The VLW Blog

Judge Martin Clark’s newest novel, The Legal Limit, is drawing favorable reviews in the national press.

Clark, who has been on the bench for 15 years, currently serves as a circuit court judge in Patrick and Henry Counties and the City of Martinsville. In a provocative introduction to his tale of two brothers, Clark says the story was prompted by his own involvement in a similar case that required him to balance a straight application of the law against doing justice.

Clark’s foreword also says local readers in Patrick County – population 20,000 – will recognize the prototypes for a number of the figures who populate his story of a prosecutor who broke the law to protect his brother. There are enough local lawyers to keep the informed reader guessing. Just who is the role model for the assistant prosecutor – that pop-culture icon the “magical Negro” – who serves as sidekick to the not-so-heroic hero?

Anyone who has played the parlor game of matching Clark’s colorful characters against lawyers practicing down near the North Carolina borderline is invited to send in their guesses for who’s who in the roman a clef.

But then again, considering how blurred the line between fact and fiction is in contemporary writing, the introduction may be just another clever come-on.

By Deborah Elkins

You’ve briefed and argued your Virginia circuit court case. Weeks go by and the judge still has it under advisement. Your client wants to know what’s taking so long.

The remedy under the Virginia Code: tell it to the Chief.

That’s right. Under Virginia Code § 17.1-107, if Chief Justice Leroy Hassell, or his designee on the high court, believes a circuit or appellate judge is taking “an unreasonable length of time” to rule in a case, he “shall inquire into the cause of such delay” and can designate another judge to help out.

Now we have a number for “reasonable.” It’s 90 days.

This year the General Assembly amended the statute to provide that if a circuit judge holds a civil case under advisement for more than 90 days after its final submission, the court has to tell the parties or their counsel, in writing, when they may expect a decision.

If the trial judge fails to report to the parties, or to issue a decision within the promised time frame, any party can notify the Chief, who then can apply the “reasonableness standard” and assign help for the slow-poke.

Richmond litigator Ben Ackerly, who mentioned the statutory change at the June 19 “Recent Developments in the Law” update at Virginia Beach, said he’s “not sure this solves the problem.”

If you’re waiting for the trial judge to presumably make a decision in your client’s favor, you don’t want to harass the judge.

But under the statute, the trial judge probably is going to know who gave the nod that led to a nudge from the Supreme Court.
By Deborah Elkins

Once again, when trial judges and lawyers convene, the talk turns to Benitez, the Virginia Supreme Court sanctions case. The venue this time? A panel of circuit court judges at the Virginia Trial Lawyers Association annual meeting on March 28, moderated by Arlington Circuit Court Judge Joanne Alper.

The subject is irresistibly personal.

“Sanctions motions are different and more difficult because they’re personal,” said Albemarle County Circuit Judge Cheryl Higgins. Basically, “you want a finding that the other attorney is a jerk.” You’ve got to use “e-mail, faxes, voice-mail, letters,” all kinds of lawyer-to-lawyer communications to prove your point.

Higgins is seeing more sanctions motions, but she cautions against filing just because you think you’ve got grounds.

Some lawyers see a flimsy claim or defense and fire off a “kiss my sanctions” motion, without any cite to authority. Higgins, who took the bench in Albemarle County in 2007, said “you would not believe what I’ve read in the last year.”

Higgins said it’s important to “think strategically before you file a motion for sanctions. What is it you’re trying to accomplish for your client,” given the time and expense of pursuing a sanctions motion.

“When you bring a sanctions motion, you’re putting your credibility on the line,” Alper said.

What about giving opposing counsel a chance to back down? The consensus among this group, which also included Richmond Circuit Judge Brad Cavedo, seemed to be it’s not necessary under the current statute, but it might be as a matter of professional courtesy.

In practice, “you try to work it out,” said Hampton Circuit Judge Wilford Taylor Jr. “We don’t want to sanction lawyers.”

Word is, a Boyd-Graves committee is looking at drafting a “safe harbor” provision for Va. Code § 8.01-271.1, similar to the one in Fed. R. Civ. P. 11, that requires a warning shot over the bow before a sanctions motion is filed.

Norfolk Circuit Court Judge Charles E. Griffith has lost his bid for another eight-year term, reports The Virginian-Pilot. One House Republican leader acknowledged that Griffith, who served as commonwealth’s attorney before going on the bench, will not be reelected.

The News & Advance reports this afternoon that the Lynchburg legislative delegation apparently has agreed upon a candidate for a pending circuit judgeship in the 24th Circuit: John Cook.

Cook would succeed Judge Sam Johnston of Campbell County, who is retiring June 1 after 30 years on the bench.

Cook, 50, is a partner with the firm of Caskie & Frost.