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September 2004
Volume XXX, Number 5 (PDF)

President’s Page:
Heroes of the Profession: Virginia’s Legal Aid Lawyers
E. Tazewell Ellett

Legal Focus/Civil Litigation:
Using Biomechanical Testimony in Virginia Product Liability Cases: Putting accident forces and mechanisms of human injuries in proper perspective for the jury
Sandra Giannone and Martha Swicegood

Legal Focus/Civil Litigation:
Preventing Theft of Corporate Knowledge
Attison L. Barnes III, Charles C. Lemley and Emily J. Christiansen

Legal Focus/Civil Litigation:
A Jury Trial Waiver Is an Alternative to Alternative Dispute Resolution
Alan D. Wingfield

ABA News Brief

Young Lawyers Division News

VBA Community Service Program:
Redefining Superstars
Alfred M. Randolph Jr.

Across the Commonwealth
VBA Young Lawyers Division winning streak continues • Fall VBA conference news • ADR Joint Committee reflects on busy year, plans for future • Baldwin, Mays and Annunziata announce retirements

News in Brief
Classifieds
VBA Member Benefits
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President’s Page:
Heroes of the Profession: Virginia’s Legal Aid Lawyers
E. Tazewell Ellett

Many Virginia lawyers of all types engage in work that serves the public good, and they all are worthy of our sincere thanks and commendation. In this President’s Page I want to focus on one group of such lawyers whom I view as true heroes of our profession – Virginia’s Legal Aid lawyers.

The Need for Legal Aid
Legal Aid organizations and Legal Aid lawyers serve a critically important need in our state. While the use of legal services is generally discretionary, that is not always the case. In our legal system there are numerous occasions when low-income individuals are forced to seek legal help even though they really would prefer not to have to. They do this because they are threatened—threatened with deprivation of their rights or their property, or even their family stability or personal safety. In short, they are on the defensive. The availability of legal services to low-income individuals in these “non-discretionary” circumstances is critical, because access to these services is often essential to their ability to meet basic human needs. In my view, one of the most important issues facing our profession in this generation is meeting the serious need for “non-discretionary” legal services by low-income Virginians.

In Virginia, as in many states, the state government (in addition to the federal government) has enacted laws which provide rights to low-income citizens aimed at ensuring that their most basic human needs are met. These needs include food, shelter, health care, income, family stability, freedom from domestic violence, and education for one’s children. Unfortunately, in our legal system these rights are not self- executing, and there are plenty of individuals and organizations with opposing interests who are more than willing to ignore or deny these rights if permitted to do so. This results in disputes over such things as child custody and support; domestic violence; wrongful eviction or foreclosure; denial of access to public housing; wage garnishment; special education rights; and denial of unemployment, disability, medical, Social Security, and Supplemental Security benefits. In these circumstances, unless the low-income individual has access to legal services to protect his or her rights, there is a strong likelihood that those rights will be denied, especially if the opposing party is powerful or wealthy.

As Supreme Court of Virginia Chief Justice Hassell has so aptly put it:

Our form of government is truly remarkable and unique. Our federal and state constitutions confer rights upon citizens and those rights create and preserve our freedoms and liberties. These constitutions are also intended to protect us from the encroachments of the very governments that were designed to provide numerous benefits to all citizens.

A strong, vibrant, and independent judiciary is essential for the protection of our constitutional rights and property rights. However, those rights that we cherish are meaningless, they are of no importance, if people lack access to the courts or if people lack the assistance of lawyers who are willing to ensure that those rights are not abridged. Without the help of lawyers, most people, rich and poor, are unable to navigate through the often times perplexing procedural and evidentiary rules that courts must apply.

This is also true of legal proceedings that do not involve the courts, such as administrative proceedings involving federal or state agencies. Access to lawyers is often critical in these proceedings as well.

Individuals of means are able to hire and pay lawyers to provide the necessary guidance in such situations. Low-income individuals typically are not. Thus, in order to maintain a just legal system, states need to ensure that low-income individuals have access to adequate legal services to assist them in protecting their rights and property in circumstances where these non-discretionary legal needs arise. Otherwise, these rights will likely be abridged, and justice will not be achieved. A system which, on the one hand, provides rights to low-income individuals to ensure that their most basic human needs are met, and, on the other hand, fails to provide them the tools to protect those rights, is, at best, ineffective. At worst, it is callous, unjust, and hypocritical.

As noted by Chief Justice Hassell:

[P]oor people who cannot afford the services of attorneys may be unaware of their legal rights and may be denied justice. This consequence, my friends, is wrong. This consequence, my friends, is unacceptable.

Equally importantly, our fundamental principle of “Equal Justice Under Law” is defeated in such a system. Again quoting Chief Justice Hassell:

The availability of justice must not be predicated upon the wealth or financial status of the litigants. As lawyers and judges, we must take the necessary actions to ensure that . . . justice is dispensed impartially without regard to economic considerations.

Facts About Legal Aid
In Virginia, Legal Aid organizations and Legal Aid lawyers are the front lines of the Commonwealth’s efforts to respond to the need for non-discretionary civil legal services for low-income individuals to help them with problems affecting their most basic human needs. Legal Aid in Virginia is set up as a statewide network of community-based organizations that provide civil legal assistance for this category of Virginians. The Legal Services Corporation of Virginia (LSCV) provides funding, oversight, and coordination for this network. In FY 2002-03, LSCV grants supported 10 regional Legal Aid programs and a statewide support center that collectively serve every community in Virginia. LSCV funding comes from the Virginia General Assembly (general revenue and special filing fee appropriations) and from the Virginia Interest on Lawyers Trust Accounts (IOLTA) program that LSCV administers. LSCV also accepts private donations. Virginia Legal Aid programs also receive funding from the Legal Services Corporation (which operates at the national level), city and county grants, and federal government sources other than the Legal Services Corporation.

For low-income Virginians, Virginia Legal Aid organizations:

(1) provide direct legal representation;
(2) provide community legal education and assistance with self-representation and other essential legal services; and
(3) coordinate with private lawyers who volunteer their time to handle cases on a pro bono publico basis.

In FY 2002-03, Legal Aid programs closed more than 34,000 cases benefitting 79,111 low-income Virginians, 54,838 persons received community legal education and assistance with self-representation and other legal services from Legal Aid, and 4,359 individuals and their families received private lawyer pro bono publico representation through pro bono programs operated by Legal Aid organizations in partnership with local bar associations. These private Virginia lawyers donated over 20,400 hours worth at least $3.1 million.

The basic Legal Aid process works this way. Legal Aid advocates perform screening and intake services and provide free advice and brief legal assistance. In some parts of the state this is performed on a centralized, regional basis with the assistance of sophisticated telephone systems and database technology. Clients that need more in-depth assistance are referred to Legal Aid attorneys and paralegals working out of Legal Aid organization offices located throughout the state, or to private attorneys who serve these clients on a pro bono publico basis out of their own law offices.

Most of the Legal Aid cases relate to problems in the following areas of the law: family (domestic violence, child support, divorce, child custody, parental rights, guardianships), consumer (illegal taking of property, wage garnishment, denial of credit, fraudulent consumer practices), housing (unlawful eviction, denial of access to public or government-subsidized housing, illegal mortgage foreclosure), and income maintenance (eligibility for, or termination of, disability, Social Security, Supplemental Security, unemployment compensation, or public benefits), as well as other miscellaneous areas (education, employment, juvenile, health, and individual rights). The priority is to help families who, without Legal Aid assistance, would lose a critical human need, such as food, shelter, income, family stability, medical care, or personal safety. In most case, Virginia Legal Aid programs resolve legal problems without litigation.

As of the end of FY 2002-03, the staffs of the Legal Aid organizations in Virginia funded by LSCV included 134 attorneys, 55 paralegals, and 103 other management, professional, and support staff.

Legal Aid Lawyers
Why do I view Virginia’s Legal Aid lawyers as heroes of our profession? While the responsibility of providing “non-discretionary” legal services to low-income Virginians is a responsibility of the Commonwealth, Virginia’s Legal Aid lawyers are the ones who have stepped up to the plate and truly committed themselves to addressing this need. They are bearing on their shoulders a disproportionate amount of this responsibility, which really belongs to all Virginia lawyers and Virginia citizens.

Now I know that there are many lawyers in private practice in Virginia who are volunteering to assist Legal Aid through taking on pro bono publico representation of low-income Virginians in need (as well as lawyers who are accepting court appointments to represent indigent criminal defendants). I sincerely thank them and appreciate their efforts, and want to encourage other private practitioners to do the same. But I am reserving my highest accolades for the full-time Legal Aid lawyers.

It is one thing to provide legal services to assist the poor and needy on occasion, while spending the bulk of one’s professional time on paid legal work which permits a relatively healthy income. It is quite another to dedicate one’s entire professional efforts to serving this segment of Virginians, while earning the limited salaries which Legal Aid lawyers are paid. In my view, this requires a level of professionalism, dedication, and idealism which is rare and truly noble.

Legal Aid lawyers in Virginia are the classic example of professionals who are overworked, underpaid, and, at least by some people, underappreciated. They carry heavy case loads and do so without the staff support and equipment and other amenities that many private practitioners take for granted. They are paid far less than they should be, given the contribution they are making. They are dedicated, professional, and hard-working, and amazingly, if they complain at all, it is not about their own situation, but rather about their concern that funding and staffing constraints might lead to justice not being achieved for their needy and vulnerable clients.

Virginia’s Legal Aid lawyers are indeed heroes of our profession, but they are not supermen and superwomen. They need the help of our state and of every one of us. They too long have borne a burden that should be more equally shared by all of us. The rest of us need to start doing our fair share.

How You Can Help
What can other Virginia lawyers do to help these Legal Aid lawyers provide non-discretionary legal services to our neediest citizens? Plenty!

Let me suggest five ways in which you can do your part. Every lawyer in Virginia can, and should, take action in at least one of the following categories, and many of us are in a position to do even more.

1. Financial Contributions.
Make a tax-deductible financial contribution to the Legal Services Corporation of Virginia and other organizations supporting Legal Aid. In my view, when Virginia lawyers are considering making their annual financial contributions to worthy charities, organizations that provide legal services to the poor, such as LSCV, should be given one of the highest priorities. Please remember two things. First, Rule 6.1(a) of the Virginia Rules of Professional Conduct sets an aspirational goal for Virginia lawyers to contribute at least two percent of their professional time to pro bono publico legal services, and states that direct financial support is an alternative to donating time. Thus, unlike the mission of many worthy charities, the mission of LSCV and other organizations focused on providing legal services to the poor is directly related to a professional obligation of all Virginia lawyers. Second, non-lawyers are much less likely than lawyers to contribute to organizations focused on providing legal services, so lawyers really need to take the lead with generous annual financial contributions to these organizations. The Virginia Bar Association this past Spring joined with the other statewide bar organizations in Virginia to send a joint letter to all Virginia lawyers encouraging them to make such a generous contribution to LSCV. I hope all Virginia lawyers will do so before the end of this calendar year, and each calendar year thereafter. If you need any information on making a contribution, please simply contact LSCV or The Virginia Bar Association.

2. Education and Awareness.
Help to educate Virginia citizens and Virginia lawmakers about the critical importance of Virginia Legal Aid and Legal Aid lawyers, and the services they provide to help low-income Virginians meet their basic human needs. Facts that you should pass on include the following:
• More than 800,000 residents of Virginia are living in poverty. 246,000 of them are children, and 78,000 are senior citizens.
• According to the most recent data from the U.S. Census Bureau, 9.9 percent of Virginia’s population lives in poverty.
• According to the American Bar Association, 48 percent of low-income and moderate-income households experience a legal problem each year. That translates to 400,000 legal problems annually for this segment of Virginia’s population.

3. Support Adequate Funding for LSCV in the General Assembly.
Call or write your representatives in the General Assembly to tell them that you support greater funding for LSCV. Legal Aid in Virginia is in a financial crisis because over the last several years, federal funding is down and revenue from IOLTA (which provides 40 percent of the LSCV funds for grants to Virginia Legal Aid organizations) is down dramatically on account of lower interest rates. This has resulted in significant budget cuts and staffing reductions for Virginia Legal Aid organizations. For example, Central Virginia Legal Aid Society has lost one-third of its support staff and one-quarter of its attorneys over the last three years. As a consequence, waiting lists of low-income Virginians whom Virginia Legal Aid organizations are unable to serve are growing, and critical needs for legal services are going unmet. Even before these recent funding reductions, the funding sources available to Virginia Legal Aid organizations were woefully inadequate to meet the critical needs. The American Bar Association estimates that, nationwide, Legal Aid organizations currently are able to meet only 20 percent of the legal needs of low-income people.
It is critically important for the Commonwealth to put substantially more state funding into LSCV on a continuous and stable basis, and Virginia lawyers can help by carrying that message to their General Assembly representatives.

4. Screening and Pro Bono Hotline Assistance.
Volunteer to assist your local Legal Aid organization by performing screening and intake services and providing advice and brief legal assistance to those seeking Legal Aid assistance. This does not have to be time-consuming, and it can be very rewarding. In several areas of the state there are Pro Bono Hotlines through which you can provide these services. Most of these Pro Bono Hotlines were created by The Virginia Bar Association in partnership with various Legal Aid organizations and operate in Central Virginia, Northern Virginia, Roanoke, and Tidewater. The Virginia Bar Association Young Lawyers Division actively recruits lawyer volunteers to staff the hotlines at Legal Aid organization offices in these areas of the state. These volunteer lawyers, who receive training for this task and do not have to be young lawyers or members of the VBA, provide telephone advice on a rotating basis to callers meeting Legal Aid eligibility requirements, and thereby ease the caseload of Legal Aid attorneys. Contact your local Legal Aid organization or the VBA, or log onto the VBA’s website, to learn how to volunteer. The VBA’s website has links to the websites of Legal Aid and other public service organizations with lawyer pro bono publico legal service opportunities. (Editor’s note: See the Community Service Program webpage, easily accessed by a link on the VBA home page at www.vba.org, for these links.)

5. Pro Bono Publico Representation of a Legal Aid Client.
Volunteer to assist by representing a Legal Aid client on a pro bono publico basis. This would provide the opportunity to work with the local Legal Aid organization and Legal Aid lawyers and to assist each other in ensuring that the client’s needs are met. As noted above, the pro bono involvement of private lawyers is a crucial element of the Legal Aid delivery system, and private Virginia lawyers volunteered 20,402 hours of such pro bono service in FY 2002-03.
One such pro bono publico volunteer opportunity which could be considered is Chief Justice Hassell’s new “Virginia’s Lawyers Helping Families” program, which is implementing pilot programs in Harrisonburg and the greater Richmond area aimed at encouraging lawyers to volunteer to help poor families who are involved in child custody and visitation disputes.

* * * * *
As Virginia lawyers, we all have a solemn professional obligation to do what we can to ensure that justice is delivered fairly, equally, and completely in the Commonwealth. I urge each of you to take action in one, and hopefully more, of these five categories. Working together, we can take some of the load off of our distinguished, but overburdened, Legal Aid brethren. By volunteering our time, talents, and resources in this way, we can further one of the most honorable traditions of our profession, while helping to provide Virginia’s most vulnerable individuals and families with tools they desperately need to preserve their rights and meet their most basic human needs. A worthy cause indeed! Return to Top

For more information about Legal Aid in Virginia, visit www.VaLegalAid.org.

Legal Focus/Civil Litigation:
Using Biomechanical Testimony in Virginia Product Liability Cases: Putting accident forces and mechanisms of human injuries in proper perspective for the jury
Sandra Giannone and Martha Swicegood

After a car accident, plaintiff sues your client, the car company, and alleges that a defective component of their vehicle injured her or enhanced her injuries. Plaintiff claims that this accident caused a ruptured disk in her back so severe that she can no longer work or function without pain. Plaintiff has multiple medical doctors, including treating doctors from her childhood, prepared to testify that, in spite of her colorful medical history, not only is she gravely injured, but she sustained this ruptured disk in your accident.

You, however, question this causal connection and want to establish that the accident is not the true cause of Plaintiff’s current condition. You hire an orthopedic doctor to perform an independent medical examination (IME). He opines that not only is her current condition not as severe as she claims, but that her medical history, rather than this accident, is responsible for her condition. While the value of this testimony cannot be overlooked, the IME doctor did not examine Plaintiff until more than two years after the accident, during which time much has happened, including numerous surgeries on Plaintiff’s back. Alone, this may not be sufficiently compelling evidence to overcome that of the plaintiff’s many treating doctors.

You now have a medical expert prepared to opine that Plaintiff’s medical history and prior surgeries render it highly implausible that Plaintiff’s condition was caused by this accident. You also know that Plaintiff’s kinematics during this accident do not lend themselves to her injuries. To bolster your IME doctor, you need someone to testify regarding the magnitude and direction of forces experienced by plaintiff in the accident as well as those forces necessary to rupture a disk. You need a biomechanic.

How Can a Biomechanic Assist the Jury and the Defense?
A good biomechanic can put accident forces in perspective for the jury.1 The biomechanic begins by examining the accident vehicle and the facts surrounding the accident and ascertains the direction and magnitude of the forces that any occupant or object would experience during the accident. The biomechanic then examines the plaintiff’s medical records to obtain data regarding both the plaintiff’s pre-accident and post accident condition. The biomechanic can then opine whether the alleged injuries could have been caused to a person with these preexisting conditions exposed to these accident forces.

This systematic and scientific approach will enable the jury to understand the severity of the accident forces and put them in perspective. By using biomechanical analogies, a biomechanic can then explain the forces in your accident in comparison to forces such as falling out of a 10-story building, having a car dropped on you, riding a rollercoaster, jumping rope, kneeling in church, performing a cartwheel, or walking. These types of comparisons can be invaluable in illuminating accident severity to a jury.

Though they are not trained to treat the human body, biomechanics are nonetheless qualified scientists trained to study the function of the body. They construe the human body as a machine when analyzing loads and forces applied to various parts of the body, including knees, necks and backs. In many ways, biomechanics are no different than other scientists, like chemists and biologists, who do not have medical degrees, do not treat patients, but who nonetheless possess sufficient knowledge, skill, or experience to make the witness competent to testify about how the human body functions under certain conditions.

Medical Doctors Are Not Qualified to Give Force Application Opinions
Medical doctors, absent special training, are not trained to analyze vehicular accident forces. They are not trained to measure them and they cannot scientifically recreate them. Medical doctors are obligated to diagnose and treat injuries or conditions. They have no scientific basis for opining whether certain forces were available in a particular accident so as to have caused a particular injury.2

Moreover, medical doctor testimony regarding causation is usually based solely on what the plaintiff tells him. This leads to what can be classified as the “temporal relationship” basis for a doctor’s causation opinion at trial: the Plaintiff was in an accident, she reports “new” symptoms to a doctor one week later, and therefore the doctor opines that the accident caused the injury. This approach is characterized by what computer programmers refer to as the “garbage in, garbage out” problem. The doctor’s opinion is limited by the accuracy and veracity of the self-reporting of the person who now wishes to get money from your client. If the Plaintiff fails to provide a complete accident summary and medical history, the doctor surely will opine inaccurately that there is a temporal causal nexus between the incident and symptomology.

The Virginia Courts and Biomechanical Testimony
There are those who would argue that Virginia courts addressing non-medical experts have concluded that the field of biomechanics is junk science and not permissible in Virginia. It is incumbent upon the defense bar not to permit this erroneous reading of the caselaw. As the defense bar, we need to aggressively advocate the use of these uniquely qualified and wholly relevant engineers and attempt to change the perceptions regarding the quality and relevance of their scientific testimony.

Virginia Courts, despite perceptions and lore, permit biomechanical testimony. Courts have struggled to draw the line between the appropriate scope of testimony to permit from legitimate scientists who study the human body (i.e. biomechanics) versus legitimate scientists who treat the human body (medical doctors). Although there is a line regarding scope, experts on both sides are permitted to offer opinion testimony.

In the first case to address the issue, Combs v. Norfolk & Western Railway Company, 256 Va. 490, 507 S.E.2d 355 (1998), the Supreme Court upheld the trial court’s qualification of a biomechanic to testify regarding the forces and loads placed upon the Plaintiff’s spine during an incident where the Plaintiff fell while working on a toilet. While the Court embraced biomechanic testimony about the forces involved in the fall and their likely impact on the human body, the biomechanic was not permitted to give diagnostic opinions regarding the plaintiffs’ actual injury. See id. at 496-97; 358-59. The Court did not preclude a scientist trained to study the human body as a machine from opining about forces and loads as applied to the body.

The Supreme Court recently revisited the biomechanical issue in Norfolk and Western Railway Co. v. Keeling, 265 Va. 228, 576 S.E. 2d 452 (2003). In this FELA case, the railroad purported to offer “biomechanical” testimony in the area of vestibular mechanics to examine the biomechanism responsible for the Plaintiff’s fistula becoming symptomatic. However, when asked about the cause, he indicated that it was “infection or something that causes the tissue or the bone to deteriorate.” Id. at 234, 457. Plaintiff properly moved to exclude this testimony, because this answer did not address biomechanical issues and was beyond the scope of a biomechanic’s expertise.
However, Keeling does not ban all biomechanical testimony. Rather, it prohibited that particular biomechanic from crossing the line into diagnostic medicine. See id. at 235, 457-58. Moreover, the Keeling Court intimated that it would have allowed actual biomechanical testimony from this witness, including testimony about pressure in the inner ear, if it received assurances that the questioning would be properly limited. See id. This suggests that a biomechanic is a legitimate scientist who can examine whether the forces applied on the human body or a component thereof (the ear) could result in the injury mechanism alleged.

This issue arose recently in the case Kline v. General Motors in which the Circuit Court permitted the biomechanic to testify about accident forces and loads. The court’s opinion addressing biomechanical testimony clarifies the law in Virginia and sheds light on the requirements and restrictions for biomechanical testimony.

Kline v. GM : Permitting the Biomechanic Scientist To Opine About The Human Body Machine
In Kline v. General Motors, 2003 Va. Cir. LEXIS 319 (Richmond City) (2003), Plaintiff claimed that during a hard-braking non-impact incident, the seat in his pick-up truck abruptly slid forward on its tracks, resulting in knee contact with the knee bolster and resultant injuries to his back and knee. The incident did not appear to have the mechanism necessary to produce the meniscal tear of the knee complained of by the plaintiff. The defendant retained a highly qualified non-M.D. biomechanic to opine about the low forces in the incident, the mechanical mechanism required to cause a meniscal tear and the force application necessary to cause a meniscal tear. Pretrial discovery illuminated, through the depositions of Plaintiff’s treating physicians, that although they had been designated as having “causation” opinions about the incident and the injuries, they were unable and unqualified to render opinions about accident forces and loads.

Upon a motion to exclude the expert, the Court ruled that the biomechanic could testify about the forces experienced by the plaintiff’s body in the accident and about the mechanisms necessarily imposed on the human body which result in a meniscal tear, stating he “may testify to the nature of the forces involved, i.e., the direction of the force, the means of determining the amount of the force (the physical laws and factors for determining the amount of force) and the mechanism(s) involved in causing a meniscal tear, i.e., compression and torsion.” Id. at 2003 Va. Cir. LEXIS at *3.

The Kline court did rule that the biomechanic could not testify that the forces and nature of the impact on the knee were insufficient to cause the meniscal tear in this plaintiff, in spite of the fact that the court was quick to note that “[a] biomedical engineer is certainly competent to testify to the mechanics of action of the body and, to some extent, the points at which various body parts cannot function or can become injured, e.g., a certain amount of force concentrated on the forearm is sufficient to cause it to fracture.” Id. at *5.

In Conclusion: Ensuring Your Biomechanic Is Up to Par
Expert testimony in Virginia must meet the requirements of Tittsworth v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996) (holding that the testimony must assist the fact finder in determining the evidence) and Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 466 (1995) (holding that the expert testimony must be based on an adequate foundation). Biomechanical testimony can meet these requirements as long as your biomechanic employs a scientifically-based methodology in generating final opinions, and that the expert has considered and excluded all possible variables in reaching final opinions to ensure reliability.

When medical doctors consider the human body, they think in terms of treatment. Biomechanics construe the human body as a machine that interacts with its physical surroundings. It is not the role of a medical doctor to do a biomechanical assessment of forces, loads and injury mechanism in an accident. Virginia law permits a biomechanic to testify about forces on the body, the types of loads these forces cause, and the types of loads necessary for a particular injury mechanism. If you carefully prepare your biomechanic and do not overreach to elicit opinions from him that are reserved for medical doctors, you can effectively make your point to the jury that the forces, loads and mechanisms required for the injury alleged were not present in your accident. Return to Top

NOTES
1. A number of jurisdictions allow expert opinions in the field of biomechanics. See e.g., Quintana-Ruiz v. Hyundai Motor Corp., 303 F. 3d 62, 66 (1st Cir. 2002) (the biomechanic testified that forearm fractures rarely occur when the arm is three or more inches away from the component part at issue in the vehicle); Krummel v. Bombardier Corp., 206 F. 3d 548, 560 (5th Cir. 2000) (the biomechanic opined that “fractures of the left tibia and fibula can reasonably be expected to occur in a ‘bending’ break at a force of less than 100 pounds depending upon the exact position of the body”); Laski v. Bellwood, 2000 US App. LEXIS 12068, *11 (6th Cir. 2000) (noting that “biomechanics are qualified to determine what injury causation forces are in general and can tell how a hypothetical person’s body will respond to those forces, but are not qualified to render medical opinions regarding the precise cause of a specific injury”); Lamb v. Sears, Roebuck, Co., 1 F. 3d 1184, 1190 (11th Cir. 1993) (biomechanic testified that about ease of climbing wall for child of certain size); Hinds v. General Motors Corp., 988 F. 2d 1039, 1044 (10th Cir. 1993) (the biomechanic testified about the vehicle occupant’s interaction with the seatbelt during the crash and the resulting occupant’s injuries.)
2. To lay a proper foundation for biomechanical testimony, it is important to elicit testimony from the treating physicians that they are not engineers and are not trained to analyze accident forces, loads or occupant kinematics. Doctors will usually readily admit this. Return to Top

About the Authors: Sandra Giannone is a partner in the Richmond office of McGuireWoods LLP who earned her law degree from the University of Michigan Law School. She is a trial lawyer who defends product designers, manufacturers and sellers against claims for personal injuries arising from alleged product defects, malfunctions or failures, concentrating in the national defense of automotive manufacturers. She is admitted to practice in both Virginia and Illinois, and is a member of The Virginia Bar Association, the Virginia Association of Defense Attorneys and the Richmond Bar Association. Martha Swicegood is an associate in the Richmond office of McGuireWoods LLP. She earned her law degree from the Marshall-Wythe School of Law at the College of William and Mary. Her practice focuses primarily on the defense of product liability claims. A substantial portion of her practice is devoted to the national defense of automotive product liability claims. She is a member of both The Virginia Bar Association and the Richmond Bar Association. Return to Top

Legal Focus/Civil Litigation:
Preventing Theft of Corporate Knowledge
Attison L. Barnes III, Charles C. Lemley and Emily J. Christiansen1

Businesses often find themselves vulnerable to disloyal employees who access confidential business data and trade secrets. Disloyal employees may seek a competitive advantage in a new endeavor by removing and making use of their former employer’s proprietary information, such as customer lists. In the past, these disloyal employees either had to memorize or physically carry this information away from their former employers; now, however, almost every employee has access to volumes of proprietary information stored on the employer’s database or network. Unfortunately, as many companies have learned, it is much more difficult to protect information stored on a computer than it is to lock a file cabinet. With the click of a mouse, massive amounts of confidential data may confiscated in an instant.

Attorneys have traditionally addressed such problems through claims for breach of confidentiality and non-solicitation (CANS) agreements, violation of the Virginia Uniform Trade Secrets Act or similar actions.2 Such claims are often unsatisfactory because the employee may not have signed a CANS agreement, the agreement is deemed to be unenforceable, or the information wrongfully taken does not qualify as a trade secret under the law. Employers and others in Virginia who have been injured by wrongful taking or use of their computer data now combine those traditional claims with statutory claims under the federal Computer Fraud and Abuse Act (CFAA), 3 the Virginia Computer Crimes Act (VCCA),4 and often a common-law claim for trespass to chattels.5 This article will address the two statutory claims,6 which can provide an employer relief even where no trade secrets are implicated and a CANS agreement is ruled unenforceable.7

The CFAA and the VCCA are criminal statutes that create civil claims for certain wrongs committed using a computer.
The CFAA creates a federal civil action, and even a criminal claim, for conduct that would give rise only to state-law claims if not for the use of a computer.8 Enacted in 1984 as a criminal statute designed to protect classified information on government computers and financial information on financial institutions’ computers, the CFAA has been amended to cover all computers used in interstate commerce and to provide a private civil right of action for those harmed by criminal computer fraud.9 The CFAA’s various sections address a broad array of conduct, but of most relevance to this article, an employer may bring suit against anyone who:
(i) “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains. . . information from any protected computer…”10 or
(ii) “knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value….”11

A “protected computer” is defined as a computer used in interstate or foreign commerce.12 A civil action may only be brought by one who suffers “damage or loss” of at least $5,000.13 The statute broadly defines “damage” as “any impairment to the integrity of availability of data, a program, a system, or information,” and “loss” as “any reasonable cost to any victim,” including response, assessment, and remediation costs as well as any lost revenue or cost incurred as a result of the service interruption.14

Similarly, the VCCA is a criminal statute that provides for civil remedies in appropriate cases. The elements necessary to establish a violation of the VCCA are: (1) that the defendant used a computer or computer network; (2) “without authority;” and (3) with the intent to (inter alia) convert the property of another15 or to make an unauthorized copy of computer data, programs or software.16 While the VCCA generally covers the same ground as the CFAA, and is often used in conjunction with it, certain distinctions are addressed below.

The VCCA differs slightly from the CFAA in terms of what access is unauthorized.
Both statutes punish “unauthorized” access to computer data, but they deal with that term differently. The CFAA gives little direct guidance on the meaning of the phrase “without authorization,17 ” but the phrase was interpreted in the context of disloyal employees in Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc.18 Shurgard employees accessed their employer’s computer and sent the employer’s confidential information to a direct competitor with whom they had secretly accepted employment. The competitor moved to dismiss Shurgard’s CFAA claim, arguing that because the employees had “authorized” access to the information by means of their employment with Shurgard, there could be no “unauthorized” access as required by the statute.19 The court rejected the competitor’s argument, holding that the employee’s authority to access the information ended when employees accepted employment with and became agents for the competitor.20

The VCCA specifically defines “without authority,” stating that a person is “without authority” when (i) he has no right or permission of the owner; or (ii) he uses a computer or computer network in a manner exceeding the right or permission granted by the owner; or (iii) he uses the computer or computer network in violation of the policies set by an ISP.21 The scope or unauthorized access under the VCCA has been broadly interpreted. For example, in S.R. v. Inova Healthcare Serv.22 the circuit court held that a VCCA claim was established where medical personnel who were authorized to access medical records for business purposes accessed the same records under circumstances “not reasonably related to the rendering of health care services.”23 Similarly, in McGladrey & Pullen v. Shrader, the court found a VCCA claim established where an employee of an accounting firm that was about to be sold, who had authorization to use the firm’s computers for business purposes, downloaded and kept computer files containing competitively sensitive information for use in his new accounting business.24

Given these slight differences in what kind of use is without authority or exceeds authorization, these statutes might yield different results where an employer seeks to establish that an employee’s access was unauthorized solely because it violated the provisions of an employee handbook. The CFAA would likely require a showing that the employee had ceased acting as his employer’s agent and was therefore without authorization under Shurgard25 or had obtained information he was not entitled to obtain and had therefore exceed authorized access as defined in the statute. The VCCA, on the other hand, would clearly be violated because the employee used the employer’s computers “in a manner exceeding” the permission granted by the employer, or “for purposes not authorized by his employer....”26 Thus, while employee handbook provisions are always important to protecting the employer’s data, the Virginia statute may offer greater protection in this regard than the CFAA.

Although the CFAA and VCCA are generally used together, jurisdictional concerns may dictate using one or the other.
Another obvious distinction between the two statutes is jurisdiction. Employers wishing to litigate in federal court may use the CFAA as a vehicle for federal jurisdiction over what would otherwise be purely a matter of state law.27 Of course, a VCCA claim generally may be joined with the CFAA claim without defeating federal question jurisdiction.28 Conversely, if the plaintiff wishes to be assured of litigating in state court, the VCCA provides similar statutory protection without the federal jurisdiction of the CFAA.

Another critical distinction is the CFAA’s requirement that a civil action is only available where the plaintiff suffers damage or loss of at least $5,000 in value.29 Although the scope of injuries that can qualify as “damage or loss” is quite broad,30 recent opinions have strictly limited the range of potential recovery to injuries directly related to the computer.31 Several courts have rejected claims from plaintiffs who did not meet the $5,000 threshold.32 This can be dispositive where a plaintiff seeks injunctive relief to prevent injury from occurring; the $5,000 threshold is generally interpreted as an element of jurisdiction or standing, which should be met before injunctive relief may be awarded.33

Conclusion
An action under the CFAA can be an effective way to recover damages, but all employers should strive to prevent anyone, including current employees, from gaining unauthorized access to their computer stored information. To protect your client’s information, you might counsel you clients to do the following: (1) update the company’s computer policy to keep pace with changing technology; (2) consistent with written company guidelines, consider regularly monitoring their employees’ computer use, especially e-mail; (3) limit access to and create a workable method to protect confidential information, especially trade secrets, wherever possible; (4) ensure that all employees with access to confidential information have signed valid confidentiality agreements; (5) secure the external website and immediately capture any entry into your computer system from outside of your company; and (6) act quickly when unauthorized acts take place by pursuing rights under the CFAA and/or VCCA, including, if necessary, injunctive relief to stop further dissemination before it is too late. Return to Top

NOTES
1. Attison L. Barnes III, Charles C. Lemley, and Emily J. Christiansen, who work in the Washington, D.C., office of Wiley, Rein & Fielding, concentrate in, among other things, the protection of trade secrets and intellectual property rights.
2. Va. Code § 59.1-336 et seq.
3. 18 U.S.C. § 1030.
4. Va. Code § 18.2-152.1 et seq.
5. See, e.g., Physicians Interactive v. Lathian Systems, Inc., 2003 WL 23018270 (E.D. Va. 2003)(unpublished opinion addressing all these causes of action).
6. For a discussion of using trespass to chattels in such cases, see Applicability of Common-Law Trespass Actions to Electronic Communications, 107 ALR5th 549; America Online, Inc. v. IMS, 24 F. Supp. 2d 548, 550-51 (E.D. Va. 1998).
7. See McGladrey & Pullen, LLP v. Shrader, 62 Va. Cir. 401, 2003 WL 22203709 (Rockingham County Cir. Ct. 2003)(sustaining demurrer as to claims for violation of unenforceable CANS agreement, but denying demurrer on VCCA claims).
8. For example, in the Shurgard case discussed below, had the defendant mailed his current employer’s paper files to his future employer rather than e-mailing the computer version there would have been no crime and no federal cause of action. The mere fact that a computer was used made the conduct criminal and subject to federal civil jurisdiction even though the resulting harm was the same. There is some question whether this was the result Congress intended when it amended the CFAA.
9. This private civil right of action exists in addition to the criminal penalties available under the CFAA, which may include up to 20 years imprisonment.
10. 18 U.S.C. § 1030(a)(2)(c).
11. 18 U.S.C. § 1030(a)(4).
12. 18 U.S.C. § 1030(e)(2)(B).
13. 18 U.S.C. 1030(g); see In re DoubleClick Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D.N.Y. 2001).
14. 18 U.S.C. § 1030(e)(8); 18 U.S.C. § 1030(e)(11).
15. Va. Code §18.2-152.3.
16. Va. Code § 18.2-152.4.
17. See America Online, Inc. v. National Health Care Discount, Inc., 121 F. Supp. 2d 1255, 1273 (N. D. Iowa 2000) (applying Virginia law).
18. 119 F. Supp.2d 1121 (W.D. Wash. 2000).
19. The court relied on agency theory to rule that the employees acted “without authorization,” and therefore declined to consider whether they exceeded their authorized access. Shurgard, 119 F. Supp. 2d at 1125, n. 4.
20. After Shurgard, more and more employers have begun to take advantage of the CFAA. See, e.g., Pacific Aerospace & Electronics, Inc., 295 F. Supp. 2d 1188 (E.D. Wash. 2003)(granting a preliminary injunction where the former employees had gained unauthorized access to confidential customer lists and technical data stored on the former employer’s computer). Employers have also brought actions under the CFAA against competitors. In EF Cultural Travel BV, EF v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001), the court held that a company’s use of a “scraper” to obtain pricing information off a competitor’s website constituted unauthorized access because the information’s effectiveness was dependent on the knowledge a former employee gained through unauthorized access to the former employer’s computer.
21. Va. Code. § 18.2-152.2.
22. 49 Va. Cir. 119, 1999 WL 797192 (Fairfax County Cir. Ct. 1999).
23. Id. at *9.
24. 62 Va. Cir. 401, 2003 WL 22203709 (Rockingham County Cir. Ct. 2003) at *6 (“Defendant had permission to use McGladrey’s computers for legitimate business purposes, but had no authority to use McGladrey’s computers for purposes not authorized by his employer and inemical [sic] to his employer’s best interest.”)
25. See Shurgard at 1125.
26. McGladrey & Pullen, 2003 WL 2223709 and * 6. The employees in McGladrey violated the VCAA where they were authorized to access the patient files, but not for the reasons they accessed the files. Since they were not acting as agents for another entity, and did not obtain information they were not authorized to obtain, they might well not have violated the CFAA.
27. See, e.g., Nexans Wires S.A. v. Sark-USA, Inc., 319 F. Supp. 2d 468 (S.D.N.Y. 2004)(Plaintiff’s state-law claims were dismissed where plaintiff failed to meet jurisdictional requirements of CFAA claim).
28. See generally Nexans Wires, 319 F. Supp. 2d at 470 (joinder of state claims will not defeat federal jurisdiction unless the assertion of jurisdiction under the CFAA is “wholly insubstantial and frivolous.”
29. 18 U.S.C. 1030(g); see In re DoubleClick Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D.N.Y. 2001).
30. The CFAA was amended in 2001 to define “loss” (which had previously been undefined) as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.” 18 U.S.C. § 1030 (e)(11).
31. See Nexans Wires, 319 F. Supp. 2d at 476 (cost of trips taken to discuss problem of information getting into hands of competitors was not “loss” because the trips were not taken to engage in any type of computer investigation or repair).
32. Id.; Nexans Wires, 319 F. Supp. 2d at 478.
33. See Nexans Wires, 319 F. Supp. 2d at 472, 475 (discussing $5,000 damage requirement as a “jurisdictional threshold”); but see Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238, 252 (S.D.N.Y. 2000)(finding plaintiff entitled to injunctive relief where it established likelihood of suffering at least $5,000 in damages). Return to Top

About the Authors: Attison L. Barnes III is a partner in Wiley Rein & Fielding’s Washington, D.C. office and a member of the firm’s employment and labor, intellectual property, and litigation practices. Among other things, he counsels companies who seek to protect intellectual property rights and trade secrets from former employees and other entities. A member of the District of Columbia and Virginia bars, he received his undergraduate degree from the University of Virginia and a J.D. degree from the T.C. Williams School of Law of the University of Richmond, where he serves on the board of the Law School Association. A longtime VBA volunteer and the recipient of the 1996 Emerson J. Spies Award and the 1999 Fellows Award, he currently serves as vice chair of the VBA’s Civil Litigation Section. Charles C. Lemley is a partner in Wiley Rein & Fielding’s Washington, D.C., office and a member of the firm’s litigation, employment and labor, and health care practices. He provides litigation and counseling solutions to clients on matters related to commercial disputes, labor arbitration and employment discrimination, and has significant experience in highly complex product liability litigation. A member of the District of Columbia and Florida Bars, he received his B.A. degree summa cum laude from the University of North Florida and his J.D. degree magna cum laude from the Georgetown University Law Center. He is an adjunct professor at the George Mason University School of Law, coached the school’s undefeated mock trial team in national competition, and is also a member of the Steering Committee of the District of Columbia Bar’s Litigation Section. Emily J. Christiansen is an associate in Wiley Rein & Fielding’s Washington, D.C. office and a member of the firm’s Employment & Labor and Litigation Practices. She represents and counsels employers on employment and labor issues including compliance with Title VII, the Americans with Disabilities Act, Family and Medical Leave Act, Fair Labor Standards Act, wrongful terminations, disability benefits, equal employment opportunity policy, harassment, state anti-discrimination statutes and non-competition agreements. She received her undergraduate degree from Williams College and her J.D. degree from the University of Chicago Law School, where she was the recipient of the Thomas M. Mulroy Prize for Excellence in Appellate Advocacy and the Llewellyn Cup for Excellence in Brief Writing and Oral Argument, and is a member of the Virginia and District of Columbia bars. Return to Top

Legal Focus/Civil Litigation:
A Jury Trial Waiver Is an Alternative to Alternative Dispute Resolution
Alan D. Wingfield

Much ink is spilled about, and a whole dispute-resolution industry has been built on, the use of arbitration to avoid jury trials. Comparatively little has been said about the use of predispute contractual waivers of jury trials. Indeed, if arbitration is an alternative to conventional court jury trials, a contractual waiver of jury trials might be viewed as an alternative to the alternative.
Because, yes, if you don’t like the idea of a jury resolving your dispute, the inclusion of a well-drafted waiver in your contract can effectively waive a jury trial.1 Indeed, if contract-drafting lawyers are obliged to discuss with their clients alternative dispute resolution provisions such as arbitration, they should also discuss with them the possibility of contractually waiving the right to a jury trial.

What follows are the necessary drudgery of reviewing the law, some example jury trial waiver provisions, and points to consider in weighing a jury trial waiver:

1. The Law.
The Seventh Amendment to the United States Constitution guarantees the right to jury trials in many civil actions in federal court. The Seventh Amendment, however, does not apply to jury trials in state civil cases.2 Thus, the right to a jury trial in state court civil cases depends on state law. Article I, § 11 of the Constitution of Virginia guarantees the right. Hence, a contractual provision waiving the right to a jury trial is subject to potentially differing law depending on whether the dispute ends up in state or federal court.

State and federal law are the same in the following respect: A contractual waiver of a jury trial, if done correctly, is enforceable. Yes, you can include a jury trial waiver in your contract with some realistic hope that it will mean something.3

The Supreme Court of Virginia has upheld the validity of contractual jury trial waivers without articulating any requirements in addition to those necessary for any other valid contract provision. On its face, the law in Virginia seems to be: you signed it, you are stuck with it. You can cite Azalea Drive-In Theatre, Inc. v. Sargoy, 215 Va. 714, 214 S.E.2d 131 (1975) for the proposition.
In comparison, the federal legal landscape is considerably more complex — with conflicting decisions, weighty fact-specific circuit court amplifications, and even the feared multipart test. Ultimately, however, the complexity in form may not amount to anything substantively different from the state law.

The landmark Fourth Circuit cases are Leasing Serv. Corp. v. Crane, 804 F.2d 828 (4th Cir. 1986) and Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d 302 (4th Cir. 2001).

In Leasing Services, the Fourth Circuit held that the fundamental test for validity was whether the signing party’s release of the right to the jury trial was done “knowingly and intentionally” and was “voluntary and informed.” The court went on to look at the circumstances of the parties and the contract, with particular emphasis on the business acumen of the waiving party and whether the negotiation history tending to show that the waiving party had actual knowledge of the term. At least one federal district court has interpreted Leasing Services as imposing a four-part test:

(1) placement of the waiver provision in the contract (conspicuousness);
(2) bargaining position of the parties;
(3) business experience of the parties; and
(4) opportunity to negotiate, or at least object to, the provisions of the contract.4

Reading these Leasing Services factors, you get a sense that a jury trial waiver buried in the fine print of a form contract being proffered by a sophisticated business to an unsuspecting consumer should not be enforced.

A bit of strangeness developed since 1986 when Leasing Services was decided. It has become considerably easier to write an enforceable arbitration clause than a jury trial waiver under the Leasing Services framework. By 2000, the United States Supreme Court was holding in Green Tree Fin. Corp.-Alabama v. Randolph that arbitration clause buried in a form contract could be enforced against a consumer absent a showing that the expenses of arbitration would effectively preclude the consumer from pursuing a remedy.5 The relative bargaining power and the business experience of the parties were nowhere to be seen. So long as the individual could obtain “a day in court” through arbitration, arbitration seems perfectly fine.

A pause is warranted to consider whether the difference between Green Tree’s permissive view of arbitration clauses and Leasing Services’ more restrictive view of jury trial waivers makes any sense. With arbitration, a consumer would be giving up not only the right to a jury, but also the right to (a) a judge; (b) appellate review; (c) at least some discovery rights; and (d) arguably, even the right to have the case decided based on the law and the terms of the contract; while (e) having to face substantial case-initiation and arbitrator fees (so long as they are not so large as to bar a remedy altogether). In other words, the law appeared to make it easier to give up more rights than less.

In 2001, the Fourth Circuit revisited jury trial standards in Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d 302 (4th Cir. 2001). Some very sharp lawyers representing a consumer who had signed an arbitration agreement attempted to use the more demanding standards for jury trial waivers to defeat an arbitration agreement and jury trial waiver. The Fourth Circuit, without so much as citing Leasing Services, held that the arbitration agreement was presumptively enforceable, and that the jury trial waiver was enforceable because the waiver was conspicuous and showed on its face that it was made voluntarily and informally. The court said that the waiving parties should have read the contract, and whether they actually read it was “irrelevant.” The Sydnor court said nothing about bargaining power. It said nothing about relative sophistication of the parties. It was as if Leasing Services never existed.

In the wake of Sydnor, a very good argument can be made that if a jury trial waiver is presented in sufficiently conspicuous manner in the contract, then it is enforceable in federal court. It is also very reasonable to view Sydnor’s cold shoulder of Leasing Services as meaning that the Leasing Services’ holding should be limited to its facts — i.e., that Leasing Services is effectively a dead letter. Like the law of the Supreme Court of Virginia, the law in federal court now seems to be: you signed it, you are stuck with it. And you can cite Sydnor for that proposition.

2. Drafting.
Drafting a jury trial waiver requires two major considerations: how to make the provision “conspicuous” in compliance with the federal cases, and whether to draft it broadly or narrowly.
On the first point, the case law suggests that a court will find a provision to be conspicuous if (a) it is formatted into its own paragraph, to avoid burying the provision in a dense block of text; (b) appears in a reasonable font size; (c) has a good title, such as “jury trial waiver”; and (d) appears in a typeface that distinguishes it from surrounding text by making using one or more of all caps, larger font size or boldface.6

One common drafting problem with jury trial waivers is that they are often drafted narrowly to cover disputes “arising under this Agreement.” In the modern wonderful world of contract litigation, the breach of contract claim in a dispute is oftentimes only the starting point in a complaint drafting exercise that takes the reader on a tour of the law of business torts. Disputes arising out of a common set of facts could include all of a breach of contract claim, a tortious interference claim, a common-law conspiracy claim, a business conspiracy claim, and a negligence claim. These claims might not “arise under” the contract, even if related factually to the transaction effected by the contract. A properly drafted jury trial waiver would include, at a minimum, any disputes “related to” or “in connection with” the agreement to capture not only breach of contract claims but any cause of action based on the underlying transaction.

Here are a couple of broad-form examples:

“JURY TRIAL WAIVER: THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER THEY OR THEIR HEIRS, EXECUTORS, ADMINISTRATORS, PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY AGREEMENTS CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE PARTIES RELATED HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE EXECUTION OF THIS AGREEMENT BY THE PARTIES.”

“JURY TRIAL WAIVER: BOTH PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED HEREON OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.”7

3. Waiver Pros and Cons.
Here is a start on a list of considerations that might be discussed with a client in deciding to seek a waiver:

1. A “jury of your peers” may be skeptics if you are a car dealer, high-interest lender, home improvement outfit, or just about any other business that deals regularly with the general public. On the other hand, an individual dealing with an institution generally wants a jury.

2. Conventional wisdom indicates that if you anticipate being on the “defendant” end of a lawsuit you don’t want a jury, but if you anticipate being the “plaintiff” you want a jury. An exception to this rule are highly-charged parties, such as your car dealer, high-interest lender, etc. They want to avoid juries whether plaintiff or defendant.

3. A non-jury trial is often more quickly scheduled, less expensive, and less traumatic for witnesses than a jury trial. In some areas of the country, arbitration might be faster than even a judge trial; in Virginia, however, arbitration probably does not have a speed advantage over judge trials.

4. Arbitration can involve fairly substantial up-front fees, as well as substantial arbitrator fees. A judge trial involves a fairly nominal up front filing fee.

5. Some believe that a judge trial or arbitration is more predictable in outcome than a jury trial. Some don’t. Take your pick.

6. Arbitration involves decision makers of varying levels of experience and qualifications; a judge trial involves decision makers of varying levels of experience and qualifications, but you will get a person who is a full-time adjudicator likely with extensive experience.

7. Highly articulated contracts containing arbitration clauses present a contradiction. The parties spent time laying down very specific rules — and then turn them over to an arbitrator who has no legal obligation to obey the terms of the contract.

8. The right to judicial review of arbitration is very limited; a judge trial result is subject to essentially the same right of appeal as involved in a jury trial.

9. Many painful aspects of a jury trial are present in a judge trial, including discovery and motions practices. Arbitration, while moving toward replicating these burdens, can be somewhat streamlined in these areas. Some believe the overall costs of arbitration are lower than a judge trial. Many disagree. Again, take your pick. Return to Top

NOTES
1. At least in Virginia you can. In other states, for example Georgia, predispute jury trial waivers may be ineffective.
2. Seventh amendment does not apply to state courts. See Walker v. Sauvinet, 92 U.S. 90, 92 (1875); Melancon v. McKeithen, 345 F. Supp. 1025, 1045 (E.D. La.), aff’d sub nom. Hill v. McKeithen, 409 U.S. 943 (1972) (per curiam); Davis v. Edwards, 409 U.S. 1098 (1973) (per curiam) (affirmation of Melancon court that held that the Walker result would be reaffirmed by the Supreme Court today).
3. Federal cases holding that the right to a jury trial may be waived include: Kearney v. Case, 79 U.S. (12 Wall.) 275, 281 (1870); Bank of Columbia v. Okely, 17 U.S. (4 Wheat.) 235, 244 (1819). The leading state case is Azalea Drive-In Theatre, Inc. v. Sargoy, 214 S.E.2d 131 (Va. 1975).
4. Hitachi Credit Am. Corp. v. Signet Bank, 1997 U.S. Dist. LEXIS 21499 * 29 (E.D. Va. 1997) (Judge Payne).
5. 531 U.S. 79, 121 S. Ct. 513, 522, 148 L. Ed. 2d 373 (2000).
6. These drafting types are based on factors relied upon in Hitachi Credit Am. Corp., 1997 U.S. Dist. LEXIS 21499 at * 29-30 to uphold a jury trial waiver.
7. This form is based on the term upheld in Leasing Services. Return to Top

About the Author: Alan Wingfield is a partner with Troutman Sanders LLP in Richmond. His practice is exclusively in business and commercial litigation, with special emphasis on intellectual property and consumer financial services litigation. He is a graduate of the University of Missouri and Duke University School of Law and has been named to Virginia Business magazine’s “Legal Elite” in the area of intellectual property law (2002-04). Return to Top

ABA News Brief:
Grey will focus on jury issues during ABA presidency

Robert J. Grey Jr. of Richmond, the new president of the American Bar Association, has announced that he will devote his term to creating better administration of justice through better juries via the American Jury Initiative. The Initiative has organized two groups to accomplish that goal — the American Jury Project, which is working to produce a single set of modern jury standards the ABA can propose as a model, and a blue-ribbon Commission on the American Jury that will be working on outreach to the public, the profession and the courts.

The reform effort comes as a new public opinion poll, released by the ABA, reveals that Americans have a profound belief and trust in the jury system, and disproves the popular notion that Americans consider jury duty to be a burden to be avoided.

Three-quarters of those polled rejected the assertion that jury duty is a burden to be avoided. Instead, the poll revealed that Americans strongly believe that jury service is important even if it seems inconvenient — a belief held even more strongly by those who have previously been called to jury duty. Even beyond “important,” 58 percent consider jury duty a privilege, and a responsibility they look forward to fulfilling.

Moreover, a large majority of Americans — 75 percent — would want a jury, rather than a judge, to decide their case if they were ever a participant in a trial.

Grey is also working to review, unify and update ABA programs to increase diversity in the legal profession, to advance the ABA’s international rule of law efforts, and to safeguard the profession’s independence.

Grey, a VBA member, is a partner in the law firm of Hunton & Williams LLP.

VBA Young Lawyers Division News

Central Va. Pro Bono Hotline seeks volunteers; training set for Oct. 26
The VBA/YLD Central Virginia Pro Bono Hotline is looking for new volunteers of all ages and stages of legal experience.

The Hotline, which has been recognized by the American Bar Association for outstanding public service, helps the Central Virginia Legal Aid Society (CVLAS) handle the thousands of requests for legal assistance that it receives each year. Hotline volunteers return phone calls to pre-screened clients with specific legal problems during scheduled hotline hours.

For a typical attorney with a hectic schedule, volunteering for the Hotline is a wonderful and feasible way to incorporate pro bono work into a legal career.

Volunteers receive three hours of CLE-approved training in housing, domestic, consumer and employment law; commit three to six hours of pro bono service each calendar quarter; gain experience in counseling clients on a wide variety of legal matters; and provide much-needed legal assistance to those who otherwise could not afford it.

A training session for volunteers will be held from 5:30 to 8:45 p.m. on Tuesday, October 26, at the Richmond office of Hunton & Williams (Riverfront Plaza, East Tower, 20th Floor). Please RSVP for the training session to Coby Beck or Sean Beard. Dinner will be served to participants. Return to Top

National Moot Court Competition, Region IV
Every year, the Young Lawyers Committee of the Association of the Bar of the City of New York and the American College of Trial Lawyers sponsor the National Moot Court Competition in New York, N.Y. In November, prior to the national rounds, regional rounds of argument are held throughout the United States.

The VBA Young Lawyers Division sponsors the regional round for Region IV – consisting of teams from North Carolina, Virginia, West Virginia, and Kentucky. All of the entrants compete on Friday in the preliminary rounds, arguing as Petitioner in one round and Respondent in a second round. On Saturday, the leading teams move to the quarter- and semifinals until two teams compete in the final round. Winning and second-place teams become eligible to enter the national rounds.

Members of the Virginia bar judge the preliminary rounds. Virginia Fellows of the American College of Trial Lawyers judge the quarter- and semifinal rounds. Federal judges and state Supreme Court justices judge the final round and participate in the giving of awards.

This year’s competition is being held November 19-20 at the federal courthouse in Richmond. As always, volunteers from the bar are needed to judge the preliminary rounds on Friday, as well as Fellows to judge the quarter- and semifinal rounds on Saturday.

If you are interested, please contact Monica McCarroll at (804) 783-6444 or M. Eve Campbell at (804) 783-6487. Return to Top

The Richmond Lunch Buddy Program
The Richmond Lunch Buddy Program is gearing up for the 2004-05 school year. Volunteers are needed to serve as lunch buddies for 3rd- and 4th-grade students at Whitcomb Elementary School in the city of Richmond. Volunteers commit to having lunch with their buddy at least once a month during the school year (twice preferred). The program is extremely flexible; volunteers set their own schedules and can visit the school anytime during the month. The school is approximately 10 minutes east of downtown Richmond, and the lunch period is only 30 minutes, so it is not a huge time commitment.  

The Lunch Buddy Program has been a tremendous success and great fun for the students and volunteers. Last year the program had 45 volunteers and was able to provide a lunch buddy for every 3rd-grade student. This year, the program’s goal is to provide a lunch buddy for every 3rd- and 4th-grade student. For those who volunteered last year, every effort will be made to pair you with the same student as last year. The year will kick off with a short orientation and pizza party with the lunch buddies in mid-October.

If you are interested in finding out more about this program or are willing to volunteer, please contact Caroline Browder, (804) 783-6462; Andy Sherrod, (804) 697-1231; or Rudene Mercer Bascomb, (804) 788-7363. Return to Top

VBA Community Service Program: Redefining Superstars
Alfred M. Randolph Jr.

The VBA’s Community Service Program was founded to encourage Virginia lawyers to engage in community service and to recognize lawyers who devote a certain amount of time to such service. The efforts of our Community Service Program Council in the first half of the inaugural year of our Program have been focused principally upon encouraging lawyers to sign up to become 2004 VBA Community Servants and/or VBA Pro Bono Servants.

However, an important message should be gleaned from the work of those who designed and are promoting this Program. While extraordinary commitments of time and resources by those who are positioned to make such commitments certainly merit universal acclaim, it is the quiet, persistent, albeit more modest, devotion of time and resources by those engaged in the delicate balancing act of family, career and community that is just as worthy of recognition and praise.

When the Community Service Subgroup of the VBA’s Strategic Group on New Dimensions of Professionalism was charged in 2001 with designing a program to promote community service and pro bono publico legal work, we nearly fell prey to the temptation to define noteworthy commitment to community service and pro bono publico legal work as commitments of extraordinary numbers of hours to this work. In addition, I even suggested to our later-formed Community Service Program Council that we bestow an annual award upon a Virginia lawyer who had demonstrated the most extraordinary commitment of hours to community service and pro bono publico legal work in a given year. Thankfully, my fellow subgroup and Council members quickly grounded those ideas and focused our work on the fact that community service and pro bono publico legal work by lawyers, even at modest levels, are worthy of our praise and, in many instances, truly constitute commitments of superstar proportions.

My own understanding of and appreciation for this perspective has come slowly but has been forged by my own, personal experience. My wife and I now have three young boys (9, 4 and 2), I have a busy and demanding law practice, and, yes, I have made many commitments to community service work. Each time we added a child to our family, the number of hours in the day seemed to shrink. Juggling family, career and community service became increasingly difficult. The bottom line of this growth curve has been my gradual development of the realization that it’s okay to say “no” to requests to give of time or resources to community service which unduly infringe upon other priorities in our lives. In other words, the juggling act in which we’re all engaged is truly a remarkable feat, particularly when all the balls happen to stay in the air for a sustained period of time! In short, don’t measure your work by the magnitude of your commitment, but rather by its quality. Engage in community service work, but avoid over-commitment that prevents you from meeting previously made commitments.

This summer, I attended the Pro Bono Awards Luncheon at the Virginia State Bar Annual Meeting in Virginia Beach and sat next to an attorney from another part of the state who had returned to law school after rearing several children. She had opened her own law practice a few years ago and had developed a thriving practice in domestic relations. As we talked during lunch, she shared with me her schedule and that of her husband. She typically arrives at the office at 8 a.m. after driving her granddaughter (for whom she cares) to school, she works until 6 p.m., returns home, prepares dinner for her family, returns to the office at 8 p.m., and works until midnight. Her husband rises at 4 a.m., commutes two hours to work, returns home at 4 p.m. to pick up his granddaughter from school and care for her. He goes to sleep at 8 p.m. In sharing this with me, she also shared with me her commitment to pro bono publico legal work. Albeit modest in magnitude, she somehow fits pro bono publico legal work into her amazing schedule. To me, even though her commitment of hours is modest in magnitude, she is a pro bono “superstar” in every sense of the word, clearly worthy of our recognition and praise.

It was examples like this which led our subgroup to design a Community Service Program which established relatively modest hour thresholds (50 hours) for recognition. Some will dedicate many more than 50 hours, but we recognized that many who dedicate 50 are making tremendous sacrifices to do so.

The point is that the practice of law is a jealous mistress, as is raising and providing for a family. But Virginia lawyers have always found a way to give something back while somehow “keeping all the balls in the air.” Our Council’s message is simple; if we all do our part, even if modest in magnitude, we can accomplish some remarkable things.

So be secure in knowing that a commitment of 50 hours a year to community service and/or pro bono publico legal work for many constitutes a superstar effort in and of itself, worthy of recognition. And that’s precisely what your Community Service Program is designed to do, even if your hourly commitment is modest in magnitude, because even your modest commitment is remarkable in its own right.

There is still time to become a VBA Community Servant or Pro Bono Servant! Forms and details are available online at www.vba.org. Return to Top

Gant Redmon, chair of the VBA Law Practice Management Division and member of the VBA Board of Governors recently received the Alexandria Bar Association’s Don Mela Community Service/Pro Bono Award, which is presented to an attorney in recognition of outstanding community service and/or pro bono work. Redmon was chosen for his many community service activities, including VBA Community Service Program membership, and wore his yellow Community Service Program button to the award presentation. A past president of the Alexandria Rotary Club and past chair of the Alexandria Chamber of Commerce, he was named Alexandria’s Business Leader of the Year for 1995 and chaired a task force which developed a vision for Alexandria in the 21st century. He was special counsel to the Presidential Inaugural Committee in 1981, 1985 and 1989. Two international geological congresses convened in the United States selected him as their general counsel, as did the Desert Storm National Victory Celebration in 1991. An active alumnus of Beta Theta Pi, he currently serves as the fraternity’s vice president. is a past-president of its Washington area alumni association and was active in securing housing for Beta Theta Pi’s Maryland chapter. He chaired the Sigma Rho (University of Illinois chapter) Centennial Fund, a capital campaign to fund chapter house restoration, and has been a facilitator at the Fraternity’s Institute for Men of Principle.Return to Top

VBA Board of Governors member Greg St. Ours of Harrisonburg and Past President Jeanne Franklin of Alexandria (right) were among the volunteers who staffed a Community Service Program booth/recruitment center at the Virginia State Bar Annual Meeting in Virginia Beach this summer. A number of VBA/CSP leaders and volunteers have been out and about at various statewide and local bar events this year, promoting the Community Service Program and encouraging lawyers to sign up, and will continue to do so through the end of this year. Attorneys who complete their commitments will be recognized publicly in early 2005. Return to Top

Across the Commonwealth

The Virginia Bar Association’s much-honored Young Lawyers Division has continued its winning ways. At the American Bar Association Annual Meeting in Atlanta last month, it was announced that the VBA/YLD had received several honors in Division IC of the ABA Young Lawyers Division’s annual Awards of Achievement Competition covering 2003-04.
The VBA/YLD received a first place in the Comprehensive category for its overall programs and activities, a second place in service to the public for its Advance Medical Directives Project, chaired by Molly Shuttleworth Evans, and special recognition for service to the bar for its Professionalism and Civility in Practice seminar, chaired by Daniel Ortiz and presented in Fairfax in the fall of 2003.
Matt Cheek of Williams Mullen, a VBA/YLD Executive Committee member, compiled the extensively documented entries for submission in the competition with assistance from other VBA young lawyer leaders and Association staff. King Tower, also of Williams Mullen, is the current chair of the VBA Young Lawyers Division, while Steve Otero of Troutman Sanders LLP headed the VBA/YLD in 2003. Return to Top

While Virginians follow the 2004 Presidential and Congressional campaigns in preparation for Election Day, it should be remembered that October 4 is the deadline for registering to vote in the November 2 elections. Two proposed constitutional amendments, on apportionment and succession to the office of Governor, will also be on the ballot this year. For details and other voter information, see the State Board of Elections website at www.sbe.state.va.us. Return to Top

Virginia’s courts system will experience considerable change in early 2005, when three major figures plan to retire from the Supreme Court and the Court of Appeals of Virginia.
Robert N. Baldwin, executive secretary of the Supreme Court of Virginia, will end three decades of service to the court when he retires March 30. A former national president of the Conference of Court Administrators, he received the 1999 Warren E. Burger Award from the National Center for State Courts in recognition of his contributions to the field of court administration.
Also at the Supreme Court, Director of Judicial Planning Kathy L. Mays, who has presented memorable and informative programs on challenges facing the court system at VBA meetings, will step down in early 2005 as well.
Around the corner at the Court of Appeals, Judge Rosemarie Annunziata of Fairfax has announced her retirement, effective January 1, to pursue other interests. She is a former VBA Executive Committee (now Board of Governors) member. Return to Top

The Virginia Alternative Dispute Resolution Joint Committee has been active throughout the Commonwealth in 2004. In January 2004, the Committee had a business meeting, followed by a reception, at the VBA Annual Meeting in Williamsburg. The next day, the Committee sponsored a CLE program, “Arbitration in Virginia – Past, Present and Future.” Both events were well-attended and generated a great deal of enthusiasm. In March, the Council met to discuss plans for the upcoming year. The next event was in June at the Virginia State Bar Annual Meeting at Virginia Beach. Following a networking refreshment break sponsored by The McCammon Group, there was a CLE seminar entitled “Advance Mediation II/Use of the Caucus.” At the conclusion of the program, The Honorable Leroy Hassell, chief justice of the Supreme Court of Virginia, presented “The Founders of ADR in Virginia” award to Barbara Hulburt, Larry Hoover, Alan Rudlin, Frank Morrison and Mark Rubin. Immediately following the presentation, there was a business meeting open to all Virginia ADR Joint Committee members. The Advance Mediation II CLE was offered again at the VBA Summer Meeting, on July 16 at The Homestead. This month, the Committee is sponsoring, jointly with the Virginia Mediation Network, a CLE entitled “Advocacy in Mediation,”an all-day program offered at four different locations around the state. The Council will meet again on October 19 to discuss plans for 2005and is already recruiting people to assist with planning activities in honor of March as Mediation Month for 2005. “We encourage those who are interested to enroll in the Joint Committee and to become involved,” said Karen Keyes, chair of the Joint Committee. Membership is $25 per person per year and includes a number of benefits, such as a newsletter, opportunities for continuing legal education and professional networking. Information and a registration form are available on the Joint Committee’s page at www.vba.org/comm/adrjtcom.htm. Return to Top

The 12th Annual VBA Capital Defense Workshop will be held October 28-29 at the Richmond Marriott. The workshop is sponsored by the VBA Criminal Law Section and is financially assisted by the Virginia Law Foundation.
Attorneys representing defendants charged with capital murder or sentenced to death must attend at least six hours of specialized training in capital litigation and an additional four hours of forensic evidence training as set forth in §19.2-163.8(A) of the Virginia Code. Attendance at the entire Workshop will satisfy the training requirement and provide an opportunity to hear leaders in the field of capital defense.
Forensics training will focus on DNA evidence and forensic medicine. Other session topics include current issues in capital defense, future danger, obtaining out-of-jurisdiction witnesses, unifying the guilt and penalty phases, counseling the client to accept a life sentence, and the ethical obligation to investigate mitigation.
Ten hours of MCLE credit (one ethics) is anticipated.
This program is provided for attorneys seeking qualification for capital defense and willing to accept appointment in such cases. A nominal charge of $30 is required to cover the cost of lunch and continental breakfast. Pre-registration is required to ensure admission; walk-ins may not be guaranteed admission, as the workshop usually attracts a capacity crowd.
More information and a printable version of the registration brochure may be found on the VBA website at www.vba.org; a link to workshop information is available on the home page. Return to Top

ABA President Robert Grey, UR Law School Dean Rodney Smolla, former U.S. Labor Department lawyer Tammy D. McCutchen and ethics authority Tom Spahn will be among the featured speakers when The Virginia Bar Association’s Corporate Counsel Section hosts its Sixth Annual Fall Forum on October 18 at the Richmond Omni.
Grey will deliver the keynote address. Smolla’s topic will be “Corporate Liability for Corporate Speech,” and McCutchen’s subject will be “Overtime: Are You in Compliance?” Spahn will lead a two-hour interactive ethics presentation tailored for corporate counsel, focusing on “new and dangerous trends.”
The day-long conference will also feature a session on recent legislative developments impacting the business community, with comments from David Shuford, vice president of Dominion Energy, Virginia Manufacturers Association President Brett Vassey, and Steve Haner, vice president for public policy of the Virginia Chamber of Commerce.
Heidi W. Abbott of Hunton & Williams LLP in Richmond chairs the VBA Corporate Counsel Section.
The Fall Forum will offer six CLE credits (2 Ethics) to attendees.The conference fee includes continental breakfast and lunch for each participant.
Complete schedule and registration information has been mailed to VBA Corporate Counsel Section members and is posted on the Section’s activities page at www.vba.org. Non-VBA members are invited to attend at a higher registration cost. Return to Top

The VBA Taxation Section will hold its 15th Annual Virginia Tax Practitioners’ Roundtable on October 29 at Farmington in Charlottesville.
Continuing legal education credit approval is pending for the half-day program. Subjects for discussion include recent developments in Virginia taxation, revising the tax appeals process, legislative and administrative initiatives. Participants are encouraged to bring concerns, questions, tips and comments to the roundtable for sharing and learning with colleagues.
The Taxation Section will hold a buffet luncheon for roundtable participants and a business meeting following the morning programs.
Craig D. Bell of McGuireWoods LLP in Richmond chairs the VBA Taxation Section.
Registration is limited to members of the VBA Taxation Section and is available on a first-come, first-served basis. Full registration information has been mailed to section members and is available on the section’s webpage at www.vba.org.

The 34th Annual VBA Labor Relations and Employment Law Conference will be held September 30-October 2 at the Hyatt Regency Reston.
The conference will focus on a number of current issues in labor and employment law, such as high-tech employee monitoring and individual privacy rights, the attorney’s role in hostile environment investigations, negligent hiring and retention, protecting trade secrets, spoliation of evidence, aspects of the Fair Labor Standards Act and Sarbanes-Oxley legislation, practice with the Office of Federal Contract Compliance Programs, and the new union approach to organizing.
“The Ethical Implications of Improper Conduct in Discovery and at Trial” will be an interactive clinical-video presentation with commentary by Hon. Jane Marum Roush of the Fairfax Circuit Court, W. David Harless of Christian & Barton LLP, and James P. Naughton of Hunton & Williams LLP in Norfolk.
Guest speakers will include Joseph J. DuBray Jr., national director of policy, planning and program development for the Office of Federal Contract Compliance Programs, U.S. Department of Labor; Richard Bensinger, former director of organizing for the AFL-CIO and founder of The Organizing Institute; and James A. Batson of Liddle & Robinson LLP in New York City.
A number of VBA Labor Relations and Employment Law Section leaders and members, including VBA President-elect Jim Meath, will also lead workshops and participate in panel discussions.
Robert J. Barry of Kaufman & Canoles PC in Norfolk serves as chair of the VBA Labor Relations and Employment Law Section.
More details, including registration information and a full schedule of events, are online. Return to Top

News in Brief

Lynn Brackenridge, MS, CFRE, is the new executive director of the John Marshall Foundation. Members of the foundation’s board of directors are John S. Barr, president; J. Edward Betts, vice president; Elizabeth S. Kostelny, secretary; C.B. Arrington Jr., treasurer; and directors Edward C. Campbell Jr., Hon. Harry L. Carrico, Dr. David C. Collins, Allen C. Goolsby, Ralph B. Higgins, and Hon. Donald W. Lemons.
Lynn F. Jacob, a partner in the labor and employment practice at Williams Mullen, has been elected as a fellow of the College of Labor and Employment Lawyers. This honor is the highest recognition by one’s colleagues of sustained outstanding performance in the profession. Jacob was inducted on August 8 at the Annual Meeting of the American Bar Association in Atlanta.
Robert D. Seabolt, managing partner of Troutman Sanders LLP and a member of the Executive Committee of the VBA Law Practice Management Division, became chairman of the board of Leadership Metro Richmond in July. LMR seeks to educate, energize and connect emerging and established leaders in the Richmond area.
Susan C. Armstrong, a VBA member and partner at Troutman Sanders LLP in Richmond, is the new president-elect of the National Association of Railroad Trial Counsel. Return to Top

Classifieds

CONSULTING SERVICES
Legal Nurse Consultant — nationally certified. 20 years broad-based nursing experience. Specialize in medical-surgical and gero issues. Personal injury or medical malpractice? No problem! Will travel if needed. Corrick & Associates. (703) 328-1055. kcorrickrn@cox.net.

POSITIONS AVAILABLE
The Northern Virginia Criminal Justice Academy is seeking a legal instructor. This position is responsible for instructing police officer and deputy sheriff trainees/students in both the Basic Schools and In-Service training programs; preparing lesson plans; preparing test questions; conducting research and preparing publications. For a more complete description and requirements please visit www.nycja.org.

The VBA News Journal offers classified advertising. Categories available are as follows: positions available, positions wanted, books and software, office equipment/furnishings, office space, experts, consulting services, business services, vacation rentals, and educational opportunities. Rates are $1 per word for VBA members and $1.50 per word for non-members, with a $35 minimum, payable at the time of submission. Ad costs must be paid in advance. The VBA News Journal reserves the right to review all ad copy before publication and to reject material deemed unsuitable. Professional announcements may be printed; the cost per announcement is $15 and text may be edited for style and space limitations. Deadlines are one month in advance of the date of publication (August 1 for September, etc.). Information is available online, or call for details at (804) 644-0041.

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