Publisher's Notebook

The Federal Bar Association threw a party last night, ostensibly honoring all the federal judges who work in Richmond. But it turned out to be a final farewell to U.S. Magistrate Judge Dennis W. Dohnal, who is retiring from the bench next week.

Dohnal is wrapping up 12 years on the job and will become a mediator with The McCammon Group.

U.S. District Judge James Spencer saluted Dohnal for his work and his efficiency. The judges in the Eastern District take their reputation as the “rocket docket” seriously and want to keep the #1 ranking as the fastest trial court to move cases from filing to resolution.

He thanked Dohnal for his hard work, all done with grace and a sense of good humor, long one of Dohnal’s distinctive traits.

Spencer said the Richmond federal judges passed the hat and collected enough money to give Dohnal a healthy gift card to a marine shop so he can buy something for his boat.

The judge also said the group wanted to buy Dohnal a case of his favorite wine as a going-away present.

Spencer went to a tony wine shop and asked the clerk if they carried the particular brand. The clerk was “offended,” he said.

Where can I find that, Spencer asked.

“Food Lion?” the clerk offered.

Spencer (who judiciously didn’t name the wine) said they bought Dohnal three bottles of his favorite and completed the case with a few others that were a little more “aspirational.”

Given his moment, Dohnal cracked that he often wondered what it would be like to attend his own funeral; with all the nice comments, it might have seemed that way.

FBA President Rick Witthoefft noted that Dohnal’s work at a variety of legal causes was tireless. He chaired a Virginia State Bar group that spent several years in the late 1990s working through changes to the ethics code that became the Rules of Professional Conduct in 2000.

Dohnal’s other good-guy works have been chronicled for 20 years or more in this newspaper. He served on numerous panels. He spearheaded an effort to raise court-appointed pay in Virginia. He was tapped as one of Virginia Lawyers Weekly’s “Leaders in the Law” in 2010. The other members of the Class of ’10 voted him as “Leader of the Year.”

What’s next? He and his wife Alicia are taking a trip to Hawaii (it’s been 42 years since his last visit). On Feb. 13, he reports to McCammon for mediation training.

Part of that training includes a session on mediation ethics. But that should be a crib course.

The author of the course materials: One Dennis W. Dohnal.

Judges in Virginia are elected by the General Assembly, and the Old Dominion is now the only state using this system. South Carolina used to be with us, but they have adopted a two-step process using judicial evaluation panels.

Many states have direct election of judges, one of which is Louisiana, where I visited last weekend for the national convention of the Society of Professional Journalists.

On a ride up Canal Street on a New Orleans streetcar (it was really hot and steamy, prompting a colleague to call our vehicle “A Streetcar Named Perspire”), I saw proof that Louisiana is very different from Virginia.

Any number of law firms line Canal, which is a major thoroughfare. And in the lawns of their buildings, you’ll find … campaign signs from judicial candidates. The picture above shows the lawn of a law firm, decorated with signs from several judge wannabes.

So, if you’re a lawyer who puts a judicial candidate’s sign on your lawn, what happens if that guy wins? On the other hand, what happens if the other guy wins? Just asking.

U.S. District Judge Sam Sparks of Austin, Texas, made headlines earlier this month, as noted in this space, when he whacked the lawyers in a civil dispute in his court. Because of their behavior, he ordered the two to appear at a “kindergarten party” he would be holding in his courtroom.

The lawyers quietly settled their dispute after that and the judge cancelled the party, reported the Wall Street Journal Law Blog.

But they talk plain down in Texas, and Sparks got a not-very-subtle reminder that everyone has a boss, or at least someone to whom he or she is accountable.

In Sparks’s case, that would be the 5th U.S. Circuit Court of Appeals. According to the Texas Lawyer, Sparks got a caustic letter from 5th Circuit Chief Judge Edith Jones after his “kindergarten” order got national play.

She wrote,

Dear Sam, It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks. The order attached below is the most recent. Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel. No doubt, none of us has been consistently above reproach in our professional communications with counsel. We are all prone to human error. But no judge who writes an order should allow such rhetoric to overcome common sense. Ultimately, this kind of excess, as I noted, reflects badly on all of us. I urge you to think before you write.
Sincerely, Edith Jones

Ouch. Somewhere in Texas, two lawyers are snickering.

The Ninth Judicial Circuit in Virginia at long last got a new circuit judge earlier this month, when York County J&DR Judge Richard Y. AtLee Jr. got the nod.

AtLee was sworn in on Aug. 15 by none other than his mother, Isabel H. AtLee, who is the chief judge of the 9th Judicial District.

Overseeing the ceremony, no doubt with great pride, was Hampton lawyer Richard Y. AtLee, who provided the snap of the event at right.

WINTERGREEN—Lawyers need to do a better job at bringing along the newest members of the profession, according to Court of Appeals Judge William G. Petty.

The medical profession requires its new members to serve a residency, learning at the elbows of senior physicians. But lawyers have no comparable formal program.

“Doctors train on cadavers. Lawyers train on indigents,” he observed. In areas without a public defender, the newest lawyers get criminal appointments.

The solution: The bar should “develop institutionalized mentoring” of some type to revive the means of teaching the mores and techniques of practice to new lawyers, Petty told the attendees of the Virginia State Bar Disciplinary Conference July 15.

Such an arrangement “will do more to enhance professionalism than anything else I can think of,” he said.

Law school teaches you how “to think like a lawyer” not “to be a lawyer,” Petty said. That’s a big distinction and only comes from experience, he added.

Petty spent nearly 30 years as the commonwealth’s attorney in Lynchburg, and he said that years back in his area, the judges routinely would appoint two lawyers to handle a felony criminal appointment, one a senior member of the bar and one junior. “The court left it to the lawyers to determine how to split the fee,” he said.

The senior lawyers got the opportunity to “give back” and the juniors got a safety net and the chance “to commit mistakes before they became serious.”

But today with the crush of business and the compartmentalization of law practice, arrangements like these are a thing of the past.

When he was Lynchburg’s top prosecutor, Petty said his office routinely would hold staff meetings that served to enhance his assistants’ preparation. Each lawyer was asked to review a case he or she was handling was handling and to explain “what we could prove” if and when it went to trial, plus the reason for pursuing a given charge.

Senior lawyers in the office would offer suggestions and improvements.

That’s an example of how a team of prosecutors worked to bring along the most junior lawyers.

Petty said “whatever area” you handle, “consider how to reach down and provide guidance and mentoring.”

Those steps will enhance the level of professionalism among the bar as a whole and will serve clients well.

“Always look for ways to do things better,” he said.

As potential crimes go, what’s one step dumber than driving off in a police car?

Stealing a judge’s robe.

This past week, a Philadelphia municipal judge, Joseph C. Waters Jr., took a break from the bench to go to the men’s room.

He left the door to the robing room unlocked. He came back and his robe is gone, according to the Philadelphia Daily News.

Think about it: Who would steal a judge’s robe? You can’t wear it on the street. You can’t hock it on the street, either (“Psst, buddy. Wanna buy a robe? Barely used.”).  You might make it part of a Halloween costume, but then again, you could probably find a robe reasonably cheap at Party City.

I wouldn’t want to representing a defendant before Waters that particular afternoon.   

Maybe Philadelphia’s not as tough a town as they would have you believe. A memo went out to all courthouse personnel. Shortly thereafter, reports the ABA Journal, a secretary sheepishly returned it to Waters. She had taken it, thinking it belonged to her boss.

Trend Alert: Judges increasingly are resorting to humor, pop culture references and rhymes in their opinions.

The Wall Street Journal reports this morning that judges across the country are more frequently using these devices to spice up otherwise drab legal discussions in their opinions.

The Journal cites a federal judge from Texas, Fred Biery, who recently wrote in a decision about cars that sit idling. These vehicles leave “automobile droppings” on the road, wrote Biery, “which the court calls Petro Poop.”

They probably know more about petro poop in Texas than we do here in Virginia. But we have had judges who heard a similar muse. At least one decision has been handed down in rhyme: Back in the early 1990s, Judge J. Robert Stump issued a letter opinion as a long poem. And retired U.S. Bankruptcy Judge Hal J. Bonney Jr. of Norfolk was famous r his humorous, and occasionally off-the-wall, opinions.

More recently, U.S. District Judge Jackson Kiser used a footnote for a pop-cult reference: He discussed “The Shaggy Defense.” What’s that, you ask? In a 2000 song, R&B singer Shaggy counseled a friend to deny everything and to claim “it wasn’t me” when caught red-handed.

One observer, Prof. Andrew McClurg, says judges do this to break the monotony of their work and perhaps to get a little extra attention. McClurg keeps track of such developments at his website, www.lawhaha.com

Some lawyers and judges like the trend, others not so much. We’ll see how long a run this development has.

I’ll close with an example, proof that everyone wants in on the act.

Call this one Law Noir. A jurist recently wrote, “North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak.”

The author: U.S. Chief Justice John Roberts, in his dissent in Pennsylvania v. Dunlap (2008).

The war metaphors for testy litigation are many: Battle, fight, skirmish, all-out assault.

And trial lawyer-warriors sometimes get too pumped up. In Richmond, about 20 years ago, a prosecutor and a defense lawyer took all the battle talk one step further: They came to actual fisticuffs in a courthouse hallway.

On the bench, we expect cooler heads. And in the rarified, high-rent air of a state supreme court, we expect reasoned discourse and disagreement to be agreeable.

Up in the Badger State, however, one justice of the Wisconsin Supreme Court has accused another of choking her during an argument. The alleged altercation came right before that court handed down a 4-3 decision upholding the state’s controversial measure curtailing the collective bargaining rights of public employees.

One of the court’s liberals says one of the court’s conservatives put his hands around her neck during an argument in her office. He has denied the incident occurred.

Our colleagues at the Wisconsin Law Journal have the story.

Supreme Court Justice Bill Mims celebrated exactly one year on the job last Friday with a talk to the Virginia Trial Lawyers Association entitled, “Reflections from the End of the Bench: Musings of a Rookie Justice.”

Mims will graduate to veteran very shortly: Either the General Assembly or the governor will be adding two new justices to fill two vacancies. Mims will jump to fifth in seniority on a seven-member court.

Mims came to the court after a career as a practicing lawyer, as a member of both the House of Delegates and the Senate, and as Attorney General. He said he agrees with a statement made by U.S. Supreme Court Justice Samuel E. Alito: “Judging is not an academic pursuit; it is a practical activity.”

Mims observed that the Virginia high court isn’t known for having very many dissents or concurrences. The court generally speaks with one voice.

Of 74 cases during his first year on the court, Mims said there were only eight dissents with no discernible pattern. And there were just six concurrences.

Of those six concurrences, five were filed by … the rookie justice himself.

Mims said his daughter, a first-year student at the University of Virginia law school, apprised him that he better quit that.

She cut to the chase and said, “No one is known at the Great Concurrer.”

When I was a newbie lawyer years ago, I got one of those nuggets of advice you hang on to.

I was discussing case files with one of the partners, describing the legal research I’d done and what the case law seemed to be. He asked, “What does the Code say?” He added, only half in jest, “When in doubt, always look at the Code.”

A week or so later, different partner and different set of files. Same question after I delivered my spiel: “What does the Code say?”

It took hearing this question about three times until I realized it was a good idea to check the Virginia Code before meeting to discuss files.

And, after changing careers and moving to this newspaper, I myself have asked that question of every reporter I’ve worked with when we’ve reviewed stories before publication. Different venue, same important point.

The Code of Virginia controls. The Code is complicated, with clauses that have to be harmonized with other pieces and parts. In numerous sections, it looks like what it is: a patchwork put together over a number of years, sometimes haphazardly. But it’s the law, so you always look at the Code.

A lawyer named Eric Clingan in Fairfax looked at the Code and won a big victory for a traffic client a few weeks ago, in a case that drew national attention.

The guy was charged with passing a stopped school bus, which is a reckless driving offense.

The General Assembly amended the law in 1970, but it inadvertently wiped out a two-letter word, “at,” in the statute. Haphazardness at work, no doubt.

Virginia Code § 46.2-859 states, “A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped…for the purpose of taking on or discharging children.”

Clingan argued to a general district judge that the “at” was missing. Thus, the statute applies, he argued, to the driver of the bus, not another motorist. Take out the clause that starts “when approaching” and you’ll see: “A person is guilty of reckless driving who fails to stop…any school bus.”

Clingan said the general district judge told him, essentially, “Very interesting argument, Mr. Clingan. Guilty.”

Reckless driving is a six-point traffic offense. The client, whose name was Mendez, wanted to appeal, Clingan said.

In circuit court, Clingan argued again the word “at” had been dropped when the statute was amended 40 years ago. And he repeated the theory that the statute as worded now is pointed at the bus driver. He consulted a composition professor at George Mason who concurred.

Fairfax Circuit Judge Marcus Williams listened to the argument, Clingan said, then dismissed the charges.

You know you have an important case when a legislator immediately jumps on your case and promises a legislative fix. Del. Scott Surovell, D-Fairfax, already has introduced House Bill 1469 for the 2011 General Assembly session; the bill will restore the word “at” to the law.

You know you have a really important case when it’s turned into a hypothetical for legislators interviewing judges seeking another term.

On Dec. 10, a couple of legislators asked a general district judge about the school bus case, and what he would do if he had the matter on his docket.

In so many words, he said the Assembly obviously intended to protect children when it passed the statute, and he would convict the defendant.

Along with the Fairfax general district judge, that makes two judges who read a statute, knew or should have known the law had a mistake, but convicted, or would convict, despite that error.

When in doubt, look at the Code.

Doesn’t that apply to judges too?