Free for All: Lawyers & Leadership

A recent academic study by Professor Jayne W. Barnard of the College of William and Mary’s Marshall-Wythe School of Law (and The Virginia Bar Association Executive Committee’s law faculty representative) confirms what many lawyers have long known: that lawyers disproportionately serve as leaders of nonprofit, arts, and community organizations.

Compared to persons in other professions, they also are more likely to vote, more likely to participate in political campaigns, more likely to serve as appointed or elected officials, and more likely to volunteer for nonprofit organizations.

As for leadership, over 50 percent of the lawyers responding to the survey reported that they currently were serving in a leadership position in at least one nonprofit organization. More than 25 percent reported that they currently were serving in a leadership position in at least three non-profit organizations.

A fair question is, “Why do these lawyers choose to lead?” They certainly have other demands on their time.

In order to find the answer, Professor Barnard surveyed members of the governing bodies of The Virginia Bar Association, the American Inns of Court Foundation, the National Bar Association, the Hispanic National Bar Association, and the National Asian Pacific American Bar Association. Their answers, below, give us a good idea about the satisfactions that leadership can provide.

Why Lawyers Engage in Leadership Activities
(Percent of respondents checking each item)

96%: It’s fun and it gives me pleasure to be involved with these groups;
90%: It exposes me to interesting ideas and interesting people;
84%: I think that the groups with which I am involved have something important to offer to others;
78%: I think I can make a real contribution to the groups with which I am involved – I really have something to offer to them;
72%: I think volunteering is part of the privilege of being a lawyer; it comes with the territory;
52%: I regard volunteering as a moral obligation;
46%: It is a good way to make contacts that enhance my professional reputation;
30%: I like the recognition I receive from others;
30%: I enjoy the feeling of being “a leader;”
18%: It’s one way of making the practice of law more palatable;
8%: My law firm (or other employer) expects it of me;
8%: I regard volunteering as a religious obligation;
6%: It’s a business-getter, pure and simple – this is one way I network for new clients;
4%: If I want to advance to a higher level within my profession (e.g., partnership, judgeship, promotion within my office), this is part of the ticket-punching process;
2%: It’s a way to escape going home at the end of the day.

Source: Jayne W. Barnard, Lawyers as Leaders Study (2001). Return to Top

President’s Page: Seeking Impact
Jeanne F. Franklin

As I write this, our land is still bare from winter’s bleak climate. The beauties and wonder of Virginia’s lush landscapes are not yet apparent to the longing eye; possibly there is some symbolism in that.

For, as I write this, your volunteer leadership and staff are hard at work to bring into fruition the promise of our strategic plan, the seeds of which were sown last year under the presidency of Anita Poston.

We are determined that, as a result of our work, you will see The Virginia Bar Association bear further fruit in its traditional areas of emphasis: on professionalism as an entire way of life, on public service as the privilege and fundamental responsibility of lawyers which is no less important than serving our clients, and on our commitment to provide the General Assembly with objective legislative assistance. We view these as the special contributions our Association and its members can make to the administration of justice.

The fact is that when you join the VBA, when you become a Patron of the Association, when you volunteer for a section or committee or some other activity, you in effect become a steward of this work.

We take your stewardship seriously, and in exchange for it, our obligation is to make sure that you derive personal satisfaction from such commitment.

We will strive to see that your stewardship results in measurable impact on the professionalism of lawyers’ lives in Virginia, that it will measurably increase our assistance to the General Assembly in the never-ending challenge of crafting and updating the Code of Virginia to provide effective justice for the citizens of the Commonwealth, and that it will galvanize our provision of services and useful information about the justice system to the public.

I expect you will hold us to this agreement, although it will take us some time to complete. I also ask that you help us with it. To this end, this and future issues of the News Journal will seek to acquaint you further with our activity. For example, the President’s Columns, occasional guest columns, and interviews with Virginia lawyer-leaders, as well as other features, will hopefully complement the progress of our strategic work.

Our sections and committees will also take turns this year to provide substantive articles on current topics in their areas of concentration.

We hope that something will catch your eye and be of use or inspiration to you. Perhaps you will be led to pick up the phone and say, “I think I can help you with that,” or “Have I got a great idea for you to consider!” In short, we want you to feel that you know this Association’s work and that you are a part of it.

As people hear of our plans and work, it may be said that our goals seem lofty, and that our numbers are not especially large to effect them; but then, it is also said that faith can move mountains, and many hands make light work. Ours is a proud profession with a history of public service, and ours is also a proud Association, dedicated to such service.

With enthusiasm and with your help, we will seek to bring forth the spring of a new VBA era, rooted firmly in the values which our previous VBA leaders have bequeathed us. And so, to all of us I say, in the words of the poet Rainer Maria Rilke, “And now let us welcome the new year, full of things that have never been.” Return to Top

This Wonderful Old House
President Franklin’s remarks at the Annual Meeting

Some time ago, I began to think about what I would say to you this morning, to express how I feel about undertaking this office. But the words that came to me seemed dull and inadequate. Then one night, I had a lawyer’s middle-of-the-night awakening with the proverbial “Aha!” I had had a dream in which I gave you this speech.

So I leapt from my bed, duly scribbled it down, waited to test it by light of day and have now, for better or for worse, decided to press forward with it.

Here is the metaphor I dreamed:

My family and I in fact live in an 1880s farmhouse on a hill in Arlington, Virginia; we are located between Washington, D.C., in one direction and en route to Virginia’s high-tech corridor in the other. You might say that power and profit swirl all around us there, although they have not quite made it up our front steps.

Our old house has a wrap-around veranda which is shaded and protected by an even older, enormous maple tree which the house wears like a lady peering out from under a very broad-brimmed straw hat.

When we moved in 21½ years ago, the original well, dug after the War of 1812 by the original settler, stood in plain view. That gentleman, along with his wife and nine children, is buried in a protected yard just a few blocks from our home. We chose this house because we thought that if the house had stood its tests of time, with its hand-hewn beams, crooked rooms, sloping floors, there was not much our brood of active children and pets and ever-present friends could do to harm it significantly. So it seemed a safe move, a practical one. Plus, it had some land, a real plus for us in such an urban area, which allowed us room for gardening, for play, room for growth and development.

We found much more than a house and a yard when we moved in, much more than history and durability. We also found spirit. We learned that this house had been loved and lived in well. When I first used the small fireplace in the living room, I noticed small nail pricks along the mantel where children had hung stockings. In the attic, under the floorboards, we found metal teaspoons forged by the son of the builder — a son we learned had suffered poor health but worked nonetheless as a blacksmith, and who fancied himself an artist on top of that. His carefully forged spoons matched the designs of dancing Grecian women that appear on the tile surround. We learned from postcards found under the floorboards, and from messages scribbled on under-layers of wallpaper, that our home once was used as a boarding home for children during World War II, when their parents were called away to government service somewhere. We picked up from the history of this ordinary house the sense that good people had lived good and satisfactory lives in this home.

What, you may be wondering by now, has this to do with the VBA? Perhaps the answer is already too obvious, but to me this metaphor, or even coincidence if you will, expresses many of the things I value about this Association. Like our home, the VBA was established in the 1880s. It has lots of interesting history such as that we can read in John Peters’ article. It has amazing durability of mission. I say amazing, because to have endured as it has over succeeding generations of lawyers, who don’t have to be doing this at all, who roll up their sleeves and offer their help to sustain and nurture the Association, and in so doing, they provide countless contributions to the laws of our Commonwealth and valuable service to the citizens of the Commonwealth.

But also like our house, what I found in The Virginia Bar Association was more than a history and longevity. I found spirit — and I found a home.

I joined the VBA as a Johnny-come-lately, almost on a whim, unsure of what I would do as a member. Fortunately, I was eventually asked to help out with a small committee. I accepted and in the course of that work began to meet some of the nicest, as well as most knowledgeable and generous, attorneys as I have ever known. I really don’t know how I would have had the opportunity to come to know them otherwise. Because we worked well together, we came up with a great idea — which led to an idea for some legislation. That brought me to my next set of encounters with VBA members during our legislative journey — with the staff, Executive Committee members, other section and committee chairmen, and our lobbyists. Well, this second round of experience in the VBA bore out my first. The people of this Association revealed time and time again an incredible spirit of generosity, of high-mindedness and a real interest in making a difference in people’s lives. There is consistent interest in making our legal system work well and fairly for our citizens and in helping lawyers do their best to make that the case. At one point, I caught myself describing the typical VBA member as a person who says, when you meet him or her, “How can I help you?” While that description may sound too good to be true, it has so far been true in my experience, and I believe that the spirit must be contagious.

Any number of our members are particularly well-known or hail from influential law firms. One might have felt overwhelmed or intimidated by such a fact, particularly coming from a smaller practice background such as my own. But instead, what I learned was that such persons are welcoming and only seem to want to help more. The spirit of this Association is universal.

Now, the VBA is an “old house” and like my family’s, it has had some need of alterations and repairs and additions over the years. But our recent round of strategic assessment and planning led us to conclude that we like crooked doors and think that sloping floors are just fine. Yet we will make sure that our windows and doors work — that they open wide so the VBA is seen as welcoming to all attorneys who wish to participate in this enterprise and so that the VBA is open to the gentle winds of new ideas.

As your president, I reassure you that I like old houses. I recognize the value and spirit created by the cumulative efforts of all who have gone before me, and who lead with me now. In Proverbs, it is written: By wisdom a house is built and by understanding it is established.

That has come to me over and over when thinking about the VBA — this wonderful old house.
I want to reassure you that I pledge to preserve this home and its spirit of generosity, professionalism and service so that it will endure well into the 21st century for the benefit of Virginia’s citizens and for the pleasure and well-being of generations of lawyers to come.

The VBA, this precious jewel in Virginia’s crown, will be cared for and nurtured, and possibly the metaphor I conjured in my dream is evidence for you of the depth of that commitment. Return to Top

Meet the New VBA Leadership

In addition to Jeanne Franklin’s installation as Association President, the VBA leadership for 2001 was confirmed during the 111th Annual Meeting at the Williamsburg Lodge & Conference Center.
J. Edward Betts of Richmond was voted president-elect of the VBA, and Frank A. Thomas III of Orange was chosen to chair the VBA Executive Committee. William E. Rachels Jr. of Norfolk will serve as secretary-treasurer of the Executive Committee.

Betts is managing partner in the firm of Christian & Barton, L.L.P., in Richmond, practicing in the areas of antitrust law and unfair competition law. He received an A.B. degree from Colgate University, an LL.B. degree from the University of Richmond, and an LL.M. degree from Harvard University. Betts has chaired the VBA Law Practice Management Section and the VBA Communications Task Group, and has served on the VBA Executive Committee since 1998, chairing it in 2000. He is a Fellow of both the Virginia Law Foundation and the American Bar Foundation.

Thomas is a partner in the law firm of Shackelford, Honenberger, Thomas, Willis & Gregg, P.L.C., in Orange. He is a “triple graduate” of the University of Virginia, where he received B.A., M.A. and J.D. degrees. He is a former chair of the VBA Wills, Trusts and Estates Section and a member of the VBA Taxation Section. He is a Fellow of the American College of Trust and Estate Counsel.

Rachels is a partner in the law firm of Willcox & Savage, P.C., in Norfolk. He received his B.A. degree from Randolph-Macon College and his LL.B. degree from the University of Virginia. He practices in the area of labor and employment law. Rachels has served as the honorary consul of Denmark for Virginia since 1978. He has been a member of the VBA Labor Relations and Employment Law Section since 1971.

New VBA Executive Committee members include Frank West Morrison of Lynchburg (Phillips, Morrison & Johnson), Harriette H. Shivers of Roanoke (sole practitioner), and James V. Meath (Williams Mullen Clark & Dobbins) and D. Alan Rudlin (Hunton & Williams), both of Richmond. The Honorable John E. Wetsel Jr. of Winchester was elected to an initial one-year term as the judicial representative on the Executive Committee, and Prof. Jayne W. Barnard of the College of William and Mary was elected to a third and final one-year term as the committee’s law faculty representative.

Anita O. Poston of Norfolk will serve on the Executive Committee as the VBA’s immediate past president.

In addition, VBA Young Lawyers Division leaders David N. Anthony of Norfolk and C. Vaughan Gibson of Richmond will serve on the Executive Committee. Anthony, a partner in the law firm of Kaufman & Canoles, is the 2001 chair of the VBA/YLD; Gibson, a partner in the law firm of Troutman Sanders Mays & Valentine, is the VBA/YLD chair-elect.

Executive Vice President Breck Arrington and Administrative Director Sandra Thompson round out the 2001 Executive Committee roster, a complete listing of which may be found on page 4 of this issue.

Section and committee chairs for 2001 are listed elsewhere in this issue. Return to Top

A Message from the Civil Litigation Section

Dear Fellow Virginia Lawyer:

This is the inaugural issue of a slightly new format for the VBA News Journal. Each month, these pages are filled with information and practical articles of interest for busy Virginia judges and lawyers. Several issues each year now will be devoted to a particular area of the law. The VBA has asked each of its substantive law sections to “adopt” an issue of the Journal. The Civil Litigation Section has the honor of leading off this new endeavor and we hope you will find this new approach useful. I’d like to express my appreciation and gratitude to our panel of authors: Professor James Duane, Bruce Page, Billy Mauck and Steve Price.

With a membership of more than 1,000 lawyers, the Civil Litigation Section is the largest substantive law section in The Virginia Bar Association. As “civil litigation” encompasses a wide spectrum of cases, our section’s membership also is quite diverse. Our members represent plaintiffs and defendants. We may litigate complex commercial disputes, personal injury cases, will contests, or anything else you can imagine. Our members practice in firms large and small, in every city and county in the Commonwealth. We are fortunate to have many members of the judiciary in our ranks.

This rich diversity also poses a challenge. We are not united by a common specialty in the law, though our interest in dispute resolution is our bond. The members of your Section Council are dedicated to ensuring that the work of the Civil Litigation Section continues to remain relevant to your practice, is a useful resource and gives you value for your membership. We are always open to new suggestions about what we can do to better serve you as we work to help advance the VBA’s mission of promoting the highest standards of excellence, professionalism, integrity and collegiality among the members of the bar.

If you wish to become more involved in the Civil Litigation Section, or if you have any questions, thoughts, ideas or comments — constructive or otherwise — please feel free to send me an e-mail [bmccormick@hunton.com]. (Or, if you prefer snail mail, it occasionally gets to me at Hunton & Williams, 951 East Byrd Street, Richmond, VA 23219.) And don’t forget to visit our page on the VBA’s website [http://www.vba.org/section/civil.htm]. We look forward to hearing from you and we appreciate the opportunity to be of service.

J. Burke McCormick, Chair
VBA Civil Litigation Section Return to Top

Recent Changes in the Federal Rules of Evidence
by James Joseph Duane and Bruce D. Page Jr.

Just a few months ago, on December 1, 2000, seven amendments to the Federal Rules of Evidence took effect. While they work no comprehensive changes in federal practice, these amendments contain a few subtleties with potentially nasty consequences if they are overlooked by trial lawyers. This article gives a brief overview of the amendments, and offers some tips on how to plan litigation strategy in light of them.

Rule 103 — Definitive in limine rulings and preservation of error

Perhaps the most important of the new rules changes settles a long-standing split in the Federal Circuits over a perennial question: Must a party who loses an in limine evidentiary motion renew the issue at trial to preserve a claim of error for appeal? As amended, Federal Rule of Evidence 103 now provides that a definitive advance ruling excluding or admitting evidence, either before or during trial, is sufficient to preserve a claim of error; the objection or offer of proof need not be renewed at trial, much less before the jury. This amendment changed the law in all but three of the federal circuits,1 although not in the Fourth Circuit, which had already adopted the same rule.2 (Virginia state law, by the way, appears to be unsettled on this point.3)

The rule does not state precisely when a ruling is “definitive.” When there is any doubt about the finality of a pretrial ruling, as there often is, the losing party must take it upon himself to obtain clarification. Even after a definitive ruling, the judge may revisit the matter at any time. When this happens, or when an opposing party or the judge herself violates an earlier ruling, the prudent lawyer must renew the issue to preserve it for appeal.4

It is critical to underscore two things the new rule does not do. It does not preserve error in a pretrial ruling, even one that is final and definitive, if the ruling is based upon a condition that does not materialize at trial. For example, if a court rules that the criminal record of an accused will be admissible for impeachment if he testifies, and he therefore decides not to testify, any error in the ruling is not preserved for appellate review, as the Supreme Court held in Luce v. United States.5 Nor is error preserved by a pretrial motion to exclude evidence, even if the motion is definitively denied, if the losing party then bites the bullet and offers the evidence himself in an effort to remove its sting. The party who himself offers the evidence he tried in vain to exclude has waived any claim of error in its admission, as the Supreme Court held last year in Ohler v. United States.6 Thus, even if your pretrial motion to exclude evidence is definitively denied, no claim of error is preserved for appeal if you then adopt a trial strategy to make the ruling moot or if you bring out the evidence yourself — regardless of whether you did such things only because of the ruling to make the best of a very bad situation.

The ramifications of Ohler may be far reaching. The waiver theory will likely apply in a broad range of civil and criminal contexts. It will have its most pernicious effects if, as seems likely, the courts can be persuaded to extend its theory to claims that an appellant himself “opened the door” to the admission of evidence by bringing it up in opening statement in response to an adverse pretrial ruling on his motion to exclude. Where a court makes a debatable pretrial ruling denying a defense motion to exclude some crucial bit of the Government’s case, a savvy but unscrupulous prosecutor will carefully avoid any direct mention of the evidence in opening statement, hoping the defense will address it in opening statement. The prosecutor can then offer the evidence and invoke the Ohler doctrine to persuade the appellate court that the defense waived its right to complain by having chosen to first “introduce” the subject in opening statement.7

Rule 404(b) — Evidence of character trait of accused admissible once evidence of that trait in victim is introduced

Before December 2000, a federal prosecutor could not offer evidence of the defendant’s bad character unless the accused first “opened the door” by offering evidence of his supposedly good character. The amended version of Federal Rule of Evidence 404(a)(1) creates a second way for the accused to open the door. Now the prosecution may prove a character trait of the accused if he first introduces evidence of “the same trait of character” in his alleged victim to prove the conduct of the victim on a particular occasion, as he is allowed to do under Rule 404(a)(2). This change was designed to rectify a perceived imbalance in the Rules, which had previously allowed a criminal defendant to attack the character of his alleged victim while keeping evidence of his identical character traits from the jury.

For example, if a man accused of assault claims self-defense and offers evidence of his alleged victim’s violent character, the prosecutor can respond with rebuttal evidence to show the accused had a reputation for violence to show that he was actually the first aggressor. The Advisory Committee emphasizes, however, that this amendment does not permit proof of the accused’s character if he merely uses character evidence in any way other than to prove the conduct of the victim, such as where the evidence is offered only to support a claim that the accused thought (perhaps mistakenly) that he was in danger of imminent bodily harm because of what he knew of his apparent attacker’s violent reputation. In such a case, the evidence of the character of the alleged victim is offered to prove something about the accused’s state of mind, not the conduct of the alleged victim.

Rules 701-703 — “Expert” testimony determined by content, not qualifications of witness; Reliability requirements; Expert may not act as a conduit for inadmissible evidence

Three amendments to the expert witness rules were designed not to change the law, but rather to codify and clarify certain pre-existing legal standards, some of which had been widely misunderstood or downright ignored.

An amendment to Rule 701 confirms that opinion testimony is “expert” opinion — and therefore subject to the special reliability requirements governing the admissibility of expert testimony — any time it is based on “scientific, technical, or other specialized knowledge,” regardless of whether it is offered by a witness who has been formally designated by the lawyers as an expert. Put bluntly, there are to be no more experts disguised in laymen’s clothing. The Rule thus forecloses any possibility of an attorney avoiding the requirements imposed by Fed. R. Civ. P. 26 and Fed. R. Crim. P. 16 for pretrial disclosure of expert testimony.

The amendment to Rule 702 codifies the Supreme Court’s now-familiar decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.8 That holding provides that expert opinion testimony, even if based on cutting edge or controversial techniques, need only be deemed “sufficiently reliable” by the trial judge to be admissible as evidence, thus overturning any strict requirement that the method be generally accepted by the scientific community. Rule 702 now has a three-part reliability test for expert testimony: 1) The testimony must be “sufficiently based on reliable facts or data”; 2) it must be “the product of reliable principles and methods”; and 3) the witness must have “applied the principles and methods reliably to the facts of the case.” The Rule is not limited to experts testifying on scientific matters. Depending on the facts of the case, an expert may now offer opinion testimony based on demonstrably reliable methods of analysis in business, economics, or a host of other non-scientific disciplines, even if those methods have not yet received general acceptance in that expert’s field.

Expert witnesses have long been allowed to formulate opinions from facts not admissible into evidence, based on the idea that experts were less likely than jurors to be distracted by such facts, or to give them undue weight. A new amendment to Rule 703 now makes explicit, however, that experts cannot thereby serve as highly-paid smugglers to get otherwise inadmissible data before the jury. When an expert reasonably relies on inadmissible information to form an opinion or inference, she may not disclose the underlying data on direct examination merely because her opinion or inference is admitted, unless the court determines that the prejudicial effect of the data is substantially outweighed by its value in assisting the jury’s evaluation of the expert’s opinion.

Rules 803(6) and 902(11) & (12) — Self-authentication of certified domestic and foreign business records

The amendments to these two rules allow trial lawyers to offer business records without the expense and inconvenience of producing time-consuming foundation witnesses in court. Amended Rule 803(6) now allows the necessary foundation to be established through a written certification, made under oath or affirmation subject to penalty of perjury, signed by the business record’s custodian or other qualified person. According to Rule 902(11) and (12), he may do so for either foreign or domestic business records, so long as he certifies that the business record 1) was made at or near the time of the occurrence giving rise to the record, and was recorded by a person with knowledge of the subject matter; 2) was kept in the course of the regularly conducted activity; and 3) was made by the regularly conducted activity as a regular practice. If these requirements are met, the business record is self-authenticating, and admissible over any hearsay objection.

Parties seeking to use this streamlined procedure must give written notice to all adverse parties sufficiently in advance of trial to provide a fair opportunity to challenge the admissibility of the records.9 It remains the law, of course, that the judge may decline to admit business records over a hearsay objection, whether they are authenticated by affidavit or live testimony, if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.”10

Conclusion

The 2000 amendments effect relatively minor changes to the Federal Rules of Evidence, especially in the Fourth Circuit, but they are deserving of careful study. They will, by design, increase the significance of in limine motion practice, especially on the qualifications of expert witnesses, as well as the pretrial disclosure requirements for expert testimony. They will also reduce the time and expense of trials, especially those involving large numbers of business records. They will give criminal defendants one more way to open the door, perhaps inadvertently, to the admission of evidence about their character in self-defense cases. The prudent trial lawyer will pay careful attention to these changes before his or her next appearance in a federal courtroom.

NOTES

1. Before the amendment to Rule 103, only three federal circuits never required renewal of a pretrial objection that had been definitively overruled. E.g., Wilson v. Williams, 182 F.3d. 562 (7th Cir. 1999) (en banc). For a thorough review of the law in every circuit and how it changed under the new rule, see James Joseph Duane, Appellate Review of In Limine Rulings, 182 F.R.D. 666 (Jan. 1999).
2. Rice v. Community Health Ass'n, 203 F.3d 283, 286 (4th Cir. 2000); United States v. Ruhe, 191 F.3d 376, 383 n.4 (4th Cir. 1999)
3. See Harward v. Commonwealth, 5 Va. App. 468, 474, 364 S.E. 2d 511, 513-14 (Va. App. 1988) (discussing but not deciding whether a motion in limine relieves the objecting party of the need for a contemporaneous objection at trial in criminal cases). Virginia law does allow a pretrial ruling to suffice, at least in the case of a motion to suppress. DeCosta v. Commonwealth, 1995 WL 16623 (Va.App. 1995) (unpublished); Moss v. Commonwealth, 7 Va. App. 305, 307, 373 S.E. 2d 170, 171 n.1 (Va.App.1988). But suppression motions must be made pretrial, and usually involve collateral admissibility matters that would not be profitably revisited during trial, so it is not clear that the same rule would be applied in other evidentiary contexts.
4. Advisory Committee Notes to amended Federal Rule of Evidence 103(a).
5. 469 U.S. 38, 105 S.Ct. 1851 (2000). Virginia courts have adopted the same rule. Doan v. Commonwealth, 15 Va.App.87, 422 S.E. 2d 398 (Va.App. 1992).
6. 529 U.S. 753, 120 S.Ct. 1851 (2000). In Ohler, a criminal defendant testified and brought out her criminal history on direct examination after a pretrial ruling that the prosecutor could do so on impeachment for cross-examination. Virginia had adopted the same rule three decades earlier. Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E. 2d 637, 638 (1970).
7. For a detailed explanation of how this gambit will work in practice, see James Joseph Duane, The Supreme Court Opens a Pandora's Box for "Opening the Door" in Opening Statements: You Heard It Here First!, The Evidence Site, http://www.law.umich.edu/thayer/duaneun.htm (last modified Dec. 7, 2000).
8. 509 U.S. 579, 113 S.Ct. 2786 (1993).
9. FRE 902(11) & (12).
10. FRE 803(6).

ABOUT THE AUTHORS: James Duane is a Professor at Regent University School of Law in Virginia Beach. He graduated magna cum laude from Harvard College (1981), where he was elected to Phi Beta Kappa, and cum laude from Harvard Law School (1984). He also serves on the faculty of the Trial Advocacy Institute at the University of Virginia School of Law in Charlottesville. He is a member of the Civil Litigation Section Council of The Virginia Bar Association. Bruce Page is a second-year law student at Regent University School of Law in Virginia Beach. He is an Active Duty Air Force officer who will enter the Air Force Judge Advocate General’s Department in 2002. Return to Top

Recovering Attorney Fees in Virginia
William R. Mauck Jr.

At the recent 111th Annual Meeting of The Virginia Bar Association, the Civil Litigation Section sponsored an informative and well-attended program entitled “Attorney Fees in Civil Cases: Staking your Claim.”

With gratitude to the three panelists — Robert E. Eicher, Williams, Mullen, Clark & Dobbins, P.C.; R. Peyton Mahaffey, McCandlish & Lillard, P.C.; and Thomas E. Spahn, McGuireWoods, L.L.P. — this article will provide a brief overview of some of the material presented concerning recovery of attorney fees under Virginia law.

As most Virginia law practitioners know, Virginia follows “the American Rule” which provides that in the absence of a statute or contract to the contrary, a court may not award attorney fees to the prevailing party. The Virginia Supreme Court recently affirmed the American Rule in Prospect Development Co. v. Bershader, 258 Va. 75, 515 S.E.2d 291 (1999).

Over the years, Virginia courts have recognized several exceptions to the American Rule. For instance, a prevailing party prosecuting a cause of action for malicious prosecution or false imprisonment may recover attorney fees. A party who has been forced to maintain or defend a suit with a third party because of the breach of contract of another, may recover attorney fees incurred by him in the former suit provided they are reasonable. A trustee defending a trust in good faith may recover attorney fees from the estate. Attorney fees may also be recovered in certain cases involving alimony and support disputes even though such awards were neither authorized by statute nor contract. Virginia courts also recognize an exception to the American Rule where bad faith or vexatious, willful or wanton behavior are involved and to do justice between the parties. In Bershader, for instance, the Virginia Supreme Court held that in a fraud suit, a chancellor, in the exercise of his discretion, may award attorney fees to a defrauded party in order to furnish complete relief.

As the exceptions make clear, the American Rule is just that — a rule. It is not a blanket prohibition against the award of attorney fees absent a contractual or statutory provision.

Unlike the federal courts, Virginia has not established a procedure for recovering an award of attorney fees in civil cases. In practice, the procedure can vary from court to court and typically involves a process agreed upon by trial counsel and approved by the court. Absent an agreed and approved procedure, a claim for attorney fees presents a question of fact based on the evidence and, in the case of a jury trial, the court’s instructions.

Where a jury trial is involved, trial counsel may request the court to bifurcate the trial in order that evidence on the issue of attorney fees is not presented unless the jury returns a verdict on the merits for the party claiming fees. Trial counsel may also agree and seek court approval that the attorney fees issues should be submitted to the court for resolution after verdict. In no event, however, should counsel assume that a court, in the absence of agreement and court approval, will permit evidence of fees to be taken after the case has been tried and a jury verdict or a court decision has been returned. Counsel who make this assumption may risk losing the opportunity to present the fee claim.

A party seeking to recover legal fees must establish as part of its prima facie case that the fees charged are reasonable. In determining whether such case has been made, a fact finder may consider the time and effort expended by the attorney, the nature of the services rendered, the complexity of the services, the value of the services to the client, the results obtained, whether the fees incurred were consistent with those generally charged for similar services, and whether the services were necessary and appropriate. Chawla v. BurgerBusters, Inc., 225 Va. 616, 623, 499 S.E.2d 829, 833 (1998).

Once a prima facie case is shown, the party contesting the fees award bears the burden of going forward with evidence that the fees sought are unreasonable by demonstrating, for example, that the hours or rates were excessive, or that the work was not necessary or was duplicative, or that recovery is sought for work performed on unsuccessful claims.

Where a contract stipulates recovery of a percentage of a judgment amount as attorney fees, there is a rebuttable presumption of reasonableness. If a contract or statute provides for recovery of “reasonable” attorney fees without specifying a percentage amount, the party seeking a fees award must put on evidence of reasonableness. Ordinarily, expert testimony will be required to assist the fact finder in determining reasonableness. A trial court is not bound by such testimony, however, and is permitted to consider its own experience and knowledge of the character of the services in issue.
If expert testimony is to be presented, counsel must consider whether to submit the testimony by affidavit or ore tenus. While affidavit submission is standard practice in federal court, in state court counsel should have an agreement with opposing counsel on admissibility of affidavit testimony. Otherwise, the affidavit may be objected to as hearsay.

Counsel seeking an attorney fees award should consider auditing all time records before producing them to the expert. A prevailing party is not entitled to recover fees for duplicative work or, as a general rule, for work performed on unsuccessful claims. Hence, counsel for the prevailing party should critically review billing records and delete entries that indicate overstaffing, redundant work, churning of work, or excessive hours.

The expert witness will be called upon to express an informed opinion, i.e., an opinion reached upon a careful and diligent investigation of the particulars of the case. Since the bases for the expert’s opinion may be tested and even challenged on cross-examination, the expert should make an independent investigation of the case including a review of the pleadings, the discovery, the issues presented, the proof, the trial, the character and content of services rendered and by whom, the experience, expertise and reputation of counsel, and itemized billings of time devoted and charges made for services. Once familiar with the case, the expert must review the time entries and identify any that reflect redundant or excessive work, overstaffing, work done to compensate for a flawed presentation of original work, work done on lost issues, etc. If the expert believes any entries are unreasonable, the expert should delete them and be prepared to explain his reasoning for doing so in his testimony. In a due diligence investigation, the expert’s mission is not to defend the reasonableness of the fees charged, but to be an independent, dispassionate auditor of reasonableness.

In most cases the reasonableness of rates charged is not contested. When rates are contested, however, the expert should survey the prevailing rates of law firms in the locality in comparable cases with lawyers of comparable experience, expertise and reputation. Consistent with his obligation to present an informed opinion, the expert should be prepared to explain the basis for an opinion that the rates are reasonable under the circumstances of the case.

Ultimately, the expert witness’ testimony will consist of two components, whether the services rendered in the representation were necessary and reasonable for competent, diligent and effective representation and whether the fees charged for such services were reasonable.

A contract often will provide for the recovery of attorney fees incurred in collecting a judgment. Trial courts rarely award post-judgment attorney fees because they rest on speculation. A provision permitting recovery of fees incurred in collection of a judgment gives rise to a distinct cause of action which accrues when the fees are incurred. Accordingly, counsel should consider deferring claims for future attorney fees in collecting a judgment until the judgment has been collected and the fees have been quantified.

ABOUT THE AUTHOR: William R. Mauck Jr. is a partner in the Litigation Department at Williams, Mullen, Clark & Dobbins in Richmond. His practice principally consists of construction litigation. He is also experienced in arbitration of construction claims and counsels clients in the drafting, review, and administration of contract documents. Mr. Mauck is a member of the VBA’s Litigation, Construction & Public Contracts Law (of which he is a former chair), and Environment, Natural Resources & Energy Law sections, in addition to other professional organizations. Mr. Mauck attended Washington & Lee University, where he received his Juris Doctor degree in 1985 and his Bachelor of Arts degree in 1979. Return to Top

The Fourth Circuit Lays a Real Trap for the Unwary
James Joseph Duane

Consider the facts of the following real case. Imagine you are representing a client at her deposition. She is asked whether she had a conversation with a certain man on some incriminating topic. You know that the conversation, if it had taken place, would have been privileged (for example, the man was then her husband or lawyer or rabbi or therapist). But you also know, perhaps because she leaned over and told you during the deposition, that your client’s unequivocal answer is that she never engaged in any such conversations.

What should you do? Assuming that her sworn denials are plausible and that her memory is generally trustworthy, I suspect most attorneys would not hesitate to let the client answer the question and deny that the conversation ever take place. (I am assuming that your familiarity with the client and the case give you no reason to doubt her recollection. If her memory is questionable or if her emphatic denials are suspicious, a smart lawyer will instruct her not to answer until the matter can be checked out.)

That was the same perfectly understandable “mistake” that was made by a Virginia lawyer in Hawkins v. Stables.1 Andrea Stables was sued in the Eastern District of Virginia by her former husband, who accused her of illegally recording his telephone conversations before their separation. At her pretrial deposition, she denied placing a wiretap on their phone. When asked if she had ever been told by her divorce attorney to take a wiretap off the phone at their marital residence, she replied, in keeping with her basic defense: “No sir. Because I wouldn’t have discussed that with him, since it didn’t happen. So, therefore, he would have no need to make mention of that to me.”2

With this seemingly innocent and unsurprising denial of any conversation, Andrea Stables later learned to her astonishment, she had supposedly forfeited her ability to prevent her divorce lawyer from taking the stand and revealing anything he claimed to recall about the conversation that she swore never took place, even over her objection that such a conversation—if it had existed —would have been privileged. In reasoning that can only be described as bizarre, the Fourth Circuit Court of Appeals held that Andrea’s answer both (1) proved she had no privilege, and (2) waived any privilege she would have had. In fact, the Fourth Circuit was wrong about both conclusions.

The Court of Appeals first held that any conversation between Mrs. Stables and her lawyer was not privileged. The court cited the familiar adage that the burden of demonstrating the applicability of a privilege rests on the proponent of the privilege. That burden makes sense when there is no dispute that a document exists, for example, and a question arises as to whether its contents are subject to some privilege. But the court twisted that doctrine beyond recognition by holding that Stables’s claim of privilege had to fail because she never presented “specific evidence” that she and her divorce lawyer “ever had a conversation, much less a confidential conversation, regarding a possible wiretap.”3

Moreover, the court reasoned, her testimony proved there could be no privilege because she denied there was a conversation, and “without a communication, there is nothing to which the privilege can attach.”4 The court failed to understand there is absolutely no inconsistency in the extremely common situation where a party takes the position: “I deny (or at least do not admit) there was any confidential conversation with my lawyer or spouse or priest on some topic, but if anyone claims there was I assert my privilege just the same.” That is why nontestifying criminal defendants are routinely allowed to assert privileges to close the mouths of their spouses and lawyers, even when the accused never says one word to confirm, much less prove through “specific evidence,” that the alleged conversation took place.

Moreover, the court blatantly contradicted itself by stating (correctly) that the question posed to Stables at her deposition “clearly elicited information regarding confidential communications Stables may have had with [her divorce lawyer], and was objectionable on its face on the ground of attorney-client privilege,” and faulting her and her deposition counsel because they never “asserted an objection.”5 (To be more precise, by the way, it makes no difference whether she “objected” to a deposition question on privilege grounds. The real mistake, if any, was that her attorney did not instruct her to not answer the question, and she answered it. See Fed. R. Civ. P. 30(d)(1). When that happens, it makes no difference whether anyone “objects” to the question.) But that is precisely why the court was wrong to fault Stables for not offering specific proof that she had a conversation on the matter. The only required “foundation” for her later privilege objection was supplied by the wording of the question when it was posed to her former lawyer at her trial. As the Court of Appeals itself correctly stated, a question to a lawyer about his advice to his clients is “objectionable on its face.” There is no need for the party asserting the privilege to offer any foundation beyond that.

Even more odd, the court’s opinion never acknowledges that the wiretapping allegedly committed by Stables was also a crime under 18 U.S.C. § 2511, which would also give her a Fifth Amendment privilege to refuse to admit she was told by her lawyer to stop doing it. This bizarre holding dictates that a witness who wishes to assert the attorney-client privilege will often be required (at least in camera) to waive her Fifth Amendment privilege, so that she can first prove she had the incriminating conversation!

In the alternative, the Court of Appeals also held that Andrea Stables waived any privilege she might have had “by answering the question as she did.”6 Once again relying on—but then distorting—familiar law, the court noted that a client may impliedly waive her privilege by making “any disclosure of a confidential communication to any individual who is not embraced by the privilege.”7 In the kind of logic rarely seen this side of the Looking-Glass, the Fourth Circuit held that Stables had made a “disclosure” of the details of a hypothetical conversation with her lawyer about an illegal wiretap by denying that such a conversation ever took place in response to an unsolicited question from opposing counsel. That is nonsense. If Stables had offered testimony at trial denying any discussion with her lawyer as affirmative evidence of her innocence, that might have been a different sort of implied waiver by assertion of her litigation position. But she did not do that, and the court never relied on such a theory. There is no implied waiver of the privilege where “it was [the opposing party], not Mrs. [Stables], who attempted to insert the advice of her counsel into the proceedings.”8

The surprising moral of the story for litigators in the Fourth Circuit: If your client is asked about a conversation that might have been privileged if it had taken place, even if she insists that it never happened and you are convinced that she is correct, you must instruct her to not answer the question, at least until you can check to see how the other participant in the alleged conversation remembers it. Only in this way can you ensure that your client’s lying or forgetful former lawyer or therapist or priest or spouse will never be able to crawl out of the woodwork and testify differently at trial. For that sort of major headache, it turns out, an ounce of prevention is worth far more than a pound of cure. Of course, if your client’s “ex” backs her up and agrees that the matter was never discussed, his testimony will align with hers and there will be no harm in waiving the privilege. But if he remembers it differently—whether he is right or wrong—you will bitterly rue the day you waived the privilege at all.

There is yet another problem. If opposing counsel challenges your client’s assertion of the privilege, the Fourth Circuit’s holding in Hawkins means that the privilege objection must be overruled by the district court unless she is willing and able to admit that she had the conversation.9 If she refuses to admit that, she will be deemed incapable of sustaining her burden of proving her right to claim any privilege, and will possibly permit her opponent to argue for the drawing of an adverse inference from her improper assertion of the privilege.10 If she insists there was no conversation, the privilege is waived. And if she “admits” there was a conversation on the matter, the privilege is technically preserved, but only at the cost of effectively disclosing the very point the privilege is designed to protect. A choice like that makes the privilege meaningless.

NOTES

1. 148 F.3d 379 (4th Cir. 1998).
2. Id. at 381.
3. Id. at 384.
4. Id.
5. Id. (emphasis added).
6. Id.
7. Id. at n.4 (emphasis added).
8. Parker v. Prudential Ins. Co. of America, 900 F.2d 772, 776 n.3 (4th Cir. 1990).
9. To meet her burden of proving her entitlement to claim the privilege, the court held that Mrs. Stables would have been required to offer "specific evidence" that she and her lawyer had a "confidential communication regarding a possible wiretap." Hawkins, 148 F.3d at 384.
10. In other circuits, an adverse inference may be drawn against one who asserts an attorney-client privilege in a civil case. L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1126 (Fed. Cir. 1993); see Mitchell v. United States, 119 S.Ct. 1307, 1315 (1999)(adverse inference may be drawn from assertion of Fifth Amendment privilege in civil proceedings). In this Circuit, a negative inference may not be drawn "from the proper invocation of the attorney-client privilege," In re Tudor Associates, Ltd., II, 20 F.3d 115, 120 (4th Cir. 1994), but Hawkins suggests that the privilege may never be "properly" asserted by one who does not admit she had the alleged conversation.

ABOUT THE AUTHOR: James Duane is a Professor at Regent University School of Law in Virginia Beach. He graduated magna cum laude from Harvard College (1981), where he was elected to Phi Beta Kappa, and cum laude from Harvard Law School (1984). He also serves on the faculty of the Trial Advocacy Institute at the University of Virginia School of Law in Charlottesville. He is a member of the Civil Litigation Section Council of The Virginia Bar Association. Return to Top

Who’s ‘Interested’ in the Virginia Deadman’s Statute?
Stephen C. Price and Lawrence J. McClafferty

The Virginia Deadman’s Statute applies to “an action by or against a person, who, from any cause, is incapable of testifying, or by or against the . . . representative of the person so incapable of testifying” and prohibits a “judgment or decree . . . in favor of an adverse or interested party founded on his uncorroborated testimony.”1 An obvious first question is: who is an “adverse or interested party” under the statute? That is, whose testimony must be corroborated?

The definition of “adverse party” is easy enough. Obviously, it is a named party on the other side of the case from the person “incapable of testifying”— sometimes the defendant in a wrongful death case or the plaintiff in a contract to make a will case. This “adverse party” must, however, have an interest at stake —the testimony of a mere nominal party does not need to be corroborated.2 The definition of “interested party,” however, is more involved.

The legislature did not define “interested party” when it enacted the Deadman’s Statute. The Virginia Supreme Court has defined the term, but further refinement is needed. The Court has said that “[a]n interested party is one, not a party to the record, who is pecuniarily interested in the result of the suit.”3 What does “pecuniarily interested” mean? The Virginia Supreme Court later elaborated that an “interested party” is one who is so situated that the judgment or decree may result in:

. . . the witness being liable for the debt therefor, liable to reimburse the party for whom his testimony is offered in case the decision is against such party, or subject to liability from which the success of the party in whose favor he would testify would relieve him, an interest in the property concerned in the litigation which may be beneficial or adversely affected by the result of the suit, a beneficial interest in the fund sought to be recovered, or a liability for costs of the action.4

This definition is more constructive, but one may then ask, “What is a beneficial interest in the fund sought to be recovered?”

The answer is found in the common law. Up until 1866, witnesses with any manner of interest at all were disqualified from testifying.5 The Virginia Deadman’s Statute was enacted in 1919 at the same time that the legislature removed the final vestiges of the common law’s disqualification of such “interested persons.”6 The common law of such disqualification not only defines “interested party” but “pecuniary interest” as well. A person with a pecuniary interest has some legal, certain, and immediate interest, however minute, either in the event of the cause itself; or in the record, as an instrument of evidence, in support of his own claims, in a subsequent action. It must be a legal interest, as distinguished from the prejudice or bias resulting from friendship or hatred, or from consanguinity, or any other domestic or social relation, or any other motives by which men are generally influenced; for these go only to credibility.7

Justice Spencer Roane (of Martin v. Hunter’s Lessee fame), stated:

[a]n interest which disqualifies a witness from being received in a Court of Justice is, “where there is a certain benefit or disadvantage to the witness attending the consequence of the cause one way... A mere hope of benefit will not disqualify. Thus a woman whose husband was under sentence of death is a competent witness against others indicted for the same offence, though she confessed she had hopes that their convictions would obtain her husband’s pardon ... the interest too must be of some consideration or dignity in the law.8

Justice Fleming, in a separate opinion, noted:

the general rule now established is that no objection can be made to a witness on the ground, unless he be directly interested, that is, unless he may be immediately benefitted or injured by the event of the suit; or unless the verdict, to be obtained by his evidence, or given against it, will be evidence for or against him in another action in which he may afterwards be a party. Any smaller degree of interest, as the possibility that he may be liable to an action in a certain event... though it furnish a strong argument against his credibility does not destroy his competency.9

The interest must be objective and “real, and not merely apprehended by the party.”10 It must be a “present, certain, and vested interest, and not an interest uncertain, remote or contingent [like] the heir apparent to an estate.”11 Indeed, the “true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or, that the record will be legal evidence for or against him, in some other action.”12

In summary, a “pecuniary interest” which disqualified a witness at common law was one where “the immediate effect of the judgment for the plaintiff is to confirm the witness in the enjoyment of an interest in possession, or, to place him in the immediate possession of a right” or “where the event of the suit... will render the latter liable either to a third person, or to the party himself, whether the liability arise from an express or implied legal obligation to indemnify, or from an express or implied contract, to pay money upon that contingency....”13 Courts in other states have defined the terms similarly in the context of their Deadman’s statutes.14

If we define “interested party” more broadly, we run the risk of requiring corroboration from a witness who is merely “biased.” The concept of “bias” is not to be confused with “interest.” The testimony of a “biased” witness does not require corroboration at all:

The bias of a witness is a factor which must be considered when evaluating the testimony of that witness. Bias may take several forms. For example, the witness may be favorably inclined toward one party by virtue of kinship, social or business contact, etc. Conversely, the party may be hostile toward a party, due to social or religious prejudice, prior quarrels, or some other source of enmity. Again, the witness may have a financial interest in the litigation or may have even taken a bribe in exchange for perjured testimony... A party has an absolute right to show that a witness is biased. Such an inquiry is always relevant, and the jury should consider the evidence of bias in deciding what weight to give to the testimony of the witness.15

Finally, the Virginia Supreme Court’s definition of “persons interested” comports with our common law definition. In Martone v. Martone16, the Court held that proponents of a decedent’s will were not “persons interested” under Virginia Code § 64.1-90 since they had but a mere expectancy, and no legally ascertainable pecuniary interest, in the estate.

These authorities would seem to give us a nice definition of an “interested party”: a person, not a named party in a cause of action, who nonetheless has a present, certain and vested interest in the outcome of a case, such that a judgment in the favor of one party will give him a legal right or entitlement to the judgment, or for whom the judgment would establish a debt. Not so fast. The Eastern District of Virginia recently held that the spouse of a plaintiff seeking to enforce a contract to make a will was an “interested party” based on the following exchange at plaintiff’s deposition:

Q: Would you expect that any recovery that you might obtain in this case would somehow benefit Martin, your husband? You understand my question?
A: Benefit Martin alone?
Q: Not alone, but in part. It would be shared by him and you, correct?
A: Yes.

Notwithstanding that in Virginia, a husband has no legal interest in an inheritance that the wife receives during marriage, this testimony, and the plaintiff having previously shared inherited money with her husband, established an “immediate and direct financial interest in the outcome of the litigation” such that the non-party spouse’s testimony could not be used to corroborate that of his plaintiff-wife and required corroboration of its own.17

ABOUT THE AUTHORS: Stephen C. Price is a principal in the Leesburg office of McCandlish & Lillard, P.C. He is a past Chair of The Virginia Bar Association’s Civil Litigation Section, and served in 1988-89 as President of the Loudoun County Bar Association. Mr. Price received a B.A. with honors from Virginia Military Institute, a J.D. from the University of Virginia and an LL.M. from the University of Cambridge. He serves as president of the George C. Marshall International Center at Dodona Manor in Leesburg. Lawrence J. McClafferty is an associate in the Leesburg office of McCandlish & Lillard, P.C. He is a member of The Virginia Bar Association and its Civil Litigation Section, and is a former treasurer of the Loudoun County Bar Association. He received his undergraduate degree from Boston College and his J.D. from Washington and Lee University.

NOTES
1. § 8.01-397 of the Code of Virginia of 1950, as amended.
2. Arwood v. Hill’s Adm’r, 135 Va. 235, 243, 117 S.E. 603 (1923).
3. Merchants Supply Co., Inc. v. Hughes’ Ex’rs., 139 Va. 212, 216, 123 S.E. 355 (1924).
4. Ratliff v. Jewell, 153 Va. 315, 325, 149 S.E. 409 (1929).
5. Epes Adm’r v. Hardaway, 135 Va. 80, 84, 115 S.E. 712 (1923).
6. See Robertson’s Ex’r v. Atlantic Coast Realty Co., 129 Va. 494, 503-04, 106 S.E. 521 (1921).
7. Simon Greenleaf, A Treatise on the Law of Evidence, Vol. 1, § 386 (2d ed. 1844).
8. Baring v. Reeder, 11 Va. (1 Hen. & M.) 154, 167 (1806).
9. Id. at 170.
10. Greenleaf on Evidence at § 387.
11. Id. at 390.
12. Id. at § 390; See also Clements v. Kyles, 54 Va. (13 Gratt.) 468 (1856)(despite the fact that a non-party witness whose land was implicated in boundary dispute felt an interest in the establishment of the survey in question, he is yet competent to testify since he was not in privity with the parties and the judgment could not be used for or against him in another proceeding); Stevens v. Bransford, 33 Va. (6 Leigh) 246, 249 (1835)(indeed, the very essence of a direct and immediate interest of a witness in the event of a suit is that he could avail himself of the verdict in the cause, so as to give it in evidence, on any future occasion, in support of his own interest).
13. Greenleaf on Evidence at §§ 392-393.
14. See, e.g., Massachusetts Mut. Life Ins. Co. v. Collins, 575 So.2d 1005 (Ala. 1990)(in order for pecuniary interest to bar testimony, it must be present, certain, and vested, not uncertain, remote or contingent); Reddy v. Mody, 388 A.2d 555 (Md. Ct. App. 1978)(a party for purposes of this section is one who has an interest in the property sought or a person having a direct pecuniary interest and proprietary interest in the outcome of the case); In re Will of Hester, 353 S.E.2d 643 (N.C. Ct. App. 1987)(to be disqualified, a witness must have a direct, legal or pecuniary interest in the outcome of the litigation), rev’d on other grounds, 360 S.E.2d 801, rehearing denied, 362 S.E.2d 780 (1987); Hannah v. Simpson, 485 S.E.2d 903 (S.C. 1997)(person is only disqualified if he has a vested, or certain legal or equitable interest which may be affected by the direct, legal operation of the judgment); Hiles v. First National Bank of Flint, 211 N.W. 629 (Mich. 1927)(husband not disqualified from testifying by virtue of marriage with respect to wife’s claim to recover land); Proulx v. Parrow, 56 A.2d 623 (Vt. 1948)(person testifies “in his own favor”only when he has a present legal interest in the contract or cause of action which his testimony will tend to establish); David v. Powder Mountain Ranch, 656 P.2d 716 (Col. Ct. App. 1982)(test of interest of a witness for purpose of dead man’s statute is whether he will gain or lose by direct legal operation of the judgment); But see Wright v. Nesmith, 594 So. 2d 1210, 1213 (Ala. 1992)(spouse was interested in litigation in which her husband was a defendant because her financial livelihood depended on his, and because the home they shared would likely be sold to satisfy his judgment).
15. Charles E. Friend, The Law of Evidence in Virginia, pp. 128-29 (5th ed. 1999).
16. 257 Va. 199, 509 S.E.2d 302 (1999).
17. Stephens v. Caruthers, Ex’r 97 F. Supp. 2d 698, 709 (E.D. Va. 2000). Return to Top

Across the Commonwealth

Marshall bicentennial celebrated February 3 with a gala evening at The Library of Virginia

The bicentennial of John Marshall’s appointment as Chief Justice of the United States on February 4, 1801, was celebrated on February 3, 2001, with a black-tie dinner at The Library of Virginia, across the street from the house where Marshall and his family lived in downtown Richmond.

More than 450 attendees, including numerous Marshall descendants, were on hand for “John Marshall 200,” sponsored by The John Marshall Foundation and its co-parents, The Virginia Bar Association and the Association for the Preservation of Virginia Antiquities, in addition to a host of other organizations.

Justice Antonin Scalia of the United States Supreme Court was the principal speaker for the event, introduced by Ben Heineman, senior vice president, general counsel and secretary of GE.

Noting that Marshall remains the only native-born Virginian to serve as Chief Justice, Scalia focused on the story of Marshall’s life, including the contributions that Marshall made during his 1801-35 tenure on the high court that still influence its actions today.

Laughter erupted when Scalia said that Marshall reputedly commented that the mark of a good judge is the ability to look a lawyer “straight in the eyes for two hours and not hear a damn thing he says.”

Scalia emphasized that Marshall remained deeply involved in Richmond civic and social life, even while serving as chief justice.

“I am saddened when I compare his performance not only to my own, but to others,” Scalia said.

Lawyers are “too busy putting in their 25-hour days. This is not greatness, and it is not being a full human being nor a full American of the sort the great John Marshall was.

“We have many responsibilities before the job. We have many responsibilities to community, to state. One who is not doing these is not being a full participant.”

Chief Justice Harry L. Carrico of the Supreme Court of Virginia was surprised during the evening when he received congratulations on passing his 40th anniversary as a member of the court and 20 years as its chief justice, making him the longest-serving chief justice in Virginia history.

Leon Silverman, president of the Supreme Court Historical Society, was master of ceremonies for the evening, which also included a lively exchange between “John Marshall” and his cousin and political adversary “Thomas Jefferson,” as portrayed by historical interpreters.

Winners of an essay contest on the legacy of John Marshall were recognized during the dinner. The honorees, all 11th-graders in the Richmond Public Schools, were Lindsay Leeper, Huguenot High, first place and a $3,000 scholarship; Antoinette Rainey, Richmond Community High, second place and a $2,000 scholarship; and Leonda Jiggetts, John Marshall High, third place and a $1,000 scholarship.

The celebration will continue with presentations on the Marshall legacy to schools and civic groups. A documentary on Chief Justice Marshall has been distributed by The John Marshall Foundation and GE Financial Assurance, the title sponsor of “John Marshall 200,” to every public high school in Virginia.

“John Marshall’s contribution to the judicial system of our country is immeasurable,” said Allen Goolsby, president of The John Marshall Foundation and a former VBA president.

“Before he became Chief Justice, the Court was in danger of becoming almost irrelevant... Through his decisions and leadership, the Court became an equal partner in our government.” Return to Top

VBA members are among newly named judges

Twenty-one new judges were elected to circuit, general district, and juvenile and domestic relations benches by the General Assembly during the final week of the 2001 session, following a tempestuous period in which two sitting judges were denied reelection and political rancor boiled over in some jurisdictions.

Current VBA members among new judges are as follows:

The Honorable Louis R. Lerner of Hampton, as a judge of the Eighth Judicial Circuit for a term of eight years commencing April 1, 2001.

Harry T. Taliaferro III of Richmond County, as a judge of the 15th Judicial Circuit for a term of eight years commencing May 1, 2001.

The Honorable Gaylord L. Finch Jr. of Fairfax, as a judge of the 19th Judicial Circuit for a term of eight years commencing July 1, 2001.

J. Leyburn Mosby Jr. of Bedford County, as a judge of the 24th Judicial Circuit for a term of eight years commencing April 1, 2001.

James A. Moore of Suffolk, as a judge of the Fifth Judicial District for a term of six years commencing July 1, 2001.

Theodore J. Burr Jr. of Emporia, as a judge of the Sixth Judicial District for a term of six years commencing July 1, 2001.

Garland L. Bigley of Petersburg, as a judge of the 11th Judicial District for a term of six years commencing August 1, 2001.

R. Edwin Burnette Jr. of Bedford County, as a judge of the 24th Judicial District for a term of six years commencing August 1, 2001.

Anita D. Filson of Rockbridge, as a judge of the 25th Judicial District (Juvenile and Domestic Relations) for a term of six years commencing April 1, 2001.

Full information on judicial elections in the 2001 General Assembly is available through the Legislative Information System, which can be accessed through the VBA’s legislation web page or directly at http://leg1.state.va.us. Return to Top

Spring conferences lie ahead

Programs are under discussion, details are being finalized, but the dates are set for the VBA’s 2001 spring conferences.

The VBA Bankruptcy Law Conference will be held May 4-5 at Wintergreen, and the VBA Administrative Law Conference will convene at the Omni Richmond on May 17. Full information, including a registration form, will be mailed to section members and will be available on the VBA website at www.vba.org.

The Summer Meeting will be held July 12-15 at The Greenbrier and will feature a debate between Virginia gubernatorial candidates, in addition to continuing legal education opportunities, social events and other activities. Return to Top

‘Short term’ is over, but real battles lie ahead for Assembly

The contentious 2001 General Assembly may have adjourned sine die on February 24, but legislators will return to Richmond again and again as unresolved budget issues, the veto session on April 4, and redistricting require them to do so.

The VBA will offer a report on its proposals and other bills of interest in the April issue of the VBA News Journal. Legislative summaries will also be distributed to members of VBA sections and select committees in the coming weeks. (Please pay your dues if you haven’t already done so, to take advantage of this great benefit.)

Current bill status and other legislative information may be accessed using the “2001 General Assembly” link on the VBA website. Return to Top

2001 VBA Young Lawyers Division committee chairs announced

Click here to visit the VBA/YLD webpage with a listing of committee contacts for 2001. Return to Top

2001 VBA SECTION CHAIRS

ADMINISTRATIVE LAW
John M. Holloway III, Hunton & Williams, Richmond
BANKRUPTCY LAW
Keith L. Phillips, Phillips & Fleckenstein, P.C., Richmond
BUSINESS LAW
David I. Greenberg, Christian & Barton, L.L.P., Richmond
CIVIL LITIGATION
J. Burke McCormick, Hunton & Williams, Richmond
CONSTRUCTION & PUBLIC CONTRACTS LAW
Fred R. Kozak, Rick & Kozak, Powhatan
CORPORATE COUNSEL
Henry N. Ware Jr., Cook, Ware & Heyward, P.C., Richmond
CRIMINAL LAW
Andrew A. Protogyrou, Protogyrou & Rigney, P.L.C., Norfolk
DOMESTIC RELATIONS
David G. Weaver, Gentry, Locke, Rakes & Moore, Roanoke
ELDER LAW
Paula Peaden, Parker, Pollard & Brown, Richmond
ENVIRONMENT, NATURAL RESOURCES & ENERGY LAW
Don G. Scroggin, Gabeler, Battocchi & Griggs, L.L.C., McLean
HEALTH LAW
T. Braxton McKee, Kaufman & Canoles, P.C., Norfolk
INTELLECTUAL PROPERTY & INFORMATION TECHNOLOGY LAW
Marshall M. Curtis, McGuireWoods, L.L.P., McLean
JUDICIAL
Hon. R. Terrence Ney, Judge, Nineteenth Circuit Court, Fairfax
LABOR RELATIONS & EMPLOYMENT LAW
Thomas M. Lucas, McGuireWoods, L.L.P., Norfolk
LAW PRACTICE MANAGEMENT
Janet Singletary Thomas, Hirschler, Fleischer, Weinberg, Cox & Allen, Richmond
REAL ESTATE
Lucia Anna Trigiani, Troutman Sanders Mays & Valentine, L.L.P., McLean
TAXATION
Neil V. Birkhoff, Woods, Rogers & Hazlegrove, Roanoke
TRANSPORTATION LAW
Daniel R. Warman, Baker & Warman, Norfolk
WILLS, TRUSTS & ESTATES
Howard M. Zaritsky, Rapidan Return to Top

2001 VBA COMMITTEE CHAIRS

ACCESS TO JUSTICE
Robert L. Brooke, Troutman Sanders Mays & Valentine, L.L.P., Richmond
JOINT COMMITTEE ON ALTERNATIVE DISPUTE RESOLUTION
(with the Virginia State Bar)
Mark E. Rubin, Shuford, Rubin, Gibney & Dunn, Richmond
AWARDS
Anita O. Poston, Vandeventer Black L.L.P., Norfolk
COMMISSION ON THE NEEDS OF CHILDREN
Prof. Robert E. Shepherd Jr., T.C. Williams School of Law, University of Richmond
EXECUTIVE COMMITTEE
Frank A. Thomas III, Shackelford, Thomas, Willis & Gregg, P.L.C. Orange
FEDERAL JUDGESHIPS
EASTERN DISTRICT: John M. Ryan, Vandeventer Black L.L.P., Norfolk
WESTERN DISTRICT: Robert C. Wood III, Edmunds & Williams, Lynchburg
HONORING MEMBERS AND JUDGES
John S. Barr, McGuireWoods, L.L.P., Richmond
JUDICIARY
John B. Donohue Jr., Thorsen & Scher, L.L.P., Richmond
LEGAL EDUCATION AND ADMISSION TO THE BAR
Michael J. Quinan, Woods, Rogers & Hazlegrove, P.L.C., Richmond
COMMITTEE ON THE NEEDS OF THE MENTALLY DISABLED
Gail Starling Marshall, Rapidan
NOMINATIONS TO VIRGINIA COMMISSIONS AND APPELLATE COURTS
Thomas F. Farrell II, Dominion Generation, Richmond
SPECIAL ISSUES OF NATIONAL AND STATE IMPORTANCE
Hon. W. Tayloe Murphy Jr., Smith, Murphy & Taliaferro, Warsaw
SUBSTANCE ABUSE
R. Edwin Burnette Jr., Edmunds & Williams, Lynchburg Return to Top

Rosters of VBA Section Councils and Committees will be available when finalized on each Section and Committee page in the VBA website.

News in Brief

VBA member Nina E. Olson of Richmond, founder of the Community Tax Law Project and recipient of the VBA’s Pro Bono Publico Award (1999), was recently chosen to serve as national taxpayer advocate for the Internal Revenue Service, to assist persons in resolving difficult disputes with the IRS. She will oversee a national system of local advocates who handle IRS problems that cannot be resolved through normal procedures.

George H. Hettrick of Richmond, a former chair of the VBA Substance Abuse Committee and a partner in the law firm of Hunton & Williams, received the Richmond Bar’s Pro Bono Publico Award on February 22, in recognition of his tireless efforts as the chair of Hunton & Williams’ Community Service Committee, managing partner of the firm’s Church Hill pro bono office, chair of the Richmond Bar’s Pro Bono Committee, and in numerous other professional and civic capacities. He is a recipient of the VBA’s Pro Bono Publico Award (1994) and the Lawyers Helping Lawyers Program’s James R. Treese Award (2000).

Daniel T. Balfour, Thomas F. Farrell II and David G. Shuford, all VBA members from Richmond, have been appointed to serve on the State Council of Higher Education. Balfour is a partner in the law firm of Beale, Balfour, Davidson & Etherington; Farrell, a former VBA Executive Committee member, is the chief executive officer of Dominion Generation, Inc.; and Shuford, one of the VBA’s legislative counsels, is a partner in the law firm of LeClair Ryan.

Frank Green of the Richmond Times-Dispatch received the 2000 Award for Journalism in the Field of Law and Justice at the annual meeting of the Virginia Press Association at the Norfolk Waterside Marriott on March 3. The award is presented annually by the VBA in recognition of outstanding reporting on legal issues; Green’s coverage of the Earl Washington case and related DNA and capital punishment issues bested a number of distinguished entries. Honorable mentions were presented to Andrea Pricer, Reston Times; Kari Pugh and Keith Epps of The Free Lance-Star (Fredericksburg); and Laurence Hammack, Kimberly O’Brien, Michael Hemphill, Zeke Barlow, Mike Hudson, and Mike Allen, all of The Roanoke Times. Caroline Cardwell, communications coordinator for the VBA, presented the award to Green.

News from the VBA office: Jeremy Dillon joined the VBA staff in December as Staff Assistant for Administration. Welcome! And congratulations to YLD/Membership Coordinator Regina Moss (also known as “Sprinkles the Clown” in her non-VBA life), on winning first place in skit competition at the Circus Magic Convention in Williamsburg on February 24. Make ’em smile!

Professional development opportunities for the legal assistants in your office will be available May 4-6 at the Norfolk Sheraton Waterside during the annual conference of VALS...The Association for Legal Professionals. More information will soon be available.

Support VBA activities by becoming a Patron in 2001. By contributing $100 in addition to your membership and section dues, you will provide invaluable support for the many public and professional services offered by the Association. Check the box on your membership dues statement, or mail your check separately if you’ve already sent in your dues. Call (804) 644-0041 for more information. Return to Top

Copyright 2007 The Virginia Bar Association