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October 2004
Volume XXX, Number 6 (PDF)

President’s Page:
Procedural ‘Roulette’: Gambling on Justice in Virginia’s Death Penalty System
E. Tazewell Ellett

ABA News Brief: Jury Symposium at W&L

Legal Focus/Civil Litigation:
Factors Involved in Granting and Denying Preliminary Injunctions in Virginia State Courts
Bradfute W. Davenport

Legal Focus/Civil Litigation:
Massie v. Firmstone: Limiting Parties from Rising Above Their Own Evidence
David N. Anthony

John Marshall Day Observed in Richmond

Young Lawyers Division
VBA/YLD rallies to aid tropical storm victims • Cruzan attorney encourages use of advance medical directives in Charlottesville • New e-newsletter helps keep young lawyers informed

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Letters of intent for 2005-06 Virginia Law Foundation grants due in December • Virginia Indigent Defense Summit at UR next month • Community Service Program encouraged by pledges • Reserve your room for the Annual Meeting • Benos named Canada’s consul in Richmond

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President's Page:
Procedural 'Roulette': Gambling on Justice in Virginia's Death Penalty System
E. Tazewell Ellett

Death penalty cases! They conjure up in the mind’s eye exhaustive and painstaking proceedings involving all manner of creative and heroic defense efforts, with defense counsel using wide-ranging investigative resources and expert testimony (a la Perry Mason) and being given every opportunity to demonstrate the defendant’s innocence and/or the fact that the defendant does not deserve the death penalty. We imagine numerous appeals and post-conviction reviews where, again, every opportunity is provided for the defense to make such a demonstration. And we envision that only after all these extensive and painstaking procedural steps are completed, and only after highly motivated and qualified defense counsel have been unable to make such a showing despite all these opportunities, would the defendant be executed by the state.

If only this were always the procedure followed in Virginia’s system for adjudicating capital cases. But it is not. Far from it.

Before I go any farther, and lest anyone mistake my message here, let me clarify at the outset two points. First, my practice does not involve in any way the prosecution or defense of capital cases.

Second, I continue to support the availability of the death penalty as a sanction for certain crimes, even though I remain open to the strong arguments on both sides of this very sensitive issue. The availability of the death penalty as a sanction in Virginia is not my subject here, but rather the adequacy and fairness of the system for adjudicating capital cases in Virginia.

I believe that a majority of Virginia’s citizens trust our death penalty system, and that they do so because they make a number of assumptions about that system. Those assumptions, in the aggregate, would logically lead one to conclude that the system is fair, reasonable, and just, and that stringent procedures are in place to ensure that the truth is determined, only the truly guilty are convicted, and the death penalty is applied only in the most egregious and deserving cases.
I know that my long-standing support for the availability of the death penalty as a sanction, and for our system for adjudicating death penalty cases, has been based on my personal assumptions about that system, assumptions which I would imagine are shared by many other Virginians.

Among the more important assumptions for me are the following:

1. Since we are dealing with the ultimate sanction in these cases, no stone is left unturned in the defense of capital cases.
2. While resources may be more limited for the defense of other types of criminal cases, surely they are adequate when it comes to defending capital defendants.
3. Defense counsel in capital cases are provided the resources to fully investigate innocence and mitigating circumstances, including the use of whatever experts are needed.
4. Defense counsel in capital cases are provided all evidence available to the prosecutor that could demonstrate either innocence or mitigating circumstances.
5. The procedures established for use in capital cases are designed to facilitate a demonstration of innocence and mitigation, and a thorough search for the truth.
6. Defense counsel in capital cases are all among the more highly qualified members of the criminal defense bar, and they are all well trained in the defense of capital cases.
7. Appeal and post-conviction review rights are generous, to ensure that any mistake at trial can be remedied before it is too late, and to make absolutely certain that no innocent person is wrongfully convicted, sentenced to death, and executed in Virginia.

Imagine my surprise when I recently attended, on behalf of The Virginia Bar Association, a national conference on the defense of death penalty cases and learned that Virginia’s system for adjudicating capital cases is widely recognized as one of the most deficient in the country because of its extraordinarily harsh procedural limitations.

Imagine my further surprise when, after reading a number of studies of Virginia’s capital defense system and talking to a broad array of lawyers who are knowledgeable about the system, I determined that each and every one of my personal assumptions about the system was incorrect.
Instead, based on the studies I have read and the expert input I have received, the following appear to be much closer to the mark.

1. There are often unreasonable limitations placed on defense counsel’s access to needed experts and investigators in capital cases in Virginia.
2. There is shockingly limited discovery in capital cases in Virginia.
3. Regrettably, there seem to have been instances of withholding of exculpatory evidence and other prosecutorial misconduct by certain prosecutors in capital cases in Virginia.
4. While excellent training opportunities are available for capital defense counsel, and while many capital defense counsel are highly qualified, well-trained, hard-working, and diligent, the capital defense system in Virginia still allows some lawyers who do not meet these criteria to serve as capital defense counsel, sometimes resulting in serious and highly prejudicial defense counsel errors.
5. There are excessive limitations on appeal and post-conviction review in capital cases in Virginia which lead to the defendant being severely punished procedurally because of the mistakes of his attorney.

Based on what I have learned, I think it is time for all Virginians to recognize that many of our assumptions, and the resulting conclusions, about our system for adjudicating capital cases in Virginia are incorrect, and that our trust in this system, at least in its current state, is not fully warranted.

As one recent study, Broken Justice: The Death Penalty in Virginia, put it:

Public support for capital punishment is based on the belief that the punishment is rationally and fairly applied, and is reserved for the worst of the worst offenders. Yet there is much disturbing evidence that Virginians cannot rely on the current death penalty system to produce results that are either fair or accurate. Virginians cannot be assured that the people on death row are actually guilty, and if they are guilty, whether they should have been sentenced to death.

Another study, Unequal, Unfair, and Irreversible: The Death Penalty in Virginia, observed:
Capital punishment invites controversy. Like many other compelling issues of our day, it is complex, having moral, political, legal and social dimensions. But unlike almost all other issues, there is a profound and solemn finality to capital punishment that demands absolute fairness and precision in carrying it out — whether or not one believes it should exist at all.
* * * *
This report casts a dark shadow over Virginia, a shadow that will not be dispelled so long as individuals are charged, tried, and executed under the existing system for administering the death penalty here. It is time to do something about that.

The Virginia Bar Association’s position on this issue is set forth in the following resolution:

The Virginia Bar Association agrees with the conclusion of the studies that have determined that Virginia’s system for adjudicating capital cases contains fundamental deficiencies and is deeply flawed, and believes that this system requires extraordinary remedial efforts on the part of the Governor, Lieutenant Governor, Attorney General, General Assembly, and Judicial Council of Virginia.

I am concerned that, because of the erection of onerous procedural hurdles and limitations, Virginia’s system for adjudicating capital cases has become a highly sophisticated obstacle course where we focus far too much on the agility of defense counsel, and far too little on the guilt or innocence of the defendant and whether he deserves the death penalty. We load up defense counsel with all manner of excess procedural baggage, and then expect counsel to negotiate every obstacle along this course without a hitch. And if defense counsel fails to do so completely and perfectly, we hold the defendant fully accountable, and in some cases force him to pay with is life.
Borrowing from what I said in my earlier President’s Page on the indigent defense system in Virginia (August 2004 issue), and rephrasing it to reflect my thoughts on the capital defense system:

In my view, the current system for adjudicating capital cases in Virginia functions as a serious form of government tyranny. I believe Kafka would have found fertile ground for his pen had he had the opportunity to observe this system. In it, we line up the government’s powers and resources against the poorest of our society. We apply these powers and resources to charge, prosecute, and imprison innocent people, while systematically depriving prosecutors of the resources to properly satisfy themselves that these people actually committed the crime, and depriving those charged of the type of legal representation and other tools and resources necessary to adequately demonstrate their innocence.

If our policy is going to be that we are tough on those who commit crimes, that is fine, but let’s make sure the people we are dealing with actually committed the crime before we start being tough on them. I believe that we should not apply the powers and resources of the government to prosecute a capital defendant and deprive him of his liberty (and possibly his life) unless and until we are prepared to provide to prosecutors the resources needed to adequately investigate whether the defendant committed the crime, and to the defendant the legal representation, resources, and processes necessary to ensure that he has a fair opportunity to demonstrate that he is innocent or that the death penalty is not warranted. That does not happen in Virginia’s system for adjudicating capital cases today.

The General Assembly earlier this year took a very positive step by eliminating, for certain types of previously unknown or unavailable evidence of innocence, the “21-day rule” precluding the consideration of evidence of innocence unless it was raised to the court’s attention within 21 days of the entry of the final order of conviction. While this is a very welcome development, and while the General Assembly should be applauded for this step, other procedural restrictions need to be relaxed, and other deficiencies need to be addressed, in order to achieve fairness and justice in this system. I want to mention several of the deficiencies that are most troubling to me:

Limitation on Defense Counsel’s Access to Needed Experts and Investigators
In Virginia a capital defendant is statutorily entitled to only one type of expert, a mitigation mental health expert. But even with respect to this type of expert no funds are authorized to pay for the expert, and the defendant does not have the right to select the expert. Rather, the defendant must request the appointment by motion, and the motion may not be ex parte. The court has the power to select the expert, and the court must appoint the expert.

With respect to all other types of experts and/or investigators, the defense can obtain these only upon motion to the court, but there is no statutory obligation for the court to grant the motion. The motion cannot be made ex parte, and the defendant must make a very substantial showing of need.
These types of restrictions can substantially interfere with the ability of defense counsel to provide an adequate defense. If defense counsel is not permitted to use the experts or investigators counsel needs, the most highly qualified and highly trained counsel can be hamstrung into delivering a defense that is ineffective. The fact that the motion to appoint an expert or investigator must be made in open court in the presence of the prosecutor is also problematic. Defense counsel must disclose to the court defense counsel’s defense strategy in order to justify the need for an expert or an investigator, but this necessitates disclosing to the prosecutor the defense’s strategy, which the prosecutor would otherwise not be entitled to know, and should not be entitled to know.

Limited Discovery
The lack of discovery permitted in capital cases in Virginia raises serious questions as to the fairness, evenhandedness, and justice afforded by this system. The rules do not even require prosecutors to disclose the identities of their witnesses prior to trial, much less permit the defense to depose them. Typical discovery techniques aimed at clarifying and testing the evidence prior to trial, such as depositions, interrogatories, and requests for admission, are not permitted. This means that the only adversarial testing of trial evidence and testimony is done when the evidence is first presented at trial, and subject to the constraints of the rules governing cross examination. These procedural limitations permit “trial by ambush,” and they in no way contribute to a genuine search for the truth. Virginia should change these overly restrictive discovery rules.

Withholding of Exculpatory Evidence and Other Prosecutorial Misconduct
While, certainly, most prosecutors strictly adhere to applicable requirements and genuinely seek the truth in capital cases, in certain instances some prosecutors in the Commonwealth seem to have intentionally withheld exculpatory evidence in the course of a capital case, as well as engaged in other types of prosecutorial misconduct in order to “win.” Such conduct is inexcusable in any type of criminal case, but in capital cases it is absolutely unconscionable.

The notion of a prosecutor engaging in these types of conduct in order to gain another “notch on the belt” represents an inexcusable failure to understand the appropriate role of a government prosecutor in the administration of justice. When it becomes apparent to a court that this type of prosecutorial misconduct has occurred, the court should provide a stiff sanction to the prosecutor and report the prosecutor to the Virginia State Bar. Our courts need to do far more than they are doing now on this front. In egregious cases, such prosecutors should be dismissed, and their license to practice law revoked. We do not need lawyers of this type in our profession, especially in positions where they are able to exercise the extraordinary powers of the government.

Unqualified Capital Defense Counsel
The defense of a capital case is a highly demanding and highly specialized assignment. Lawyers who are qualified to handle other types of criminal defense work are not necessarily qualified to handle the defense of a capital case. While a substantial number of defense attorneys handling capital cases in the Commonwealth are highly qualified, well-trained, hard-working, and diligent, our capital defense system in Virginia still allows some lawyers who are not appropriately qualified to handle capital cases. This must stop.

The recently appointed Indigent Defense Commission should make this one of its highest priorities. More stringent minimum qualification standards should be established for capital defense cases, and no lawyer not meeting those standards should be permitted to serve as defense counsel in a capital case. Capital defense counsel who violate ethical standards in the course of a capital defense representation should be reported by the court to both the Indigent Defense Commission and the Virginia State Bar for appropriate action.

Excessive Limitations on Appeal and Post-Conviction Review
Virginia is notorious for its excessive limitations on appeal and post-conviction review in criminal cases. It is widely recognized that on a routine basis criminal defendants (including capital defendants) are losing their right to direct appeal of their convictions because of attorney error and excessively harsh rules of default in Virginia. Other states are more flexible in allowing the correction of procedural errors so as to avoid the loss of appeal rights based on such errors. Virginia’s approach sacrifices justice, fairness, and the search for truth on the altar of administrative convenience and economy. In my view, the Virginia approach is tyrannical, and it should be changed.

* * * *
Each of these procedural restrictions and deficiencies diminish the integrity and fairness of Virginia’s system for adjudicating capital cases. Collectively, they produce a dysfunctional system which provides no assurance that those on death row are either guilty or deserving of the death penalty.

Based on the facts I have reviewed, I believe that the system for adjudicating capital cases in Virginia is unfair, unjust, and tyrannical, and that it is in desperate need of reform. I urge all Virginia lawyers to review the facts pertaining to this system and to let your fellow citizens and state government officials know what you think. If you agree that the current system is inadequate, I hope you will lend your support to the efforts of The Virginia Bar Association and the many other organizations that are urging significant reforms. Together, our voices can make a real difference.

Sic Semper Tyrannis! Return to Top

ABA News Brief: Jury Symposium at W&L

Should jurors be allowed to take notes during a trial? Should they be able to ask a witness questions the lawyers didn’t ask? Should a jury pool be drawn just from the voting roles, or should jurisdictions be more aggressive in reaching out to the community? Should jurors have to “memorize” jury instructions, or would it be better to give instructions to them in writing?
American Bar Association President Robert J. Grey Jr. of Richmond convened a national symposium at Washington and Lee University School of Law on October 15, at which lawyers, judges, academics, jury experts, court administrators, bar leaders and jurors discussed these and many other issues about how the American jury system works and should work. On the docket were proposed revisions to ABA jury standards covering everything from how jurors are selected and treated to what steps courts and lawyers should take to ensure that jurors understand testimony and instructions.

The draft revisions are part of a project undertaken by the American Jury Project, a group appointed by Grey whose mission is to consolidate three sets of standards adopted at the behest of different ABA entities over the years, and to update them to make jury service a better experience for those who are called to serve. The proposed revisions can be found at www.abanet.org/juryprojectstandards/draft.html.

“The ABA spends much of its energy and resources on improving the justice system,” Grey said. “We’ve looked at prosecutors. We’ve looked at the independence of the judiciary. We’ve looked at public defenders and indigent defense funding. We’ve looked at juvenile justice. We’ve looked at and worked to improve virtually every aspect of the system — except juries. No one focuses on jurors.” Return to Top

Legal Focus/Civil Litigation:
Factors Involved in Granting and Denying Preliminary Injunctions in Virginia State Courts
Bradfute W. Davenport

In Virginia state courts, the law concerning the award of temporary injunctions is muddy. The problem arises from the lack of a clear statutory or judicial pronouncement on the standards to be applied. Legislatively, the award of temporary injunctions is governed by Virginia Code § 8.01-628, which provides with simple elegance that a temporary injunction may only be awarded where the court is “satisfied of the plaintiff’s equity.”1 This sparse language offers circuit courts little guidance in determining the merits of plaintiffs’ requests for injunctive relief. Judicially, there is little precedent from the Supreme Court of Virginia to guide the circuit courts. Because orders granting or refusing temporary injunctions are typically not appealable, the Supreme Court has yet to clearly articulate the standards to be applied in addressing requests for injunctive relief.2 Virginia circuit courts have therefore been left largely to their own devices and have applied conflicting tests to requests for relief. The result has been an uneven analysis of requests for temporary injunctions, based on circuit courts’ use of principles applicable to permanent injunctions in state courts or temporary injunctions in federal courts.

There are two principal areas of confusion. First, circuit courts often apply the test for injunctive relief laid down by the Fourth Circuit in Blackwelder Furniture Co. v. Selig Mfg., Inc.3 Yet, the Supreme Court has never stated whether this is the test to be applied for a court to be “satisfied of the plaintiff’s equity.” Additionally confusing is the lack of consistency in the standards applied to the Blackwelder factors, especially the “likelihood of success on the merits” factor, and the relatively spare treatment of the “public interest” factor in the case law.

The second primary area of confusion concerns whether requirements in addition to the Blackwelder test exist for the award of relief. Much of the lack of clarity arises from circuit courts’ broad application of permanent injunction case law to plaintiffs’ requests for temporary injunctive relief. Under this analysis, circuit courts have required that plaintiffs demonstrate as prerequisites to relief both the potential for irreparable harm should the injunction not issue, and a lack of adequate remedy at law, but the distinction between these two requirements is unclear. Nor are circuit courts clear that a finding of potential irreparable harm is distinct from the balancing of harms required by the Blackwelder test. Also, some circuit courts have created an additional requirement of imminent, and not speculative or potential, harm that appears to conflict with case law holding some speculative harms to be necessarily irreparable.

The Blackwelder Test (and its Misstatements)
Virginia circuit courts have often looked to the Fourth Circuit for guidance on the test to be applied in preliminary injunctive cases. The courts have relied primarily on the Fourth Circuit’s four-factor “balance-of-hardship” test contained in Blackwelder.4 Much of the Virginia courts’ reliance on Blackwelder may be explained by the Fourth Circuit’s statement in Capital Tool and Mfg. v. Maschinefabrik Herkules that “there is no great difference between federal and Virginia standards for preliminary injunctions. Both draw on the same equitable principles.”5 The Supreme Court of Virginia, however, has never said that. Nor has it ever said that the Fourth Circuit was right.6 Nevertheless, the Blackwelder test has remained the predominant test for the award of temporary injunctions in Virginia.

In Blackwelder, the Fourth Circuit held that courts should consider (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest.7 In analyzing a plaintiff’s request for injunctive relief, the court ruled that the “first step” is to balance the likelihood of irreparable harm to the plaintiff with the likelihood of harm to the defendant.8 The court explained that “if a decided imbalance of hardship should appear in plaintiff’s favor,” then a lesser demonstration of likelihood of success would be required.9 In such a case, the plaintiff need only “raise [ ] questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.”10 “As the probability of irreparable injury diminishes,” however, the likelihood of success assumes greater significance in a court’s analysis.11 The Blackwelder court also noted that no “minimum of probable injury” to the plaintiff is required.12 Instead, the “relative quantum and quality of plaintiff’s likely harm” is to be balanced against the costs to the defendant should the injunction be granted.13

While many Virginia circuit courts purport to adhere to the Blackwelder test, some courts nevertheless apply their own unique standards in determining whether to grant relief. For example, the circuit court in Smith v. Loudoun County Public Schools considered “(1) the likelihood of prevailing on the merits, (2) the likelihood of irreparable harm should the injunction not be granted, (3) the balance of hardship between the parties, and (4) the preservation of the status quo.”14 Under Blackwelder, however, the “balance of hardship” refers to the four-factor test as a whole.15 Additionally, the Fourth Circuit, in Rum Creek Coal Sales, held that “‘preservation of the status quo’…does not symbolize an additional separate test.”16 Nevertheless, other Virginia circuit courts have also held that “preservation of the ‘status quo’” is an additional factor to be considered.17 The court in Smith is not alone in adopting unique standards for the award of temporary injunctive relief, contrary to the holding in Blackwelder.18

Plaintiff’s Likelihood of Success on the Merits
Another confusing aspect of the award of temporary injunctions in Virginia arises from the lack of uniformity in the burdens of proof and priorities applied to the various factors of the Blackwelder test. In its Blackwelder decision, the Fourth Circuit held that plaintiffs would not be required to make a “strong showing of success as a prerequisite to relief.”19 Instead, courts should weigh the relative harms to parties first, focusing on the likelihood of success only where the likelihood of harm is equal.20 Nevertheless, some Virginia circuit courts require a strong demonstration of likelihood of success by plaintiffs.21 On the other hand, some circuit courts have required that plaintiffs demonstrate only a “reasonable likelihood of succeeding on the merits,” permitting an even further reduced demonstration of irreparable harm where a “clear showing of a reasonable likelihood of success” has been made.22

Public Interest
Similarly, the “public interest” factor of the Blackwelder test has been inconsistently applied by Virginia courts. While it is often mentioned by circuit courts as a factor to be considered, it is rarely examined in detail. The Fourth Circuit, in Rum Creek Coal Sales, noted that this factor is generally the least important, stating that “[t]he public interest factor does not appear always to be considered at length in preliminary injunction analyses.”23 Some circuit courts have failed to even list the public interest among the factors to be considered.24 On the other hand, some circuit court cases address the public interest at length.25

Additional Requirements for Injunctive Relief in Virginia

Irreparable Harm/Lack of Adequate Remedy At Law
Additional confusion concerning the award of temporary injunctions in Virginia arises from circuit courts’ reliance on Virginia Supreme Court decisions concerning permanent injunctive relief, in addition to the test in Blackwelder. Because no Supreme Court decision exists addressing temporary injunctions, some circuit courts have created a compound test for temporary injunctive relief that is a mix of the Blackwelder factors with the requirements for permanent injunctive relief in Virginia. The resulting test provides for the additional requirement that a plaintiff “prove that he would suffer irreparable harm if the injunction were not granted and that he did not have an adequate remedy at law.”26 This prerequisite to injunctive relief is viewed by courts as being distinct from the “balancing of harms” under Blackwelder, and as involving distinct elements required to be demonstrated separately by plaintiffs seeking relief. For example, the Fairfax County Circuit Court in Cubic Toll Systems, Inc. v. Virginia Dept. of Transportation analyzed the issue whether an adequate remedy existed at law separately from the issue of irreparable damage.27 Similarly, the Fairfax County Circuit Court in Seniors Coalition, Inc. v. Senior Foundation, Inc. held that lack of adequate remedy at law is an additional and distinct, while related, requirement. The court stated that “to the Fourth Circuit’s list of factors must be added the plaintiff’s lack of an adequate remedy at law, which is closely associated with irreparable harm.”28

Assuming that circuit courts are correct in their reliance on permanent injunction cases to add additional requirements to the Blackwelder test, confusion arises because irreparable harm and lack of adequate remedy at law have been treated as distinct requirements even though the line of demarcation is fuzzy. Instead, these “requirements” should be acknowledged as fundamentally the same, in order to avoid confusion. The Supreme Court’s ruling in Carbaugh approximates this approach, holding that “lack of proof of irreparable harm is generally fatal. A court of equity will not issue an injunction, an extraordinary remedy, if the petitioner has an adequate remedy at law for the redress of his injury.”29 This statement makes clear that “lack of proof of irreparable harm” generally results from the presence of an “adequate remedy at law.”30 Much of the confusion arose from the Supreme Court’s subsequent interpretation of the Carbaugh statement to mean that two distinct requirements exist.31 Nevertheless, the Fairfax County Circuit Court in Christian Defense Fund v. Winchell & Assoc., Inc., understood that this distinction is difficult to draw, holding that “[t]he principal inquiry regarding plaintiff’s ‘irreparable harm’ is whether an adequate remedy exists at law.”32 Nevertheless, many Virginia courts continue to adhere to the notion that these are separate requirements.33

A similar area in which circuit court analysis of requests for injunctive relief can be improved concerns the Supreme Court’s holding that a showing of irreparable harm is essential to an award of a permanent injunction and the circuit courts’ extrapolation of that principle to temporary injunctions.34 Despite this requirement, some circuit courts have analyzed plaintiffs’ requests for relief without making an express finding of potential irreparable harm.35 Assuming that circuit courts’ addition of permanent injunction-like requirements is correct in temporary injunction cases, many of these courts confuse the necessity of a separate finding of the potential for irreparable harm with the balancing of harms that is to take place under the Blackwelder test. Such a finding of potential irreparable harm should be made separately by courts before ruling on plaintiffs’ motions.36

No Speculative Harm?
Another area of uncertainty is whether plaintiffs seeking temporary injunctions must demonstrate potential imminent, non-speculative harm. Some circuit courts have cited this as an additional requirement for injunctive relief. For example, the Warren County Circuit Court in Am-Cor.com, Inc. v. Stevens held that “[t]he party seeking relief must show that the alleged harm is imminent, and not merely speculative or potential.”37 In denying the plaintiff’s motion, the court reasoned that “[g]iven the nascent nature of their respective businesses, it is highly speculative as to whether the two corporate parties will ever generate any substantial income.”38 Thus, the court denied injunctive relief because new businesses with necessarily speculative future income streams were involved.39 On the other hand, the presence of alleged speculative and otherwise incalculable damages has led other courts to find that irreparable harm clearly existed.40 While the “imminent harm” requirement is likely valid, it is better understood as denying injunctive relief for merely “hypothetical future” harms not yet warranting action by the court.41

Conclusion
The varying analysis of requests for preliminary injunctive relief taken by Virginia’s circuit courts deserves a more uniform approach. Whether this is an issue for the Supreme Court or the General Assembly is beyond the scope of this article, but fair application of the law for all parties requires that a clear statement of the standards for injunctive relief be clearly articulated.

About the Author: Bradfute Davenport is a partner at Troutman Sanders LLP and has practiced there and at its predecessor firm Mays & Valentine, L.L.P. since 1972. He has a B.A. from Yale University (1969) and a J.D. from the University of Virginia School of Law (1972) and practices regularly in state and federal courts. In addition to being a member of the VBA Civil Litigation Section, he is a member of the Council of the Construction & Public Contracts Law Section. The author acknowledges with gratitude the research and drafting assistance of Nathan A. Cook, a rising third year student at the University of Virginia School of Law and a 2004 summer associate at Troutman Sanders LLP.

NOTES
1. Id.
2. Review by “a justice of the Supreme Court” may be sought by petition pursuant to Virginia Code Section 8.01-626, but there are no reported decisions under the statute that address the factors involved in granting or denying preliminary injunctions.
3. Id., 550 F.2d 189 (4th Cir. 1977). See also Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991) (restating and consolidating the Blackwelder test).
4. 550 F.2d at 196. In doing so, the courts have noted the absence of a clear statement by the Supreme Court of Virginia of the test to be applied. See, e.g., Christian Defense Fund v. Winchell & Assoc., Inc., 47 Va. Cir. 148 (Fairfax County, 1998) (“The Virginia Supreme Court has not yet decided a case that delineates the standards to be applied in granting or denying a preliminary injunction.”); Professional Heating and Cooling, Inc. v. Donald G. Smith and Freedom Mechanical, Inc., 2004 Va. Cir. LEXIS 56 (City of Norfolk) (“I am not aware of any decisions of the Supreme Court of Virginia on the issue.”).
5. 837 F.2d 171 (4th Cir. 1988). See, e.g., Goldbecker v. Board of Sup’rs of Fairfax County, 38 Va. Cir. 584 (Spotsylvania County, 1994); Fettig v. Touchstone Development, 54 Va. Cir. 357 (2001).
6. Nevertheless, the Virginia Civil Benchbook, developed by the Judicial Conference of Virginia, does cite Blackwelder as providing the test for the award of preliminary injunctions. 1-7 Virginia Civil Benchbook § VI(C)(2) (2003-04 ed.).
7. Blackwelder, 550 F.2d at 194-197. See, also, Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991) (summarizing the Blackwelder test).
8. Id. at 195.
9. Id.
10. Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 743 (2nd Cir. 1953)). The court noted that “the importance of the probability of success [would] increase[] as the probability of irreparable injury diminishes.” Id. at 195. However, where the likelihood of irreparable harm was simply “possible,” the likelihood of success could be “decisive.” Id. The court further explained that even in such cases, the likelihood of success remained “merely on strong factor to be weighed alongside both the likely harm to the defendant and the public interest.” Id.
11. Id. (“The importance of probability of success increases as the probability of irreparable injury diminishes, and where the latter may be characterized as simply “possible,” the former can be decisive.”). The court further explained that the likelihood of success would “assume real significance” where the harm to the parties “stood at equipoise.” Id. at 196, n.3.
12. Id.
13. Id.
14. 1999 WL 378762.
15. Blackwelder, 550 F.2d at 196 (“Thus in this circuit the trial court standard for interlocutory injunctive relief is the balance-of-hardship test.”).
16. Rum Creek Coal Sales, 926 F.2d at 360. The Fourth Circuit’s opinion in Blackwelder supports this statement, holding that “preserving the status quo ante litem” merely explains the relatively light showing required for the award of a temporary injunction. 550 F.2d at 197.
17. See, e.g. Smith, 1999 WL 378762 (citing Blackwelder as providing that the fourth factor is “preservation of the status quo”); Brown v. Spivak, 38 Va. Cir. 517 (Fairfax County, 1992) (holding “maintenance of the status quo” as factor to be considered). See, also, 1-7 Virginia Civil Benchbook § VI (2003-04 ed.).
18. See, e.g., Wheeler v. Fredericksburg Orthopaedic Associates, Inc., and Mid-Atlantic Health Allicance, Inc., 44 Va. Cir. 399, 401 (City of Fredericksburg, 1998) (holding that test for temporary injunction includes whether defendant and public will suffer irreparable harm). See also Bryson on Virginia Civil Procedure, § VII-E (2003) (“In deciding whether to grant a preliminary injunction, the court will consider the likelihood of the plaintiff’s ultimate success on the merits, irreparable injury to the plaintiff should it not be granted or to the defendant should it be granted, and the existence of an adequate remedy at common law.”).
19. Blackwelder, 550 F.2d at 196.
20. Id.
21. See, e.g., McNeal v. Richmond Memorial Hosp., 36 Va. Cir. 531 (City of Richmond, 1995) (“There is also a requirement that the plaintiff prove there is a substantial likelihood of success on the merits.”).
22. Goldbecker, 37 Va. Cir. 584 (Spotsylvania County, 1994) (citing Vardell v. Vardell, 225 Va. 351 (1983)). Cf. McNeal v. Richmond Memorial Hosp., 36 Va. Cir. 531, 532 (City of Richmond, 1995) (requiring demonstration of “substantial likelihood of success on the merits” as independent prerequisite to relief, discussed infra).
23. Id. at 366.
24. See, e.g., Professional Heating and Cooling, 2004 Va. Cir. LEXIS 56 (City of Norfolk) (failing to mention public interest); Conners v. Excalibur Cable Communications, Ltd., 2000 Va. Cir. LEXIS 641 (Fairfax County) (failing to mention public interest, as well as making separate findings concerning lack of adequate remedy at law and irreparable injury).
25. See, e.g., HotJobs.com, 53 Va. Cir. 36 (Fairfax County, 2000).
26. Wright, 232 Va. at 223 (citing Carbaugh, 225 Va. at 314 (emphasis added)). An additional area of confusion arises from the Supreme Court of Virginia’s statement, in Wright, that the plaintiff must “prove” irreparable harm. Assuming that the Blackwelder test is the correct test to be applied, such a requirement is seemingly in conflict with the Fourth Circuit’s holding that the irreparable harm requirement may be satisfied even where such harm is merely “possible.” See, e.g., Federal Leasing, Inc. v. Underwriters at Lloyd’s, 650 F.2d 495, 499 (4th Cir. 1981) (noting that in such cases the probability of success “may become decisive” (citing Blackwelder, 550 F.2d at 195)).
27. 37 Va. Cir. 522, 522-523 (Fairfax County, 1993) (finding that denial of participation in bid process constituted irreparable harm, and inability to calculate lost profits constituted inadequate remedy at law).
28. Id., 39 Va. Cir. 344 (Fairfax County, 1996) (citing Wright, 232 Va. 218 (1986)). Cf. Plate v. Kincannon Place Condo. Unit Owners’ Ass’n Bd. of Dirs., 30 Va. Cir. 323, 325 (Fairfax County, 1993) (holding that “whether adequate remedy at law exists” is an additional factor to be weighed against Blackwelder factors, but is not an independent prerequisite).
29. Carbaugh, 225 Va. at 314.
30. Id.
31. See endnote 18, supra.
32. 47 Va. Cir. 148 (Fairfax County, 1998). See also Am-Cor, Inc. v. Stevens, 56 Va. Cir. 245 (Warren County, 2001) (“The concept of irreparable harm is premised on the lack of an adequate remedy at law.” (citing Carbaugh, 225 Va. at 314)). See also Health & Racquet Club, Inc. v. Fitness Today of Charlottesville, 29 Va. Cir. 61, 70 (Albemarle County, 1992) (holding that plaintiff must “demonstrate that the injury which it would suffer if the injunction were not granted would be grievous and material and would not be adequately reparable in money damages” (citing Callaway v. Webster, 98 Va. 790, 792 (1900) (“By the term, ‘irreparable injury’ it is not meant that there must be no physical possibility of repairing the injury. All that is meant is that the injury would be a grievous one, or at least a material one, and not adequately reparable in damages.”))).
33. See, e.g., McNeal v. Richmond Memorial Hosp., 36 Va. Cir. 531, 532 (City of Richmond, 1995).
34. See, e.g., Bradlees Tidewater, Inc. v. Walnut Hill Inv., Inc., 239 Va. 468, 471-472 (1990) (“[A]s a general rule, proof of irreparable damage is absolutely essential to the award of injunctive relief.” (citing Carbaugh, 225 Va. at 314)). The Fourth Circuit, in Rum Creek Coal Sales, similarly held that a plaintiff “must show that it will sustain irreparable harm without a preliminary injunction. The ‘balance of hardship’ test does not negate the requirement that [a plaintiff] show some irreparable harm.” Id., 926 F.2d at 360.
35. See, e.g., Ross v. Laurel Glen Homeowners Ass’n, Inc., 43 Va. Cir. 205 (Fairfax County, 1997) (granting temporary injunction after analysis only of merits of plaintiff’s claim).
36. See also McNeal v. Richmond Memorial Hosp., 36 Va. Cir. 531, 532 (City of Richmond, 1995) (holding that plaintiff must also demonstrate “substantial likelihood of success on the merits” as independent prerequisite to relief, in addition to those noted supra).
37. 56 Va. Cir. 245 (Warren County, 2001) (citing Ridgwell v. Brasco Bay Corp., 254 Va. 458, 462-463 (1997)).
38. Id.
39. See also Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Corp., 28 Va. Cir. 220, 222 (City of Charlottesville, 1992) (“Even if [calculation of plaintiff’s damages is] not precisely determinable, complainant’s economic loss, unless it threatens the existence of the business itself, generally is not considered irreparable.”).
40. See, e.g., HotJobs.com, Ltd. v. Digital City, Inc., 53 Va. Cir. 36, 45 (Fairfax County, 2000) (“There is substantial support in Virginia for the proposition that irreparable harm is sustained, and injunctive relief appropriate, when it would be very difficult or impossible to quantify monetary damages with precision.” (citing Black & White Cars, 247 Va. 426 (1994)). See also Blackwelder, 550 F.2d at 197 (holding that irreparability includes losses that cannot be calculated with precision, like loss of goodwill).
41. See, e.g., Wilson v. City of Salem, 50 Va. Cir. 429, 434 (City of Salem, 1999) (denying temporary injunction for unlawful act where such act not imminent). Return to Top

Legal Focus/Civil Litigation:
Massie v. Firmstone: Limiting Parties from Rising Above Their Own Evidence
David N. Anthony

I. INTRODUCTION
General Overview of the Massie Doctrine
Lawyers often face the scenario wherein a party provides testimony that harms his or her case and then attempts to introduce contradictory evidence or asks the finder of fact to disregard his or her testimony. In Virginia, the Massie doctrine governs these situations and its impact on the party’s case. Named after the Supreme Court of Virginia’s decision in Massie v. Firmstone,1 the Massie doctrine stands for the basic proposition that a party cannot rise above his or her own evidence.2

The Virginia Model Jury Instructions have summarized the Massie doctrine as follows:

When one of the parties testifies unequivocally to facts within his own knowledge, those statements of fact and the necessary inferences from them are binding upon him. He cannot rely on other evidence in conflict with his own testimony to strengthen his case.

However, you must consider his testimony as a whole, and you must consider a statement made in one part of his testimony in the light of any explanation or clarification made elsewhere in his testimony. 3

The Rationale of the Massie Doctrine
The rationale of the Massie doctrine is a sound one: a party will not be permitted to profit at the expense of the other party by contradicting his own testimony concerning facts within his own personal knowledge, disowning such statements and relying upon contrary statements or testimony made by others.4 Nonetheless, the Supreme Court of Virginia has emphasized that “[t]he Massie doctrine is not to be read as a rule of thumb, categorical, absolute and universally applicable.” 5

The Practical Impact of the Massie Doctrine
Virginia jurisprudence makes clear that parties may face severe consequences should their testimony fall within the ambit of the Massie doctrine. These consequences have included striking a plaintiff’s case, ruling as a matter of law that a plaintiff cannot maintain his cause of action against the defendant and reversing a jury verdict in favor of the plaintiff. Since the analysis under Massie focuses on statements of fact, attorneys need to pay particular attention to the factual testimony given by the parties at trial to determine whether a party is attempting to make its case stronger than presented by its own testimony. Since this issue occurs frequently, Virginia lawyers should be knowledgeable about the meaning and scope of the Massie doctrine as well as its exceptions.
Part II of this article discusses the case of Massie v. Firmstone and its scope. Part III of this article details the common exceptions to the Massie doctrine.

II. Massie v. Firmstone:
A party cannot rise above his own evidence.
In Massie, the plaintiff real estate broker brought an action against a defendant landowner for commissions for securing a purchaser. The plaintiff’s own testimony showed that he was not requested to furnish a purchaser, but that he asked permission to do so; that his compensation depended upon a consummated sale to such purchaser; that the landowner was careful to reserve the right to sell the property to others if the landowner chose; and that no sale was in fact made to the proposed purchaser introduced by plaintiff.

The Supreme Court described the inherent problems involved when a party produces evidence through others that directly refutes his own testimony.

As a general rule when two or more witnesses introduced by a party litigant vary in their statements of fact, such party has the right to ask the court or jury to accept as true the statements most favorable to him. In such a situation he would be entitled to have the jury instructed upon his contention, or if there were a demurrer to the evidence, the facts would have to be regarded as established in accordance with the testimony most favorable to him. This is not true, however, as to the testimony which he gives himself. No litigant can successfully ask a court or jury to believe that he has not told the truth. His statements of fact and the necessary inferences therefrom are binding upon him. He cannot be heard to ask that his case be made stronger than he makes it, where, as here, it depends upon facts within his own knowledge and as to which he has testified.6

The case of Smith v. Virginia Electric & Power Co.7 provides a classic application of the Massie doctrine. In Smith, plaintiff sustained electrocution injuries when a metallic rod he was using to perform a land survey came into contact with an uninsulated electric wire. At trial, plaintiff testified that he saw the electrical wire and that he discussed with other crew members the potential danger of the wire relative to the metal rods they were using on the job. The Court held that plaintiff failed to look when he should have looked, or, having looked, failed to see what was in his unobstructed view, and what was obvious to the other crew members.8 Citing Massie, the Supreme Court of Virginia determined that plaintiff’s testimony constituted an unequivocal statement of fact within his own knowledge that directly proved his contributory negligence; therefore, he could not recover against defendant.9 Numerous other cases have applied Massie and prevented parties from rising above their own evidence.10

III. Exceptions to the Massie Doctrine
While the Massie doctrine is well-established, practitioners should be aware that Virginia courts have found several exceptions to its application. In evaluating the applicability of the Massie doctrine, one important issue is whether the statements at issue are truly statements of fact or rather are mere estimates.

A. The Massie doctrine does not apply to mere estimates of fact.
1. The Massie doctrine does not apply to mere estimates of speed. In Yates v. Potts,11 the Court faced a scenario where the plaintiff estimated his speed at between 40 and 50 miles per hour. Since the speed limit was 45 miles per hour, the defendant sought to bind the plaintiff to her highest estimate of speed under Massie, which arguably established her negligence per se. The Supreme Court refused in holding that Massie did not apply to estimates of fact such as speed.12 The Court reasoned that the discrepancy in plaintiff’s testimony created a jury issue as to plaintiff’s exact speed.13 In other words, the Massie doctrine does not consider “mere estimates of speed” to be “statements of facts.”
2. The Massie doctrine does not apply to mere estimates of distance. Similarly, in Kelley v. Henley,14 the administratrix of an estate brought a wrongful death action against defendant Kelley due to an automobile accident. At trial, Kelley testified that the decedent’s automobile “just jumped right in front” of him when he was “about a car length” away.15 On appeal, plaintiff complained that Kelley’s testimony was contrary to the objective facts relating to the length of the skid marks from the scene. The Supreme Court of Virginia dismissed this contention by concluding that “a witness to an automobile accident is not held to such mathematical certainty in giving an estimate of distance, especially where he qualifies his estimate by the use of the word ‘about.’”16 In summary, “mere estimates of distance” are not unequivocal “statements of fact” to trigger application of the Massie doctrine.

B. The Massie doctrine does not apply to mere statements of opinion.
As with estimates of fact, the Supreme Court has drawn a distinction with testimony that is opinion rather than factual in nature. The Court’s decision in Ravenwood Towers, Inc. v. Woodyard17 illustrates this distinction. In Ravenwood, the Court faced a plaintiff who was injured when she fell while entering a misaligned elevator. Plaintiff testified that she could see where she wanted to go and, had she been looking down as she entered the elevator, she could have seen that it was misaligned. Plaintiff’s eye doctor testified that plaintiff suffered from poor vision at the time of the accident and that he honestly did not know whether plaintiff had the ability to see differences in depth between objects on the date of the accident. The Supreme Court ruled that Massie did not apply in concluding that plaintiff simply testified what she thought she could have seen at the time of the accident, which was no more than an expression of an opinion.18 Various decisions have reinforced that Massie does not apply to mere statements of opinion.19

C. The Massie doctrine does not apply to matters outside the realm of the party’s knowledge.
Additionally, Virginia courts have analyzed whether the statement of fact is one actually within the party’s personal knowledge before applying the Massie doctrine. For instance, in Saunders v. Bulluck,20 plaintiff brought a lawsuit based upon personal injuries she sustained in an automobile accident. At trial, plaintiff testified that she had never driven an automobile before and that “we weren’t driving fast. He [the driver of her car] didn’t seem to be driving reckless in any way, as far as I’m concerned.”21 Based upon this testimony, the defendant argued that the plaintiff’s case failed as a matter of law. The Supreme Court explored the Massie doctrine before holding that “[t]he phrase ‘statement of fact’ is important. The rule does not necessarily apply to statement of opinion or of incomplete facts.”22 Subsequent decisions have emphasized that the Massie doctrine does not apply to statements made by a litigant regarding matters outsider his or her realm of knowledge.23

D. The Massie doctrine does not apply to statements made by persons other than a party.
Furthermore, trial courts must look carefully to the individual who provides the statement of fact to ensure that Massie is not applied to a statement made by a non-party. For instance, in Lucas v. HCMF Corp.,24 an administratrix brought a personal injury claim; however, the doctors for the decedent provided conflicting testimony as to whether the defendant nursing home had caused or contributed to the decedent’s death. The nursing home sought to apply Massie to plaintiff by binding her to the statements of one of the non-party doctors. Citing Massie, the Court held that “[w]hile a party’s testimony is binding upon him and he cannot ask the court to disregard his own testimony, the same is not true of the testimony of a party’s witness.”25 Under Massie, plaintiff could ask the finder of fact to resolve the doctor’s conflicting testimony in his favor.26 Numerous other decisions have found that Massie does not apply to statements made by persons other than a party.27

E. The Massie doctrine does not apply when the party’s statement is not sufficiently clear and unequivocal such that party’s case has no merit or that fair minds could not differ as to the effect of the testimony.
Virginia courts evaluating Massie also have grappled with whether the party’s statement of facts is clear enough to constitute a judicial admission. For example, in TransiLift Equipment, Ltd. v. Cunningham,28 plaintiff offered different testimony at trial than he had in his pretrial discovery responses as to the actions of the defendant wheelchair platform driver. When asked to explain the discrepancy, plaintiff stated that he had reviewed a videotape of the accident that was shown during the trial which caused him to realize he had been mistaken about the place where the driver had operated the platform controls. The Court noted that Massie was intended to compel the exercise of good faith by the litigants and not to penalize them for honest mistakes of memory.29 Under the circumstances, the Supreme Court held that plaintiff’s equivocal testimony did not establish that his claim was meritless as a matter of law and rejected the application of Massie.30 Other decisions have emphasized that a party’s statement of facts, when considered as a whole, must “conclusively absolve” the defendant from liability.31

F. The Massie doctrine does not apply when the party’s statement is an unfair distortion of the party’s true testimony taken as a whole.
Finally, the Supreme Court of Virginia has found another exception to the Massie doctrine by clarifying that the party’s testimony must be considered as a whole and not in isolation. For example, in Virginia Electric & Power Co. v. Mabin,32 plaintiff sued an electrical company for injuries sustained when he came into contact with an electric wire. Upon examination at trial, plaintiff offered contradictory testimony concerning the condition of the wire and the manner in which he came into contact with it. Under one version of the testimony, plaintiff arguably was contributorily negligent. Given this apparently conflicting testimony, the Supreme Court observed that certain statements of the plaintiff appear to show his contributory negligence; however, such statements should be considered in light of the adversarial process.33 In other words, an effective cross-examination may cause a plaintiff to make a damaging statement, but he may offer an explanation or clarification on redirect examination.34 The Court ruled that the jury could decide whether to accept the party’s testimony, the party’s explanation or clarification and its effect given all the evidence.35 Other decisions also have found that Massie will not apply to statements by a party taken alone that unfairly distort the party’s overall testimony.36

IV. Conclusion
“No rule is more firmly established in Virginia than that of Massie v. Firmstone.”37 The Supreme Court of Virginia seems insistent on a strict interpretation of the Massie doctrine applied to statements of fact. Any variation from the specific requirements of Massie likely will cause a court to apply an exception. At times, the Supreme Court has shown some willingness to read past a party’s apparently unequivocal statements to rule that the statements are not sufficient to trigger application of Massie v. Firmstone. In light of its potential consequences, attorneys in Virginia should be extremely familiar with the Massie doctrine and its exceptions.

About the Author: David N. Anthony is a partner with the litigation section in the Richmond office of Kaufman & Canoles, P.C. His civil litigation practice focuses on commercial disputes, construction law, local government law, and labor and employment. He is a graduate of the Washington and Lee University School of Law, and he clerked for The Honorable William T. Prince, Magistrate Judge for the United States District Court for the Eastern District of Virginia. He is a member of the VBA Civil Litigation Section Council and chaired the Young Lawyers Division in 2001. Mr. Anthony would like to acknowledge J.C. Chenault V for his significant contributions to this article. Mr. Chenault is a third-year law student at the T. C. Williams School of Law at the University of Richmond.

NOTES
1. 134 Va. 450, 114 S.E. 652 (1922).
2. See Galloway Corp. v. S.B. Ballard Constr. Co., 250 Va. 493, 506, 464 S.E.2d 349, 356 (1995) (finding that the evidence, including the negotiations and prior dealings, of certain subcontractors with the general contractor on a construction project showed an intent to provide the general contractor with an absolute “pay when paid” defense to not have to pay its subcontractors until the owner paid the general contractor); Crawford v. Quarterman, 210 Va. 598, 603, 172 S.E.2d 739, 742 (1970) (stating that a party’s case can be no stronger nor rise any higher than his own testimony permits”); Williams v. Williams, No. HJ-1427-4, 1999 Va. Cir. LEXIS 550, at *10 (Richmond Feb. 18, 1999) (finding that “the holding of Massie v. Firmstone forbids the court from finding . . . a factual finding more favorable to [the plaintiff] than the one he testified to . . . “).
3. Virginia Model Jury Instructions, Civil, Vol. I, Instruction No. 2.060, at I-27 to I-28 (Repl. ed. 1998 & 2003 Supp.) (“Virginia Model Jury Instructions”).
4. See Henderson v. Henderson, 255 Va. 122, 127, 495 S.E.2d 496, 499 (1998); Baines v. Parker, 217 Va. 100, 105, 225 S.E.2d 403, 407 (1976); Charles E. Friend, The Law of Evidence in Virginia, § 18-51, at p. 893 (6th ed. 2003).
5. Baines, 217 Va. at 104, 225 S.E.2d at 407. The Virginia Model Jury Instructions state that Massie would seem to demand a jury instruction; however, courts deal with Massie typically on a motion to strike the evidence. See Virginia Model Jury Instructions, Instruction No. 2.060, at I-28. Thus, the Massie doctrine generally is not the subject of a jury instruction. Id.
6. Massie, 134 Va. at 462, 114 S.E. at 656 (emphasis added).
7. 204 Va. 128, 129 S.E.2d 655 (1963).
8. Id. at 134, 129 S.E.2d at 660.
9. Id.
10. See Am. Communications Network v. Williams, 264 Va. 336, 342-43, 568 S.E.2d 683, 687 (2002) citing Massie in reversing jury verdict in defamation case, in part, since plaintiff admitted the truth of the factual statements relating to the opinions at issue); City of Va. Beach v. Carmichael Dev. Co., 259 Va. 493, 500, 527 S.E.2d 778, 782 (2000) (holding that plaintiff’s own evidence contradicted his claim that City officials denied him a hearing before the City Council); Patterson v. Patterson, 257 Va. 558, 563, 515 S.E.2d 113, 116 (1999) (ruling that plaintiff’s testimony established that his wife had control over a certificate of deposit with a bank despite his contention that she was merely a nominal holder of a marital asset); CSX Transp., Inc. v. Casale, 250 Va. 359, 364, 463 S.E.2d 445, 448 (1995) (holding that plaintiff “Casale cannot ask that he be allowed to make his case stronger by having this Court accept the favorable evidence concerning his alleged inability to work while disregarding his own testimony that he was working at the time of the second trial and would report for work in his new job the first of the following week”); McHenry v. Adams, 248 Va. 238, 244, 448 S.E.2d 390, 393 (1994) (applying Massie to plaintiff’s testimony which showed that his claim for damages was time-barred); TechDyn Sys. Corp. v. Whittaker Corp., 245 Va. 291, 298 n.1, 427 S.E.2d 334, 339 n.1 (1993) (rejecting application of Massie to testimony of TechDyn officials that its delay was attributable to reasons other than Whittaker); Travis v. Bulifant; 226 Va. 1, 6, 306 S.E.2d 865, 867 (1983) (ruling that plaintiff was bound by his testimony that the payment terms for three written contracts had been changed from fixed price to cost plus a profit); Holland v. Holland, 217 Va. 874, 876, 234 S.E.2d 65, 67 (1977) (applying Massie in holding that plaintiff’s statements that the defendant’s car “just cut right in front of” and “swerved in front” of her husband’s car were “recitals of fact within her knowledge which are certain and unambiguous” and which meant that plaintiff could not rely on defendant’s conflicting evidence); Anderson v. East Coast Fish & Scallop Co., 10 Va. App. 215, 217, 391 S.E.2d 347, 348 (1990) (denying plaintiff’s worker’s compensation claim based upon plaintiff’s testimony that he had shot himself accidentally with his own shotgun despite his earlier claims that he had been assaulted).
11. 210 Va. 636, 172 S.E.2d 784 (1970).
12. Id. at 639, 172 S.E.2d at 786-87.
13. Id.
14. 208 Va. 264, 156 S.E.2d 618 (1967).
15. Id. at 269, 156 S.E.2d at 622.
16. Id. at 269-70, 156 S.E.2d at 622. Courts have interpreted Kelley to signify that Massie does not apply to a party’s mere estimate of distance, although the Kelley Court did not discuss or mention Massie in its opinion.
17. 244 Va. 51, 419 S.E.2d 627 (1992).
18. Id. at 55-56, 419 S.E.2d at 629.
19. See Beeton v. Beeton, 263 Va. 329, 336-37, 559 S.E.2d 663, 667 (finding that a son’s statement as to his mother’s intent in making him the beneficiary of a Treasury Bill was a statement of opinion concerning the mother’s inner motivation and not a statement of fact within the son’s personal knowledge), cert. denied, 537 U.S. 1020 (2002); Braden v. Isabell K. Horsley Real Estate, Ltd., 245 Va. 11, 17, 425 S.E.2d 481, 484 (1993) (ruling that plaintiff’s testimony where “she stated that she ‘assumed’ the list had been approved but said that she had no ‘knowledge’ that it was ever approved” were mere expressions of opinion or statements of fact outside her knowledge and, thus, was the “classic example of a case in which the Massie rule should not be applied”) (citing TransiLift Equip., Ltd.. v. Cunningham, 234 Va. 84, 94-95, 360 S.E.2d 183, 187 (1987)); Deskins v. T. H. Nichols Line Contractor, Inc., 234 Va. 185, 188, 361 S.E.2d 125, 126 (1987) (holding that a plaintiff’s testimony as to the point of impact of an accident as being in the middle of the road “amounted to no more than a mere estimate or opinion” and, thus, Massie was inapplicable); Hogan v. Carter, 226 Va. 361, 370, 310 S.E.2d 666, 671 (1983) (ruling that plaintiff’s equivocal testimony about the defendant’s behavior did not “conclusively absolve” the defendant from liability and was essentially opinion testimony); Ford Motor Co. v. Bartholomew, 224 Va. 421, 431, 297 S.E.2d 675, 678 (1982) (noting that plaintiff thought the car was in park but these statements were mere statements of opinion as plaintiff’s “impression proved to be a misimpression, caused by a lack of knowledge of physical facts essential to an informed opinion” as she did not know what the experts knew); Pratt v. Queen, 11 Va. Cir. 476, 477-78 (City of Norfolk 1979) (ruling that plaintiff’s statements about the conduct of the defendant driver were mere opinions without probative value especially in light of plaintiff’s relative and indefinite testimony). But see Baines, 217 Va. at 106, 225 S.E.2d at 407 (ruling that trial court had committed reversible error by not granting defendant’s motion to strike plaintiff’s evidence when plaintiff unequivocally testified that the defendant had exercised due care before the automobile accident which constituted statements of facts — and not statements of opinion — observed from her vantage point on the front seat near the driver” and absolved defendant of all negligence).
20. 208 Va. 551, 159 S.E.2d 820 (1968).
21. Id. at 554, 159 S.E.2d at 823.
22. Id. at 553, 159 S.E.2d at 823.
23. See Charlton v. Craddock-Terry Shoe Corp., 235 Va. 485, 489, 369 S.E.2d 175, 177 (1988) (ruling that plaintiff’s testimony as to when she thought her employer discharged her was “a matter necessarily outside the realm of her knowledge”); Holland, 217 Va. at 876, 234 S.E.2d at 67 (finding testimony that “Croson ‘just cut right in front of’ and ‘swerved in front of’ Holland are recitals of facts within [plaintiff’s] knowledge . . . .”); Baines, 217 Va. at 105-06, 225 S.E.2d at 407 (finding that defendant’s testimony that plaintiff was properly operating her vehicle was not a statement of opinion but a statement of fact “observed from her vantage point on the front seat near the driver.”).
24. 238 Va. 446, 384 S.E.2d 92 (1989).
25. Id. at 450, 238 S.E.2d at 94 (emphasis in original).
26. Id.
27. See Hoar v. Great E. Resort Mgmt., Inc., 256 Va. 374, 384, 506 S.E.2d 777, 784 (1998) (holding that Massie did not apply where the real party plaintiff did not testify); Williams v. Commonwealth, 234 Va. 168, 176, 360 S.E.2d 361, 366 (1987) (holding that “[n]o litigant is bound by contradicted testimony of a witness even though proffered by the litigant” as “[t]he jury must resolve any conflict between the two witnesses”); Bd. of Supervisors of Henrico County v. Martin, 3 Va. App. 139, 144, 348 S.E.2d 540, 542 (1986) (doctor’s history taken from claimant cannot be used to determine how the accident occurred, but may be used by a different party to impeach or corroborate the claimant).
28. 234 Va. 84, 360 S.E.2d 183 (1987).
29. Id. at 94-95, 360 S.E.2d at 189 (citing Burruss v. Suddith, 187 Va. 473, 482, 47 S.E.2d 546, 550 (1948)).
30. TransiLift, 234 Va. at 95, 360 S.E.2d at 189; see generally Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 12-17, at 688 (4th ed. 2003).
31. See Payne v. Gloeckl, 236 Va. 356, 359, 374 S.E.2d 32, 34 (1988) (finding that plaintiff’s testimony in car accident case concerning conduct of the driver of her vehicle was contradictory and equivocal at best in ruling that Massie did not apply); see also Olsten of Richmond v. Leftwich, 230 Va. 317, 321, 336 S.E.2d 893, 895 (1985) (holding that plaintiff’s apparently conflicting testimony as to whether her claim arose out of her employment was equivocal); Crew v. Nelson, 188 Va. 108, 114, 49 S.E.2d 326, 328 (1948) (upholding jury verdict in favor of plaintiff because plaintiff’s statements of fact were unclear and equivocal and did not show that she had no case against defendant); Schoeni v. Preferred Mgmt. Serv., 43 Va. Cir. 1, 3 (City of Alexandria 1997) (stating that “Massie does not apply where a party’s testimony is equivocal”).
32. 203 Va. 490, 125 S.E.2d 145 (1962).
33. Id. at 493, 125 S.E.2d at 147.
34. Id. at 493-94, 125 S.E.2d at 147.
35. Id. at 494, 125 S.E.2d at 147.
36. See Henderson, 255 Va. at 127, 495 S.E.2d at 499 (stating that “an adverse statement by a litigant that stands in isolation from the rest of his testimony concerning the fact at issue will not trigger the Massie preclusion”); Norfolk & W. Ry. v. Chittum, 251 Va. 408, 413, 468 S.E.2d 877, 880 (1996) (finding that plaintiff’s damaging statement in one part of his trial testimony could not be viewed in isolation from his other testimony); Tignor v. Va. Elec. & Power Co., 166 Va. 284, 290-91, 184 S.E. 234, 236 (1936) (refusing to adopt defendant’s Massie argument based upon plaintiff’s isolated testimony in cross-examination which conceivably established his contributory negligence in light of other conflicting testimony of plaintiff because the jury must decide which version was the truth as well as its impact); Lowe’s of Lynchburg No. 0082/Lowe’s Home Ctrs, Inc. v. Andrews, Record No. 0706-03-3, 2003 Va. App. LEXIS 425, at **4-5 (Va. Ct. App. Aug. 5, 2003) (rejecting application of Massie based on plaintiff’s testimony as a whole explaining the facts concerning her back injury).
37. Travis, 226 Va. at 4, 306 S.E.2d at 866. Return to Top

John Marshall Foundation:
John Marshall Day observed September 24 in Richmond

With a gubernatorial proclamation, an early-morning ceremony on September 23, a swath of patriotic bunting and a portrait-bedecked birthday cake, September 24 was officially declared “John Marshall Day” in Virginia.

While friends and supporters of the John Marshall Foundation stood by (and several passersby paused to observe the festivities), John Marshall Foundation Vice President (and VBA Past President) Ed Betts conducted the ceremony recognizing the special nature of the following day, which was the 249th anniversary of the birth of the “Great Chief Justice.”

Lieutenant Governor Tim Kaine read the official proclamation of John Marshall Day (see text below) on behalf of Virginia Governor Mark Warner, and Richmond Mayor Rudy McCollum paid tribute to Marshall as a distinguished Richmonder. Attorney General Jerry Kilgore and U.S. Senator George Allen, who were unable to attend, sent their greetings by designated representatives.

Numerous events honoring Marshall’s 250th birthday are being planned for 2005. Watch for more information in future issues of the VBA News Journal!

Certificate of Recognition
By virtue of the authority vested by the Constitution in the Governor of the Commonwealth of Virginia, there is hereby officially recognized:

JOHN MARSHALL DAY

WHEREAS, John Marshall was born in Fauquier County, Virginia, on September 24, 1755, and studied law under George Wythe at the College of William and Mary before being admitted to the bar; and
WHEREAS, John Marshall served in the Continental Army first as a Lieutenant and then as a Captain in the Revolutionary War under the command of George Washington; and
WHEREAS, early in his political career, John Marshall served Virginia in the House of Delegates and as Attorney General, displaying perhaps the most brilliant legal mind of his time; and
WHEREAS, after serving 2nd United States President John Adams as an envoy to Europe during the XYZ Affair, John Marshall served in the U.S. House of Representatives and then as President Adams’ Secretary of State; and
WHEREAS, in 1801, John Marshall was appointed Chief Justice of the Supreme Court, where he served for thirty-four years and made immense contributions to Constitutional law and the Judicial branch of the United States government; and
WHEREAS, John Marshall was a loyal public servant of Virginia and America, a brilliant legal scholar, and an important leader in the history of our Commonwealth and country;
NOW, THEREFORE, I, Mark R. Warner, do hereby recognize September 24, 2004, as JOHN MARSHALL DAY in the COMMONWEALTH OF VIRGINIA, and I call this observance to the attention of all our citizens.

Mark R. Warner, Governor
Anita A. Rimler, Secretary of the Commonwealth Return to Top

Young Lawyers Division

Young lawyers rally to help tropical storm victims
Several areas of Virginia, in particular Richmond and Roanoke, were hit particularly hard by Tropical Storms Gaston and Jeanne in late August and September. Significant local flooding left many without power and with often serious real and personal property damage.

The VBA Young Lawyers Division has a committee specifically intended to offer free advice to victims of a natural disaster with related legal problems. The Disaster Legal Services Committee works with the Emergency Legal Assistance Committee of the Virginia State Bar Young Lawyers Conference to train Virginia lawyers who then are asked to assist clients with their disaster-related legal needs.

Because of the large number of victims of Gaston needing assistance, the Committee desperately needed both those previously trained to assist and, for those not previously trained, to volunteer for training so that they can then represent victims. Attorneys who have been previously trained and can help are asked to contact either of the DLS co-chairs, Valerie Long or Richard Ottinger, whose information is listed at the end of this article.

Attorneys who would like to help but are not yet trained are also asked to contact the co-chairs about training availability. An hourlong call-in training session was held on Thursday, October 7. Disaster assistance training has qualified for CLE credit in the past.

To those who have already come forward to assist their fellow Virginians: the VBA/YLD cannot thank you enough for your interest and support in offering this critical help to those victims of this summer’s storms. If you have any questions, do not hesitate to contact either Valerie W. Long, (434) 977-2545, vlong@mcguirewoods.com, or Richard H. Ottinger, (757) 446-8673, rottinger@vanblk.com. — Valerie Long & Richard Ottinger

Cruzan lawyer speaks in Charlottesville
William H. Colby, the Kansas lawyer who represented the family of Nancy Cruzan in the only so-called “right-to-die” case ever heard by the U.S. Supreme Court, appeared at two programs with connections to The Virginia Bar Association in Charlottesville on September 29.

Colby spoke on “Deciding About Death: The Legacy of Nancy Cruzan” during the University of Virginia School of Medicine Medical Center Hour, appearing on a panel with John D. Arras, Ph.D., the Porterfield Professor of Biomedical Ethics at UVA, and Paul A. Lombardo, J.D., Ph.D., associate professor in the Center for Biomedical Ethics in the UVA School of Medicine (and a member of the VBA Committee on Special Issues of National and State Importance and the Committee on the Needs of the Mentally Disabled). The speakers talked about how decisionmaking about death has evolved in the U.S. in the 21 years since Nancy Cruzan’s accidental brain injury and the 14 years since her burial.

Colby also appeared at an evening program sponsored by the VBA Health Law Section and the Young Lawyers Division, the Central Virginia Palliative Care Initiative and Last Acts Rallying Points. Colby discussed his experiences as documented in his book, Long Goodbye: The Deaths of Nancy Cruzan, and reiterated the importance of advance medical directives. After Colby’s speech, trained facilitators answered questions, provided educational information, and assisted attendees with completing advance medical directives.

News flashes! More ways to stay informed
If you are a member of The Virginia Bar Association Young Lawyers Division, you have no more excuses for not staying informed about events and opportunities.

This summer, the VBA/YLD launched Division News, a more-or-less-monthly electronic newsletter edited by Communications/Publicity Co-Chair Livy Haskell and distributed by e-mail from the VBA office. For those who accidentally delete the missive, copies are also posted on the brand-new “YLD News” page on the VBA website at www.vba.org, which was added in September when the numerous notices of upcoming events, volunteer opportunities and other Young Lawyers Division doings began to overload the existing VBA/YLD webpages.

In case of emergency, such as the need for volunteers to assist victims of recent tropical storms (see above), e-blasts are now being utilized to get information out to young lawyers around the state.

Just as the Young Lawyers Division has paved the way for other VBA groups to become involved in public service, it is leading the way in the area of electronic communications. What will be next? — The Editor Return to Top

Across the Commonwealth

Deadline announced for ’05-06 letters of intent for Law Foundation grants
The Virginia Law Foundation, a 501(c)(3) not-for-profit organization, is now accepting Letters of Intent from organizations wishing to request grant support for the 2005-06 grant cycle (July 1, 2005, through June 30, 2006).

Letters of Intent to be submitted under the VBA umbrella should be prepared in the name of The Virginia Bar Association Foundation and must reach the VBA office at 701 East Franklin Street, Suite 1120, Richmond, Virginia 23219, no later than December 8, 2004, for Executive Committee approval and signing on behalf of the VBA Foundation.

Funds are expected to be awarded to support programs which promote or provide improvements in the administration of justice, legal services to the poor, education of the public about the law and the legal profession, and public service internships for Virginia law students.

Letters of intent should be submitted on a special form (available from the VBA office) which includes instructions for preparing required information.

VBA staff can be reached to assist with basic information about The Virginia Bar Association Foundation and preparation of Letters of Intent by calling (804) 644-0041.

VBA groups polish legislative proposals for 2005 Assembly
VBA sections and committees are currently finalizing legislative proposals for the 2005 General Assembly. Bill prefiling began this year on July 19.

The VBA Board of Governors reviewed proposals at their meeting in Abingdon in mid-October. Association leaders and staff will gather in Richmond on November 16 for the annual VBA Legislative Workday, to review proposals and plan for the upcoming 46-day “short” session, which starts January 12.

Information on 2004 bills of interest is available on the legislation page at www.vba.org. Bill information as far back as 1994 is online at leg1.state.va.us, and General Assembly information is located at legis.state.va.us.

VBA Community Service Program reports pledged hours, plans for ’05
As it nears the end of its first year, The Virginia Bar Association’s Community Service Program has obtained pledges for approximately 18,000 hours of public service [including pro bono publico legal service) by Virginia lawyers and judges during 2004. and we will publicize the completion in 2004 of such public service.

Community Service Program Council members are already working on updates, enhancements and plans for 2005. First on the list of new-year projects: publicly recognizing those who pledged and performed their commitments in 2004 as “VBA Community Servants” or “VBA Pro Bono Servants.”

CSP leaders are encouraged by calls from a number of Program participants who have completed their 2004 service and already want to sign up for 2005. (For those who are interested, forms will be available in the near future and it will be even easier to sign up the second time around!)

Although 2004 is drawing to a close, it is still possible to sign on and get credit for volunteer hours already completed this year; forms are available at www.vba.org. In any case, all Virginia lawyers and judges are invited to join the Program for 2005. Doing good will do you good!

VGA-VERC conference planned for April 2005
The Virginia Guardianship Association (VGA) and the Virginia Elder Rights Coalition (VERC), of which The Virginia Bar Association is a member, will offer their 2005 joint conference April 4-5 at the Woodlands Hotel and Suites in Williamsburg.

The conference will consist of 20 workshops and three plenary sessions on a wide variety of guardianship and elder rights issues.

The keynote speaker for the conference will be A. Frank Johns, JD, CELA, RG, who is a nationally recognized legal authority in elder law, guardianship, disability rights, special needs trusts and legal ethics. Johns is a charter partner in Booth, Harrington & Johns, LLP, with offices in Charlotte and Greensboro, North Carolina. He is a former chair of the North Carolina Bar Association’s Elder Law Section. A frequent speaker on elder law, guardianship, special needs trusts and legal ethics, he is also a well-published author and the past editor of the NAELA Quarterly.

The conference will also include a community living track of workshops sponsored by the Virginia Board for People with Disabilities.

More information will be available at a later date.

Virginia Indigent Defense Summit at UR Nov. 11-12
The University of Richmond (UR) School of Law and the Virginia Indigent Defense Coalition (VIDC) are joining together to present the Virginia Indigent Defense Summit at the UR School of Law on November 11 and 12.

The summit will begin with a reception on Thursday evening. On Friday morning, the program will begin with a welcome from UR Law School Dean Rodney Smolla and VIDC President Matt Geary, followed by opening remarks by Chief Justice Leroy R. Hassell Sr.

A representative of the National Legal Aid and Defender Association will discuss the American Bar Association’s “Ten Principles of Indigent Defense,” and Professor Paul Marcus of the College of William and Mary School of Law will present a national viewpoint on the right to counsel in criminal cases.

Two perspectives on indigent defense funding in Virginia will be offered by John Rickman of the Supreme Court of Virginia, who will address court-appointed funding, and Richard Goemann of the Virginia Indigent Defense Commission, who will speak on public defender funding and the new indigent defense commission.

Five breakout sessions will focus on various aspects of indigent defense:
• “Penalties and the Impact on Indigent Defense Funding,” led by Professor Roger Groot of Washington and Lee University School of Law, a VBA Board member;
• “Comparisons — The Federal Indigent Defense Model,” with Professor John Douglass of the University of Richmond School of Law;
• “Juvenile Justice in Virginia and Indigent Defense — A Look at the Issues,” with Professor Emeritus Robert Shepherd of the University of Richmond School of Law;
• “Consequences of Virginia’s Indigent Defense System,” with Jon Gould, professor and assistant director of the Administration of Justice Program at George Mason University; and
• “Does the source of legal representation of indigent defendants influence the adequacy of the attention given to the competence and mental health status of the defendant?” with Thomas Hafemeister, professor and director of legal studies at the Institute of Law of the University of Virginia School of Law.

All presentations and discussions from the Summit’s breakout sessions will be compiled into a white paper on indigent defense issues, to be edited by Professor Ronald J. Bacigal of the University of Richmond School of Law.

For more information about the Virginia Indigent Defense Summit, please call (804) 343-1712 or e-mail bedwards@vidcoalition.org.

Richmonder Benos named Canadian consul
Canada has named William J. Benos, Canadian citizen and Richmond resident, international lawyer and VBA member, as its first-ever honorary consul in Richmond. This appointment is part of the Canadian Government’s Enhanced Representation Initiative, announced in September 2003.

“Canada is Virginia’s #1 trading partner,” said Canada’s Ambassador to the U.S., Michael Kergin. “Bill Benos brings a clear understanding of Canadian interests and values, coupled with his extensive knowledge of and connections to the Virginia business and political communities. His mission is to help strengthen our affiliations and build awareness of the importance of our two-way trade and investment.”

“I am excited about this opportunity to represent Canada and to facilitate new initiatives that will benefit both Canada and Virginia,” said Benos. “There already is a strong Canadian business presence in Richmond and I look forward to building more partnerships.”

In total, trade between Virginia and Canada exceeded $4.7 billion in 2003 — a daily average of almost $13 million. According to a 2003 study commissioned by the Canadian Embassy, based on 2001 data, Canada-U.S. trade supported 5.2 million U.S. jobs, 141,000 in Virginia alone. Canada was Virginia’s leading foreign market during 2003, with the state selling more than 19 percent of its exports – $2 billion in goods – to Canada, or $62.67 per capita.

Benos joined Williams Mullen, the third largest law firm in Virginia, in September 1988, and is a partner in the firm’s International Practice Section. Benos has also been an adjunct professor for almost a decade at the University of Richmond Law School. Born, raised, educated and having practiced law in Ontario, Benos returns to Canada routinely and continues to retain and strengthen his ties to his native country.

Reserve your room for the VBA Annual Meeting
The Virginia Bar Association’s 115th Annual Meeting will be held January 20-23 in Colonial Williamsburg.

While a phased renovation of the venerable Williamsburg Lodge and Conference Center has begun, it will once again be the center of activity for VBA members and guests. Program details will be mailed to VBA members later this fall and published in an upcoming issue of the VBA News Journal.

Call 1-800-HISTORY to make your room reservation today!

For more information about the renovation and to view a drawing of the Lodge as it will appear, visit the Colonial Williamsburg website at www.history.org/visit/williamsburgHotels/williamsburgLodge. Return to Top

News in Brief

Several Richmond-area members of The Virginia Bar Association were recently named to Style Weekly’s “Top Forty Under 40” list of young community leaders: Tara Louise Casey, assistant U.S. attorney for the Eastern District of Virginia; Cyane B. Crump, Hunton & Williams LLP; Kim Daniel, Hancock, Daniel, Johnson & Nagle PC; and Kristin P. Walinski, senior corporate counsel at Circuit City.

Leadership Metro Richmond, a nonprofit community leadership development program, has selected the following VBA members for its 2004-05 class: Robert L. Brooke, Troutman Sanders LLP; Cyane B. Crump, Hunton & Williams LLP; Debra J.C. Dowd, Kaufman & Canoles PC; and Scott C. Ford, McCandlish Holton.

If you rose early on October 3, you might have seen Gina M. Burgin of Hirschler Fleischer co-hosting a cooking segment of NBC’s “Weekend Today.” The Richmonder, who has participated in VBA/YLD activities, won a national contest to appear on the show. Return to Top

Professional Announcements

The Staunton law firm of Timberlake, Smith, Thomas & Moses PC has expanded its education law practice with the addition of three attorneys: G. Rodney Young II, Douglas L. Guynn and Jennifer E. Kirkland. The three previously practiced together in Harrisonburg.

Young brings more than 15 years of experience in private practice with firms in Harrisonburg, Richmond and Washington, D.C. He has advised and defended many public school divisions in special education disputes and has counseled them on issues such as the Freedom of Information Act, employment, procurement and construction. He has additional experience defending insurance companies and insured groups. He is first vice chair of the Council of School Attorneys of the Virginia School Boards Association and a board member and officer of the Harrisonburg-Rockingham Community Services Board. He is a frequent lecturer at regional and state conferences on special education issues and last summer served on the adjunct faculty at Mary Baldwin College. Young received his B.A., cum laude, from Clemson University, and his law degree from the College of William and Mary.

A Staunton native, Guynn joins Timberlake, Smith of counsel to the education law practice. He also became Staunton City Attorney on August 1. In his 24 years of law practice in Harrisonburg, Guynn has represented more than 30 school boards as special or general counsel, advising them on matters ranging from board governance and constitutional issues to construction and employment law. Guynn is a frequent lecturer and author on education law issues throughout the state. He is a member of the National and Virginia Council of School Attorneys and the Local Government Association. Active in The Virginia Bar Association, he chairs its Judiciary Committee and serves on the Community Service Program Council. He received his B.S. from Virginia Tech with distinction, and his law degree from the University of Virginia.

Kirkland has practiced exclusively in the areas of education and employment law for nearly 12 years. She will practice at Timberlake, Smith while continuing to serve as staff attorney in the Office of General Counsel at Washington & Lee University. Kirkland is a member of the Council of School Attorneys for the National and Virginia School Boards Associations and of the National Association of College and University Attorneys. A frequent speaker, panelist, and trainer, Kirkland has made presentations on risk management issues to many Virginia school boards and superintendent organizations and at state and national conferences on higher education. She has taught courses in education law in the regional graduate programs of the University of Virginia and George Mason University. Kirkland received her undergraduate degree from Indiana University and her law degree from the University of Virginia. Return to Top