The VLW Blog

Judges would lose a troublesome hurdle to entering their own pretrial scheduling orders under a rule change up for comment at the Supreme Court of Virginia.

The court’s rules advisory committee is requesting comments from the public, the bench and the bar on proposed revisions to Rule 1:18 governing pretrial scheduling orders in civil cases.

The rule currently requires a judge to give two weeks notice to lawyers before entering the Uniform Pretrial Scheduling Order prescribed in the rules. The change would instead allow the trial judge to enter the order at any time, subject only to the requirement for a later hearing if any party objects or requests a modification.

The change removes what a Boyd-Graves study committee called an “awkward and time-consuming procedure” and still allows lawyers to submit agreed orders on their own and to be heard on objections or changes to any pretrial order.

Comments should be submitted by July 30 by email or snail mail.

Email comments should carry the subject line: “comment on proposed revision of Rule 1:18″ and be directed to:
proposedrules@courts.state.va.us

The postal address is:

Advisory Committee on Rules of Court
c/o Steven Dalle Mura
Office of the Executive Secretary
Supreme Court of Virginia
100 North Ninth St.
Richmond, VA 23219

The former dean of two Virginia law schools, Rod Smolla has given up his latest post as president of South Carolina’s Furman University, citing family concerns.

Smolla, who served as dean of both Washington & Lee law school and the University of Richmond law school, announced this week he would step down as Furman president.

Family court records show that Smolla, 60, and his wife of 14 years divorced in September after being separated for a year “due to unfortunate circumstances,” reports The Greenville News.

Smolla’s ex-wife, Michele Balderson, became an assistant women’s golf coach after the couple came to Furman. She was listed as an adviser to all Furman student athletes, a certified Golf Psych instructor and as the team’s mental coach.

Furman spokesman Vince Moore told the paper she no longer works for the university.

Balderson could not be reached for comment, and Smolla reportedly declined to talk about his divorce.

“There’s a great line in ‘Forrest Gump’ where he says ‘that’s all I have to say about that.’ And I think I’m going to give that one back to you,” Smolla told the paper.

Smolla said he has accepted a position as a visiting professor at the Duke University law school this fall and a similar role at the University of Georgia next spring.

The Roanoke Bar Association has awarded the 2013 Frank W. “Bo” Rogers Jr. Lifetime Achievement Award to attorney Richard C. Rakes of Roanoke. The award was presented at the RBA’s Law Day ceremony May 2.

Rakes, who retired in 1991 after 40 years with Gentry Locke Rakes & Moore, is one of the firm’s founders and one of the four partners for whom the firm is named. He has remained active in the legal world and the community at large.

The Rogers award was established to recognize an outstanding lawyer who embodies the highest tradition of personal and professional excellence in Southwest Virginia and, in so doing, enhances the image and esteem of attorneys in the region.

Kristin B. Johnson received the RBA’s 2013 Young Lawyer of the Year Award, which was established to recognize an outstanding young lawyer who has demonstrated dedicated service to the Roanoke Bar Association, the community and the profession.

Johnson is a law clerk for U.S. District Judge Michael F. Urbanski.

Virginia’s U.S. senators have asked the Virginia State Bar to evaluate candidates for the U.S. district court seat to be vacated when Judge James R. Spencer of Richmond takes senior status next year.

Spencer has announced he will become a senior judge on March 25 next year.

The request for evaluations from Sens. Mark R. Warner and Timothy M. Kaine triggers investigations and personal interviews by the VSB’s 13-member Judicial Candidate Evaluation Committee which reports candidates as “Qualified” or “Highly Qualified.”

Although the president makes nominations for federal district judgeships, potential nominees often are recommended by members of Congress. The U.S. Senate has the final say.

The VSB asks candidates to submit a résumé, a brief writing sample and responses to a questionnaire available on the VSB website. The deadline is June 7.

Submissions should be sent electronically, according to the VSB, and the original questionnaire should be submitted by mail. Interviews of candidates will be scheduled on July 8 at the VSB office in Richmond.

VSB staff member Asha Holloman, holloman@vsb.org, (804) 775-0551, is the contact for any questions.

UPDATED: This post was updated May 13 to add a link to the Warner-Kaine letter.

A federal appeals court has allowed oral argument time for a Facebook lawyer when it hears the appeal of a controversial Virginia free speech ruling next week.

Norfolk federal judge Raymond Jackson decided there was no constitutional violation when a sheriff fired one of his deputies allegedly for clicking the “Like” button on the Facebook page of the sheriff’s political opponent.

A Facebook “Like” is not the kind of “substantive statement” that warrants free speech protection under the law, Jackson said.

Facebook begs to differ, and will be allowed three minutes of oral argument when a three-judge panel of the 4^th U.S. Circuit Court of Appeals hears the case next week. A Facebook “Like” is the 21st-century equivalent of a front-yard campaign sign, Facebook said in its amicus brief.

Did the 2013 General Assembly make everyone happy, or nobody happy? It might depend on which bill you are talking about.

State Sen. John Edwards, D-Roanoke, told lawyers in Salem Tuesday the centerpiece of the session, the transportation bill, has “something for everyone to hate.” Most prominent on the negativity scale is the sales tax increase to raise road construction money.

On the other hand, the package of six “tort reform” bills passed by the Assembly has Del. Greg Habeeb, R-Salem, taking accolades from both The Virginia Chamber of Commerce and the Virginia Trial Lawyers Association.

Habeeb told members of the Salem/Roanoke County Bar Association he was on his way to be honored as a “pro-business legislator” at a chamber awards dinner in Tysons Corner, having recently received congratulations at a VTLA event for his work on the same legislation.

“Somehow we walk a fine line when both the chamber and the VTLA are happy,” he said.

A divorce court could not ignore a couple’s prenuptial agreement and allow a wife to recoup her $135,000 contribution to building the marital home, the Virginia Court of Appeals said on May 7.

The panel reversed an award to the wife in Tsoucalas v. Markopoulos (VLW 013-7-140(UP)).

When the couple met, George Tsoucalas was already building a house in Williamsburg. His prenuptial agreement with Dimitra Markopoulos identified the home as the husband’s separate property, and said he would be entitled to any appreciation of the home, if the parties divorced.

The husband said payments by the wife — $70,000 before marriage and $65,000 afterward – were meant to cover modifications the wife wanted. The trial court rejected her claims that the payments were loans, but awarded $135,000 to her under the commingling provisions of the equitable distribution statute, Va. Code § 20-107.3(A)(3)(g).

Under Virginia law, the contract controls, the Court of Appeals said. When the prenup became effective on July 1, 2006, there was no statutory authority by which the wife’s contributions to the home could retain their character as her separate property, wrote Judge William G. Petty.

By terms of the prenup, the house, and any increases in its value, were the husband’s separate property, the panel said in its unpublished opinion.

But the appellate court rejected the husband’s claim for reimbursement for household expenses, under a prenup provision that said the parties’ “Household Account” was community property. The parties did not actually establish a joint bank account, and there was no agreement or statute that would allow an accounting of the undefined “household expenses.”
–Deborah Elkins

A Blacksburg hookah lounge has won a second look from the Virginia Court of Appeals in its battle to avoid the state’s restaurant no-smoking law.

The “She-Sha Café and Hookah Lounge” offers customers the traditional middle eastern experience of smoking flavored tobacco in hookah pipes. She-Sha also offers food, however.

According to the state Health Department, the food sales mean She-Sha qualifies as a restaurant and must conform to the 2009 restaurant smoking ban. The Virginia Indoor Clean Air Act states that “no person shall smoke in any restaurant in the Commonwealth.”

She-Sha claims Virginia law provides an exception for retail tobacco stores, but a two-judge majority of the Court of Appeals panel failed to accept the business’ interpretation. Dissenting was Judge William G. Petty.

The full Court of Appeals granted a rehearing Tuesday.

She-Sha is represented by Blacksburg lawyer Andrew P. Connors.

Two Hampton Roads songwriters say their work has been infringed by pop stars Justin Bieber and Usher. Represented by Norfolk intellectual property lawyer Duncan Byers, the plaintiffs are asking for $10 million in a suit filed in Norfolk federal court.

Devin Copeland – who performs as “De Rico” – and Mareio Overton claim they composed a song called “Somebody to Love” that was “clearly copied” by the song of the same name performed by Bieber and Usher – a certified platinum hit (Billboard #15, 2010). Bieber and Usher give songwriting credit to the Stereotypes, three musicians who produced the song.

Copeland lives in Chesapeake and Overton lives in Portsmouth, according to the Associated Press.

For older readers, the composition in question resembles neither “Somebody to Love” by Queen (Billboard #13, 1976) nor “Somebody to Love” by Jefferson Airplane (Billboard #5, 1967).

As a U.S. district judge, Glen M. Williams helped get the federal courthouse in Big Stone Gap reopened in 1978. Now, the courthouse will be the setting for a ceremony next week in memory of Judge Williams who died Nov. 4 at age 92.

Judge Williams retired in 2010 after 47 years with the federal court system. A public memorial ceremony will be held Monday, May 13, beginning at 2:30 at the Big Stone Gap courthouse.

The public is invited, according to a news release from the U.S. District Court for the Western District.