Monday, April 30, 2007

Religion and the Supreme Court

Robert Barnes of the Washington Post explores whether the Roman Catholicism of the five conservatives on the Supreme Court influenced the recent decisions on partial birth abortion.

Associate pay wars not unique to America

According to, London law firms are in a salary war of their own. Just goes to show that the law business is pretty much the same everywhere.

Thursday, April 26, 2007

Remember: Motions in Limine are not sufficient to preserve error

In State v. Dicupua, the Court of Appeals reversed the trial court's sua sponte grant of a new trial. Before the start of trial, Dicapua sought to suppress a videotape because it did not have any audio. The audio surveillance system had failed to record what was said because of a machine malfunction. The trial court, however, refused to suppress the videotape. During trial, Dicupua did not raise an objection when the tape was introduced. The sua sponte grant of a new trial came because the trial court apparently rethought the videotape issue. In reversing the trial court, the Court of Appeals focused on the lack of a contemporaneous objection. Because of the lack of an objection, the Court also held that the trial judge was limited in his reconsideration of the videotape issue.

Wednesday, April 25, 2007

Dubya is close to announcing the nominee for Judge Wilkins' seat

Word on the street is that the White House and SC's two senators are almost in agreement on a nominee for the Fourth Circuit. We are down to two possibilities. I know both men, and can honestly say they are stellar people and fine lawyers. This is really a no lose situation. The process has taken a lot longer than I would have liked, but the results are good.

I'll post more as events unfold.

Supreme Court holds that aggressive debt collection practices defeat arbitration clause

In Chassereau v. Global-Sun Pools, Chassereau purchased an above ground pool but stopped making payments when Global-Sun refused to make certain repairs. Agents of Global-Sun allegedly repeatedly phoned Chassereau at her workplace; disclosed private information to Chassereau’s friends, relatives, and co-workers; and also made false and defamatory statements about Chassereau to these same people. Ultimately, Chassereau sued Global-Sun for defamation, intentional infliction of emotional distress, and unlawful communication. Global-Sun moved to compel arbitration. The trial court and the court of appeals both denied arbitration. The Supreme Court affirmed relying on its opinion in Aiken v. World Finance.

Although the Court recognized that Chassereau certainly knew that she would be required to make payments on the pool she purchased and that Global-Sun employees would contact her and request that she make payments on the pool if she ceased doing so, the Court held that "a reasonable person would not have foreseen and would not have expected (and ought not to expect) Global-Sun employees to commit acts historically associated with the common law tort of outrage in seeking to collect an overdue debt." Hence, the arbitration clause was unenforceable.

This is yet another opinion restricting arbitration. Taking the allegations of any complaint as true, under the Court's reasoning, does anyone ever really expect a contract to be breached or any tort to be committed? No. If you did expect a breach or tort, you would not enter into the business relationship. The Court's reasoning could easily be extended far beyond "outrage" to defeat arbitration in all cases.

Tuesday, April 24, 2007

S.C. Supreme Court further restricts the right to arbitration

In Aiken v. World Finance Corporation, the Supreme Court again dealt with arbitration issues and continued its recent trend in restricting arbitration. At base, Aiken had contracted with World Finance for a loan. Under the contract, all disputes arising out of or related to Aiken's relationship with World Finance were subject to arbitration. After the loans were paid off, several World Finance employees conspired to use the personal information provided by Aiken and other clients to obtain sham loans and embezzle the proceeds for the employees’ personal benefit. Aiken sued World Finance and World Finance moved to compel arbitration.

The South Carolina Supreme Court held that arbitration was not the proper venue of the case and announced the following rule: "this Court will refuse to interpret any arbitration agreement as applying to outrageous torts that are unforeseeable to a reasonable consumer in the context of normal business dealings."

The Court reasoned as follows:

In this case, we find the theft of Aiken’s personal information by World Finance employees to be outrageous conduct that Aiken could not possibly have foreseen when he agreed to do business with World Finance. Consequently, in signing the agreement to arbitrate, Aiken could not possibly have been agreeing to provide an alternative forum for settling claims arising from this wholly unexpected tortious conduct. Accordingly, we hold that Aiken’s claims for unanticipated and unforeseeable tortious conduct by World Finance’s employees are not within the scope of the arbitration agreement with World Finance.

S.C. Supreme Court affirms that Crawford does not apply to statements made to non-governmental officers

In State v. Ladner, the Supreme Court upheld the conviction of Bryan Ladner on charges of criminal sexual conduct with a minor, first degree. The Court rejected Ladner's arguments that a statement of a child to her mother about sexual abuse was testimonial in nature under Crawford v. Washington. In the words of the Court: "Significantly, the victim’s statement is much more akin to a remark to an acquaintance rather than a formal statement to government officers." Finally, the Court held that this statement was properly admitted into evidence as an excited utterance:

Clearly, the statement related to the startling event of the victim being severely injured in her vaginal area. The victim was complaining of pain and was bleeding when the statements were made, and thus, the victim made the declaration while under the stress of her attack.

Monday, April 23, 2007

Not Guilty Verdicts Returned Dungeon Rape Case

From CNN:

A jury has found a man accused of raping two teen girls in an underground bunker not guilty of kidnapping, sex crimes and assault with intent to kill. Kenneth Hinson beat the rap. I'd like to hear more details of the testimony and why the jury disbelieved the two girls who claimed kidnapping and rape.

Fourth Circuit grants qualified immunity in First Amendment case

In Campbell v. Stanley, Amy Campbell sued the town of Southern Pines, North Carolina, and certain individual defendants after she was fired from her job as a police officer. The main issue decided by the panel was whether the defendants were entitled to qualified immunity on the First Amendment claim in which Campbell alleged she was fired for a memo raising grave matters of public concern and outlining sexual harassment. The panel held that the officers were entitles to qualified immunity, but disagreed with defendants that a personal complaint about discrimination affecting only the complaining employee can never amount to an issue of public concern. The panel feared that such a standard could improperly limit the range of speech that is protected by the First Amendment. Accordingly, the panel held that "complaints of sexual harassment are not per se matters of public concern; whether such complaints are in any given case depends on the content, form and context of the complaint."

Although the matters raised were issues of public concern, the Court granted the defendants qualified immunity: "Because the facts of this case are close enough to the ill defined line between private speech and speech involving matters of public concern, we cannot hold the defendants responsible for their reasonable but incorrect guess about how the law would apply to the facts of this case. "

Friday, April 20, 2007

Should appellate oral argument be curtailed or abandoned??

This is an interesting question. In my experience as a judicial clerk in the late 1990s, oral argument rarely, if ever, made a difference. Appeals, for the most part were won or lost on the briefs. However, I will also admit that as an appellate advocate, I have relished the opportunity to argue because after further study of the issue and authority, the light bulb has gone off and I "discovered" a better way to present the argument than I had done in my brief. Thus, in my mind at least, I thought argument could make a difference.

Of course, one could also be cynical and suggest that oral argument be retained for the benefit of partners in large firms. Without oral argument, which they always insist on doing themselves, the appellate process would be purely associate driven (since we all know that associates are the ones who craft the the arguments, do the research, and draft the briefs). Heaven forbid that such an important role be put in the hands of young lawyers!

Anyway, the debate on this issue between Crimlaw Blog and Have Opinion Will Travel is worth a read.

Ken over at Crimlaw Blog makes this case for doing away with oral argument:

My primary argument for this is that appellate court decisions are supposed to be dispassionate, considered, legal decisions. An oral argument is necessary in an actual trial because the time is not available to write out legal briefs for every issue that comes forward during a trial. However, appellate courts and parties do not face this dilemma; they have months to research and brief pertinent legal arguments. Basically, an informed, intelligent, and full argument is better made on paper instead of in front of a panel of judges.

Have Opinion counters and asserts that oral argument still has meaning:

First, a historical perspective. Although I don't agree with Ken's characterization of them as "relics" of times gone by, oral arguments are indeed rooted in the Anglo-American legal tradition of an adversary proceeding, which in turn evolved from the medieval concept of trial-by-combat. The very nature of this model would seem to imply that at some point the "champion" doing battle on behalf of his client will actually have an opportunity to set foot in the "arena." I concede that there are those who might prefer the European inquisitorial model of resolving disputes but I had a long career as an advocate and I guess I have a soft spot in my heart for a system that has stood a 750 year test of time.

Second, a well crafted oral argument sometimes makes all the difference in the outcome of the appeal. Even when they are well written, briefs often raise questions in the minds of the judges that can be answered at oral argument and when
the briefs are poorly written
, the issue(s) may not be clear to the court until clarified at oral argument. In my experience, oral argument changes my vote in conference about 10% of the time and while I know that doesn't sound like great odds, another way to put it is that one appeal in ten turns entirely on dialog I am able to have with the lawyers in the case. Moreover, I suspect that any client would expect his or her advocate to take every possible shot at convincing the court. Contrary to Ken's assertion that "they convey prestige." The briefs and oral argument make the complete package that is designed to maximize the persuasion opportunity for professional advocates.

Justices Stephen Breyer and Samuel Alito Jr. call for judicial pay raises

Although agreeing with a House Judiciary subcommittee that federal judges should not expect to make as much as TV's Judge Judy ($28 million), Breyer and Alito urged that judicial pay be increased. The Justices expressed concern that a judgeship was coming to be seen as a stepping stone to bigger and better things.

Thursday, April 19, 2007

Wave of retiring lawyers could change the face of the legal profession


And with more than half of the large firms in the nation operating under some type of mandatory retirement system, the exodus will be profound.

About 1 million lawyers are licensed in the United States, according to the American Bar Association. Extrapolating from the current total of attorneys, a full quarter of attorneys -- or 250,000 -- are expected to start retiring by 2011.

Gonzales hearings begin: Will a Floyd nomination follow?

The Gonzales Senate hearings begin today. As I have posted earlier, at the conclusion of these hearings look for Dubya to nominate Judge Henry Floyd to the Fourth Circuit.

Wednesday, April 18, 2007

Breaking News: SCOTUS upholds partial birth abortion ban


The U.S. Supreme Court upheld a law that makes it a crime to perform ``partial birth'' abortions, allowing the first nationwide ban on a procedure as two justices named by President George W. Bush tipped the balance.

The justices, voting 5-4, said the 2003 Partial Birth Abortion Ban Act is constitutional even though it lacks an exception for cases posing a risk to the mother's health. The court also rejected claims that the law is so vaguely worded it would force doctors to forgo a commonly used, constitutionally protected abortion technique for fear of prosecution.

``The government may use its voice and its regulatory authority to show its profound respect for the life within the woman,'' Justice Anthony Kennedy wrote for the majority.

I'll post more on this after having a chance to review the opinion.

Fourth Circuit holds that state offense to qualify as MCDV must have a domestic relationship element

In United States v. Hayes, Hayes appealed the district court’s denial of his motion to dismiss an indictment charging him with three counts of possessing firearms after having been convicted of the predicate offense of a "misdemeanor crime of domestic violence" ("MCDV"). On appeal Hayes argued that his predicate offense was not an MCDV as that term is defined in 18 U.S.C. § 921(a)(33)(A), and that the charges in the indictment thus fail as a matter of law. More specifically, Hayes argued that his 1994 State Offense did not have as an element a domestic relationship, and it was thus not an MCDV insofar as Hayes was convicted of simple battery. The panel agreed with Hayes: to be an MCDV the state offense must have as an element a domestic relationship between the offender and his victim.

Judge Williams dissented. She would have held that the the Government may prove the existence of a domestic relationship through evidence other than the state court’s charging papers and record of the guilty plea. She also noted that nine other circuits that had considered this issue held that the predicate offense need not specifically contain the relationship element.

Tuesday, April 17, 2007

Character evidence key when criminal intent is an issue

In State v. Lee-Grigg, the Court of Appeals held that in a forgery case it was error for the trial judge not to charge the jury on good character when several character witnesses testified in favor of the defendant. The Court described criminal intent as key to the case and character evidence was inextricably intertwined with intent. Hence, the error could not be harmless and a new trial was ordered.

S.C. Court of Appeals reversed UTPA award of damages

In Collins Holding v. Defibaugh, the Court of Appeals considered an award of damages under the UTPA. At base, Defibaugh competed with Collins by placing machine games in bars and stores across the state. The Defibaughs’ machines utilized a technique known as “reflexive payout,” meaning the owner of the machine can control how much the machine pays back to players over the lifetime of the machine. The machine, unbeknownst to the player, makes adjustments to the game’s outcome to stay within the payback percentage.

Collins brought a UTPA claim and arguing that the reflexive payout scheme of the Defibaugh machines caused Collins to suffer lost profits. Over $100,000 in damages was awarded to Collins. The Court of Appeals reversed:

While Collins may have demonstrated some lost profits arising from the Defibaughs’ placement of their machines at the same locations as where Collins’ machines were placed, Collins did not show that the utilization of reflexive payout on those machines was the cause of any lost revenue. Collins’ director of operations, Jefferson Gibbons, testified that the primary reason the Defibaughs’ machines hurt Collins’ business was because the Defibaughs’ machines were easy to play. Gibbons also testified that the Defibaughs’ machines were faster and involved no thinking or skill. The UTPA only creates causes of action in those suffering a loss as a result of a deceptive act. See S.C. Code Ann. § 39-5-140(a) (emphasis added). While “morphing” may have affected the players of the games, that feature is not what caused Collins’ machines to earn less money than before the Defibaughs’ machines were placed at the same locations.

Monday, April 16, 2007

More law firms are "promoting" associates to "non-equity" partnership


There's not much of a change in the approach that large firms are making to partnership admissions, but there is a continuing trend toward the expansion of nonequity partnership classes as opposed to equity partnership," said Richard Gary, chairman of Thelen Reid & Priest from 1992 to 2003 and now principal of Gary Advisors, a law firm consultancy in Tiburon, Calif.

. . .

And as firms move greater numbers of attorneys into nonequity status to keep profits per partner high, they may be more tight-lipped about the strategy.

Jury selection begins in "Uncle Kenny's" sex dungeon trial

Sex offender Kenneth Glenn Hinson, 48, is accused of kidnapping and raping two teenagers in an underground dungeon in Darlington County. Jurors, however will be selected from Georgetown County because the case had received so much publicity in Darlington County.

The Times & Democrat has this story about the trial.

Thursday, April 12, 2007

Fourth Circuit vacates variance sentence of probation only in crack cociane distribution case

In United States v. Pyles, Pyles pled guilty to one count of aiding and abetting the distribution of crack cocaine. Although the advisory guideline range called for 63-78 months’ imprisonment, the district court imposed a variance sentence of 5 years’ probation with 6 months’home confinement. The district court viewed probation as an appropriate sentence because Pyles was off drugs, off alcohol, was holding a job, and seemed to have reformed himself. The government appealed the sentence.

The Fourth Circuit concluded that in rejecting a sentence of imprisonment, the district court failed to place sufficient weight on "the need for the sentence imposed . . . to reflect the seriousness of the offense . . . and to provide just punishment for the offense," under 18 U.S.C.A. § 3553(a)(2)(A). The panel also chastised the district court for rejecting the Sentencing Commission’s judgment that an offense involving crack cocaine is a serious offense that must be punished by a meaningful sentence of imprisonment. The sentence was vacated and remanded for resentencing.

Wednesday, April 11, 2007

Appellate record must permit "meaningful appellate review"

In State v. Ladsen, Travis Anthony Ladson was convicted of first-degree burglary following a three-day trial. Ladson appealed. Approximately ten months transpired after the appeal was filed before the court reporter notified the parties that her recording equipment failed and no part of the trial was recorded. A hearing to reconstruct the record The hearing to reconstruct the record took place more than a year after Ladson was convicted and sentenced. In this proceeding, the judge and counsel could not even agree on whether Ladson testified.

Making new law, the Court of Appeals held "that our supreme court would require a reconstructed record on appeal to allow for 'meaningful appellate review.' A new trial is therefore appropriate if the appellant establishes that 'the incomplete nature of the transcript prevents the appellate court from conducting a meaningful appellate review."

The panel did find that meaningful appellate review was impossible. Most of the reconstructed record was but a summary of witness testimony and there were myriad disputes about the content of the testimony.

Tuesday, April 10, 2007

Gonzales scandal could elevate Judge Floyd to the Fourth Circuit

Word on the street is that Judge Floyd's chances of elevation to the Fourth Circuit are looking up. Judge Floyd is clearly Senator Graham's first pick, but the Administration has expressed concern over Floyd's Padilla opinion and service as a Democratic legislator in the General Assembly.

Now that Dubya's good friend Alberto Gonzales is coming under fire, these concerns are fading away. Next week Gonzales's is scheduled to appear before the Senate Judiciary Committee, which is widely viewed as a crucial test for the embattled attorney general. Senator Graham is assisting the White House in the preparation of Gonzales for the hearings. Dubya will owe Graham one for this help. Hence, Judge Floyd will be promoted to the Fourth Circuit. That's where I'd put my money.

SC Supreme Court reverses Court of Appeals on self-defense charge

In State v. Slater, the South Carolina Supreme Court reversed a Court of Appeals decision and held that Slater was not entitled to a self-defense charge when he approached an altercation with a loaded weapon at his side. Apparently, Slater approached a fight, startled one of the attackers, the attacker fired at Slater, and Slater ran and returned fire while fleeing.

Slater fails to meet the first requirement for the self-defense charge: specifically, Slater was not without fault in bringing on the difficulty. “Any act of the accused in violation of law and reasonably calculated to produce the occasion amounts to bringing on the difficulty and bars the right to assert self-defense.” Bryant, 336 S.C. at 345, 520 S.E.2d at 322. In the instant case, the record clearly reflects that Slater approached an altercation that was already underway with a loaded weapon by his side. Such activity could be reasonably calculated to bring the difficulty that arose in this case.

I find this a little hard to agree with. I think the Court of Appeals got it right. Just because he investigated a fight when carrying a loaded weapon should not deprive him of self-defense if he immediately tried to remove himself from the situation and did not fire the first shots.

SC Sup. Ct. holds public policy is not offended by an automobile policy provision which limits the portability of basic “at-home” UIM coverage

In Burgess v. Nationwide, the South Carolina Supreme Court considered whether public policy is offended by an automobile insurance policy provision that limits basic UIM portability when an insured is involved in an accident while in a vehicle he owns, but does not insure under the policy? The Court held that it is not.

UIM coverage is entirely voluntary, and permits insureds, at their option, to
purchase insurance coverage for situations where they are injured by an at-fault
driver who does not carry sufficient liability insurance to cover the insureds’
damages. Essentially, the insured is buying insurance coverage for situations,
as where he is a passenger in another’s vehicle or is a pedestrian, where he
cannot otherwise insure himself. When, however, the insured is driving his own
vehicle, he has the ability to decide whether to purchase voluntary UIM
coverage. Burgess chose not to do so when insuring his motorcycle.

. . .

Upholding this limit on portability encourages persons to purchase UIM
insurance on all their vehicles. To hold, as did the Court of Appeals, that
basic UIM is portable even in this situation permits an individual who owns
multiple vehicles to purchase UIM insurance on only one vehicle, yet have basic
UIM coverage on all. We find this result undesirable.

However, in Natiowide v. Erwood, the Court reached a different result on UM coverage: "We find that the mandatory nature of this coverage distinguishes it from the voluntary UIM coverage at issue in Burgess, and that pubic policy requires that basic UM coverage be afforded to Erwood even when she is a passenger on her spouse’s uninsured motorcycle." Chief Justice Toal and Justice Burnett dissented. Justice Toal would have held that uninsured motorist coverage is not “portable” for a party who is injured while operating or while a passenger of a vehicle of which the party would be an insured had he or she purchased insurance coverage.

Hence, the difference in the two case is the mandatory nature of UM and the voluntary nature of UIM.

Monday, April 09, 2007

For legal notes of interest.....

Be sure to check out Blawg Review #103 hosted by E-Commerce Law. Great baseball theme to this one.

Supporters rally to Pittman, the so-called 'Zoloft killer'

This from shows that Christopher Pittman and his zoloft defense is still a hot topic. The case is currently on appeal at the state supreme court.

Friday, April 06, 2007

Fourth Circuit overturns verdict based on uncorroborated extrajudicial confession

In United States v. Stephens, Stephens was convicted of one count of conspiracy to distribute cocaine, and one count of using, carrying, and discharging a firearm in relation to a drug trafficking crime. The basis of the conviction was Stephens' statement to the police that a drug dealer who Stephens' owed money was out to get him and that Stephens had exchanged gunfire with the dealer. The Fourth Circuit reversed the convictions because the government presented no evidence other than Stephens' own statement to law enforcement officers to establish his connection to a drug conspiracy or any drug trafficking crime. Because a criminal defendant’s conviction cannot rest entirely on an uncorroborated extrajudicial confession, the panel reversed and vacated the sentence.

Wednesday, April 04, 2007

SCOTUS reverses Fourth Circuit's Duke Energy Decision

In Environmental Defense v. Duke Energy, SCOTUS examined whether Duke violated the Clean Air Act when it failed to get a permit before updating its coal plants in the Carolinas. The Fourth Circuit and the District Court found in favor of Duke and held that no permit was required inasmuch as hourly emissions from Duke's plants in North and South Carolina would not increase. Environmental groups had argued that federal law requires utilities to install anti-pollution equipment if they make plant modifications that change their annual--not hourly--emissions of nitrogen oxides, sulfur dioxide, and other pollutants.

The Justices agreed with the environmental groups, holding that requiring the use of an hourly emissions rate would essentially invalidate EPA rules dating back to 1980.

Tuesday, April 03, 2007

SCOTUS steps into the global warming debate

In Massachusetts v. EPA, SCOTUS held that the federal government has the authority to regulate greenhouse gases and that the EPA must reexamine the scientific evidence of a link between those greenhouse gases and climate change. Many of us thought this case would be decided on standing grounds, but the Court bent over backwards to find standing. The dissent makes a great point that the issues raised are non-justiciable and are better suited for the Executive and Congress rather than the Court.

I will try to post further thoughts on this case later.

Conflict of interest requires new trial

In Staggs v. State, the South Carolina supreme court in a PCR case ordered a new trial because trial counsel had a conflict of interest in representing Staggs in his trial for murder, while simultaneously representing Staggs’ father, mother and brother on accessory after the fact charges. Trial counsel did not permit Staggs or any of his family members to testify because he was concerned that either Staggs' testimony would be damaging to the family, or the family's testimony would be damaging to Staggs.

Monday, April 02, 2007

Another reason to be afraid of juries

Proctor & Gamble sued a group of Amway independent distributors for using the P&G voice mail system to spread a rumor to thousands of customers that Proctor & Gamble's logo is a symbol of the devil. A jury decided Procter & Gamble Co. suffered no damages from devil-worshipping rumors but nonetheless awarded the consumer-products giant $19.25 million by counting the number of company lawyers in the courtroom. In sworn statements, three members of the Utah jury said the full panel unanimously concluded the company had failed to show any lack of sales from the devil worshipping rumor. But the panel wanted to compensate P&G for "out-of-pocket" legal expenses, the three jurors said. So they counted the number of lawyers at P&G's courtroom table and guessed how many hours they worked over a decade of litigation.

Yep, its like making sausage. Makes me want to be a legal vegan. has the full story here.

MSNBC has this story.