That test provides that the defendant must show “to a legal certainty” that the plaintiff can’t meet the jurisdictional amount, a pretty tough task.

The judge wrote that the fact that Merial says the invoices have the interest and fees language on the back makes it easy to get over that bump, at least for the purpose of this motion. Rasnic’s claim that he didn’t agree to those terms can wait till later.

Sixteen pages later, Merial and its lawyer can relax, knowing they don’t have to start over in state court. Memo to counsel: Next time, copy both sides of the invoice.

When The Washington Post writes about Attorney General Ken Cuccinelli, one wants to take the story with a grain of salt. Maybe even a shaker.

You get the idea that Cuccinelli’s brand of in-your-face activist conservatism doesn’t play very well there.

So when Peter Vieth, our legal editor, filed a Daily Alert item for a Post piece this morning that purported to examine “a number of controversial opinions” by the AG, I nearly ignored it. I’ve seen that movie.

Then I read the article. Get past the hyperbolic adjectives used by the reporter to describe Cuccinelli, and there’s a good story and some good reporting: It’s about a number of AG opinions on social issues.

And the requests that prompt them come from the same man, Del. Robert Marshall, R-Prince William.

There’s squawking over the duo’s apparent use of the legislator request system for AG opinions. With 10 requests to the AG already, Marshall has exceeded the figure for any legislator ever seeking opinions during any AG’s four-year term.

Democratic critics say the pair is circumventing the legislative process to advance a social agenda. Wait, what’s that echo? The sound of Republicans barking at President Obama for his use of executive orders to advance a social agenda?

But as U.Va. legal scholar A.E. Dick Howard points out, Marshall’s and Cuccinelli’s apparent use of the opinion device is not unconstitutional, just not “contemplated” by the Framers. Stay tuned.

The NFL season opened this past weekend, and hope is everywhere. From Miami to Seattle to Houston to … Washington?

In honor of Week 1, here’s a Lawyer Could-Have-Been – Cris Collinsworth, the one-time Cincinnati Bengal who took over John Madden’s seat on NBC’s Sunday Night Football this season.

Collinsworth went to the University of Florida, where he played football and earned a degree in accounting in 1981. Tall (6’5”) and fast, he was drafted by the Bengals in the second round and played eight seasons, appearing in Cincy’s two Super Bowls, both of which ended in San Francisco victories. The 1989 SB, Collinsworth’s last game, was one of the more interesting title games, featuring a last-minute touchdown drive led by 49ers quarterback Joe Montana.

Collinsworth moved into broadcasting, taking a reporter’s job at HBO. But he was hedging his bets. He started law school part-time at the University of Cincinnati law school in his next-to-last season with the Bengals and earned his law degree from UC in 1991. But his TV career went well and he has yet to take a bar exam anywhere.

By the way, one of Collinsworth’s sons plays football for Notre Dame, where he is a teammate of Nate Montana, son of Joe.

(Photo by Mitchell Haaseth / © NBC Universal, Inc.)

Newspapers base their success on hustling news and selling ads. (And on selling subscriptions, but this item is about the other two).

News and advertising in a paper don’t always jibe. Take this morning’s Richmond Times-Dispatch as an example.

The Metro section has a story about a U.Va. student charged with murdering his father. The alleged weapon was unusual – a 4-pound bowling pin, a memento of a birthday party.

(If you take a bunch of kids to a bowling alley for a birthday party, the honoree gets a free actual bowling pin. All the kids who attended sign it. We have one somewhere in the garage or the attic).

The bowling-pin murder story jumps to page B-8, where you’ll find the end of the obits and the crime log.

Then turn the page. On B-10, there’s the jump of a story and a big, half-page, four-color ad for … Bowl America. “You can be a star at Bowl America,” the ad says. Get info at www.bowlingparty.com.

Boy, that was close. The T-D’s production team was either very alert or very lucky. You be the judge.

It’s another holiday weekend. That means another press release from the National Motorists Association warning drivers about where you are likely to get caught speeding. The NMA bills itself as a “motorists’ rights group.”

Back around the 4th of July, we had an item on their list of states where you’re most likely to get a speeding ticket.

Just in time for Labor Day, they have a slightly different list — places that are the “worst” for speed traps.

The group notes that a lot of families travel over the holidays, and they created the list “to help [them] avoid a depressing and expensive holiday traffic ticket experience.” Plus, the release continues, financially strapped local and state governments may be looking at speeders as a cash cow. Thanks to budget crunches, motorists may “have good reason to feel like they have dollar signs painted on their vehicles.”

As with the ticket list before it, you can decide whether you buy the NMA’s methodology. The list contains “the most user-reported speed traps” by state. The who, how and when of the reporting aren’t mentioned in the release.

Two cities are listed for each state. The first is the one containing the largest number of reported speed traps, regardless of size.

Virginia Beach takes the top honors for the commonwealth.

The second category is the most speed traps among cities with 100,000 or fewer residents. Fairfax is their choice in that category.

You can get specifics on 60,000 speed traps across America at www.speedtrap.org.

You can buy the NMA’s info or not. It’s up to you. But either way, if you travel this holiday weekend, as they used to say on “Hill Street Blues” back in the ’80s: “Let’s be careful out there.”

If you and your law firm ever have had to deal with a “difficult” employee, here’s one for you.

A medical clinic in Salem hired a guy named Jones to serve primarily as their receptionist. As in the guy who answered the phones. Who greeted patients. Who was their “Director of First Impressions.”

That didn’t work out so well, according to Jones v. VEC (VLW 010-8-151):

* Mr. Jones was discourteous to patients and gave them wrong information.

* He didn’t get along with his boss or the rest of the staff too well, either. He was insubordinate, ignored directions and failed to communicate with his supervisors.

* At least three patients took their business elsewhere because of him.

His supervisor counseled him. Repeatedly. You know where this is headed. They fired him.

He did what a lot of fired employees do: He filed for unemployment compensation. And he got it. Presumably there was some kind of informal hearing, probably over the phone, but the guy was awarded benefits.

Ex-employees who seek unemployment comp generally will get it, unless they were discharged for “misconduct related to the work.” The Supreme Court has set a pretty high bar to snuff out benefits: The behavior, according to a 1978 case, must be a deliberate violation of a company rule, or acts which are “of such a nature and so recurrent as to manifest a willful disregard” of the employer’s interests and the duties owed by the employee.

The leaders at the clinic probably looked at the piece of paper awarding benefits, then they looked at their presumably thick personnel file on Jones. The boss probably remembered all the conversations and the degree of aggravation. Then they probably thought about the three patients he ran off, the ones that they knew about. It’s doubtful they thought, “Heavens. This isn’t right. That man manifested such a willful disregard for our interests!” No, their thoughts were probably more vernacular, something along the lines of “WTF?”

So the clinic said, in so many words, “Take this claim and shove it.” They appealed to the full employment commission. And they won.

But Mr. Jones took the litigation one step further, appealing to circuit court. His argument, according to Judge Robert P. Doherty: I didn’t mean to do it.

Doherty noted that Jones admitted that a number of incidents cited by the clinic took place. And Jones acknowledged that his boss talked with him. He did not challenge the fact that three patients were lost.

But apparently appearing pro se, he argued that his acts were “accidental mistakes” and that he was not being “deliberate or willful.” Put another way, he was arguing, that’s just the way I am.

Doherty didn’t buy it. The circuit court acts as an appellate court when hearing an unemployment comp case, he noted. The judge said that he therefore was bound to give great deference to any factual findings of the commission.

Jones claimed the commission wrongly gave more weight to the clinic employees’ testimony. But Doherty said the burden of proving that was high. Jones would have to show that no reasonable person would have reached the same conclusion as the commission.

So go back to the person who originally awarded unemployment to Mr. Jones. How reasonable was that?

Here’s a preview of coming attractions.

In October, we will publish our “Leaders in the Law” magazine, highlighting the honorees in the Class of 2010. Right now we’re collecting info and stories from this year’s group and preparing the copy for the magazine.

They are a highly successful and accomplished group. But one leader admits he wasn’t always so.

Rick Witthoefft of Hirschler Fleischer offers an example of how not to get a job at a law firm. The culprit: himself.

He reported that early on when he was looking for legal work, he put together his resume and a nice cover letter to a firm. Signed, sealed, mailed.

Then he realized that in the envelope he somehow had included “a 3×5 card on which my wife had just typed a friend’s banana nut bread recipe.” Oops.

Witthoefft considered his options. He noted that’s when he learned “that breaking into a public mail box is a federal offense.”

Did he get the job? Nope. But he said he “heard later that they liked the recipe.”