Publisher's Notebook

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?

With the General Assembly session starting in a month, the leaders of several state bar groups are seeking war stories about how the judicial hiring freeze is affecting the administration of justice in the commonwealth.

A quick recap: Last year, for budgetary reasons, the legislature decided to stop filling open judgeships for two years. According to the Virginia State Bar, 19 judgeships are currently vacant due to the freeze. The state budget anticipates that the number will rise to 32 by the end of the budget period in 2012, due to retirements.

When he took over the VSB presidency last June, Irv Blank promised he would make the judicial freeze an issue. With an e-mail sent to all bar members last week, Blank stirred the pot and made good on his promise. Blank said that due to the freeze, “Signs of crisis are emerging in pockets across the state.”

But apparently no one is squawking. He said, “I have been told by members of the General Assembly that they have not been hearing from constituents on this issue.”

Blank wants to change that. “We need your stories of the effects of the freeze on your clients — individual and corporate — as well as on the senior and substitute judges who are taking up the slack where full-time judges are not available. I encourage you to submit those stories to me and to contact your legislators with your concerns,” Blank said.

He asked that any observations be sent to breeden@vsb.org or to Irving M. Blank, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219.

Blank’s request comes on the heels of a similar e-mail missive from Virginia Trial Lawyers Association Executive Director Jack Harris.

Harris noted that the VTLA wants to focus first on those circuits and districts where the freeze is being felt most acutely and to do that the group needs more than statistics from the Supreme Court’s executive secretary. He asked that members “tell us directly what problems this freeze is causing you in terms of delays in getting trials scheduled, having motions heard, etc.”

Harris asked that stories be sent to him (jharris@vtla.com) or the association’s director of government relations, Mandy Burnett (mburnett@vtla.com).

VBA President Steve Busch and VBA Executive Director Guy Tower recently advised members of that association that the VBA had formed a special committee on the issue, with representatives from all VBA sections. But like Blank and Harris, they want the local scoop.

“The Supreme Court’s statistical information demonstrates the overall scope of the problem, but we also want to share more real world stories about how the freeze is being felt most acutely by you—the practicing lawyers of Virginia” they wrote.

They acknowledged that continuing budget concerns probably will prevent a restoration of all the scheduled positions. But they expressed hope that information from lawyers might contribute to a working on solutions for particularly hard-hit jurisdictions.

“Thus, we ask that you supply us with stories of justice delayed or endangered in particular Circuits and Districts,” the two leaders said. They asked that information be sent to lawyersforfillingjudgeships@vba.org.

Time to speak up.

A circuit judge in Tennessee has been given a public reprimand by that state’s judicial ethics authorities for taking almost 11 years to issue a decision.

Eleven years. Talk about task avoidance.

The judge is Judge F. Lee Russell, who sits in Shelbyville, which is located between Nashville and Chattanooga. On Nov. 12, 1999, he tried a case filed by a man named David Reha against Tennessee Farmers Mutual Insurance Co. The judge took the case under advisement. A very long advisement.

In March 2003, the lawyer for Mr. Reha filed a motion to ascertain the status of the case. Why it took the lawyer three and half years to ask is another question, but nothing happened on the judge’s end.

Six and half years go by. In August 2009, counsel for Mr. Reha again asks for a status check. The judge promises a decision within a month. You know what happened to that one.

Finally, on Oct. 12 of this year – 10 years and 11 months later – the judge issues a decision and order, after Reha filed a complaint with the Tennessee Court of the Judiciary, the body that investigates judicial ethics violations and delivers discipline.

Russell violated a canon requiring a judge “to dispose of all matters promptly, efficiently and fairly,” understated the letter from the Court of the Judiciary.

Other than to note that the judge answered the complaint promptly and accepted responsibility for the delay, the letter provides no further detail and no explanation.

Think Mr. Reha was satisfied with that result?

U.S. Supreme Court Justice Antonin Scalia was in Richmond on Friday. And he took back a souvenir he said he’d never forget.

Scalia, recently named Orator in Residence at the University of Richmond, gave a talk at UR in the afternoon, then he attended the annual Red Mass at St. Benedict Church. The Red Mass, a tradition dating back to 1245 in Europe, is an annual religious service for judges, lawyers, law professors and law students. It gets its name from the bright red vestments worn by the priests for the occasion.

After the service, Scalia was the speaker and guest of honor at a dinner hosted by the St. Thomas More Society, the Catholic lawyers group based in Richmond.

In introducing Scalia, UR law professor Kevin Walsh, who clerked for Scalia, noted that the justice cited More, as depicted in the play “A Man for All Seasons,” as his favorite figure in literature. And Scalia discussed More in his talk. More was the chancellor to King Henry VIII, and he refused to capitulate to Henry when he wanted to dump his wife, Catherine of Aragon. Only the pope can grant that wish, More said, even though the papacy at the time was corrupt. Henry didn’t like that answer, and More was beheaded.

After the speech, Society President Eric Gregory and Steve Reardon presented Scalia with a unique gift – a hat just like the one worn by More in the famous Hans Holbein portrait (Take a look at the picture.) Reardon had scoured Richmond and found a hatmaker who could fill the bill.

“I hope you don’t have one like it already,” Gregory said.

Scalia, clearly tickled by his new lid, said no, adding that he’d wear it in an academic procession.

The other shoe has dropped in the case of the Maryland judge who got upset and flattened the tire of the cleaning woman who parked in his parking spot.

You may recall the story, reported here back in January: Charles County Circuit Judge Robert C. Nalley got angry last September when a cleaning woman parked in his dedicated parking space. Using a key or other sharp device, he let the air out of her tires. In October he pleaded guilty to the misdemeanor charge of vehicle tampering. He was fined $500 and ordered to write a heartfelt letter of apology, which he did.

Our colleagues up at The Daily Record in Baltimore have the story

Nalley was roasted at a two-hour hearing of the Maryland Commission on Judicial Disabilities in April, in which he essentially was asked how could he have done something so juvenile. The judge was very remorseful. But he also said he believed deflating a tire was less an abuse of his judicial power than having the car towed or insisting that police issue a citation.

The lawyer for the commission and Nalley’s lawyer reached an agreement, which was approved by the Maryland Court of Appeals yesterday: The judge is suspended from the bench for five days without pay, and he must complete that suspension within 30 days.

Interestingly, the finding from Maryland’s highest court was not unanimous. The one-page order notes that one judge voted to give Nalley only a public reprimand.

The Commonwealth of Virginia has defaulted on a lawsuit.

You read that right. The commonwealth, along with James Madison University, has defaulted on a tortious interference case in New York. We’ll know next week how much it’s going to cost you and me.

Here’s what happened: A guy named Matthew Brady was the men’s basketball coach at Marist College in Dutchess County, N.Y., for four years. He had a contract with Marist that ran through 2011.

He took a job with JMU. According to the lawsuit Marist filed, JMU and the commonwealth tortiously interfered with that contract. Also, Brady went after some of the kids he had recruited for Marist, which was an alleged breach of fiduciary duty to Marist, “intentionally induced” by JMU, according to the suit.

Procedurally, Marist filed in state court, the case was removed to federal court, where JMU and the commonwealth answered and filed number of pleadings to get the suit kicked. The suit was remanded to state court. Marist moved for default a few months after the suit was back in state court.

According to the Poughkeepsie Journal, on June 30, the court granted the default judgment motion against JMU and the commonwealth. The judge set a hearing for July 26 to determine damages. The opinion is available on the Journal’s site.

News item: Two judges in State College, Pa., have had to retract expungement orders submitted by a lawyer trying to clean up his clients’ records. The initial papers ordered all pertinent agencies to remove traces of charges against two people; included were directions to two local newspapers to purge any coverage of those same offenses from their databases and archives. When the papers cited the First Amendment, the judges woke up, acknowledged same and reissued the expungement orders. The lawyer, Joseph Amendola, said, according to the Associated Press, that he was concerned “the media’s First Amendment rights to free speech were trumping his clients’ rights to have cleared records.”

I hope the folks at the Thomas Jefferson Center for the Protection of Free Expression are paying attention to this story. Every year, they give out their “Muzzle” awards, citing violations of the First Amendment. The center announces the awards each year on April 13, Mr. Jefferson’s birthday. This guy at least deserves a nomination.

Lawyers bring expungement motions for a variety of reasons — charges have been dropped or dismissed, or someone successfully completes a rehab program or a probationary term. One can appreciate the lawyer’s trying to protect his clients’ records and reputations. The courts can control the official records, which will show nothing after the expungement. But going after newspapers, and trying to make it appear as if an event never happened, sounds like something you’d find in George Orwell.

Mr. Amendola cited what may be a legitimate concern: Once an article is published and Google gets hold of it, it lives in a Google-cached world forever. He said this is a “national issue” that “needs to be decided by the legislature.” Maybe he should review his con law.

What’s even more problematic, though, is that the judges in State College have been signing similar orders submitted by this lawyer and others almost routinely, maybe without reading them and certainly without much thought.

The two judges said that they had 36 prior expungement orders directed at the local papers to review and correct. Toss them into the hopper for a Muzzle nomination, too.

How many decisions have we featured over the years in which a lawyer or a law firm is forced to bring suit to collect an unpaid fee, and a judge whacks it down? Sometimes a lot. Sometimes the lawyer gets only pennies on the dollar.

That’s time out of that lawyer’s life that he or she will never be able to put to good use for another client. When all you have to sell is your time and expertise, one of those results can be a gut-punch. And you know what? Invariably, those cases are highly popular.

Out of Henrico County this week, here’s something new: A law firm sued a client for unpaid legal fees…and got every penny it asked for.

Click here to check it out.