Publisher's Notebook

Years ago, lawyers majored in law in college then took the bar and went on to their legal careers.

Anymore, of course, a degree from a law school is required to sit for the bar.

Here’s one from the Everything Old is New Again file.

In this morning’s Wall Street Journal, a Northwestern University law professor and a Chicago lawyer have penned a column arguing that we should cut out law school and allow undergraduates to major in law.

Their reasons: This measure would cut the costs of education, increase the number of lawyers, lower the fees charged by lawyers and serve the public better.

You make the call.

WILLIAMSBURG–Virginia Beach lawyer Steve Emmert knows a thing or two about taking a case up on appeal.

He’s one of the lawyers who has built appellate law into a recognized and well-respected area of practice in Virginia.

He’s served as chair of the appellate practice sections of both the Virginia State Bar and the Virginia Bar Association.

Emmert was asked to speak to the Virginia Association of Defense Attorneys’ annual meeting in Williamsburg Oct. 28. He told me before his talk that he had to dig deep into the past to the time he regularly tried cases; he knew his crowd was more interested in the courtroom than the appellate chamber.

For a guy who is a member of the Virginia Trial Lawyers Association’s board of governors, his talk to the VADA was a trip to or from the dark side, depending upon your perspective.

Instead of droning on through 45 minutes of “how to preserve this point,” Emmert did a reverse flip and presented the “Top Ten Ways to Sabotage Your Appeal.” In other words, be sure to do these things if you want to guarantee your appeal is a failure. As for his format, Emmert joked that “people told me I looked like David Letterman before I grew a beard.”

Herewith, Emmert’s list:

10. Make nice fuzzy, vague objections. Don’t give any reasons for objections, just say, “I object.” This “speeds up” the trial, Emmert said.

9. Rely on the “plain error” doctrine. This catch-all rationale lets an appellate panel fix a problem that is just plain wrong. It also allows the appellate lawyer you hire to “ride to the rescue,” he said. The only problem here is that “plain error” is defined narrowly in the Rules of Court.

8. Accept the judge’s ruling and just move along. You might risk the judge’s wrath, but there are times when you need to insist on a line of questioning. Also, there are times to insist on proffering evidence, even in the face of an adverse ruling, Emmert said. If the proffer isn’t part of your record, the appellate judges can’t see what you were trying to do and whether you were right.

7. Get the trial over with, already! As jury instructions are being read, don’t follow along to see if there is a mistake.

6. File a motion in limine, then relax. Some questions need to be taken care before you start swearing in witnesses, and pre-trial motions will help you, the other side and the judge to sort things out. If you don’t push these and wait until all those issues come up in trial while the jury is sitting in the box, you don’t have to worry about victory.

5. Let sleeping judges lie. Judges take issues under advisement during a trial, then forget about them. If you don’t bring them back up or press for a ruling, the issues stay forgotten and lost as potential points of appeal. There might be a time to go for the nuclear option: “Your honor, I object to your failure to rule on my objection.” The judge may not like it, but the Supreme Court of Virginia has said “it’s what you have to do,” Emmert noted.

4. Test your memory. You can save space in your trial notebook if you just plan to remember everything. If you don’t bother with writing down a list of unresolved motions or objections, or you don’t list exhibits that need to be included, you won’t have to deal with them later, he said.

3. Renew your motion to strike. This once-clear practice has turned into a tricky appellate trap, thanks to a pair of cases from last year – Murillo-Rodriguez v. Commonwealth, 279 Va. 74 (VLW 010-6-008), and United Leasing v. The Lehner Family Business Trust, 279 Va. 570 (VLW 010-6-031). The bottom line – if you don’t restate your reasons behind the motion to strike when you renew the motion, you’re cooked. A mere renewal isn’t enough, Emmert said.

2. Go placidly off the record. If you approach the bench at the judge’s invitation or go back to chambers to resolve issues out of the presence of the court reporter, you have forfeited them as appeal points because you “make sure nothing happened.” One alternative – once you’re back on the record, you make a statement reiterating the pertinent issue, including what was ruled and even why.

1. Be relentlessly polite. You’re taught as a child never to interrupt anyone, but impeccable manners in a trial might insure your loss. You need to be ready to jump in and object, even if the judge “takes the wheel” and starts asking questions of a witness.

“Your honor, I object to what you’re doing” is a statement that might require some guts, but ultimately, your client – either the plaintiff or the defendant – didn’t hire you to be milquetoast.

If you think the idea being a lawyer sounded better before you went to law school, took the bar exam and started practice, you are not alone.

“Attorney” made the list of the “Most Overrated Jobs of 2011,” just released by the Internet job site CareerCast.com, taking sixth place.

The folks at CareerCast.com define overrated jobs as “those that on the surface seem to be outstanding, but in reality carry unrecognized downsides that can, at times, make them not so great after all.”

Some of the drawbacks are more stress, environmental dangers and physical demands than are typically recognized. In the overrated fields, the hiring outlook may be dismal, even depressing.

Topping the 2011 list was “Senior Corporate Executive” (and this was before the Occupy Wall Street people started agitating), followed by “Surgeon.”

All is not lost at a law firm, reports CareerCast.com. They also publish a companion list of the “Most Underrated Jobs of 2011.”

Number one on the underrated list: “Paralegal/Legal Assistant.”

U.S. District Judge Sam Sparks, who sits in Austin, Texas, is fed up with petulant, childish litigation. So he’s doing something about it.

In a case styled Morris v. Coker, he said that three non-parties had “invited” the court to quash several subpoenas that were “not properly served, are overly broad and unduly burdensome and seek privileged information.”

In response, Sparks issued an “invitation” of his own to two lawyers, counsel for the defendant who wanted to take the three depos and the lawyer who filed the motion to quash.

He said the men were invited to “a kindergarten party” in his courtroom to be held Sept. 1.

He added, “The party will feature many exciting and informative lessons, including:

• How to telephone and communicate with a lawyer
• How to enter into reasonable agreements about deposition dates
• How to limit depositions to reasonable subject matter
• Why it is neither cute nor clever to attempt to quash a subpoena for technical failures of service when reasonable notice is given; and
• An advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first year law student.”

Sparks also said, “Invitation to this exclusive event is not RSVP. Please remember to bring a sack lunch!”

And he concluded, “The U.S. Marshals have beds available if necessary, so you may wish to bring a toothbrush in case the party runs late.”

I wouldn’t want to be those guys.

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.

Anyone who has ever gotten a defendant’s name wrong and had to figure out how to fix the pleadings will appreciate this item.

There is a whole body of law relating to making a mistake on someone’s name or suing the wrong person or company.

You can move to fix a name that is incorrect. If you sue the wrong party, you better realize it before the statute of limitations runs. Or have your carrier on speed-dial.

Sports Illustrated’s Peter King has a story from the recently completed National Football League draft. The Cleveland Browns were the culprits, and a motion to correct misnomer wouldn’t help.

In the fourth round of the draft, the Browns took a tight end from USC who has one of those names that is a law firm – Jordan Cameron. They call him. Everyone’s excited. High fives all around.

Later they call him back to get some biographical information, only they call…Cameron Jordan.

Jordan is a defensive end who played at Cal. Imagine his surprise to hear from Cleveland. He had been drafted by the New Orleans Saints in the first round. Jordan told them to call Cameron.

Given the way the Browns have played the past few seasons, this makes perfect sense.

Why are so many lawyers unhappy?

It’s a question that keeps the therapists in business but it’s not easily answered.

A clinical psychologist in DC, in a piece called “The Depressed Lawyer,” cites a report finding that lawyers have the highest incidence of depression of 100 occupations studied.

This same piece, published in a blog from Psychology Today, offers 10 tips to help lawyers in distress.

Check it out if it might help someone you know.

Fairfax Circuit Judge Jane Roush and Abingdon lawyer Mary Lynn Tate provided a “Tort Law Update” on recent cases from the Supreme Court of Virginia at the Virginia Trial Lawyers Association convention on April 2.
In particular, they commended the audience to review a January 2011 case, CNH America LLC v. Smith. It provides a “mini-treatise” on the law governing expert testimony, they said.

The case was a products liability suit involving a lawn mower, and the controversy centered around two experts for the plaintiff. On cross-examination, they admitted that they did not know this or that and that they hadn’t examined the mower hose that had failed.

In short, the trial judge observed, “they’re just barely experts, maybe . . . but’s that all they have to be.”

And that’s not wrong, Roush and Tate said. So long as the expert knows more than the trier of fact and can provide information to help in a decision, he can testify. But after the high court reversed in the CNH case, the expert’s opinion now needs to have some foundation behind it, they noted.

And while speaking of barely there experts, Roush said she remembered that back in law school at U.Va., she had a professor who had joked there was a different way to define expert: “Anybody who comes from out of town.”

John Doe got sued this week.

He must screw up a lot, because he’s always getting sued.

Actually, whenever a lawyer needs to file a claim and isn’t sure quite whom to tag, she’ll file a suit against John Doe, particularly if there’s a statute of limitations about to run.

Once Doe is unmasked during discovery, the lawyer moves to amend and get the right person in the suit. The parties take it from there.

Was there ever a real historical John Doe? Doubtful. “John Doe” is “a fictitious name frequently used to indicate a person for the purpose of argument or illustration,” according to Black’s Law Dictionary.

It turns out John Doe has been used by lawyers as a placeholder name for centuries.

Michael Quinion, who writes on “international English from a British perspective” in the blog “World Wide Words,” says that Blackstone referred to John Doe in his “Commentaries on the laws of England” for 1765-69. And the editors of the Oxford English Dictionary take Doe back a century before that, with a reference in a 1659 document, “To prosecute the suit, to witt John Doe And Richard Roe.”

Ah, let’s not forget Richard Roe. He’s Doe’s sidekick, who shows up almost as often as Doe. He’s Sancho Panza to Doe’s Don Quixote. Sundance to his Butch. Barney Rubble to his Fred Flintstone. Doe and Roe could star in their very own buddy movie.

Think back to when you first met these guys, probably in law school. They appear in any number of legal hypotheticals, and in most of them, Doe always is suing Roe. Here’s hoping Roe takes it like a good No. 2 and has a good defense lawyer.

Even though we can’t place when John Doe was born, we can serve up some genealogy. The practice of creating fictitious persons to make a legal point dates back to Roman times. Roman lawyers had a guy named “Titius.”

Black’s says that “Titius” was “a proper name, frequently used in designating an indefinite or fictitious person, or a person referred to by way of illustration.”

Sounds like our friend John Doe. And for good measure, Titius had his own Richard Roe. The Romans used the name “Seius” as the second banana in their legal hypotheticals.

There actually are people named “John Smith” in the world (go no farther than Jamestown to see the big statue of Capt. John Smith). Anybody named John Doe?

Well, yes, at least one. A few years ago, a New York Times reporter went looking to answer that question and found Mr. Doe in the Upper West Side of New York City.

He is a Korean immigrant who came to the U.S. as a boy in the late 1970s. His name was Jang Do. Doe wanted an American-sounding name, so he changed “Jang” to “John” and persuaded his mom and dad to add an “e” to their surname. (So people would pronounce it like “tae kwon do,” not “hairdo,” he said). Yes, he said he’s heard all the jokes, and no, he said he does not have a wife named “Jane.”

Not explored was whether he had any friends named Roe.

If you’ve ever been trapped in a deposition from hell, you have company. Here’s the tale of some lawyers who take up 10 pages of a transcript trying to define “photocopy.”

Really.

It’s a public records case from Ohio, reported by the Cleveland Plain-Dealer by way of the WSJ Law Blog.

The entertainment got underway when a plaintiff’s lawyer deposed the head of IT for a county office.

Plaintiff’s lawyer asked simply, “During your tenure in the computer department at the Recorder’s office, has the Recorder’s office had photocopying machines?”

The defense lawyer immediately objected, for reasons not articulated.

And the guy who was being deposed responded, “When you say ‘photocopying machine,’ what do you mean?”

And it goes downhill from there. For 10 pages.

The best exchange:

The guy says that he just wants the plaintiff’s lawyer to give him an explanation of what he’s asking, “instead of trying to make me feel stupid.”

Plaintiff’s lawyer’s retort: “If you feel stupid, it’s not because I’m making you feel that way.”

Thanks to Baker McClanahan for the head’s-up.