Lean & Mean: The 2003 Assembly

Preceded by a slew of sliced state agency budgets and heralded by reports of more chopping to come, the 2003 General Assembly session could prove to be one of the leanest and meanest in Virginia history when it gets underway next month in Richmond.
In preparation, The Virginia Bar Association leadership gathered on November 19 for its annual legislative workday, at which section and committee chairs presented their legislative proposals for 2003. As bills of interest to the VBA are introduced, they will be posted on the Association’s website at www.vba.org. Future issues of the VBA News Journal will include updates on bill status and legislative activity. Click here for the legislative calendar for 2003. More information about the General Assembly may be accessed at leg1.state.va.us.

President's Page:
Speaking With One Voice
J. Edward Betts

It is well known that on every question the lawyers are about equally divided, ... and were we to act but in cases where no contrary opinion of a lawyer can be had, we should never act.
— Letter from Thomas Jefferson to Albert Gallatin, September 20, 1808

What was true in Jefferson’s day is most certainly true today. Our training in the adversary system causes us to think and react independently. As is often said, managing lawyers is like “herding cats.” Or that managing lawyers is “like being the caretaker of a cemetery. You are over a lot of people, but no one is listening!”
Beyond our trained individualism, in a day when the bar, like the society it reflects, has become more diversified and specialized, the profession has become more fragmented. When the VBA was founded in 1888 and was the only statewide bar association in Virginia, its members debated within one forum. Today, we have the following 14 statewide bar associations:

•Asian American Attorneys Association;
•Hispanic Bar Association of Virginia;
•Local Government Attorneys of Virginia;
•Old Dominion Bar Association;
•Virginia Association of Black Women Attorneys;
•Virginia Association of Commonwealth’s Attorneys;
•Virginia Association of Defense Attorneys;
•The Virginia Bar Association;
•Virginia College of Criminal Defense Attorneys;
•Virginia Creditors’ Bar Association;
•Virginia Real Estate Attorneys League;
•Virginia State Bar;
•Virginia Trial Lawyers Association; and
•Virginia Women Attorneys Association.

Of these, only The Virginia Bar Association and the Virginia State Bar serve the interests of the profession at large and not a specialty, gender, racial or ethnic segment of the lawyers of Virginia.

This is not to suggest that those more focused groups are not justified and important, but only to point out how diverse and fragmented our profession has become.

Yet it is critical to remember that we are all first and foremost Virginia lawyers. In this era of public distrust of lawyers, all of our lawyer organizations must do their best to complement, not compete, with each other.

Thus I am pleased to report the revival of the Presidents’ Council, the purpose of which is to provide a forum for all statewide bar organizations to meet and work together on items of common interest. At a meeting in 2001 of then-President Michael Glasser and President-elect Ben DiMuro of the Virginia State Bar and of Jeanne Franklin, then-President of the VBA, and me, it was determined to revive the Council, which had existed previously but had not operated for some time..

The Virginia State Bar hosted the 2001 meeting and The Virginia Bar Association hosted the second meeting this past September. At this latter meeting, it was gratifying to note the healthy participation that occurred and the consensus that evolved to work together on several matters of importance to the entire Virginia bar. These included cooperating in the selection process for statewide judicial positions; working together on matters related to this month’s banquet honoring the service of Chief Justice Carrico; speaking out together to protect the courts from undue cuts that could undermine their ability to function properly in this time of financial exigencies; and expressing our common belief to the General Assembly of the importance and rationale of judicial independence.

While our independent-thinking, diverse and specialized profession is as fragmented as I have ever known it to be, the revival of the Presidents’ Council offers the hope that at least on certain matters we can speak with one voice for all Virginia lawyers. This will be a far stronger voice than if our organizations spoke separately, and should benefit the public as well as the profession.

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Legal Focus/Civil Litigation:
Law and Equity in Virginia
Hon. D. Arthur Kelsey

The following article is edited from a memorandum presented by Judge Kelsey at the Boyd-Graves Conference, held October 25-26 in Norfolk.
We have been asked to consider whether Virginia should eliminate any distinctions between law and equity practice in our courts. To some extent, this can never happen. The law-equity distinction will always play a role in determining the right to a jury trial and the circumstances warranting various forms of prospective relief. But to the extent the distinction involves purely procedural differences, the law-equity dichotomy has far outlived its useful life and should be replaced by a unified set of procedural rules.

Historical Overview
English Roots. In medieval England, civil disputes unresolved by mutual combat often ended up in one of four sets of judicial forums: the royal or county common law courts, the ecclesiastical courts of the state-established church, the maritime courts of the port cities, or the court of the Lord Chancellor of England. The Lord Chancellor exercised jurisdiction in those instances where common law jurisdiction proved to be, in the Chancellor’s opinion, either incomplete or unjust. As the King’s appointee and often his close advisor, the Chancellor had sui generis authority which — depending on the relative degree of monarchial power at any given moment — could be used to supplement or even to supercede the authority of the common law courts. See generally 1 Dan B. Dobbs, Law of Remedies § 2.2, at 66-74 (2d ed. 1993).

Over time the Chancellor developed a custom of issuing coercive, prospective in personam remedies — ordering a man to transfer property, to cease and desist from some noxious conduct, to produce information for use in the law courts, to hold funds in a judicially imposed trust, and the like — enforced by injunctive and contempt powers. For decisional principles, the Chancellor drew upon maxims of “equity.” He discovered these maxims from theologians like Thomas Aquinas (indeed, the earliest chancellors were all prelates), as well as from ancient philosophical constructs developed by Aristotle. See generally Eric G. Zahnd, The Application of Universal Laws to Particular Cases: A Defense of Equity in Aristotelianism and Anglo-American Law, 59 Law & Cont. Problems 263, 265-73 (1996); Roger A. Shiner, Aristotle’s Theory of Equity, 27 Loy. L.A. Law Rev. 1245 (1994); 1 Dan B. Dobbs, supra § 2.3(1), at 74 (“Much of substantive equity derives from the dual role of the early Chancellors as both judge and bishop.”)

From his point of view, the Chancellor did not issue generally applicable “legal” rulings. Quite the contrary. It was the very universality of the common law precedents and their unbending quality that he might find, from time to time, unjust when applied to a specific set of circumstances. In “these and like cases,” St. Thomas Aquinas counseled, “it is bad to follow the law, and it is good to set aside the letter of the law and to follow the dictates of justice and the common good.” Eric G. Zahnd, supra at 271-72 (quoting St. Thomas Aquinas, Summa Theologica, Part II, 2d part, ques. 120, art. 1 (3d ed. 1942)).

Considering equity to be a “roguish thing,” common law scholars were altogether unimpressed with this ad hoc system of resolving disputes “according to the conscience of him that is Chancellor, and as that is larger or narrower so is equity.” Id. at 264 (quoting Table Talk of John Selden 43 (Pollock ed., 1927)). Inevitable conflict arose between the competing judicial bodies, producing a spirited assault on equity jurisdiction by Sir Edward Coke as well as a brilliant apologetic for equity by Lord Nottingham, known by later generations as the “Father of Equity.” See generally W. Hamilton Bryson, Virginia Civil Procedure 68-71 (3d ed. 1997).
Early American Experience. Article III of the U.S. Constitution invested federal courts with the power over all cases “in law and equity.” U.S. Const. Art. III, § 2. In 1792, Congress authorized federal courts to adopt “the principles, rules and usages” of courts of equity when exercising their chancery jurisdiction. 4 Charles A. Wright and Arthur R. Miller, Federal Practice & Procedure: Civil § 1002, at 10 n.2 (3d ed. 2002) (quoting § 2 of Process Act of 1792). The federal courts maintained different procedural rules for their law and equity sides until the adoption of the Federal Rules of Civil Procedure in 1938. Id. § 1004, at 21-28. The “days of the divided bench,” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S. Ct. 708, 714 (2002), thus abruptly ended for the federal judiciary.

Since 1938, the law-equity distinction in federal law has retained its relevance mostly for purposes of determining whether a claim constitutes a suit at “common law” for purposes of the Seventh Amendment’s right to trial by jury, see, e.g., Curtis v. Loether, 415 U.S. 189, 194-95 (1974) (no constitutional right to a jury for a pure equity claim), or whether a claim satisfies the discretionary criteria necessary for imposing prospective relief, see, e.g., Beacon Theatres v. Westover, 359 U.S. 500, 506-07 (1959) (injunctive relief unavailable unless legal remedies inadequate). Purely procedural distinctions unrelated to the availability of a jury trial or the scope of prospective relief, however, have been long ago swept aside in federal courts.

Most states followed the lead of the federal judiciary and merged their procedural codes governing law and equity claims. At the time of Professor Dobbs’s first edition of his treatise on the Law of Remedies in 1973, 37 states used a unified court and the same rules of procedure for both law and equity claims. See Dan D. Dobbs, The Law of Remedies § 2.6 (appendix), at 82 (1973).
Only four states maintained a strict separation between law and equity courts. Id. at 81. Five states (including Virginia) used a single court, with separate divisions — the law and equity “sides of the court.” Id. at 82. Four other states also used a single court, with separate law and equity divisions, but employed the same set of procedural rules. Id. at 82.

Virginia Experience. As early as 1606, Virginia jurists decided civil disputes “as near to the common laws of England and the equity thereof as may be.” W. Hamilton Bryson, supra at 72 (quoting 1 Hening’s Statutes 68). And for most of Virginia’s history, it adopted a “fused court system” enabling a single court to have two divisions: a “law side” and an “equity side.” Id. at 73. Each initially employed different substantive principles and each followed unique rules of procedure. As Justice Staples declared a century ago, “we believe that in no State is the distinction between the law and equity courts, and the principles governing each, more rigidly adhered to than in Virginia.” Suttle v. Richmond, Fredericksburg & Potomac R.R. Co., 76 Va. 284, 288 (1882). As a result, “there is no further mingling of the two systems than in the administration of both by the same judicial machinery.” Edwin B. Meade, Lile’s Equity Pleading & Practice § 3, at 2 (3d ed. 1952).

It did not take long for the substantive principles to merge, with the law side accommodating various equitable modes of decision-making and the equity side following analogous legal doctrines. Purely equitable defenses, for example, may now be asserted in defense of common law claims alleging breach of contract. See Va. Code Ann. § 8.01-422 (Michie 2000). Under the equitable clean-up doctrine, chancellors may award compensatory damages for law claims filed in an underlying equity case. See W. Hamilton Bryson, supra at 473. “Thus, the chancellor may hear legal claims and enforce legal rights by applying remedies available only at law.” Advanced Marine Enterprises v. PRC Inc., 256 Va. 106, 122, 501 S.E.2d 148, 157 (1998). And where equitable principles collide with legal principles, the former defers to the latter under the maxim “equity follows the law.” Belcher v. Kirkwood, 238 Va. 430, 433, 383 S.E.2d 729, 731 (1989) (statute of limitations trumps equitable laches defense); Savings & Loan Corp. v. Bear, 155 Va. 312, 329, 154 S.E. 587, 593 (1930) (in the “administration of assets,” equity courts “follow the rules of law”).

Despite the synthesis of legal and equitable concepts into a single corpus of substantive principles, Virginia has nonetheless maintained a strict procedural distinction between the two sides of the court. To be sure, Virginia has repeatedly reaffirmed its “longstanding distinction between law and chancery.” Love v. Hammersley Motors, Inc., 263 Va. 45, 48, 556 S.E.2d 764, 765 (2002). The “marked distinction between law and chancery,” the Virginia Supreme Court has emphasized, continues to exist in the Commonwealth. Id. (quoting Wright v. Castles, 232 Va. 218, 222, 349 S.E.2d 125, 128 (1986)).

In the first reported case in which a litigant directly asked the Court to engage the merger debate, the entire discussion took up all of three sentences of the Court’s opinion:

Citing foreign authority, Castles appears to invite us to abrogate the long-standing distinction between law and chancery and adopt a “unified system.” We decline the invitation. The marked distinction between law and chancery, a product of the English legal system, continues to exist in the Commonwealth.
Wright, 232 Va. at 222, 349 S.E.2d at 128.1

This terse response, one commentator has concluded, “should end speculation about an imminent merger of law and equity” and confirms that “the two regimes are separate and will remain so in the foreseeable future.” John L. Costello, Virginia Remedies § 3-4(a), at 84 & 81 (2d ed. 1999).

Recommendation
On issues where the law-equity distinction matters, like the right to a trial by jury or the availability of prospective relief, the distinction must be preserved — and, of course, it has been by every jurisdiction, federal or state, that has adopted any form of law-equity merger. Virginia certainly recognizes these distinctions, see, e.g.,Wright, 232 Va. at 222, 349 S.E.2d at 128 (no jury trial right in pure equity case); Black & White Cars, Inc. v. Groome Transp., 247 Va. 426, 431, 442 S.E.2d 391, 395 (1994) (a litigant must show “lack of an adequate remedy at law” to obtain injunctive remedies), and should continue to do so. On substantive issues where the distinction does not matter (like asserting an equitable defense to a contract claim in law), Virginia has already merged the jurisprudential rules of decisionmaking.

For Virginia, therefore, the merger debate turns primarily on procedure because that remains the only area where artificial distinctions continue to exist. The Rules of the Virginia Supreme Court, for example,

•use completely different nomenclature on the law side and the equity side (motion for judgment v. bill of complaint, replication v. reply, notice v. subpoena in chancery, grounds of defense v. answer, counterclaim and cross-claim v. cross-bills, default judgment v. decree taken for confessed);

•provide clear and comprehensive guidance for third-party and fourth-party practice on the law side (Rule 3:10), but cryptic guidance for its functional equivalent on the equity side (Rule 2:14);
uauthorize the trial court to order a separate trial for a cross-claim at law (Rule 3:9), but not for an equitable cross-bill (Rule 2:14);

•identify a motion to dismiss as a proper pleading in a law case (Rule 3:16(a)), but not in an equity case;

•allow for a bill of particulars to amplify a motion for judgment (Rules 3:7 & 3:16(a)), but not a bill of complaint;

•include specific authorization for joinder of parties on the law side (Rules 3:9A and 3:14), but mention not a word on this subject for the equity side;

•include inconsistencies about the clerk of court’s treatment of pleadings (Rules 2:1 and 3:2) — like the requirement that the clerk mark the “date of filing” on an equity pleading, but not on a law pleading, as well as the authority of a law court, but not an equity court, to determine any “controversy” over a litigant’s right to file a pleading;

•permit a defendant on the law side to assert a “new matter” in his responsive pleading and request a written “reply” (Rule 3:12), but provide no such permission to equity defendants (Rule 2:10); and

•embrace redundancy by using different procedural rules that say exactly the same thing (intervention under Rules 2:15 and 3:19, substitution of parties under Rules 2:16 and 3:15, summary judgment under Rules 2:21 and 3:18).

One would be hard-pressed to come up with a persuasive reason for continuing these anomalies. Perhaps the procedural bilingualism can be excused as a tip-of-the-hat to history — but, if so, it is nothing more than that. Though some might find delight in maintaining such rhetorical formalisms, I do not. They seem to me to be unnecessary at best and intellectually inutile at worst. Distinctions that have such marginal value should be jettisoned, if for no other reason than to be faithful to the endless task of ridding our legal system of convolution wherever it can be found. Much of the asymmetry in the procedural rules, it appears, comes not from any deep-rooted historical doctrine — but from years of tinkering by committees attempting to maintain the duality of law and equity while preserving the singularity of the administering court. The rules thus reflect the natural editorial accretions and erosions that work upon two different shorelines belonging to the same beach.

As a matter of public policy, litigants and lawyers alike should be given consistent, clear, and concise rules to govern their procedural rights and duties — rules that do not, as the present ones do, “provide a fruitful ground for maneuvers during the pre-trial phases of civil litigation.” Kent Sinclair & Leigh B. Middleditch Jr., Virginia Civil Procedure § 11.3, at 465 (3d ed. 1998). “Until such time as the General Assembly takes the fairly simple steps required to eliminate the artificial distinctions between the two domains, or the Supreme Court promulgates a single composite set of rules to unify the procedures for a civil case, the differences will remain.” Id.

Likely Objections
The principal objection to merger is “leave well enough alone.” It is sometimes accompanied, though not always, with an effort at finding a hidden efficiency in the law-equity distinction that has somehow eluded the federal courts since 1938 as well as the great majority of state courts that have merged their procedural codes. The argument goes along these lines:

The proposed merger of law and equity would upset the current settled practices without giving any significant improvement to the system. It would be a change without a benefit. The present system has the advantage of forcing the attorneys to think through the theory of their client’s claim before filing the action. The result is better focused litigation, which leads to more efficient proceedings.
W. Hamilton Bryson, supra at 87 (emphasis added).

Maybe sufficient reasons exist for leaving well enough alone. Some jurists and lawyers may share an affinity for traditional forms of pleading, or a heuristic affection for legal formalism, or simply an institutional inertia making any reform seem overly venturesome. But whatever the plausible justifications for maintaining separate law and equity sides of the court, efficiency is not one of them. Far from it — the law-equity distinction creates two of the worst forms of inefficiency: (i) the possibility of having to try the same case twice, and (ii) uncertainty as to the extent the first trial creates either claim or issue preclusion affecting the second trial. As for “better focused litigation,” id, here again, exactly the opposite is true. The confusion is sometimes so bedeviling that it appears to lack any coherent guiding principle, and instead, takes on the form of a loosely connected patchwork of disparate rules.

For example, if the same set of facts throws off both equity and law claims, the plaintiff cannot file a single suit asserting both claims on the equity side of court and seek a jury trial as a matter of right on the law claim. See Packett, 237 Va. at 424, 377 S.E.2d at 441. When “the clean-up rule is used, or when the claims are severed and the equity trial comes first, the effect is to eliminate jury trial on any facts the legal and equity claims have in common.” 1 Dan B. Dobbs, supra § 2.6(4), at 170.

If he wants a jury, the plaintiff must file a separate suit on the law side or, if he has already filed his law claim in the equity suit, request a transfer of the law claim to the law side.2 He then risks getting wrapped around the axle by some variant of the res judicata or collateral estoppel theories if he loses the case that first goes to trial. Compare Wright v. Castles, 232 Va. 218, 222, 349 S.E.2d 125, 128 (1986) (Generally, a “chancery suit is not res judicata to a subsequent law action unless the very matter in controversy in the pending action was decided in the prior suit.”); Pleasants v. Clements, 29 Va. (2 Leigh) 474 (1831) (a chancery proceeding to rescind a contract does not bar a subsequent law action to recover damages for breach of warranty on the same contract); with Patterson v. Saunders, 194 Va. 607, 74 S.E.2d 204 (1953) (a chancery decree refusing an injunction against cutting timber was “res judicata” of a later law action seeking damages action for cutting the same timber).3

In a fully merged system, a litigant may join legal and equitable claims together in a single civil action and request a jury for all claims involving common factual issues. “When legal and equitable claims are joined in the same action, ‘the right to jury trial on the legal claim, including all issues common to both claims, remains intact.’” Lytle v. Household Manufacturing, Inc., 494 U.S. 545, 550-52 (1990) (quoting Curtis v. Loether, 415 U.S. 189, 196, n.11 (1974)). “The whole case is normally tried at once, with the judge submitting to the jury all factual disputes that arise on the ‘legal’ claim.” 1 Dan B. Dobbs, supra § 2.6(4), at 171 (summarizing Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479 (1962)). The jury’s determination of the facts underlying the legal claim applies equally to the equitable claim, with the trial judge fashioning the equitable remedies to be awarded based upon the jury’s resolution of the dispositive factual issues. Id.

Counterclaims also illustrate the inefficiency of the segregated law-equity system. In a case filed on the equity side, a defendant cannot file a counterclaim at law (arising out of exactly the same facts) without waiving his right to a jury trial. A defendant “who voluntarily submits a claim in equity, takes an equity trial, even as to a legal counterclaim.” 1 Dan B. Dobbs, supra § 2.6(4), at 170. If the litigants file competing law and equity cases arising out of the same fact pattern, the equity suit may have scheduling priority over the law suit and thereby possibly dictate the final result. See, e.g., Stanardsville Volunteer Fire Co., Inc. v. Berry, 229 Va. 578, 584-85, 331 S.E.2d 466, 470 (1985) (Alleged trespassers are “entitled to bring a chancery suit seeking vindication of their claim to an easement by estoppel, and to enjoin prosecution of the . . . action at law until their property claim could be determined.” If the trespassers win the equity suit, “the injunction could be made permanent.” If the trespassers lose the equity suit, the “action at law would be unimpaired, and the issue of damages could be submitted to trial by jury.”).4

By contrast, in a fully merged system, the trial court tries the entire case before a jury and accepts as binding its determinations on the factual disputes common to both the initial equity claim and the law counterclaim. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 508-11 (1959); 1 Dan B. Dobbs, supra § 2.6(4), at 174. There is no necessity for two trials, no need to determine which case goes to trial first, and no hair-splitting debate over the impact of res judicata or collateral estoppel doctrines on the second case.

True, this approach would be a departure from existing Virginia practice. But it would be a good one for anyone sharing the view that “in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred.” Va. Const. Art. 1, § 11 (1971). “Trial by jury is a sacred right,” we believe, and thus “should be sedulously guarded.” Supinger v. Stakes, 255 Va. 198, 203, 495 S.E.2d 813, 815 (1998) (quoting Buntin v. City of Danville, 93 Va. 200, 212, 24 S.E. 830, 833 (1896)).5 Expanding the role of juries to mixed law-equity cases, therefore, would build upon a tradition of fundamental import.

Other peculiarities exist under Virginia’s unique amalgam of law and equity procedures. A plaintiff can request an “issue out of chancery” under Va. Code Ann. § 8.01-336(E) (Michie 2000). Whether to empanel such a jury or, for that matter, whether to accept its verdict, depends entirely on the chancellor’s discretion. See Angstadt v. Atlantic Mutual Insurance Co., 254 Va. 286, 292, 492 S.E.2d 118, 121 (1997). The jury verdict “serves to inform the conscience of the chancellor,” id., but not so much so that he must follow it. The Chancellor is perfectly free to reject the verdict and come to exactly the same conclusion his uninformed conscience would have otherwise reached. In contrast, a defendant may file a “special plea in equity” training on a single dispositive factual issue arising out of an absolute defense like the statute of limitations, accord and satisfaction, illegality, usury, res judicata, and the like. Id. Either party has a statutory right to a jury on the special plea. Moreover, a “jury verdict returned under a plea in equity is as binding and conclusive on the factual issue submitted as a jury verdict in an action at law.” Id. Thus, for a single dispositive factual issue in an equity case (raised only by the defendant), the parties have a right to a jury and a verdict that binds the Chancellor. For a decision on all issues in the same equity case (raised by both the plaintiff and defendant), the parties do not have a right to a jury and, assuming they get one anyway, do not have a right to a verdict that binds the Chancellor.

Conclusion
In sum, I respectfully dissent from the view that the segregated law-equity sides of court produce “better focused litigation, which leads to more efficient proceedings.” W. Hamilton Bryson, supra at 87. Truth be told, the present dual system badly lacks focus and leads to systemic inefficiencies. The benefits of a fully merged system would include (i) eliminating confusingly different sets of procedural rules, (ii) paring away the redundancy of separate trials as well as the claim and issue preclusion problems that inevitably arise, and (iii) strengthening Virginia’s historic commitment to trial by jury by expanding it to mixed law-equity cases. For these reasons, I recommend that the Boyd-Graves Conference endorse a merger plan that collapses Parts 2 and 3 of the Virginia Supreme Court Rules into a single, unified set of procedures. Accompanying this effort should be a selective edit of the Virginia Code to eliminate any purely procedural differences between law and equity claims.6

About the Author: Judge D. Arthur Kelsey serves on the Court of Appeals of Virginia, formerly served as a circuit judge in the Fifth Judicial Circuit, and is a member of the VBA Civil Litigation Section Council. Before coming to the bench, Judge Kelsey was a partner at Hunton & Williams and a former law clerk to U.S. District Judge John A. MacKenzie.

NOTES
1. With the same degree of analytical economy, the Virginia Supreme Court explained to another litigant: “If we adopted [appellant’s] contention, we would be abolishing the traditional and marked distinction between law and chancery. We declined an invitation to do so in Wright v. Castles, 232 Va. 218, 222, 349 S.E.2d 125, 128 (1986).” Packett v. Herbert, 237 Va. 422, 424-25, 377 S.E.2d 438, 441 (1989). None of the Court’s opinions addresses the merits or demerits of merger.
2. See Va. Code Ann. § 8.01-270 (Michie 2000) (“No case shall be dismissed simply because it was brought on the wrong side of the court, but whenever it shall appear that a plaintiff has proceeded at law when he should have proceeded in equity, or in equity when he should have proceeded at law, the court shall direct a transfer to the proper forum...”).
3. The Virginia Supreme Court in Patterson relied exclusively on the res judicata doctrine (dealing with claim-preclusion) and did not mention the collateral estoppel doctrine (which addresses issue-preclusion between different causes of action). Thirty-three years later, however, the Court said that Patterson was not a res judicata case and thus provided no binding precedent on claim preclusion issues. Patterson “actually rests upon the doctrine of collateral estoppel, not res judicata (“res judicata was a misnomer).” Wright, 232 Va. at 223, 349 S.E.2d at 128.
4. “Note the irony that if the Chancellor enjoins prosecution of a related action at law, and the equitable proceeding results in a dispositive finding for defendant, the injunction against a proceedings at law may be made permanent, effectively terminating that proceedings (and cutting off any jury trial right that would have applied had that action gone forward.)” Kent Sinclair & Leigh B. Middleditch Jr., supra § 11.3, at 469.
5. The divided-court construct does force a litigant to decide early whether he wants a jury. Filing in equity has the effect of waiving his right to a jury, even if he has pled a purely law claim for money damages in addition to his main request for equitable relief. See Packett v. Herbert, 237 Va. 422, 424, 377 S.E.2d 438, 441 (1989). The merged procedural codes, however, require similar promptness. See, e.g., Fed.R.Civ.P.38(b) (jury trial demand must be made within 10 days after service of the last pleading directed to the issue).
6. The views advanced in this article represent my personal opinions “concerning the law, the legal system, [and] the administration of justice” as authorized by Virginia Canon of Judicial Conduct 4(B) (permitting judges to “speak, write, lecture, teach” and otherwise participate in extra-judicial efforts to improve the legal system). These views, therefore, should not be mistaken for the official views of the Fifth Judicial Circuit, the Court of Appeals of Virginia, or any judicial administrative body to which I belong.

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The VBA's 113th Annual Meeting
January 16-19, 2003 • Colonial Williamsburg
Click here to access the latest information about the meeting.

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Young Lawyers Division

As the holidays approach, young lawyers across the state are busy completing yearlong projects as the official VBA/YLD year nears its end. As the chair of the VBA Young Lawyers Division, I am constantly amazed at the good things that our young lawyer-volunteers are doing. Many new initiatives have been undertaken this year including several that I would like to highlight.

The first is our video project entitled “Protecting Children: A Mandated Reporter’s Guide to Recognizing and Reporting Child Abuse and Neglect.” After determining that there was a real need for this type of information, we produced this video to be geared towards those members of certain professions that are required to report child abuse under Virginia law such as medical personnel, social workers, child care providers, teachers, and law enforcement personnel. It provides guidance on recognizing the various forms of child abuse or neglect and reporting such abuse or neglect. The video features Attorney General Jerry Kilgore, representatives from Child Protective Services and other experts in the field and was done in collaboration with the Family and Children’s Trust Fund of Virginia who additionally provided a grant. Also, representatives from Child Protective Services, the Attorney General’s Office, and the City of Richmond Commonwealth’s Attorney’s Office contributed valuable time and effort in contributing to the content of the videotape. We believe this tape will be helpful to a number of groups and individuals including nonprofit child abuse organizations, associations representing required reporters and select state agencies. We are striving to get this video into the hands of anyone and everyone in the state who could benefit by it, so if you have any ideas for its distribution, please contact the chair of this project, Mike Walton, at (804) 788-7219.

In addition to the Special Education Handbook which was rolled out in October, we have two more handbooks that are in the process of being printed and distributed.

The first is our New Lawyers’ Survival Guide, which is the result of an effort this year to provide young lawyers with practical information that we believe will be helpful to them as they begin their careers as attorneys. This handbook is intended to provide insight into the more practical aspects of being a lawyer and covers topics such as time management, client development, working with clients and dealing with support staff, to name a few. The committee responsible for drafting this handbook, headed by Erica Beardsley, represented a cross-section of experience including attorneys from large and small firms, government attorneys, in-house counsel and senior practitioners. It is our goal to get this handbook into the hands of every young lawyer beginning their practice in the state.

Our second handbook is the Working Parents’ Handbook, which is an update of one that was produced in 1994. This handbook explains the tax requirements of hiring in-home care and also provides information on what to look for when selecting a child care provider or day care center. Further, it provides information on additional resources helpful to a parent of any income level engaged in the search for child care. Melissa Young and Nicole Daniel led the VBA/YLD effort to produce the update of this handbook.

Finally, our Immigration Assistance Committee, chaired by Cathryn Le and Kim Welsh, in collaboration with the Virginia State Bar Young Lawyers Conference, is putting the final touches on a handbook entitled Consequences of Criminal Convictions on Non-Citizens. This handbook is geared toward judges and provides details on various immigration issues that judges may confront. Distribution to judges and others in the state is scheduled later this month, so stay tuned for more information.
For information on or copies of any of these handbooks, please contact Regina Moss at the VBA office, (804) 644-0041.
Again, these projects represent only a few of the many that our young lawyers are working on this year. As always, I encourage you to visit the VBA/YLD page at www.vba.org for a complete listing of VBA/YLD projects and committees. Return to Top

VBA/YLD News

The VBA/YLD, in partnership with the Family and Children's Trust Fund, has recently completed “Protecting Children: A Mandated Reporter’s Guide to Recognizing and Reporting Child Abuse and Neglect,” a videotape addressing child abuse reporting requirements. The videotape, which is geared toward those professions that are required reporters of child abuse under Virginia law, provides guidance on recognizing the various forms of child abuse and neglect and explains the reporting process. It features Virginia Attorney General Jerry Kilgore, representatives from Child Protective Services, and other experts in this field. The videotape is being distributed statewide to child abuse organizations, associations representing required reporters, and select state agencies. In addition to those groups, the VBA/YLD seeks to distribute the videotape to anyone who could possibly benefit from its content. Please contact Regina Moss at the VBA office, (804) 644-0041, for more details.

Planners of the Hampton Roads Town Hall Meeting were scheduled to combine current events with history at the Nauticus National Maritime Center in Norfolk on December 11. A panel including Prof. Scott Reynolds Nelson of the College of William & Mary, Bob Wilson of the Mariners' Museum and John Quarstein of the Virginia War Museum was tapped to discuss the Monitor, its role in the Civil War and its battle with the Merrimack, as well as the recent raising of its gun turret.

"Drought: What Challenges Lie Ahead for Southwest Virginia?" was the subject of the Roanoke Town Hall Meeting, which aired on November 14 at 8 p.m. as a live call-in show on the three stations of Blue Ridge Public Television. Dr. Bob Denton of Virginia Tech served as moderator.

In an effort to provide new lawyers with practical information to assist them in beginning their careers as attorneys, the VBA/YLD decided to create the New Lawyers’ Survival Guide. This guide is intended to provide insight into the practical aspects of being a lawyer and hopefully, make the transition into the practice of law go more smoothly. To obtain a copy, please contact Regina Moss at the VBA, (804) 644-0041.

The VBA/YLD Working Parents' Handbook explains many aspects of finding and maintaining child care. The handbook covers tax requirements for in-home care providers and useful considerations when selecting a child care provider or day care center. The handbook also provides information on additional resources helpful to any parent beginning the search for child care. Copies can be obtained by contacting Regina Moss at the VBA.

The VBA/YLD Special Education Handbook summarizes Virginia's special education procedural safeguard requirements and includes such topics as the due process procedures designed to protect both parents and students, IDEA disciplinary procedures and confidentiality concerns. Produced through the efforts of lawyer-volunteers, the book assists parents in understanding what services are available and how to access those services. Copies can be obtained from Regina Moss at the VBA or the Virginia Department of Education at (804) 225-2020.

A number of VBA/YLD projects have received statewide and national acclaim and are emulated in other states. Get involved today — you’ll be glad you did! Click here for the VBA/YLD page and current volunteer opportunities. Return to Top

Across the Commonwealth

Speaker-designate appears at forum
At their annual Fall Forum on October 10, members of the VBA Corporate Counsel Section had an opportunity to hear the inside story on the upcoming Virginia General Assembly session from a member of the House of Delegates (and the VBA) who will be at the center of the action: Speaker-designate William J. Howell of Stafford. The event, held at The Jefferson Hotel in Richmond, also included programs on recent developments in the employment field important to corporate lawyers; a discussion of current issues at the federal level, including corporate liability issues (Sarbanes-Oxley Act of 2002), energy issues, and other recent developments in Congress; and an interactive presentation on ethics for corporate counsel.

Lawyers Helping Lawyers holds conference
VBA President Ed Betts and Chief Justice of Virginia Harry L. Carrico were among those who addressed the Lawyers Helping Lawyers Conference,“Join the Voices of Recovery... Calling the Legal Profession to Action,” held September 27-28 at the Omni Richmond Hotel. Gary Tennis, chief of legislation for the District Attorney's Office in Philadelphia, Pa., and Dr. Raymond M. Pomm, medical director for Florida’s Physicians Recovery Network/Impaired Practitioners Program, were keynote speakers. James Houck, 96, the only living person today with firsthand knowledge of the material “Bill W.” and others used to write the book Alcoholics Anonymous, also spoke at the event.

Virginia Barristers Alliance unveils new website
Virginia Barristers Alliance, Inc., has a new informational website at www.virginiabarristersalliance.com. The new site can be easily accessed from the VBA homepage at www.vba.org.
Virginia Barristers Alliance, Inc., is a wholly-owned subsidiary of The Virginia Bar Association and offers a great variety of personal and business insurance and financial services to Virginia lawyers. For example, long-term care insurance is available at a 10 to 15 percent discount, depending on age, to VBA members and their spouses, children, parents, grandparents and in-laws. Disability income insurance policies may also be available to VBA members at a discount.
For more information about Virginia Barristers Alliance, Inc., call Dean Hardy or Howard DiSavino at 1-800-358-7987 or (804) 270-5128.

AMES Committee announced
In response to member interest, The Virginia Bar Association has created the Arts, Media, Entertainment & Sports Law (AMES) Committee. Its mission will be to provide a forum for VBA members to explore legislative, legal and business issues related to the arts, entertainment, sports and media fields whether commercial or nonprofit, amateur or professional.
If you would like to participate in the new group as a member or leader, please contact one of the following Steering Committee members:
Jim Meath, (804) 783-6412, jmeath@williamsmullen.com;
Jeff Cohen, (703) 243-6333, cohen@mwzb.com;
Victor Cardwell, (540) 983-7529, cardwell@woodsrogers.com;
Philip Goodpasture, (804) 697-4117, pgoodpasture@cblaw.com, or
Breck Arrington at the VBA office, (804) 644-0041, cbarrington@vba.org.

VBA Foundation, Chapple Fund welcome year-end charitable gifts
If you are planning end-of-year charitable gifts, keep The Virginia Bar Association Foundation in mind.
The Virginia Bar Association Foundation is a 501(c)(3) corporation which underwrites many of the public service projects of the VBA.
Your contributions are welcomed, as they strengthen our Association’s resources for positive action. One prominent recent project is the Southside Flood Legal Assistance Fund, which generated thousands of dollars for support services for Virginia lawyers seeking to rebuild their practices and help their clients following devastating floods in the fall of 1999. For more information about the VBA Foundation, please contact the VBA office at (804) 644-0041.
Persons with a particular interest in the Lawyers Helping Lawyers Program may contribute to The Stephen C. Chapple Recovery Assistance Fund. Established in 1995 in memory of former Substance Abuse Committee member Stephen C. Chapple, the fund assists attorneys with the expense of treatment for alcohol or drug addiction or with similar expenses related to rehabilitation agreements. The Fund is housed in the VBA Foundation and contributions are tax-deductible. For more information, please contact the VBA office at (804) 644-0041.

Holiday gift ideas abound at John Marshall House
The Association for the Preservation of Virginia Antiquities is proud to announce the release of a new historical print of the John Marshall House. This attractive print makes a fine gift or addition to your home or office.
The print comes signed and dated by award-winning artist Doug Welsh of Richmond and is available in two sizes: 13”x18” and 8½”x 11”. Each print is on acid-free paper and individually wrapped in a clear presentation glove on a professional backing. The large print retails for $30; the smaller size, for $18. Shipping and handling charges are $4.50.
Note cards featuring the print are available for $2.50 (left) and $2 (right) from the John Marshall House shop, which also offers copies of the October 2002 issue of Caxtonian, the newsletter of the Caxton Club of Chicago, which featured a front-page article on John Marshall by Robert Cotner. Caxtonian copies are available for $2 each. Please contact APVA Site Coordinator Pat Archer at (804) 648-7998, if you have questions.
Special events at the John Marshall House for 2003 are posted on the VBA calendar, along with information for visitors. For more information about the House and The John Marshall Foundation, visit the VBA website and click on The John Marshall Foundation link on the homepage. To learn more about Doug Welsh and his art, visit www.DCWelshArt.com.

JSRCC program offers legal placement services to employers
The Legal Assisting Program at J. Sargeant Reynolds Community College offers job placement services to members of the Virginia legal community. Lawyers or administrators in need of qualified legal assistants may mail, fax or e-mail a job description to the program office, where it will be posted and sent to graduates and interns who seek employment. The Legal Assisting Program offers a two-year Associate in Applied Science degree and is the only program in the metropolitan Richmond area approved by the American Bar Association. Those who are interested may contact Susan H. Brewer, head of the program, by phone at (804) 371-3265, fax to (804) 371-3588, e-mail to sbrewer@jsr.vccs.edu, or by mail to Legal Assisting Program, J. Sargeant Reynolds Community College, P.O. Box 85622, Richmond, VA 23265-5622.

‘Have Ethics, Will Travel’ available
The Virginia Bar Association offers to present a course on “Cases in Professionalism and Civility” to any local or specialty bar association in Virginia that will host it. The interactive program, which can be one or two hours long, can be customized to fit any bar association’s needs. From a list of 60 hypotheticals, local or specialty bar organizers can choose 10 hypotheticals for a one-hour or 20 for a two-hour presentation, divided between lawyer courtesy and professional ethics. (If organizers prefer, the VBA can choose the hypotheticals.) The VBA applies for CLE credit and provides one speaker and a copy of written materials. All the host has to do is invite its members and make the appropriate number of copies to distribute onsite. If the host prefers to make the program even more interactive, it can invite a panel of four local judges and/or lawyers to participate by fielding questions from the audience. Because the program’s length can be adjusted easily, it can be offered in conjunction with a local/specialty bar’s regularly scheduled membership meeting, or as a stand-alone event, depending on the local/specialty bar’s preference. Thomas E. Spahn of McLean, a partner with McGuireWoods, L.L.P., and an authority on ethics and professionalism issues, developed the program’s format during his tenure as Chair of the VBA Professionalism Task Force from 1997 to 2000. For more information, contact Regina Moss at the VBA office, (804) 644-0041 or rmoss@vba.org.

News in Brief

The VBA seeks members who are interested in serving on VBA committees and section councils in the coming year. For appointment to a VBA committee, members are invited to contact President-elect Frank Thomas at (540) 672-2711 or fthomas@ns.gemlink.com. For election to a VBA section council, members should contact the appropriate section chair (consult www.vba.org for information). For appointment to a Young Lawyers Division committee, members should contact Chair-elect Steve Otero at (804) 697-1200 or steve.otero@troutmansanders.com. For appointment to a Law Practice Management Division committee, members should contact Chair Heman Marshall at (540) 983-7654 or marshall@woodsrogers.com. For information on any appointment, contact Breck Arrington at the VBA office, (804) 644-0041, or cbarrington@vba.org.

VBA annual dues statements will be mailed in January. Is your address and contact information in VBA records up-to-date? If not, please submit any changes to your listing to the VBA by e-mail to Judy King at jking@vba.org or by fax at (804) 644-0052.

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Classifieds

Experts
FORENSIC PSYCHIATRIST: Mental injury, TBI, Nursing homes, Malpractice, Guardianships, Will contests, Criminal matters, Child custody. Karl Sieg, M.D. Board Certified in Adult, Child, Geriatric, Addiction & Forensic Psychiatry, (757) 532-7016 — Williamsburg.

The VBA News Journal now offers classified advertising. Categories available are as follows: positions available, positions wanted, books and software, office equipment/furnishings, office space, experts, consulting services, business services, vacation rentals, and educational opportunities. Rates are $1 per word for VBA members and $1.50 per word for non-members, with a $35 minimum, payable at the time of submission. Ad costs must be paid in advance. The VBA News Journal reserves the right to review all ad copy before publication and to reject material deemed unsuitable. Deadlines will be one month in advance of the date of publication (November 1 for December, etc.). Information is available online, or call for details at (804) 644-0041.

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Copyright 2007 The Virginia Bar Association