Thursday, September 30, 2004

Creating PDFs for e-filing

As most of you are probably aware, the Northern District of West Virginia is moving toward e-filing next year. This post over at the PDF for Lawyers blog gives some good details regarding PDF creation for the unitiated.

I highly recommend Acrobat 6 for PDF creation. Even though other programs can produce PDFs, no other program has Acrobat 6's ability to manipulate PDFs (combine them, rearrange pages, search them, etc.) so easily. The article mentions that Acrobat 6 produces PDFs in the version 1.5 format, but it does not mention that by default, it produces PDFs in the 1.4 format (the same format used by Acrobat 5). In other words, you don't have to change in settings to produce court-compatible PDFs out of the box. A fresh install of Acrobat 6 Standard will have the proper settings to produce a version 1.4 PDF.

Wednesday, September 29, 2004

Gmail invitations

If any of you are dying to have your own Gmail account, I have six invitations. Drop me an e-mail (see contact info on my Blogger profile page) and I will send one to you. First come, first serve.

Martha Stewart to spend a few months in West Virginia

Okay, so it's not exactly voluntary, but Martha Stewart will be "Living" in West Virginia for five months at the Alderson prison for women, a/k/a "Camp Cupcake," according to this article.

"Opened as the first federal prison for women in 1927, Alderson sits on 95 acres and houses 1,055 female prisoners," the article notes. Martha will be the latest of several noteworthy residents of Camp Cupcake, including "Axis Sally," who was convicted of treason for her radio broadcasts from Berlin during World War II; Lynette "Squeaky" Fromme and Sara Jane Moore, both of whom tried to assassinate President Gerald Ford; and Elizabeth Gurley Flynn, a communist jailed in the 1950s for trying to overthrow the U.S. government.

Sunday, September 26, 2004

Doctor's lawsuit against trial lawyers dismissed by court

The Clarksburg Exponent Telegram notes here that the West Virginia Supreme Court of Appeals has unanimously refused to hear Dr. Julie McCammon's appeal to overturn the dismissal of her case against the trial lawyers association.

McCammon claimed the association and its president engaged in a civil conspiracy to file frivolous and malicious lawsuits against West Virginia physicians. I've commented on the irony of filing a frivolous lawsuit to end frivolous lawsuits in previous posts.

This case has landed appropriately on the scrap heap. I agree that there are many, many frivolous lawsuits filed by the plaintiff's bar in this state, but you can't sue the trial lawyer's association for it.

Friday, September 24, 2004


The Ohioans For Concealed Carry website runs this article noting that John Kerry left in West Virginia the 12 gauge Remington rifle he accepted at a Boone County rally earlier this month and "hasn't bothered taking the steps" to bring the gun home.

Really, does this mean anything? Don't you think Kerry has more to worry about these days than filling out the paperwork required to transport a gift firearm across state lines? Give me a break.

Tuesday, September 21, 2004

Harrison County jury awards $500k in wrongful discharge suit

Numerous papers, including the Daily Mail here include this piece about a Harrison County jury's $500,000 award to a former Pratt & Whitney Engine Services employee who sued the company for terminating him due to his safety complaints and age.

The jury awarded $89,389 in lost wages, $356,638 for future lost earnings, plus $58,000 for emotional distress. Judge Matish must have bifurcated the punitive damages claim, because the article mentions that "the parties agreed to a confidential settlement after the jury decided on compensatory damages."

Jack Whittaker has to be the unluckiest lottery winner alive

I know I have written many times in this blog about the misfortunes of Jack Whittaker, the Powerball "winner." This post has a rundown of several of his misfortunes since striking it rich. I suggested to any TV executives reading out there that Jack's life is a reality TV show waiting to happen.

This latest bit of news from the Charleston Gazette notes that a house Mr. Whittaker owns was burglarized, and to top it off, a young man was found dead on the premises.

What else can possibly happen to this guy?

All the technology in the world won't make me move to Buckhannon

This article provides an update on West Virginia Wesleyan College's ambitious plan to increase enrollment by buiding a tech mecca in Buckhannon, West Virginia. The college's leaders are discovering that cutting-edge technology still cannot fill the classrooms, and the faculty is getting increasingly irritated with their low salaries.

Until the central part of West Virginia builds up, Wesleyan is going to struggle to attract out of state students. I've visited Buckhannon and the W.Va. Wesleyan Campus, and I can tell you that the campus is nice, but it's in the middle of nowhere. This story is a good reminder that technology, although important, is not an end in itself.

Thursday, September 16, 2004

Fourth Circuit finds that executive was not constructively discharged

The Fourth Circuit's recent opinion in Honor v. Booz-Allen & Hamilton, Inc., (4th Cir. Sep. 2, 2004), contains a good analysis of the proof required to demonstrate constructive discharge. The employee, who was an executive, had been looking for other work due to professional and personal tensions that existed at the workplace. The Court found that the atmosphere was not deliberately created to force him to resign. His resignation was found to be voluntary.

DOL Launches FLSA Overtime Security Advisor

According to the DOL, "[t]his tool, available at is designed to help workers and employers understand the updated overtime rules in a question-and-answer format. Employers can use the tool to ensure they are in compliance with the rules and paying workers correctly, while workers can use it to help determine whether they are entitled to overtime."

Tuesday, September 14, 2004

I'm not sure how long this link will stay up

... but you have to hear this MetroNews piece that plays a minute or two of a Labor Day campaign speech by the incumbent candidate for Justice of the West Virginia Supreme Court of Appeals. It is just bizarre.

Monday, September 06, 2004

A great (and free) desktop search engine

Here's an update on my continuing quest for a reasonably-priced and effective desktop search program.

I received an e-mail last week from Martin Bouchard, co-founder of Copernic Technologies, who read this previous post that mentions several desktop search applications I have tried. He urged me to try the new Copernic Desktop Search A few days later, another attorney from my office sent me an e-mail suggesting that I try it as well--so I succumbed to all the peer pressure and I installed it. I am glad I did.

Copernic Desktop Search lets you use Boolean operators (AND, OR, NOT as well as parentheses and quotes) to search your emails (even if you use Outlook on a network and your mail resides on a server, unlike some of the other software), files of many different types (including PDFs), music, movies, favorites and Web content. File attachments to e-mails are also searched by checking a box below the search window. You can even control which Outlook folders you would like to index (or not index). The price is unbeatable – it’s free.

The program will index new files and new emails in real time as soon as they are created or modified on your computer, so there's no need to schedule a reindex. The index makes finding documents very fast. It also monitors the CPU load to make sure the indexing takes place during down time.

As I mentioned in my previous post, X1 is a very good product, but before you shell out $100 for it, you must try this product. I'll bet you find that it meets your needs very well. If you have hundreds of articles and forms on your PC (as I do), a program like this can save you countless hours.
In Kirby v. City of Elizabeth City, No. 03-C-2035 (4th Cir. Aug. 23, 2004), the plaintiff asserted he was retaliated against based on the content of his truthful testimony at a public hearing and based on his subsequent challenges to that alleged retaliation.

This opinion addresses the following issues:

Major issues: 14th Amendment liberty interest and "matters of public concern"; Freedom to petition for redress of grievances (and retaliation for exercising the right); free speech retaliation

Minor issues: Freedom from the imposition of unconstitutional conditions on public employment; Equal Protection (disparate treatment with no rational basis); qualified immunity and governmental immunity.

Kirby was employed by the City as a police officer. He testified in July 2001 at a hearing before a City Personnel Appeals Committee (CPAC) concerning a grievance filed by a fellow city police officer, James Henning. The grievance challenged discipline imposed against Henning for damaging a patrol vehicle by driving it with too little transmission fluid. Kirby maintained that his superiors, Hampton and Koch, were angered by his testimony, which they perceived to undercut Hampton’s position and support Henning’s position. Kirby received an oral reprimand for "failure to support the Department’s administration."

Kirby filed a grievance to challenge the punishment. He also initiated his civil suit on August 31, 2001, alleging that the reprimand was in retaliation for his testimony. On September 4, 2001, Kirby was demoted from Sergeant to Police Officer III because of poor job performance. He amended his complaint and added claims related to this demotion.

Kirby’s complaint alleged that defendants’ retaliation based on his testimony violated
(1) his constitutional rights to free expression and association,
(2) his right to freedom from the imposition of unconstitutional conditions on his public employment.
(3) his Fourteenth Amendment liberty interest in testifying truthfully and
(4) his right to Equal Protection (disparate treatment with no rational basis).

He also alleged that defendants retaliation against him for filing the lawsuit violated his freedom to petition for redress of grievances

Both sides moved for partial summary judgment. The district court granted the defendants’ motion and denied Kirby’s motion. The Fourth Circuit upheld the district court’s decisions, although it relied upon different reasoning for one of the claims.

The key holdings in this case supporting the court’s decisions were
(1) His hearing testimony was not a matter of public concern (citing Arvinger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988) (holding it was "irrelevant for First Amendment purposes that a statement is made in the course of an official hearing" because the statement was made not to further any public debate, but only to further the interests of the officers involved.) Kirby’s speech concerned a narrow question of whether Officer Henning negligently failed to monitor the transmission fluid in car 127, thereby damaging the vehicle. This simply was not enough to constitute a matter of public concern.
(2) Because Kirby’s speech was not constitutionally protected, his claim that the treatment he received amounted to an implicit restriction on his speech failed as well, as did his claim for freedom of association, and his Fourth Amendment liberty claim.
(3) Regarding Kirby’s equal protection claim, the court found that "the claims based on the allegation that Kirby was treated differently in retaliation for his speech are, at their core, free-speech retaliation claims that do not implicate Equal Protection Clause."
(4) Regarding Kirby’s rational basis claims, the court found that those failed as well because to establish such a claim, "it is not sufficient for a plaintiff simply to show that the defendants’ actual motive for their disparate treatment was irrational; rather he must negate ‘any reasonably conceivable state of facts that could provide a rational basis for the classification.’" Kirby did not challenge the determination of the district court that he could not meet that standard.
(5) Regarding his freedom to petition claim, the court found that it would violate the principles articulated in McDonald v. Smith, 472 U.S. 479, 482 (1985), and Thorn v. Bailey, 846 F.2d 241 (4th Cir. 1988), to extend constitutional protection of public employees’ petitions for redress beyond the protections afforded to public employee speech. On this issue, the court held, "we therefore join the majority of circuits to have addressed the question in holding that a public employee’s petition, like his speech, is constitutionally protected only when it addresses a matter of public concern."
(6) Kirby’s petition claim, however, alleged that he was demoted for filing a grievance and a lawsuit. This distinction is critical because while Kirby’s testimony concerned only whether his fellow officer properly maintained his vehicle, his grievance and lawsuit concerned a subject of much greater interest to the public, namely whether the Police Chief and his Lieutenant retaliated against Kirby for providing truthful testimony. The district court found that no matter of public concern raised at all. The Fourth Circuit, on the other hand, found that "although we recognize that this issue is a close one, we conclude that the allegedly unwarranted reprimand could have a significant chilling effect on testimony relating to matters of public as well as private concern. For these reasons, the court concluded that Kirby’s allegation in his grievance that he was reprimanded based on his testimony at a disciplinary hearing implicated a matter of public concern even though the testimony itself related to a private matter.

However, although the court found that his petitions implicated the matter of public concern, they nevertheless affirmed the judgment in favor of the defendants on other grounds. First, Chief Hampton and Lieutenant Koch were entitled to qualified immunity, and the city itself, although not entitled to assert qualified immunity, was not liable because the plaintiff failed to show that the officers acted pursuant to an official policy or custom of the municipality.

Therefore, the Fourth Circuit affirmed the district court’s order granting summary judgment to the defendants.