Friday, April 29, 2005

A report card of sorts for W.Va. circuit judges

WOWK runs this piece entitled "Justice Delayed, Justice Denied" which reports that "[a]n analysis by The State Journal showed that 16 of the state's 65 circuit judges had not processed civil cases as quickly as the West Virginia Supreme Court of Appeals recommends. The court suggests that circuit courts try to resolve civil cases within 18 months."

I'm not going to repeat the names of the judges on the "naughty list." You can read for yourself. The report notes that Professor Jim McLaughlin from the WVU College of Law said that "he can barely think of any reasons why a judge would take years to decide a case." I had Professor McLaughlin for a few classes in law school, and I like him a lot, but I think he's a little out of touch. In modern toxic tort cases, a year or two is hardly enough time to conduct discovery, let alone a trial. These cases can involve hundreds of thousands of pages of documents that need to be reviewed. Not only will cases like these last more than 18 months, they can consume so much of a judge's time that they cause other cases on his or her docket to last more than 18 months. The article alludes to that as well.

18 months to disposition is a worthty goal, but judges have good reasons for not meeting that goal other than just being "dilatory."

Tuesday, April 26, 2005

Who writes about E.E. Cummings anymore?

It's hard to find magazines that write about poetry these days, other than literary journals. That's why I like Slate. Sure, you may not agree with the politics, but it has some neat stuff.

In Is That a Poem? - The case for E.E. Cummings the author laments that E.E. Cummings' work has been relegated to "the ghost houses of anthologies and claustrophobic seminar room discussions." I agree. My poetry professors in college refused to take him seriously. He's being treated as an odd-ball, worthy of study because he had such an extreme style.

E.E. Cummings' book Tulips & Chimneys is, hands down, my favorite collection of poetry. The typography was certainly daring for the times, but his themes are timeless. Cummings was able to get away with a lot because so few people took him seriously. The poems are about nature, ordinary folks, love, romance, war, and other social issues. His poetry is still relevant and fresh, even today. The poems have a way of sticking in your mind long after you've read them. For visually-oriented people, they are especially appealing.

Here is one of my favorites:

O sweet spontaneous
earth how often have

fingers of
prurient philosophers pinched

, has the naughty thumb
of science prodded

beauty , how
often have religions taken
thee upon their scraggy knees
squeezing and

buffeting thee that thou mightest conceive

to the incomparable
couch of death thy

thou answerest

them only with


A Pinch of Spice Helps Keep Drivers Alert picks up this report of a study led by an associate professor of psychology at Wheeling Jesuit University, indicating that "[t]he scent of peppermint or cinnamon in your car may help reduce your frustration, anxiety and fatigue and make you more alert while you're at the wheel."

Monday, April 25, 2005

Crazy from the heat

In Turmon v. Jordan, 04-1439 (4th Cir., Apr. 25, 2005) (PDF) plaintiff Turmon, a retired state trooper, alleged that a deputy sheriff violated his Fourth Amendment rights (1) by seizing him (for investigative purposes) without reasonable suspicion while he was a motel guest and (2) by using excessive force in the course of the seizure.

The plaintiff's room at the Red Roof Inn (a motel in a high crime area) had no heat, so he turned on the hot water in the shower to heat the room with steam. The steam became overwhelming, so he opened his door and the steam billowed out of the room. Jordan, an off-duty deputy sheriff working at the motel as a security guard, saw the steam, thought it was smoke, and ran up to the room. As he approached the room, Turmon slammed the door closed, and the deputy became suspicious of an "improper motive." He banged on the door, and when Turmon opened it, Jordan pointed his gun at Turmon’s face, grabbed Turmon, spun him around, jerked him out of the room onto the walkway, and handcuffed him. Turmon, who had a back injury that was aggravated by the incident, sued Jordan for violating his Fourth Amendment rights, and Jordan pleaded qualified immunity.

The district court denied the deputy’s motion for qualified immunity at the summary judgment stage, and the deputy filed this interlocutory appeal. The Fourth Circuit affirmed the denial of qualified immunity on both claims.

Regarding the illegal seizure claim, the Fourth Circuit affirmed the denial of qualified immunity because there was no reasonable suspicion that criminal activity was afoot in Turmon’s motel room. "Jordan could not have had a reasonable belief that the room was on fire by the time he reached the door [where] [t]here were no flames, there was no smell of smoke, and Jordan was aware that the motel’s internal fire alarm had not sounded." Also, Turmon’s shutting of the door as Jordan approached did not support reasonable suspicion of criminal activity in the room because "it can be expected that the occupant of a motel room — especially at a motel in a high crime area — will shut his door when he hears unknown footsteps."

The Court also found that the record supported that Turmon was treated with excessive force under the circumstances. "We conclude that on March 10, 2001, it would have been clear to a reasonable officer that he could not point his gun at an individual’s face, jerk him from his room, and handcuff him when there was no reasonable suspicion that any crime had been committed, no indication that the individual posed a threat to the officer, and no indication that the individual was attempting to resist or evade detention."

Thus, viewing the facts in a light most favorable to the plaintiff, the Court found that qualified immunity was properly denied. Looks like this case of good cop, bad cop will be headed for a jury.

Saturday, April 23, 2005

Resident managers of self-storage facility not entitled to overtime

In Garofolo v. Donald B. Heslep Assoc. Inc., No. 04-1882 (4th Cir. April 22, 2005) (PDF), the Fourth Circuit held in a published opinion that a husband and wife employed as resident managers of a self-storage facility were not entitled to overtime for hours worked in excess of forty.

The Garofolos were hired to work as resident managers of defendant's Blue & Gray Self Storage facility in Virginia. They lived in an apartment above the business office. In acceptance of their employment, the Garofolos entered into a Resident Manager Employment Agreement, which included, among other things, specific terms regarding hours of employment, job duties, and compensation.

The agreement was intended to satisfy 29 C.F.R. § 785.23 (2004), a Department of Labor regulation interpreting the Fair Labor Standards Act (FLSA), which states:

An employee who resides on his employer’s premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily,he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact number of hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. . . .

29 C.F.R. § 785.23 (2004) (emphasis added).

The agreement with the Garofolos was clearly well-drafted, and it was found to be reasonable because it

  • acknowledged that 40 hours a week was a reasonable estimate of the hours actually worked;
  • provided guidance as to how the required duties could be accomplished within 40 hours (including a sample schedule illustrating how the employees could accomplish their duties within a 40 hour workweek by dividing the workload);
  • required the Garofolos to certify on a monthly basis that 40 hours continued to be a reasonable estimate of the time needed to complete the duties as resident managers; and
  • provided for overtime pay if either employee exceeded 40 hours in a given week.

For the period in question, the Garofolos never submitted a request for overtime compensation in accordance with the terms of their employment agreement.

The Court acknowledged that "in light of the difficulty in separating 'work' time from personal time for employees who live on site, section 785.23 establishes a presumption that such employees are not working the entire time they are on the premises." Even if the employees actually worked more than 40 hours per week by deviating from the suggested schedule, they were not entitled to overtime because the employment agreement remained reasonable. "Standing alone, proof that the Garofolos worked more than 40 hours per week would not preclude summary judgment in this case," the Court held. "[I]t is not enough for the plaintiffs to show that they worked more than agreed. They must show that the agreement provided an unreasonably short amount of time to perform the assigned tasks."

Friday, April 22, 2005

How technology keeps lawyers' jobs secure

I read this post and the related comments in Slashdot and realized that my job as a civil litigator will be safe for years to come:
Posted by Zonk on Friday April 22, @06:35PM
from the saving-for-a-rainy-day dept.
jira writes "BBC has an article confirming the trend of using inbox as a sort of personal database. At my workplace I can personally attest to the growing sizes of those pst files and an unwillingness to erase any emails because of 'loss of information'." From the article: "The trend has become more pronounced as the services have dramatically increased their storage capacity in response to upstart Gmail offering a free service with 1,000 megabytes (Mb) of storage."
Very few of the commenters so far have seen any down side to keeping years worth of e-mails at work or at home other than the "clutter" it causes. I love it. People just don't realize that when lawsuits are filed, all of the e-mails they keep are not only discoverable, they are easily searchable.

People will say things in e-mails they would never say on the telephone or in person. How many people have received off-color jokes from friends who would never repeat the same jokes in person? And that joke e-mail someone sent you three years ago about the woman down the hall... it's not gone until every one of the recipients and the sender deletes it. If any one of those folks is a pack rat, that e-mail lives on and will expose the company (and maybe even the employee) to liability when that woman files her discrimination suit and subpoenas e-mails and PST files from the company's computer system.

Comments like these provide a window into the minds of employees: "Yep. I do desktop support and nobody wants to delete anything. that's their paper trail and the one email they delete may mean their job down the line as people are looking for somebody to blame and heads to chop." These folks are looking out for themselves, and they don't particularly care that they are keeping scads of potentially incriminating e-mails along with a few valuable ones. Companies that don't enforce reasonable e-mail destruction policies are just sitting ducks.

Thursday, April 21, 2005

CityNet looks for help in expanding

Bridgeport, W.Va.-based Citynet LLC is seeking a $12.5 million loan from the West Virginia Housing Development Fund to expand its fiberoptic network, according to this story in the Wheeling News-Register. Although CityNet wants to expand its newtork into 20 new cities, only two are in West Virginia. I say who cares. This is one of a precious few "new economy" companies in the state. We need to support it.

Massage therapists feel tension

This piece in The Journal notes that West Virginia's licensed massage therapists want chiropractic assistants to "keep their hands off their patients."

A recently passed bill would allow chiropractors to train their assistants to perform massage, and the assistants would not be required to complete the 500 hours of training that licensed therapists must undergo. Governor Manchin has not yet signed the bill.

Let me tell you, there's nothing worse than an agry massage therapist. Let's hope this one gets resolved amicably.

Monday, April 18, 2005


This blog is 3 years old today, and I still don't know where it's going.

Friday, April 15, 2005

Billy Wayne Makes English the Official Language of West Virginia

Our state is receiving all sorts of great press about the legislature's unwitting vote to make English the state's official language.

Senator Billy Wayne Bailey quietly inserted the following language into a bill addressing the number of members that cities can appoint to boards of parks and recreation: "English shall be the official language of the State of West Virginia."

This article notes that, "one lawmaker who has fought English-only bills says 'it's wrong that's something like that was snuck into that bill in the last minute.'"

Hey, just because it's the official language doesn't mean we'll stop butchering it. Apparently, the legislature could write all the bills in sanskrit because no one is reading them anyway.

UPDATE: Governor Manching has vetoed the English language bill. "Slick Billy" will have to try again next session. Thanks, Governor. You did the right thing.

Comments are back on.

I'm testing comments at the suggestion of a reader, Don Surber, who has his own West Virginia weblog. My blog turns 3 years old next week, so I need to give it a gift anyway.

I'll forgive Don for calling me a liberal because he printed a retraction, like all good journalists do when errors are made.

Monday, April 11, 2005

A Roshanda by Any Other Name

This article in Slate answers the question "How do babies with super-black names fare?" The answer is just as well as kids with "white-sounding" names. Not very interesting, but what did interest me in the article were the lists of the "whitest" names and the "blackest" names for boys and girls. Click here for the top 20 each for girls and here for the top 20 each for boys. (For the curious, they also put together a list of the top 20 crossover names—the ones that blacks and whites are most likely to share.)

I was surprised to see four different spellings of "Katelyn" were on the top 20 list for white girls names, and four different spellings of "Jasmine" were on the top 20 list for black girls names.

Legislative wrap-up

The 60-day legislative session is over, and the legal landscape, at least from the civil side, is pretty much unchanged.

Probably the most significant development was the the passage of SB418, Manchin’s bill to eliminate lawsuits filed against insurers by nonpolicyholders (i.e. "third-party bad faith" suits), which passed Saturday. The legislature reduced the policy surcharge and created a compensation fund for mistreated consumers. After the bill passed, the insurance lobby renewed its pledge to reduce auto rates by $50 million, or up to $100 off every policy in the state. That's about two free tanks of gas per year.

Update: Here is a more thorough recap of the civil and insurance bills from the State Journal.