Appellate Law

Department of Justice meets with Fountain Inn Police

Posted on February 19, 2008
From the Greenville News:A U.S. Department of Justice representative who specializes in mediating racial and ethnic conflicts met behind closed doors Monday night with Fountain Inn officials and members of the community to address complaints about the city's police...

Light Blogging This Week

Posted on February 11, 2008
I'll be out in the field meeting with clients and interviewing witnesses for a 2255 case I am working on.Check back next week for more posts.

Memo to self: Don't help any of your criminal clients escape

Posted on February 11, 2008
From Law.com:An attorney charged with smuggling a 14-inch saw blade to a jailed client was sentenced to five years in prison Thursday, although nearly one year will be subtracted because the lawyer has been jailed since his arrest last February.Albany, Ga...

State House Judiciary Committee declines to organize a commission to study the "Orangeburg Massacre"

Posted on February 07, 2008
From the Greenville News:The Judiciary Committee Chairman, Rep. Jim Harrison, a Columbia Republican, told The Greenville News, "My personal feeling is we don't need to create something that is going to create more division."Harrison added, "Unless I heard from a broad range of people within the House that this is good for uniting us instead of dividing us, then I'm not inclined to be supportive...

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Fourth Circuit holds that a knowing waiver to jury trial is not dependent upon a good attorney-client relationship

Posted on February 05, 2008
In United States v. Boynes, Boynes argued that he "could not have" knowingly, intelligently and voluntarily waived his right to a jury trial because his relationship with his attorney was "characterized by adversarial contentious interactions." The Fourth Circuit rejected this argument...

Bill proposes change in SC drinking age for solidiers

Posted on February 04, 2008
State Rep. Fletcher Smith, D-Greenville, is trying to jar loose from a House subcommittee a bill that would exempt military personnel ages 18 to 20 from the state's minimum age for purchasing and possessing alcoholic beverages of 21."It treats our military personnel like the adults and heroes we say they are," Smith said...

John McCain and Judicial Nominations

Posted on February 04, 2008
Stephen Calabresi and John McGinnis have this op-ed in the WSJ. Here is a snippet:We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect...

Judge John Kittredge vows restraint as justice

Posted on February 01, 2008
From the Greenville News:Kittredge said today that he "was grateful to God for the opportunity" and that he would ensure that he would honor what called the necessary judicial restraint required of a Supreme Court justice. "The two finest qualities in a judge are humility and restraint," he said...

Making partner at the big firm

Posted on January 31, 2008
The Snark has some great humor here. As usual, he is on the money.

Kittredge to Supreme Court and Konduros to Court of Appeals

Posted on January 31, 2008
Judge John W. Kittredge is now running unopposed for the state Supreme Court and Judge Aphrodite K. Konduros is running unopposed for the state Court of Appeals.

Fourth Circuit holds that FLSA's "consent in writing" requirement does not apply in arbitration proceeding

Posted on January 30, 2008
In LONG JOHN SILVER?S v. COLE, the Fourth Circuit considered whether an employee can be made a party to an FLSA-related civil proceeding without his consent. At base, FLSA § 16(b) contains a consent in writing provision requiring that the employee submit a written statement that he desires to be part of the class...

Supreme Court reduces attorney fee award in TERI cases

Posted on January 29, 2008
In Lyman v. State, the Supreme Court considered the trial court's award of $8 million in attorney fees to lawyers who garnered an order holding that an act of the General Assembly requiring certain state retirement plan participants to continue to pay into the state retirement system breached a legislatively-created contract as to the class of TERI participants and requiring the return of contributions made by all TERI participants...

Beware of Waiver on Appeal, Even if You Represent the Party That Won Below

Posted on January 28, 2008
Howard Bashman offers sound advice on waiver issues for parties prevailing at the trial court level.

E. Duncan Getchell Jr. asks that his nomination be withdrawn

Posted on January 27, 2008
Getchell has asked that he not be considered for a seat on the Fourth Circuit. He was to fill one of the Virginia seats, but his nomination was going nowhere because of Virginia's two senators. It will be interesting to see what Bush does now.The Washington Post has this article.

South Carolina Supreme Court rejects medical battery cause of action

Posted on January 18, 2008
In Linog v. Yampolsky, the South Carolina Supreme Court declined to recognize the tort of medical battery. According to the court:In light of the availability of a medical malpractice claim or a civil battery claim to any patient that is injured by a physician, we believe medical battery would constitute an unnecessary and superfluous cause of action...

Expert opinion issues arise in Court's affirming conviction of Earle Morris

Posted on January 15, 2008
In State v. Morris, the Supreme Court affirmed the conviction of Earle Morris in the Carolina Investors/HomeGold debacle. On of the more interesting and far reaching aspects of the opinion deals with expert testimony. At trial, the State offered Gregory B...

Monday Humor

Posted on January 14, 2008
New Year's Resolutions for lawyers. Here is a taste:SPEND MORE TIME WITH LOVED ONESHere's where your lawyering skills come into play because this could seriously eat into your billable hours. After all, what exactly constitutes "more time," and who falls into the "loved ones" category? Where are the code definitions for these terms, anyway? Is there any applicable legislative history? Or has this stuff even made it out of the public notice and comment period yet?Sure, you could resolve to come into work late Wednesday mornings and take the kids to school, but why get your children accustomed to such luxuries? You know you can't sustain such a regular schedule of child involvement...

Bush could fill court vacancies

Posted on January 11, 2008
Here is an interesting op-ed by Carl Tobias on the Fourth Circuit and Dubya's failure to nominate folks to fill vacant slots:If Bush hopes to fill the Luttig vacancy in 2008 when the presidential election slows judicial confirmations, he should work with Virginia's senators to find a consensus nominee...

Fourth Circuit holds that district court must give pro se petitioner notice of recharacterization of pleading as 2255 petition

Posted on January 10, 2008
In United States v. Blackstock, the Fourth circuit overruled its opinion in United States v.Emmanuel, 288 F.3d 644 (4th Cir. 2002), which held that a district court may not recharacterize a prisoner?s filing as a § 2255 petition without notifying the prisoner of its intent to recharacterize the motion, warning the prisoner of the effects of recharacterization, and giving the prisoner an opportunity to withdraw or amend his motion...

SCOTUS hears voter ID case

Posted on January 09, 2008
From Voice of America:The U.S. Supreme Court is hearing arguments Wednesday to determine whether states can require citizens to show government-issued photo identification when they go to vote.The case comes from the midwestern state of Indiana, which passed a strict identification law in 2005...

Banishment an issue in Georgia

Posted on January 08, 2008
In 2008 we don't hear to much about folks being banished for certain crimes. Well, in Georgia the appellate courts are dealing with this issue. Gregory Mac Terry, who has spent the past 12 years in prison after pleading guilty on allegations that he had threatened his estranged wife, had an opportunity for parole in 2001, but he was returned to prison because his banishment from all but one of Georgia's 159 counties meant he couldn't complete a work release program that was not available in Toombs County...

SCOTUS unlikely to overturn 3-drug cocktail for executions

Posted on January 07, 2008
From the LA Times:The Supreme Court gave a skeptical hearing today to lawyers who are challenging the use of lethal injections to carry out executions in the United States.Death penalty foes had hoped the high court was about to rein in the most commonly used method of execution, but there were few signs of that during today's oral argument...

Hon. Edwin Messe to speak to Greenville Federalist Society on January 14

Posted on January 07, 2008
One third of the active seats on the U.S. Court of Appeals for the Fourth Circuit are vacant. These vacancies threaten the prompt administration of justice, long held to be a hallmark of the Fourth Circuit. To discuss the Fourth Circuit vacancies and broader issues related to the federal judicial confirmation process, the Greenville Lawyers Chapter of the Federalist Society has invited Edwin Meese III...

SCOTUS returns to the bench today

Posted on January 07, 2008
From Law.com:From the moment it returns to the bench today, the Supreme Court will be embarking on a schedule that almost guarantees it will make controversial headlines in the midst of the 2008 presidential campaign. At times in its history, the high court has deliberately stepped back from the limelight in presidential election years...

SC Supreme Court to Hear Greenville Smoking Ban

Posted on January 03, 2008
From the Greenville News:Greenville's attempt to ban smoking in public places will be back on the front burner when it takes its case to the state Supreme Court on Jan. 9, according to City Manager Jim Bourey.The city's attorney will present an oral argument at 10:30 a...

What is a mandate from an appellate court??

Posted on January 02, 2008
In DOE v. CHAO, the Fourth Circuit does a nice job of describing this all important appellate concept. In this Black Lung case, the district court the district court awarded claimant attorney fees for work performed on a contempt motion. However, earlier the district court had denied these fees and Doe did not appeal that ruling...

Prejudgment interest in South Carolina

Posted on December 28, 2007
In Dixie Bell, Inc. v. Redd, a breach of contract action arose when the parties failed to reach an agreement on the purchase price of Dixie Belle?s interest in another company. The case was tried to a jury and the jury returned a $100,000 verdict for Dixie Belle...

SC Supreme Court issues personal jurisdiction opinion

Posted on December 27, 2007
In Coggeshall v. Reproductive Fertility Clinics, the plaintiff underwent in vitro fertilization in a North Carolina clinic and then brought suit when the baby was born with Downs Syndrome. The trial court dismissed because of lack of personal jurisdiction and the Supreme Court affirmed...

Thirteenth juror doctrine may not be used to grant a new trial on damages

Posted on December 26, 2007
In Coward v. Roberson, after a verdict for the plaintiff and an award of damages, the circuit judge granted a new trial on damages alone based on the thirteenth juror doctrine. The Court of Appeals reversed, holding that "the grant of a new trial based on the thirteenth juror doctrine grants a new trial in toto" and that the "thirteenth juror doctrine is not the proper vehicle for ordering a new trial on a singular issue such as damages...

Truth as an affirmative defense

Posted on December 20, 2007
In Parrish v. Allison, the Court of Appeals reminds the bar that in a slander case truth must be pled and as an affirmative defense. It is not enough to argue truth, it must be pled in the answer.

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