Publisher's Notebook

We’ve celebrated Headlines of the Day on this site, the hedders that are clever or capture a story so well.

Anyone who has written the sterling headlines will have a number of clinkers in his or her clip file as well. The unfortunate thing is they are so public.

The theater shooting in Aurora, Colo., last week was terrifying and awful and incomprehensible. A former medical student killed 12 and injured many others at a screening of the new Batman movie.

A story on page one of today’s print issue went to press on Thursday night before the incident with this headline: “First shots fired in summary judgment battle.”

For the Friday Daily Alert we were able to change that to: “First salvos launched in summary judgment campaign.”

Others didn’t have that opportunity. In retrospect, the guys and gals at “Entertainment Weekly” magazine probably wish they had chosen a different head for their July 20 cover: “Batman’s Killer Finale.”

HOT SPRINGS—Members of the Virginia Bar Association made their way to the mountains this past weekend for the group’s summer meeting, the highlight of which was the Virginia senatorial debate between two ex-governors, Republican George Allen and Democrat Tim Kaine.

Temperatures in the mornings were in the 60s, a huge relief from the oven routine earlier this month. Some quick hits and observations, with the non-debate thoughts first:

Neck Propellers. I generally don’t write fashion articles, but my piece last month called “The Bow Tie Guys” was a big hit with the VBA crowd. For that story, I didn’t get a chance to interview two longtime bow tie guys, Hampton Circuit Judge Louis Lerner and Roanoke lawyer James Jennings, but both were in attendance and sporting their favorite neckwear.

Good Guy: John Epps. Richmond lawyer John Epps, a VBA past president, was given the Roger Groot Pro Bono Award for his work on the chief justice’s pro bono summit and the development of Capital One’s Justice Server, the online case-management system that helps the private bar handle pro bono cases. Professor Groot would be proud. Well done and well-earned.

Wrongful Convictions. Thomas Haynesworth spent 27 years in prison for a crime he didn’t commit, and he was at the meeting, serving on a panel on wrongful conviction. Attorney General Ken Cuccinelli, who was instrumental in getting him freed, was on the same panel, and he asked the VBA’s Special Issues committee for help in getting the statute on writs of actual innocence simplified. The statute is a mess, full of internal problems and in need of a reboot – Not to make it easier to get a writ, just to make it a process that courts and counsel both can understand. You’ll hear more on this in the future.

Fourteen’s the Charm. Fairfax Circuit Judge Jane Marum Roush has been giving her annual review of civil cases from the Supreme Court of Virginia for 14, count ’em, 14 years. The high court had been on a streak where the number of civil and criminal cases was more or less even, but this past year there was a huge tilt toward civil cases, by about four to one.

Home Sweet Homestead. Two lawyers from Virginia Beach have been bringing their children to The Homestead for meetings for a couple of years. The mom of the couple said that their son out of the blue asked, a bit wistfully, “Can we move to The Homestead?” Great idea, except for the paying for it. You could tell that kid to grab a green jacket and a luggage cart, but I don’t think that’s what he had in mind.

Kid-Friendly. Speaking of the wee ones, The Homestead is in the process of a makeover to make the resort more family-oriented and family-friendly. A grand Italian-like garden has been razed and they’re putting in a swimming pool. The 1766 Grille is getting a new look and new menu this winter (Homestead burgers? Dogs? French fries, anyone?) And someone said the resort is going to relax the requirement that men wear ties at dinner.

Now, the part about the Allen-Kaine debate:

Low Expectations? Post-debate comment was fairly unanimous. Kaine won on style, and even substance. But Allen was much better than expected. I saw these two knock heads last December, at a debate that was part of “AP Day at the Capitol.” My thought at the time was that Allen had spent his time in wilderness well, because he was indeed much more polished than I’d seen in prior debates or talks. He was better in December than he was this July.

Smashmouth? Kaine tweaked Allen for practicing “smashmouth” politics, dredging up Allen’s infamous promise to knock the Democrats’ “soft teeth down their whiny throats.” He also called up Allen barbs aimed at bureaucrats, Hillary Clinton and John Kerry. Kaine’s point: Our politics needs to be better and at a higher plane. A worthy thought, but one wonders if you get there by recycling old insults and then saying you yourself are above that. Also, one wonders what Kaine would say about the Obama campaign’s smashmouth tactics, including the recent insinuation that Mitt Romney is somehow a felon.

A Strong Line of Attack. Back in December, I heard Kaine start a mantra that he has refined: Allen talks like a fiscal conservative but doesn’t govern like one. He lists numbers from Allen’s term as governor back in the 1990s and his Senate votes. Even some of the Republicans in the house thought Allen didn’t refute it very well.

Engage Before Speaking. Kaine tested a poke at Allen over the latter’s promise to introduce a “personhood” bill at a national level, one of a host of issues on the social conservative agenda. Allen, in response, said, “I’m not running on that, I’m running on jobs.” All the social conservatives who didn’t vote for him in the GOP primary likely will take note. After all, they don’t have to show up in November.

No Macaca. In December, Kaine sought to make hay over Allen’s infamous “macaca” gaffe, the caught-on-YouTube remark that allowed Jim Webb narrowly to beat Allen in 2006. The good news is that there was no macaca in sight at The Homestead, not even on the horse trails.

A School for Moderators. CNN’s Candy Crowley was the moderator of the debate, and if she gets the chance to moderate again, either here or elsewhere, she might familiarize herself with the rules in effect. The campaigns and VBA leaders and staffers sweat over the ground rules and the negotiations can be painstaking. Note to Crowley: The rules mean something…they can’t be ignored and laughed off.

Sign Wars. Yard signs sprout everywhere for these debates. Allen was on the ground (literally) early with bright red signs. There seemed to be more Kaine signs by the time it was over, and the Kaine people didn’t clean theirs up as quickly. The day after, you could still find the Kaine signs down Route 220 all the way to Covington.

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 late great Andy Griffith passed away earlier this week.

Who knew that tucked away in an old episode of “The Andy Griffith Show,” there is a clip of Sheriff Andy Taylor giving his son Opie a lesson in attorney-client privilege?

Opie and a friend had bugged a conversation at the Mayberry jail and he pressed his paw with the tape, saying it was OK to use “if it helps the law.”

Ain’t true, Andy said. “Whether a man is guilty or innocent,” he told the boy, “we have to find that out by due process of law.”

Check it the clip at the Legal Ethics Forum blog.

http://www.legalethicsforum.com/blog/2012/07/sheriff-andy-taylor-on-taping-attorney-client-communications-1.html

(Photo by CBS via Getty Images)

Sean Sowards was cruising along Interstate 77 in western North Carolina one day, heading home to Ohio after visiting Atlanta. Probably had some good tunes going.

He was pushing the speed limit just a little, which was 70 mph for that stretch of highway.

Sowards passed an area where Deputy James Elliott was waiting, a bear in the grass. He had placed his car at an angle that purposely prevented him from using his radar system.

Elliott watched Sowards go by and said to himself, that car is going 75 in a 70 zone. Cue the flashing blue lights. Elliott pulled Sowards’ car over.

The officer asked who owned the car. Sowards said his girlfriend, Deanna, but he didn’t really know her last name. A records check, however, showed the owner lived in Georgia.

Sowards started sweating profusely. He had a pre-paid cell phone, the officer noticed, probably thinking to himself, hmm, potential drug runner.

With Elliott was his faithful drug dog, Ringo. Elliott asked Ringo to sniff the outside of the car.

After getting a whiff outside the trunk, Ringo barked, “Bingo!”

Inside, Elliott found laundry detergent, often used to mask the scent of drugs, and, you guessed it, about 10 kilograms of cocaine. Sowards was busted and taken to jail, charged with possession.

Can a cop do that? Can he justify a car stop just because he looked at it and said, “Gee, that vehicle is travelling five mph over the speed limit”?

No, said a split panel of the 4th Circuit Court of Appeals last week. The case of U.S. v. Sowards (VLW 012-2-140) features a pretty testy back-and-forth between Judge James A.Wynn Jr., who wrote the opinion, and Chief Judge William B. Traxler Jr., who filed a 27-page dissent.

Elliott comes across as Barney Fife in Wynn’s view. Traxler makes him look like an officer-of-the-year candidate.
Wynn quoted several passages from the trial transcript that indicate that Elliott had some problems with distances. He said he watched Sowards’ car for about 100 yards until it passed him:

Q:[Government lawyer] And how many feet are in a hundred yards?
A: [Elliott]: There’s 12 feet in a yard.
Q: So 300 feet?
A: Correct.

OK, he wasn’t a math scholar. The judge wanted to push this line of inquiry further.

Q: [Judge]: Do you know what a yardstick is?
A: [Elliott]: Yes, sir.
Q: How many inches in a yardstick?
A: Well, on a yardstick there’s 12 inches. Well, it depends on the yard stick that … you have.

Defense counsel asked how he knew the car was going 75 in the 70 zone. Elliott responded, “My training and experience.”

Despite the math issues, the trial judge said the officer had probable cause to stop the car, based on his training to estimate speeds.

Hogwash, said Wynn, joined by Judge Roger L. Gregory. Elliott is trained only on how to run a radar unit, Wynn wrote. His training on estimation is education on how to guess. He guessed the car was speeding, and he did not use any of the accepted corroborating methods. He didn’t use his radar gun. He didn’t drive behind the suspect car and pace it with his own vehicle. Nothing more than eyeballing to support the stop. And that won’t do, they said.

The majority slammed home the point in a footnote: “The dissent has not cited – nor have we found – a single case issued by any court at any time, whether state or federal, finding probable cause exists to initiate a traffic stop for speeding on the sole basis of an officer’s unaided visual estimate that a vehicle was exceeding the speed limit by five mph or less.”

Cocaine suppressed. The court reversed the conviction and sent the case back to federal court in Statesville, N.C.

Traxler, in dissent, cited the 10 years of service Elliott had logged with the force and marched through the police course designed to train officers on estimation. And he pulled out all the facts that made Sowards look a bit sketchy. Sowards didn’t contest that he was speeding and he didn’t present any contradictory witnesses at the trial. Traxler would have affirmed.

Given the sharp tone of the discussion – which has been escalating in recent years in cases from the 4th Circuit – this one might be heard en banc.

As for Ringo, he missed his star turn. Sowards also was ready to fight the open-air dog sniff, claiming that Elliott lacked the necessary reasonable suspicion to deploy the pooch.

But the court said, we’re kicking the case on lack of probable cause and don’t need to consider the dog’s search.

Ringo will have to wait for another day.

Big week for the U.S. Supreme Court, between the Arizona immigration decision on Monday and the anticipated “Obamacare” case this morning.

You can bet both the proponents and the opponents of the Patient Protection and Affordable Care Act have their vitriolic faxes and hyperventilating email blasts that purport to be “news” releases ready to fly the minute a decision is announced, whatever it may be.

Here’s a refreshing alternative to the week’s lathered Supreme Court coverage, courtesy of Sarah Hedgecock at The Daily Beast.

She has compiled “11 Wacky Supreme Court Facts” for your entertainment.

For example, who knew that Justice Elena Kagan is a frozen yogurt fan and had a froyo machine installed in the court canteen? Or that there’s a gym on the top floor of the Supreme Court building, with a basketball court dubbed “the highest court in the land.”

The friendship of two ideological opposites, Justices Antonin Scalia and Ruth Ginsberg, is no secret, but do you know what they like to do together?

One more preview: You’ll win a prize — say, a cup of frozen yogurt — if you can name the two Supreme Court justices who have appeared on U.S. currency. (Hint: They were on the $500 and $10,000 bills.)

Many of the opinions we get at this newspaper involve a fight over who is liable for some harm or whether some statute has been violated, and who is responsible and must pay money damages.

Some opinions are in a different category — Someone has lost a case and there is a statute that provides for attorney’s fees. There is a fight over how much the lawyers get paid.

A new case out of Charlottesville (Imagine that, a story from C-ville that doesn’t involve the University of Virginia and the brouhaha over its recently deposed president) provides helpful suggestions on how not to argue a fee case.

Rust v. Electrical Workers Local No. 26 Pension Trust Fund (VLW 012-3-243) was an ERISA case, a high-dollar ERISA case.

The plaintiff hired former Attorney General Anthony Troy and his firm, Troutman Sanders, to represent him, and it was a big win.

As U.S. Magistrate Judge B. Waugh Crigler Jr. put it, the presiding judge, U.S. District Judge Norman K. Moon, “took the defendants to the woodshed on each of the plaintiff’s claims.”

The plaintiff, Edwin J. Rust, won on every single count of his complaint; Moon gave him $385,219 in total damages and reinstated his monthly benefits. Not bad for an ERISA case.

Enter Troy and Troutman Sanders. Under ERISA’s fee provisions, they asked the court for $288,714 in fees and costs.
Defendants, represented by Charlottesville lawyer John E. Davidson, among others, objected. Moon referred the fee issue to Crigler, who ultimately gave Troutman almost all of the fees and costs requested — $271,869.

Crigler walked through the standard fee analysis supplied by the 4th U.S. Circuit Court of Appeals in the 1993 Quesinberry case.

But in his march through the different points, the judge provided a few tips on how to guarantee that you will lose your fee argument, should you ever face one. Here they are:

Use yourself as an expert.

The defendants squawked about the rates charged by the Troutman lawyers. Troy billed at $585 an hour; three colleagues ranged from $500 to $365. The defendants relied on a local lawyer – Davidson.

He submitted an affidavit with what he contended were reasonable rates for lawyers’ level of experience in Charlottesville. He admitted, “I recognize that as counsel of record, I suffer from the appearance of bias in sharing these opinions.”

Crigler made quick work of this argument. Davidson, he said, is a “respected attorney before this court.” But the judge said he could not help but observe that “this kind of opposition is supremely self-serving and as such, it will be given only the weight it deserves.”

Argue something irrelevant.

The defendants argued that the 4th Circuit Judicial Council is poised to adopt a proposal that in federal capital prosecutions, any fee request by counsel in excess of $100,000 is preseumptively unreasonable.

Their argument: If the 4th Circuit is contemplating a fee cap in “the most solemn, more important and most time-consuming duties any lawyer will ever handle,” then the court should lower fees in “what the defendants consider to be less serious civil cases,” Crigler wrote.

Crigler found this argument “patently frivolous” and “immaterial” to an ERISA case. “That the notice [to cap fees] has been suspended for further review adds even more reason to suggest the defendants are grasping at straws as much on the fee issues as they did on the underlying merits of the cases,” Crigler wrote.

Argue that your town – the home town of the judge – is Podunk.

The defendants complained at the size of the Troutman tab, with Crigler noting that they argued that the Charlottesville market “cannot bear this kind of crushing invoice for legal services.”

Crigler refused to buy the notion that rates in the U.S. District Court for the Western District should reflect only those of local lawyers. The plaintiffs tendered an affidavit from former Virginia State Bar President William R. Rakes, who practices in Roanoke, stating that market rates in the Western District are not just those charged in Charlottesville. This statement confirmed “what the undersigned already knows,” Crigler wrote.

Indeed, the judge said that lawyers from all over Virginia and Washington D.C. appear regularly in “this and other divisions” of the district.

“[T]he defendants labor under a much more provincial concept of the Charlottesville market than reality demonstrates,” Crigler concluded.

Crigler knocked off a little of the fee request for work done before the case got under way, and he declined a request for fees in anticipation of an appeal to the 4th Circuit.

All tallied, though, the Troutman team got 94 percent of what they asked for, more than a quarter million dollars. Not bad for an ERISA case.

A letter for Mo Morris came to Tim Morris’s house in Bedford County last week. It asked Mo to register to vote for this fall’s elections.

Two problems with this: (1) “Mo” is short for Mozart, Morris’s dog.

And (2) Mozart has been dead for two years.

Places such as Chicago have been rumored to vote the graveyards, but votes from a pet cemetery are something new.

According to Inside NoVA, the good news is that the letter was not from the State Board of Elections; it was a solicitation from the Voter Participation Center, a get-out-the-vote outfit. They purchased a mailing list that had Mo’s name on it.

Morris took it all in stride, noting that Mo could have voted for the first time in 2012, if he was a human and if he was alive.

“He would have been 19 years old this year,” Morris said.

Let’s do the Time Warp. The Puritans are back in charge in Massachusetts.

At least they seem to running the town of Middleborough, where you now can be ticketed for swearing in public, First Amendment be, uh, darned.

Residents of Middleborough, which is near those cranberry bogs you see in the Ocean Spray commercials, voted at a June 11 town meeting, 183-50, to approve a proposal to allow police to impose a $20 fine for swearing in public.

Apparently, there are potty-mouthed youths who yell R- and X-rated insults at each other in the downtown area and in public parks, reported the Associated Press. The new ordinance is aimed at them. It’s worth noting that there are about 20,000 residents of Middleborough. Only 183 seemed to think this was a problem, but they showed up at the town meeting.

Matthew Segal, legal director for the American Civil Liberties Union of Massachusetts, said the U.S. Supreme Court has ruled that the government cannot prohibit public speech just because it contains profanity.

And Middleborough actually had an oft-ignored bylaw against profanity. Now it’s no longer a crime, just a ticketable offense.

“Police officers who never enforced the bylaw might be tempted to issue these fines, and people might end up getting fined for constitutionally protected speech,” Segal said.

Mr. Segal might want to sit around on a park bench in Middleborough to find a test client. Smart money says this one won’t – and shouldn’t – pass muster.

You probably know that if you are a practicing lawyer, you can get out of jury duty.

The Virginia Code provides an exemption in § 8.01-341. In addition to exempting the president, the governor and any judge of any court, the section says at (5) that “licensed practicing attorneys” get a pass from “serving on civil and criminal cases.”

The reasons for the exemption are not completely clear.

In part it may be rooted in the 6th Amendment guarantee of a right by an “impartial jury.” U.S. Supreme Court cases addressing this right get into the “fair cross section” principle – somehow lawyers may not qualify.

Or maybe lawyers know too much and will second-guess counsel in the case.

Or perhaps there’s a concern that lay jurors might give too much deference to an officer of the court sitting in the box with them.

Every few years, some member of the General Assembly attempts to amend this section to remove the attorney exemption and throw lawyers into the general jury pool. They all have failed; the most recent attempt came in 2004.

But even with the exemption, what happens if you actually want to serve on a jury?

That very question was raised in Arlington recently. Circuit Clerk Paul Ferguson had a practice at juror orientation of asking if anyone in the venire was a lawyer. If the answer was yes, the person was politely shown the door.

From time to time, he said, lawyers would ask to stay and serve. So Ferguson wrote to Attorney General Ken Cuccinelli for his opinion on the issue of whether a lawyer can serve as a juror, despite the exemption.

Cuccinelli’s short answer: Sure, why not?

The AG said that the Code section doesn’t bar a lawyer from jury service if the lawyer is willing to waive the exemption.

Cuccinelli made several other observations about Code § 8.01-341:

• The exemption covers “licensed practicing attorneys,” not “attorneys in Virginia.” In other words, a licensed practicing attorney working in the District of Columbia, Maryland or any other state can invoke the exemption.

• “Practicing” means just that – the attorney is engaged in the business of law, rendering legal services or otherwise working on behalf of clients.” In other words, if you just have a law degree and a license from the bar, but you work in a different field, you are not exempt.

Ferguson said the Attorney General’s opinion is good news. Arlington has a large lawyer population and now he will have a larger pool from which to draw. And the AG’s distinction about “practicing” lawyers will be useful. Many people with an active law license live in the D.C. suburbs but work in the District at a government job.

Real world question: So what do you think will happen to any lawyer who wants to waive the jury service exemption?

Given counsel’s ability to use a peremptory strike, how long do you think that lawyer actually will last in the jury box? How fast is a New York minute?