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June/July 2005
Volume XXXI, Number 3

President’s Page: Definitely Not Just Another Day at the Beach
James V. Meath

Guy Tower to become next VBA executive leader

VBA Summer Meeting Preview:
It’s the Place to Be!

Legal Focus/Litigation:
The Virginia Presumption of Fraudulent Intent in Bad Check Cases:
The Statute That Dare Not Speak Its Name
Professor James J. Duane

The VBA Community Service Program Honor Roll:
Community/Pro Bono Servants for 2004 with at least 50 certified hours of service

Across the Commonwealth
Nominating Committee begins work this summer • Sign up for VBA Community Service Program by September 1 • Premiere Global Services is newest VBA member-service partner • VLF seeks nominations for Fellows class of 2006 • Midyear appointments announced • VBA/YLD and Health Law Section hold workshops on medical decision-making • Passwords coming to www.vba.org

VBA Foundation Patrons for 2005

News in Brief

Calendar

President’s Page:
Definitely Not Just Another Day at the Beach
James V. Meath

One is never quite certain as to the weather on the Outer Banks in late April or early May. A nor'easter could have you huddled inside in front of a fire, or the sun could be high and bright, with barefoot walks on the beach in order. One thing is constant, and that is the weekend that the Executive Committee and Council of The Virginia Bar Association Young Lawyers Division (VBA/YLD) holds its annual meeting at The Sanderling Inn is an inspiring and fun-filled one, weather notwithstanding.

One of the perks of the VBA presidency is receiving an invitation to this meeting. It allows the VBA President to observe the inner workings of the VBA/YLD Executive Committee and Council and to provide input to them as to VBA Board of Governors issues, but, most importantly, it offers the Executive Committee the opportunity to give direct input to the Board of Governors as to issues that are important to our young lawyers.

As I have often said, you only need to hear one VBA/YLD chair report on Division activities at a Board of Governors meeting to realize that these young lawyers have talent, creativity, enthusiasm and commitment well beyond the bounds of mortals! The current group, under the able leadership of R. Braxton Hill IV, is no exception.

I shall not take this space to recite again the numerous worthwhile and ABA award-winning public service programs that our Young Lawyers Division manages. Suffice it to say, the list is long and impressive. The point of this piece is not what the VBA/YLD does for the community at large, but what they want and need from us as “Senior” (their term) members of the VBA. To frame the point, we must recognize that the accomplishments of the Young Lawyers Division and their leaders are achieved by lawyers, most of whom are in the process of (a) working to master the tools of the profession; (b) trying to build a law practice; (c) getting involved in community activities; and (d) raising a family. Any one of the above requires great time commitments. So the commitments that these lawyers make to the VBA are legion, indeed.

The young lawyers were very candid with me as to their number one request from the senior VBA. They want the leadership of the VBA to use its influence with senior lawyers in law firms to fully support their efforts. They recount that the support from some firms has softened over the years, and they relate that they are often unsure as to whether their supervising attorney supports their efforts on behalf of the VBA/YLD.

I committed to discuss this with the managing partners of all of the firms that I plan to visit between now and October. The message, in my view, is simple.

A message of commitment for Young Lawyers Division involvement needs to be made from the top down. It must not be a hollow endorsement, but one that is genuine and specific. I call on all VBA lawyers to join me in being a strong source of encouragement within your firms for the full support of young lawyers to get involved in the VBA/YLD.

Firms of all sizes receive tangible benefits from their associates’ participation in the VBA/YLD.
Associates learn leadership skills and are exposed to leading practitioners. This enhances their exposure to intellectual dialogue in various substantive areas of the law.

The networking opportunities for young lawyers are a well-known and a valuable component of a young lawyer's growth. The above benefits are only enhanced when a young lawyer moves up to the senior VBA — assuming, of course, that they do move up!

That brings up the only disturbing moment in an otherwise enjoyable weekend. During the open discussion on VBA membership that I introduced, one Executive Committee member candidly related that she was not at all convinced that she would remain in the VBA after she “aged out” of the Executive Committee and the VBA/YLD.

She stated that she had recently moved from a large firm into a solo practice. Further, she stated that she knew nothing about the Sections of The Virginia Bar Association and how she could benefit from same. Therefore, she questioned whether she could justify the expense when she was not able to properly evaluate any benefit that she might receive from membership.

Before I could respond, one of her fellow Executive Committee members, fortunately, stepped in.
He opined that he did not believe that it should make any difference whether or not the firm or the individual paid VBA dues.

He was steadfast in his belief that membership in the VBA, with other professional obligations, is simply just part of doing business in the professional arena.

He asserted the position that whether you belong to a large, medium or small firm, and whether or not the dues are paid or not, it is, at the end of the day, “the lawyer’s responsibility to do what they need to do to be a professional.”

He was rigid in his belief that not being a member of The Virginia Bar Association is just not an option if you are fulfilling your professional obligations.

I give no position as to whether he overstated his cause or not. However, I was enthralled by the interesting exchange. Fortunately, it allowed me to regroup and prepare my rejoinder to the young woman who, after such close proximity to The Virginia Bar Association, legitimately questioned why she should remain a member after her dedicated leadership and service to the VBA/YLD came to a close.

Here are my thoughts on how the VBA should respond to this young lawyer and her peers:

1. Shame on us. We need to have a program in place that better identifies phases of service in the VBA/YLD.

• The new lawyer is in Phase 1, primarily concerned with learning the ins and outs of the organization, its structure and deciding on, or being assigned to one or a series of public service projects.

• Phase 2 should see the young lawyer aspiring to leadership in a chosen Division project.

• Phase 3 should involve supervision of a YLD project and significant exposure to the leadership structure and value of The Virginia Bar Association — in short, life in the VBA after the YLD.

2. Another component of Phase 3 should, at a minimum, include contact with a member of YLD leadership, attendance at a specially structured seminar/social and interaction with a leader of a VBA Section of choice where the YLD member would likely join.

3. We need to develop a structured outreach function of the Board of Governors, including substantive Section leadership, to educate and recruit YLD members.

To respond to the above concerns, I have charged the Operations Committee and the Membership Committee of the Board of Governors and the sitting chair of the VBA/YLD Executive Committee to develop a program, primarily concerned with outreach, education and retention, to address the above-referenced objectives.

Once more, I encourage all “senior” members of The Virginia Bar Association to support their younger colleagues’ involvement in the VBA Young Lawyers Division. Over the past five decades, VBA/YLD members have gone on to leadership positions in the senior bar, the judiciary, statewide and local office, community organizations — and in numerous law firms here and elsewhere.

While we foster VBA/YLD participation among our associates, we also need to encourage them to continue their involvement in the post-YLD years, through work on Section Councils, VBA committees, Law Practice Management Division programs and other VBA projects, just as we should reach out to other lawyers who are not currently members of the Association.

In January, I posed a challenge to all VBA members, which I will restate here: Sign up two colleagues in your firm or in your community who are not members of the VBA and tell them that they get the one-year free “Meath membership.” The quid pro quo is that they must join a Section and come to a meeting.

Here is another challenge, for senior Association members only: if you work with a young lawyer member of the VBA, especially one who is nearing the “age-out” deadline of the 37th birthday, suggest that they invest $25 in joining a VBA Section and invite them to attend an Annual or Summer Meeting, or a Section-sponsored conference. Let’s not lose a future Association president, governor or Supreme Court justice from this rising generation of VBA leaders!

For me, this was an enlightening “day at the beach,” and it all took place inside. For the VBA, if we fail to retain the faithful, how, then, can we expect the unanointed to join the flock? Return to Top

Guy Tower to become next VBA executive leader
Guy K. Tower, currently director of educational services in the Office of the Executive Secretary of the Supreme Court of Virginia, will join the staff of The Virginia Bar Association (VBA) on September 1, 2005. He will succeed Charles B. “Breck” Arrington Jr., who has served as the VBA’s executive vice president since 1991 and will step down in February 2006. Tower will work with Arrington during a five-month transition period.

Formerly a shareholder and director of Kaufman & Canoles, P.C., in the law firm's Norfolk and Virginia Beach offices, Tower, a certified mediator, was also a founding member of The McCammon Group, a provider of alternative dispute resolution services. Prior to joining Kaufman & Canoles, he was a partner in the Richmond and Norfolk offices of Hunton & Williams. Tower has been a adjunct faculty member at the School of Law of the College of William and Mary and in the M.B.A. program at Old Dominion University.

At Kaufman & Canoles, Tower served as its chief executive officer and chair of its board of directors, executive committee, compensation committee and commercial law section. He has been listed in The Best Lawyers in America and Virginia Business magazine's “Legal Elite” and is a fellow of the Virginia Law Foundation and the American Bar Foundation.

A graduate of the College of Arts and Sciences and School of Law of the University of Virginia, Tower is a founding member and former chair of the Law Practice Management Section of The Virginia Bar Association, chair of the Business Law Section of the Virginia State Bar and Vice Chair of the Virginia Joint Committee on Alternative Dispute Resolution.

Tower has contributed articles and book chapters to various legal publications and texts and has made presentations at legal education conferences, seminars and workshops sponsored by Virginia CLE, The Virginia Bar Association, the Virginia State Bar, the Virginia Trial Lawyers Association, the Virginia Association of Defense Attorneys and other organizations.

A native of Richmond, Tower resides in Virginia Beach. He is married to Winship C. Tower, a judge of the Virginia Beach Juvenile and Domestic Relations District Court.

In a letter to Association leaders, VBA President James V. Meath of Richmond wrote, “Guy is highly respected by the bench and bar, and brings a wealth of experience in many areas to this position. We are truly fortunate to have found a new executive leader who is already so familiar with the VBA, its members and its various areas of responsibility. This fall, the VBA will begin a new chapter of its illustrious history as the leadership transition begins.” Return to Top

Legal Focus/Litigation:
The Virginia Presumption of Fraudulent Intent
in Bad Check Cases:
The Statute That Dare Not Speak Its Name
Professor James J. Duane

In Virginia, as in most parts of the civilized world, it is not a crime to write a bad check by accident, or through an honest mistake about how much money you have in the bank. Before a man can be convicted for committing larceny with a bad check, the Commonwealth must prove that he knew his funds were insufficient to cover the check when he wrote it. His intent to defraud is “the gravamen of the offense” and “an indispensable element of the crime.”1

Like many other criminal cases, a bad check prosecution often presents a challenge for the prosecutor struggling with the constitutional obligation of proving the criminal intent of the accused beyond a reasonable doubt. Nearly a century ago, in 1920, the Virginia General Assembly passed a law in a well-intentioned effort to assist prosecutors in meeting that burden.2 This law, now codified in Virginia Code § 18.2-183, has been described by the appellate courts of this state for decades as the “rebuttable presumption” of fraudulent intent in cases where it applies.3 The law has been used to help obtain countless convictions in bad check prosecutions.

If you have ever struggled with Code § 18.2-183 and found it a little bit confusing, don’t feel too bad. It turns out you are in very good company. Everything that has been written about this statute by the state supreme court and the court of appeals is very strange, and almost all of it is false.
As we shall see, the law is obviously unconstitutional the way it is written. Although the Virginia courts have never acknowledged that they are doing so, they have essentially rewritten the law in a valiant but hopeless attempt to cure that obvious difficulty. Consequently, as this law has been interpreted at the hands of the courts, there is now virtually no correspondence between (1) the language of the statute, (2) what the courts have said about how the statute operates at trial, and (3) what the courts have said about what jurors should be told about how it operates. And in the process, the courts have been forced to disregard a half dozen of the most basic rules of statutory construction. As a result, even a brief review of the most fundamental aspects of this law set forth in the reported judicial opinions is like a trip with Alice through the Looking-Glass to a land where nothing is as it seems.

The Many Mistakes the Virginia Courts Have Made
We must begin by carefully distinguishing between two different rules contained within Code § 18.2-183:

(1) First, the law provides that if the accused failed to make payment on a check within five days after receiving written notice that his check had been dishonored by the bank for insufficient funds, such facts “shall be prima facie evidence of intent to defraud or of knowledge of insufficient funds” to cover the check.4

(2) Second, the law also provides: “When a check is drawn on a bank in which the maker or drawer has no account, it shall be presumed that such check was issued with intent to defraud, and the five-day notice set forth above shall not be required in such case.”5 This presumption is triggered if the defendant wrote a check on an account that never existed, or even if he once had a valid account that was somehow closed before the check was written.6 Notice that this section of the statute, unlike the first, makes no mention of “prima facie evidence” of intent, but instead declares that criminal intent “shall be presumed” in such cases.

Let us turn our attention first to the five-day rule, which says that failure to make payment within five days of written notice shall be “prima facie evidence” of the defendant’s intent to defraud.7 The Virginia Supreme Court and Court of Appeals for decades have been claiming that this rule creates a “rebuttable presumption” of intent.8 That is a strange thing to say, because neither the title nor the text of this five-day rule includes the word presume, a word that appears in over one hundred Virginia statutes. The General Assembly has made it perfectly plain that it knows how to create a presumption when it intends to do so. In other contexts, when a statute states that certain facts shall be “prima facie evidence” of some conclusion, the Supreme Court of Virginia has normally interpreted that language as merely creating a permissive inference,9 which (as the court has taken pains to clarify) is not the same as a presumption.10

It is especially strange to interpret the “prima facie evidence” clause as creating a presumption in § 18.2-183, because the final paragraph of that same statute, by contrast, actually does employ the ordinary language of a true presumption. That clause, remember, provides that when a check is drawn on a bank in which the defendant had no account, “it shall be presumed that such check was issued with intent to defraud.” That language makes all the more unnatural the continuing insistence of the courts that the very different “prima facie evidence” language of the five-day rule also creates the same type of presumption. That conclusion flies in the teeth of the well-settled principle that “when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”11

Now let us consider the other rule for a moment. When it comes to cases where the accused drew a check on a bank in which he has no account, it is not surprising that § 18.2-183 has been interpreted as defining a legal presumption. After all, the “no account” rule does say that fraudulent intent “shall be presumed” in such cases. But it is more than passing strange that the courts have repeatedly insisted that this is a rebuttable presumption.12 Nothing about the language of this law sounds like a rebuttable presumption. When that law says that intent “shall be presumed,” without more, it sounds just like the language of a conclusive presumption. If the legislature had intended to make this a rebuttable presumption, it ordinarily would have said that intent to defraud “shall be presumed, unless the accused comes forward with evidence that he did not have such intent,” or something like that. But there is no such hint in the rule.

Indeed, although there are dozens of Virginia statutes that declare that certain facts “shall be presumed,” many of these statutes add an explicit provision that the presumption “may be rebutted,” and just as many do not. For one of many possible examples, one Virginia statute declares:

Where any person has because of advanced age or impaired health either voluntarily or involuntarily become a patient in a nursing home, a convalescent home, or a similar institution, the place of legal residence of such person shall be presumed to be the same as it was before he became such a patient; provided, however, that such presumption may be rebutted by competent evidence.13

This language, which appears in over a dozen Virginia statutes,14 makes it plain enough that the General Assembly knows how to create a rebuttable presumption when it wishes to do so, which would ordinarily imply that it did not intend to do so in § 18.2-183.15 If a statute declaring merely that a fact “shall be presumed” is to be construed as impliedly creating a presumption that may be rebutted — as the Virginia courts have concluded in construing Code § 18.2-183 — then the last 11 words in the statute quoted above are simply meaningless. That conclusion would “violate the settled principle of statutory construction that every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary.”16

There is something even more bizarre about the repeated insistence of the courts that both sections of § 18.2-183 create a rebuttable presumption. Not only is that conclusion inconsistent with the language of the statute, as we have seen; it is also belied by what those same courts have said about the way both sections of this statute supposedly operate. The Supreme Court of Virginia has repeatedly said that the presumption created by this statute is “rebuttable,” but has not yet said one word to explain precisely what that means in the context of this statute.17 The Virginia Court of Appeals, in Sykes v. Commonwealth, recently explained that this presumption is supposedly “rebuttable” in the sense that it merely serves to “put the burden on the defendant to introduce evidence to explain or excuse.”18 But that would be unheard of. There is no such thing under American law as a presumption establishing an element of a criminal charge that allocates either the burden of production or the burden of persuasion to the defendant.19 Here in Virginia, “the general instructions given in virtually every criminal jury trial … reflect general principles of criminal law and procedure including that the defendant is not required to produce any evidence.”20 Indeed, in support of its mistaken assertion about how a rebuttable presumption supposedly operates in a criminal case, the only authority cited by the Court of Appeals in Sykes was a Virginia case that had long since been overruled by the Supreme Court of the United States.21

Moreover, the standard Virginia jury instructions in bad check prosecutions do not say one word to the jury about the supposed “burden” that the statute allegedly places on the accused to introduce evidence to explain or excuse his conduct. They instruct the jury on what it may infer from the prosecution’s proof, but make absolutely no reference to whether the proof was rebutted, nor any reference to what (if anything) the defendant did or did not prove or explain at trial, or how that should affect the jury’s decision.22 Practically speaking, this means that any theoretical talk of a burden on the defendant is sheer nonsense. If the jurors know nothing about the defendant’s so-called “burden” of producing evidence, and are not told that the law attaches any specific consequence to his failure to meet that burden, then there simply is no burden on the defendant of any kind. There is no such thing in a criminal case as a burden of production that is kept secret from the jurors. If they don’t know about it, it does not exist.23

In a related mistake, the court of appeals has also recently explained that the presumption of § 18.2-183 is rebuttable in the sense that, if the defendant offers no evidence to rebut the inference of fraudulent intent, “the fact finder can infer that [he] had the requisite intent to defraud,” but is not obligated to do so.24 Likewise, the Virginia Model Jury Instructions instruct the jurors merely that “you may infer” the defendant’s intent to defraud if he failed to make payment within five days of written notice that the check was bad,25 or if he wrote the check on a bank where he had no account.26 That, the Virginia appellate courts have told us, is another reason why this statute supposedly involves a “rebuttable presumption.”

But if that is how this statute operates, as the Virginia courts consistently insist, it is not a rebuttable presumption!27 If the fact finder is only permitted to infer fraudulent intent but is not required to do so, even when the prosecution’s proof is unrebutted, then this law is not a true presumption at all, rebuttable or otherwise, but is merely a permissive inference.28 A genuine “rebuttable presumption,” by definition, “is a presumption which the law requires the trier of fact to make where the prerequisite base facts have been established and where no contrary evidence has been produced,”29 and therefore requires the judge to instruct the jury “that it must find the presumed element unless the defendant persuades the jury not to make such a finding.”30 Under Virginia law, a true presumption “is a rule of law that compels the fact finder to draw a certain conclusion or a certain inference from a given set of facts.”31 It is “this mandatory effect” that “distinguishes presumptions from permissive inferences,”32 which do not compel a specific conclusion and allow the jury to attach to the proven base facts “whatever force or weight it deems best.”33 That is why “[t]he term ‘presumption’ is a misnomer in criminal cases…. Criminal presumptions relating to elements of a charged offense are best understood not as presumptions at all, but as permissive inferences that the trier may or may not draw as it chooses.”34

So the Virginia courts are simply confused when they say, just about every chance they get, that this law involves any sort of a “presumption.” But that is a very good thing, since this law would be unconstitutional if it truly created a rebuttable presumption, and any judge would violate the constitution if she told a jury that it did. Both of these points were plainly settled twenty years ago by the United States Supreme Court in Francis v. Franklin,35 which held that it is a denial of due process to instruct a jury that a criminal defendant’s intent is to be “presumed” from certain other facts, even if the jury is told “the presumption may be rebutted.”36 Such language is unconstitutional when it is likely to be interpreted as an indication that the jury “was required to infer intent” from certain facts proved by the prosecution “unless the defendant persuaded the jury that such an inference was unwarranted.”37 In Francis and other cases, the Supreme Court has cast grave doubt on any suggestion “that a presumption can be used to shift the burden of production with respect to an element of the crime.”38 This is, no doubt, why the Virginia Model Jury Instructions Committee has sensibly recommended, in cases governed by § 18.2-183, that the jury be told nothing about the fact that the law involves any sort of a “presumption,” or that it supposedly shifts to the defendant any burden of producing evidence or an explanation.39

So Where Do We Go From Here?
So what should the jury be told about Code § 18.2-183? Not much, that is for sure. To be on the safe side, nothing at all.

Surely the jury must never be read the patently unconstitutional language stating that knowledge and intent “shall be presumed” when the check was drawn on a nonexistent account or an account that had been closed. Nor should the jury be told by anyone, either in the judge’s instructions or the prosecutor’s closing argument, that this law represents, in the words of the Virginia courts, any sort of a “presumption,” rebuttable or otherwise, on the pivotal issue of the defendant’s criminal intent. That is out of the question after Francis v. Franklin. Legal experts agree that “the very term ‘presumption’ is best avoided altogether in criminal jury instructions, at least when used against the defendant.”40

It would also be ideal if the appellate courts of this state would immediately cease their constant description of this law as a presumption statute. Of course that mistake will never prejudice any defendant as long as it is confined to the pages of judicial opinions and never communicated to the jurors (although there is still something bizarre about a top secret presumption that dare not speak its name). But as long as the courts continue their incessant practice of referring to this law as creating a presumption of intent to defraud, judges and prosecutors and even defense attorneys who read those opinions will inevitably be more likely to slip up and use that language in the presence of the jury, perhaps during opening statement or closing argument.41

But what about the more modest recommendation of the Virginia Model Jury Instructions Committee that the jury be told only that it “may infer” the defendant’s fraudulent intent from the fact that he made no payment within five days of receiving written notice of his bad check, or that he wrote the check on a bank where he had no account? That language is much better than saying the law “presumes” such facts, although it is still problematic in view of the likelihood that the jurors will not perceive this language as being much less coercive, especially when they hear it coming from the judge.42 That is the main reason the Federal Judicial Center has sensibly recommended that permissive inferences should not be routinely explained to the jury by the judge, and are better left to closing argument by counsel.43 Moreover, when the jury is explicitly told that the legislature has determined that some fact is sufficient to permit (although not require) a finding against the accused, the likelihood of the jury being unduly influenced by such an instruction is “fraught with constitutional difficulties.”44

At least in cases where the accused drew a check on a bank where he had no account, it is possible that a permissive inference instruction might not substantially undermine the fairness of the trial. Jurors will not be too surprised by a judicial declaration that they “may,” if they wish, infer a sinister intent from the obviously suspicious fact that the accused wrote a check on a nonexistent account. They would instinctively recognize that the judge was not really telling them about the law so much as reminding them of a truism about human behavior that everyone intuitively understands – which is exactly what permissive inference instructions always do.45

But there is something very different about the Virginia Model Jury Instruction that tells a jury it may infer fraudulent intent if the accused is notified about the problem with his check and “the holder is not paid within five days of receipt of notice.”46 This instruction is routinely employed in jury trials, and has been approved by the court of appeals.47 In one respect, it obviously bears a superficial resemblance to a typical permissive inference, which always tells the jury what it is free to infer if it wishes.

But in a more fundamental respect this charge is nothing like a typical permissive inference, as the jury is sure to instinctively perceive. There is something downright unnatural about any permissive inference that contains the phrase “five days” — or that even mentions the word “five.” Indeed, to state the matter plainly, permissive inference instructions about the conduct of the accused never mention numbers.

For example, the most well-known permissive inferences in criminal cases invite the jury to infer the defendant’s consciousness of his guilt if he “leaves the place where a crime was committed; flees to avoid prosecution; flees to avoid detection, apprehension or arrest; [or] intentionally assumes a false name immediately after the commission of a crime,”48 or if he gives the police exculpatory statements he knows to be false and misleading.49 All that makes perfect sense.50 Yet it would be ludicrous to tell a jury that it could draw an adverse inference as to the defendant’s guilt if – but only if — the proof showed that he fled the location of the crime “by a distance of more than five miles,” or that he assumed a new name “less than seven days after the crime,” or that he “told the police at least three lies” about the night in question. A jury that heard such things would surely think the judge was telling them something special and unexpected about the law, unless they concluded that he had simply lost his mind.

It is no coincidence that permissive inference instructions about the defendant’s conduct never involve numbers, since they merely remind the jury about fundamental and familiar truisms of human nature. The probative value of circumstantial evidence about human behavior and psychology can never be expressed in a mathematical formula.51

True presumptions, on the other hand, are not shorthand summaries of psychological truths, but rules of law. And jurors instinctively understand that legal rules of every sort – deadlines, statutes of limitations, monetary jurisdictional limits, elements of the charge involving the value of stolen property, rules turning on the age of the parties, and a thousand others – routinely involve numbers and the mechanical precision that comes with them. For one of many possible examples, Virginia is typical of many states in providing that a man is presumed to be dead if the unrebutted evidence shows that he left the Commonwealth and has not been heard from “for seven years successively.”52 Juries are not likely to struggle with the application of such a rule, because they understand just what it is: a rule of law that somehow ties their hands and constrains their discretion with an important but nevertheless arbitrary line that vests the number seven with far more importance than common sense alone would ever give it. In short, it is a true legal presumption.

And this is the fatal problem with the common instruction in Virginia that suggests to jurors that they may infer something sinister about the defendant’s intent if (and only if) he waited more than five days to make payment after learning his check was bad. Outside of a courtroom, nobody reasons that way about the intentions and motives of others. So even though this instruction is dressed up in some of the trappings of a permissive inference by telling the jury what it “may infer,” the seemingly mechanical precision of this standard will inevitably mislead the jurors into believing they are being told something terribly significant about what the law expects of them in the supposedly special case where the defendant’s delinquency crosses over from five days to six days.

That unavoidable appearance is both unfair and inaccurate. It is unconstitutional and unfair to the accused, because permissive inferences in criminal cases must never be worded with “legalistic phrases … which suggest that some high authority has already made the decision and that it is cloaked in special dignity meriting great respect.”53 And it is inaccurate to boot, because § 18.2-183 as it has been interpreted by the courts, just like any other truly permissive inference, does not actually attach any real legal significance to the line between four days or five days or six days! Even if an accused beat the supposed “deadline” and made payment on the fifth day but arguably had no good reason for waiting that long, the fact of his delay is still admissible against him for whatever weight it is worth in the eyes of the jury.54

An accurate jury charge that tried to honestly explain § 18.2-183 as it has been judicially construed would have to include something very close to the following:

Ladies and gentlemen of the jury, if the proof shows that the accused made no payment on the check within five days after he received written notice of his deficiency, even if that evidence is neither contradicted nor explained by him, you are not required to do anything with that fact at all. You may ignore it completely if you’d like. You should only give it as much or as little weight as it seems to deserve in this case, although you may infer, if you wish, that his delay is some evidence that he knew the check was bad or that he intended to get away with it, at least when he wrote the check. Likewise if you conclude that he took four days to pay without a good reason. Same with six days. Or three days. Or seven. And did I mention eight days? Don’t get me started!

This is admittedly gibberish, and tells the jurors nothing they did not already know. But this is more or less what the jurors must be told (assuming they are told anything about this law at all) if the defendant is to be given a fair trial. Without an instruction this detailed, and this silly, no juror will ever have an accurate understanding of how thoroughly this statute has been emasculated by the courts in a pitiful effort to cure its patent unconstitutionality. There is no way that any jury would understand what I have explained here if it merely received the standard instruction involving the supposedly special rule for cases that cross over the five day threshold.

Prosecutors know well enough that this statute gives them an unfair advantage by virtue of the likelihood that it will be misunderstood by the jury. That is why prosecutors routinely request and obtain a jury instruction that the jurors may infer intent to defraud from a five-day delay in payment even in cases where the defendant never made payment on the check at any time before trial.55 In any case where the defendant has made no payment through the time of trial, usually at least several months after the check was written, it makes no sense to tell the jury that it may infer fraudulent intent from a delay of five days. It would be like a murder case in which the judge weighs in with an instruction advising the jury that “you may, if you wish, infer that this was neither an accident nor self-defense if you conclude that the accused stabbed the deceased at least five times” – when the undisputed proof is that the defendant stabbed his alleged victim 20 times. Such a charge is unnecessary and confusing, and gives the prosecutor no advantage but the illegitimate benefit that will inevitably result when the jury mistakenly concludes there is some arbitrary legal significance to the line between five stab wounds and six – or the line between five and six days of delay in making payment on a check.

Summary: Good News, Bad News
Looking back now, it is quite likely that the framers of the original version of Code § 18.2-183 intended for it to operate much like a presumption. The “five day” rule was first written in 1920, back when courts all over America still believed that rebuttable presumptions could be used to help establish the criminal intent of the accused.56 Even as recently as 1972, the state supreme court was able to casually make the remarkable concession that the law was intended to help relieve the prosecution “of the difficulty encountered in proving the requisite intent to defraud and knowledge of insufficient funds.”57 That sounds preposterous to us now in hindsight, but the court was able to say such an outrageous thing because that was years before Sandstrom v. Montana58 made it plain that the Constitution does not allow the use of presumptions to help out a prosecutor struggling with that troubling “nuisance” of having to prove the guilt of the defendant beyond a reasonable doubt. And of course the law would hardly do anything to help the prosecutor with that challenge if, as the courts now tacitly insist, it was supposed to work like nothing more than an ordinary permissive inference.

So it is very likely that Code § 18.2-183 really was intended to work like a presumption.59 That’s the bad news, because it would make the statute unconstitutional. Or it would be bad news, but for the fortunate fact that the General Assembly instead used the classic language of a permissive inference, at least as to the “five day” rule. That’s the good news. Or it would be good news, except for the fact that the rule has nevertheless been called a “rebuttable presumption” by the courts for years. That would be bad news, except for the fact that those same courts have also said in unwitting contradiction that the statute merely permits the jury to infer whatever it pleases, which means it is not really a presumption at all, but only a permissive inference. That would be good news, except there is no such thing as a permissive inference with numbers in it, so any instruction that is even remotely faithful to the language of this bizarre rule will surely be misinterpreted by any jury as operating just like a presumption. And that really is bad news, because the Constitution utterly forbids any judicial instruction that is so very certain to give the jury that impression.

So Virginia Code § 18.2-183 was intended as a presumption but worded like an inference that the courts call a presumption even though they say it works exactly like an inference but there is no way to explain it to jurors without leading them to think that it works just like a presumption. You got that?

So where does this leave us? Virginia Code § 18.2-183 is unconstitutional if it is explained to the jury either as it is written, or as the courts have interpreted it. The only way to spare the statute from constitutional infirmity, as the Virginia Model Jury Instructions Committee has implicitly acknowledged, is to almost entirely ignore the wording of the statute and to so thoroughly emasculate its operation that it ends up telling the jurors nothing they did not already know, and even then it carries an inherent and intolerable risk of misleading them as to the extent to which their discretion is limited by the “law” that is not really a law at all.

It is time to come clean and stop this charade once and for all. Everybody makes mistakes. There is no disgrace in admitting that the General Assembly wrote a statute back in 1920 at a time when many respectable courts and legislatures believed that presumptions could be used in criminal cases, even on essential elements of the charge, to help the prosecution in tough cases. We now know that is false. The General Assembly needs to repeal this law as soon as possible. In the meantime, honest and ethical trial judges and prosecutors who care deeply about doing justice — and those who simply wish to avoid being reversed – need to ignore §18.2-183 completely and pretend it does not exist. Return to Top

NOTES
1. Cook v. Commonwealth, 178 Va. 251, 257, 16 S.E.2d 635, 637 (1941).
2. Id. at 255, 16 S.E.2d at 636 (“The so-called ‘Bad Check’ statute … had its inception in the 1920 session of the General Assembly…”).
3. Of all the many reported judicial opinions applying or interpreting § 18.2-183 since the beginning of World War I, including every one cited in this article, not one has passed up the chance to mention that this statute, in cases where it applies, supposedly creates a “presumption” of fraudulent intent that “may be rebutted.”
4. Virginia Code § 18.2-183. If this article were being published in a “prestigious” journal edited by students at a top-flight law school, they would insist that I make mention of the obvious fact that the italics that appear in the text were added by me. After law school, these student editors eventually discover with amazement that no statute contains italics.
5. Id.
6. Sykes v. Commonwealth, 42 Va. App. 581, 588, 593 S.E.2d 545, 549 (2004).
7. These three words also appear in the title of the statute: “Issuance of bad check prima facie evidence of intent and knowledge; notice by certified or registered mail.” Virginia Code § 18.2-183.
8. Huntt v. Commonwealth, 212 Va. 737, 739, 187 S.E.2d 183, 186 (1972) (failure to make payment within five days of notice creates “a rebuttable presumption of the necessary intent and knowledge”); Cook v. Commonwealth, 178 Va. 251, 258, 16 S.E.2d 635, 638 (1941) (five day presumption “may be rebutted”); Motsinger v. Commonwealth, No. 1406-98-3, 1999 WL 1129837, at *1 (Va. Ct. App. Apr. 19, 1999) (five-day rule creates a “rebuttable presumption of intent”); Bagheri v. Commonwealth, 12 Va. App. 1071, 1075, 408 S.E.2d 259, 262 (Va. Ct. App. 1991) (failure to make payment within five days “is sufficient to invoke the rebuttable presumption of Code § 18.2-183”).
9. In its most recent interpretation of this same phrase in a criminal statute, for example, the Supreme Court of Virginia considered a law that provides that the burning of a cross in a public place or on the property of another “shall be prima facie evidence of an intent” to intimidate another person. Virginia Code § 18.2-423. The court concluded that this statutory language was accurately summarized by a jury charge that “[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent.” Elliott v. Commonwealth, 267 Va. 464, 469, 593 S.E.2d 263, 266 (2004).
10. Martin v. Phillips, 235 Va. 523, 526 nn. 1-2, 369 S.E.2d 397, 399 nn. 1-2 (Va. 1988). We will return to the precise details of that difference shortly.
11. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2754 n.9 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction § 46:06, p. 194 (6th ed. 2000)). See also Pollok v. Commonwealth, 217 Va. 411, 413, 229 S.E.2d 858, 859 (Va. 1976) (where two different terms were employed in two different provisions of the same Act, “[u]nquestionably, the General Assembly intended the two terms to have different meanings and designed them to serve varying purposes”).
12. Patterson v. Commonwealth, 216 Va. 306, 308, 218 S.E.2d 435, 436 (1975) (the “no account” presumption is “rebuttable”); Sykes v. Commonwealth, 42 Va. App. 581, 588, 593 S.E.2d 545, 548 (2004) (same).
13. Virginia Code § 64.1-76 (“Residence of patient in nursing home, convalescent home, etc.”).
14. There are over a dozen Virginia statutes (like Code § 18.2-183) that declare that some fact “shall be presumed,” and then go on to explicitly clarify (unlike Code § 18.2-183) that such presumption is “rebuttable” or “may be rebutted.” E.g., Virginia Code §§ 8.01-46.1, 15.2-2314, 19.2-159, 33.1-346, 33.1-373, 38.2-1322, 38.2-1603, 38.2-4230, 46.2-1209, 58.1-2224, 62.1-194, 63.2-1202, 63.2-1233, and 64.1-76. Others explicitly create a “rebuttable presumption,” in those exact words. E.g., Virginia Code § 46.2-341.27.
15. As the Supreme Court recently stated when construing another statute: “We note that had the General Assembly chosen to create a situs for satellites, it certainly knew how to do so because the General Assembly made references to satellites in other statutes found in Title 58.1 of the Code.” City of Virginia Beach v. Int’l Family Entertainment, Inc., 263 Va. 501, 507, 561 S.E.2d 696, 700 (2002). One could argue with equal force that had the General Assembly chosen to create a rebuttable presumption under § 18.2-183, it certainly knew how to do so because it has made references to “presumptions that may be rebutted” in many other statutes scattered throughout the Code.
16. Sansom v. Bd. of Supervisors, 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999).
17. See cases cited supra notes 8 & 12.
18. Sykes v. Commonwealth, 42 Va. App. 581, 588, 593 S.E.2d 545, 548 (Va. Ct. App. 2004) (quoting Johnson v. Commonwealth, 188 Va. 848, 855, 51 S.E.2d 152, 155 (1949)).
19. Christopher Mueller & Laird Kirkpatrick, Evidence 145 n.5 (3rd ed. 2003) (“We know of no presumption establishing an element of a charged offense that allocates either the burden of production or the burden of persuasion to the defendant.”)
20. Elliott v. Commonwealth, 267 Va. 464, 470, 593 S.E.2d 263, 266-67 (2004) (emphasis added).
21. In Sykes, 42 Va. App. at 588, 593 S.E.2d at 548, the Court of Appeals explained the operation of a rebuttable presumption in a criminal case by quoting the 1949 decision in Johnson v. Commonwealth, 188 Va. 848, 855, 51 S.E.2d 152, 155 (1949). That reliance was most unfortunate. The Johnson case erroneously approved the exact same presumption instruction that was struck down as unconstitutional three decades later in Sandstrom v. Montana, 442 U.S. 510 (1979), which thereby unmistakably overruled Johnson sub silentio.
22. Virginia Model Jury Instructions – Criminal, Instruction No. 9.300 (2003). This instruction has been specifically approved as an accurate statement of the law, at least in an unpublished opinion. Motsinger v. Commonwealth, No. 1406-98-3, 1999 WL 1129837 (Va. Ct. App. Apr. 19, 1999) (holding that this instruction “clearly stated the principle of law codified in Code § 18.2-183”).
23. In a civil case, of course, a burden of production need not be disclosed to the jury when it is employed as the basis for a partial directed verdict against the party who fails to meet its burden of producing evidence on some issue. But a verdict can never be directed against the accused in a criminal case, not even on a single narrow issue of disputed fact. Rose v. Clark, 478 U.S. 570, 578 (1986).
24. In its most recent opinion interpreting this statute, the Virginia Court of Appeals twice said that the jury “can” – not must – infer intent if the presumption is unrebutted. Sykes, 42 Va. App. at 588, 590; 593 S.E.2d at 548, 549-50. No Virginia appellate court has ever suggested otherwise, or held that the jury “must” find intent if the presumption is unrebutted.
25. Virginia Model Jury Instructions – Criminal, Instruction No. 9.300 (2003) (“If the holder of a check sends a notice to the maker of a check by certified or registered mail, evidenced by return receipt, at his last known address and the holder is not paid within five days of receipt of notice, you may infer that the maker had the intent to defraud or had knowledge of insufficient funds in, or credit with, the bank.”).
26. Id., Instruction No. 9.350 (“When the check is drawn on a bank in which the maker has no account, you may infer that the check was issued with the intent to defraud.”).
27. Ironically, although this conclusion is made manifest by the language of the Model Jury Instructions, which are worded just like a permissive inference and nothing like a presumption, see supra notes 25-26, those same Model Instructions are titled “Presumption of Intent – Notice to Maker,” and “Presumption of Intent – No Account.” Confusion reigns everywhere in the wake of this law.
28. Courts often mistakenly use the term presumption to “refer to conclusions that are permitted but not required. The term ‘inference’ is a better word to describe what is happening here, and using the term ‘presumption’ clouds the message because inference doctrines seldom generate a mandatory instruction like the ones given for presumptions.” Mueller & Kirkpatrick, supra note 19, at 112. See also 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 301.02[1] (2d ed. 1997) (“An inference is not a presumption.... An inference is distinguished from a presumption in that in an inference, the existence of Fact B may be deduced from Fact A by the ordinary rules of reasoning and logic whereas in a presumption, the existence of Fact B must be assumed because of a rule of law.”) This is consistent with the meaning of those same terms under Virginia law. Martin v. Phillips, 235 Va. 523, 526 nn. 1-2, 369 S.E.2d 397, 399 nn. 1-2 (Va. 1988).
29. Glen Weissenberger & James J. Duane, Weissenberger’s Federal Evidence 62 (4th ed. 2001) (emphasis added).
30. Francis v. Franklin, 471 U.S. 307, 317 (1985) (emphasis added).
31. Martin, 235 Va. at 526, 369 S.E.2d 397, 399 (Va. 1988).
32. Mueller & Kirkpatrick, supra note 19, at 119.
33. Martin, 235 Va. at 526 n.1, 369 S.E.2d at 399 n.1.
34. Mueller & Kirkpatrick, supra note 19, at 140. Accord Weinstein & Berger, supra note 28, § 303.04[2] (a presumption in criminal cases “does not have the procedural consequences of a true presumption,” and “is a mere permissive inference.”)
35. 471 U.S. 307 (1985).
36. Id. at 309.
37. Id. at 318.
38. Mueller & Kirkpatrick, supra note 19, at 143. See also John L. Costello, Virginia Criminal Law and Procedure 863 (10th ed. 2002) (“Some mandatory presumption instructions still buried deep in state practice could be viewed as ‘merely’ shifting a burden of producing evidence onto the accused to rebut the conclusion of law. However, they would be constitutionally infirm under that construction, too, because due process of law requires that the state prove every fact essential to establishment of the charge.”); Gov’t of Virgin Islands v. Parrilla, 7 F.3d 1097, 1105 (3rd Cir. 1993) (“presumptions of intent are particularly hazardous,” especially in criminal cases).
39. The Model Jury Instructions merely tell the jury what it “may infer.” They neither make any mention of the word “presume,” nor any reference to what (if anything) the defendant proved or explained at trial. See supra notes 25-26.
40. Mueller & Kirkpatrick, supra note 19, at 140. Even in a civil case, most commentators “agree that presumptions should not be mentioned to the jury…. [B]ecause the jury may mistakenly attribute effects to the term other than those described by the judge and prescribed by the rule, the judge should avoid the word.” Weinstein & Berger, supra note 28, § 301.02[1].
41. Do not think me a hypocrite just because I reiterate the same mistake of referring to this statute, one last time, as a “presumption” in the title of this article. I use that familiar description for old time’s sake, since everyone in Virginia has been calling it that for decades, and I want the title of this article to catch the eye of judges and other important individuals who will surely think they know what I am talking about. With a little luck this is the last time any of us will see the statute so described in print.
42. Mueller & Kirkpatrick, supra note 19, at 148 & n. 19.
43. The Pattern Criminal Jury Instructions published by the Federal Judicial Center recommend that the following time-honored permissive inferences should no longer be routinely handled by jury instructions and should instead be entrusted to closing argument by counsel: “Impeachment by Prior Inconsistent Statements” (Instr. 32), “Use of Witness’s Prior Consistent Statements” (Instr. 34), “Inference from Fact that Witness Not Called” (Instr. 39), “Defendant’s Incriminating Actions After the Crime” (Instr. 43), “Defendant’s False Exculpatory Statements” (Instr. 44), and “Defendant’s Failure to Respond to Accusatory Statements” (Instr. 45). The Commentary to each of those proposed instructions specifically recommends that such matters generally be left to argument by counsel. See Federal Judicial Center, Pattern Criminal Jury Instructions (1987).
44. Weinstein & Berger, supra note 28, § 303.10[2].
45. That is another reason the federal courts no longer generally cover such topics in jury instructions but sensibly prefer that they be left to closing argument by counsel. See supra note 43.
46. See supra note 25.
47. Motsinger v. Commonwealth, No. 1406-98-3, 1999 WL 1129837 (Va. Ct. App. Apr. 19, 1999) (unpublished).
48. Virginia Model Jury Instructions – Criminal, at I-29 (2003).
49. Federal Judicial Center, Pattern Criminal Jury Instructions, Instruction 33 (1987).
50. Indeed, such points are so obvious that there is no real need to cover them at all in jury instructions, as the federal courts have recognized. See supra note 43.
51. Other evidence, not involving human behavior, is obviously different. That is why some states, for example, allow permissive inferences to be drawn from numerical values assigned to scientific test results, such as a permissive inference of intoxication drawn from a chemical measurement of the blood alcohol content of the defendant’s blood.
52. Virginia Code § 64.1-105(A)(1).
53. Mueller & Kirkpatrick, supra note 19, at 147.
54. The drawer of the check may be prosecuted even if he made payment within the specified five-day period. Cook v. Commonwealth, 178 Va. 251, 258, 16 S.E.2d 635, 638 (1941). His subsequent “dealings with the holder after issuing the check,” including his length of delay in making payment and whether he paid in part or in full, are relevant “in helping to establish the operative fact of fraudulent intent” and “insofar as they tend to prove or disprove” his criminal intent on the date the check was drawn. Id. at 259-60, 16 S.E.2d at 638.
55. In one recent case, for example, the prosecutor obtained the standard “five day” charge over the defendant’s objection even though “the evidence established that appellant never paid the amount due on the outstanding checks.” Motsinger v. Commonwealth, No. 1406-98-3, 1999 WL 1129837, at *3 (Va. Ct. App. Apr. 19, 1999) (unpublished opinion; emphasis added).
56. Three decades after the rule was written, even the state supreme court still believed that the Commonwealth could constitutionally use a presumption to establish the intent of the accused. See Johnson v. Commonwealth, 188 Va. 848, 855, 51 S.E.2d 152, 155 (1949).
57. Huntt v. Commonwealth, 212 Va. 737, 739, 187 S.E.2d 183, 186 (1972).
58. 442 U.S. 510 (1979).
59. This conclusion is strongly supported by the supreme court’s holding long ago that payment by the accused on the check within five days would “merely negative the presumption of fraudulent intent which would otherwise obtain,” in which case “the Commonwealth would be required to prove affirmatively the existence of a fraudulent intent in the mind of the drawer,” Cook v. Commonwealth, 178 Va. 251, 258, 16 S.E.2d 635, 638 (1941), as if to imply that such “affirmative proof” would not be required in cases where the presumption applies. That does not sound like the operation of a permissive inference that the jury is free to accept or reject as it pleases. Return to Top

About the Author: James J. Duane is a professor at Regent Law School, where he has taught and written about evidence law for 14 years. He is the co-author of Weissenberger’s Federal Evidence (4th ed. 2001), and the author of over 20 articles on evidence law. He is a member of the New York State bar, and has significant practice experience in civil litigation and criminal defense. He is a graduate of Harvard College magna cum laude (1981) and Harvard Law School cum laude (1984). He is a member of The Virginia Bar Association, and the faculty of the Trial Advocacy Institute at the University of Virginia School of Law.

Across the Commonwealth

Under The Virginia Bar Association’s Bylaws, an ad hoc Nominating Committee each year presents candidates for open Board positions. The Immediate Past President chairs the Committee, and the President-Elect, Chair of the Board, and three other VBA members appointed by the President and approved by the Board serve as committee members. The 2005 Nominating Committee will be commencing its work soon, and input from all VBA members is invited.

Nominations are sought for the VBA Board of Governors Class of 2006, which will consist of one member from the Potomac Region (Judicial Circuits 17, 18, 19 and 31), one member from the Southwest Region (Judicial Circuits 23, 27,28, 29 and 30), two at-large members and a law faculty representative. The regional and at-large members will be elected to three-year terms; the law faculty representative will be elected to an initial one-year term, twice renewable.

In considering potential nominees, helpful attributes include leadership track record and potential; high professional standing; VBA involvement, including section/committee/division work, CLE participation, other bar organization activity, public service activity; interest and experience in legislative and public policy matters; collegiality and “people skills”; and financial acumen. Diversity of all types, whether personal, geographic or by practice type/size, is encouraged.

Suggestions may be sent to E. Tazewell Ellett, Chair, Nominating Committee, The Virginia Bar Association, Hogan & Hartson LLP, 555 13th Street NW, Washington, DC 20004; E-mail: ETEllett@hhlaw.com, or to the attention of Breck Arrington at the VBA office. Return to Top

Most Virginia lawyers are already involved in serving their communities through nonlegal service and/or pro bono publico legal service. Why not join the growing numbers of Virginia lawyers participating in the VBA Community Service Program in 2005? If you anticipate giving 50 or more volunteer hours this year, please sign up for the Program and receive credit for your work as a “VBA Community Servant” or “VBA Pro Bono Servant.”

The names of those persons who certified 50 or more hours of community service or pro bono publico legal service in 2004 were reported to The Honorable Leroy R. Hassell Sr., chief justice of the Supreme Court of Virginia, and Robert J. Grey Jr., president of the American Bar Association, in May, and are listed on the Community Service Program page.

Participants served their communities in assorted ways, from providing free legal services and assisting at legal aid offices to running soup kitchens, organizing fundraising events, coaching youth sports, volunteering as firefighters and EMTs, tutoring children and adults, building houses, and serving schools, civic groups, houses of worship and nonprofit organizations.

Persons who participate in the VBA Community Service Program and certify service hours for 2004 and/or 2005 will be recognized as members of the CSP Charter Club. Approximately 600 persons have already pledged service for 2005.

Already a Program participant? Please encourage your local bar colleagues, fellow committee and/or section council members, law firm members and former classmates to make a pledge today. The deadline for enrollment as a 2005 Servant is September 1, 2005. Copies of commitment forms are available at www.vba.org or from the VBA office.

Lawyers, judges, law faculty and administrators, and now law students (who will have a separate October 31 deadline for participation during the 2005-06 academic year) are all eligible to participate in the VBA Community Service Program. If you would like more information about the Program, please visit the VBA/CSP page at www.vba.org or call the VBA office at (804) 644-0041. Return to Top

The Virginia Bar Association has recently partnered with Premiere Global Services to provide members and their firms conferencing solutions at a cost-effective rate. There is no contract to sign and no term or volume commitments. In addition to their low rates offered to members, the Association will receive a modest percentage of the member participation.

The VBA has utilized Premiere’s Ready Conference© services for approximately a year for various committee and section activities, and has been pleased with the attentive customer service and significant savings received.

To receive more information on this new VBA service program, please call the VBA’s Premiere Account Manager, Russell Iglesias, at (703) 778-3563 or at Russell.iglesias@premiereglobal.com.
A complete list of VBA member benefits and services is available online at www.vba.org. Return to Top

Nominations for the 2006 Class of Virginia Law Foundation (VLF) Fellows will be accepted through September 12, 2005. The 2006 Class will be inducted at a dinner meeting at Kingsmill in Williamsburg on January 19, 2006, during The Virginia Bar Association’s 116th Annual Meeting.

Candidates must (1) be an active or associate member of the Virginia State Bar for at least 10 years; (2) be a resident of Virginia; (3) be a person of integrity and character; (4) have maintained and upheld the highest standards of the profession; (5) be outstanding in the community; and (6) be distinguished in the practice of law. Retired and senior status judges are eligible. Sitting full-time judges and constitutional office holders are not eligible during their tenures.

Nominations must be received by September 12 and should be submitted on a nomination form provided by the Virginia Law Foundation.

To obtain a nomination form, please contact the Virginia Law Foundation at 700 East Main Street, Suite 1501, Richmond, Virginia 23219, phone (804) 648-0112, or by e-mail at valawfdn@infionline.net.

To obtain a nomination form online and for a complete listing of current Fellows, please visit the website at www.virginialawfoundation.org. Return to Top

During the Virginia State Bar’s 67th Annual Meeting, June 15-19 in Virginia Beach, the Joint Committee heldld a business meeting open to all members. On June 18, the Virginia ADR Joint Committee and the VSB Family Law Section co-sponsored a session entitled “A New ADR Model for the 21st Century: An Intro to the Collaborative Family Law Process.” This session was followed by a presentation from the Collaborative Law Subcommittee addressing current issues and practice tips.

At The Virginia Bar Association’s 115th Summer Meeting, July 14-17 at The Greenbrier, the Joint Committee and the VBA Domestic Relations Section will co-sponsor a session entitled “Drinkin’ My Baby Goodbye: Dealing with a Substance Abuser in Family Law Matters.” This session will be held on Friday, July 15, from 9 to 10:30 a.m.

The Joint Committee and the VBA Domestic Relations Section will co-sponsor a program entitled “Ethics and Collaborative Law” on August 18 in Fairfax. For further information or to register for this program, please contact the VBA office.

For further information about the Virginia ADR Joint Committee or to join, please visit our website at www.vba.org/adrjtcom.htm. Dues are $25 per year and membership includes a number of benefits. Return to Top

The following midyear appointments to the Virginia Law Foundation (VLF) Board of Directors and the VLF Committee on Continuing Legal Education have been announced by The Virginia Bar Association:

Virginia Law Foundation (for three-year terms ending in June 2008):
VBA Past President and former Virginia Secretary of Transportation Whittington W. Clement of Richmond (Hunton & Williams LLP) and Monica Taylor Monday of Roanoke (Gentry Locke Rakes & Moore LLP) are each appointed to an initial three-year term.

VLF Committee on Continuing Legal Education (for one-year terms ending in June 2006): Douglas M. Nabhan of Richmond (Williams Mullen) and VBA Young Lawyers Division representative Cathryn A. Le of McLean (McGuireWoods LLP) are each appointed for an initial term; Elaine R. Jordan of Richmond (Sands, Anderson, Marks & Miller), Neil S. Lowenstein of Norfolk (Vandeventer Black LLP), Aubrey J. Rosser Jr. of Altavista, E. Ford Stephens of Richmond (Christian & Barton LLP) and Paul B. Terpak of Fairfax (Blankingship & Keith PC), are all reappointed for the coming year. Return to Top

Later this year, accessing certain areas of The Virginia Bar Association’s website will require a bit more effort than a simple mouse-click. In other words, VBA members will need a password to view protected areas of the website. This feature will protect members’ privacy and allow the VBA to provide more value-added features for members only. To simplify matters, each VBA member will have a unique user name which consists of that member’s ID number. The password will be the member’s ID number plus the first three letters of the member’s last name, as indicated by the following (facetious) example:

Member: Virginia B. Lawyer
User Name: 12345 (VBA member ID)
Password: 12345law
(member ID plus first three letters of last name)

Afraid you can’t remember your member ID? Watch the printed address label on the back cover of the VBA News Journal — member IDs are now being included with the address information. Return to Top

The John Marshall Foundation
invites you to save the date of September 24, 2005,
for a gala banquet
in honor of the 250th anniversary
of the birth of John Marshall, “The Great Chief Justice.” Return to Top

News in Brief

VBA Past President John M. Ryan of Vandeventer Black LLP in Norfolk has been elected to a three-year term on the national board of directors for the Maritime Law Association (MLA) of the U.S. He previously served as chair of the MLA Stevedore and Marine Terminal Committee.

VBA President James V. Meath of Richmond and the Labor & Employment Section of Williams Mullen have once again been ranked first in Virginia under the category of Employment: Defendant in Chambers USA: America's Leading Lawyers for Business, 2005 edition. This is the third consecutive year that Meath and Williams Mullen's Labor & Employment Section have received highest honors.

Douglas L. Guynn of Staunton, chair of the VBA Judiciary Committee and member of the VBA Community Service Program Council, has been elected a Fellow of the American Bar Foundation. He serves as special counsel with the Education Law Group of Timberlake, Smith, Thomas & Moses PC and as Staunton’s city attorney.

C. Thomas Burke of Richmond, vice chair of the VBA Transportation Law Section Council, has been elected a Fellow of the Foundation of the Federal Bar Association. A former Panama Canal commissioner and active volunteer leader of the FBA, he is senior advisor to the president and CEO of K Line America. Return to Top