Chief Justice Harry L. Carrico has established the Gender Bias in the Courts Task Force to examine whether gender bias exists in Virginia’s courts. As part of this examination, the Task Force will hold public hearings during April and May at six locations throughout the state. Several of the 23 Task Force members will be present at each location to listen to public comments on experiences and perception about whether gender affects treatment in the courts.
While all comments are welcome, the Task Force is particularly interested in receiving testimony on the effects of gender with respect to the following topics: equal access to the courts for domestic matters; child support; custody and visitation; spousal support and equitable distribution; domestic violence; sexual offenses; treatment of attorneys, witnesses, jurors and litigants; and treatment of court users by court employees.
To accommodate as many speakers as possible, each speaker will have a maximum of five minutes. However, written statements will be accepted.
The Task Force was established in 1998 to eliminate discrimination based upon gender in the court system. Chief Justice Carrico charged the Task Force to research and identify areas of gender bias in the Virginia court system; study the overall process within the Virginia court system for handling allegations of misconduct based on gender discrimination; recommend ways to raise the conscience and sensitivity of judges, lawyers and court personnel to gender issues in the court system; and recommend training packages for each segment of the court system so as to institutionalize a gender fairness approach to all issues.
The blue-ribbon Task Force, chaired by Justice Elizabeth B. Lacy, is composed of representatives of all levels of the judicial system, as well as the bar, civic organizations, business and the community. In addition to the public hearings, the Task Force’s research involves focus groups, court observation, surveys, and examination of court records. The Task Force is being assisted in its research by staff of the National Center for State Courts. The Task Force will conclude its work early in 2000.
Hearings will be held on the following dates:
April 8: Richmond City Council Chambers, 900 E. Broad St., Richmond, 6:30 p.m.
April 15: Norfolk City Council Chambers, 10th Floor, 810 Union St., Norfolk, 6:30 p.m.
April 22: Roanoke County Administration Center, 5204 Bernard Drive, Roanoke, 6:30 p.m.
April 29: Fairfax County Government Center, 12000 Government Center Pkwy., Fairfax, 7 p.m.
May 6: Virginia Highlands Community College, Learning Resource Center, Abingdon, 6:30 p.m.
May 13: Chandler Hall/Shenandoah Room, James Madison University, Harrisonburg, 6:30 p.m.
For more details, contact Beatrice Monahan at the Supreme Court of Virginia, 100 N. Ninth St., Richmond VA 23219, (804) 786-6455. Return to Top
by David Craig Landin
In 1888, The Virginia Bar Association was organized as a voluntary statewide
association of lawyers devoted to “cultivating and advancing the science
of jurisprudence; promoting reform in the law and in judicial procedure; facilitating
the administration of justice in this state; and upholding and elevating the
standard of honor, integrity and courtesy in the legal profession.”
When the need for a unified bar entity became obvious, our then-leaders undertook
a 13-year legislative advocacy which resulted, in 1938, in the formation of
the Virginia State Bar as an agency of the government of the Commonwealth to
regulate the profession, serving the essential disciplinary and other functions
that a state body could perform.
This reform consciously retained for the VBA, as a voluntary organization, the
freedom to continue to perform our historical mission through a number of means,
including law reform and public service undertakings.
The Virginia Bar Association has taken as a core part of this responsibility
the task of identifying and studying issues of broad scope and importance to
the Commonwealth. This function is exercised by the Young Lawyers Division,
our sections and committees (just one example: the recent Williamsburg general
session on human cloning) and our broad leadership through our Executive Committee
and staff.
This effort, however, is so important to us as responsible citizen-lawyers that
I have reinstituted the Committee on Special Issues of State and National Importance
in the last year as a kind of informal “think tank.” The Committee
will not only challenge us to learn, but to remember to look beyond the many
other important but more narrowly focused aspects of our professional lives.
As reported to you in the January VBA News Journal, the Committee is
a “blue-ribbon” one, composed of lawyers, judges, business leaders,
educators, and legislators at the state and national levels. Former Governor
Jerry Baliles, as chair, has formed subcommittees on education and environment,
globalization, national security, infrastructure, financial issues, and citizenship.
The Committee as a whole has already met twice and the subcommittees are functioning.
As a participant, I can tell you the meetings are challenging and stimulating,
reminding me of the fun of productive committee work and of what important topics
are on our horizon.
The Committee is creating relationships with each of the law schools in the
state. Several schools have agreed to offer as a seminar one or more of the
topics identified by the Special Issues Committee. Committee members may assist
in teaching. Law students will do research and writing which is expected to
yield work product to be the fodder for programs, Town Hall Meetings, debates
and articles. Some of this will greatly inform our legislative priorities.
The topics range from the role of the jury in present-day litigation to antitrust
regulation in a global economy to whether Virginia’s state and local government
and tax structure can be effective in the current day to the new Standards of
Learning and the issues surrounding regulatory takings. These and many others,
such as new threats of cyberterrorism, are under discussion.
The work of the Special Issues Committee is a great gift to our Association.
While no panacea, it should help the VBA keep attentive to our role in the development
of public policy in the Commonwealth.
If there is a theme for us, as reflected in this Committee, it is that we accept
our chosen role of personal and professional responsibility continually to press
to learn broadly and to lead thoughtfully so that we can be not only good lawyers,
but also enlightened and contributing citizens.
With pleasure, the Committee roster follows:
Hon. Gerald L. Baliles, Chair
Carole M. Agee
Edward D. Barnes
William W. Berry
Thomas C. Brown Jr.
Ann T. Burks
Hon. M. Caldwell Butler
R. Harvey Chappell Jr.
Rev. George E. Conway
James A.L. Daniel
Darragh Davis
Dr. James A. Davis
Dr. Deborah M. DiCroce
C. Thomas Ebel
Hon. Helen Fahey
Hon. V. Thomas Forehand Jr.
Robert J. Grey Jr.
Hon. Randall G. Johnson
Alexander Macaulay
Hon. John O. Marsh
Dr. Thomas R. Morris
Hon. W. Tayloe Murphy Jr.
Hon. Sharon E. Pandak
John R. Reilly
Frank W. Rogers Jr.
C. Edward Russell Jr.
Anne B. Shumadine
Deanis L. Simmons
Dr. Timothy J. Sullivan
F. Blair Wimbush Return to Top
The 1999 General Assembly is over. Virginia’s delegates and state senators
have packed their bags and gone home, where many of them are already planning
their campaign strategies for the November legislative elections. And The Virginia
Bar Association, like other organizations which offered legislation for the
Assembly to consider, has assessed the performance of its proposals among the
3,000 or so bills and resolutions put before legislators during the 46-day session.
The verdict: Overall, a successful session, with several worthy triumphs, few
tragedies, and renewed efforts for the next Assembly’s consideration.
The important proposal put forward by the VBA Health Law Section and an alliance
of health care interests in respect to health care decisions (SB 1174) passed.
The bill, introduced by Sen. Jane Woods (R-Fairfax), modified the provisions
on advance directives, Do Not Resuscitate (DNR) Orders and judicial treatment
decisions to clarify judicial health care decision-making authority, and created
a portable durable DNR order. The bill also confirmed the validity of documents
issued or consented to under previous law.
The VBA Coalition on Family Law, spearheaded by the indefatigable Betty Thompson
of Arlington, achieved several victories. Chief among them: SB 1085, patroned
by Sen. Joseph Gartlan (D-Mason Neck), and HB 2407, patroned by Del. William
Barlow (D-Smithfield), both of which resulted from the Coalition’s study
conducted in 1998 in response to HJR 141. Both bills defined a “day”
for shared custody purposes, replacing the use of a specified number of days
as an automatic trigger for shared custody and changing the multiplier from
1.25 to 1.5 to allow a more gradual decrease in child support for any given
number of days of visitation or custody.
The Virginia Bar Association has been requested to conduct a study of the insanity
defense in juvenile delinquency proceedings, in advance of the 2000 General
Assembly.
The Construction and Public Contracts Law Section proposed three amendments,
two of which passed, to the Public Procurement Act. A fourth proposal, regarding
construction contracts, also survived the session.
The Wills, Trusts and Estates Section again proved to be highly effective in
the General Assembly, with only one failure (a prohibition against certain persons
serving as fiduciaries) and a host of successes. The Prudent Investor Rule Uniform
Act and the Uniform Principal and Income Act both made it through this year’s
session, as did eight other Section proposals. The Section also opposed a bill
regarding the rule against perpetuities and inter-vivos transfers, which ultimately
failed.
The Business Law Section scored a coup with its endorsement of the passage of
HB 1873, which authorized the Virginia State Corporation Commission to broaden,
narrow or further condition the limited offering exemption contained in the
Virginia Securities Act.
Restrictions on funding of legal services for non-residents of Virginia, opposed
by the VBA, were watered down. The Association endorsed the $250,000 supplement
of additional funds for legal services, as it did the 6.25 percent salary increase
for Virginia judges.
Judge Robert Frank of Newport News was named to the Court of Appeals of Virginia
to fill the pending vacancy caused by Judge Nelson Overton’s announced
retirement. Judge Frank was among the four candidates recommended by the VBA.
As with every session, however, there were some disappointments.
Only one VBA-supported bill in the judicial arena, requiring published notice
of judicial vacancies, passed. However, this is the first time any VBA proposal
related to judicial selection has survived the Assembly, and the Judiciary Committee
remains undaunted in its efforts. In the coming year, committee members plan
to work even harder on developing proposals, gathering input and fostering support.
A Boyd-Graves Conference recommendation authorizing attorneys to issue summonses,
subpoenas and subpoenas duces tecum in pending civil litigation passed the Senate
but failed in the House.
A bill to increase compensation of appointed counsel, supported by the Civil
Litigation, Criminal Law and Domestic Relations Sections, was quashed but is
expected to reappear in future Assembly sessions. Return
to Top
by Roderick B. Mathews
The Politicization of Managed Healthcare
The search continues for efficient and fair, user-friendly, level playing field means of resolving claims and provider disputes arising from managed healthcare.
“Patients’ rights” initiatives in the Virginia General Assembly,1 in Congress and among the other states, indicate a change of direction in the public policy of healthcare delivery.
Managed healthcare is here to stay — it has improved prevention and enhanced treatment for chronic disease and, while anecdotes abound, there is no conclusive proof that quality is lower. Its purposes remain the same including managing access to medical care, particularly specialty care.
But healthcare consumer skepticism persists and the related public policy issues have been politicized; for example, the growing number of government-sponsored or managed appeals procedures external to the managed care company.
Hence, the search goes on for managed healthcare dispute resolution methods which would be fair and efficient, readily accessible, and useful to the consumer, the provider, and the managed care company.
Such remedies are available by means of a well established and proven effective process: alternate dispute resolution. With few notable exceptions, ADR is little known or used in managed healthcare. The advantages of ADR compared to litigation are persuasive: ADR offers speed and efficiency, low cost, voluntariness, privacy and confidentiality, and non-precedent setting solutions; all by means of the use of neutral, nonpartisan skilled third-party facilitators or decision makers. The participants in managed healthcare — consumers, providers and managers of care — would be smart to embrace ADR in response to continuing consumer skepticism and as an alternative to the growing list of remedies and other regulation being imposed by government-sponsored or managed programs in the current public policy political debate.
The Status of Managed Care Dispute Remedies
ERISA preempts traditional tort and contract state law remedies. While alternative state law remedies are evolving through litigation and political action, remedies are limited by ERISA to those provided in the patient’s health benefit plan contract; typically a progression of internal reviews, including an expedited process. Consumer organizations have been joined by healthcare providers in pushing for resolution of treatment or coverage disputes by means independent of the managed care organization. The response has been a patchwork quilt of statutory and regulatory adjustments to the balance of power among patients, providers and managed care organizations through legislation, from state to state. Now Congress is engaged in the debate. The Republican losses in the House in the November 1998 elections and Mr. Gingrich’s resignation have spawned various partisan Congressional initiatives on “patients’ rights” in the 106th Congress.
The Department of Labor is responsible for defining remedies available to participants in benefit plans, including managed healthcare. While the DOL supports improved ERISA remedies, it has only proposed draft revisions to existing regulations.
Oklahoma engaged in an experiment with the DOL that gave the Oklahoma Department of Insurance first crack at resolving managed care complaints. The effect seems to have been that Oklahoma regulators have more clout with the health plans. Oklahoma has sought an extension of the arrangement and, in California, former Governor Wilson’s administration expressed interest. Such agreements do not affect ERISA preemption of state law but, rather, give state regulators some oversight by dealing with consumer complaints first.
One of the biggest issues in the search for new dispute resolution procedures is about appeals external to the managed care company.
Neither the grievance procedures required of federally qualified HMOs nor the fairness standards of the Blue Cross/Blue Shield Association provide for external independent appeals. Federally qualified HMOs are required only to provide a grievance procedure “organized in such a manner that provides meaningful procedures for hearing and resolving grievances.” The BCBS Association’s standards does not go beyond the suggestion that disputes be resolved by “interactive process involving qualified physicians and knowledgeable patients.”
Also, neither the Standards of the National Committee for Quality Assurance (“NCQA”), the principal private certifier of managed care companies, nor the Model Healthcare Grievance Procedure Act of the National Association of Insurance Commissioners (“NAIC”) provides for external independent appeals. But, the NAIC’s External Grievance Review Working Group published on 1/15/99 its “Issue Paper” which outlines the issues it will deal with in creating a model for external appeals.
According to the NAIC issues document on “issues involving external grievance review procedures” — 17 states have provided for some form of external appeal with variations such as which state regulators are involved, what organizations’ decisions are eligible, who may request external review, what decisions are eligible, dollar thresholds, cost sharing requirements, exhaustion of internal review procedures, funding, qualification of the reviewer, conflict of interest, standard of review, time frames, binding nature of decisions, attorney’s fees, confidentiality requirements, liability of the reviewer and data reporting. Virginia will join those 17 states for insured and government managed healthcare programs if Governor Gilmore signs SB 1235 as it passed both Houses of the Virginia General Assembly.
The Center for Health Dispute Resolution, an organization independent and external to Medicare, reviews all cases in which the manager of care does not decide fully in favor of a Medicare enrollee. In California, former Governor Wilson’s “Principles for Managed Care Reform” include the mandate that the California legislature shall determine the fairness and adequacy of grievance procedures, when and how to provide a second medical opinion, and how to establish an independent third-party review of medical necessity for the specific treatment of serious illness.
It appears that the American Association of Retired Persons has reservations about the wisdom of external appeals to determine medical necessity and appropriateness but, in regard to ERISA claims procedures, it has commented that the only way to assure fairness is by having a fiduciary outside of the plan review cases.
Also, the Consumer Coalition For Quality Healthcare has developed a model state law providing for external review and expedited appeals.
On February 22, 1999, the Board of Directors of the American Association of Health Plans endorsed external appeals of health plan benefit decisions as a positive alternative to patient protection legislation.
Congress Is Considering Statutory Standards for Resolving Managed Care Disputes
Proposed federal legislation would establish national standards for relationships among managed care organizations, healthcare providers and patients.
The “patients’ rights” debate in the 105th Congress ended on October 9, 1998, when the Senate voted 50-47 against Senator Daschle’s motion to bring on HR 4250, the “Republican Working Group’s” proposal which passed the House on July 24 by a vote of 216-210.2 Other failed proposals in the 105th Congress included Congressman Norwood’s (R-Georgia) HR 1415 which had 230 co-sponsors, and former Senator D’Amato’s (R-NY) Senate companion S 644. The bills provided for HMO accountability for managed care decisions and grievance and appeals procedures, including third party appeals. Republican leaders were opposed to the Norwood/D’Amato proposals. A coalition of House and Senate Democrats introduced S 1890 (Daschle (D-South Dakota)) and HR 3605 (Dingell (D-Michigan)) that dealt with a host of managed care issues, including grievance and appeal procedures.
In the 106th Congress, Congressmen Norwood and Dingell and Senator Daschle have introduced bills similar to their 105th session proposals HR 216, (HR 1415), HR 358, (HR 3605) and S 6 and S 240 (S 1890), respectively. Their 106th bills are not duplicates of last session’s, but all would still amend ERISA to allow enrollees in employer-sponsored plans (or their estates) to sue health plans under state law for personal injury or death. The bills would also protect employers from suits as long as the action that led to the suit did not result from a decision made by the employer.
In addition, Senate Majority Leader Lott has introduced S 300 and Congressman Bilirakis (R-Florida) has introduced HR 448 being the Senate and House versions of the Republican Working Group’s 105th Congress initiatives. Neither S 300 nor HR 448 would amend ERISA to allow employees to sue their healthcare plans in state courts.
Senator Chafee (R-Rhode Island) has introduced S 74 to the 106th Congress which would not delete the ERISA shield but, rather, revise the “shield” to provide that HMOs might be liable, but only for economic loss attributable to injury due to delay or denial of covered treatment.
Most recently, Congressman Ganske (R-Iowa) introduced HR 716 that would amend ERISA to allow states to pass legislation removing the ERISA shield but with immunity for employer-sponsored health plans from punitive damages under certain circumstances.
The gulf between Republican and Democratic principles of “patients’ rights” remains broad and deep.
Playing loud and clear in the background of the debate is the 1998 Report of the President’s Commission on Consumer Protection and Quality in Healthcare which includes language supporting the right of health plan enrollee to an independent system of external review when services or payments are denied because the plan determined that the case is not medically necessary or is experimental or when the enrollee’s life or health is jeopardized.
So, managed healthcare has been politicized. The public policy debate to date has produced a tendency toward government-sponsored or managed external appeals. It appears, however, that the ADR model for healthcare dispute resolution would be preferred by the managers of care, the providers, and the consumers as an alternative to both the courts and government-sponsored or managed external appeal procedures.
The Joint National Commission on Healthcare Alternate Dispute Resolution
The three largest medical, legal and alternate dispute resolution organizations — the American Medical Association, the American Bar Association, and the American Arbitration Association — have joined to develop models for alternative means of resolving managed healthcare disputes. The Commission proposes model ADR techniques and fairness standards as additional or alternative means for healthcare dispute resolution, internal or external.
The advantages of alternate dispute resolution are particularly compelling in the managed healthcare context. In addition to speed and efficiency, low cost, privacy/confidentiality and non-precedential resolution, other positive considerations include: avoiding the win/lose confrontation of the court room and maintaining the possibility of continued business or personal relationships; ready accessibility; and enhanced perception of fairness through the use of independent neutrals.
An additional effect could well be more satisfied enrollees with better employer-employee relationships resulting in less demands on HR capacity and fewer complaints to and investigations by state regulators, with reduced costs and bureaucracy. Other compelling advantages are avoiding the diversion of resources inherent in litigation or government appeals and the enhanced possibility for remedies custom-built for the parties which, in the nature of the litigation process, the courts and bureaucrats often cannot accomplish. Central to all of those advantages is the use of a neutral; that is, a person without bias who is trained in the skills of ADR who should disarm a managed care organization’s concern that unqualified, biased or unskilled consumer zealots might seize the process.
The forms of ADR most amenable to managed care dispute resolution include:
Ombuds: A neutral third party that receives information on disputes and investigates proposed settlements confidentially.
Fact Finder: An impartial third person or team who examines the complaint, considers the facts and issues a non-binding report.
Mediator: An impartial third person who helps the parties discuss their disputes and assists them in reaching a settlement. Mediation successfully resolves 85 percent of the disputes that make use of the process.
Arbitrator: One or more impartial persons who review the dispute using established procedures and issue a final, binding decision.
ADR for managed healthcare is particularly appropriate to situations where the need for unique, confidential, non-precedential disposition is critical; for example, where rules are unclear or are ambiguous or where the stakes for the interested parties are very high and stress or the need for retribution or other strong emotion is present. At the same time, care must be exercised not to overburden managed care ADR resources with either frivolous claims involving misunderstandings or miscommunication, or, disputes of such high technical complexity as to defy resolution, or, efforts to ignore the unequivocal provisions of a managed care or insurance contract. Managed healthcare ADR is particularly appropriate in disputes involving length of stay; medical appropriateness of place or provider; situations requiring early coordination of treatment by various disciplines such as mental health or substance abuse planning and planning for outcomes among medical, social, psychological, legal and ethical experts; reduction or termination of services; over or under utilization of resources or facilities; inter-family disputes about patient treatment; physician or patient concerns about utilization incentives or disincentives; bioethical conflicts; healthcare staff disagreements; access to appropriate procedures and equipment; access between providers and outside networks; and, in general, disputes involving non-monetary outcomes.
Conclusion
The policy-making bodies within each of the three sponsoring organizations — the American Medical Association, the American Bar Association and the American Arbitration Association — have approved the Report of the Joint National Commission on Healthcare ADR as each organization’s policy; most recently by the ABA House of Delegates at its winter meeting in February 1999.
The report of the Joint National Commission is available at each of the sponsoring organizations’ websites, having been first published on Saturday, August 1, 1998, at Toronto during the course of the ABA Annual Meeting where the report was the showpiece of a well-received panel presentation: “Issues of ADR in Healthcare: A Report of the Work of the ABA/AAA/AMA Commission on Healthcare Dispute Resolution.” The recommendations are expressly not applicable to medical malpractice and are not intended to be a means of seeking construction of unequivocal contract provisions which do not need interpretation. So, managed healthcare ADR is the policy of the three biggest legal, medical and ADR organizations in the world.
As an additional or alternative means of resolving healthcare disputes, internal or external to a managed care company, ADR will decrease public skepticism about the willingness of managed care companies to resolve disputes on a level playing field; will enhance public trust in managed care process and outcomes; and will demonstrate in the pending public debate that healthcare managers have joined in the search for fair and efficient, user-friendly means of resolving managed healthcare disputes.
Notes
1. See ‘99 session Senate Bill 1235 and Senate Joint Resolution 489, for examples.
2. On June 24, 1998, the House Republican Working Group unveiled its election year proposal (HR 4250; S 2330). The working group chair J. Dennis Hastert (R-Illinois) is House Speaker in the 106th Congress. He described the proposal then as providing patients with necessary protections without new taxes, bureaucracy or the heavy hand of government.
Other failed proposals in the 105th Congress included Congressman Norwood’s (R-Georgia) HR 1415 which had 230 co-sponsors, and former Senator D’Amato’s (R-New York) Senate companion S 644. The bills provided for HMO accountability for managed care decisions and grievance and appeals procedures, including third party appeals. Republican leaders were opposed to the Norwood/D’Amato proposals. A coalition of House and Senate Democrats introduced S 1890 (Daschle, D-South Dakota) and HR 3605 (Dingell, D-Michigan) that dealt with a host of managed care issues, including grievance and appeal procedures.
ABOUT THE AUTHOR: Roderick “Rod” B. Mathews practices with
Hazel & Thomas, P.C., in its Richmond office. He was one of the four ABA
representatives on the 12-member Joint National Commission on Healthcare Alternate
Dispute Resolution. He is a member of the VSB/VBA Joint Committee on ADR and
chairs the ABA Dispute Resolution Section’s Healthcare Committee. A former
chair of the VBA/YLD, he is a member of the Virginia State Bar’s Fee Dispute
Resolution Panel for the Thirteenth Judicial Circuit. Mr. Mathews is a certified
mediator under the Rules of the Supreme Court of Virginia and is a member of
the American Arbitration Association’s Commercial Arbitration Panel. He
is a volunteer mediator and arbitrator for the Dispute Resolution Section of
the Central Virginia Better Business Bureau. Return to
Top
Robert L. Haig, Editor-in-Chief, ABA Section of Litigation (West Group, 1998) (six volumes)
Reviewed by James C. Roberts and Robert L. Brooke, Mays & Valentine, L.L.P.
In publishing this six-volume set, the American Bar Association’s Section
of Litigation undertook an ambitious yet laudable goal: to provide a concise,
clear and easily understandable compendium on business and commercial litigation,
one of the least written about areas of the law. The Section of Litigation invited
a number of experienced attorneys and judges to contribute to this work. More
than 700 volunteered. As many as 122 volunteered to write one chapter, and 50-75
offered to write others. Eventually, 152 authors from some of the country’s
best firms collaborated to write this 7,000 page work within one year after
the authors were solicited.
Several of the authors practice with Richmond-based firms. For example, Alan
Rudlin and Doug Kenyon of Hunton & Williams collaborated to write the chapter
on “Copyright,” and Clifford Oviatt and Carter Younger of McGuire
Woods Battle & Boothe authored the chapter on “Labor Law.” Jurist
authors include the Honorable Roger Vinson, Chief Judge of the United States
District Court for the Northern District of Florida (author of the chapter “Removal
to Federal Court”) and the Honorable Harold Baer Jr. (author of the chapter
“Alternative Dispute Resolution”).
In the set’s foreword, its editor, Robert L. Haig, aptly and succinctly
summarizes the challenge faced daily by business litigators:
There are books on federal practice and procedure but no other publication focuses
on business and commercial litigation. Business litigation is typically more
complex than other kinds of litigation. It often involves technical, arcane
subjects unfamiliar to many lawyers and most certainly to jurors, complex issues
and subtleties as well as ramifications that may extend far beyond any particular
lawsuit ... Unlike many other forms of litigation, commercial litigation is
largely at the behest of corporate clients. Corporate America increasingly and
justifiably demands high quality, strategically focused and cost effective litigation
from lawyers who do battle on its behalf.
Mr. Haig kept his eye on the ball and, we are happy to say, has delivered a
wonderful reference
work for the commercial litigator.
The first three volumes of the set focus on procedural issues, such as jurisdiction,
pleading, discovery, trial practice, damages, fees, costs, sanctions and enforcement
of judgments. The remaining three volumes focus on substantive causes of action
common to most business and commercial litigation cases: antitrust, securities,
contracts and insurance, to name a few. Each of the 80 chapters, in turn, covers
its subject in precise and sparing detail. As Mr. Haig suggests in his foreword,
the work is aimed not to present a scholarly dissertation on the fine points
of commercial litigation, but instead to focus the reader’s attention on
how to best accomplish his or her objectives: [e]ach chapter guides the reader
step by step with a nuts and bolts exposition on the law, procedure and practice
in the field including delineation and achievement of objectives; the first
considerations in assessing a case and how to proceed; the factors that would
influence choice of strategy; steps to advance or secure the positions of both
plaintiff and defense; the information necessary to planning trial or settlement
strategy; characteristic problems and their solutions; issues to raise with
clients; and considerations regarding discovery, motion practice, expert and
lay witnesses, trial preparation, trials, and other matters that are unique
to the field of law under discussion.To accomplish these goals, the typical
chapter begins with an in-depth outline, followed by a scope note, a section
of strategy and analysis, essential allegations and defenses, procedural considerations,
a checklist of allegations and defenses, a checklist of sources of proof for
the essential allegations and defenses, illustrative pleadings, and, finally,
jury instructions (where applicable). Far from being arcane or pedantic, each
chapter is replete with practical considerations and black letter law. Library
references are to specific West Key No. Digests and to Wright, Miller &
Marcus, Federal Practice and Procedure: Civil 2d. Substantive sections contain
case and law review citations (there are over 25,000 cases cited in the work).
Many chapters conclude with a practical feature called a “Practice Checklist,”
which is cross-referenced to the preceding portions of the chapter. Finally,
the form pleadings that follow most chapters are also on the computer disks
that accompany the series.
[One of our only criticisms about the series involves the computer disks. They
are in Corel® WordPerfect® 5.1 format, which is fine if that is your
word processing program. If your firm uses a Microsoft platform (like ours),
you may either view a converted version of the form, or download the form and
allow Word to convert it permanently. In either case, you are never quite certain
that the form has survived the conversation process intact. In any event, in
the future we recommend that the West Group include two versions of the disks
with the volume to prevent computer anxiety we suffered in reviewing the forms
on them.]
Another useful feature of the set is its ease of use. Not only is every chapter
presented in a no-nonsense format (similar to that of the Lawyer’s Edition
of Federal Practice), but the set has several helpful means of finding the substantive
content of each chapter. For example, the set begins with a table of contents,
followed by an in-depth outline for each chapter. Each chapter in turn is preceded
by an in-depth outline. The final volume then provides a table of all of the
jury instructions in the set, as well as a table of forms (the computer disks
provided with the set also contain a table of the forms). Also included in the
final volume is a table of statutes, a table of cases, and an unusually detailed
index.
An interesting feature of the set is its juxtaposition of chapters on procedural
and tactical subjects, such as “Investigation of the Case,” “Discovery
Strategy and Privilege,” and “Motion Practice” with chapters
on “Franchising,” “Contracts,” “Insurance” and
“ERISA.” Some of the more unusual, yet useful, chapters include such
subjects as “Bankruptcy Code Impact on Civil Litigation in the Federal
Courts,” “Final Arguments in Bench and Jury Trials,” and “Litigating
International Disputes in Federal Courts.”
Business and Commercial Litigation in Federal Courts is above all a survey work,
and not intended as an in-depth treatment of its covered subjects. Despite that
premise, however, the work more than adequately covers the salient points of
each subject, so that a harried litigator may be comfortable in relying on its
content as either a starting point for more in-depth research, or a last-minute
substitute for the same.
We heartily recommend this unique work. It is a useful addition to the library
of any litigator who handles civil litigation in federal court. Moreover, it
is replete with helpful and practical advice for practitioners in all courts.
Kudos to the ABA Section of Litigation for once again perceiving a need and
rising to meet it. Return to Top
SECTION CHAIRS
Administrative Law: James R. Kibler Jr., Richmond
Mezzullo & McCandlish, P.C.
Bankruptcy Law: Dennis T. Lewandowski, Norfolk
Kaufman & Canoles, P.C.
Business Law: Robert B. Webb III, Falls Church
Hazel & Thomas, P.C.
Civil Litigation: Stephen C. Price, Leesburg
McCandlish & Lillard, P.C.
Construction & Public Contracts Law: Jeffrey L. Mincks, Chesterfield
Deputy County Attorney
Corporate Counsel: Amy T. Holt, Richmond
Trigon Blue Cross Blue Shield
Criminal Law: Prof. Roger D. Groot, Lexington
Washington & Lee University School of Law
Domestic Relations: Glenn C. Lewis, Fairfax
The Lewis Law Firm, P.C.
Elder Law: Greer P. Jackson, Richmond
Spinella, Owings & Shaia, P.C.
Environmental Law: William B. Ellis, Richmond
McSweeney, Burtch & Crump, P.C.
Health Law: Gregory T. St. Ours, Harrisonburg
Wharton, Aldhizer & Weaver, P.L.C.
Intellectual Property Law: Marshall M. Curtis, Reston
Whitham, Curtis & Whitham, P.C.
Judicial: Hon. Tristram T. Hyde IV
Judge, Lancaster General District Court
Labor Relations & Employment Law: Michael F. Marino, McLean
Hunton & Williams
Law Practice Management: Theodore L. Chandler Jr., Richmond
Williams, Mullen, Christian & Dobbins, P.C.
Real Estate: Hugh T. Harrison II, Richmond
Williams, Mullen, Christian & Dobbins, P.C.
Taxation: D. French Slaughter III, Charlottesville
McGuire, Woods, Battle & Boothe, L.L.P.
Transportation Law: Albert M. Orgain IV, Richmond
Sands, Anderson, Marks & Miller, P.C.
Wills, Trusts & Estates: Peter M. Huber, Norfolk
Willcox & Savage, P.C.
COMMITTEE CHAIRS
Access to Justice: Robert L. Brooke, Richmond
Mays & Valentine, L.L.P.
VSB/VBA Joint Committee on Alternative Dispute Resolution: Barbara L. Hulburt,
Richmond
Access Family Mediation, McCammon Mediation Group, Ltd.
Awards: G. Franklin Flippin, Roanoke
Flippin, Densmore, Morse & Jessee
Commission on the Needs of Children: Prof. Robert E. Shepherd Jr., Richmond
University of Richmond School of Law
Communications Group: J. Edward Betts, Richmond
Christian & Barton, L.L.P.
Executive Committee: Jeanne F. Franklin, Alexandria
Federal Judgeships
Eastern District: John M. Ryan, Norfolk
Vandeventer Black L.L.P.
Western District: Robert C. Wood III, Lynchburg
Edmunds & Williams, P.C.
Honoring Members & Judges: John S. Barr, Richmond
McGuire, Woods, Battle & Boothe, L.L.P.
Judiciary: John Barry Donohue Jr., Richmond
Reynolds Metals Company
Legal Education & Admission to the Bar: Michael C. Guanzon, Danville
Clement & Wheatley, P.C.
Membership Group: H. Victor Millner Jr., Chatham
H. Victor Millner Jr. & Associates, P.C.
Committee on the Needs of the Mentally Disabled: Matthew D. Jenkins, Richmond
Hunton & Williams
Nominations to Virginia Commissions & Appellate Courts: Thomas F. Farrell
II, Richmond
Virginia Power
Professionalism Group: Thomas E. Spahn, Richmond
McGuire, Woods, Battle & Boothe, L.L.P.
Section & Committee Development Group: Lane R. Gabeler, McLean
Gabeler, Battocchi & Griggs, L.L.C.
Special Issues of State & National Importance: Hon. Gerald L. Baliles,
Richmond
Hunton & Williams
Substance Abuse: Thomas O. Bondurant, Richmond
Bondurant & Benson, P.C. Return to Top
What better way to orient new leaders to the possibilities of their positions
than by highlighting their peers’ success stories?
When Section and Committee Development Group Chair Lane R. Gabeler planned The
Virginia Bar Association’s annual Leadership Conference at the Omni Richmond
on March 3, she asked VBA Treasurer John Fletcher to introduce five case studies
of successful programming.
VBA/YLD Chair-Elect Jim Ingold described the Division’s varied public service
projects that have made a difference in many lives, including those of the volunteer
lawyers.
Professionalism Task Group Chair Tom Spahn explained how the VBA created a professionalism
program and has taken it on the road to local and specialty bars throughout
Virginia.
Corporate Counsel Section Chair Amy Holt shared the story of how the section
rejuvenated itself in 1998, sponsoring a Summer Meeting general session and
planning a section conference for September 1999, among other innovations.
“1998 was just flat fun for us!” exclaimed an ebullient Greg St. Ours,
chair of the Health Law Section, in relating how that section injects vibrance
and diversity into its activities. “We shoot for the stars! It doesn’t
mean we’ll always get there, but we’ve got the basics.”
Transportation Law Section Chair Al Orgain, armed with a sheaf of press clips,
advised other chairs on how to use public relations and communications, both
through the VBA and other groups, for maximum visibility.
Orgain’s comments echoed those made earlier by Communications Task Group
Chair Ed Betts and Communications Coordinator Caroline Bolte, who discussed
the VBA’s continuing communications efforts and how sections and committees
can assist with such elements as the VBA website, articles and news items for
the VBA News Journal, and media relations. Bolte also led a “virtual tour”
of the VBA website.
The agenda also included greetings from Gabeler, President David Craig Landin
and President-Elect Anita Poston. Administrative Director Sandy Thompson provided
an overview of the 1999 calendar and VBA staff structure.
Tips on achieving legislative success were offered by Executive Committee Chair
Jeanne Franklin and Executive Committee member and Delegate Butch Davies (D-Culpeper),
while Executive Vice President Breck Arrington reviewed fates of VBA proposals
in the just-ended General Assembly.
Former Gov. Gerald Baliles, chair of the Special Committee on Issues of State
and National Importance, made an introductory presentation about the committee’s
membership, activities and plans.
In closing, Past President Phil Stone contributed a few thoughts about professionalism.
“We ought to have an image of a lawyer who does the kinds of things we’ve
heard about today. It’s important that the VBA carry the water in creating
the image of a Virginia lawyer...What we’ve talked about today—these
are the important things and will live a lot longer than how rich or powerful
we are." Return to Top
The Freedom of Information Act, updates on recent legislation and Administrative
Law Advisory Committee studies, environmental administrative law, a hearing
officer’s deskbook and ethics for administrative lawyers will all be on
the plate of programs served to participants in the Fifth Annual Administrative
Law Conference, to be held at the Omni Richmond on Thursday, May 13.
The conference is cosponsored by the VBA Administrative Law Section, chaired
by James R. Kibler Jr. of Mezzullo & McCandlish in Richmond, and the Administrative
Law Advisory Committee, chaired by H. Lane Kneedler of Richmond.
Registration for the conference begins at 8:30 a.m., with a welcome by Kibler
and Kneedler at 9 a.m.
Professor Robert A. Anthony of George Mason University will deliver the keynote
address at 9:15 a.m. (NOTE: Senator Joseph V. Gartlan Jr.,
D-Mason Neck, will deliver the keynote address instead of Professor Anthony;
the change occurred after the April issue went to press.)
The conference, which includes lunch for registrants, is expected to end at
3:45 p.m.
VBA Administrative Law Section members will receive a brochure with registration
details. Information will also be available on the Section’s
activities page on the VBA website or by calling the VBA office at (804)
644-0041. Return to Top
Professor Robert E. Shepherd Jr., the longtime chair of the VBA Commission on the Needs of Children, was honored at the second symposium of a series celebrating the Centennial of Juvenile Courts in America on February 23 at the T.C. Williams School of Law at the University of Richmond. Shepherd, who gave the principal presentation at the symposium, was recognized as the first inductee of the newly commissioned Juvenile Court Hall of Fame, which also honored the late Judge J. Hoge Ricks for his contributions to child advocacy in the Commonwealth and nationally. Shepherd, a former law faculty representative on the VBA Executive Committee, received the Association’s Pro Bono Publico Award in 1997. The symposia are a highlight of the 100-day celebration of the 100th anniversary of juvenile courts in America. For details, visit the Centennial website at http://www.erols.com/jdrc-100.
Edwin C. Darden, a VBA member, has been appointed staff attorney for the National School Boards Association in Alexandria. A graduate of the State University of New York at Geneseo and the Georgetown University Law Center, he has worked in the field of public education law for many years as a private practitioner and a law firm associate. His resume includes stints as a legal reporter at Education Daily and as public relations officer for the Georgetown University Law Center.
Five VBA members were recently featured by the Virginia Business Observer as top “legal beagles,” counted among “the 10 hottest young lawyers to watch” in Hampton Roads. VBA/YLD Secretary-Treasurer David N. Anthony, VBA/YLD Executive Committee member Christopher S. Boynton, Lisa P. O’Donnell, Jeffrey L. Stredler and Jonathan L. Thornton all made the cut. Clearly, they’re not barking up the wrong trees...
It’s the last call for nominations for the Gardener G. DeMallie Jr. Award, to be presented next at this year’s VBA Summer Meeting. Criteria and a nomination form are available on the “Member News” page. Deadline: May 15. The nomination deadline for the Virginia Commission on Women and Minorities in the Legal System’s Distinguished Service Award arrives even sooner, on May 3. For criteria and submission guidelines, see the “Member News” page. Return to Top
On the afternoon of February 26, the Supreme Court of Virginia sat in session to hear 24 attorneys argue a series of cases.
The attorneys who appeared before the Court, however, were considerably younger than the lawyers who usually bring cases before the justices. And none of them expected landmark decisions.
They were finalists in the Model Judiciary Program, cosponsored by The Virginia Bar Association’s Young Lawyers Division and the Virginia YMCA.
Each year since 1975, the Model Judiciary Program has offered Virginia high school students an opportunity to experience the legal system firsthand, by arguing cases at local and appellate levels.
Approximately 2,000 Virginia students participate annually in the Model Judiciary Program. The program begins on the local level in September of each year, with students participating in mock trials before actual judges in November and December. The student-attorneys may then appeal to one of three panels of Virginia Court of Appeals judges, who hear appellate arguments from the students in January. At the conclusion of the appellate arguments, teams are chosen to argue their cases before the Supreme Court of Virginia.
Each student participating in the final round received a certificate. Although winners were announced for each case, the Model Judiciary Program awards no trophies, the premise being that every student who makes it to the final round is equally worthy of recognition.
Students selected to appear before the high court were as follows:
Lucas Kline, Blacksburg High, Blacksburg;
Ruchi Thanawala, Kenston Forest School, Blackstone;
Mariana Lopez, Michele Shea and Tony Gyepi-Garbrah, T.C. Williams High School, Alexandria;
Carrie Emerson, St. Catherine’s School, Richmond;
Brian Henriksen and Melissa Mefford, Harrisonburg High School, Harrisonburg;
Anna Bieneck and Devin Long, Spotsylvania High School, Spotsylvania;
Katherine Butler and Jerri Fuller, Tallwood High School, Virginia Beach;
Jason McClure and Emily Azukas, Robert E. Lee High School, Springfield;
Ahmed Almudallal and Long Tran, Robinson Secondary School, Fairfax;
Ayanna Fonseca, Ocean Lakes High School, Virginia Beach;
Emily Duke and Evan Wiener, Douglas S. Freeman High School, Richmond;
Jennifer Dawson, First Colonial High School, Virginia Beach;
John Ross, Cox High School, Virginia Beach;
Erin Frackleton, Jefferson Forest High School, Forest; and
Molly Janis and Matt Henigan, St. Stephen’s & St. Agnes’ Schools, Alexandria.
Attison L. Barnes III, a partner in the law firm of Gardner, Carton & Douglas in Washington, D.C., chairs the VBA/YLD Model Judiciary Program Committee. Chief Justice Carrico is the honorary chair of the Program.
Members of the Model Judiciary Program Committee include Gordon Vincent and James Szablewicz, Accomac; David Ervin, Alexandria; Kerri Taylor, Charlottesville; John Robertson, Christiansburg; Michael Holleran, Fairfax; Ann Powell, Fredericksburg; Joyce Ellingsworth, Hampton; Dawn Wine Ruple, Harrisonburg; Elizabeth White, Newport News; Bryan Fratkin, Richmond; Scott Johnson, Roanoke; Cynthia Cordle, Norfolk; Michael McGinty, Williamsburg; Suzanne Perka, Winchester; and Mark Coward and Ben Pace of the Virginia YMCA, Lynchburg.
Program Chair Attison Barnes presented the Honorable Johanna L. Fitzpatrick,
chief judge of the Virginia Court of Appeals, with a framed copy of the VBA
Creed in recognition of her decade of service to the Model Judiciary Program.
Return to Top
Copyright 1999 The Virginia Bar Association