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No Marijuana Smell to Stop

Chesapeake police officer James Garrett testified that he was driving with his windows down on Campostella Road, on the evening of April 10, 2012. ( About that time, he turned onto Berkley Avenue and passed a Chrysler 300 that was being driven by Aaron Anderson of Norfolk.

The officer said that through his window, he smelled marijuana. So, he turned around and followed the Anderson car. The officer testifed that he smelled raw marijuana again a couple of minutes later and then stopped the Anderson car. At that point, he made Anderson get out of the car. Anderson then confessed to having the drug on him and proceeded to pull 2.5 grams out of his pants, according to the officer.

The officer then testifed that he also smelled marijuana in the car, but a search yielded nothing but a few seeds and leaf fragments. Based on that evidence, Garrett issued an arrest summons and Anderson showed up in Court wearing a marijuana themed “Pineapple Express” T-shirt.

Judge Marjorie A Taylor Arrington listened to the evidence of the officer. Then, she announced that “This is a case of common sense” and dismissed the drug charge against Garrett. She found that the testimony that the officer could smell raw marijuana as a basis to stop the car, simply did not pass the sniff test! As the public defender put it, “Are they also going to say that they smell the odor of alcohol and stop people for driving under the influence?” Apparently… not in Chesapeake.

DID YOU KNOW that “triscadecaphobia” is the fear of the number 13? I was going to type a response to that but I am stumped by it. Yet, is that called “triscadecastumpia?” No… no it’s not.

And for pic o’ day…


Scrutiny of a Judge

This is a story from a Bedford courtroom that reminds that judges are held to certain standards; just as lawyers, when it comes to being courteous and exhibiting appropriate courtroom demeanor.

From Virginia Lawyers Weekly comes a story of a circuit court judge who may be facing some scrutiny because of his 2009 conduct. Bedford County Circuit Judge James W. Updike admitted to the Judicial Inquiry and Review Commission that he failed to be patient and courteous with a lawyer that he believed had overstepped boundaries while seeking an injunction hearing.

From a 2009 court hearing, the Commission charged the judge with misconduct  in how he treated a Roanoke attorney because they found that he acted “in an intemperate, impatient and uncivil manner that is entirely inconsistent with the behavior and conduct that is expected and required of Virginia judges”.

According to the provided facts, the judge was bothered that a hearing had been set without his approval. So, he told the lawyer that “If you ever pull a stunt like this before this Court again, I am going to lock you up”  (for contempt).  The Judge went on to add that, “And you better, you better count your lucky stars and be thankful that I don’t have these deputies carry you out the back of this courthouse this afternoon. Now get out of this courtroom”.

The Judge entered into an agreed disposition of the complaint, admitting that he violated two judicial canons by failing to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and failing to be patient, dignified and courteous.

Judge Updike’s current judicial term expires on March 31, 2014. The General Assembly could request that the judge provide an explanation of this event or question him about his current demeanor before approving his reappointment to the bench. Or, the members could consider that this occurred four years ago and has no bearing on his reappointment.

DID YOU KNOW that more than half of all U.S. citizens live within 50 miles of work, their birthplace or their parents.

And for pic o’ day:


A Trial Report

     Let me tell you the story about my jury trial last week. Usually, I don’t mention trial results because the bar, rightfully so; wants lawyers to always include disclaimers that each case is different and no result means a guarantee for another case. This result shows why each case is different.

     Kim Raab and I showed up to Richmond Circuit Court last week for a trial on a rear-end impact. Admittedly, it was a low impact case. In fact, the defense had blown up a picture of our car that was two-foot by three-foot big. Get the picture? The question was whether we could prove that our client’s upcoming back surgery resulted from this impact.

     The jury was instructed that the defendant was only responsible for the injuries (harms) that she had caused. An aggravation of a preexisting injury meant that the defendant could be responsible for only the aggravation.

     The first day of trial (Thursday), the judge kept going until about 8:45 p.m. The jury was escorted to their cars. I had packed up my things and was headed to my car. (I am about to digress!) When I got there… I had a flat tire. I said to myself, “Self, seriously?”. I looked around and realized that no one was in the garage. Plus, you had to basically drive a special way to get out of the lot. No AAA wrecker would be able to get to me.

     I know, you are wondering if I changed the tire myself. Well, I must be honest… No. My excuse is that it takes some kind of special tool. The reality is…well, you know the reality. So, I drove very slowly to a nearby hotel and got the tire changed. Now, back to the trial story! Isn’t that what they call “part and parcel”?

     After all the evidence was in. After all closings were done and jury instructions were read to the jury. They retired to deliberate and I went to sit down outside the courtroom, and wait.

     After about ninety minutes, I heard the buzzer and thought that we had a jury verdict. Then, the bailiff said that the jury had sent out questions and we were to go to the judge’s chambers. (office). The judge then read from a yellow piece of paper that the jury had sent out. The paper had a question that indicated that a juror had spoken to someone about the case that was not part of the jury. This, against the judge’s specific instructions.

     Since this is becoming an epistle, let me cut to the end. When the judge called the jury out to inquire about the question, he concluded that a juror had potentially not followed his instructions. The judge declared a mistrial. That means… we have to reset it for trial and try it all over again in front of a new jury. Mistrial… it is the second worst word that I could hear. Well, maybe the third. Those words? The word “defense” in front of verdict; and the word “Denied” on a judge’s ruling of importance.

     A trial report with nothing to report. No result. Only part… no parcel.

     Pic o’ day reminds that some things just don’t make sense:


Court Decorum Clothing

     NASCAR race fans know what you are talking about, if you mention holding up three fingers at The Monster Mile, after number 3’s death, on the third lap. It needs no explanation to a NASCAR fan.

     To the baseball fan, trying to figure out what to do with your ballpark frank during the seventh inning stretch, needs no explanation either. It’s a mental picture that is just understood.

     In the Courtroom, I am not sure if  there is any real nostalgia. There are, however, certain tenets of understanding for the Courtroom.  This story (Star-Tribune) from Vermont, is one of those violations of understanding.

     Christopher Bryant showed up to the Courtroom  relating to charges that involved his girlfriend, including  unlawful restraint and domestic assault. He also showed up with a shirt that caused Caledonia Superior Court Judge Mary Miles Teachout to leave the bench.

     When the Judge had come into the courtroom, she looked down at Bryant and noticed that he was wearing a shirt that said “I bust mine to kick yours”. The Judge turned to Bryant’s lawyer and told him that she would not continue until he changed that shirt. She then recessed court.

     Public Defender Doug Wiley, took off his suit jacket and put it on Bryant’s torso. Since wearing it normally still  revealed the slogan, he put the jacket on backwards, like a hospital gown. Shirt covered. Judge satisfied. The Court hearing proceeded. Court decorum that everyone would understand. Everyone but Christopher Bryant.

     For pic o’ day, this one seemed appropriate:

Lawyer Dog

Jury Thoughts & Golden Rule

     Every year, the Virginia Trial Lawyers assist in law school Mock Trial Competition. Law students are given a particular topic and are expected to be ready to argue for both sides of the isssue. Law schools from around the country compete.

     The last time that I participated, I traveled down to the Richmond Circuit Court, and found myself sitting in the Judge seat. Courtrooms are normally designed to have the Judge sit higher than the parties and counsel. There I was, sitting up there; ruling on objections and listening to argument.   At the conclusion of the competition,  I had a couple of the organizers ask me, “So, how did you like being the Judge?”  The judging experience gave me another viewpoint in the Courtroom.

     Since that competition, I have been back in that same Courtroom for jury trials. Recently, I was trying a case and repeatedly saw the Judge sitting there with his eyes closed. Yes, he could have potentially been meditating on the testimony or even practicing his yoga breathing. Maybe not.  My mind went back to when I had sat in that very seat. I remembered that I had experienced some difficulty paying close attention. 

     When jurors listen to testimony, it probably gets pretty tedious. I’ve repeatedly been told, after trials, that there was too much expert testimony or too much delay.

     Psychologists say that Confirmation Bias is one of the toughest barriers to overcome in testimony. A person brings their beliefs and experiences to the Courtroom, and then tend to listen to the evidence within that belief. They discard what does not fit within that viewpoint.


      Even though they have taken an oath as a juror  to base their verdict solely on the evidence, there is no real way to ignore life’s experiences. Jurors can listen to the same evidence and hear differently. Known skeptic Michael Shermer says that “smart people believe weird things because they are skilled at defending beliefs they arrived at for non-smart reasons”.

     In 2000, in the book “Thinking and Deciding”, a Stanford study confirmed the impact of informatiion that had been received early. Someone was described as “intelligent, industrious, impulsive, critical, stubborn, envious”. The test subjects thought more highly of a person described in that order, than when the description was reversed. That was a very shortened experiment that proves long term belief that was formed before hearing courtroom evidence.

     In Virginia, we cannot get up and argue the Golden Rule in our closing argument. That comes from Matthew 7:12.  I can’t get up and ask the jury to determine “your verdict on how you would want a jury to treat you”.  That’s the Rule on arguing.

     I have tried to make a study on how jurors think by reading books and going to seminars. I try to talk to jurors after trials. With that background, it is still hard to “know what a jury is going to do” on a specific case. That’s because we all bring our own experiences to the jury box.

     After sitting in the Judge’s chair, it made me consider what it might be for the judge, during my trials. That became an application of my life experience. While I cannot argue the Golden Rule, does that really have any impact on how a juror arrives at their decision. “A jury of your peers” is what you are supposed to be able to count on for your trial. So far, no one has determined what a “peer” really is.       


     For pic o’ day, this cartoon combines dieting rules so no one will judge!


Our Eyesight of the Law

Muhammad Ali’s party for his 70th birthday party was this past weekend.

When Muhammad Ali’s wife was asked whether Ali wanted to attend a birthday party for his 70th, she smiled and said something like, “he likes attending parties when they are for him”.

On Friday, I was negotiating with an adjuster. It was my first conversation with him. He was downplaying my client’s injuries because this adjuster had experienced several prior knee injuries and surgeries. He was overlaying his own life’s experiences in evaluating the claim.

Not long ago, I was in our South Carolina office. Someone called and left a voicemail on my Richmond office voicemail that went something like this, “I understand that you are out of the office on vacation. It must be nice. When you get back, please give me a call”.

That voicemail was like fingernails on the chalkboard. It would have been great if it had been vacation but then the message threw that zinger in, as though they could never go on vacation and I should feel some guilt about it.

All these are examples of how we look at things through our own personal telescope. A birthday is more fun when its our birthday. Personal pain means more than pain of someone else. That person calling me was irritated that I was on vacation; and I was irritated because …..  I wasn’t on vacation! Both personal viewpoints.

When I have a scheduled jury trial, I always wonder what the jury will look like. Will they be in bad moods? Are they irritated to be there? I always hope that jurors will listen intently about the case but I know that personal experiences are part of the jury system and that is part of how a juror arrives at their verdict.

Sometimes when a prospective juror does not have their number called to sit in the jury box for our case, I see some, exhale a sigh of relief. Personally, it worries me a bit if someone is too excited to be on the jury. I assume they have some personal agenda that might not be too helpful for the case.

Big Business attacks our jury system because of the personal nature of it and its impact on verdicts. Thankfully,we don’t rely on Hammurabi’s code of law , Most of us think of it as the concept of “eye for an eye”.

Based on copies found on stone, the Code was based on  282 laws with nearly half dealing with contract. This code is the longest surviving text from the Babylonia period.

It is interesting history to read how to deal with a builder, when a house was built, sold, and then collapses. For personal injury claims, such “cases” were brought in front of a panel of judges. Money damages were not part of judgment. Instead, a loss was equally determined and that is how such judgments of an “eye for an eye and a tooth for a tooth” really became reality.

One law application read more like a proverb. “If you go and take the field of an enemy, the enemy will come and take your field”.

When Hammurabi took such great pains to come up with a code to be followed, he believed that it’s importance would be carried on. In the epilogue, it is written of the code that “In future time, through all coming generations, let the king, who may be in the land, observe the words of righteousness which I have written on my monument; let him not alter the law of the land which I have given, and the edicts which I have enacted….” Hammurabi had a bit of an ego.

Our jury system is under attack. Limits placed on jury awards or mandatory arbitration are intended to replace the will of the juror, because people do sit on the jury and bring their personal thoughts and life experiences while applying the law.

The framers of Constitution gave us a right of trial by jury. That sounds a whole lot better than Hammurabi’s code that says, “If any one buy from the son or the slave of another man, without witnesses or a contract: silver or gold, a male or female slave, an ox or a sheep, an ass or anything; or if he take it in charge, he is considered a thief and should be put to death”.

I wonder if Big Business or politicians would rather have that type of judgment for their conduct instead of a jury trial? Not when it would be personally about them. The way I “see it”, let’s stick with the wisdom of the Constitution.

Our pic o’ day is one of “wisdom”.

“Thinking Fast and Slow” Thoughts


     If you are looking for a good thinking book to read, then the aptly titled “Thinking Fast and Slow” might be one to check out. You’ll see why a psychological book was a NY Times bestseller. It is full of studies about everyday life. Some related to legal issues too.

     In one study, reported in “Proceedings of the National Academy of Sciences”, the unwitting participants in the study were eight Israeli parole judges. The parole cases that they were presented, were presented in random order.   The Judges were faced with busy days of cases.

     They spent little time on each case, only an average of 6 minutes per case. Only 35% of parole requests were approved. On the surface, maybe the approval percentage could be explained by worthiness of the application. The psychologists found some other factors to consider.

      The Judges took breakfast, lunch and afternoon breaks between the cases. The authors of the study plotted the proportion of the approved parole requests against the times of the food breaks.

     Based on the plotting, 65% of the approvals occurred right after the meals. As the Judges were farther away from the meals, when they might by hungry or needing a break, the approval rating was reduced. The study showed that right before a meal, the approval for parole was almost zero. The conclusion of the study was that tired and hungry judges would default to a position of denial on parole requests.

     It’s not a surprise that jurors and judges can be influenced by fatigue and hunger during trial. What that really means is that evidence received can be influenced by hunger and time of day. Maybe justice is best served in the mornings or right after meals.

     And now, pic 0′ day is about just not wanting to!

Some Robert Frost Poetry

My AAJ Trial Magazine recited a recent order from Kentucky Judge Martin Sheehan. The Order cancelled an upcoming jury trial and included the following statements regarding the trial which, “No doubt would have…. made the parties and their attorneys madder than mosquitoes in a mannequin factory”.

The Judge went on to add “[I’m] happier than a tick on a fat dog because [I’m] busier than a one-legged cat in a sandbox”.

The Judge was removing a trial from his docket. It’s what every trial attorney faces at some point in the lawsuit process. Is this a case that should be tried or a case that should be settled? It is a profession of choices.

I had a seventh grade teacher that made us memorize a poem each week. On Friday, we would then get up and recite it. There was enough time to do that for a small class of seven students.

We all thought strategically. If you found a two or four line poem, then that became your Friday poem. I suppose Miss Jacobs wasn’t that surprised by our shortcuts, which is why she made us memorize a quarterly poem that she assigned.

It’s funny, those poems have  stayed with me. I can almost recite them verbatim.

One of my favorites was a Robert Frost poem about choices called “The Road Not Taken“. It ended with the last important lines that “Two roads diverged in a wood, and I… I took the one less traveled by, and that has made all the difference”.

There were choices that were made from the home of Gabriele and Teresina, who immigrated from Italy to New York. They had four boys including Vincenzo and Alphonse. Vincenzo and Alphonse chose different roads in life.

In 1908, Vincenzo ran away from home. His family got a post-marked letter from Witchita, Kansas, to let them know that he had joined the circus. He later adopted the name of Hart, after the movie cowboy William S. Hart

Vincenzo caught a train to Oklahoma, with the name Richard Joseph Hart; and told people that he was a World War I veteran. That year, he rescued several people in a flash flood. He even married one of the survivors.

Because of his heroism and that he was tall, strong and handy with a gun; he landed a job as an alcohol Prohibition officer in Nebraska. He moved up the chain of command while garnering headlines with his many raids of moonshine stills. He even became known as “Two-Gun” Hart because of his penchant for carrying two guns in the raids.

“Two-Gun” posed in several dramatic pictures for newspapers, with revolvers in both hand. He even posed with President Calvin Coolidge and served as a Presidential body guard, when Coolidge visited an Indian reservation in 1927.

In 1940, Vincenzo “Hart” drove from Nebraska to see one of his brothers, Ralph; who had recently moved to Wisconsin. Also at Ralph’s house was another brother. Vincenzo introduced his family to brother Al. Al Capone had just gotten released from Alcatraz for tax evasion.  This abbreviated account of the choices of these two brothers is  in the book “Capone, the Man and the Era”.

I know that this blog has the makings of  one of my epistles. So, let me wrap up.

It’s just that, at this time of year, many people are faced with the pressures of the holiday season. I see Insurance companies seemingly try to take advantage during settlement negotiations. A lawyer might even think that it is less work and just plain easier to settle,  instead of taking the path to a jury trial. A time of choice.

Sometimes, headed down the road toward trial can seem like the road less traveled.  Just  file for continuance and smile at  an order like that Kentucky judge’s order.  A real trial lawyer feels great satisfaction in arriving at the destination of accountability.

And now for pic o’ day, a reminder to not settle for half!

A Judge’s Kindergarten Party

I have previously blogged about Judge’s who have little patience for arguing lawyers. I am posting some of the highlights of a Judge’s order that was entered in Texas on August 26, 2011. You can see the entire PDF Order Here.

“You are invited to a Kindergarten party on Thursday, September 1, 2011, at 10:00 a.m. in Courtroom 2 of the United States Courthouse, 200 W. Eighth Street, Austin, Texas. The party will feature many exciting and informative lessons, including:

  • How to telephone and communicate with a lawyer
  • How to enter into reasonable agreements about deposition dates
  • How to limit depositions to reasonable subject matter
  • Why it is neither cute nor clever to attempt to quash a subpoena for technical failures of service when notice is reasonably given; and
  • An advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first year law student.

Invitation to this exclusive event is not RSVP.  Please remember to bring a sack lunch! The United States Marshals have beds available if necessary, so you may wish to bring a toothbrush in case the party runs late.”

The Judge was sarcastically inviting the lawyers to a kindergarten party on September 1. I think that you can tell by the language of the order that it won’t be much of a party.

And now, pic o’ day. It’s what Mt. Rushmore might look like from Canada!

Rock, Paper, Scissors Order

     There are some certainties that exist in the practice of law. Those certainties include that lawyers become adversarial with each during highly contested cases; and that Judges grow impatient if they have to be the referee of those disputes.

     When I first started practicing, I remember experienced lawyers threatening to “get the judge on the phone”  if I did not agree to some question or issue during depositions. I quickly learned that mostly, that was a veiled threat because Judges don’t want to be on the phone for every little discovery issue. Plus, it is getting harder and harder to get an available Judge on the phone.    

     Most Judges require that you schedule hearings on  issues that exist, with opposing counsel. Sometimes, those hearings are more than a month away. Virginia Beach gives a little break from that. They have motion day on Fridays, with a duty Judge hearing quick motions. You file, and basically get in line.

     One Judge in Florida, got tired of all the disputes. His order to deal with all the issues is here. You can tell that he had gotten tired of the parties who were a business and an insurance company. He ordered them, to be accompanied by a paralegal of their choosing, to the Courthouse steps. There, they were ordered to resolve their issues through the use of the old game “Rock, Paper, Scissors”. I thought that was a good one!

Here’s Pic O’ Day! Quite a sign, and a dog that I think I’d remember.


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