Publisher's Notebook

Who knew that appellate law would be one of the fastest-developing areas of practice across the country this fall?

In August, a judge of the 6th U.S. Circuit Court of Appeals filed an opinion “dubitante.” Translation: He was dubious. He didn’t like the result and didn’t really want to concur. But he didn’t really want to overturn the result either.

Now, the chief judge of the 9th U.S. Circuit Court of Appeals has carved out yet another possibility that can take its place alongside “concur” and “dissent” and “dubitante.”

In a hopelessly fractured immigration case, Garfias-Rodriguez v. Holder, Judge Alex Kozinski has filed an opinion that bears this header: “Chief Judge KOZINSKI, disagreeing with everyone.”

The California Appellate Report blog noted that the voting in the case, heard en banc, was 6-1-1-1-1-1. There were six different opinions filed, including Kozonski’s disagreement.

If the judge wants to create a new brand of opinion, seems like it needs a catchy name. “Dubitante” sounds kind of French, even though it actually comes from Latin.

How about “desaccord,” since that’s the French word for “disagreement.” Sounds sufficiently legal, too.

Give the blog How Appealing props for first reporting this case; the Law Blog of the Wall Street Journal has a nice piece as well.

It remains to be seen if the 4th U.S. Circuit Court of Appeals is interested in an import such as the Desaccord. Smart money says maybe not.

Federal law prohibits making threats to injure someone else.

The statute, 18 U.S.C. § 875(c), has been on the books since the 1930s, and it has been used to prosecute everything from extortion to stalking to basic promises to commit bodily harm.

Government prosecutors in Tennessee made some legal history when they scored a conviction under this statute against a guy who threatened a judge in a YouTube video. The case marked the first time YouTube provided the means to commit the crime.

The defendant, Franklin Delano Jeffries II, was embroiled in a tangled visitation fight. He wrote a song, “Daughter’s Love.”

But this tune wasn’t one of those “Butterfly Kisses”-like paeans to his kid. It wasn’t even a tune in which he was off in his truck and stopped to call from a pay phone to say, “I’m on my way, darling.”

No, it included tender lines such as, “Take my child and I’ll take your life” and “you don’t deserve to be a judge and you don’t deserve to live.”

Jeffries posted the video on YouTube, then sent messages about it to a number of his Facebook friends. He took it down 25 hours later. Too late. His ex-sister-in-law saw it and tipped the judge. The authorities also viewed the video and federal prosecutors went after Jeffries, gaining a conviction under § 875(c).

The 6th U.S. Circuit Court of Appeals affirmed this week in a unanimous panel opinion written by Judge Jeffrey S. Sutton.

Sutton worked through the defense arguments, which included discussion of whether the threat had to be objectively real to a reasonable person or subjectively real in the mind of the victim. And the First Amendment came into play as well.

But the Jeffries case was somewhat unusual. Sutton filed the affirmance, but he filed a second opinion – an “opinion dubitante.”

Wait a minute, you say. You’ve got concurrences and dissents. What is a dubitante?

It’s actually a third category that doesn’t get used very often. It’s a way for the judge to say, “I have some doubts and I’m not entirely happy with this result, but I’m not going to say it’s wrong. But I have some doubts.”

If you’ve never heard of it, you are not alone. A Marquette law prof, Jason Czarnezki, wrote a law review article a few years ago that said as of 2006, there only had been 626 dubitante opinions in American jurisprudence ever. The U.S. Supreme Court has used it 12 times.

What sent Sutton off to the dubitante ball in the Jeffries case?

He wondered if the 6th Circuit had been reading the law right. The statute doesn’t contain a definition of “threat,” which one might assume automatically requires some subjective sense of discomfort from the victim. But the conviction was in line with precedent.

Jonathan Harwell, Jeffries’ lawyer, told an Associated Press reporter that the dubitante opinion may be an invitation to ask the 6th Circuit should look at the case en banc; he is reviewing his options.

As for Jeffries, he is back in jail, Harwell said. He served 18 months for the YouTube video, then had his probation revoked. Presumably he has his guitar with him, but not his computer.

WINTERGREEN–The chief judge of the Virginia Court of Appeals had a few words of advice for the men and women who mete out lawyer discipline.

Dishonest lawyers are a pox and should be gotten rid of.

But mistakes are easy to make and may be prompted by any number of reasons – family problems, age, money problems, substance abuse issues. For lawyers who fall into those categories, he said he hoped the bar would find a way to help that person get over and through the problem and get back to being a productive member of the profession.

Judge Walter Felton’s call for compassion came at the Virginia State Bar Disciplinary Conference July 13. The annual gathering brings together the VSB’s disciplinary staff with the volunteers, both lawyers and laypeople, who serve on the VSB Disciplinary and the bar’s regional disciplinary committees.

And some lawyers get in trouble because they take cases they have no business taking because of financial pressure. Felton expressed concern for newer lawyers.

“More and more young lawyers don’t have the ability to do what they’re trying to do,” he said. There is “no mentoring” for them, and with an overbearing debtload from their law school student loans and the need just to keep the lights on, they get into trouble.

Felton said he knows that those in the disciplinary system see these problems. But he and his colleagues on the appeals court see them as well.

The lack of mentoring shows up there in the poor behavior of lawyers who don’t know how to act – and this lack of civility and professionalism leads lawyers to hyperventilate and make ad hominem attacks against opposing counsel or the opposite party.

In an anecdote that showed steel beneath the judge’s typical courteous manner, Felton told how one lawyer in a support case attacked the opposing party, saying things such as “her only impairment is her indolence” and other denigrating comments.

The judge said the court put all that language in its opinion, along with its “tart ruling” against the lawyer who made those comments.

Then Felton sent the lawyer’s brief to the bar, citing the canon that requires a judge to report lawyer misconduct when he or she sees it.

Felton saluted the men and women who handle discipline of lawyers, noting that their work is important to a self-regulated profession.

And he asked them to be “discerning.”

Dishonest lawyers? “Remove them” from the profession.

Lawyers with problems? For those able to be rehabilitated, Felton called on the bar to “provide some system or direction on how to get deficiencies corrected.”

Be “firm but compassionate,” he asked.

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).