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Southwest Virginia Law Blog

Items of interest to lawyers in Southwest Virginia and beyond.
By Steven R. Minor

Post Frequency: 2.3/day

Last Entry: July 09, 2020 at 12:40:00

A picture can say a thousand words, and none of them are hearsay

Posted on January 18, 2011
Today in Bynum v. Com., the Court of Appeals in an published opinion by Judge Petty, joined by Judges Elder and Beales, held that the trial court in a case where the defendant was convicted of possessing drugs within 1,000 feet of a school did not err in admitting over the defendant's hearsay objection the aerial photograph used by police to prove the defendant's proximity to the school...

Why stick the taxpayers with these claims?

Posted on January 09, 2011
Turning a good idea on its head, Delegate Janis has proposed a bill to amend the Virginia Fraud Against Taxpayers Act, Va. Code 8.01-216.1 et seq., to overrule the holding from the Supreme Court's decision in Ligon v. Goochland and waive the sovereign immunity of the Commonwealth and its counties and cities under the Act...

On Judge Thomas Horne

Posted on January 07, 2011
In this article, a local newspaper for Loudoun County declares Circuit Court Judge Thomas Horne its "citizen of the year," and explains why in extensive detail. Among other things, Justice Mims credits Horne as the primary contributor to the bench book for circuit court judges.

On the NiSource royalty litigation in the W.D. Va.

Posted on January 06, 2011
In the famous Tawney case from Roane County, West Virginia, a group of royalty owners obtained a $405 million jury verdict against a group of natural gas companies on a variety of theories, including that the gas companies deducted more than they should have done from the sales price of the gas in calculating royalties and that the companies wrongfully included the below-market advance sales of gas in calculating royalties...

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On snow days

Posted on December 30, 2010
In the winter, I hear talk about schools cancelling classes because of snow.One part of that discussion is that school officials are afraid of liability. In Virginia, the liability of school employees and school boards for simple negligence is limited by sovereign immunity and the school bus insurance statute, Va...

The Media General article on Justice Kinser

Posted on December 28, 2010
I finally got around to checking out the fine article on Justice Kinser, who is becoming the Chief Justice of the Virginia Supreme Court. It seems like not so long ago that she joined the Supreme Court, yet with the retirement of Justice Koontz, all the other justices have less tenure than she does, but for current Chief Justice Hassell...

Whatever works

Posted on December 23, 2010
In this VLW post, a Virginia legislator is cited for the proposition that the Governor proposed taking money from the Virginia State Bar to fund judgeships because the Virginia State Bar complained about the lack of funding for judgeships.There ought to be a constitutional amendment that says the legislators are thrown out and barred from public office if they don't pass a budget and fill all the judgeships, in every session...

Enzyte and the warrantless search (or is it seizure?) of e-mail

Posted on December 16, 2010
The Sixth Circuit ruled today in U.S. v. Warshak that the Fourth Amendment prohibited federal law enforcement from obtaining the defendant's e-mails from his internet service provider without a warrant. The case is a big deal to legal scholars, and is also interesting because the defendant was the owner of the company that puts on those late night ads with Smilin' Bob.

The FRCP amendments

Posted on December 15, 2010
The latest amendments to Rules 26 and 56 went into effect on December 1. The Rule 26 amendment limits the discoverability of draft reports by expert witnesses. The Rule 56 amendment is supposedly only procedural. Rule 56(b) specifies a default deadline for filing summary judgment motions, as 30 days after the close of all discovery...

Judge Hudson strikes down health insurance mandate

Posted on December 13, 2010
I've read Com. v. Sebelius, and what struck me on the first reading was that Judge Hudson seemed to say that if the Congress and the Administration had characterized the individual insurance mandate as a revenue measure from the get-go, the outcome might have been different...

On the constitutionality of the health insurance mandate

Posted on November 09, 2010
GMU law professor Ilya Somin has this take on the constitutionality of the health insurance mandate, which concludes if nothing else that the challenges to the mandate are not frivolous and what the law requires is something new, for which there is no binding precedent upholding its legality...

Court of appeals' "digital brief" guidelines

Posted on November 04, 2010
I read with some interest the "digital brief package" from the Virginia Court of Appeals. What is required is something quite different from the ordinary files we print to PDF and upload to federal court every day.I enjoyed particularly the checklist of reasons for rejecting the digital briefs, such as "Paper Brief was not the same Brief on the CD...

She said yes

Posted on November 02, 2010
Elliott Lawson & Minor is announcing this week that Dawn Figueiras has joined the ownership of the firm.This is a great thing, as she is one of the best lawyers and best people I know.

On Justice Carrico

Posted on October 25, 2010
This article from the Richmond paper on Chief Justice Carrico of the Virginia Supreme Court at age 94 includes some interesting views on his five decades as a justice, chief justice, and senior justice. The article suggests that his most famous opinion as a justice was in the Loving case, affirming Virginia's ban on inter-racial marriage, the case that was then reversed by the United States Supreme Court, but that he makes no apology for applying the law as he found it at that point in time.

On sentencing in the W.D. Va.

Posted on October 25, 2010
The Roanoke Times had this interesting article on the role of the federal probation office in federal sentencing in Western District of Virginia cases. It quotes among others Judge Conrad and Judge Turk - and Paul Dull, distinguished graduate of the Appalachian School of Law and a fine fellow...

Wait, do I still have some of these?

Posted on October 25, 2010
The Virginia Gazette reports here on a William & Mary grad who returned an overdue book he checked out from the Williamsburg library in 1975. He told the library his lawyer had advised him to turn himself in. There was no fine since the library's records did not go back so far.

He said it.

Posted on October 25, 2010
"The judiciary acts as a ballast on our ship of state, and it prevents the ship from being wrecked on the reefs of inappropriate judgment, and should not be steered by the whims of hysterical opinion."- Judge Burton Roberts, quoted today in his obituary in the New York Times.

Unusually high quality briefs lead to reprimand

Posted on October 22, 2010
Via this ABA Journal article, I saw this opinion about a lawyer who was sanctioned for plagiarizing page after page of an article and filing it as his own briefs. The opinion from the Iowa Supreme Court says the trial court judge got suspicious having found the briefs to be of "unusually high quality," which surely is better than a plagiarized brief of unusually low quality but unethical nonetheless under the circumstances of this case...

On the ethics of fake friending

Posted on October 11, 2010
An ethics committee for the Bar of the New York City Bar has concluded, unsurprising, that it is unethical for a lawyer to pretend to be someone else to become your friend on Facebook in order to get at your secrets.The opinion concludes:"Rather than engage in 'trickery,' lawyers can -- and should -- seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful 'friending' of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual?s social networking page...

When does $74,139.24 exclusive of interest and costs exceed $75,000

Posted on September 15, 2010
In Merial Limited v. Rasnic, Judge Sargent concluded that a claim for $74,139.24 satisfied the amount in controversy requirement under 28 U.S.C. 1332, which gives the federal courts subject matter jurisdiction of certain "civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs...

The last to know

Posted on September 08, 2010
I finally noticed that the website of the W.D. Va. indicates that the Chief Judge is now Judge Glen Conrad, right next to where it says that Julie Dudley is the Clerk.Judge Jones (like Jack Nicklaus) was born in 1940. Under 28 U.S.C. 136, no district judge gets to act as chief judge beyond the age of 70 if there are others who qualify to be chief judge.

On twenty years with Crohn's disease

Posted on September 02, 2010
In 1990, I was about to get married, and I knew there was something wrong with me, but didn't know what. I went to see old Dr. Shaffer, who referred me to a gastroenterologist, who figured out that I have Crohn's disease, and who has been my good friend and doctor for twenty years...

Justice Kinser to be the next Chief Justice

Posted on August 31, 2010
The Virginia Supreme Court has announced the selection of Justice Kinser as the next Chief Justice.Justice Kinser clerked for Judge Williams, along with George Allen, who appointed her to the Supreme Court, after she had served for some years as magistrate judge for the W...

Last night of Bluefield Orioles baseball, after 53 years

Posted on August 31, 2010
As reported here, tonight is the last home game of the Bluefield Orioles, ever.The Bluefield Orioles figured prominently in a famous opinion by Judge Williams of the W.D. Va.

Two other college football favorites

Posted on August 30, 2010
A few of my other college football favorites:1. Sharon Randall's account of taking her brother to a Clemson game, that starts off like this:"Blind all his life, he has never seen a thing -- not a sunset or a baby's smile or even the nose on my face. Yet he often seems to "see" things the rest of us tend to miss -- things that light him up and make him smile in his own private delight...

College football, for Jill and Joy Lee

Posted on August 30, 2010
This still tickles me, especially "we had some might good dogs." "Condredge Holloway hopping out of an ambulance to return to the UCLA game" in 1974 is about as far back as I go.SRM, 8/30/2010.Here's my alltime favorite piece of writing about college football in Tennessee...

On Guy Tower

Posted on July 28, 2010
When The Virginia Bar Association hired Guy Tower as executive director, they got the right man, and so it's sad news to read that he is retiring, but happy news for him. Not many people can do so many things well, as the job requires and as he did, with good humor...

Constitutional challenge to FOIA revived

Posted on July 27, 2010
The Virginia Freedom of Information Act limits the right of access to the public records of state and local government in Virginia to the citizens of the Commonwealth. Today in McBurney v. Cuccinelli, the Fourth Circuit in a somewhat split decision reversed the E...

NC nuisance law cannot be applied to TVA plants in Tennessee

Posted on July 27, 2010
Yesterday in State of North Carolina v. TVA, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Shedd and Niemeyer held that North Carolina's common law of nuisance could not be applied to require the Tennessee Valley Authority to spend a billion dollars to retrofit its coal-powered generation plants in East Tennessee to comply with North Carolina's emissions laws...

One for probation officers and riders of public transportation

Posted on July 01, 2010
Today in U.S. v. Alvarado Perez, the Fourth Circuit in a published opinion by Senior Judge Arthur L. Alarcon of the Ninth Circuit, joined by Judges Gregory and Shedd, affirmed an enhanced jail sentence in a gun case for an illegal immigrant gang member and sex offender who took a loaded revolver with him on a city bus to a meeting with his probation officer, where immigration officials seized him and found the pistol in his backpack...

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