Meet the VBA Board of Governors

In addition to Ed Betts’ installation as Association President, several new VBA leaders for 2002 were confirmed during the 112th Annual Meeting at the Williamsburg Lodge & Conference Center. Frank A. Thomas III of Orange was voted president-elect of the VBA, and E. Tazewell Ellett of Alexandria was chosen to chair the VBA Board of Governors.

Thomas is a partner in the law firm of Shackelford, Thomas & Gregg, PLC, 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, and is a Fellow of the American College of Trust and Estate Counsel.

Ellett is a partner in the law firm of Hogan & Hartson, L.L.P., with offices in McLean and Washington, D.C. He is a graduate of Davidson College and the University of Virginia School of Law and is a member of the VBA Business Law and Transportation Law Sections. Ellett was the charter chair of the Transportation Law Section, chair of both the VBA and VBA/YLD Membership Committees, and a member of the VBA Young Lawyers Division Executive Committee. He received the Fellows Award of the VBA Young Lawyers Section in 1988.

New VBA Board of Governors members include Ann T. Burks of Richmond (Ethyl Corporation), State Senator William C. Mims of Leesburg (Worcester, Mims & Atwill), Gregory T. St.Ours of Harrisonburg (Wharton, Aldhizer & Weaver) and William R. Van Buren III of Norfolk (Kaufman & Canoles). The Honorable John E. Wetsel Jr. of Winchester was elected to a second one-year term as the judicial representative on the Board of Governors, and Prof. Roger D. Groot of Washington & Lee University was elected to an initial one-year term as the board’s law faculty representative.

Jeanne F. Franklin of Alexandria will serve on the Board of Governors as the VBA’s immediate past president. Current Board member Heman A. Marshall III of Roanoke (Woods, Rogers & Hazlegrove) will also chair the VBA Law Practice Management Division.

In addition, VBA Young Lawyers Division leaders Vaughan Gibson Aaronson and Stephen D. Otero of Richmond (both of Troutman Sanders Mays & Valentine LLP) will serve on the Board of Governors. Aaronson is the 2002 chair of the VBA/YLD; Otero is the VBA/YLD chair-elect. Return to Top

President’s Page: The Tradition Continues
J. Edward Betts

When Frank Thomas, our new President-elect, learned that I would become President of The Virginia Bar Association on crutches, he quipped, “You will be the first President of the VBA inducted as a ‘Lame Duck’!” Let me assure you that my enthusiasm in accepting this office is not that of a “Lame Duck.”

As I absorb what is happening here today, I have a profound sense of the history of this organization, and I am humbled to join the illustrious ranks of our presidents. I had the privilege of working at my law firm with two of our past presidents, Alexander Parker and A.C. Epps, and I know both to have been great gentlemen. I have also been blessed to work with many more recent presidents, including our immediate past president Jeanne Franklin, who I know to be a great lady.

When it comes to the VBA, I do not share the sentiments of Alfonso the Learned, a 13th-century king of Spain, who said “Had I been present at the Creation, I would have given some useful hints for the better ordering of the universe.” To the contrary, many of the forces and ideals that motivated the VBA’s creation in 1888 are themes of the utmost importance today. Certainly we must keep up with the ever-changing times and continue to be relevant, but much of our progress requires the repackaging of old themes. Indeed, in many ways we are offering “new bottles for old wine.”

When I am asked (as I often am) what will be my agenda for my year as President, it would be convenient to answer that it will be the “Year of the Dragon” or some other simple, terse response. In actuality, however, the planning process which we undertook two years ago, and its implementation begun last year, has really charted the VBA’s course for the next two years. Many of its areas of emphasis, like adding even greater vitality to our program of objective law reform, working on a broad-based initiative to address the full dimensions of being a legal professional, and increasing public understanding and confidence in the judicial system, reaffirm themes present in the earliest days of our Association. Thus, I see my year as President as part of a historical continuum, and my agenda will be one of emphasis and not direction.

Lest you think this is a reactionary, “business as usual” approach, at a time in our profession of rapid, even drastic, changes, let me give you a fine example of how the VBA continues to breathe new life into our longstanding objectives. This is our effort to develop concepts of new professionalism for lawyers in the 21st century.

The quest for striking the proper balance in life is an old one. The ancient Greeks sought it.

As for lawyers, in more recent times, Justice Brandeis put it well: “[A] man who practices law, who aspires to the higher places of his profession must keep his mind fresh. It must be alert and be capable of meeting emergencies, must be capable of the tour de force.”

He added, “I soon learned that I could do 12 months’ work in 11 months, but not in 12.”

Or as United States Senator, Dean and past VBA President Bill Spong stated in 1985, “I am... alerting you to the danger of spending your formative years bereft of literature, music, art and appreciation of nature, and most important, of the joys of family life. Jefferson’s idea of taking the study of law away from the apprentice model and into an academic setting was, I believe, to assure that the practicing lawyer would be a whole person, with an understanding and appreciation of many things beyond the artisan demands of a skilled trade.”

In an attempt by the VBA to attack this age-old problem, I am delighted to announce that we have created a new Law Practice Management Division, to which every VBA member, old and young, will belong, without additional payment of dues.While this new division will continue the work of its predecessor, the Law Practice Management Section, it will also strive to assist all of us strike a better life balance at our individual desks and within our firms.

Since I am a managing partner, schooled on the slogan that “the law is a jealous mistress,” a lawyer’s “balanced life,” at first blush, appears to be an oxymoron. After all, the greatest lawyers I have known have been prodigious, sometimes exhausting, workers. But when a program like “21st-Century Professionalism: A Balanced Life vs. The Bottom Line” demonstrates the possibility of positive bottom-line effects, as well as positive psychological impacts on lawyers and law firms that accommodate the needs of 21st-century lawyers, my cynicism begins to wane. Please join us as we wrestle with this critical problem.

Our Executive Committee member Heman Marshall of Roanoke, managing partner of Woods, Rogers & Hazlegrove, will serve as the initial chair of the Law Practice Management Division. We have put in place a great leadership team for this division and we look forward to all of your participation.

Another aspect of our work on “new professionalism,” and directly connected to the issue of lifestyle/practice balance, is that of pro bono and community service.

Under the leadership of another Executive Committee member, Ted Ellett, a substantial effort is underway to afford opportunities to lawyers of all ages to participate in pro bono and community service activities. One of the main thrusts of this year’s efforts has been to coordinate with other statewide and local bar associations, law schools, and community groups about opportunities that are available to lawyers. Not wanting to reinvent the wheel, or duplicate the efforts of other organizations, we hope to have a vehicle in place early this year to institutionalize these efforts.

This is an example of one area I hope to emphasize this year. The Virginia landscape is populated with myriad lawyer organizations. But we are all Virginia lawyers. My own work for the Virginia State Bar, in the disciplinary process, has caused me to treasure that organization. In a day when the public is distrustful of lawyers, all of our lawyer organizations must complement, not compete, with each other. For the sake of our profession, we cannot hope to do otherwise.

Finally, I would like to share with you some of my thoughts about what I believe this Association is and what it is not.

First of all, the VBA, like other Virginia lawyer organizations, has its special strengths. It is the only statewide, voluntary bar association in Virginia that attorns to no special interest or entity. Because we are truly independent, we are best situated to bring to our programs, such as law reform, an objectivity that I believe can best serve the public interest.

Second, one of our primary functions is to continue to educate Virginia lawyers, so that they can make up their own minds about the controversial issues of the day.

There is a fine line between an association’s taking stands on matters within its logical province and on matters that the rest of society is equally knowledgeable about. Drawing this line is not so much one of courage as opposed to cowardice, but rather one of the exercise of careful judgment. I share Justice (then-ABA President) Lewis Powell’s view of the danger of overpoliticizing the work of a bar association. If we attempt to act as a superlegislature or as philosopher-kings in areas beyond our unique expertise, we will likely divide and antagonize our membership and tear this Association apart.

Consider a rather drastic example: the use of an atomic weapon. Isn’t this a matter for individual conscience rather than for the position of a bar association? James Agee said it well about the dropping of the first atomic bomb: “When the bomb split open the universe and revealed the prospect of the infinitely extraordinary, it also revealed the oldest, simplest, commonest, most neglected and most important of facts: that each man is eternally and above all else responsible for his own soul.” Thus, we must speak courageously to issues within our ken, those involving the administration of justice, and be educators on some of the more politicized issues of the day. This way our members are enabled to make up their own minds, and to speak out individually if they so choose.

In fact, lawyers’ willingness to do so in the past has brought esteem to our profession. When in the 1830s Alexis de Tocqueville stated that American “lawyers... form the highest political class and the most cultivated portion of society,” he based this conclusion on the efforts and courage of individual lawyers, since organized bar associations, as we know them, did not exist.

Third, my partner Harvey Chappell reminds me that we should not take ourselves too seriously. As he puts it, much of the value of this Association over the years has been in the fun we have at these meetings and from getting to know each other in this friendly, non-adversarial setting. Certainly the social part of The Virginia Bar Association is an essential part of its value, and it is there simply for the taking. I join with Harrison Tweed in having “a high opinion of lawyers.” As he put it, “With all their faults, they stack up well against those in every other occupation or profession. They are better to work with or play with or fight with or [eat and] drink with, than most other varieties of mankind.”

I look forward to my year as president in large part because I have outstanding leadership, both voluntary and staff, to work with me. When my year is almost over (and I understand that will happen in the blink of an eye), and when I am in fact a “lame duck,” you can look forward to a continuum of effort in the great tradition of the VBA that will sustain this Association and make its members proud. Many thanks for offering this great privilege to me.Return to Top

The 2002 General Assembly: Report at Crossover

Successes, stalls and smashed hopes are all part of the legislative advocacy process, right alongside long waits, metal detectors, and sandwiches from Chicken’s (the State Capitol snack bar, for the uninitiated). Just as the VBA News Journal offered an overview of bills of interest to The Virginia Bar Association — some proposals originating in VBA sections and committees, others proposed by outside entities but of interest or concern to the Association and its members — in this issue we offer a “halftime report” on the status of key items of legislation, as of press time. Next month’s issue will feature a final look at this year’s crop of bills.

Shortly after this session ends on March 9, VBA staff members will start preparing the annual tailor-made summaries of legislative activity which are mailed to all dues-paying members of VBA sections and selected committees. These will be distributed in the early spring.

Details of the bills and resolutions mentioned here and of other legislation can be found on the Commonwealth’s legislative information system on the Internet at http://leg1.state.va.us. The easy-to-use system provides timely and extensive information on legislation from current and previous sessions, in addition to the General Assembly’s informational website. The VBA website, www.vba.org, has numerous links to this system through its main legislation page and pages for all VBA sections and select committees.

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Thoughts on Leadership: Three Simple Words
Hon. Gerald L. Baliles, Recipient of the VBA Distinguished Service Award

You know, it has often been lamented that life must be lived forward but understood backwards. I am not sure that I am ready to acknowledge that I have reached that stage in my life where I want to look backwards. But I am grateful and humbled by this award and recognition for things that have occurred in years past.

I am grateful because I recognize and respect the caliber and accomplishments of the prior recipients, all of whom have been giants of the legal profession, social architects in their communities and individuals of uncommon integrity. I have had the pleasure of knowing the recipients. I have worked with them, learned from them and admired them greatly. I thank you for the honor and the privilege to be placed in their category.

I am grateful also that such an award comes from The Virginia Bar Association, an organization that I joined out of law school during the last millennium.

Over the years, this organization has been a professional home of sorts to me. When I was Governor and Attorney General I still came to meetings of this Association. I value its mission, its contributions to the improvement of the legal profession and the improvement of the quality of life for the people we serve. Some of my strongest friendships were formed in this organization.
I have found that the members of The Virginia Bar Association represent the cream of the crop of our profession. Its members are the thinkers, the doers, the creators of innovative legal solutions and the conservators of certain traditions and practices that preserve the collegial experience of our mutual communities of interests.

I have especially admired the leaders of this Association over the years. The individuals who have stepped forward to challenge us and lead us I remember with fondness — A. C. Epps, Hugh Patterson, Jesse Wilson, Jay Johnston, Tom Brown, Jay Walker, John Ryan, Gordon Smith, my cousin Phil Stone, Whitt Clement, Judge Keith, Judge Terry Ney, Doug Rucker, Frank Flippin and Anita Poston. There are others, including my good friends and partners Allen Goolsby and David Landin at Hunton & Williams.
And Jeanne Franklin — she has been superb in leading this Association. Very impressive. All these leaders, and our remarkable staff, have made it possible over the years for this Association to make a difference in the lives of our citizens, our justice system and our own personal practices.

Let me mention one other reason why I am loyal to this organization, appreciate its accomplishments and relish this award.

Throughout the history of this Association, the members have stepped forward to advocate change and reform, to improve the quality of our legal system, to make it more responsive to the needs of our society. I have been proud of that. The creation of the Virginia State Bar, the Virginia Court of Appeals, the Limited Liability Act, and the Limited Partnership Act come readily to mind. This Association also has been active in matters relating to the Administrative Advisory Law Commission and IOLTA. Even now, the Association is active before the General Assembly with new initiatives involving insanity defenses in juvenile cases and limited interlocutory appeals.

And yet … while I have found this organization to be passionate about certain causes and advocates for changes of certain conditions, I have always found this group to be pragmatic. It has acknowledged that the business of law involves theory, but not ideology, and that it is about accommodation and resolution. I admire that.

This Association, in a quiet way, has stayed away from the dogmas of the left and the dogmas of the right. It has been skeptical of the “true believers” as they volley and thunder across our Commonwealth. The Association has looked for models of moderation, reason and practical common sense. I hope that will always be the case.

Here is why it is important.

During our time of membership in the VBA, we have experienced unparalleled change. Think about it!

At an accelerating pace, we have watched technology create dazzling improvements in goods and services generating millions of jobs, revitalizing old industries and spawning entirely new ones. Simultaneously we are distressed as technology renders established products and processes obsolete, eliminates millions of existing jobs and severely transforms millions of others and, in the process, people are snapping, becoming upset.

We face challenges as never before in our Commonwealth and country. No longer self-sufficient, the American economy has become intertwined in the global marketplace. We have seen the nature of trade and business change radically. So has the practice of law. America’s competitiveness in world markets is challenged sharply and terrorism has changed all of our lives dramatically and tragically.

All of this raises, predictably, economic, social and political issues, but they also present growing legal questions — and how the legal system responds to these challenges will have a lot to do with the shape of our future.

And that is where leadership is critical — and the leadership of The Virginia Bar Association can make a difference.

Tonight, I was asked to say something about leadership, to describe and define it. At a recent meeting in Hampton Roads I was asked by a group of civic leaders to define leadership, and I told them that there are whole shelves of books available at any bookstore on the subject. Books by sports coaches, by business executives, by long-dead Chinese philosophers and U.S. Presidents, books by cartoon characters, but my favorite leadership book is The Ten Winning Habits of Attila the Hun.

But let me tell you one of my favorite stories about leadership. It involves two guys lost in the desert. They meet and the first guy says to the second, “How long have you been lost in the desert?” And the second replies, “Two days. How about you?” The first guy says, “Three days.” And the second responds, “Good, I’ll follow you. You have more experience.”

Colin Powell once said that the U.S. Army has been studying the subject of leadership for 200 years — and still lacks an adequate definition.

But, he said, he liked a sign that someone put up at the infantry school at Fort Benning which read, “Leadership is that quality that inspires others to follow, if for no other reason than curiosity.” Now that sounds a little glib, but maybe not.

And that is because we live in a world of clutter, with more information than we can possibly digest. Cutting through that clutter, creating some curiosity, among other things, is a challenge for all leaders today.

But everything I have ever read on leadership can be boiled down to three simple words. They are words that we have learned in our practices and experienced in The Virginia Bar Association year after year after year. Those three words are: context, preparation and persuasion.

Benjamin Disraeli once said that a leader “must know the times in which he lives.” In other words, a leader must clearly understand the context within which leadership will be exerted. Lawyers know this.

Bill Parcells, who has coached two different teams into the Super Bowl, once said that the better prepared he felt for a game, the better his teams would play on Sunday. In other words, those you seek to lead will be no better prepared to face a challenge than you, yourself, are. Preparation, not locker-room speeches, gets the job done. Good lawyers do their homework.

Finally, the importance of persuasion. If you cannot persuade people to listen, how can you get anything accomplished? If you cannot persuade people to follow a course of action, why would they do it? This is true even when it might seem obvious that people should take a certain action because it is clearly in their interest. Harry Truman used to say that a major portion of his job was to persuade people to do things that they ought to do anyway. Lawyers recognize this —we do it all the time.

One more thing. All three are linked together. It is impossible to prepare if you do not understand the context in which you operate. It is impossible to persuade if you are not well prepared and it is certainly much easier for the persuaded to execute if they too understand the context and are well prepared.

Those three leadership elements I have observed in this organization for decades. I have absorbed them into my own life as a lawyer and public servant. That is why I am so grateful to this Association — and also for this award.

As we leave here this weekend, let us resolve to use our education, our experience and our energy to participate knowledgeably and constructively in the affairs of our community and Commonwealth, seeking to represent our clients and to bring people together, working for practical solutions to challenging problems — and to do so in a way that is reasoned, moderate and responsible.

In so doing, we will confirm the potential that The Virginia Bar Association has always signified. In so doing, we will help ensure that the quality of life will be enhanced for those who follow us as citizens, lawyers and members of the human race.
Again, many thanks for this wonderful award and for your years of friendship and support.Return to Top

Legal Focus/Construction & Public Contracts Law:
Application of the UCC to Construction Projects: Suppliers Beware
Fred R. Kozak

Imagine a material supplier who provides a defective or nonconforming product for a construction project. The product could be shoddy cabinets for a military base, or ready mix concrete that does not meet the compressive strength requirements of the project. Under the UCC, the material supplier may be liable not only for direct damages to replace or repair the defective product, but also may face a claim for delay or impact costs, lost profits, liquidated damages, or other consequential damages.
The Uniform Commercial Code (UCC), adopted by Virginia and most other states, seeks to codify the law applicable to the sale of goods between merchants. Where applicable, the UCC may differ from traditional contract law, particularly in the areas of contract formation and remedies for breach.

Construction projects may involve contracts to provide services alone, materials (or “goods”) alone, or a mixed combination of services and materials, in varying proportions. The UCC only applies if the particular contract in question is considered a sale of “goods,” 1 defined as “. . . all things (including specially manufactured goods) which are movable at the time of identification to the contract of sale. . . .”2 Contracts which are solely for either goods or services alone are easily categorized.

If a contract involves both goods and services, the majority of courts apply the “predominant factor” test to determine if the UCC applies.3 If the transaction is predominantly a sale of goods, with labor only incidentally involved (e.g., purchase of a water heater with installation), the UCC will apply.4 If the primary purpose of a contract is to provide a service, with goods incidentally involved (e.g., a contract for the construction of a house), the contract is considered one for services, governed by contract law and not the UCC. Most courts find construction contracts to be primarily for services and therefore not covered under the UCC.5
Based on the above principles, most contracts between owners, contractors, subcontractors, and architects will be governed by contract law. Most contracts (or purchase orders) between contractors or subcontractors and material suppliers, however, will be considered sales of goods covered by the UCC.

Application of the UCC may have unexpected consequences for both the unwary contractor and material supplier. The supplier probably expects that if it supplies defective or nonconforming goods, it may be liable to replace the materials, refund the purchase price, pay the difference of replacement materials, or even bear the cost of repairs. These types of general or direct damages are among buyer’s remedies under the UCC.6

In proper cases, however, the UCC also allows the buyer to recover “incidental and consequential damages” under Va. Code § 8.2 - 715. Consequential damages can be particularly significant where the buyer accepts non-conforming goods and later sues for breach of contract or warranty under Va. Code § 8.2 - 714.7

Incidental and consequential damages are described in Va. Code § 8.2 - 715 as follows:

§ 8.2-715. Buyer’s incidental and consequential damages.

(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.

(2) Consequential damages resulting from the seller’s breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (b) injury to person or property approximately resulting from any breach of warranty. (Emphasis added).
Consequential damages may include lost profits, loss of good will, losses resulting from interruption of buyer’s production process, lost interest, and much else. To recover consequential damages, the buyer must establish: (1) causation; (2) foreseeability; (3) reasonable certainty as to amount; and (4) that he is not barred by mitigation doctrines.8

By use of the “reason to know” language in § 8.2 - 715(2)(a), the UCC adopts the objective test of reasonable forseeability as the standard to recover consequential damages. The foreseeability required to recover consequential damages is established where the parties, at the time of contracting, knew or had reason to know facts that would make the loss a foreseeable result of the breach.9

As stated by Professor Corbin:

All that is necessary, in order to charge the defendant with a particular loss, is that it is one that ordinarily follows the breach of such a contract in the usual course of events, or that reasonable men in the position of the parties would have foreseen as the probable result of breach.10

In a construction materials contract or purchase order, it is common for the contractor to have provided the supplier with product specifications or requirements for the project. Those specifications may be stated or referred to in the contract or purchase order - for example, a purchase order issued by a concrete supplier to provide “4,000 p.s.i. concrete.” Accordingly, the specifications or requirements create a contractual obligation and an express warranty that the product supplied will conform to the requirements.11 In addition, there may be implied warranties of merchantability and/or fitness for a particular purpose.

Unless properly excluded or waived, providing a nonconforming or defective product may subject the supplier to consequential damages. Such damages are not limited to the contract price of the product.12

For example, in one case a buyer purchased cement blocks to be used as components in the production of structural planks.13 The buyer instructed the block supplier on its requirements for the blocks, including the dimensions, strength, and material. Some of the blocks delivered were defective, causing problems with the buyer’s production. The buyer sued for both direct and consequential damages. The court ruled that the block supplier had reason to know - in fact had actual knowledge - of the buyer’s general and particular requirements, and that the buyer’s losses resulted directly from the failure of the blocks to meet those requirements. The court held the block supplier liable for the claimed consequential damages, including loss of plant time, hauling costs for defective blocks, and additional labor costs to handle broken and defective block units.

In another case, a subcontractor successfully sued its concrete supplier for breach of contract and breach of warranty for delivery of concrete which did not meet the 3000 p.s.i. strength required in construction of an apartment building. When the defect was discovered, work on the project halted pending correction. Eventually, remedial steps including reconstruction were taken to correct the structural inadequacies. The court found that the need to replace defective concrete was reasonably foreseeable, and that the supplier was liable for consequential damages, including delay damages.14

The supplier may limit its exposure to consequential damages by properly worded limitations that are made a part of the supply contract or purchase order. In Flintkote Company v. W.W. Wilkinson, Inc.,15 the contractor sued the floor tile manufacturer for breach of the implied warranty of merchantability. As a result of defective tile, the owner required the contractor to overlay the rejected tile, leading to substantial remedial costs and liquidated damages for delay. The tile manufacturer’s product literature did not exclude the implied warranty of merchantability, although it did conspicuously exclude any implied warranty of fitness for a particular purpose. The product literature also stated - in regular language - that the warranty was limited to replacement of defective products, or at the manufacturer’s option, refund of the purchase price. The Court ruled that as opposed to exclusion of warranties, conspicuous language was not required to create a valid limitation of remedy. Accordingly, the Court reversed the judgment against the manufacturer, and remanded the case for a trial on the issue of whether the limitation of remedy was made a part of the parties’ contract.

Whether or not an exclusion of warranties or limitation of remedies is made a part of the contract is an important issue. In J.B. Moore Electrical Contractor, Inc. v. Westinghouse Electric Supply Co.,16 the contractor reviewed the project specifications with the electrical supplier, including the requirement for completion within a certain time, and the possibility of liquidated damages. The supplier then submitted to the contractor a purchase order which contained a disclaimer of consequential damages, including delay or liquidated damages. The contractor signed the purchase order without making its acceptance conditional on the supplier’s elimination of its disclaimer of liability for consequential damages. During the course of the project, late shipments by the supplier subjected the subcontractor to liquidated damages. The contractor attempted to hold the supplier liable for the liquidated damages, based on letters it had written to the supplier stressing the importance of timely performance. The Court ruled, however, that the disclaimer language in the supplier’s purchase order had become part of the contract, and accordingly the supplier was not liable for consequential damages.17

Conclusion
A defective or nonconforming product can cause big problems on a construction project, particularly if the defect is not discovered until after the product is incorporated into the structure. In such cases, the cost of the defective product may be the least expensive item of damage. Remedial costs or costs to remove and replace the defective product, with resulting time impacts and delay damages, may be significant. Delays in shipment may also be costly to the owner or contractor. Product suppliers will seek to minimize exposure to such liabilities, while contractors and other buyers will seek to preserve their remedies. To protect themselves, all parties to the transaction need to know (1) what remedies and what limitations are afforded by the UCC, and (2) how those remedies are preserved or liabilities limited in the formation of the contract for sale.

NOTES
1. Va. Code § 8.2 - 106 (1); § 8.2 - 102 (this title applies to transactions in goods).
2. Va. Code § 8.2 - 105 (1).
3. Bonebrake v. Cox, 499 F.2d 951 (8th Cir. 1974); Lane Construction Corp. v. Trading Merchandising Co., Inc., 34 Va. Cir. 383 (1994) (whether implied warranties applied to a contract for paving a parking lot depended on a factual determination of whether materials or services predominated in the contract).
4. See, e.g., Princess Cruises Inc. v. General Electric Co., 143 F.3d 828 (4th Cir. 1998).
5. White & Summers, Uniform Commercial Code § 9-12, at 482 (4th Ed. 1995) (“White & Summers”).
6. See Va. Code §§ 8.2 - 711, -712, -713, and -714 (buyer’s remedies); White & Summers, § 6-3, at 186-87; § 6-5, at 208.
7. § 8.2-714. Buyer’s damages for breach in regard to accepted goods.
(1) Where the buyer has accepted goods and given notification (subsection (3) of section 2-607), he may recover his damages for any non-conformity of tender, the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(3) In a proper case, any incidental and consequential damages under the next section may also be recovered.
The Official Comment to § 8.2-714, Comment 2 states:
The “non-conformity” referred to in subsection (1) includes not only breaches of warranties but also any failure of the seller to perform according to his obligations under the contract. In the case of such non-conformity, the buyer is permitted to recover for his loss “in any manner which is reasonable.”
8. White & Summers, Uniform Commercial Code § 6-5, at 210-11 (4th Ed. 1995).
9. White & Summers, § 10-4, at 376-77. The majority of courts considering the subject have held that the UCC rejects the “tacit agreement” or “special circumstances” requirement for recovery of consequential damages. See, e.g., R.I. Lampus Co. v. Neville Cement, 378 A.2d 288 (Pa. S. Ct. 1997)
10. Corbin, Contracts, Section 1010, at 79 (1964). Damages which a seller “has reason to know of” are those which flow from the breach in the ordinary course of business. White & Summers, § 10-4, at 374.
11. See Fournier Furniture , Inc. v. Waltz-Holst Blowpipe Co., 980 F. Supp. 187 (W.D.Va. 1997) (specifications for furnace contained in proposal constituted express warranty).
12. Id. Buyer’s damages are not limited to the contract price. Under the UCC, the buyer is entitled to incidental and consequential damages that can exceed the purchase price. The buyer is entitled to be put in the same position as if the contract was fulfilled.
13. R.I. Lampus Co. v. Neville Cement, 378 A.2d 288 (Pa. S. Ct. 1997)
14. District Concrete Co. v. Bernstein Concrete Corp., 418 A.2d 1030 (Ct.App.D.C. 1980). In another case, S.M. Wilson & Co. v. Reeves Red-E-Mix Concrete, Inc., 350 N.E.2d 321 (Ill.App. 1976), the plaintiff contracted with the defendant to supply concrete for a hospital in accordance with certain specifications provided to the supplier. When the concrete turned out to be defective, the court stated that the only relevant specification was the compressive strength requirement. The court further stated that if the slab had to be removed, the defendant would be liable for the cost of removal and replacement “and for any loss incurred through the delay necessarily involved.” 350 N.E.2d at 325. In Whitaker’s Inc. v. C.B.C. Enterprises, 820 F.Supp. 242 (E.D.Va. 1993), a cabinet manufacturer supplied cabinets and vanities which were defective and rejected by the owner. The contractor sought damages to obtain replacement cabinets, home and field office overhead, and other consequential damages. The court denied recovery of the claimed consequential damages, because it found that both parties had contributed to the project delays.
15. 220 Va. 564, 260 S.E.2d 229 (1979).
16. 221 Va. 745, 273 S.E.2d 553 (1981).
17. If a contract contains an exclusion of damages which are arguably consequential, the plaintiff in a proper case may attempt to recover under 8.2-714(1) if the damages can be shown to be direct. White & Summers, § 10-2, at 364-65. For example, delay damages may be consequential or direct, depending on the contract. If the project time requirements and consequences of delay or liquidated damages are stated or incorporated into the material supply contract or purchase order, delay damages may be direct damages for the breach of that particular contract. White & Summers, § 10-4(d), at 379.Return to Top

Legal Focus/Construction and Public Contracts Law
The Subcontractor’s Dilemma:
Recovery of Damages Caused by the Owner Under Virginia Law
William E. Franczek and John R. Lockard

Many subcontractor claims on construction projects, if not the majority, result from causes that may be the responsibility of the project owner. Such problems include unanticipated subsurface conditions, changes, delays, and acceleration. The general contractor and the subcontractor may agree to jointly pursue such claims against the owner, sometimes called “pass through” claims. Often, the general contractor and subcontractor agree to share pro rata the costs of pursuing the claims and the recovery in proportion to the individual amounts of the claims.

A common misconception is that such owner responsible claims are compensable. Virginia law, however, creates several obstacles to the subcontractor that wants to recover for owner caused damages. Virginia law generally prohibits actions by subcontractors against owners for lack of privity of contract. At the same time, the Virginia courts have held that a subcontractor may not recover from the general contractor for delay damages that were not caused by some circumstance under the general contractor’s control, unless the general contractor has contractually agreed to be responsible for such damages. The ultimate implications of these decisions, however, are not clear.

The Causation Problem: Doyle & Russell v. Welch Pile Driving Corporation
In 1973, the Supreme Court of Virginia decided Doyle & Russell v. Welch Pile Driving Corporation.1 In Welch, the pile driving subcontractor sought damages from the general contractor for delays caused by unexpected subsurface conditions.2 The parties stipulated that the delays were not caused by the general contractor or by any person over which the general contractor had control.3

The Supreme Court of Virginia held that

Absent a contractual commitment contra, a general contractor is not liable to its subcontractor for damages flowing from delays incurred by the subcontractor unless the delays were caused by the general contractor or some agency or circumstance under his direction or control.4

The Supreme Court of Virginia found that at least part of the subcontractor’s claim was for delays that were not caused by the general contractor.5 Therefore, the general contractor could only be responsible for such amounts if it contractually agreed to be responsible.6 The Court found that the subcontract was ambiguous with regard to this issue and remanded the case to the trial court so that the jury could consider evidence of the parties’ intent.7

The Welch holding has some limitations. On its face, the case only applies to delay claims by the subcontractor. The case does not address other claims such as, claims for increases in direct costs. Also, the general contractor may still remain liable for delays that originate with other parties. For example, the general contractor should be responsible for delays caused by one of its other subcontractors, because the general contractor has the ability to control the other subcontractors. Likewise, a delay caused by the owner may not impact the subcontractor but for schedule decisions made by the general contractor in response to the delay. Presumably, this delay would be caused by the general contractor and not excluded by Welch.

The Virginia Supreme Court in Welch did recognize that the subcontract could expressly provide that the general contractor would be responsible for owner caused delays or that the general contractor could agree to be responsible for the extra costs in a change order.8 Few, if any, subcontracts, however, contain such language. In fact, many subcontracts expressly provide that the subcontractor is only entitled to an extension of time for any delays and the general contractor is not responsible for any damages resulting from the delay. These are known as “no damage for delay” clauses and are generally enforceable in Virginia.9 Other subcontract clauses limit the general contractor’s liability to amounts recovered from the owner. As discussed below, however, these latter clauses create different problems.

The Lack of Privity Problem: APAC-Virginia, Inc. v. Virginia Department of Highways & Transportation
Seventeen years after Welch, the Court of Appeals of Virginia decided APAC-Virginia, Inc. v. Virginia Department of Highways & Transportation.10 In APAC-Virginia, the general contractor sought to recover delay damages from the Virginia Department of Highways & Transportation (“VDOT”) for additional costs incurred by a subcontractor.11 The general contractor did not seek any of its own damages and the style of the case indicated that the suit was filed on behalf of its subcontractor. The Court of Appeals noted that “[a]n action on a contract must be brought in the name of the party in whom the legal interest is vested.”12 Applying that rule of law, the court held that the action was barred because of the lack of privity of contract between the subcontractor and VDOT.13

Although APAC-Virginia is a Court of Appeals decision and is not binding authority, the case has had wide impact. First, unlike Welch, APAC-Virginia addresses to all subcontractor claims, not just delay claims. Second, at least some circuit courts have interpreted APAC-Virginia to mean that a general contractor cannot recover damages incurred by its subcontractor unless the general contractor can prove that it has more than “potential” or “contingent” liability to the subcontractor. For example, in Marriott Corp. v. Thomas P. Harkins, Inc., the Circuit Court of Fairfax County held that a general contractor must prove that it is actually liable for a subcontractor’s claim before it can include the claim in a suit against the owner.14 While the court held that the general contractor did not have to actually pay the subcontractor before filing suit against the owner, it concluded the general contractor did have to demonstrate that it was liable to its subcontractor pursuant to its subcontract or settlement agreement.15

The interpretation of APAC-Virginia as expressed in the Harkins decision makes it difficult for the general contractor and subcontractor to resolve their disputes prior to bringing suit against the owner.16 In Harkins, the general contractor reached a settlement agreement with several of its subcontractors that provided that the general contractor would only be liable to the subcontractor to the extent the general contractor recovered against the owner. Such settlements are often called “pass through agreements” or “liquidation agreements.” The court, however, found in that case that the general contractor could not pursue these claims against the owner. The court reasoned that the general contractor had no real liability because if the general recovered nothing from the owner, it would not be liable to the subcontractors.17

Harkins has two important ramifications. First, many subcontracts contain language similar to the “pass through agreement” in Harkins that limits the general contractor’s liability for owner caused damages to only amounts actually recovered from the owner. In Harkins, the subcontractors recovered nothing on their claims because any potential recovery was contingent upon the general contractor’s recovery from the owner. By the same reasoning, a subcontractor that signs a subcontract that limits the general contractor’s liability to amounts recovered from the owner may, in effect, be waiving all its claims in advance for any owner caused damages.

Second, under Harkins, the general contractor must essentially admit liability to its subcontractors before the issue of the owner’s responsibility has been decided. Obviously, this is not an attractive option for the general contractor. It is also not an efficient way to resolve construction disputes.

The Subcontractor’s Dilemma
The combined impact of Welch and APAC-Virginia creates significant problems for subcontractors. Under some circuit court interpretations of APAC-Virginia, the general contractor cannot sue the owner to recover damages on behalf of a subcontractor unless the general contractor can show that it is actually liable for the subcontractor’s claim. In many cases, therefore, the subcontractor would have to file an action directly against the general contractor for its damages. Under the Welch decision, however, the subcontractor cannot sue the general contractor for delay damages caused by the owner. The subcontractor appears to be left without a remedy for recovery of delay damages caused by the owner, absent a contractual agreement to the contrary.

This result is demonstrated in Harkins, supra, where all but one of the subcontractor claims was denied because the court found that the general contractor had no liability pursuant to the “pass through agreements.”18 This holding was based on APAC-Virginia. The last subcontractor claim involved delay damages that had been reduced to a settlement agreement that was not contingent on the owner’s liability. The court also dismissed this claim, however, because the general contractor and subcontractor had stipulated in the settlement agreement that the general contractor did not cause the delays. As such, the court found that the general contractor could have no liability to the subcontractor pursuant to Welch.19 Harkins is a case where all the subcontractors lost their claims because they had reached settlements with the general contractor.

The Subcontractor Options after Welch and APAC-Virginia
Welch and APAC-Virginia are not problems for all construction projects. The Code of Virginia has abolished the privity requirement for claims against the Virginia Department of Transportation.20 Likewise, federal law allows the recovery of subcontractor costs on federal construction projects. On other Virginia construction projects, unfortunately, Welch and APAC-Virginia have created a situation that does not reflect the realities of construction practices. The holdings also do not allow for efficient resolution of construction disputes.

The subcontractor does have some options. The subcontractor can insist that the general contractor assume liability for owner delays pursuant to the terms of the subcontract or change orders. The subcontractor can also file suit against the general contractor directly alleging that the general contractor caused the delay. This is not a particularly desirable option, but the general contractor then should be able to bring the owner into the suit pursuant to third party practice rules.21 Neither of these options, however, resolves the underlying problem of making the owner directly responsible for damages caused by its actions.

APAC-Virginia is not binding authority. In an appropriate case, the Supreme Court of Virginia may overrule or clarify this decision. By comparison, there are New York decisions similar to Welch and APAC-Virginia.22 Very recently, however, the New York Supreme Court, Appellate Division, recognized that a general contractor may pursue a subcontractor’s claim against the owner pursuant to a liquidation agreement.23

Several contractor groups have also lobbied in the last few years for legislation to expressly allow general contractors to pursue subcontractor claims against the owner in Virginia. Until such time as the law is changed, however, subcontractors will need to carefully review their subcontracts, settlement agreements, and lien waivers to ensure that they preserve their rights to recover damages for which the owner may be responsible.

NOTES
1. 213 Va. 698, 194 S.E.2d 719 (1973).
2. Id. at 699-700.
3. Id. at 699.
4. Id. at 700-01 (citing Norcross v. Wills, 198 N.Y. 336, 91 N.E. 803 (1910); McGrath v. Electrical Construction Company, 230 Or. 295, 364 P.2d 604 (1961).
5. Id. at 702.
6. Id.
7. Id. at 703. The results of the case on remand were not reported.
8. Id. at 702.
9. The Virginia Public Procurement Act provides some limitation on “no damage for delay” clauses for state government contracts. Va. Code Ann. § 2.2-4335 (Michie 2001).
10. 9 Va. App. 450
11. Id. at 451.
12. Id. at 452.
13. Id. Since APAC-Virginia, the Code of Virginia has been amended to allow pass through claims on VDOT projects. Va. Code Ann.
14. 30 Va. Cir. 515, 518-19 (Circuit Court of Fairfax County, 1990).
15. Id. at 519-20.
16. Id.at 518.
17. Id.
18. Id.
19. Id. at 518-19.
20. Va. Code Ann. § 33.1-386 (Michie Supp. 2001).
21. Rule 3:10 of the Rules of the Supreme Court of Virginia. See also Valley Landscape Company, Inc. v. Rolland, 218 Va. 257, 262, 237 S.E.2d 120 (1977) (“Under Rule 3:10 a defendant can bring in a third-party defendant only for the purpose of passing through to the third-party defendant all or part of the liability which might be imposed on the defendant by the plaintiff as the result of the conduct of the third-party defendant.”).
22. See Triangle Sheet Metal Works, Inc. v. James H. Merritt and Co., 588 N.E. 2d. 69 (N.Y. 1991) (general contractor not responsible for delays caused by owner, citing Welch); Alvord & Swift v. Muller Constr. Co., 385 N.E.2d 1238 (N.Y. 1978) (subcontractor cannot sue owner directly due to lack of privity of contract).
23. Bovis Lend Lease LMB, Inc. v. GCT Venture, Inc., 728 N.Y.S.2d 25 (N.Y. App.Div. 2001). Of note in Bovis, the subcontract contained a “no damage for delay” clause that should have prevented the subcontractor from recovering any delay damages from the general contractor. After the delays occurred, and in spite of the “no damage for delay” clause, the general contractro and subcontractor entered into a liquidation agreement addressing the subcontractor’s delay claim. The New York court upheld this agreement despite the apparent lack of consideration. Return to Top

VBA Young Lawyers Division: Welcome to the VBA/YLD
Vaughan Gibson Aaronson

Why? How? When will I ever find the time? If you are like me, you often find yourself asking such questions. There is no doubt we young lawyers are all so very busy with our practices and work commitments, our families and friends and our personal lives.
Yet if you are like me, you also find yourself with a great desire to get involved in your community in an attempt to give a little back.

If you attended the recent Annual Meeting program, “21st-Century Professionalism: A Balanced Life vs. The Bottom Line,” co-sponsored by the VBA Young Lawyers Division and the Association’s professionalism work groups, you probably realized after looking around the packed audience that you are not alone. We all strive for a balanced life. The VBA/YLD can be a part of that balance.

Why get involved with the VBA/YLD? I walked into my first VBA/YLD meeting almost 10 years ago when I was a new associate at a small firm in Northern Virginia, and it is safe to say that I did not know a soul.

I knew the VBA/YLD offered numerous opportunities to work in the community. In fact, the VBA/YLD has grown to a point where several hundred volunteers operate 40-plus committees offering services to the bar and public at large.

What I did not know were the opportunities the VBA/YLD offered to get to know other young lawyers at similar stages in their lives and careers. Once you get involved and join the VBA/YLD efforts, you will begin making contacts and friends that will last a career and lifetime. Whether you are in a large or small firm, in a government position or corporate counsel’s office, or in a big city or small town, with so many committees to choose from, you will find an interesting opportunity for yourself.

How do you get involved? It is simple. I have listed our many committees for you below, and I encourage you to look at this list and visit our page on the VBA website at www.vba.org. Find something that interests you and call or e-mail the chair. You can also call our membership chairs, Elizabeth Horsley at (804) 643-1991 or Anne Wood at (434) 846-9000, and certainly feel free to contact me at (804) 697-1316.

And as for that nagging “time” issue, I wish I had the perfect answer. I can say, however, that the issue of lifestyle balance is one of great importance to the VBA/YLD. Following the tremendous success of our first program co-sponsored with the Association’s “senior section,” we will continue to address the issue and keep the dialogue going. I think you will be amazed at how much good one young lawyer can do with even a minimal commitment of time. The personal satisfaction, as well as the benefits to the bar and the community, make it a worthwhile investment. I look forward to seeing you this year!

VBA/YLD Officers & Executive Committee
Chair: Vaughan Gibson Aaronson, Troutman Sanders Mays & Valentine LLP.
Chair-Elect: Stephen D. Otero, Troutman Sanders Mays & Valentine LLP.
Secretary/Treasurer: Stacy M. Colvin, Hunton & Williams.
Immediate Past Chair: David N. Anthony, Kaufman & Canoles, PC.
Capitol: Charles G. Meyer III, LeClair Ryan, PC.
Potomac: Katherine M. Harman-Stokes, Hogan & Hartson, LLP.
Tidewater: Christopher S. Boynton, Virginia Beach City Attorney’s Office.
Valley: Melissa Amos Young, Gentry Locke Rakes & Moore, LLP.
At Large: Matthew E. Cheek, Williams Mullen.
At Large: Nicole Chrisman Daniel, Hunton & Williams.
At Large: R. Braxton Hill IV, Christian & Barton, LLP.
At Large: Ashley L. Taylor Jr., Troutman Sanders Mays & Valentine LLP.
At Large: Monica L. Taylor, Gentry Locke Rakes & Moore, LLP.
At Large: Lori D. Thompson, Gentry Locke Rakes & Moore, LLP.
At Large: King F. Tower, Williams Mullen.

VBA/YLD Committees
Contact information is available at www.vba.org.
ABA Liaison/Project Development/Grants: Katja H. Hill, LeClair Ryan, PC.
ABA/YLD Award of Achievement: Nicole Chrisman Daniel, Hunton & Williams.
Bridge-the-Gap: Monica L. Taylor, Gentry Locke Rakes & Moore, LLP.
Child Support Enforcement Project/Richmond: Turner A. Broughton, Williams Mullen.
Collegiate Athletics Advisory Committee: David J. Sullivan and J. Ellsworth Summers Jr., Kaufman & Canoles, PC.
Communications/Publicity: Cabell E. Youell, Flippin, Densmore, Morse & Jessee; E. Livingston B. Haskell, Williams Mullen.
Community Law Week/Law Day: N. Thomas Connally III, Hogan & Hartson, LLP; Brian R. Greene, Christian & Barton, LLP.
Disaster Legal Assistance: Valerie W. Long, McGuireWoods, LLP; Richard H. Ottinger, Vandeventer Black LLP.
DMV Project/Richmond: Julie A. Childress, Bowman and Brooke, LLP.
DMV Project/Roanoke: Wallace Brittle Jr. and Lori D. Thompson, Gentry Locke Rakes & Moore, LLP.
Domestic Violence Project/Northern Virginia: Susanne H. Carnell, Hogan & Hartson, LLP; Marli J.P. Kerrigan, Federal Bureau of Prisons.
Domestic Violence Project/ Richmond: Sharon T. Cox and Erin E. McDonald, McGuireWoods, LLP.
Health Law Project/Appeal of Managed Care Decisions: Molly S. Evans, Kaufman & Canoles, PC.
Immigrant Assistance: Cathryn A. Le, Troutman Sanders Mays & Valentine LLP; Kimberly M. Welsh, McGuireWoods, LLP.
The John Marshall Foundation Liaison: David I. Meyers, Hunton & Williams.
Law School Councils/Statewide Coordinator: C. Cooper Youell IV, Gentry Locke Rakes & Moore, LLP.
Law School Council/University of Richmond: Katja H. Hill, LeClair Ryan, PC; Megan C. Rahman, Troutman Sanders Mays & Valentine, LLP.
Law School Council/Washington & Lee: C. Cooper Youell IV, Gentry Locke Rakes & Moore, LLP.
Law School Council/William & Mary: Kristan B. Burch, Kaufman & Canoles, PC.
Law School Liaison: Matthew E. Cheek, Williams Mullen.
Lawyers for the Arts/Nonprofits: Leigh T. Hudgins, Williams Mullen; Jennifer L. McClellan, Hunton & Williams.
Lawyers Helping Lawyers Program Liaisons: Michael W. Graff Jr., McGuireWoods, LLP; Donna F. Bryant and Charles G. Meyer III, LeClair Ryan, PC.
Legal Services for the Mentally Ill: King F. Tower, Williams Mullen.
Litigation Practice: John C. Valdivielso, Kaufman & Canoles, PC.
Membership: Elizabeth M. Horsley, Williams Mullen; Anne B. Wood, Edmunds & Williams, PC.
Mentor Program/Lynchburg: Christopher Billias.
Mentor Program/Richmond: Rudene M. Bascomb, Hunton & Williams; Andrew P. Sherrod, Troutman Sanders Mays & Valentine LLP.
Mentor Program/ Roanoke: Beth G. Colling, Gentry Locke Rakes & Moore, LLP.
Minority Recruitment/Richmond: Aisha J. Bullard and Gregory D. Habeeb, Williams Mullen.
Minority Recruitment/Roanoke: Jimmy F. Robinson, Jr., Gentry Locke Rakes & Moore, LLP.
Model Judiciary Program: David J. Ervin, Collier Shannon Scott, PLLC.
National Moot Court: Christopher A. Jones, LeClair Ryan, PC.
New Projects: Erica S. Beardsley, Watt, Tieder, Hoffar & Fitzgerald, LLP; Kathy Harman-Stokes, Hogan & Hartson, LLP; Katja H. Hill, LeClair Ryan, PC.
Pre-Law Counseling: R. Lucas Hobbs, Woods, Rogers & Hazlegrove, PLC.
Pro Bono Clearinghouse: Rebecca E. Kuehn and Paige B. McThenia, LeClair Ryan, PC.
Pro Bono Hotline/Central Virginia: Coburn R. Beck, Cyane B. Crump and Agustin E. Rodriguez, Hunton & Williams.
Pro Bono Hotlines/Statewide Coordinator: Beth V. McMahon, Kaufman & Canoles, PC.
Pro Bono Hotline/Eastern Virginia: Brian L. Sykes, Vandeventer Black LLP.
Pro Bono Hotline/Northern Virginia: Heather D. Dawson, Odin, Feldman & Pittleman; Renee C. Esfandiary, McGuireWoods, LLP.
Pro Bono Hotline/Roanoke: Victor S. Skaff III, Gentry Locke Rakes & Moore, LLP.
Professionalism & Civility in Practice: Robert A. Angle, Troutman Sanders Mays & Valentine LLP.
Project Hope: Rudolph “Dutch” Bumgardner IV, Dominion Resources.
Special Education Handbook: Ashley L. Taylor Jr., Troutman Sanders Mays & Valentine LLP.
Substantive Law Sections/YLD Representative Coordinator: Nicole C. Daniel, Hunton & Williams.
Town Hall Meetings/Statewide Coordinator: Christopher S. Boynton, Virginia Beach City Attorney’s Office.
Town Hall Meeting/Charlottesville: Michael E. Derdeyn, McGuireWoods, LLP; Donald D. Long, Feil, Pettit & Williams.
Town Hall Meeting/Hampton Roads: Jeffrey Miller, Cooper, Spong & Davis; Brandon H. Zeigler, Stallings & Richardson, PC.
Town Hall Meeting/Northern Virginia: Daniel P. Collins and Jeffrey L. Harvey, Troutman Sanders Mays & Valentine LLP.
Town Hall Meeting/Richmond: Brian R. Greene and Henry I. Willett III, Christian & Barton, LLP.
Town Hall Meeting/Roanoke: James K. Cowan Jr., Flippin, Densmore, Morse & Jessee.
Video Series: Michael L. Walton, Hunton & Williams.
The Virginia Lawyer: Roderick W. Simmons, Hirschler Fleischer, PC.
Working Parents Handbook: Melissa Amos Young, Gentry Locke Rakes & Moore, LLP.Return to Top

VBA Division, Section and Committee Chairs

LAW PRACTICE MANAGEMENT DIVISION
Heman A. Marshall, Woods, Rogers & Hazlegrove, Roanoke

YOUNG LAWYERS DIVISION
Vaughan Gibson Aaronson, Troutman Sanders Mays & Valentine LLP, Richmond

ADMINISTRATIVE LAW SECTION
John M. Holloway III, Hunton & Williams, Richmond

BANKRUPTCY LAW SECTION
Leighton S. Houck, Caskie & Frost, Lynchburg

BUSINESS LAW SECTION
David I. Greenberg, LeClair Ryan, PC, Richmond

CIVIL LITIGATION SECTION
J. Burke McCormick, Hunton & Williams, Richmond

CONSTRUCTION AND PUBLIC CONTRACTS LAW SECTION
Larry W. Caudle Jr., Jenkens & Gilchrist, Washington, DC

CORPORATE COUNSEL SECTION
Joseph E. Spruill III, Virginia Bankers Association, Richmond

CRIMINAL LAW SECTION
Andrew A. Protogyrou, Protogyrou & Rigney, PLC, Norfolk

DOMESTIC RELATIONS SECTION
David G. Weaver, Gentry Locke Rakes & Moore LLP, Roanoke

ELDER LAW SECTION
Paula L. Peaden, Parker, Pollard & Brown, Richmond

ENVIRONMENT, NATURAL RESOURCES AND ENERGY LAW SECTION
Patrick A. O’Hare, Reed Smith Hazel & Thomas, LLP, Richmond

HEALTH LAW SECTION
T. Braxton McKee, Kaufman & Canoles, PC, Norfolk

INTELLECTUAL PROPERTY AND INFORMATION TECHNOLOGY LAW SECTION
Marshall M. Curtis, Whitham, Curtis & Christofferson, PC, Reston

JUDICIAL SECTION
Hon. R. Terrence Ney, Fairfax Circuit Court, Fairfax

LABOR RELATIONS AND EMPLOYMENT LAW SECTION
Anne Gordon Greever, Hunton & Williams, Richmond

REAL ESTATE SECTION
Lucia Anna Trigiani, Troutman Sanders Mays & Valentine LLP, McLean

TAXATION SECTION
Neil V. Birkhoff, Woods, Rogers & Hazlegrove, PLC, Roanoke

TRANSPORTATION LAW SECTION
Daniel R. Warman, Baker & Warman, Norfolk

WILLS, TRUSTS AND ESTATES SECTION
Howard M. Zaritsky, Rapidan

VIRGINIA ALTERNATIVE DISPUTE RESOLUTION JOINT COMMITTEE
John Barry Donohue Jr., Thorsen & Scher, LLP, Richmond

COMMISSION ON THE NEEDS OF CHILDREN
Prof. Robert E. Shepherd Jr., Richmond

COMMITTEE ON FEDERAL JUDGESHIPS
EASTERN DISTRICT: John M. Ryan, Vandeventer Black LLP, Norfolk
WESTERN DISTRICT: Wilson F. Vellines Jr., Vellines, Cobbs, Goodwin & Glass, Staunton

COMMITTEE ON HONORING MEMBERS & JUDGES
John S. Barr, McGuireWoods, LLP, Richmond

JUDICIARY COMMITTEE
John Barry Donohue Jr., Thorsen & Scher, LLP, Richmond

COMMITTEE ON LEGAL EDUCATION AND ADMISSION TO THE BAR
Michael J. Quinan, Woods, Rogers & Hazlegrove, PLC, Richmond

COMMITTEE ON THE NEEDS OF THE MENTALLY DISABLED
Gail Starling Marshall, Rapidan

COMMITTEE ON NOMINATIONS TO VIRGINIA COMMISSIONS AND APPELLATE COURTS
Thomas F. Farrell II, Dominion Generation, Richmond

COMMITTEE ON SPECIAL ISSUES OF NATIONAL AND STATE IMPORTANCE
Hon. W. Tayloe Murphy Jr., Virginia Secretary of Natural Resources, Richmond

SUBSTANCE ABUSE COMMITTEE
Charles G. Meyer III, LeClair Ryan, PC, Richmond Return to Top

Across the Commonwealth

Nominations sought for DeMallie Award
The Gardener G. DeMallie Award was created by the Virginia Continuing Legal Education Committee to honor the late Assistant Director of Virginia CLE and to recognize on a regular basis someone who has contributed outstanding service to continuing legal education in Virginia. Nominations are invited for the fifth annual DeMallie Award, to be presented at the Virginia State Bar Annual Meeting, and should be submitted prior to May 10, 2002. Criteria and a printable nomination form may be accessed on the VBA member news page at www.vba.org. Return to Top

Bankruptcy Law Section Conference
The Bankruptcy Law Section of The Virginia Bar Association will hold its Fifth Annual Conference April 19-21, 2002, at The Sanderling Inn in Duck, North Carolina.
Four hours of continuing legal education programming, including one hour of ethics, is scheduled for Saturday morning. Topics to be covered include recent developments in bankruptcy, federal and state court receiverships, ethical considerations in bankruptcy law, and a panel discussion on "Tenants by Entirety Property; and Award of Damages for Breach of Stay."
The weekend will begin with a welcome reception Friday evening for meeting attendees and their families. Saturday morning will start with a continental breakfast for meeting participants and conclude with luncheon for everyone, allowing participants some free time to enjoy the resort with their families.
Leighton S. Houck of Caskie & Frost in Lynchburg serves as chair of the VBA Bankruptcy Law Section.
Hotel arrangements should be made directly with The Sanderling Inn by calling 1-800-701-4111.
Registrants interested in playing golf on Saturday afternoon should contact Loc Pfeiffer at (804) 343-5237 or by e-mail at loc.pfeiffer@kutakrock.com.
Full registration information has been mailed to members of the VBA and VSB Bankruptcy Law Sections and is also available on the Bankruptcy Law Section’s activities page at www.vba.org. Return to Top

News in Brief

Three VBA members have been appointed to serve on the Virginia Commission on Women and Minorities in the Legal System. They are Aisha J. Bullard of Williams Mullen in Richmond, Cliona M. Robb of Christian & Barton, LLP, in Richmond, and Rudene Mercer Bascomb, the VBA Young Lawyers Division representative, of Hunton & Williams in Richmond. Bullard’s term expires in June 2003; Robb and Bascomb will serve terms ending in June 2004.

VBA member Sara Redding Wilson of Richmond has been reappointed Director of the Virginia Department of Human Resource Management.

VBA Substance Abuse Committee member Marilynn C. Goss of Richmond has been appointed as a substitute judge for the 13th Judicial District.

Support VBA activities by becoming a Patron in 2002. 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. Call (804) 644-0041 for more information. A list of VBA members who chose to become Patrons in 2001 is available at www.vba.org.

"Stop the Violence,” a CLE program to train volunteer legal advocates for victims of domestic violence, will be offered by the VBA Young Lawyers Division at the Prince William County Courthouse in Manassas on Wednesday, May 1, from 5 to 9 p.m. The training is free and offers four CLE credits to participants. For more information, please visit the CLE/Meetings page of the VBA website at www.vba.org.

The Virginia Alliance of Legal Assistant Associations is hosting its third statewide legal assistant/paralegal training seminar in Roanoke on April 26 and 27. The Alliance will offer advanced seminars and workshops in areas of litigation, real estate, bankruptcy, FLSA, mediation, ethics, environmental law, and Internet research and technology. There is a reception from 6 to 8 p.m. on Friday evening, and other activities, including a networking luncheon on Saturday, are planned. For a brochure, please contact Suellen Honeychuck by phone at (703) 246-4379, by fax at (703) 273-6476, or by e-mail at shoneychuck@cox.rr.com.

The VBA News Journal needs articles from Association members for upcoming issues in 2002. We are looking for short (1,000-1,500 words), practice-related articles on a variety of topics. Suggestions for personal profiles of VBA members, or articles on the special heritage of the legal profession in Virginia, are also welcomed. For more information, visit the “Writers’ Guide” on the VBA website, or contact Caroline Cardwell at (804) 644-0041.

The Virginia Lawyer was first published in 1966 by the VBA Young Lawyers Division. In 2000, Virginia CLE and the VBA/YLD joined in a cooperative effort to produce a new two-volume guide for practitioners designed to assist attorneys in dealing with unfamiliar areas. Details are available on the Internet at http://www.vacle.org/wn111.htm#valawyer.

The American Judicature Society will hold a half-day symposium in Washington, D.C., on May 17 to examine the role and responsibilities of the executive and legislative branches of government in the federal judicial selection process. The first part will feature an historical overview of the federal judicial selection process, informed by the experience of past and present White House counsel and Justice Department officials. The second part of the program will provide an examination of the Senate’s role of advice and consent and of the formal and informal procedures used by senators during the nomination phase. For more details, contact Allan Ashman at aashman@ajs.org or (312) 357-8825.

Information for lawyers who are assisting deployed service personnel, their employers and their families is available on the American Bar Association’s website at www.abanet.org. This information can be accessed through the VBA website’s September 11 response page at www.vba.org, which includes links and information related to the terrorist attacks and their aftermath. Return to Top

Copyright 2007 The Virginia Bar Association