The VLW Blog

Just in time for Halloween, a contract and copyright dispute over the rights to a documentary that may be coming soon to a venue near you: Your Mommy Kills Animals.

Plaintiffs Richard Berman and Maura Flynn and Flynn’s business, Speakeasy Video, say they had a deal with defendant Curt Johnson, of Indie Genius Productions, for joint production of the documentary YMKA that was supposed to focus on People for the Ethical Treatment of Animals and the animal rights movement.

Berman, the money man, operated a D.C. public affairs company that opposed PETA and advocated for consumer choice. Flynn had worked with Johnson as a producer on “Michael Moore Hates America.” The “Your Mommy” title purportedly comes from a comic book produced by PETA.

With cameos from stars like Jessica Biel, James Cromwell, and Katherine Heigl, the documentary YMKA displeased the plaintiffs because they said it devoted little screen time to PETA and a lot of screen time to another animal rights group presented as champions of free speech. The plaintiffs won contract damages and copyright protection in Berman v. Johnson.

Flynn conducted interviews and provided contacts for the movie, according to Senior U.S. Judge T.S. Ellis III’s Oct. 19 decision in Berman. Ellis recognized Flynn as a joint author under federal copyright law. Ellis applied a test for joint authorship test used by the 2nd and 7th Circuits, rejecting a test from the 9th Circuit.

A jury awarded Berman of $360,000 in contract damages and $10,000 in compensatory damages. Ellis denied Berman’s post-trial claim to an exclusive right to promote the film, saying he was not entitled to both contract damages and specific performance.

When civil rights giant Oliver W. Hill died Aug. 5 at age 100, the Richmond chapter of the Old Dominion Bar Association already was looking forward to the “Next Hundred Years.”

For several years, the Richmond chapter’s flagship program has been providing scholarships to first-year law students in order to nurture the next generation of civil rights advocates.

The chapter joined with the Richmond Bar Foundation Oct. 24 for its seventh annual Hill-Tucker Scholarship dinner to congratulate the six law students honored with the 2007 scholarship awards.

The top award this year went to Howard University School of Law student Yasmine Gabriel, who was saluted for her work with Hurricane Katrina survivors. William and Mary law students Chanel Gray, Adrienne Sakyi and Chantel Mills also received scholarships, as did Jessica Childress of the University of Virginia and Andria George of Liberty University School of Law.

Richmond lawyer Courtney Malveaux, president of the Richmond chapter, recalled the days when Oliver Hill “walked among us,” observing that Mr. Hill “did not dwell on what he endured in the past, but on our future.” He balanced his somber recollection with a lighter note, saying prior to the dinner that a year ago this time, he was just collecting a bourbon on the rocks for Mr. Hill.

Henry Marsh told the audience of lawyers, judges and community and business leaders that he was “the luckiest person in this room, perhaps in this whole state, having had the good fortune” of practicing law with both Mr. Hill and Samuel W. Tucker at the Richmond firm of Hill, Tucker and Marsh.

Marsh said he witnessed thousands of lawyers give Mr. Hill a prolonged standing ovation in response to rousing remarks Mr. Hill delivered when he accepted an award fro m the American Bar Association. Marsh heard nearby comments that hailed Mr. Hill: “Look at that, he’s 95 years old, blind, and he’s still fighting.”

Keynote speaker Viola O. Baskerville, Secretary of Administration for the Commonwealth of Virginia, told the scholarship recipients that it’s “their legacy to pick up this fight,” and build on the heritage of students who staged sit-ins and rode freedom buses. “The activism has not changed, only the medium has changed,” she said.

Malveaux said that with the support of its numerous sponsors, the group plans to start an endowment to fund future scholarships.

“The mission is not nearly complete, but that is something he left in our hands,” Malveaux said.

Maybe a defendant convicted of drug conspiracy deserves a break because most of his crack distribution occurred during the three-year period before he turned 19.

But what if the defendant, “K-Smooth,” was one of the few members of the 30-odd defendants from Petersburg’s “Third Ward Gang” to go to trial in Richmond federal district court? Criminal defendants usually get a break for taking a plea. Maybe Batts’s decision to go to trial should offset his youth as a basis for mercy.

Because the 4th U.S. Circuit Court of Appeals couldn’t get a clear picture of why Kevin Batts was sentenced to only 120 months in prison – a 54-percent deviation from the advisory federal sentencing guidelines range – it vacated Batts’s sentence for RICO and drug conspiracy offenses and sent the case by to Chief U.S. District Judge James R. Spencer.

In U.S. v. Batts, released yesterday, the appellate court said it had “never upheld such a significant variance,” and would only do so if presented with a sufficient explanation.

When he imposed the 120-month mandatory minimum sentence, Spencer said the sentence was “in line with” the defendant’s argument that the court should focus on Batts’s post-majority criminal conduct.

The district judge said he had “thought about this at great length before” and “considered all of the facts and circumstances.”

The 4th Circuit said the sentence was unreasonable.

It wasn’t clear whether the district court considered the need to avoid unwanted sentence disparities, the appellate panel said, especially in light of the fact that Batts’s sentence was lower than the sentences imposed on most of the gang members who pleaded guilty.

The district court also failed to give complete consideration to the defendant’s history, specifically, his age during the conspiracies.

“To the extent that much of Batts’s drug activity occurred while he was a minor, a variance of some sort might be considered,” the appellate court wrotein its unpublished opinion. “On the other hand, the fact that Batts continued the same illegal activity after he had reached the age of majority and spent time in juvenile detention may indicate that he should not be afforded such a significant break, since it is not clear that his coming of age has changed his unlawful conduct.”

“The task of reviewing a sentence’s reasonableness should not be akin to reading tea leaves,” the court said. Given the “significant deviation” in Batts, the need for an adequate explanation “is particularly important.”

The Virginia Court of Appeals did some line-drawing yesterday, and let criminal defense lawyers know there is at least one case that should not have drawn a Rule 5A:18 argument.

Defense lawyers know the power of the contemporaneous objection rule, and how carefully the appellate court scrutinizes the record to make sure trial counsel hit all the right marks to give the trial judge the chance to cure any alleged errors down below.

During trial, lawyers sometimes feel like they’re walking a tightrope, trying to object enough to preserve an issue for appeal, but not object so much they irritate the trial judge.

The lawyer in Byrd v. Commonwealth got it just right.

Bobby Byrd wanted a Portsmouth Circuit judge to suppress heroin found in his pocket when Byrd was picked up on an informant’s tip. The judge admitted the heroin and found Byrd guilty.

On appeal, the commonwealth argued Byrd’s claim was barred because he “failed to object with the requisite level of specificity,” wrote Judge Robert J. Humphreys for the appeals court.

Humphreys, a former prosecutor, took a look at how much objecting was enough. Humphreys said Byrd’s only argument on appeal was that the confidential informant’s tip did not establish probable cause to arrest him.

“Byrd went to great lengths to bring this argument to the attention of the trial court,” through a pretrial motion to suppress, argument at the suppression hearing and through a continuing objection at trial, Humphreys wrote.

In fact, the trial court said enough already.

The trial judge acknowledged Byrd’s “continuing objection,” saying he would “consider your objection made. You’re not waiving it when you don’t make it again.”

“[I]t could hardly be any clearer that Byrd properly preserved this issue for appeal,” Humphreys said.

Maybe the commonwealth fought so hard on the waiver because they suspected the search was shaky. The unanimous panel said there was no probable cause and reversed Byrd’s heroin conviction.

“How’m I doing?” was former New York City Mayor Ed Koch’s trademark greeting to his constituents.

Lawyers may ask themselves the same question.

Lawyers who labor in a law firm often use the almighty billable hour as their primary measure of productivity.

But an attorney who works for a corporation may come at that billable-hour standard from the opposite direction. For the in-house counsel who hires and manages an outside law firm, the less time that law firm bills, the more readily the in-house lawyer can demonstrate her productivity.

A group of corporate lawyers is attempting to develop their own metrics, or performance standards, for corporate legal departments. Two of these lawyers described their “Open Legal Standards Initiative” yesterday to the Virginia Bar Association’s Corporate Counsel Fall Forum in Richmond.

Steve Lauer said he and Nena Wong co-founded OLSI “to help the in-house profession improve its business practices” and to develop methodology that lets corporate lawyers document performance in order to make comparisons within the legal field and within a particular industry.

In-house lawyers may know “they’re winning cases and handling transactions,” but their corporate bosses want to know “how much it costs and how long does it take?” Lauer said.

OLSI is a voluntary organization dedicated to developing uniform approaches to measure how law departments function, with the ultimate goal of using the data to improve performance.

Gathering good data can help lawyers learn “what can you do to reduce the number of lawsuits against your company, what can you do to reduce the cycle time for drafting contracts,” Wong said. And maybe, as a byproduct, you can “decrease the number of lawyer jokes” you have to hear from the non-legal types in the company.

The OLSI Web site identifies the top 25 “key performance indicators” that help measure cost effectiveness, staff productivity, process efficiency and cycle time. Tracking in-house time shouldn’t be the record-keeping burden that drove many lawyers from firm practice into corporate legal departments. Once law departments establish the right record-keeping habits, all they have to do is “rinse and repeat,” Wong said.

Professor Neill H. Alford Jr., who taught law at the University of Virginia law school for 41 years, has died at the age of 88.

The Richmond Times-Dispatch has an appreciation.

The Virginian-Pilot is reporting that Norfolk Circuit Judge Alfred M. Tripp has been barred from court.

The paper’s source did not state the reasons for the action. The judge’s docket was transferred to another judge Friday and a substitute judge was scheduled to sit today.

The source spoke anonymously due to the secret nature of proceedings of the Judicial Inquiry & Review Commission, the paper said.

The Virginia State Bar Council took decidedly different positions Friday on two issues described as public protection measures.

One was a proposal to require insurance companies to notify claimants when they mail settlement checks to the claimants’ attorneys. That measure stemmed from the theft of the proceeds of such checks by a small percentage of attorneys. A study of lawyer disciplinary cases showed that lawyers had taken $247,000 in that manner over a four-year period.

The list of objections to the proposal, recited by Virginia Trial Lawyers Association President Chuck Zauzig and plaintiff’s attorneys on the council, was long: interference with the attorney-client privilege, the possibility of improper conduct by insurance companies, fear of the claimant that family members or neighbors would learn about the money, and a bad message about the integrity of the plaintiff’s bar. The proposal “creates a presumption that plaintiff’s lawyers are crooks,” said executive committee member Irv Blank.

Arguments that the notice would alert the client to possible dishonesty by the lawyer or prevent serial thefts by the lawyer were not nearly enough to carry the day. The measure failed by a 54-7 vote.

The second issue was whether the VSB should continue to explore requiring all lawyers in private practice who routinely represent public clients to carry malpractice insurance. Almost 90 percent of such lawyers do so now. Darrell Tillar Mason, chair of the Special Committee on Lawyer Malpractice, said support from the proposal turns on whether one views the issue from a “data driven” or “principle driven” perspective. Evidence of a serious problem for lawyers or the clients is slim, she acknowledged, but some lawyers believe that insurance against their negligence is part of their fiduciary duty to their clients.

Council voted 38-21 to have the committee develop a proposal or proposals for a mandatory malpractice program.

The results for the July 2007 Virginia Bar Examination are in.

Click on the words above and you’ll head to a list of the 1,081 applicants who were successful in Roanoke last summer. A total of 1,502 people sat for the exam. Do the math and that makes a pass rate of 71.9 percent.

Congratulations and cheers!

Read the 2006 federal rules on e-discovery, but don’t ignore the old case law, a Richmond federal district judge told lawyers yesterday at a Richmond-area bench-bar conference.

The changes to Federal Rules 26, 33, 34 and 37 didn’t develop in a vacuum, and the case law framework for resolving discovery disputes is still relevant, regardless of changes in how information is stored and retrieved.

Senior U.S. District Judge Robert E. Payne said when lawyers come to his court for a “meet and confer” under Fed. R. Civ. P. 26(f), they fall into two categories: those who already have solved their discovery problems, including retrieval of ESI, or electronically stored information, and “those who don’t have any earthly idea what you’re talking about.”

Asked how he deals with the latter group, Payne joked, “I’ve got a taser gun.”

The e-discovery rules have had a salutary effect, according to Frank Telegadas, in-house counsel for Circuit City, because the “publicity around the rules got corporate America to understand this is here to stay … and resources need to be freed up to deal with” e-discovery issues.

Richmond lawyer John Craddock said it’s often easier to hash out discovery issues when it’s one corporate client against another. The parties’ common aim to survive, as in the old cold war doctrine of “mutually assured destruction,” encourages cooperation.

Or maybe it’s more like the Willie Nelson song: “You show me yours and I’ll show you mine.”

But pit a little-guy plaintiff against a big, bad corporation and the discovery contest may feel pretty one-sided. A company can’t always stave off a plaintiff determined to find a smoking gun.

Payne said the new rules “are part of the body of rules that’s been around since 1934, and individual plaintiffs and corporations have always said it’s going to cost a lot of money” to produce requested documents.

Before Payne went on the bench, he helped McGuire Woods handle uranium cases for Westinghouse, who had to retrieve old documents from storage in salt mines.

“Judges have been hearing this for years,” Payne said. “They don’t pay any more attention now than earlier. Pleas about the fact that it costs a lot of money fall fairly much on deaf ears because they sound exactly like the arguments I used to make years ago to try and save my clients money.”

“A corporation that chose to save money by putting their data in electronic form is not going to be heard to argue it costs too much to retrieve,” if the information is pertinent, Payne said.