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THE VIRGINIA BAR ASSOCIATION
E-mail: thevba@vba.org VOLUME XXX, ISSUE 5 • SEPTEMBER 2004
Web: http://www.vba.org
4• President’s Page:
President
E. Tazewell Ellett, Alexandria Heroes of the Profession: Virginia’s Legal Aid Lawyers
President -elect
E. Tazewell Ellett
James V. Meath, Richmond 8• Legal Focus/Civil Litigation:
Immediate Past President Using Biomechanical Testimony in Virginia Product
Frank A. Thomas III, Orange
Liability Cases: Putting accident forces and mechanisms
Young Lawyers Division Chair
King F. Tower, Richmond
of human injuries in proper perspective for the jury
Sandra Giannone and Martha Swicegood
Young Lawyers Division Chair-elect
R. Braxton Hill IV, Richmond 11 • Legal Focus/Civil Litigation:
Law Practice Management Division Chair Preventing Theft of Corporate Knowledge
Gant Redmon, Alexandria
Attison L. Barnes III, Charles C. Lemley and Emily J. Christiansen
Chair, Board of Governors
William R. Van Buren III, Norfolk 14 • Legal Focus/Civil Litigation:
Board of Governors A Jury Trial Waiver Is an Alternative to Alternative
The Officers and Dispute Resolution
Hon. William G. Broaddus, Richmond
Ann T. Burks, Richmond
Alan D. Wingfield
William E. Franczek, Norfolk 16 • ABA News Brief
Marilynn C. Goss, Richmond
Prof. Roger D. Groot, Lexington 17 • Young Lawyers Division News
Glenn C. Lewis, Fairfax
Hon. William C. Mims, Leesburg 18 • VBA Community Service Program:
G. Michael Pace Jr., Roanoke
Glenn W. Pulley, Danville
Redefining Superstars
Nancy N. Rogers, Richmond Alfred M. Randolph Jr.
Gregory T. St. Ours, Harrisonburg
Hon. Pamela M. Sargent, Abingdon 20 • Across the Commonwealth
Hon. Diane M. Strickland, Roanoke VBA Young Lawyers Division winning streak continues • Fall VBA
Member of ABA House of Delegates conference news • ADR Joint Committee reflects on busy year, plans
David Craig Landin, Richmond for future • Baldwin, Mays and Annunziata announce retirements
Legislative Counsel
Hon. Anthony F. Troy, Richmond 22 • News in Brief
Robert B. Jones Jr., Richmond 22 • Classifieds
Anne Leigh Kerr, Richmond
23 • VBA Member Benefits
Executive Vice President
Charles Breckenridge Arrington Jr.
24 • Calendar
Director of Programs
Brenda J. Dillard On the Cover: The Fluvanna County Courthouse (1831). One hundred forty photographs
Director of Finance of Virginia courthouses are contained in Virginia’s Historic Courthouses, written by John
Amy B. Cathey .
O. and Margaret T. Peters with a foreword by the late Justice Lewis F Powell Jr.; photographs
VBA News Journal Editor by John O. Peters; published by University Press of Charlottesville; and sponsored by
Caroline Bolte Cardwell The Virginia Bar Association. To order the book, call the VBA at (804) 644-0041 or 1-
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PRESIDENT’S PAGE
Heroes of Our Profession:
Virginia’s Legal Aid Lawyers
They need and deserve the priority support of every Virginia lawyer
by E. Tazewell Ellett
Many Virginia lawyers of all
types engage in work that serves It is one thing to provide legal services to
the public good, and they all are assist the poor and needy on occasion, while
worthy of our sincere thanks and spending the bulk of one’s professional time
commendation. In this President’s on paid legal work which permits a relatively
Page I want to focus on one group healthy income. It is quite another to dedicate
of such lawyers whom I view as one’s entire professional efforts to serving
true heroes of our profession – this segment of Virginians, while earning the
Virginia’s Legal Aid lawyers. limited salaries which Legal Aid lawyers are
paid. . . this requires a level of
The Need for Legal Aid professionalism, dedication, and idealism
Legal Aid organizations and which is rare and truly noble.
Legal Aid lawyers serve a
critically important need in our to low-income citizens aimed at As Supreme Court of Virginia
state. While the use of legal ensuring that their most basic Chief Justice Hassell has so aptly
services is generally discretionary, human needs are met. These needs put it:
that is not always the case. In our include food, shelter, health care, Our form of government is truly
legal system there are numerous income, family stability, freedom remarkable and unique. Our
occasions when low-income from domestic violence, and federal and state constitutions
individuals are forced to seek legal education for one’s children. confer rights upon citizens and
help even though they really would Unfortunately, in our legal system those rights create and preserve
prefer not to have to. They do this these rights are not self- executing, our freedoms and liberties.
because they are threatened— and there are plenty of individuals These constitutions are also
threatened with deprivation of their and organizations with opposing intended to protect us from the
rights or their property, or even interests who are more than willing encroachments of the very
their family stability or personal to ignore or deny these rights if governments that were designed
safety. In short, they are on the permitted to do so. This results in to provide numerous benefits to
defensive. The availability of legal disputes over such things as child all citizens.
services to low-income individuals custody and support; domestic A strong, vibrant, and
in these “non-discretionary” violence; wrongful eviction or independent judiciary is essential
circumstances is critical, because foreclosure; denial of access to for the protection of our
access to these services is often public housing; wage garnishment; constitutional rights and property
essential to their ability to meet special education rights; and denial rights. However, those rights that
basic human needs. In my view, of unemployment, disability, we cherish are meaningless, they
one of the most important issues medical, Social Security, and are of no importance, if people
facing our profession in this Supplemental Security benefits. In lack access to the courts or if
generation is meeting the serious these circumstances, unless the people lack the assistance of
need for “non-discretionary” legal low-income individual has access lawyers who are willing to ensure
services by low-income Virginians. to legal services to protect his or that those rights are not abridged.
In Virginia, as in many states, her rights, there is a strong Without the help of lawyers, most
the state government (in addition to likelihood that those rights will be people, rich and poor, are unable
the federal government) has denied, especially if the opposing to navigate through the often times
enacted laws which provide rights party is powerful or wealthy. perplexing procedural and
4/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
evidentiary rules that courts must Facts About Legal Aid individuals and their families
apply. In Virginia, Legal Aid received private lawyer pro bono
This is also true of legal organizations and Legal Aid publico representation through pro
proceedings that do not involve the lawyers are the front lines of the bono programs operated by Legal
courts, such as administrative Commonwealth’s efforts to respond Aid organizations in partnership
proceedings involving federal or to the need for non-discretionary with local bar associations. These
state agencies. Access to lawyers civil legal services for low-income private Virginia lawyers donated
is often critical in these individuals to help them with over 20,400 hours worth at least
proceedings as well. problems affecting their most basic $3.1 million.
Individuals of means are able to human needs. Legal Aid in Virginia The basic Legal Aid process
hire and pay lawyers to provide the is set up as a statewide network of works this way. Legal Aid
necessary guidance in such community-based organizations advocates perform screening and
situations. Low-income individuals that provide civil legal assistance intake services and provide free
typically are not. Thus, in order to for this category of Virginians. The advice and brief legal assistance.
maintain a just legal system, states Legal Services Corporation of In some parts of the state this is
need to ensure that low-income Virginia (LSCV) provides funding, performed on a centralized,
individuals have access to oversight, and coordination for this regional basis with the assistance
adequate legal services to assist network. In FY 2002-03, LSCV of sophisticated telephone systems
them in protecting their rights and grants supported 10 regional Legal and database technology. Clients
property in circumstances where Aid programs and a statewide that need more in-depth assistance
these non-discretionary legal needs support center that collectively are referred to Legal Aid attorneys
arise. Otherwise, these rights will serve every community in Virginia. and paralegals working out of
likely be abridged, and justice will LSCV funding comes from the Legal Aid organization offices
not be achieved. A system which, Virginia General Assembly located throughout the state, or to
on the one hand, provides rights to (general revenue and special filing private attorneys who serve these
low-income individuals to ensure fee appropriations) and from the clients on a pro bono publico basis
that their most basic human needs Virginia Interest on Lawyers Trust out of their own law offices.
are met, and, on the other hand, Accounts (IOLTA) program that Most of the Legal Aid cases relate
fails to provide them the tools to LSCV administers. LSCV also to problems in the following areas of
protect those rights, is, at best, accepts private donations. Virginia the law: family (domestic violence,
ineffective. At worst, it is callous, Legal Aid programs also receive child support, divorce, child custody,
unjust, and hypocritical. funding from the Legal Services parental rights, guardianships),
As noted by Chief Justice Corporation (which operates at the consumer (illegal taking of property,
Hassell: national level), city and county wage garnishment, denial of credit,
[P]oor people who cannot afford grants, and federal government fraudulent consumer practices),
the services of attorneys may sources other than the Legal housing (unlawful eviction, denial of
be unaware of their legal rights Services Corporation. access to public or government-
and may be denied justice. This For low-income Virginians, subsidized housing, illegal mortgage
consequence, my friends, is Virginia Legal Aid organizations: foreclosure), and income
wrong. This consequence, my (1) provide direct legal maintenance (eligibility for, or
friends, is unacceptable. representation; termination of, disability, Social
Equally importantly, our (2) provide community legal Security, Supplemental Security,
fundamental principle of “Equal education and assistance with self- unemployment compensation, or
Justice Under Law” is defeated in representation and other essential public benefits), as well as other
such a system. Again quoting Chief legal services; and miscellaneous areas (education,
Justice Hassell: (3) coordinate with private employment, juvenile, health, and
The availability of justice must lawyers who volunteer their time to individual rights). The priority is to
not be predicated upon the handle cases on a pro bono publico help families who, without Legal Aid
wealth or financial status of the basis. assistance, would lose a critical
litigants. As lawyers and judges, In FY 2002-03, Legal Aid human need, such as food, shelter,
we must take the necessary programs closed more than 34,000 income, family stability, medical
actions to ensure that . . . cases benefitting 79,111 low- care, or personal safety. In most
justice is dispensed impartially income Virginians, 54,838 persons case, Virginia Legal Aid programs
without regard to economic received community legal resolve legal problems without
considerations. education and assistance with self- litigation.
representation and other legal As of the end of FY 2002-03, the
services from Legal Aid, and 4,359 staffs of the Legal Aid
SEPTEMBER 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/5
organizations in Virginia funded by underpaid, and, at least by some lawyers to contribute at least two
LSCV included 134 attorneys, 55 people, underappreciated. They percent of their professional time
paralegals, and 103 other carry heavy case loads and do so to pro bono publico legal services,
management, professional, and without the staff support and and states that direct financial
support staff. equipment and other amenities that support is an alternative to
many private practitioners take for donating time. Thus, unlike the
Legal Aid Lawyers granted. They are paid far less than mission of many worthy charities,
Why do I view Virginia’s Legal they should be, given the the mission of LSCV and other
Aid lawyers as heroes of our contribution they are making. They organizations focused on providing
profession? While the are dedicated, professional, and legal services to the poor is
responsibility of providing “non- hard-working, and amazingly, if directly related to a professional
discretionary” legal services to they complain at all, it is not about obligation of all Virginia lawyers.
low-income Virginians is a their own situation, but rather about Second, non-lawyers are much less
responsibility of the their concern that funding and likely than lawyers to contribute to
Commonwealth, Virginia’s Legal staffing constraints might lead to organizations focused on providing
Aid lawyers are the ones who have justice not being achieved for their legal services, so lawyers really
stepped up to the plate and truly needy and vulnerable clients. need to take the lead with generous
committed themselves to Virginia’s Legal Aid lawyers are annual financial contributions to
addressing this need. They are indeed heroes of our profession, these organizations. The Virginia
bearing on their shoulders a but they are not supermen and Bar Association this past Spring
disproportionate amount of this superwomen. They need the help of joined with the other statewide bar
responsibility, which really belongs our state and of every one of us. organizations in Virginia to send a
to all Virginia lawyers and Virginia They too long have borne a burden joint letter to all Virginia lawyers
citizens. that should be more equally shared encouraging them to make such a
Now I know that there are many by all of us. The rest of us need to generous contribution to LSCV. I
lawyers in private practice in start doing our fair share. hope all Virginia lawyers will do so
Virginia who are volunteering to before the end of this calendar
assist Legal Aid through taking on How You Can Help year, and each calendar year
pro bono publico representation of What can other Virginia lawyers thereafter. If you need any
low-income Virginians in need (as do to help these Legal Aid lawyers information on making a
well as lawyers who are accepting provide non-discretionary legal contribution, please simply contact
court appointments to represent services to our neediest citizens? LSCV or The Virginia Bar
indigent criminal defendants). I Plenty! Association.
sincerely thank them and Let me suggest five ways in
appreciate their efforts, and want to which you can do your part. Every 2. Education and Awareness.
encourage other private lawyer in Virginia can, and should, Help to educate Virginia citizens
practitioners to do the same. But I take action in at least one of the and Virginia lawmakers about the
am reserving my highest accolades following categories, and many of critical importance of Virginia
for the full-time Legal Aid lawyers. us are in a position to do even Legal Aid and Legal Aid lawyers,
It is one thing to provide legal more. and the services they provide to
services to assist the poor and help low-income Virginians meet
needy on occasion, while spending 1. Financial Contributions. their basic human needs.
the bulk of one’s professional time Make a tax-deductible financial Facts that you should pass on
on paid legal work which permits a contribution to the Legal Services include the following:
relatively healthy income. It is Corporation of Virginia and other • More than 800,000 residents
quite another to dedicate one’s organizations supporting Legal Aid. of Virginia are living in poverty.
entire professional efforts to In my view, when Virginia lawyers 246,000 of them are children, and
serving this segment of Virginians, are considering making their 78,000 are senior citizens.
while earning the limited salaries annual financial contributions to • According to the most recent
which Legal Aid lawyers are paid. worthy charities, organizations that data from the U.S. Census Bureau,
In my view, this requires a level of provide legal services to the poor, 9.9 percent of Virginia’s population
professionalism, dedication, and such as LSCV, should be given one lives in poverty.
idealism which is rare and truly of the highest priorities. Please • According to the American Bar
noble. remember two things. First, Rule Association, 48 percent of low-
Legal Aid lawyers in Virginia are 6.1(a) of the Virginia Rules of income and moderate-income
the classic example of Professional Conduct sets an households experience a legal
professionals who are overworked, aspirational goal for Virginia problem each year. That translates
6/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
to 400,000 legal problems services and providing advice and 20,402 hours of such pro bono
annually for this segment of brief legal assistance to those service in FY 2002-03.
Virginia’s population. seeking Legal Aid assistance. This One such pro bono publico
does not have to be time- volunteer opportunity which could
3. Support Adequate Funding consuming, and it can be very be considered is Chief Justice
for LSCV in the General rewarding. In several areas of the Hassell’s new “Virginia’s Lawyers
Assembly. state there are Pro Bono Hotlines Helping Families” program, which
Call or write your through which you can provide is implementing pilot programs in
representatives in the General these services. Most of these Pro Harrisonburg and the greater
Assembly to tell them that you Bono Hotlines were created by The Richmond area aimed at
support greater funding for LSCV. Virginia Bar Association in encouraging lawyers to volunteer
Legal Aid in Virginia is in a partnership with various Legal Aid to help poor families who are
financial crisis because over the organizations and operate in involved in child custody and
last several years, federal funding Central Virginia, Northern Virginia, visitation disputes.
is down and revenue from IOLTA Roanoke, and Tidewater. The *****
(which provides 40 percent of the Virginia Bar Association Young As Virginia lawyers, we all have
LSCV funds for grants to Virginia Lawyers Division actively recruits a solemn professional obligation to
Legal Aid organizations) is down lawyer volunteers to staff the do what we can to ensure that
dramatically on account of lower hotlines at Legal Aid organization justice is delivered fairly, equally,
interest rates. This has resulted in offices in these areas of the state. and completely in the
significant budget cuts and staffing These volunteer lawyers, who Commonwealth. I urge each of you
reductions for Virginia Legal Aid receive training for this task and do to take action in one, and hopefully
organizations. For example, not have to be young lawyers or more, of these five categories.
Central Virginia Legal Aid Society members of the VBA, provide Working together, we can take
has lost one-third of its support telephone advice on a rotating some of the load off of our
staff and one-quarter of its basis to callers meeting Legal Aid distinguished, but overburdened,
attorneys over the last three years. eligibility requirements, and Legal Aid brethren. By
As a consequence, waiting lists of thereby ease the caseload of Legal volunteering our time, talents, and
low-income Virginians whom Aid attorneys. Contact your local resources in this way, we can
Virginia Legal Aid organizations Legal Aid organization or the VBA, further one of the most honorable
are unable to serve are growing, or log onto the VBA’s website, to traditions of our profession, while
and critical needs for legal learn how to volunteer. The VBA’s helping to provide Virginia’s most
services are going unmet. Even website has links to the websites of vulnerable individuals and families
before these recent funding Legal Aid and other public service with tools they desperately need to
reductions, the funding sources organizations with lawyer pro bono preserve their rights and meet their
available to Virginia Legal Aid publico legal service opportunities. most basic human needs. A worthy
organizations were woefully (Editor’s note: See the Community cause indeed! VBA
inadequate to meet the critical Service Program webpage, easily
needs. The American Bar accessed by a link on the VBA home
Association estimates that, page at www.vba.org, for these links.) See these Legal Aid
nationwide, Legal Aid organizations websites for more details:
currently are able to meet only 20 5. Pro Bono Publico www.VaLegalAid.org (general)
percent of the legal needs of low- Representation of a Legal Aid www.brls.org (Blue Ridge)
income people. Client. www.cvlas.org (Central Virginia)
It is critically important for the Volunteer to assist by www.justice4all.org (Legal Aid
Commonwealth to put substantially representing a Legal Aid client on Justice Center)
more state funding into LSCV on a a pro bono publico basis. This www.lsnv.org (Northern Virginia)
continuous and stable basis, and would provide the opportunity to www.potomaclegalaid.info
Virginia lawyers can help by work with the local Legal Aid (Potomac Legal Aid)
carrying that message to their organization and Legal Aid lawyers www.erols.com/rlsfred and
General Assembly representatives. and to assist each other in ensuring www.erols.com/tapp
that the client’s needs are met. As (Rappahannock Legal Services)
4. Screening and Pro Bono noted above, the pro bono www.svlas.org (Southwest Virginia)
Hotline Assistance. involvement of private lawyers is a www.vlas.org (Va. Legal Aid Socy.)
Volunteer to assist your local crucial element of the Legal Aid
www.vplc.org (Va. Poverty Law Ctr.)
Legal Aid organization by delivery system, and private
Eastern Virginia Legal Aid Society may
performing screening and intake Virginia lawyers volunteered
be contacted at (757) 627-5423.
SEPTEMBER 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/7
LEGAL FOCUS/CIVIL LITIGATION
Using Biomechanical Testimony
in Virginia Product Liability Cases
Putting accident forces and mechanisms
of human injuries in proper perspective for the jury
by Sandra Giannone and Martha Swicegood
After a car accident, plaintiff Plaintiff’s condition was caused by falling out of a 10-story building,
sues your client, the car company, this accident. You also know that having a car dropped on you, riding
and alleges that a defective Plaintiff’s kinematics during this a rollercoaster, jumping rope,
component of their vehicle injured accident do not lend themselves to kneeling in church, performing a
her or enhanced her injuries. her injuries. To bolster your IME cartwheel, or walking. These types
Plaintiff claims that this accident doctor, you need someone to testify of comparisons can be invaluable
caused a ruptured disk in her back regarding the magnitude and in illuminating accident severity to
so severe that she can no longer direction of forces experienced by a jury.
work or function without pain. plaintiff in the accident as well as Though they are not trained to
Plaintiff has multiple medical those forces necessary to rupture a treat the human body,
doctors, including treating doctors disk. You need a biomechanic. biomechanics are nonetheless
from her childhood, prepared to qualified scientists trained to study
testify that, in spite of her colorful How Can a Biomechanic Assist the the function of the body. They
medical history, not only is she Jury and the Defense? construe the human body as a
gravely injured, but she sustained A good biomechanic can put machine when analyzing loads and
this ruptured disk in your accident. accident forces in perspective for forces applied to various parts of
You, however, question this the jury.1 The biomechanic begins the body, including knees, necks
causal connection and want to by examining the accident vehicle and backs. In many ways,
establish that the accident is not and the facts surrounding the biomechanics are no different than
the true cause of Plaintiff’s current accident and ascertains the other scientists, like chemists and
condition. You hire an orthopedic direction and magnitude of the biologists, who do not have
doctor to perform an independent forces that any occupant or object medical degrees, do not treat
medical examination (IME). He would experience during the patients, but who nonetheless
opines that not only is her current accident. The biomechanic then possess sufficient knowledge, skill,
condition not as severe as she examines the plaintiff’s medical or experience to make the witness
claims, but that her medical history, records to obtain data regarding competent to testify about how the
rather than this accident, is both the plaintiff’s pre-accident and human body functions under
responsible for her condition. While post accident condition. The certain conditions.
the value of this testimony cannot be biomechanic can then opine
overlooked, the IME doctor did not whether the alleged injuries could Medical Doctors Are Not Qualified
examine Plaintiff until more than two have been caused to a person with to Give Force Application Opinions
years after the accident, during these preexisting conditions Medical doctors, absent special
which time much has happened, exposed to these accident forces. training, are not trained to analyze
including numerous surgeries on This systematic and scientific vehicular accident forces. They
Plaintiff’s back. Alone, this may not approach will enable the jury to are not trained to measure them
be sufficiently compelling evidence understand the severity of the and they cannot scientifically
to overcome that of the plaintiff’s accident forces and put them in recreate them. Medical doctors
many treating doctors. perspective. By using are obligated to diagnose and treat
You now have a medical expert biomechanical analogies, a injuries or conditions. They have
prepared to opine that Plaintiff’s biomechanic can then explain the no scientific basis for opining
medical history and prior surgeries forces in your accident in whether certain forces were
render it highly implausible that comparison to forces such as available in a particular accident
8/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
so as to have caused a particular Sandra Giannone is a partner in the Richmond office of McGuireWoods LLP
ABOUT THE AUTHORS
injury.2 who earned her law degree from the University of Michigan Law School. She
Moreover, medical doctor is a trial lawyer who defends product designers, manufacturers and sellers
testimony regarding causation is against claims for personal injuries arising from alleged product defects,
usually based solely on what the malfunctions or failures, concentrating in the national defense of automotive
manufacturers. She is admitted to practice in both Virginia and Illinois, and
plaintiff tells him. This leads to is a member of The Virginia Bar Association, the Virginia Association of
what can be classified as the Defense Attorneys and the Richmond Bar Association. Martha Swicegood is
“temporal relationship” basis for a an associate in the Richmond office of McGuireWoods LLP. She earned her
doctor’s causation opinion at trial: law degree from the Marshall-Wythe School of Law at the College of William
the Plaintiff was in an accident, she & Mary. Her practice focuses primarily on the defense of product liability
claims. A substantial portion of her practice is devoted to the national defense
reports “new” symptoms to a of automotive product liability claims. She is a member of both The Virginia
doctor one week later, and Bar Association and the Richmond Bar Association.
therefore the doctor opines that the
accident caused the injury. This scope, experts on both sides are address biomechanical issues and
approach is characterized by what permitted to offer opinion was beyond the scope of a
computer programmers refer to as testimony. biomechanic’s expertise.
the “garbage in, garbage out” In the first case to address the However, Keeling does not ban
problem. The doctor’s opinion is issue, Combs v. Norfolk & Western all biomechanical testimony.
limited by the accuracy and Railway Company, 256 Va. 490, Rather, it prohibited that particular
veracity of the self-reporting of the 507 S.E.2d 355 (1998), the biomechanic from crossing the line
person who now wishes to get Supreme Court upheld the trial into diagnostic medicine. See id. at
money from your client. If the court’s qualification of a 235, 457-58. Moreover, the
Plaintiff fails to provide a complete biomechanic to testify regarding Keeling Court intimated that it
accident summary and medical the forces and loads placed upon would have allowed actual
history, the doctor surely will opine the Plaintiff’s spine during an biomechanical testimony from this
inaccurately that there is a incident where the Plaintiff fell witness, including testimony about
temporal causal nexus between the while working on a toilet. While pressure in the inner ear, if it
incident and symptomology. the Court embraced biomechanic received assurances that the
testimony about the forces involved questioning would be properly
The Virginia Courts and in the fall and their likely impact limited. See id. This suggests that
Biomechanical Testimony on the human body, the a biomechanic is a legitimate
There are those who would argue biomechanic was not permitted to scientist who can examine whether
that Virginia courts addressing give diagnostic opinions regarding the forces applied on the human
non-medical experts have the plaintiffs’ actual injury. See id. body or a component thereof (the
concluded that the field of at 496-97; 358-59. The Court did ear) could result in the injury
biomechanics is junk science and not preclude a scientist trained to mechanism alleged.
not permissible in Virginia. It is study the human body as a machine This issue arose recently in the
incumbent upon the defense bar not from opining about forces and case Kline v. General Motors in
to permit this erroneous reading of loads as applied to the body. which the Circuit Court permitted
the caselaw. As the defense bar, The Supreme Court recently the biomechanic to testify about
we need to aggressively advocate revisited the biomechanical issue accident forces and loads. The
the use of these uniquely qualified in Norfolk and Western Railway Co. court’s opinion addressing
and wholly relevant engineers and v. Keeling, 265 Va. 228, 576 S.E. biomechanical testimony clarifies
attempt to change the perceptions 2d 452 (2003). In this FELA the law in Virginia and sheds light
regarding the quality and relevance case, the railroad purported to offer on the requirements and
of their scientific testimony. “biomechanical” testimony in the restrictions for biomechanical
Virginia Courts, despite area of vestibular mechanics to testimony.
perceptions and lore, permit examine the biomechanism
biomechanical testimony. Courts responsible for the Plaintiff’s fistula Kline v. GM : Permitting the
have struggled to draw the line becoming symptomatic. However, Biomechanic Scientist To Opine
between the appropriate scope of when asked about the cause, he About The Human Body Machine
testimony to permit from legitimate indicated that it was “infection or In Kline v. General Motors, 2003
scientists who study the human something that causes the tissue or Va. Cir. LEXIS 319 (Richmond
body (i.e. biomechanics) versus the bone to deteriorate.” Id. at City) (2003), Plaintiff claimed that
legitimate scientists who treat the 234, 457. Plaintiff properly during a hard-braking non-impact
human body (medical doctors). moved to exclude this testimony, incident, the seat in his pick-up
Although there is a line regarding because this answer did not truck abruptly slid forward on its
SEPTEMBER 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/9
tracks, resulting in knee contact torsion.” Id. at 2003 Va. Cir. reaching final opinions to ensure
with the knee bolster and resultant LEXIS at *3. reliability.
injuries to his back and knee. The The Kline court did rule that the When medical doctors consider
incident did not appear to have the biomechanic could not testify that the human body, they think in
mechanism necessary to produce the forces and nature of the impact terms of treatment. Biomechanics
the meniscal tear of the knee on the knee were insufficient to construe the human body as a
complained of by the plaintiff. The cause the meniscal tear in this machine that interacts with its
defendant retained a highly plaintiff, in spite of the fact that the physical surroundings. It is not the
qualified non-M.D. biomechanic to court was quick to note that “[a] role of a medical doctor to do a
opine about the low forces in the biomedical engineer is certainly biomechanical assessment of
incident, the mechanical competent to testify to the forces, loads and injury mechanism
mechanism required to cause a mechanics of action of the body in an accident. Virginia law
meniscal tear and the force and, to some extent, the points at permits a biomechanic to testify
application necessary to cause a which various body parts cannot about forces on the body, the types
meniscal tear. Pretrial discovery function or can become injured, of loads these forces cause, and
illuminated, through the e.g., a certain amount of force the types of loads necessary for a
depositions of Plaintiff’s treating concentrated on the forearm is particular injury mechanism. If
physicians, that although they had sufficient to cause it to fracture.” you carefully prepare your
been designated as having Id. at *5. biomechanic and do not overreach
“causation” opinions about the to elicit opinions from him that are
incident and the injuries, they were In Conclusion: Ensuring Your reserved for medical doctors, you
unable and unqualified to render Biomechanic Is Up to Par can effectively make your point to
opinions about accident forces and Expert testimony in Virginia the jury that the forces, loads and
loads. must meet the requirements of mechanisms required for the injury
Upon a motion to exclude the Tittsworth v. Robinson, 252 Va. alleged were not present in your
expert, the Court ruled that the 151, 475 S.E.2d 261 (1996) accident. VBA
biomechanic could testify about the (holding that the testimony must
forces experienced by the assist the fact finder in determining NOTES
plaintiff’s body in the accident and the evidence) and Tarmac Mid- 1. A number of jurisdictions allow expert
opinions in the field of biomechanics. See
about the mechanisms necessarily Atlantic, Inc. v. Smiley Block Co., e.g., Quintana-Ruiz v. Hyundai Motor Corp.,
imposed on the human body which 250 Va. 161, 166, 458 S.E.2d 303 F. 3d 62, 66 (1st Cir. 2002) (the
result in a meniscal tear, stating he 462, 466 (1995) (holding that the biomechanic testified that forearm fractures
rarely occur when the arm is three or more
“may testify to the nature of the expert testimony must be based on inches away from the component part at
forces involved, i.e., the direction an adequate foundation). issue in the vehicle); Krummel v. Bombardier
of the force, the means of Biomechanical testimony can meet Corp., 206 F. 3d 548, 560 (5th Cir. 2000) (the
biomechanic opined that “fractures of the
determining the amount of the these requirements as long as your left tibia and fibula can reasonably be
force (the physical laws and factors biomechanic employs a expected to occur in a ‘bending’ break at a
for determining the amount of scientifically-based methodology in force of less than 100 pounds depending
upon the exact position of the body”); Laski
force) and the mechanism(s) generating final opinions, and that v. Bellwood, 2000 US App. LEXIS 12068, *11
involved in causing a meniscal the expert has considered and (6th Cir. 2000) (noting that “biomechanics
tear, i.e., compression and excluded all possible variables in are qualified to determine what injury
causation forces are in general and can tell
how a hypothetical person’s body will
VBA Foundation Memorial Contributions
respond to those forces, but are not qualified
to render medical opinions regarding the
precise cause of a specific injury”); Lamb v.
Received as of August 23, 2004 Sears, Roebuck, Co., 1 F. 3d 1184, 1190
(11th Cir. 1993) (biomechanic testified that
In memory of James A. Betts Jr. In memory of A.C. Epps about ease of climbing wall for child of certain
Mr. and Mrs. C.B. Arrington Jr. Mr. and Mrs. C.B. Arrington Jr. size); Hinds v. General Motors Corp., 988 F.
The Virginia Bar Association Mr. and Mrs. E. Tazewell Ellett 2d 1039, 1044 (10th Cir. 1993) (the
biomechanic testified about the vehicle
The Virginia Bar Association
In memory of Sam Eggleston occupant’s interaction with the seatbelt during
the crash and the resulting occupant’s
Mr. and Mrs. C.B. Arrington Jr. injuries.)
2. To lay a proper foundation for
The Virginia Bar Association Foundation gratefully accepts contributions in biomechanical testimony, it is important to
memory or in honor of VBA members and their families, or friends of the elicit testimony from the treating physicians
Association. Contributions should be sent to VBA Foundation, c/o The that they are not engineers and are not
Virginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, trained to analyze accident forces, loads or
occupant kinematics. Doctors will usually
VA 23219. More information about the Foundation and its Patrons Program readily admit this.
is available online at www.vba.org.
10/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
LEGAL FOCUS/CIVIL LITIGATION
Preventing Theft of Corporate Knowledge
by Attison L. Barnes III, Charles C. Lemley and Emily J. Christiansen1
Businesses often find will address the two statutory by one who suffers “damage or
themselves vulnerable to disloyal claims,6 which can provide an loss” of at least $5,000. 13 The
employees who access confidential employer relief even where no statute broadly defines “damage”
business data and trade secrets. trade secrets are implicated and a as “any impairment to the integrity
Disloyal employees may seek a CANS agreement is ruled of availability of data, a program, a
competitive advantage in a new unenforceable.7 system, or information,” and “loss”
endeavor by removing and making as “any reasonable cost to any
use of their former employer’s The CFAA and the VCCA are criminal victim,” including response,
proprietary information, such as statutes that create civil claims for assessment, and remediation costs
customer lists. In the past, these certain wrongs committed using a as well as any lost revenue or cost
disloyal employees either had to computer. incurred as a result of the service
memorize or physically carry this The CFAA creates a federal civil interruption.14
information away from their former action, and even a criminal claim, Similarly, the VCCA is a
employers; now, however, almost for conduct that would give rise criminal statute that provides for
every employee has access to only to state-law claims if not for civil remedies in appropriate
volumes of proprietary information the use of a computer.8 Enacted in cases. The elements necessary to
stored on the employer’s database 1984 as a criminal statute establish a violation of the VCCA
or network. Unfortunately, as many designed to protect classified are: (1) that the defendant used a
companies have learned, it is information on government computer or computer network; (2)
much more difficult to protect computers and financial “without authority;” and (3) with
information stored on a computer information on financial the intent to (inter alia) convert the
than it is to lock a file cabinet. institutions’ computers, the CFAA property of another15 or to make an
With the click of a mouse, massive has been amended to cover all unauthorized copy of computer
amounts of confidential data may computers used in interstate data, programs or software.16
confiscated in an instant. commerce and to provide a private While the VCCA generally covers
Attorneys have traditionally civil right of action for those the same ground as the CFAA, and
addressed such problems through harmed by criminal computer is often used in conjunction with it,
claims for breach of confidentiality fraud.9 The CFAA’s various certain distinctions are addressed
and non-solicitation (CANS) sections address a broad array of below.
agreements, violation of the conduct, but of most relevance to
Virginia Uniform Trade Secrets Act this article, an employer may bring The VCCA differs slightly from the
or similar actions.2 Such claims suit against anyone who: CFAA in terms of what access is
are often unsatisfactory because (i) “intentionally accesses a unauthorized.
the employee may not have signed computer without authorization or Both statutes punish
a CANS agreement, the agreement exceeds authorized access, and “unauthorized” access to computer
is deemed to be unenforceable, or thereby obtains. . . information data, but they deal with that term
the information wrongfully taken from any protected computer…”10 differently. The CFAA gives little
does not qualify as a trade secret or direct guidance on the meaning of
under the law. Employers and (ii) “knowingly and with intent to the phrase “without
others in Virginia who have been defraud, accesses a protected authorization,17 ” but the phrase
injured by wrongful taking or use computer without authorization, or was interpreted in the context of
of their computer data now exceeds authorized access, and by disloyal employees in Shurgard
combine those traditional claims means of such conduct furthers the Storage Centers, Inc. v. Safeguard
with statutory claims under the intended fraud and obtains anything Self Storage, Inc.18 Shurgard
federal Computer Fraud and Abuse of value….”11 employees accessed their
Act (CFAA), 3 the Virginia A “protected computer” is employer’s computer and sent the
Computer Crimes Act (VCCA),4 defined as a computer used in employer’s confidential information
and often a common-law claim for interstate or foreign commerce.12 to a direct competitor with whom
trespass to chattels.5 This article A civil action may only be brought they had secretly accepted
SEPTEMBER 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/11
access was unauthorized solely
Attison L. Barnes III is a partner in Wiley Rein & Fielding’s Washington, D.C.
office and a member of the firm’s employment and labor, intellectual property,
because it violated the provisions
and litigation practices. Among other things, he counsels companies who of an employee handbook. The
seek to protect intellectual property rights and trade secrets from former CFAA would likely require a
employees and other entities. A member of the District of Columbia and Vir- showing that the employee had
ginia bars, he received his undergraduate degree from the University of Vir- ceased acting as his employer’s
ginia and a J.D. degree from the T.C. Williams School of Law of the University of
Richmond, where he serves on the board of the Law School Association. A
agent and was therefore without
longtime VBA volunteer and the recipient of the 1996 Emerson J. Spies Award authorization under Shurgard25 or
and the 1999 Fellows Award, he currently serves as vice chair of the VBA’s Civil had obtained information he was
ABOUT THE AUTHORS
Litigation Section. Charles C. Lemley is a partner in Wiley Rein & Fielding’s not entitled to obtain and had
Washington, D.C., office and a member of the firm’s litigation, employment therefore exceed authorized access
and labor, and health care practices. He provides litigation and counseling
solutions to clients on matters related to commercial disputes, labor arbitra-
as defined in the statute. The
tion and employment discrimination, and has significant experience in highly VCCA, on the other hand, would
complex product liability litigation. A member of the District of Columbia and clearly be violated because the
Florida Bars, he received his B.A. degree summa cum laude from the University employee used the employer’s
of North Florida and his J.D. degree magna cum laude from the Georgetown computers “in a manner exceeding”
University Law Center. He is an adjunct professor at the George Mason Univer-
sity School of Law, coached the school’s undefeated mock trial team in na-
the permission granted by the
tional competition, and is also a member of the Steering Committee of the employer, or “for purposes not
District of Columbia Bar’s Litigation Section. Emily J. Christiansen is an asso- authorized by his employer....”26
ciate in Wiley Rein & Fielding’s Washington, D.C. office and a member of the Thus, while employee handbook
firm’s Employment & Labor and Litigation Practices. She represents and coun- provisions are always important to
sels employers on employment and labor issues including compliance with
Title VII, the Americans with Disabilities Act, Family and Medical Leave Act, Fair
protecting the employer’s data, the
Labor Standards Act, wrongful terminations, disability benefits, equal employ- Virginia statute may offer greater
ment opportunity policy, harassment, state anti-discrimination statutes and protection in this regard than the
non-competition agreements. She received her undergraduate degree from Wil- CFAA.
liams College and her J.D. degree from the University of Chicago Law School,
where she was the recipient of the Thomas M. Mulroy Prize for Excellence in
Appellate Advocacy and the Llewellyn Cup for Excellence in Brief Writing and
Although the CFAA and VCCA are
Oral Argument, and is a member of the Virginia and District of Columbia bars. generally used together,
jurisdictional concerns may dictate
using one or the other.
employment. The competitor interpreted. For example, in S.R. v.
Another obvious distinction
moved to dismiss Shurgard’s CFAA Inova Healthcare Serv.22 the circuit
between the two statutes is
claim, arguing that because the court held that a VCCA claim was
jurisdiction. Employers wishing to
employees had “authorized” established where medical
litigate in federal court may use
access to the information by means personnel who were authorized to
the CFAA as a vehicle for federal
of their employment with Shurgard, access medical records for
jurisdiction over what would
there could be no “unauthorized” business purposes accessed the
otherwise be purely a matter of
access as required by the statute.19 same records under circumstances
state law.27 Of course, a VCCA
The court rejected the competitor’s “not reasonably related to the
claim generally may be joined with
argument, holding that the rendering of health care
the CFAA claim without defeating
employee’s authority to access the services.”23 Similarly, in
federal question jurisdiction.28
information ended when employees McGladrey & Pullen v. Shrader, the
Conversely, if the plaintiff wishes
accepted employment with and court found a VCCA claim
to be assured of litigating in state
became agents for the established where an employee of
court, the VCCA provides similar
competitor. 20 an accounting firm that was about
statutory protection without the
The VCCA specifically defines to be sold, who had authorization to
federal jurisdiction of the CFAA.
“without authority,” stating that a use the firm’s computers for
Another critical distinction is the
person is “without authority” when business purposes, downloaded and
CFAA’s requirement that a civil
(i) he has no right or permission of kept computer files containing
action is only available where the
the owner; or (ii) he uses a competitively sensitive information
plaintiff suffers damage or loss of
computer or computer network in a for use in his new accounting
at least $5,000 in value.29
manner exceeding the right or business.24
Although the scope of injuries that
permission granted by the owner; Given these slight differences in
can qualify as “damage or loss” is
or (iii) he uses the computer or what kind of use is without
quite broad,30 recent opinions have
computer network in violation of authority or exceeds authorization,
strictly limited the range of
the policies set by an ISP.21 The these statutes might yield different
potential recovery to injuries
scope or unauthorized access under results where an employer seeks to
directly related to the computer.31
the VCCA has been broadly establish that an employee’s
12/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
Several courts have rejected 2003)(unpublished opinion addressing all information’s effectiveness was dependent
these causes of action). on the knowledge a former employee gained
claims from plaintiffs who did not 6. For a discussion of using trespass to through unauthorized access to the former
meet the $5,000 threshold.32 This chattels in such cases, see Applicability of employer’s computer.
can be dispositive where a plaintiff Common-Law Trespass Actions to Electronic 21. Va. Code. § 18.2-152.2.
Communications, 107 ALR5th 549; America 22. 49 Va. Cir. 119, 1999 WL 797192 (Fairfax
seeks injunctive relief to prevent Online, Inc. v. IMS, 24 F. Supp. 2d 548, 550- County Cir. Ct. 1999).
injury from occurring; the $5,000 51 (E.D. Va. 1998). 23. Id. at *9.
threshold is generally interpreted 7. See McGladrey & Pullen, LLP v. Shrader, 24. 62 Va. Cir. 401, 2003 WL 22203709
62 Va. Cir. 401, 2003 WL 22203709 (Rockingham County Cir. Ct. 2003) at *6
as an element of jurisdiction or (Rockingham County Cir. Ct. 2003)(sustaining (“Defendant had permission to use
standing, which should be met demurrer as to claims for violation of McGladrey’s computers for legitimate
before injunctive relief may be unenforceable CANS agreement, but denying business purposes, but had no authority to
demurrer on VCCA claims). use McGladrey’s computers for purposes not
awarded.33 8. For example, in the Shurgard case authorized by his employer and inemical
discussed below, had the defendant mailed [sic] to his employer’s best interest.”)
Conclusion his current employer’s paper files to his 25. See Shurgard at 1125
future employer rather than emailing the 26. McGladrey & Pullen, 2003 WL 2223709
An action under the CFAA can computer version there would have been no and * 6. The employees in McGladrey
be an effective way to recover crime and no federal cause of action. The violated the VCAA where they were authorized
damages, but all employers should mere fact that a computer was used made to access the patient files, but not for the
the conduct criminal and subject to federal reasons they accessed the files. Since they
strive to prevent anyone, including civil jurisdiction even though the resulting were not acting as agents for another entity,
current employees, from gaining harm was the same. There is some question and did not obtain information they were not
unauthorized access to their whether this was the result Congress authorized to obtain, they might well not
intended when it amended the CFAA. have violated the CFAA.
computer stored information. To 9. This private civil right of action exists in 27. See, e.g., Nexans Wires S.A. v. Sark-USA,
protect your client’s information, addition to the criminal penalties available Inc., 319 F. Supp. 2d 468 (S.D.N.Y.
you might counsel you clients to do under the CFAA, which may include up to 20 2004)(Plaintiff’s state-law claims were
years imprisonment. dismissed where plaintiff failed to meet
the following: (1) update the 10. 18 U.S.C. § 1030(a)(2)(c). jurisdictional requirements of CFAA claim).
company’s computer policy to keep 11. 18 U.S.C. § 1030(a)(4). 28. See generally Nexan Wires, 319 F. Supp.
pace with changing technology; (2) 12. 18 U.S.C. § 1030(e)(2)(B). 2d at 470 (joinder of state claims will not
13. 18 U.S.C. 1030(g); see In re DoubleClick defeat federal jurisdiction unless the
consistent with written company Inc. Privacy Litigation, 154 F. Supp. 2d 497 assertion of jurisdiction under the CFAA is
guidelines, consider regularly (S.D.N.Y. 2001). “wholly insubstantial and frivolous.”
monitoring their employees’ 14. 18 U.S.C. § 1030(e)(8); 18 U.S.C. § 29. 18 U.S.C. 1030(g); see In re DoubleClick
1030(e)(11). Inc. Privacy Litigation, 154 F. Supp. 2d 497
computer use, especially e-mail; 15. Va. Code §18.2-152.3. (S.D.N.Y. 2001).
(3) limit access to and create a 16. Va. Code § 18.2-152.4. 30. The CFAA was amended in 2001 to define
workable method to protect 17. See America Online, Inc. v. National “loss” (which had previously been undefined)
Health Care Discount, Inc., 121 F. Supp. 2d as “any reasonable cost to any victim,
confidential information, especially 1255, 1273 (N. D. Iowa 2000) (applying including the cost of responding to an offense,
trade secrets, wherever possible; Virginia law). conducting a damage assessment, and
(4) ensure that all employees with 18. 119 F. Supp.2d 1121 (W.D. Wash. 2000). restoring the data, program, system, or
19. The court relied on agency theory to rule information to its condition prior to the
access to confidential information that the employees acted “without offense, and any revenue lost, cost incurred,
have signed valid confidentiality authorization,” and therefore declined to or other consequential damages incurred
agreements; (5) secure the consider whether they exceeded their because of interruption of service.” 18 U.S.C.
authorized access. Shurgard, 119 F. Supp. § 1030 (e)(11).
external website and immediately 2d at 1125, n. 4. 31. See Nexans Wires, 319 F. Supp. 2d at
capture any entry into your 20. After Shurgard, more and more 476 (cost of trips taken to discuss problem of
computer system from outside of employers have begun to take advantage of information getting into hands of competitors
the CFAA. See, e.g., Pacific Aerospace & was not “loss” because the trips were not
your company; and (6) act quickly Electronics, Inc., 295 F. Supp. 2d 1188 (E.D. taken to engage in any type of computer
when unauthorized acts take place Wash. 2003)(granting a preliminary injunction investigation or repair).
by pursuing rights under the CFAA where the former employees had gained 32. Id.; Nexans Wires, 319 F. Supp. 2d at
unauthorized access to confidential customer 478.
and/or VCCA, including, if lists and technical data stored on the former 33. See Nexans Wires, 319 F. Supp. 2d at
necessary, injunctive relief to stop employer’s computer). Employers have also 472, 475 (discussing $5,000 damage
further dissemination before it is brought actions under the CFAA against requirement as a “jurisdictional threshold”);
competitors. In EF Cultural Travel BV, EF v. but see Register.com, Inc. v. Verio, Inc., 126
too late. VBA Explorica, Inc., 274 F.3d 577 (1st Cir. 2001), F. Supp. 2d 238, 252 (S.D.N.Y. 2000)(finding
the court held that a company’s use of a plaintiff entitled to injunctive relief where it
NOTES “scraper” to obtain pricing information off a established likelihood of suffering at least
1. Attison L. Barnes III, Charles C. Lemley, competitor’s website constituted $5,000 in damages).
and Emily J. Christiansen, who work in the unauthorized access because the
Washington, D.C., office of Wiley, Rein &
Fielding, concentrate in, among other things,
the protection of trade secrets and Become a VBA Foundation Patron
intellectual property rights.
2. Va. Code § 59.1-336 et seq. and support the public service activities
3. 18 U.S.C. § 1030. of The Virginia Bar Association!
4. Va. Code § 18.2-152.1 et seq.
5. See, e.g., Physicians Interactive v. Lathian For information on giving levels, privileges and how to contribute,
Systems, Inc., 2003 WL 23018270 (E.D. Va. please visit www.vba.org/patrons.htm or call (804) 644-0041.
SEPTEMBER 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/13
LEGAL FOCUS/CIVIL LITIGATION
A Jury Trial Waiver Is an Alternative
to Alternative Dispute Resolution
by Alan D. Wingfield
Much ink is spilled about, and a on whether the dispute ends up in circumstances of the parties and
whole dispute-resolution industry state or federal court. the contract, with particular
has been built on, the use of State and federal law are the emphasis on the business acumen
arbitration to avoid jury trials. same in the following respect: A of the waiving party and whether
Comparatively little has been said contractual waiver of a jury trial, if the negotiation history tending to
about the use of predispute done correctly, is enforceable. Yes, show that the waiving party had
contractual waivers of jury trials. you can include a jury trial waiver actual knowledge of the term. At
Indeed, if arbitration is an in your contract with some realistic least one federal district court has
alternative to conventional court hope that it will mean something.3 interpreted Leasing Services as
jury trials, a contractual waiver of The Supreme Court of Virginia imposing a four-part test:
jury trials might be viewed as an has upheld the validity of (1) placement of the waiver
alternative to the alternative. contractual jury trial waivers provision in the contract
Because, yes, if you don’t like without articulating any (conspicuousness);
the idea of a jury resolving your requirements in addition to those (2) bargaining position of the
dispute, the inclusion of a well- necessary for any other valid parties;
drafted waiver in your contract can contract provision. On its face, the (3) business experience of the
effectively waive a jury trial.1 law in Virginia seems to be: you parties; and
Indeed, if contract-drafting lawyers signed it, you are stuck with it. You (4) opportunity to negotiate, or
are obliged to discuss with their can cite Azalea Drive-In Theatre, at least object to, the provisions of
clients alternative dispute Inc. v. Sargoy, 215 Va. 714, 214 the contract.4
resolution provisions such as S.E.2d 131 (1975) for the Reading these Leasing Services
arbitration, they should also proposition. factors, you get a sense that a jury
discuss with them the possibility of In comparison, the federal legal trial waiver buried in the fine print
contractually waiving the right to a landscape is considerably more of a form contract being proffered
jury trial. complex — with conflicting by a sophisticated business to an
What follows are the necessary decisions, weighty fact-specific unsuspecting consumer should not
drudgery of reviewing the law, circuit court amplifications, and be enforced.
some example jury trial waiver even the feared multipart test. A bit of strangeness developed
provisions, and points to consider Ultimately, however, the since 1986 when Leasing Services
in weighing a jury trial waiver: complexity in form may not amount was decided. It has become
to anything substantively different considerably easier to write an
1. The Law. from the state law. enforceable arbitration clause than
The Seventh Amendment to the The landmark Fourth Circuit a jury trial waiver under the
United States Constitution cases are Leasing Serv. Corp. v. Leasing Services framework. By
guarantees the right to jury trials in Crane, 804 F.2d 828 (4th Cir. 2000, the United States Supreme
many civil actions in federal court. 1986) and Sydnor v. Conseco Fin. Court was holding in Green Tree
The Seventh Amendment, however, Servicing Corp., 252 F.3d 302 (4th Fin. Corp.-Alabama v. Randolph
does not apply to jury trials in state Cir. 2001). that arbitration clause buried in a
civil cases.2 Thus, the right to a In Leasing Services, the Fourth form contract could be enforced
jury trial in state court civil cases Circuit held that the fundamental against a consumer absent a
depends on state law. Article I, test for validity was whether the showing that the expenses of
§ 11 of the Constitution of Virginia signing party’s release of the right arbitration would effectively
guarantees the right. Hence, a to the jury trial was done preclude the consumer from
contractual provision waiving the “knowingly and intentionally” and pursuing a remedy.5 The relative
right to a jury trial is subject to was “voluntary and informed.” The bargaining power and the business
potentially differing law depending court went on to look at the experience of the parties were
14/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
nowhere to be seen. So long as the
ABOUT THE
individual could obtain “a day in Alan Wingfield is a partner with Troutman Sanders LLP in Richmond.
AUTHOR
His practice is exclusively in business and commercial litigation, with
court” through arbitration, special emphasis on intellectual property and consumer financial
arbitration seems perfectly fine. services litigation. He is a graduate of the University of Missouri and
A pause is warranted to consider Duke University School of Law and has been named to Virginia Business
whether the difference between magazine’s “Legal Elite” in the area of intellectual property law (2002-
Green Tree’s permissive view of 04).
arbitration clauses and Leasing
Services’ more restrictive view of
jury trial waivers makes any sense. the contract, then it is enforceable of contract claim, a tortious
With arbitration, a consumer would in federal court. It is also very interference claim, a common-law
be giving up not only the right to a reasonable to view Sydnor’s cold conspiracy claim, a business
jury, but also the right to (a) a shoulder of Leasing Services as conspiracy claim, and a negligence
judge; (b) appellate review; (c) at meaning that the Leasing Services’ claim. These claims might not
least some discovery rights; and holding should be limited to its “arise under” the contract, even if
(d) arguably, even the right to have facts — i.e., that Leasing Services related factually to the transaction
the case decided based on the law is effectively a dead letter. Like effected by the contract. A properly
and the terms of the contract; while the law of the Supreme Court of drafted jury trial waiver would
(e) having to face substantial case- Virginia, the law in federal court include, at a minimum, any
initiation and arbitrator fees (so now seems to be: you signed it, you disputes “related to” or “in
long as they are not so large as to are stuck with it. And you can cite connection with” the agreement to
bar a remedy altogether). In other Sydnor for that proposition. capture not only breach of contract
words, the law appeared to make it claims but any cause of action
easier to give up more rights than 2. Drafting. based on the underlying
less. Drafting a jury trial waiver transaction.
In 2001, the Fourth Circuit requires two major considerations: Here are a couple of broad-form
revisited jury trial standards in how to make the provision examples:
Sydnor v. Conseco Fin. Servicing “conspicuous” in compliance with
Corp., 252 F.3d 302 (4th Cir. the federal cases, and whether to “JURY TRIAL WAIVER: THE
2001). Some very sharp lawyers draft it broadly or narrowly. PARTIES HEREBY
representing a consumer who had On the first point, the case law KNOWINGLY,
signed an arbitration agreement suggests that a court will find a VOLUNTARILY AND
attempted to use the more provision to be conspicuous if (a) it INTENTIONALLY WAIVE
demanding standards for jury trial is formatted into its own paragraph, ANY RIGHT EITHER THEY
waivers to defeat an arbitration to avoid burying the provision in a OR THEIR HEIRS,
agreement and jury trial waiver. dense block of text; (b) appears in EXECUTORS,
The Fourth Circuit, without so a reasonable font size; (c) has a ADMINISTRATORS,
much as citing Leasing Services, good title, such as “jury trial PERSONAL
held that the arbitration agreement waiver”; and (d) appears in a REPRESENTATIVES,
was presumptively enforceable, typeface that distinguishes it from SUCCESSORS OR ASSIGNS
and that the jury trial waiver was surrounding text by making using MAY HAVE TO A TRIAL BY
enforceable because the waiver one or more of all caps, larger font JURY IN RESPECT OF ANY
was conspicuous and showed on its size or boldface.6 LITIGATION BASED ON THIS
face that it was made voluntarily One common drafting problem AGREEMENT, OR ARISING
and informally. The court said that with jury trial waivers is that they OUT OF, UNDER OR IN
the waiving parties should have are often drafted narrowly to cover CONNECTION WITH THIS
read the contract, and whether they disputes “arising under this AGREEMENT OR ANY
actually read it was “irrelevant.” Agreement.” In the modern AGREEMENTS
The Sydnor court said nothing wonderful world of contract CONTEMPLATED HEREBY,
about bargaining power. It said litigation, the breach of contract OR ANY COURSE OF
nothing about relative claim in a dispute is oftentimes CONDUCT, COURSE OF
sophistication of the parties. It was only the starting point in a DEALING, STATEMENTS
as if Leasing Services never existed. complaint drafting exercise that (WHETHER VERBAL OR
In the wake of Sydnor, a very takes the reader on a tour of the WRITTEN) OR ACTIONS OF
good argument can be made that if law of business torts. Disputes THE PARTIES RELATED
a jury trial waiver is presented in arising out of a common set of HERETO. THIS PROVISION
sufficiently conspicuous manner in facts could include all of a breach IS A MATERIAL
SEPTEMBER 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/15
INDUCEMENT FOR THE makers of varying levels of
ABA NEWS BRIEF EXECUTION OF THIS experience and qualifications; a
AGREEMENT BY THE judge trial involves decision
PARTIES.” makers of varying levels of
Grey will focus on “JURY TRIAL WAIVER:
experience and qualifications, but
you will get a person who is a full-
jury issues during BOTH PARTIES HEREBY
WAIVE ANY RIGHT TO
time adjudicator likely with
ABA presidency TRIAL BY JURY IN ANY
extensive experience.
7. Highly articulated contracts
Robert J. Grey Jr. of Richmond, ACTION, PROCEEDING OR
containing arbitration clauses
the new president of the American COUNTERCLAIM BASED
present a contradiction. The parties
Bar Association, has announced HEREON OR RELATING TO
spent time laying down very
that he will devote his term to THE SUBJECT MATTER OF
specific rules — and then turn
creating better administration of THIS AGREEMENT.”7
them over to an arbitrator who has
justice through better juries via the
American Jury Initiative. The 3. Waiver Pros and Cons. no legal obligation to obey the
Initiative has organized two groups Here is a start on a list of terms of the contract.
to accomplish that goal — the considerations that might be 8. The right to judicial review of
American Jury Project, which is discussed with a client in deciding arbitration is very limited; a judge
working to produce a single set of to seek a waiver: trial result is subject to essentially
modern jury standards the ABA can 1. A “jury of your peers” may be the same right of appeal as
propose as a model, and a blue- skeptics if you are a car dealer, involved in a jury trial.
ribbon Commission on the high-interest lender, home 9. Many painful aspects of a jury
American Jury that will be working improvement outfit, or just about trial are present in a judge trial,
on outreach to the public, the any other business that deals including discovery and motions
profession and the courts.
regularly with the general public. practices. Arbitration, while moving
The reform effort comes as a new
public opinion poll, released by the On the other hand, an individual toward replicating these burdens, can
ABA, reveals that Americans have a dealing with an institution be somewhat streamlined in these
profound belief and trust in the jury generally wants a jury. areas. Some believe the overall costs
system, and disproves the popular 2. Conventional wisdom indicates of arbitration are lower than a judge
notion that Americans consider jury that if you anticipate being on the trial. Many disagree. Again, take
duty to be a burden to be avoided. “defendant” end of a lawsuit you your pick. VBA
Three-quarters of those polled don’t want a jury, but if you
rejected the assertion that jury duty anticipate being the “plaintiff” you NOTES
is a burden to be avoided. Instead, want a jury. An exception to this rule 1. At least in Virginia you can. In other states,
the poll revealed that Americans are highly-charged parties, such as for example Georgia, predispute jury trial
strongly believe that jury service is waivers may be ineffective.
your car dealer, high-interest lender, 2. Seventh amendment does not apply to
important even if it seems
inconvenient — a belief held even etc. They want to avoid juries state courts. See Walker v. Sauvinet, 92 U.S.
90, 92 (1875); Melancon v. McKeithen, 345
more strongly by those who have whether plaintiff or defendant. F. Supp. 1025, 1045 (E.D. La.), aff’d sub
previously been called to jury duty. 3. A non-jury trial is often more nom. Hill v. McKeithen, 409 U.S. 943 (1972)
Even beyond “important,” 58 quickly scheduled, less expensive, (per curiam); Davis v. Edwards, 409 U.S.
1098 (1973) (per curiam) (affirmation of
percent consider jury duty a and less traumatic for witnesses Melancon court that held that the Walker
privilege, and a responsibility they than a jury trial. In some areas of result would be reaffirmed by the Supreme
look forward to fulfilling. the country, arbitration might be Court today).
Moreover, a large majority of 3. Federal cases holding that the right to a
faster than even a judge trial; in jury trial may be waived include: Kearney v.
Americans — 75 percent — would Virginia, however, arbitration Case, 79 U.S. (12 Wall.) 275, 281 (1870);
want a jury, rather than a judge, to probably does not have a speed Bank of Columbia v. Okely, 17 U.S. (4 Wheat.)
decide their case if they were ever 235, 244 (1819). The leading state case is
advantage over judge trials.
a participant in a trial. Azalea Drive-In Theatre, Inc. v. Sargoy, 214
Grey is also working to review, 4. Arbitration can involve fairly S.E.2d 131 (Va. 1975).
unify and update ABA programs to substantial up-front fees, as well as 4. Hitachi Credit Am. Corp. v. Signet Bank,
1997 U.S. Dist. LEXIS 21499 * 29 (E.D. Va.
increase diversity in the legal substantial arbitrator fees. A judge 1997) (Judge Payne).
profession, to advance the ABA’s trial involves a fairly nominal up 5. 531 U.S. 79, 121 S. Ct. 513, 522, 148 L. Ed.
international rule of law efforts, and front filing fee. 2d 373 (2000).
6. These drafting types are based on factors
to safeguard the profession’s 5. Some believe that a judge trial relied upon in Hitachi Credit Am. Corp., 1997
independence. or arbitration is more predictable U.S. Dist. LEXIS 21499 at * 29-30 to uphold a
Grey, a VBA member, is a partner in outcome than a jury trial. Some jury trial waiver.
in the law firm of Hunton & Williams don’t. Take your pick. 7. This form is based on the term upheld in
LLP. Leasing Services.
6. Arbitration involves decision
16/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
YOUNG LAWYERS DIVISION
Central Va. Pro Bono Moot Court regional competition will be Nov. 19-20
Hotline seeks volunteers; in Richmond; lawyers needed to judge prelims
training set for Oct. 26 Every year, the Young Lawyers Committee of the Association of the
The VBA/YLD Central Virginia Bar of the City of New York and the American College of Trial Lawyers
Pro Bono Hotline is looking for sponsor the National Moot Court Competition in New York, N.Y. In
new volunteers of all ages and November, prior to the national rounds, regional rounds of argument are
stages of legal experience. held throughout the United States.
The Hotline, which has been The VBA Young Lawyers Division sponsors the regional round for
recognized by the American Bar Region IV – consisting of teams from North Carolina, Virginia, West
Association for outstanding public Virginia, and Kentucky. All of the entrants compete on Friday in the
service, helps the Central Virginia preliminary rounds, arguing as Petitioner in one round and Respondent in
Legal Aid Society (CVLAS) handle a second round. On Saturday, the leading teams move to the quarter- and
the thousands of requests for legal semifinals until two teams compete in the final round. Winning and
assistance that it receives each second-place teams become eligible to enter the national rounds.
year. Hotline volunteers return Members of the Virginia bar judge the preliminary rounds. Virginia
phone calls to pre-screened clients Fellows of the American College of Trial Lawyers judge the quarter- and
with specific legal problems during semifinal rounds. Federal judges and state Supreme Court justices judge
scheduled hotline hours. the final round and participate in the giving of awards.
For a typical attorney with a This year’s competition is being held November 19-20 at the federal
hectic schedule, volunteering for courthouse in Richmond. As always, volunteers from the bar are needed
the Hotline is a wonderful and to judge the preliminary rounds on Friday, as well as Fellows to judge the
feasible way to incorporate pro quarter- and semifinal rounds on Saturday.
bono work into a legal career. If you are interested, please contact Monica McCarroll at (804) 783-
Volunteers receive three hours of 6444 (mmccarroll@williamsmullen.com) or M. Eve Campbell at (804)
CLE-approved training in housing, 783-6487 (ecampbell@williamsmullen.com).
domestic, consumer and
employment law; commit three to Volunteers wanted to partner with grade-
six hours of pro bono service each
calendar quarter; gain experience
schoolers in Richmond Lunch Buddy Program
in counseling clients on a wide The Richmond Lunch Buddy volunteers. Last year the program
variety of legal matters; and Program is gearing up for the 2004- had 45 volunteers and was able to
provide much-needed legal 05 school year. Volunteers are provide a lunch buddy for every 3rd-
assistance to those who otherwise needed to serve as lunch buddies grade student. This year, the
could not afford it. for 3rd- and 4th-grade students at program’s goal is to provide a lunch
A training session for volunteers Whitcomb Elementary School in the buddy for every 3rd- and 4th-grade
will be held from 5:30 to 8:45 p.m. city of Richmond. Volunteers student. For those who volunteered
on Tuesday, October 26, at the commit to having lunch with their last year, every effort will be made to
Richmond office of Hunton & buddy at least once a month during pair you with the same student as last
Williams (Riverfront Plaza, East the school year (twice preferred). year. The year will kick off with a
Tower, 20th Floor). The program is extremely flexible; short orientation and pizza party with
Please RSVP for the training volunteers set their own schedules the lunch buddies in mid-October.
session to Coby Beck, and can visit the school anytime If you are interested in finding out
cbeck@hunton.com, or Sean Beard, during the month. The school is more about this program or are
sbeard@hunton.com. Dinner will approximately 10 minutes east of willing to volunteer, please contact
be served to participants. downtown Richmond, and the lunch Caroline Browder, (804) 783-6462,
period is only 30 minutes, so it is cbrowder@williamsmullen.com;
VBA/YLD is honored not a huge time commitment. Andy Sherrod, (804) 697-1231,
The Lunch Buddy Program has andrew.sherrod@troutmansanders.com;
at ABA Annual Meeting! been a tremendous success and or Rudene Mercer Bascomb, (804)
See page 20 of this issue. great fun for the students and 788-7363, rmercer@hunton.com.
See www.vba.org/division/yld.htm for more opportunities to get involved with the VBA/YLD!
SEPTEMBER 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/17
COMMUNITY SERVICE PROGRAM
Defining Superstars
by Alfred M. Randolph Jr., Co-Chair, VBA Community Service Program Council
The VBA’s Community Service extraordinary commitment of hours This summer, I attended the Pro
Program was founded to encourage to community service and pro bono Bono Awards Luncheon at the
Virginia lawyers to engage in publico legal work in a given year. Virginia State Bar Annual Meeting
community service and to Thankfully, my fellow subgroup and in Virginia Beach and sat next to
recognize lawyers who devote a Council members quickly grounded an attorney from another part of the
certain amount of time to such those ideas and focused our work state who had returned to law
service. The efforts of our on the fact that community service school after rearing several
Community Service Program and pro bono publico legal work by children. She had opened her own
Council in the first half of the lawyers, even at modest levels, are law practice a few years ago and
inaugural year of our Program have worthy of our praise and, in many had developed a thriving practice
been focused principally upon instances, truly constitute in domestic relations. As we
encouraging lawyers to sign up to commitments of superstar talked during lunch, she shared
become 2004 VBA Community proportions. with me her schedule and that of
Servants and/or VBA Pro Bono My own understanding of and her husband. She typically arrives
Servants. appreciation for this perspective at the office at 8 a.m. after driving
However, an important message has come slowly but has been her granddaughter (for whom she
should be gleaned from the work of forged by my own, personal cares) to school, she works until 6
those who designed and are experience. My wife and I now p.m., returns home, prepares
promoting this Program. While have three young boys (9, 4 and dinner for her family, returns to the
extraordinary commitments of time 2), I have a busy and demanding office at 8 p.m., and works until
and resources by those who are law practice, and, yes, I have midnight. Her husband rises at 4
positioned to make such made many commitments to a.m., commutes two hours to work,
commitments certainly merit community service work. Each returns home at 4 p.m. to pick up
universal acclaim, it is the quiet, time we added a child to our his granddaughter from school and
persistent, albeit more modest, family, the number of hours in the care for her. He goes to sleep at 8
devotion of time and resources by day seemed to shrink. Juggling p.m. In sharing this with me, she
those engaged in the delicate family, career and community also shared with me her
balancing act of family, career and service became increasingly commitment to pro bono publico
community that is just as worthy of difficult. The bottom line of this legal work. Albeit modest in
recognition and praise. growth curve has been my gradual magnitude, she somehow fits pro
When the Community Service development of the realization that bono publico legal work into her
Subgroup of the VBA’s Strategic it’s okay to say “no” to requests to amazing schedule. To me, even
Group on New Dimensions of give of time or resources to though her commitment of hours is
Professionalism was charged in community service which unduly modest in magnitude, she is a pro
2001 with designing a program to infringe upon other priorities in our bono “superstar” in every sense of
promote community service and lives. In other words, the juggling the word, clearly worthy of our
pro bono publico legal work, we act in which we’re all engaged is recognition and praise.
nearly fell prey to the temptation to truly a remarkable feat, It was examples like this which
define noteworthy commitment to particularly when all the balls led our subgroup to design a
community service and pro bono happen to stay in the air for a Community Service Program which
publico legal work as commitments sustained period of time! In short, established relatively modest hour
of extraordinary numbers of hours don’t measure your work by the thresholds (50 hours) for
to this work. In addition, I even magnitude of your commitment, but recognition. Some will dedicate
suggested to our later-formed rather by its quality. Engage in many more than 50 hours, but we
Community Service Program community service work, but avoid recognized that many who dedicate
Council that we bestow an annual over-commitment that prevents you 50 are making tremendous
award upon a Virginia lawyer who from meeting previously made sacrifices to do so.
had demonstrated the most commitments. The point is that the practice of
18/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
law is a jealous mistress, as is
raising and providing for a Look for the yellow buttons:
family. But Virginia lawyers have
always found a way to give VBA Community Service Program
something back while somehow
“keeping all the balls in the air.”
Our Council’s message is simple;
gets more exposure around Virginia
if we all do our part, even if
Gant Redmon, chair of the
modest in magnitude, we can
VBA Law Practice
accomplish some remarkable Management Division and
things. member of the VBA Board of
So be secure in knowing that a Governors recently received
commitment of 50 hours a year to the Alexandria Bar
community service and/or pro Association’s Don Mela
bono publico legal work for many Community Service/Pro Bono
constitutes a superstar effort in Award, which is presented to an
and of itself, worthy of attorney in recognition of
recognition. And that’s precisely outstanding community service
what your Community Service and/or pro bono work.
Redmon, shown at left with
Program is designed to do, even
then-President Tom Cullen, who
if your hourly commitment is presented the award, was chosen
modest in magnitude, because for his many community service
even your modest commitment is activities, including VBA
remarkable in its own right. Community Service Program
There is still time to become a membership, and wore his yellow Community Service Program button to the
VBA Community Servant or Pro award presentation (see inset). A past president of the Alexandria Rotary
Bono Servant! Forms and details Club and past chair of the Alexandria Chamber of Commerce, he was named
are available online at Alexandria’s Business Leader of the Year for 1995 and chaired a task force
www.vba.org. VBA which developed a vision for Alexandria in the 21st century. He was special
counsel to the Presidential Inaugural Committee in 1981, 1985 and 1989.
Two international geological congresses convened in the United States
To join the VBA Community Service selected him as their general counsel, as did the Desert Storm National
Program, visit the Community Victory Celebration in 1991. An active alumnus of Beta Theta Pi, he currently
Service Program page on the VBA serves as the fraternity’s vice president. is a past-president of its Washington
website at www.vba.org, print out area alumni association and was active in securing housing for Beta Theta
a commitment form for “VBA Pro Pi’s Maryland chapter. He chaired the Sigma Rho (University of Illinois
Bono Servant” or “VBA Community chapter) Centennial Fund, a capital campaign to fund chapter house
Servant” and complete it, then restoration, and has been a facilitator at the Fraternity’s Institute for Men of
send it to the VBA office. Principle.
You’ll commit yourself to perform VBA Board of Governors
50 hours of pro bono publico legal member Greg St. Ours of
service or nonlegal community Harrisonburg and Past President
service this year. Later, you’ll Jeanne Franklin of Alexandria
receive a form to report your (right) were among the volunteers
service to the VBA, and early in who staffed a Community Service
2005 the Association will publicly Program booth/recruitment
recognize lawyers who have center at the Virginia State Bar
completed and reported their Annual Meeting in Virginia Beach
service. this summer. A number of VBA/
If you’re looking for service CSP leaders and volunteers have
opportunities, the web page been out and about at various
includes links to a number of statewide and local bar events
organizations which could use this year, promoting the
your help. Community Service Program and
encouraging lawyers to sign up,
Questions? Just give us a ring at and will continue to do so through
(804) 644-0041 if you don’t find the end of this year. Attorneys who
all the details you need on the complete their commitments will
website. Make the commitment be recognized publicly in early
today! 2005.
SEPTEMBER 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/19
ACROSS THE COMMONWEALTH Changes at the high
courts: Baldwin, Mays,
VBA Young Lawyers Division continues Annunziata announce
pending retirements
its winning streak at Atlanta meeting Virginia’s courts system will
experience considerable change in
The Virginia Bar Association’s much-honored Young Lawyers Division early 2005, when three major
has continued its winning ways. At the American Bar Association Annual figures plan to retire from the
Meeting in Atlanta last month, it was announced that the VBA/YLD had Supreme Court and the Court of
received several honors in Division IC of the ABA Young Lawyers Appeals of Virginia.
Division’s annual Awards of Achievement Competition covering 2003-04. Robert N. Baldwin, executive
The VBA/YLD received a first place in the Comprehensive category for secretary of the Supreme Court of
its overall programs and activities, a second place in service to the public Virginia, will end three decades of
for its Advance Medical Directives Project, chaired by Molly Shuttleworth service to the court when he retires
Evans, and special recognition for service to the bar for its Professionalism March 30. A former national
and Civility in Practice seminar, chaired by Daniel Ortiz and presented in president of the Conference of Court
Fairfax in the fall of 2003. Administrators, he received the
Matt Cheek of Williams Mullen, a VBA/YLD Executive Committee 1999 Warren E. Burger Award from
member, compiled the extensively documented entries for submission in the National Center for State Courts
the competition with assistance from other VBA young lawyer leaders and in recognition of his contributions to
Association staff. King Tower, also of Williams Mullen, is the current the field of court administration.
chair of the VBA Young Lawyers Division, while Steve Otero of Troutman Also at the Supreme Court,
Sanders LLP headed the VBA/YLD in 2003. Director of Judicial Planning Kathy
VBA Labor Relations & Employment Law L. Mays, who has presented
memorable and informative
Conference meets Sept. 30-Oct. 2 in Reston programs on challenges facing the
court system at VBA meetings, will
The 34th Annual VBA Labor of Hunton & Williams LLP in step down in early 2005 as well.
Relations and Employment Law Norfolk. Around the corner at the Court of
Conference will be held September Guest speakers will include Joseph Appeals, Judge Rosemarie
30-October 2 at the Hyatt Regency J. DuBray Jr., national director of Annunziata of Fairfax has announced
Reston. policy, planning and program her retirement, effective January 1,
The conference will focus on a development for the Office of Federal to pursue other interests. She is a
number of current issues in labor and Contract Compliance Programs, U.S. former VBA Executive Committee
employment law, such as high-tech Department of Labor; Richard (now Board of Governors) member.
employee monitoring and individual Bensinger, former director of
privacy rights, the attorney’s role in organizing for the AFL-CIO and Voter registration
hostile environment investigations,
negligent hiring and retention,
founder of The Organizing Institute;
and James A. Batson of Liddle &
deadline is Oct. 4
protecting trade secrets, spoliation of Robinson LLP in New York City. While Virginians follow the 2004
evidence, aspects of the Fair Labor A number of VBA Labor Relations Presidential and Congressional
Standards Act and Sarbanes-Oxley and Employment Law Section campaigns in preparation for
legislation, practice with the Office of leaders and members, including VBA Election Day, it should be
Federal Contract Compliance President-elect Jim Meath, will also remembered that October 4 is the
Programs, and the new union lead workshops and participate in deadline for registering to vote in
approach to organizing. panel discussions. the November 2 elections.
“The Ethical Implications of Robert J. Barry of Kaufman & Two proposed constitutional
Improper Conduct in Discovery and Canoles PC in Norfolk serves as amendments, on apportionment and
at Trial” will be an interactive chair of the VBA Labor Relations succession to the office of
clinical-video presentation with and Employment Law Section. Governor, will also be on the ballot
commentary by Hon. Jane Marum More details, including this year. For details and other
Roush of the Fairfax Circuit Court, registration information and a full voter information, see the State
W. David Harless of Christian & schedule of events, are online at Board of Elections website at
Barton LLP, and James P. Naughton www.vba.org, www.sbe.state.va.us.
20/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
ADR Joint Committee active in 2004 Capital Defense
Workshop is Oct.28-
29 in Richmond
The 12th Annual VBA Capital
Defense Workshop will be held
October 28-29 at the Richmond
Marriott.
The workshop is sponsored by
the VBA Criminal Law Section and
is financially assisted by the
Virginia Law Foundation.
Attorneys representing
defendants charged with capital
murder or sentenced to death must
attend at least six hours of
specialized training in capital
litigation and an additional four
Founders of ADR in Virginia are honored during the VSB Annual Meeting in Virginia hours of forensic evidence training
Beach: (L-R) award recipients Mark Rubin and Frank Morrison, immediate past chair as set forth in §19.2-163.8(A) of
Jack Donohue, Chief Justice Leroy Hassell, VBA President-elect Jim Meath and award the Virginia Code. Attendance at
recipient Barbara Hulburt. the entire Workshop will satisfy the
The Virginia Alternative Dispute Resolution Joint Committee has been training requirement and provide
active throughout the Commonwealth in 2004. an opportunity to hear leaders in
In January 2004, the Committee had a business meeting, followed by a the field of capital defense.
reception, at the VBA Annual Meeting in Williamsburg. The next day, the Forensics training will focus on
Committee sponsored a CLE program, “Arbitration in Virginia – Past, DNA evidence and forensic
Present and Future.” Both events were well-attended and generated a medicine. Other session topics
great deal of enthusiasm. include current issues in capital
In March, the Council met to discuss plans for the upcoming year. defense, future danger, obtaining
The next event was in June at the Virginia State Bar Annual Meeting at out-of-jurisdiction witnesses,
Virginia Beach. Following a networking refreshment break sponsored by unifying the guilt and penalty
The McCammon Group, there was a CLE seminar entitled “Advance phases, counseling the client to
Mediation II/Use of the Caucus.” accept a life sentence, and the
At the conclusion of the program, The Honorable Leroy Hassell, chief ethical obligation to investigate
justice of the Supreme Court of Virginia, presented “The Founders of mitigation.
ADR in Virginia” award to Barbara Hulburt, Larry Hoover, Alan Rudlin, Ten hours of MCLE credit (one
Frank Morrison and Mark Rubin. Immediately following the presentation, ethics) is anticipated.
there was a business meeting open to all Virginia ADR Joint Committee This program is provided for
members. attorneys seeking qualification for
The Advance Mediation II CLE was offered again at the VBA Summer capital defense and willing to
Meeting, on July 16 at The Homestead. accept appointment in such cases.
This month, the Committee is sponsoring, jointly with the Virginia A nominal charge of $30 is
Mediation Network, a CLE entitled “Advocacy in Mediation,”an all-day required to cover the cost of lunch
program offered at four different locations around the state. and continental breakfast. Pre-
The Council will meet again on October 19 to discuss plans for registration is required to ensure
2005and is already recruiting people to assist with planning activities in admission; walk-ins may not be
honor of March as Mediation Month for 2005. guaranteed admission, as the
“We encourage those who are interested to enroll in the Joint Committee workshop usually attracts a
and to become involved,” said Karen Keyes, chair of the Joint Committee. capacity crowd.
Membership is $25 per person per year and includes a number of More information and a printable
benefits, such as a newsletter, opportunities for continuing legal education version of the registration brochure
and professional networking. Information and a registration form are may be found on the VBA website
available on the Joint Committee’s page at www.vba.org/comm/ at www.vba.org; a link to workshop
adrjtcom.htm. information is available on the
home page.
SEPTEMBER 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/21
Corporate counsel gather October 18 at Omni Richmond for Fall Forum
ABA President Robert Grey, UR two-hour interactive ethics Williams LLP in Richmond chairs
Law School Dean Rodney Smolla, presentation tailored for corporate the VBA Corporate Counsel Section.
former U.S. Labor Department counsel, focusing on “new and The Fall Forum will offer six
lawyer Tammy D. McCutchen and dangerous trends.” CLE credits (2 Ethics) to
ethics authority Tom Spahn will be The day-long conference will attendees.The conference fee
among the featured speakers when also feature a session on recent includes continental breakfast and
The Virginia Bar Association’s legislative developments impacting lunch for each participant.
Corporate Counsel Section hosts its the business community, with Complete schedule and
Sixth Annual Fall Forum on comments from David Shuford, registration information has been
October 18 at the Richmond Omni. vice president of Dominion Energy, mailed to VBA Corporate Counsel
Grey will deliver the keynote Virginia Manufacturers Association Section members and is posted on
address. Smolla’s topic will be President Brett Vassey, and Steve the Section’s activities page at
“Corporate Liability for Corporate Haner, vice president for public www.vba.org. Non-VBA members
Speech,” and McCutchen’s subject policy of the Virginia Chamber of are invited to attend at a higher
will be “Overtime: Are You in Commerce. registration cost.
Compliance?” Spahn will lead a Heidi W. Abbott of Hunton &
Tax practitioners’ annual roundtable is Oct. 29 CLASSIFIED ADS
The VBA Taxation Section will The Taxation Section will hold a
hold its 15th Annual Virginia Tax buffet luncheon for roundtable
CONSULTING SERVICES
Legal Nurse Consultant — nationally
Practitioners’ Roundtable on October participants and a business meeting certified. 20 years broad-based nursing
29 at Farmington in Charlottesville. following the morning programs. experience. Specialize in medical-surgical
Continuing legal education credit Craig D. Bell of McGuireWoods and gero issues. Personal injury or medical
approval is pending for the half-day LLP in Richmond chairs the VBA malpractice? No problem! Will travel if
program. Subjects for discussion Taxation Section. needed. Corrick & Associates. (703) 328-
include recent developments in Registration is limited to members 1055. kcorrickrn@cox.net.
Virginia taxation, revising the tax of the VBA Taxation Section and is
appeals process, legislative and available on a first-come, first- POSITIONS AVAILABLE
administrative initiatives. served basis. Full registration The Northern Virginia Criminal Justice
Academy is seeking a legal instructor. This
Participants are encouraged to bring information has been mailed to
position is responsible for instructing
concerns, questions, tips and section members and is available on police officer and deputy sheriff trainees/
comments to the roundtable for the section’s webpage at students in both the Basic Schools and In-
sharing and learning with colleagues. www.vba.org. Service training programs; preparing
lesson plans; preparing test questions;
conducting research and preparing
NEWS IN BRIEF publications. For a more complete
description and requirements please visit
www.nycja.org.
Lynn Brackenridge, MS, CFRE, is the profession. Jacob was inducted on
The VBA News Journal offers classified
new executive director of the John August 8 at the Annual Meeting of the advertising. Categories available are as
Marshall Foundation. Members of the American Bar Association in Atlanta. follows: positions available, positions
foundation’s board of directors are John Robert D. Seabolt, managing partner of wanted, books and software, office
S. Barr, president; J. Edward Betts, vice Troutman Sanders LLP and a member of equipment/furnishings, office space,
president; Elizabeth S. Kostelny, the Executive Committee of the VBA experts, consulting services, business
services, vacation rentals, and educational
secretary; C.B. Arrington Jr., treasurer; Law Practice Management Division, opportunities. Rates are $1 per word for VBA
and directors Edward C. Campbell Jr., Hon. became chairman of the board of members and $1.50 per word for non-
Harry L. Carrico, Dr. David C. Collins, Allen Leadership Metro Richmond in July. members, with a $35 minimum, payable at
C. Goolsby, Ralph B. Higgins, and Hon. LMR seeks to educate, energize and the time of submission. Ad costs must be
paid in advance. The VBA News Journal
Donald W. Lemons. connect emerging and established reserves the right to review all ad copy before
Lynn F. Jacob, a partner in the labor leaders in the Richmond area. publication and to reject material deemed
and employment practice at Williams Susan C. Armstrong, a VBA member unsuitable. Professional announcements may
Mullen, has been elected as a fellow of and partner at Troutman Sanders LLP in be printed; the cost per announcement is $15
the College of Labor and Employment Richmond, is the new president-elect of and text may be edited for style and space
limitations. Deadlines are one month in
Lawyers. This honor is the highest the National Association of Railroad advance of the date of publication (August 1
recognition by one’s colleagues of Trial Counsel. for September, etc.). Information is available
sustained outstanding performance in the online at www.vba.org, or call for details at
(804) 644-0041.
22/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SEPTEMBER 2004
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case summaries,
services of MassMutual Financial Group, is administered by
Dean Hardy and Howard DiSavino Jr. of Richmond. core concepts and
The program offers VBA members a great variety of personal exclusive content
and business insurance and financial services. Through make your research easier. From the new attorney just starting
MassMutual, Dean and Howard offer life, disability income and a practice to the seasoned litigator who delves into a new area
long-term care insurance plans in addition to employee benefit of law, LexisNexis provides unique offerings that are affordably
programs and business-oriented services. Health insurance*, priced and easy to customize as business needs change over
college tuition funding plans, retirement planning, estate time. Call 1-800-356-6548 to take advantage of your exclusive
analysis and other investment** services are among the other Member Benefit.
available features. Professional liability insurance has recently • The VBA Worldpoints MasterCard
been added to the list of offerings. The MassMutual long-term is an exclusive offer for members
care product is available at a 10 to 15 percent discount, through MBNA America, now available
depending on age, to VBA members. The disability income with no annual fee. The face of each
insurance policies are also available to VBA members at card displays the VBA logo, which
discounts starting at 10 percent. instantly identifies you as an attorney
Visit www.virginiabarristersalliance.com on the Internet to and a VBA member. Apply by phone, 1-
learn more about the wide range of insurance coverage options 800-847-7378, code KAQ0.
for VBA members and other Virginia legal professionals, or call • The VBA Law Practice Management Division has an
1-800-358-7987 or (804) 270-5128. agreement with the American Bar Association to sell ABA books
• Your VBA membership guarantees you special discounts to all members of The Virginia Bar Association — at a 20%
with DHL Express. With DHL Express you can expect guaranteed discount. You can visit
domestic services the VBA website, click on
—- next morning, a link to the Book
next afternoon, Program (www.vba.org/
second day, and books.htm), peruse a list
ground. You can of books with pricing information, and print out an order form to
also count on send to the VBA office with your payment. (ALL books published
outstanding international services to more than 220 countries by the ABA — not just the ones listed on the VBA website — are
and territories around the world. Take advantage of your VBA available with the 20% discount. You must, however, place
membership and sign up today for savings on all of your express your order through the VBA in order to get the discount.) Other
shipping needs with DHL Express. Call 1-888-758-8955 or log arrangements are offered to VBA members without Internet
on to www.airexpressadvantage.com to sign up and receive a access.
free welcome kit. (Mention the special code CJC3 for VBA • Receive substantial
members.) discounts on Virginia’s
• Display your VBA membership Historic Courthouses, by
certificate in an elegant frame John O. and Margaret T.
featuring Italian hardwood Peters, when purchasing the book through the VBA. A
moulding, True Conservation handsome addition to any home or law firm library, the book
matboard with the Scales of Justice is also a great gift! Call 1-800-644-0987 for rate information
embossed in gold, a fibrex and to place your order.
backboard and brass-plated fittings • Every VBA Section member in good standing
with a wire hanger! Framing receives a summary of legislation pertaining to
Success is the exclusive supplier of that Section at the close of the General Assembly
certificate frames to the VBA and Session in the spring of each year. This valuable
offers frames that will fit your service is lauded annually by Virginia attorneys!
certificate perfectly — there is no
need to send in your treasured document for framing. Orders *Not offered through MassMutual.
** Securities offered through MML Investors Services, Inc., 4510 Cox
are shipped within 2 to 4 weeks of your order. Framing Success Road, Suite 200, Glen Allen, VA 23060, (804) 346-1011. Massachusetts
is a member of the Professional Picture Framers Association Mutual Life Insurance Company (MassMutual) and other companies.
and the invitation-only Fine Arts Trade Guild. Visit them on the Springfield, MA 01111-0001.
October 26, 2004
CALENDAR OF EVENTS Central Virginia Pro Bono Hotline Training
Hunton & Williams LLP, Richmond
October 1-2, 2004 October 28-29, 2004
VBA Labor Relations & Employment Law Conference VBA Capital Defense Workshop
Hyatt Regency Reston Richmond Marriott
October 14, 2004 October 29, 2004
VBA/LPMD & Southwest RAC Professional Skills VBA Virginia Tax Practitioners Roundtable
Development Seminars Farmington, Charlottesville
Pulaski and Abingdon November 18-20, 2004
October 15-17, 2004 National Moot Court, Region IV Competition
VBA Board of Governors Meeting U.S. Courthouse, Richmond
Martha Washington Inn, Abingdon January 20-23, 2005
October 18, 2004 115th VBA Annual Meeting
VBA Corporate Counsel Fall Forum Colonial Williamsburg
Omni Richmond February 9-15, 2005
October 21-24, 2004 ABA Midyear Meeting
Southern Conference of Bar Presidents Meeting Salt Lake City
Biloxi, Mississippi July 14-17, 2005
October 22-23, 2004 115th VBA Summer Meeting
Boyd-Graves Conference The Greenbrier
Omni Richmond
For more details, please visit our website at www.vba.org or call the VBA office at (804) 644-0041.
A complete calendar of events with links to additional information is posted on the website.
Watch upcoming issues of the VBA News Journal for details of the
2005 Annual Meeting, January 20-23 in Colonial Williamsburg!
Dates and locations are confirmed for the 2005 and 2006 VBA Summer Meetings:
July 14-17, 2005 — The Greenbrier •July 20-23, 2006 — The Homestead
VBA• •
The Virginia Bar Association
701 East Franklin Street, Suite 1120
Richmond, Virginia 23219
(804) 644-0041