The United States Senate approved the nomination of Justice Keenan of the Virginia Supreme Court to the United States Court of Appeals for the Fourth Circuit, and so the former Justice might not ever again be required to sit before a gang of legislators and have to defend her jurisprudence.
Here is one group's take on Justice Keenan's record on the Supreme Court as evidenced by the opinions she wrote, although I always understood that the majority opinions are more or less assigned at random and so really the dissents are the ones I find most illuminating.
Tuesday, March 02, 2010
Thursday, February 25, 2010
On the W.D. Va. judgeships
VLW reports that Judge Norman Moon of the W.D. Va. is taking senior status, which means that President Obama will have an opportunity to nominate a candidate to replace him, subject to the advice and consent of the United States Senate.
A little while ago, I was added to the Virginia Bar Association Committee on Federal Judgeships for the Western District, and so it appears this committee headed by my old friend Howard McElroy will have reason to meet in the near future.
A little while ago, I was added to the Virginia Bar Association Committee on Federal Judgeships for the Western District, and so it appears this committee headed by my old friend Howard McElroy will have reason to meet in the near future.
Monday, February 15, 2010
Hey, what about 276?
"We wanted to recruit the state and make sure that the players in all areas that we have an opportunity to present ourselves, what we have to offer," London said. "Whether it's 757, 804, 703, 434, whatever area code it is, we're going to try to do the best in those areas."
U.Va. football coach Mike London, quoted in the Washington Post.
U.Va. football coach Mike London, quoted in the Washington Post.
Tuesday, February 02, 2010
Senator Puckett on Fox News
Just saw Senator Puckett on with Greta Van Susteren, explaining the vote in the Virginia Senate to reject one element of the health care reform being debated in the U.S. Congress. What good it does for the General Assembly to vote on such things was not really discussed.
More on Judge Glen Williams
This is more or less the text of a speech I gave to a gathering of a few hundred friends of Judge Williams in 2002, and the judge liked it at the time, and now he cannot hold me in contempt of court for republishing it:
I was going to speak as a former law clerk at a ceremony for Judge Williams some years ago, but I couldn’t make it, so Randy Lowe spoke instead. Later, I asked Mona which stories he told, and she said he told the one about Judge Williams and the old woman with the outhouse in St. Charles. There are no outhouses in any of my stories.
Just before my clerkship started, I met a woman newspaper owner from here in Abingdon and told her I was going to work for Glen Williams, She said, “I love Judge Williams. He always hugs me and kisses me whenever we meet. None of the other judges do that.” That was in 1989, and ever since, I’ve often seen the judge give a hug to the women who come to see him. I understand that now Judge Williams is saying that since his eyesight is poor, he has to get up really close to people to see who they are. If it turns out to be a woman, since he’s already there, he might as well give her a hug.
There has never been a day when I have been with Judge Williams and he did not laugh, usually at himself. I worked for him during the last big coal miners’ strike, which got a lot of publicity, and during that time, the judge read to us a letter from an old acquaintance who had seen him on one of the TV reports, and the letter went something like this: Dear Glen, she wrote. It has been some years since last we met. I saw you on the news the other night. You looked terrible, and your voice is all wrong for television, and those clothes are so out of fashion. But oh how I loved watching you – to have those words of wisdom come out of that face, in that voice.
Maybe the best part about being a law clerk is that even after your clerkship is over, you still can talk to Judge Williams from time to time for help in understanding the real world.
There was a period of time in which I helped defend lawsuits against three governing boards. One board included the judge’s brother Don, another had his brother Lowell, and the third had Judge Williams himself. One day I told the judge about all this, and that I could only conclude that if there’s a board and one of the Williams boys is on it, there is going to be trouble. The judge said “Steve, anyone in Lee County could have told you that.”
On another trip back to the judge’s office, the judge introduced me to his latest law clerks, and he told them I did good work for him, and I had to correct him, explaining that no, I was surely the worst law clerk you ever had, because two of the opinions I wrote were reversed. The judge said “I wish you hadn’t said that, I had these boys thinking I’d never been reversed.” (That’s boys, pronounced like baw-eez with two syllables.) The judge was curious and asked what the cases were, and when I started telling him that one was a bankruptcy case, the judge cut me off, and said, “oh, bankruptcy, why, you might as well flip a coin.”
Judge Williams told me once that he took comfort in the fact that on those few occasions when one of his cases went all the way to the United States Supreme Court and they decided the case the other way, the vote was always 9-0. That way he knew for sure he was well and truly wrong, he said, and that a little more work on his opinion would not have made any difference.
I’m not sure, however, that the judge is always entirely in agreement with the appeals courts. I worked on a land use case involving property in downtown Jonesville. Judge Williams was opposed to the project, but Judge Quillen ruled that it could proceed, and the town appealed. After the Virginia Supreme Court affirmed Judge Quillen’s ruling, I mentioned this to Judge Williams, who replied, “well, Steve, they got it wrong of course, but I’m sure they tried their best.”
The hardest thing about being a former law clerk is when the judge, my own judge, my favorite judge - rules against me.
At one hearing, Judge Williams started calling me “John,” not once but over and over. The lawyer on the other side of the case, a high-powered guy from a big firm in Richmond, got in on the act and started calling me “Mr. Thornton.” Finally I said, “Judge, you all can call me any name you like, so long as you grant my motion.”
In another case, the other lawyer and I were arguing in chambers and I told the judge the plaintiff was going for punitive damages. The judge asked if this was true. The other lawyer said yes it was. I guess Judge Williams was trying to help me out when he replied, “why, no, Mr. Minor’s clients weren’t malicious, they were just dumb.”
Once I explained to Judge Williams that nothing is more painful for me as a former clerk than when he rules against me – it was like being rejected by my grandfather. The judge considered this and said “no wonder I rule against you, you haven’t got any tact. I’m not old enough to be your grandfather.” I guess Judge Williams must know that my grandmother over in Jonesville, is at least 83 years old, and so in his opinion that makes her much, much older than anyone born after 1919.
Maybe “grandfather” was the wrong word. In one of those lawyer books by Scott Turow, there’s a character who explains the relationship between a judge and his law clerks, and she says that just like a race horse is always known by its sire and dam, the law clerk throughout his legal career is always known by the judge for whom he clerked. So like the character in that book, let me say, that it is my proudest heritage as a lawyer to be known always as a Judge Williams’ clerk. Thank you, Judge Williams, and congratulations on 25 years.
P.S., make that 34 years.
I was going to speak as a former law clerk at a ceremony for Judge Williams some years ago, but I couldn’t make it, so Randy Lowe spoke instead. Later, I asked Mona which stories he told, and she said he told the one about Judge Williams and the old woman with the outhouse in St. Charles. There are no outhouses in any of my stories.
Just before my clerkship started, I met a woman newspaper owner from here in Abingdon and told her I was going to work for Glen Williams, She said, “I love Judge Williams. He always hugs me and kisses me whenever we meet. None of the other judges do that.” That was in 1989, and ever since, I’ve often seen the judge give a hug to the women who come to see him. I understand that now Judge Williams is saying that since his eyesight is poor, he has to get up really close to people to see who they are. If it turns out to be a woman, since he’s already there, he might as well give her a hug.
There has never been a day when I have been with Judge Williams and he did not laugh, usually at himself. I worked for him during the last big coal miners’ strike, which got a lot of publicity, and during that time, the judge read to us a letter from an old acquaintance who had seen him on one of the TV reports, and the letter went something like this: Dear Glen, she wrote. It has been some years since last we met. I saw you on the news the other night. You looked terrible, and your voice is all wrong for television, and those clothes are so out of fashion. But oh how I loved watching you – to have those words of wisdom come out of that face, in that voice.
Maybe the best part about being a law clerk is that even after your clerkship is over, you still can talk to Judge Williams from time to time for help in understanding the real world.
There was a period of time in which I helped defend lawsuits against three governing boards. One board included the judge’s brother Don, another had his brother Lowell, and the third had Judge Williams himself. One day I told the judge about all this, and that I could only conclude that if there’s a board and one of the Williams boys is on it, there is going to be trouble. The judge said “Steve, anyone in Lee County could have told you that.”
On another trip back to the judge’s office, the judge introduced me to his latest law clerks, and he told them I did good work for him, and I had to correct him, explaining that no, I was surely the worst law clerk you ever had, because two of the opinions I wrote were reversed. The judge said “I wish you hadn’t said that, I had these boys thinking I’d never been reversed.” (That’s boys, pronounced like baw-eez with two syllables.) The judge was curious and asked what the cases were, and when I started telling him that one was a bankruptcy case, the judge cut me off, and said, “oh, bankruptcy, why, you might as well flip a coin.”
Judge Williams told me once that he took comfort in the fact that on those few occasions when one of his cases went all the way to the United States Supreme Court and they decided the case the other way, the vote was always 9-0. That way he knew for sure he was well and truly wrong, he said, and that a little more work on his opinion would not have made any difference.
I’m not sure, however, that the judge is always entirely in agreement with the appeals courts. I worked on a land use case involving property in downtown Jonesville. Judge Williams was opposed to the project, but Judge Quillen ruled that it could proceed, and the town appealed. After the Virginia Supreme Court affirmed Judge Quillen’s ruling, I mentioned this to Judge Williams, who replied, “well, Steve, they got it wrong of course, but I’m sure they tried their best.”
The hardest thing about being a former law clerk is when the judge, my own judge, my favorite judge - rules against me.
At one hearing, Judge Williams started calling me “John,” not once but over and over. The lawyer on the other side of the case, a high-powered guy from a big firm in Richmond, got in on the act and started calling me “Mr. Thornton.” Finally I said, “Judge, you all can call me any name you like, so long as you grant my motion.”
In another case, the other lawyer and I were arguing in chambers and I told the judge the plaintiff was going for punitive damages. The judge asked if this was true. The other lawyer said yes it was. I guess Judge Williams was trying to help me out when he replied, “why, no, Mr. Minor’s clients weren’t malicious, they were just dumb.”
Once I explained to Judge Williams that nothing is more painful for me as a former clerk than when he rules against me – it was like being rejected by my grandfather. The judge considered this and said “no wonder I rule against you, you haven’t got any tact. I’m not old enough to be your grandfather.” I guess Judge Williams must know that my grandmother over in Jonesville, is at least 83 years old, and so in his opinion that makes her much, much older than anyone born after 1919.
Maybe “grandfather” was the wrong word. In one of those lawyer books by Scott Turow, there’s a character who explains the relationship between a judge and his law clerks, and she says that just like a race horse is always known by its sire and dam, the law clerk throughout his legal career is always known by the judge for whom he clerked. So like the character in that book, let me say, that it is my proudest heritage as a lawyer to be known always as a Judge Williams’ clerk. Thank you, Judge Williams, and congratulations on 25 years.
P.S., make that 34 years.
Monday, February 01, 2010
On Judge Williams
The word is out that Judge Glen M. Williams is retiring altogether from his position as senior judge of the United States District Court for the Western District of Virginia. Judge Williams was appointed in 1976.
A few of the posts I have written about Judge Williams are collected here. It has been almost twenty years since my clerkship with him ended.
On getting old and deciding when to quit, he often retold some version of this story attributed to Justice Field.
I've heard that Judge Jones will take over the pending cases except for conflicts. One of our cases was reassigned last week from Judge Williams to Judge Turk.
A few of the posts I have written about Judge Williams are collected here. It has been almost twenty years since my clerkship with him ended.
On getting old and deciding when to quit, he often retold some version of this story attributed to Justice Field.
I've heard that Judge Jones will take over the pending cases except for conflicts. One of our cases was reassigned last week from Judge Williams to Judge Turk.
Thursday, January 21, 2010
Who's up for re-election this year?
One never knows what's going on, but I know that Judge Tate from the 28th District is up for reappointment, as are I think Judges Moore and Vanover from the 29th Circuit. Who else?
As is the custom here, I invite those three to tell anybody I'm for them or against them, whichever bests suits their purposes.
As is the custom here, I invite those three to tell anybody I'm for them or against them, whichever bests suits their purposes.
Monday, January 18, 2010
One of those gratuitous offensive things that governors are allowed to do on their way out the door
Governor Kaine started the process for Jens Soering to be transferred to Germany and released from prison, as reported here, which seems like a lucky break for Soering on top of the fact that but for his status as a German national he would have likely received the death penalty years ago.
Thursday, January 14, 2010
What would Judge Williams say about this
The latest gas article by Daniel Gilbert says that the General Assembly might not act to rationalize the gas royalty escrow problem because of the pending lawsuit filed by Shea Cook, which makes me think of the similar argument made against the Guarantee Clause litigation before Judge Williams, where the Funds argued that the litigation would stop Congress from fixing the problem. Judge Williams famously wrote:
"If Congress is so wimpish and weak that it is swayed by a lowly district court's judgment which may give temporary relief to a few elderly and widows, and fails to act on a long term solution to the problem then, in the court's view, Congress never intended to act in the first place. The court would encourage Congress to continue its search for a solution. If the government can bail out New York City, the savings and loan industry, and Chrysler Corporation, whose losses were due to their own neglect, surely it can find a solution to the ills of a few health care beneficiaries in the hills of Virginia, whose plight is not of their own making."
Doe v. Connors, 796 F. Supp. 214, 224 (W.D. Va. 1992).
"If Congress is so wimpish and weak that it is swayed by a lowly district court's judgment which may give temporary relief to a few elderly and widows, and fails to act on a long term solution to the problem then, in the court's view, Congress never intended to act in the first place. The court would encourage Congress to continue its search for a solution. If the government can bail out New York City, the savings and loan industry, and Chrysler Corporation, whose losses were due to their own neglect, surely it can find a solution to the ills of a few health care beneficiaries in the hills of Virginia, whose plight is not of their own making."
Doe v. Connors, 796 F. Supp. 214, 224 (W.D. Va. 1992).
Tuesday, January 12, 2010
On the late George Warren
George Warren died yesterday, as the Bristol paper reports here.
When I was a young lawyer, I took court-appointed criminal cases because that was the thing to do, and the prosecutor here was George Warren. And, whenever I got some cases, I would go see Mr. Warren before plea day, and he would explain to me in colorful terms how my client was a scoundrel and nothing but a scroundrel, and tell me a few stories, and I never kept score but the odds are that we laughed out loud at every such meeting. He was a good man and a good lawyer and good friend to thousands, including me.
When I was a young lawyer, I took court-appointed criminal cases because that was the thing to do, and the prosecutor here was George Warren. And, whenever I got some cases, I would go see Mr. Warren before plea day, and he would explain to me in colorful terms how my client was a scoundrel and nothing but a scroundrel, and tell me a few stories, and I never kept score but the odds are that we laughed out loud at every such meeting. He was a good man and a good lawyer and good friend to thousands, including me.
Monday, January 04, 2010
The more Virginia governors you know, the more you like the single term limit?
So says Larry Sabato, more or less, in Va.'s McDonnell seeks end to term limit - Washington Times:
"The more Virginia governors I've known, the more grateful I've been for the one-term limit. I say that tongue-in-cheek; I like many of them. The arrogance of power is something that citizens need to consider," Mr. Sabato said.
"The more Virginia governors I've known, the more grateful I've been for the one-term limit. I say that tongue-in-cheek; I like many of them. The arrogance of power is something that citizens need to consider," Mr. Sabato said.
Wednesday, December 30, 2009
Judge Conrad's latest dismissal of the Equity in Athletics case
Here is the opinion in EIA v. Department of Education, wherein Judge Conrad of the W.D. Va. dismissed the latest incarnation of the lawsuit challenging the federal government's interpretation of Title IX of the Education Amendments as applied to the athletic programs of the Virginia's public colleges and universities.
So, there is still no joy for the men's swimming and diving, track and field, cross country, and wrestling teams at JMU.
So, there is still no joy for the men's swimming and diving, track and field, cross country, and wrestling teams at JMU.
Friday, December 11, 2009
More on gas in Virginia
Here are more parts of the Daniel Gilbert series on natural gas in Southwest Virginia, which I recommend no matter which side of things you're on.
Part Three explains the Harrison-Wyatt decision, about the ownership of coalbed methane under particular deed language.
Part Four says the coal companies still claim coalbed methane, despite the Harrison-Wyatt decision.
Part Five takes on Wachovia's role with the escrowed funds.
Part Six says sometimes gas companies don't pay, or get the paper work right, and nobody is checking up on them.
Part Three explains the Harrison-Wyatt decision, about the ownership of coalbed methane under particular deed language.
Part Four says the coal companies still claim coalbed methane, despite the Harrison-Wyatt decision.
Part Five takes on Wachovia's role with the escrowed funds.
Part Six says sometimes gas companies don't pay, or get the paper work right, and nobody is checking up on them.
Wednesday, December 09, 2009
On firefighters getting promoted at the courthouse not the firehouse
In Wesley v. Arlington County, the Fourth Circuit in a 2-1 unpublished decision reversed summary judgment for the County, in a case where the plaintiff alleged that she was denied promotion on account of her race and gender. Judge Wilkinson dissented, pointing out that the other candidates were more experienced and the plaintiff had some performance issues, and concluded: "This case is, however, regrettably weak. The promotion in question should be earned at the stationhouse -- not the courthouse."
On putting the genie back in the bottle
The Supreme Court held in Mohawk Industries v. Carpenter written by new Justice Sotomayor that if the trial court makes you fork over discovery that you think is covered by the attorney-client privilege, you cannot take an immediate appeal under the collateral order exception to the requirement that only "final" orders are appealable.
And, the rationale was that the wrongful disclosure of privileged documents can be fixed after the end of the case, or appealed some other way perhaps - such as defying the Court's order and getting thrown in jail, which seems like something that would not ordinarily be the path of choice.
And, the rationale was that the wrongful disclosure of privileged documents can be fixed after the end of the case, or appealed some other way perhaps - such as defying the Court's order and getting thrown in jail, which seems like something that would not ordinarily be the path of choice.
Monday, December 07, 2009
The gas royalty series in the Bristol paper
Here are parts one and two of what is said to be an eight-part series by Daniel Gilbert detailing some inequities in the Virginia law pertaining to royalties for natural gas and coalbed methane.
The escrow statute for recovering escroyed royalties for coalbed methane is Va. Code 45.1-361.22, and it provides: "The Board shall order payment of principal and accrued interest, less escrow account fees, from the escrow account to conflicting claimants only after (i) a final decision of a court of competent jurisdiction adjudicating the ownership of coalbed methane gas as between them or (ii) an agreement among all claimants owning conflicting estates in the tract in question or any undivided interest therein. Upon receipt of an affidavit from conflicting claimants affirming such decision or agreement, the designated operator shall, within 30 days, file with the Board a petition for disbursement of funds on behalf of the conflicting claimants. The petition shall include a detailed accounting of all funds deposited in escrow that are subject to the proposed disbursement. The amount to be paid to the conflicting claimants shall be determined based on the percentage of ownership interest of the conflicting claimants as shown in the operator's supplemental filing made part of the pooling order that established the escrow account, the operator's records of deposits attributable to those tracts for which funds are being requested, and the records of the escrow account for the coalbed methane gas drilling unit. The petition for disbursement shall be placed on the first available Board docket. Funds shall be disbursed within 30 days after the Board decision and receipt by the Department of all documentation required by the Board. The interests of any cotenants that have not been resolved by the agreement or by judicial decision shall remain in the escrow account."
Sounds like a party.
The escrow statute for recovering escroyed royalties for coalbed methane is Va. Code 45.1-361.22, and it provides: "The Board shall order payment of principal and accrued interest, less escrow account fees, from the escrow account to conflicting claimants only after (i) a final decision of a court of competent jurisdiction adjudicating the ownership of coalbed methane gas as between them or (ii) an agreement among all claimants owning conflicting estates in the tract in question or any undivided interest therein. Upon receipt of an affidavit from conflicting claimants affirming such decision or agreement, the designated operator shall, within 30 days, file with the Board a petition for disbursement of funds on behalf of the conflicting claimants. The petition shall include a detailed accounting of all funds deposited in escrow that are subject to the proposed disbursement. The amount to be paid to the conflicting claimants shall be determined based on the percentage of ownership interest of the conflicting claimants as shown in the operator's supplemental filing made part of the pooling order that established the escrow account, the operator's records of deposits attributable to those tracts for which funds are being requested, and the records of the escrow account for the coalbed methane gas drilling unit. The petition for disbursement shall be placed on the first available Board docket. Funds shall be disbursed within 30 days after the Board decision and receipt by the Department of all documentation required by the Board. The interests of any cotenants that have not been resolved by the agreement or by judicial decision shall remain in the escrow account."
Sounds like a party.
Wednesday, December 02, 2009
Pseudo-legality
From the Court's opinion in U.S. v. Phillips:
"Phillips filed this § 2255 motion on or about December 22, 2008, alleging that his conviction is illegal based on various and frivolous and pseudo-legal arguments. The 44-page motion argues, among other things, that key provisions of Titles 18 and 21 of the United States Code were not properly enacted and published and, as such, are not valid criminal statutes; that the government is not a legal 'person' for purposes of the Civil Rights Act and so his plea agreement cannot be a valid contract between two persons; that he is not guilty of a federal criminal offense because his criminal conduct occurred in the Commonwealth of Virginia, not on federal territory; that the United States Code has been copyrighted as the private international law applicable only in the District of Columbia; and that counsel was ineffective for failing to raise these arguments before advising him to plead guilty."
I kept a straight face until the last of these particulars.
"Phillips filed this § 2255 motion on or about December 22, 2008, alleging that his conviction is illegal based on various and frivolous and pseudo-legal arguments. The 44-page motion argues, among other things, that key provisions of Titles 18 and 21 of the United States Code were not properly enacted and published and, as such, are not valid criminal statutes; that the government is not a legal 'person' for purposes of the Civil Rights Act and so his plea agreement cannot be a valid contract between two persons; that he is not guilty of a federal criminal offense because his criminal conduct occurred in the Commonwealth of Virginia, not on federal territory; that the United States Code has been copyrighted as the private international law applicable only in the District of Columbia; and that counsel was ineffective for failing to raise these arguments before advising him to plead guilty."
I kept a straight face until the last of these particulars.
Mistaken identity arrestee's Fourth Amendment claims fall to qualified immunity
As a longtime student of the law of the statute of limitations and the law of qualified immunity, I enjoyed reading Magistrate Judge Sargent's opinions in Durham v. Elkins as to the deputy and the Commonwealth's Attorney. I'm not sure that I agree with everything in these opinions, but all's well that ends well.
Wednesday, November 11, 2009
Those proposed Local Rules for the W.D. Va.
Here you can see the proposed local rules for the Western District of Virginia.
Gen. R. 2(b) is good - civil cases should be filed in the right jury division. Long live the Big Stone Gap courthouse!
Gen. R. 11 about juror contact is sound, and Judge Jones has included something on those lines in his pre-trial order for some time.
Gen. R. 12 says: "The Court may in its discretion impose the costs of a jury where a case is settled or otherwise disposed of after it is too late to reasonably notify the jury not to appear." I guess that's based on budget concerns, but a drag. Stick that in your eleventh hour settlement demand - "and you'll indemnify me against whatever the judge makes us pay for settling so late."
Civ. R. 11 requires briefing of motions, along the lines that are required now in Judge Jones's regular scheduling order, but this rule is broader because it would include discovery motions.
Civ. R. 16 now requires scheduling orders in all cases. Judge Williams has not been entering scheduling orders in cases unless someone asked for one, I think.
Civ. R. 26 deals with expert witness disclosures. The gist is if you are going to object to expert testimony, you need to file a motion in time for the Court to rule in advance of trial.
Civ. R. 51 says file proposed jury instructions a week before trial. I think Judge Jones has been ordering this for years. He generally wants them to be e-mailed to him in word processing format as well, so he can tidy them up, but that part is not in the rule.
Civ. R. 54 is cribbed from the D. Md., and sets forth the details of how to apply for attorneys' fees in a cases where those can be recovered. You need to file a little brief and have detailed time records.
Civ. R. 56 says file for summary judgment far enough in advance of trial for the Court to rule. The scheduling orders I've seen usually set a more explicit deadline than this rule provides.
None of this seems even mildly controversial to me. I wonder what jury costs are.
Gen. R. 2(b) is good - civil cases should be filed in the right jury division. Long live the Big Stone Gap courthouse!
Gen. R. 11 about juror contact is sound, and Judge Jones has included something on those lines in his pre-trial order for some time.
Gen. R. 12 says: "The Court may in its discretion impose the costs of a jury where a case is settled or otherwise disposed of after it is too late to reasonably notify the jury not to appear." I guess that's based on budget concerns, but a drag. Stick that in your eleventh hour settlement demand - "and you'll indemnify me against whatever the judge makes us pay for settling so late."
Civ. R. 11 requires briefing of motions, along the lines that are required now in Judge Jones's regular scheduling order, but this rule is broader because it would include discovery motions.
Civ. R. 16 now requires scheduling orders in all cases. Judge Williams has not been entering scheduling orders in cases unless someone asked for one, I think.
Civ. R. 26 deals with expert witness disclosures. The gist is if you are going to object to expert testimony, you need to file a motion in time for the Court to rule in advance of trial.
Civ. R. 51 says file proposed jury instructions a week before trial. I think Judge Jones has been ordering this for years. He generally wants them to be e-mailed to him in word processing format as well, so he can tidy them up, but that part is not in the rule.
Civ. R. 54 is cribbed from the D. Md., and sets forth the details of how to apply for attorneys' fees in a cases where those can be recovered. You need to file a little brief and have detailed time records.
Civ. R. 56 says file for summary judgment far enough in advance of trial for the Court to rule. The scheduling orders I've seen usually set a more explicit deadline than this rule provides.
None of this seems even mildly controversial to me. I wonder what jury costs are.
Thursday, November 05, 2009
The end of babysitting and sleepovers
I read the "new" opinions in Kellerman v. McDonough. I thought both the majority and Justice Kinser's opinions were off the mark.
The majority opinion converts the mom hosting a sleepover into some kind of service provider with a duty of reasonable care, to protect the kids from criminals. That's an awfully casual basis for imposing what might be a tremendous liability for the normally unforeseeable acts of others. I guess the Chief Justice wants moms and babysitters to keep a stack of written waivers handy. At least the babysitters get paid - and now they need to charge enough to buy some good insurance.
Justice Kinser's parsing of the pleadings also seemed unreasonable. The Rules say: "An allegation of negligence or contributory negligence is sufficient without specifying the particulars of the negligence." The plaintiff had no obligation to specify any particular theory of negligence, under the rules as written. This part of Justice Kinser's opinion strikes me as another in a series of appellate decisions that have been too persnickety in their interpretation of whether issues were sufficiently raised in the trial court.
The majority opinion converts the mom hosting a sleepover into some kind of service provider with a duty of reasonable care, to protect the kids from criminals. That's an awfully casual basis for imposing what might be a tremendous liability for the normally unforeseeable acts of others. I guess the Chief Justice wants moms and babysitters to keep a stack of written waivers handy. At least the babysitters get paid - and now they need to charge enough to buy some good insurance.
Justice Kinser's parsing of the pleadings also seemed unreasonable. The Rules say: "An allegation of negligence or contributory negligence is sufficient without specifying the particulars of the negligence." The plaintiff had no obligation to specify any particular theory of negligence, under the rules as written. This part of Justice Kinser's opinion strikes me as another in a series of appellate decisions that have been too persnickety in their interpretation of whether issues were sufficiently raised in the trial court.
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