Bon Mots: July 2018 Edition

As seasoned attorneys know, the lofty principles that attract aspiring lawyers can quickly be overshadowed by client emergencies, Sisyphean scheduling conundrums, unreasonable opposing counsel, billing targets, intrafirm politics, and understaffed courts. But from time to time, our esteemed judges take an opportunity to remind us of the law’s great written tradition, whether by powerful rhetoric, meticulous reasoning, devastating pithiness, or simple humor. In Bon Mots, VLW captures the month’s most notable, quotable phrasing* from Virginia’s state and federal jurists – because if you blink, you’ll miss it.

Chief Judge Roger L. Gregory, Strothers v. City of Laurel, Md. (4th Cir. July 6, 2018)

Heightened scrutiny, unfair evaluations, and arbitrary dress codes are likely to make a job more difficult and trigger responses from workers who feel compelled to protest their treatment, which may further interfere with their work. Here, due to Koubek’s actions, Strothers had to take time off of work in order to conform her dress to Koubek’s standards. She also had to write detailed memoranda to defend herself against accusations of misconduct. Furthermore, it is difficult to imagine that having to report every incident as minor and as personal as using the restroom would not interfere with productivity. Such reporting is not only time-consuming but requires the disclosure of highly intrusive and potentially embarrassing details of one’s bodily functions. In light of these facts, a reasonable jury could easily conclude that the totality of Koubek’s actions would discourage a reasonable employee from working for the City and that Strothers reasonably believed that Koubek’s actions were so frequent and severe as to be abusive.

Judge Norman K. Moon, Sines v. Kessler (W.D. Va. July 9, 2018)

In 1871, Congress passed a law directed at the organized terrorism in the Reconstruction South. Over 140 years later, on August 11th and 12th, 2017, the Defendants in this lawsuit, including the Ku Klux Klan, various neo-Nazi organizations, and associated white supremacists, held rallies in Charlottesville, Virginia. Violence erupted. Charlottesville residents who suffered injuries at the rallies, the Plaintiffs, allege that this violence was no accident. Instead, they allege the Defendants violated the 1871 Act and related state laws by conspiring to engage in violence against racial minorities and their supporters. The Defendants retort that they were simply engaged in lawful, if unpopular, political protest and so their conduct is protected by the First Amendment. While ultimate resolution of what happened at the rallies awaits another day, the Court holds the Plaintiffs have plausibly alleged the Defendants formed a conspiracy to commit the racial violence that led to the Plaintiffs’ varied injuries.

Judge Robert E. Payne, Benedict v. Hankook Tire Co. Ltd. (E.D. Va. July 9, 2018)

[T]he mere fact that Benedict has been compensated for his medical care and wages in no way suggests that he has been compensated for his other damages, such as his emotional and physical injuries and pain and suffering…. For a person with injuries as severe as Benedict’s (e.g., for a person whose life has been irreparably shattered by a catastrophic physical injury that has caused, and will continue to cause, severe pain, discomfort, health risks, debilitating physical limitations, significantly altered relationships with loved ones, and embarrassment), such an award for non-economic harm is in no way “disproportionate” or “conscience shocking” …. A reasonable and fully-informed juror, unmotivated by passion, corruption or prejudice, could certainly conclude that $29,000,000 was necessary to compensate Benedict, i.e. to make him “whole,” for the extraordinary suffering that he has endured and will continue to endure and for the alteration of his entire life.

Judge William G. Petty, Baldwin v. Commonwealth (Va. App. July 17, 2018)

As a whole, M.T.’s written victim impact statement and testimony were articulate summaries of the history of Baldwin’s threats against her and alerted the trial court to the full psychological impact of the current offense…. The current threats were part of a multi-year campaign by Baldwin to terrorize M.T. The details of Baldwin’s prior conduct against the same victim were part of the “wide range of information” needed to effectuate an appropriate sentence. The trial court was required to take into account Baldwin’s lack of remorse, as evidenced by testimony that Baldwin blamed the victim for his incarceration, continued to make threats, and vowed revenge…. Baldwin’s taunting of M.T. with the revelation that he had obtained her personal information and his declaration that he would enjoy her screams when he hunted her down, supported the trial court’s conclusion that incapacitation was an important purpose of incarceration in this case….

Clearly, Baldwin’s prior convictions were admissible and relevant during sentencing as part of a pre-sentencing report. However, to restrict the victim’s reference to the previously adjudicated threats to the cold record would be to sanitize the facts of the case and ignore the foundation of terror that Baldwin constructed prior to the current offense.

Senior Judge Henry Coke Morgan Jr., Farabee v. Yaratha (E.D. Va. July 19, 2018)

[I]t is clear that the mental health and criminal justice systems have failed [the Plaintiff]. Had Plaintiff received [dialectical behavior therapy] 20 years ago, he probably would be living a very different life. However, Plaintiff did not receive treatment. Instead he was remanded to prison for exhibiting behavior that is a symptom of his mental illness…. [A]lthough at least two psychologists and a forensic psychiatrist recommended a specific type of therapy to help Plaintiff learn how to develop healthy relationships and eventually be in a position to leave the state system, the members of his treatment team made an affirmative decision not to offer that therapy to Plaintiff…. At the time of trial, Plaintiff was receiving no mental health treatment, as he was in solitary confinement. Based upon his excellent behavior at trial, it is possible that no treatment at all may be superior to the treatment he received from Dr. Yaratha in Ward 8.

Judge John A. Gibney, Bell v. WestRock CP LLC (E.D. Va. July 20, 2018)

As anyone who has driven by a paper mill might imagine, the WestRock paper mill is not a model neighbor. In their complaint, the plaintiffs allege that large amounts of wood dust from WestRock’s property invade their land, homes, and cars. The dust dirties clothing, accumulates so quickly that it is useless to clean, and deters the plaintiffs from opening the windows of their homes and cars.

Judge David A. Oblon, Commonwealth v. Ayala (Fairfax Cir. July 20, 2018)

Prosecutors and defense attorneys commonly engage in … legal fictions to reach mutually desired dispositions. One might otherwise be surprised to learn of the problem Fairfax County has of people “sleeping on highways” … or “driving animals”…. Both of these traffic infractions … are free of Department of Motor Vehicles demerit points. This makes them attractive targets of plea agreements in speeding cases …, which do result in points upon convictions. While there appear to be few cots on I-66 or laden donkeys on the Capital Beltway, defendants plead guilty to infractions they did not commit to avoid worse consequences stemming from the act they really did do. Prosecutors agree to such agreements for reasons of proof problems, lenity, or lack of resources to contest every case.

*Internal citations omitted.