The VLW Blog

A new suit in Norfolk federal court involves … pancakes.

Actually, it involves two companies that run pancake houses, one in the Outer Banks of North Carolina and the other in Williamsburg (where pancake houses are as common as tourists), and their names.

The Virginian-Pilot reports that the company that runs restaurants called “Stack’em High Pancakes,” located in Kitty Hawk and Kill Devil Hills, has filed a trademark infringement suit against a couple that runs “Stack’Em High Pancakes and Waffles Restaurant” in Williamsburg.

The plaintiff company says it has been in operation since 1981 and that its name is a registered trademark. The suit says the defendant company went by another name until 2005.

The Outer Banks “Stack’em High” touts that it has the “Best Breakfast on the Beach.”

The Williamsburg “Stack’Em High” says it has the “Best Breakfast & Lunch in Williamsburg.”

Sounds like the judge might need to order a jury view to decide this one.

(Note: The picture above of the little bowing pancakes was taken from the Web site of the NC “Stack’em High.” The Williamsburg “Stack’Em High” site has a picture of a pretty tasty-looking plate-full. Click on the link to see for yourself.)

Any “grace period” litigators have had since the new e-discovery rules went into effect in December 2006 may be coming to a close.

“Courts are becoming increasingly intolerant of e-discovery errors and omissions,” says Jeane Thomas, a Washington D.C. lawyer and expert on e-discovery. Thomas was on a panel program June 15 at Virginia Beach presented by the Intellectual Property Law Section of the Virginia State Bar.

“We’re getting to the end of any grace period,” and seeing more monetary sanctions and adverse inference rulings or preclusion of evidence, Thomas said. “In a few instances, default judgments have been entered. The costs can skyrocket. … Sanctions are not reserved for deliberate misconduct.”

Eastern District U.S. Magistrate Judge Thomas Rawles Jones Jr. describes the e-discovery rules not as a sea change, but as a “useful additional set of traffic rules.” Jones said courts have been “seeing people still unprepared, but not really seeing the consequences. We’re reaching the time right now” when people can expect to see consequences for failure to comply.

As parties figure out how to use the new rules tactically, motions practice will increase, the panel predicted.

What else is hot?

“Text messages and instant messages are becoming the new area to search for ‘smoking guns,’” Thomas said. “A lot of people have gotten better about writing e-mails, but IMs are now a new area of focus. People are typing back and forth and then when they close the box,” they may think the data disappears. “Not always,” she said. It could be linked into an office system or backed up on a provider’s server.

Any “grace period” litigators have had since the new e-discovery rules went into effect in December 2006 may be coming to a close.

“Courts are becoming increasingly intolerant of e-discovery errors and omissions,” says Jeane Thomas, a Washington D.C. lawyer and expert on e-discovery. Thomas was on a panel program June 15 at Virginia Beach presented by the Intellectual Property Law Section of the Virginia State Bar.

“We’re getting to the end of any grace period,” and seeing more monetary sanctions and adverse inference rulings or preclusion of evidence, Thomas said. “In a few instances, default judgments have been entered. The costs can skyrocket. … Sanctions are not reserved for deliberate misconduct.”

Eastern District U.S. Magistrate Judge Thomas Rawles Jones Jr. describes the e-discovery rules not as a sea change, but as a “useful additional set of traffic rules.” Jones said courts have been “seeing people still unprepared, but not really seeing the consequences. We’re reaching the time right now” when people can expect to see consequences for failure to comply.

As parties figure out how to use the new rules tactically, motions practice will increase, the panel predicted.

What else is hot?

“Text messages and instant messages are becoming the new area to search for ‘smoking guns,’” Thomas said. “A lot of people have gotten better about writing e-mails, but IMs are now a new area of focus. People are typing back and forth and then when they close the box,” they may think the data disappears. “Not always,” she said. It could be linked into an office system or backed up on a provider’s server.

Fredericksburg Circuit Judge John W. Scott Jr. has ordered the city council to fix unsafe conditions at the city’s courthouse, reports The Free Lance-Star.

He also ordered all staff to move out of the building while repairs were made.

The judge’s action comes in response to an appearance by Circuit Clerk Sharron Mitchell last week, in which Mitchell reported that office workers suffered from a number of health problems.

Fredericksburg Circuit Judge John W. Scott Jr. has ordered the city council to fix unsafe conditions at the city’s courthouse, reports The Free Lance-Star.

He also ordered all staff to move out of the building while repairs were made.

The judge’s action comes in response to an appearance by Circuit Clerk Sharron Mitchell last week, in which Mitchell reported that office workers suffered from a number of health problems.

A newspaper carrier who was left a quadriplegic after a garbage truck collided with this 1990 Jeep Cherokee in Fairfax County has settled his claim for $12 million.

Jerome Stewart has medical bills of more than $1 million and has endured every possible complication related to the quadriplegia, according to Richmond attorney John C. Shea, who represented Stewart along with his colleague Roger T. Creager and Joseph M. Caturano Jr. of Manassas.

Stewart suffered a fracture of his neck at the C5-C6 level and has no use at all of his arms or legs.

Shea said the case was “a very highly contested and expensively waged war” that focused on just how the collision occurred. Stewart said the garbage truck backed suddenly into a street as he was driving at about 20 mile per hour on his newspaper route. The driver contended that he had backed slowly into the street and stopped a few seconds before the collision so that Stewart had every opportunity to stop.

The case was mediated by retired Judge Robert L. Harris Sr., who continued to work with the parties for more than a month after the initial session failed to produce a settlement, Shea said.

Read a full account of the case in Monday’s edition of Virginia Lawyers Weekly.

Moonshine has a place in the popular imagination. There was Snuffy Smith, the outdated cartoon hillbilly who fought off “revenooers.” Then, there was “Thunder Road.” Not the Bruce Springsteen song off the “Born to Run” album – the 1958 Robert Mitchum movie in which a Korean War vet came home to the mountains to run the family moonshining business.

Truth is, moonshine is pretty much a thing of the past. The Virginia Department of Alcoholic Beverage Control reports that during the past year, they investigated only 13 stills in Virginia. But as The Virginian-Pilot reports, authorities have an active moonshine case going in Suffolk. Last Friday ABC agents and Suffolk cops busted two elderly friends, ages 84 and 78, and accused them of running a “shot house,” also known as a “nip joint,” a place where untaxed whiskey is served. Among the items seized in a raid: Three gallons of moonshine, some shotguns and many bottles of commercial alcohol.

But the elderly friends didn’t make the illegal hooch. An ABC agent said it likely was from North Carolina. More “Tobacco Road” than “Thunder Road,” in other words. The investigation is continuing.

It was a few hours after a disciplinary panel of the North Carolina State Bar found that Mike Nifong, the Durham district attorney handling the Duke lacrosse team rape case, had withheld crucial evidence from the defendants and that engaged in fraud and deceit.

And it was just a few minutes before the panel was going to announce his punishment.

Nifong’s attorney announced about an hour ago that his client had decided himself that disbarment was the proper sanction and that he was surrendering his law license to the NC bar.

The Washington Post has the full story.

The Virginia State Bar Council has agreed to conduct a thorough discussion at its Oct. 19 meeting on whether the VSB should require that all lawyers who represent the public carry malpractice insurance.

Darrel Tillar Mason, the chairman of a subcommittee studying the issue, came to council Thursday with a more modest proposal: requiring submission of a document verifying the fact and amount of malpractice insurance if a lawyer has it, as almost 90 percent of lawyers who represent the public say they do.

Mason said the information would help the subcommittee bridge a serious philosophical split between those who would require empirical proof of a problem before requiring anything mandatory and those who regard it as “almost sinful” not to have malpractice insurance as a matter of public protection.

But Thomas A. Edmonds, VSB executive director, contended that the information “will not be worth the angst or staff work” that such a requirement would generate.

He likened the debate to the one that occurred before the VSB adopted mandatory continuing legal education. Some members insisted on strong evidence that the proposal would improve the practice of law while others thought improved public perception and the likelihood of improvement were enough.

The decision ultimately is a philosophical one, he said, and by a show of hands, council members indicated that they want to explore the issue—without the intermediate step of insurance verification.

The trial of the $54 million pants suit in DC came to an end on Wednesday, and the presiding judge said she will issue a ruling next week.

This case involves an administrative law judge, Roy Pearson, who took a pair of pants to a dry cleaners. He claims they lost the trousers and he says for that he is owed 54 million bucks, citing the District’s consumer protection laws. The cleaners had posted a sign, since removed, that said, “Satisfaction guaranteed.”

Marc Fisher of the Washington Post wrote that the judge pretty much telegraphed the ending to this story. She said, “This is a very important statute to protect consumers. It’s also very important that statutes like this are not misused.”

The American Association for Justice, formerly known as ATLA, recognizes red meat for the tort reformers when it comes along. Pearson easily could replace the McDonald’s coffee lady in the public mind as the symbol of a frivolous lawsuit. Last month, the AAJ issued a call for a DC bar ethics investigation of Pearson, stating that the idea of seeking that much money for a pair of pants “is not only ridiculous – it is offensive to our values.” AAJ’s top leaders added that they personally were contributing to a defense fund set up for the benefit of the owners of the dry cleaning shop.