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LITIGATION NEWS . ~PUBLISHEDBY THE11~IGATION SECTION OF THE VIRGINIA STATE BAR FOR ITS MEMBERS.

VOL'PME VII NVMBER 1 'iVINTER 2000

. 1.Welve Tempting (But Improper)

. Closing Arguments by R. Lee Livingston

Closing argument gives a trial lawyer the

. '. opportunity to shine. He has more leeway than at any other stage in a trial to persuade

the jury and help his client prevail. We have all heard the phrase, "win it in closing," and most of us would say we have seen a case that was won in closing.!

. Trials in movies and television shows often include all of the closing argument and smaller excerpts of opening statements or examination of witnesses. Because the trial taimot be shown in its entirety, scriptwriters choose that portion which has the most theatrical appeal. Only in closing can a trial lawyer present a clear, coherent story. In closing, she . is not limited by what the evidence will be, as she is in opening statement, and' she is not subject to the whims and unpredictability of witnesses who may not always say what she expects during direct and cross­examination.

These characteristics of closing argume'nt may lead even the most scrupulous trial. lawyer into temp- .• tation. He may stray into the realm· of improper' argument under the belief that "anything goes" in cl0Sing; He also. knows his .oppop.el1t. may .be reluc­tanttoobject during closing argument l?e<:ause jurors generally frown on such interruptions, as do some judges. An objection that is overruled.in clos­ing may be more damaging to the party objecting than an objection during another part of the trial. Moreover, we all want to win, and closing argument is our last chance to persuade jurors to decide tlje case in our client's favor.

Latitude is not license. The scope of closing argument is broad, but not unlimited. While tactical' concerns may limit objections even to arguments that are plainly improper, a trial lawyer should be pre-

R. Lee Livingston is"a partner with the firm Tremblay & Smith, L.L.P. in CharlotteSTJille, Virginia ..

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pared to make and argue objections during closing argument that, in her judgment, could jeopardize her client's case.

This article will outline twelve improper argu­ments, providing authority to win objections on these points. First, however, a brief summary of the law governing closing argument follows.

Procedural Law Governing Closing Argwnent Virginia Code § 8.01-379 preserves counsel's right to make argument before a jury. The right to make a closing argument exists in non-jury and jury cases. Fish v. Commonwealth, 208 Va. 761, 160 S.E. 2d 576 (1968). Any party in a civil action may inform the jury of the amount of damages sought by the plain­tiffin the opening statement or closing argument or both. Virginia Code § 8.01-379.1. The plaintiff may request an amount that is' less than the ad damnum in the motion for judgement. Id.

Generally, courts have broad discretion to con­trol the length of closing argument and the number

Closing- cont'd on page 6

Table of Contents

. TwelveTetnpting (But Improper) Closing Arguments ....... ; ............ 1

by R.. Lee Li'Pingston

Letter from the Chair .... , .............. 2

The Multiple Claimants Litigation Act: A Powerful Weapon in the Handling of Mass Torts .. : ...... " ....... '. . . . . . . ; . 3

by W. Edgar Spi'Pey & Kristan B. Burch

View from the Bench: Evidence .......... 8 . byTbe Honorable J Michael Gamble

Ethics af a Glance: Hypothetical--,-Adversary's E-mail ........ 9

!byTbomas E. Spahn

Recent Law Review Articles ............ 11 .. Litigation Section Board of Governors .... 14

Young Lawyers Comffiittee .............. 15

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LITIGATION NEWS 'iVINTER 2000

Letter from the Chair .

T.,. '. hings were different twenty years agQ .. Yes,

yes, all the judges were men, all the part­ners were men, the .only WQman inside the

rail in the CQurtrQo.m was the. CQurt repQrter and the .only role mQdels fQr yQung WQmen lawyers Were men. But thank GQd fQr those men whQ tQQk the time tQ explain what they were dQing and why they were dQing it tQ ALL assQciates. In my particular case, thank GQd fQr Jack Kay.

In the late '70s Jack had the prQverbial "full plate." AlmQst always wQrking six and SQme­times seven days a week, he was, the CQnsummate professiQnal. He was as diligent andthQrough a litigatQr as any I have knQwn. He gave every case 110% and ALWAYS tQQk the high rQad in dealing with Qther'lawyers and the CQurts.But if he 'was anything, Jack Kay was definitely

By 1979, lawyers at my firm were required tQ aCCQunt fQr everyone-tenth .of an hQur devoted tQ a client's file. The time recQrded was reviewed-alQng with the quality .of the wQrk, the resuJt obtained, the value received by the client ... in determining the amQunt to charge the client. Back then twQ .or mQre lawyers wQrked .on mQst aspects QflitigatiQn, arid a judgment call determined whether the client had received sufficient value frQm the "bag carrier's" presence tQ be charged, .or whether the statement WQuld be reduced tQ reflect lawyer training.

TQday's billing systemdQes nQt have much roQm fQr judgment. Some firms charge lQwer hQurly rates but have their attQrneys dQ their .own secretarial/ paralegal/administrative wQrk, while

.others charge higher hQurly rates "Old SchQQl. "H:e prQbably thQught wQmenwQuld have more fulfilling and rewarding lives with-and be mQre prQfi­cient at-careers in homemaking and child rearing.

Old SchQQI .or nQt, Jagk Kay was; abQve all, hQnest and fair and-in his .own way-patient. Thu~,*henw(#n~-nlawyer:sytere

Has the pressure of billable hours and

profitability squeezed out any room for training young

litigators?

and dQ nQt charge lawyer rates fQr nQn-Iawyer work. But all firms try nQt tQ write .off time fQr any­thing-including .lawyer training. I am aware .of nQ firm that enCQurages its lawyers tQ bill fewer hQurs than the accepted nQrm, and I have nQt heard 6f any spec­tacular bQnuses being paid fQr '~mentQring"'yQung lawy~rs. hiteci,Jack KaYtrainedandev~~~ ~

atedus the 'same as .out male tOilnterparts-hQn-. estlyand fairly,~ The honest part QfhilTI . SQmetimes hurt (as in "this brief is terrible; it i:teeds tQbe completely reorganized")~ The; :{fatient part of him was, shallwe;rsay,en~rely :masquel1aded . by his . infkct:;,QIl,' facial. expressiQns .• and all .other Qutward-man1fe#~tioris.untU ~ .•.. ' 'theprQject was' finished. At that PQiqt, however,: he became more like a teachC:N." than a seniQr . '.Hartner. He WentQ¥.er the e~rly, drafts, of priefs· and PQinted .out both the good arid the bad aspects; he critiqued witness ex~inatiQns and arguments tQ the cQurt; he explained what· he thQught wQrked as planned before the jury and . ,what did nQt seem tQ CQme across.

But sadly,fQr the mQst part,all .of that was. 'BEFORE the advent .of the current system .of billing clients fQr legal services. (Plaintiff's laWYersIilay skip the. ne:l(t twoparagraphs)~<

SQ-.. when, h.ow and by whQm are yQung assQciates being 'trained? Or dQes the.questiQn assume tQQ much? Have ass.oCiatestarting salaries gotten so high that law firm eCQrronlics -demand i.minediate iimmersiortinto· the waters .of

·trialWQrk ~d a sM-or-sWim 'appr~ach tQ sui"­'vival?" Has the pre~sute .of billable hours and

profita.bility squeezed .out arty roQm fQr trailling "'ypuri;g litigators? TQday's assQciate$ seem . less willfug t.o sacrifice a well-rounded eXistence,for a

. successful legal career (they seem tQ think they . shQuld spend cQnsiderable time with their'YQung children . .on weekends and evenings), and there

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are still .only 24 hQurs in the day. As law firms ~e being managed mQre and mQre like business­es, are we becQming less and less cQncerned with the basic tenets .of professiQnalism?

Chair - contJd on page 12 .

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'WINTER 2000 LITIGATION NEWS

The Multiple Claimants Litigation Act: A

Powerful Weapon in the Handling of Mass Torts

by W Edgar Spivey andKristan B. Burch

The Multiple Claimant Litigation Act (the "Act") establishes procedural tools thai can be utilized in mass. tort cases, but few parties

have taken advantage of the Act's consolidation and transfer provisions since its enactment by the Virginia legislature in 1995. Attorneys not only should be aware of the acti"ons permitted under the Act but also should consider the potential benefits that consolida­tion and transfer could provide for certain types of complex tort litigation.

Legislative History In the summer of 1992, the Committee of Mass Claims Litigation (the "Committee") was formed, and it was assigned the task of investigating how cir~ cuit courts should handle potential mass tort cases. The creation of this Committee carne on the heels of the proposal of and the enactment by the General Assembly of specific procedures for handling asbestOs cases.! Realizing that the courts would b~ faced with more' mass tor:t litigation in the future, the Comniittee set out to develop procedural rules for other types of multiple claimant litigation.

In October 1993, the Committee prepared a report that was presented at the Boyd-Graves Conference. Iri its report, ilieCoriunittee provided the following examples of the types of situations· that the courts rriayhave 'to face in the future: (l}conta-

. mination of groundwater by petroleum tank farm, (2) 'claims' against a company that sold,for thirty years, surtscreencontaining an agent which enhanced . the detrimental effects of ultraviolet radiation, and (3) claims against the . Commissioner of Revenue . after the method through which revenue was calcu­lated for purposes of business license taxes was .' changed.2 The Committee did not include a class action provision in the proposed Act,3 but instead, the Committee' drafted procedures which could be

W Edgar Spivey is a partner & Kristan B. Burch is an '. associate in the Norfolk office of Kauftnan & Canoles, a proftssionalcorporation.

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used to consolidate and transfer certain types. of claims. In its report, the Committee mentioned sev­eral existing sections of the Virginia Code that could offer procedural assistance in mass claim cases,4 but the Committee still supported the idea of enacting an Act which would contain in one place various pro­cedural tools for such litigation.S The Committee submitted draft legislation with its report and, in . 1995, the General Assembly enacted the Act.6

Consolidation and Transfer Allowed Wlder the Act The Act provides that when a motion is made by any party, a circuit court can enter an order "joining, coor­dinating, consolidating, or transferring civil Cl:ctions."7 For such an order to be entered, the following condi­tions must first be met: (1) six or more plaintiffs must have brought separate civil actions, and the actions must involve "common questions ()f law or fact and arise out of the same transaction, occurrence or series of transactions or occurrences"; (2) "common ques­tions of law or fact" must "predominate"; and (3}entering such an order must (a) promote the ends of justice and just and efficient conduct and disposi..: cion of the actions, (b) be consistent with the due process· rightS of each party, and (c) not prejudice each party's right to a fair and impartial resolution of the action.8 The Act also sets out a number of factors that should be considered by the court when deciding whether such an order should be entered.9

When the conditions listed at § 8.01-267.1 are met, separate cases filed in the same circuit court can be coordinated or consolidated not only for pretrial proceedings' but also for joint hearings and for triaL 10 .

The Act also allows for the transfer of cases filed in different· circuit colirts to one circuit court for the purposes of coordinated and consolidated pretrial proceedings when the requirements of § 8.0F267;1 ar~ meO! After such transfers occur, and if a party makes a inotion, the circuit court to which the. actions' have been transferred can enter an additional order permitting joint hearings, trials and consolida­tlonof the actions.l2 Even when actions have been combined under the Act, the court still retains the . power to order separate or bifurcated trials on any . one or more of the . claims or issues if a motion for separation or bifurcation is made by any party.13 The Act also permits interlocutory appeals for certain non-final orders of the circuit court. 14

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LITIGATION NEWS VVINTER 2000

Multiple Claimants contJdfrom page 3

Case Law on the Act The Supreme Court of Virginia has yet to issue an opinion that addresses consolidation and transfer under any of the provisions of the Act. Instead, the only two Virginia cases which even mention the Act are both circuit court cases written by the same judge, the Honorable Donald W. Lemons. The first case that mentions the Act was decided by the Circuit Court of the City of Richmond on May 27, 1997, and in the context of ruling on defendants' demurrers, the' court merely stated that the actions by various plaintiffs had been consolidated under the Act for pretrial proceedings by order of the court entered March 3, 1997.15 Because· consolidation already had happened under the Act, the court did not devote ariy time to discussing the factors out­lined in § 8.01~267.1. The second case came out of the CircUit. Court. of the City of Williamsburg and James City County on July 10, 1997, and it stems from claims brought by twenty-seven plaintiffs after children allegedly were sexually abused by a Bruton Parishemployee.l6 In that case, the court denied defendants' motions to. sever plaintiffs' claims and found that the factors listed in the Act "weigh heavily in favor ,of consolidation under the Act" for the pre­trial discovery stage of the proceedings.!7 The court further noted that the matters could be severed at a later time under the Act for the purposes of trial.! 8

Consolidation and Transfer Provisions under J;l~dera1and State Law Consolidating· cases for pretri .. l prqceeciir1gsancl for

. trial is not an idea that is unique to Virginia. In fact, the federal code has long provided for the <:o,nsolida­tionof cases .under F.R.C.P. 42, and sev~r;tl states h~ve,adopted similar provisions as part of their state coges.l9 , Congre~~ also permits the coqrdination and COriSbliciation of ,pretrial prqc;::eedings in multidistrict litig<l,dbfiunder 28 U ;s;t.§' 14.07~ and sever;tl Virginia federal decisions have dealt with cases con­solidated under § 1407.20

Other states, like Virginia,. have established spe­cific provisions for handling multidistrict litigation, but those states do not specifically require six plain- . tiffs in order for consolidation and transfer. In Colorado, for example, the legislature has enacted Rule 42.1 to deal with consolidated multidistrict liti­gation, and cases from different judicial districts can

be transferred to any judge for a hearing Qr trial when the actions share a common question of law or fact.21 California, .Illinois and Kansas also have statu­tory provisions that permit the consolidation and transfer of actions with common questions of law or fact. 22 Examples of cases from other states where claims have been consolidated include the injury of many residents' property by overflow water after a dam collapsed,23 taxpayers' appeals,24 breast implant cases,25 insurance coverage for asbestos injuries and property damage clai~s,26 and boilermakers' injuries sustained when an elevator plummeted)7

Strategic Considerations Born largely out of their experience with the last three decad~s' asbestos litigation-the mother of ,all mass torts--'defense lawyers often reflexively reject consolidation as an adVahtageous procedure. In the c,ontext of asbestos litigation, consolidation usually equates with the lumping of weak plaintiffs' cases with a strong plaintiff in order to exact higher gross settlements or verdicts for the collective plaintiff cohort. Thus, in mature mass tort settings, such as asbestos, consolidation is correctly considered detri­ment<J.l to the defense. However, witherrierging, less ; mature mass torts (e.g. fen~phen, lead poisoning, etc.), all lawyers, both plaintiff and defense, should revisit and reconsider the strategic benefits of consol­idation under the Act. Every case has its unique con­siderations, but there are certain general strategic benefits that are likely to be common to most "immature" mass torts.

First, where. numerous plaintiffs sue a common defendant in, separate actions, arid particularly where those plaintiffs are represenred by a common firm or warn of aJtomeys, th,e :tr:lditionaLproce4ur~l:rq:les

"an.d 'pra(:tkes,qf ¥irg~llia~sstate<:()urts stac,k up qe<:idediy in faw;>r qftlleplaintiffs. Particularlyin <:;ir7 (;'ui~courtsWl1eredocketmanag~rnent system~are not. yet jnplace, cir<:l,l'itcourt judges are likely to ;illow plairttiffs' couns~l the ,freedom ;md discretion' tq. clloose. which· plaintiff's case they prosecute most aggressively and advan,cefirst to trial. In, so doing, the courts permit plaintiffs' counsel to litigate their strongest case first. Particularly if that strongest case entails large exposure and plaintiffs' counsel insists on linking its settlement to settlement of all cases, this structure places enormous pressure on the defen­dant to settle all cases in order to avoid an adverse result at trial in the first case. Under this scenario', many potentially weak cases which, if litigated sepa" rately, would generate little or no exposure, are

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'''INTER 2000. LITIGATION NEYVS

greatly overcompensated out of the defendant's com­pelling need to contain exposure in the first, and potentially only, strong case.

The Act furnishes a valuable solution to this unjust result. By coordinating and consolidating dis­covery in tandem in all cases, the merits of each case can be simultaneously examined. Litigation-wide issues, such as, in toxic torts, the admissibility of expert evidence of exposure or the admissibility of expert evidence of medical causation, can' be discov­ered and litigated, without the litigation unfairly focusing on anyone particular plaintiff Even if plain­tiffs survive dispositive motions, the court is in a much bettet position, after litigation-wide develop­ment of common factual and legal issues, to select flagship plaintiffs whose trials will in fact have litiga­tion-wide effect as opposed merely to fulfilling the self-interested desires of one side. The very weak plaintiff may, in fact, have much more in common with the majority of other plaintiffs than the one very strong plaintiff whose case is' an aberration. By trying the weak plaintiff's case first,the litigation as a whole is more efficiently and economically resolved.

Another very important· advantage afforded by the Act is the abillty to avoid multiple, potentially conflicting, legal rulings f.rom different judges con­fronting the same, issues in separate cases. Even where multiple cases are pending in the same circuit court, the circuit court judges of that court may be forced because of workload or other reasons to divide up and distribute subsets of cases to. several individual circuit court judges. Particularly where dif­ferent plaintiffs' cases are prosecuted at different speeds, the potential for conflicting res.ults exists. Such potential is avoided by consolidating all cases under one judge.

. . . Finally, the Act af(ords extraordinary rights of. appeal that can be critical to the efficient resolution of mass torts. Section 8.01~267.8. provides the par­ties the otherwise almost unheard-of right to inter­locutory appeal where appellate resolution of a disputed issue "may materially advance the. ultimate termination of the litigatiori. "28 Such a statutorily­enacted right to. interlocutory appeal is of extraordi­nary benefit.

Where. immature torts are concerned, there is usually no pre-existing track record regarding such crucial issues as the admiSSibility of certain expert proof or the discoverability of arguably privileged documents or information that may have important consequences for case outcome. Using the latter issue as an example, 'any Virginia lawyer who has

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been faced with the prospect of obtainingappellate review, at an interlocutory stage, of critical trial court rulings on production of privileged documents knows that the availability of such review and the recommended route to obtain it is . exceedingly murky and fraught with uncertainty. A lawyer ordered to produce documents that he or she firmly believes to be privileged may be confronted with the unpalatable prospect of contempt as the only method of obtaining appellate review before such documents are produced and the privilege is forever lost. Where multiple similar ot identical cases are also concerned, the ripple effect of an erroneous trial coUrt decision on privilege magnifies its consequences manyfold. After all, once a privileged document has been revealed, its privilege is lost regardless of subsequent appellate outcome. The interlocutory appeal express­ly provided for in the Act furnishes a straightforward and just answer to this dilemma. Where emerging maSs torts involve important issues of privilege, this feature of the Act alone recommends it as an impor­tant procedural advantage.

Conchlsion The Multiple Claimant Litigation Act was designed to establish procedural tools for handling mass tort litigation. Attorneys should be aware of the potential advantages of consolidation under the Act and should consider such consolidation as a more effi­cient method of handling multiple claimant litiga­tion, especially for emerging torts.

~

. lSeeVa. Code Ann. §.8.01-374.i. 1,See RepQrt of Committee of Mass Claims Litigation,

Oct. 11, 1993, at 1-3. . 3 See id. at8 . 4SeeVa~ Code Ann. §§.8.0l:265, -272,' -281. 5 SeiReport, supra note 2, at 7. 6 See Va. Code Ann. §§ 8.01-267.1 through -267.9 7 See id. § 8.01-267.1. 8 See id. 9 See id. ("Factors to be considered by the court include" but

are not limited to, (i) the nature of the common questions oflaw. or fact; (ii) the convenience. of the parties, witnesses and coun~el; (iii) the relative stages of the actions and the work of counsel; (iv) the' efficient utilization of judicial facilities and personnel; (v) the calendar of the courts; (vi) the likelihood and disadvan­tages of duplicative and inconsistent rulings, orders or judg­ments; (vii) the likelihood of prompt settlement of the actions without the entry of the order; and (viii) as to joint trials by jury, the likelihood of prejudice or confusion. ")

10 See id. § 8.01-267.3.

Multiple Claimants - con~d on p'age 10

LITIGATION NEWS '''INTER 2000

Closing cont)d from page 1

of lawyers who can participate in closing argument. The party with the burden of proof has the right to open and close the argument, but the court has dis­Cretion to modify the order or number of arguments if justice requires additional rebuttal arguments. Cohen v. Power, 183 Va. 258, 32 S.E. 2d 64 (1944). Rebuttal is limited to matters raised by your oppo­nent. Jordan v. Taylor, 209 Va. 43, 161 S.E. 2d 790 (1968).

Generally, objections to closing argument that are not made immediately are waived. Marlowe v. Commonwealth~ 2 Va. App; 619, 347 S.E. 2d 167 (1986). A court may entertain a delayed objection to an improper remark and a motion for mistrial after the jury has been given the case, but this would be exceptional. Brann v. F. W Woolworth, 181 Va . .213, 24 S.E. 2d 424 (1943). In addition to noting an objection, counsel should seek a cautionary instruc­tion. The court should not merely refer to jury instructions already given, but should specifically instruct the jury on what the law is and where coun­sel's argument was in error. See Harrison v. Com'l'n0nwealth, 183 Va. 394,32 S;E. 2d 136 (1944).

You may open the door to improper argument by your opponent. For example in Magestic Steam Laundry v. Puckett, 161 Va. 524, 171 S;E.491, 492 (1933), plaintiff's counsel in rebuttal said "if you give me a verdict for $11,000; lwon't go into [the defendant's] pocket for oile cent of it." Although this· was improper argument, the C()urt held the argument was· provpked when defense counsel in his closing said the plaintiff was "a police. officer from Detroit down here to go int() the pocketS of [the defendant]. "

Scop~ of Closihf;,f\rgument . Generally,broad la:titude is allowed in arguing con­chiSions the juryshould reach on the evidence pre­sented. Draper v. Commonwealth, ~32 Va. 648, 111 , S.E.471 (1922). Counsel may argue any proper

. inferences. and deductions that can be fairly drawn from the evidence. Burr v.Va. Railway and Power Co., 151 Va. 934, 145 S.E. 833 (1928).

The following twelve argumel1ts are improper:

¥' Arguing the "Golden Rule." State Farm Mutual Auto. Ins. Co. v. Futrell, 209 Va. 266, 163 S.E. 2d 181 (1968).

In its pure form, this argument urges the jury to base its verdict on what jurors would want if they had been so injured. The argu­ment may be adapted to various situations. For example, I once had an attorney who represented a defendant in an automobile collision case use language to put each juror in the pos~tion of the defendant prior to the collision. He . attempted to have the jury identify ·with his client's mistake, which caused the collision.

~ Expressing your own opinion. Va; Rules of Professional Conduct, Rule 3 .4( f); Jones v. Commonwealth, 218 Va. 732,737, 240 S.E. 2d 526 (1978).

Many. attorneys inadvertently preface con­clusions the jury should draw from the evi­dence with "I think." While technically improper, this improper argument should not draw an objection unless it amounts to the attorney testifying, which occurs if the con­clusion is not supported by,the evidence.

¥' Mentioning or ~ferring insurance cover­age or lack thereof. Forsberg 7. Harris, 238Va.442; 384 S.E. 2d 90 (1989)~

The most clever manner in which I have seen lack of insurance coverage inferred was made by an attorney representing a defen­dant 'who told the jury that when the defen­dant heard the amount of damages the pliuI1tiffwasaskirig'f()r in dosing atgument, the defeI1dant felt "really lonely.;' However, a1 l<~ast one circuit cduftjudge indicated' in an Unpubli~hed 'ruling 011 a motion in limine this did no~ nec~$sarily infer ins\lrance cover­age or lackther~pf; ~r refer to the financial condition of .the defendant, which is also impr()per. See No.7, infra.

II' Using a formula to calculate pain and sUffering. Certified T. V. and Appliance Co. v. HerringtQn, 201 Va. 109, 109 S.E. 2d 126 (1956).

Suggesting a per diem award for pain and suffering is prohibited.

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WINTER 2000 LITIGATION NEWS

., Appealing to passion and prejudice. Norfolk and Western Rwy. Co. v. Eley 152 Va. 773, 148 S.E. 678 (1929).

Although this is a broad category, signifi­cant authority exists in Virginia to make objections to arguments that appeal to pas­sion or. prejudice rather than logical infer­ences from the evidence introduced at trial. The Virginia Supreme Court in Norfolk and Western Rwy. Co. v. A.C. Allen and Sons, 122 Va. 603,95 S.E. 406 (1918),stated:

This Court has more than once repro­bated in no uncertain terms the practice of injecting into arguments of counsel statements calculated to inflame the minds of jurors, intending to produce verdicts asa result of prejudice rather than a calm consideration of the evi­dence. Every litigant, natural or artifi~ cial, is entitled to a fair and impartial trial, and there should be excluded from the tribunal which is to try the case, whether judge or jury, everything that has no tendency to aid such tribunal in doing impartial justice between the liti­gants. There can be no difference of opinion on this subject. .

Standards for improper arguments will change as passions and prejudices of the pub­lic change. For example,there is a growing perception among jurors of a runaway t6rt system in which injured persons' reap wirtd- , falls. So-called "tort reform issues" are often raised during voir dire, but every passion and prejudice <;annot be checked during voir dire. Counsel should consider a motion in liwlcine to prevent opposing .counsel from raising theseissues in closing <»"gument.

IT'Referring to action 'in' other cases. 'Lugo' v. Joy, 215 Va. 39,205 S.B. 2d 658 (1974).

A colorful example of this improperargu­ment is found in Norfolk & W Rwy. Co. v. Eley, 152 Va. 773,148 S.E.678 (1928). Ina railway ctossing accident, the plaintiff's attorney argued: .

You in all your experience have never been in a courtroom in your life, nor haS anyone else, and heard an engineer ... admit he failed to blow [his whistle] for a crossing~ His family and his meat and bread are dependent on it.

Recently, opposing counsel made the same argument about a chiropractor who testified for my client, declaring he was '''used to seeing

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chiropractors testifY" the way the chiropractor testified for my client. My objection to this argument, which referred to action in other cases, was sustained. Later, defense counsel said the chiropractor made his living testifYing in personal injury cases. If there had been any evidence how the chiropractor earned his liv­ing this argument may have been proper; but there was no evidence of how the chiropractor earned his living and, in fact, he had never tes­tified in court. My'objection to this argument was also sustained by the Court. See Nos. 9 and 10, infra. .

;t' Arguing the fi~ancial condition of a party. Virginia Linen Service, Inc. v. Allen, 198 Va. 700,708,96 S:E. 2d 86 (1957).

Anysuggestton the defendant has "deep pockets" should be' challenged. Conversely, any suggestion the defendant lacks the resources to pay any judgment and would suffer bankruptcy is improper. Likewise, plaintiff's counsel may not suggest the ver­dict be tied to the fact the plaintiff is of mod­est means, and defense counsel should not inject a wealthy plaintiff's sizeable assets into the ,case.

Ii' Arguments to appeal to jurors on a per .. sonallevel. Hamer v. School Bd. of the City of Chesapeake; 240 Va. 66, 393 S.E. 2d 623 (1990); County School Board of Orange County v. Thomas, 201 Va. 608, 112 S.E.2d 877 (1960). '

Suggesting that a juror might meet a patty after the' trial 'and would want to be able to say "I did you justice" is one example of this improper argument. ,

¥ Arguing. a new m~tter. Jordan v. Taylor, 209 Va. 43,161 S.E. 2d, 790 (1968). '

Argument must be limited to the evidence introduced at trial. New facts may not be introduced to the jury during dosing argu­ment~

'" Misstatem:ents ~f the evidence. Grubb v. Commonwealth, 189 Va. 954, 54 S.E.2d 881 ( 1949); Chesapeake and Potomac Telepho,,!e Company of Viwinia v. Sisson and Ryan, Inc., 234 Va. 492, 362 S.E. 2d 723 (1987).

While an obvious category, special prob­lems may arise under this rubric when coun~

Closing - cont'd onpage 10

LITIGATION NEWS WINTER 2000 - - - - .

A View from the Bench

Evidence by The Honorable]. Michael Gamble

The rules of evidence are ~~at separate

, trial lawyers from pro se lltIgants. Just think, there wONld be very little differ­

ence between a lawyer and a pro se litigant if there were no rules of evidence. In fact, if there were no rules of evidence (i.e. everything is admissible), would there be any need for a trial lawyer? Even worse, a trial lawyer would have very little trial skill to sell, andt;rial skill is what a trial lawyer really has for sale. Thankfully, there would still be a need for trial judges.

Evidentiary rules are the framework on which trials are based. Without these rules, trials would cease to be legal proceedings, and simply become discussions and arguments about how a dispute should be solved. Imagine trying to solve legal disputes in the manner we solve dis­agreements with our spouses and children. Needless to say, none of us would recommend that legal disputes be solved in this manner.

It is for these reasons that litigators (and judges for that matter) need to become more conscious of the rules of evidence. All of us like to believe that we know the rules of evidence (after all, I have been in this business 26 years). Nonetheless, -it is a serious oversight to t~ that we can remember all'therulesof evidence. Just as we are, all surprised by what we find in the Code of Virginia from time to time, it is also surprismg to 'discqver what are, the actual rules of evidence. F9rinstance, the most often used obtect;ioI;1in ,the courtroom, is the simple objec­tion to a leading question. Have you ever looked

, at the definition of a leading question? It is very , simple. A leading question is defined as a ques­tion' "which instructs the witness how to answer on material points." 'Vass v. Commonwealth,

The Honorable ]. Michael Gamble is a circuit court judge, Twenty-Jourth Judicial Circuit - cities of ~chbu't3 and Bedford, and the counties of Amherst, Bedford, Campbell and Nelson.

8

3 Leigh (30 Va) 786 (1831). To me, this defini­tion leaves it in the almost unfettered discretion of the judge to define what is leading and what is not. Almost any question can be classified in either category. Hooray for such a judge-friendly rule. I enjoy being arbitrary.

The point of this discussion is to emphasize that evidentiary rules are often different than what our memories deceive us into' believing. It is unfortunate -to fail to have 'evidence, admitted

. or excluded because the lawyer did not ~de­quately know the rules of evidence. It happens too frequently that a lawyer will cite the wrong rule of evidence when the lawyer could have cited another rule which would have admitted or excluded the evidence.

I believe that a judge should only act on the evidentiary rule cited by the attorney. Thus, if the lawyer does not cite the correct rule of evi­dence under the 'circumstances, I rule against the objection. A lawyer should not rely on the judge to get the objection under the correct eviden -' tiary rule; this is the responsibility of the lawyer.

While on the subject of objections to evi­dence, it is important to note that there are right ways and wrong ways to make evidentiary objec­tions. Generally, the_ best way to _object during a trial is to stand (standing is important), say "objection," and cite briefly the evidentiary rule. At that' point the judge will either rule- or seek further·argument on .. the matter. It is-not proper· for the lawyeftositllplysay"bbjection" and cite

ul ' _Ii ',£_:1 - th . d" b" " no r e,.atiUll,"Qf,J;AA.tO., -use _'.C wor ojee<t1on . and merely-start ralkingabout what is wrong about thequestionQ~testimony; In either of. these sitUations, it appears to the judge that the -lawyeriseiilier searchingfor an objection or try­ingtogetthe judge to find- the proper grounds for the objection. In these instances, 1 frequently overrule the objection until the lawyer can cite an evidentiary rule undef which he is objecting.

It creates, an immediate positive impression with a judge when a lawyer handles objections correctly and understands the rules of evid~nce. It is the best way to make an immediate intellec-

Evidence - cont'd on page 12

:

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)

\'\TINTER ...., 1000 LITIGATION NEWS

--- -

Ethics at a .Glance . . .

Hypothetical­Adversary's E-mail

by Thomas E. Spahn

YOU ~ave h~d some troubl~ adjusting to the mcreasmg use of e-mail for commu­nications. You have warned your staff to

be very careful when sending e-mails, because a simple click can send an entire document to the wrong party. The risks of this new. technology were brought home to you this morning, when you received an e-mail from a lawyer represent-

. ing your adversary in a large antitrust case. The brief e-mail was obviously intended for your adversary, and it attached what the e-mail described as the lawyer's "status report" on the litigation. You have not yet opened the "status report," but your receipt of the e-mail has gen­erated a vigorous debate in your office. Some of your colleagues want you to open and read the "status report," while others have urged you to delete it without reading it.

What do you do with the "status report"?

Apalysis Until November 1997, in numerous Legal EthicS Opinions, the Virginia Bar Legal Ethics Committee had invited lawyers to use inadver­tently-received privileg<:d and confidential infor­mation. In fact, in LEO 1076 (5/17/88), the Bar indicated that a lawyer may use documents from the opposing lawyer's files that had been received from an unknown third party. The Bar said only that the receiving lawyer shoUld' inform

. the other lawyer of the receipt of the documents as. a matter of "professional courtesy."

In LEO 1702 (11/24/97), the Bar totally reversed course. It overruled LEO 1076 (5/17/88) and instead adopted the ABA approach to this issue. In ABA LEO 368 (11/10/92), the ABA indicated that

9

a lawyer who receives materials that on their face appear to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear that. they were not intended for the receiving lawyer, should refrain from examining the materials·, notify the send­ing lawyer and abide the instructions of . the lawyer who sent them.

See also ABA LEO 382 (7/5/94) (holding that a lawyer who receives privileged or confi­dential material from an anonymous. third source should refrain from reviewing the material more than is necessary to determine how to proceed, notify the opposing lawyer and follow that lawyer's instructions or-in the case of a dis­pute-refrain from using the materials "until a definitive resolution of the proper disposition of the materials is obtaineci from a court"). .

Some courts and bars1 have taken this ~pproach as well. Weeks v. Samsung Heavy Indus., Ltd., No. 93 C 4899, 1996 WL288511 at * 1 (N.D. Ill. May 30, 1996)( ordering lawyer to return confidential billing information from the adversary that was received "from an anonymous source"); In re Shell Oil Refinery, 143 ER.D; 105, 109 (E.D. La.), amended in part by, CIV .. A. 88-1935,2719, 1992 WL 275426 (E.D. La. Sept. 29; 1992), amended by, 144 F.~.D: 7,3. (E.D. La. 1992) (holding that a pl~l~~lff s lawyer could not use documents about his ~dver~ sary that he obtained outside the normal ~scov­ery channels); Resolution Trust Corp. v. Ftrst of Am. Bank, 86~ F. Supp. 217 (w.n. Mich. 1994) (following ABA LEO 382 in concluding that a lawyer should have notified the adversary that the lawyer received an obviously inadver­tently-sent privileged document, but refusing to disqualify the lawyer). . ..

Other states' case law and legal ethicsopm­ions take the opposite approach. Theyempha­size the lawyer's duty to zealously represent his

Iiypothetical~ cont'd on page 13

. ',,'

LITIGATION Nmvs \'VINTER 2000

Closing cont'dfrom page 7

sel overreaches or bases his argument on con­clusions that do not flow logically from the evidence. For example, cross-examination will not always provide impeachment evidence that will support an argument that a witness' testimony was inaccurate or should be dis­counted. In Maxey 17. Hubble, 238 Va. 607, 385 S.E. 2d, 593 (1989); a medical malprac­tice case, the Court granted defendants a new trial based on improper arguments by plain­tiff's counsel, stating:

In the present case, plaintiffs counsel had every right to cross-examine oppos­ing witnesses to establish bias and seek to impeach them by any other legitimate means. He had an unrestricted opportu­nity to prove, if such proof was available, that they were participants, even to the point of committing perjury, in a nefari­ous conspiracy to deny the plaintiff access to the facts. But the record is devoid of any such proof There is not a particle of evidence that defendants'wit­nesses were biased, untruthful, or moti­vated by any wrongful purpose. Counsel's insinuations to that effect rest­ed only on counsel's desire to communi­catethat idea to the jury.

.rf Referring to stricken evidence. Lago 17. Joy, 215 Va. 39,205 S.E. 2d 658 (1979).

In some cases, the battle to exclude evi­dence does not end until after closing argu­ments ..

ri Personally vouching for a witness. Va. Rules of Professional Conduct, Rule3A(f); Jones 17. Commonwealth, 218 Va. 732, 737, 240 S.E. 2d 526(1978). . ,' Although you 'may know a witnessbew:r

: than anyone in the courtroom, you may not express a conclusion about the witness's cred­

·ibility. This argument essentially is an expres­sion of an opinion, which is prohibited.

Conclusion Tactically, objections during closing arguments should be rare, however, in many cases, a sustained objection and cautionary instruction may go far to protect your client from improper arguments.

10

Objections to the twelve improper arguments listed above should be sustained.

~ 1 Some teachers of trial advocacy contend cases are won or

lost in opening statement. Forexample, Herbert S. Stern, who founded a trial advocacy program held at the University of Virginia, argues jurors make up their minds early, usually during the opening statement. There is a natural human tendency to choose sides quickly. For example, when we begin watching a football game on television, one of the first questions that arises in our minds is. "Who are we for?" However, some jurors change their minds during jury deliberations, arid jurors often rely on . statements of counsel in closing argument to persuade fellow jurors during deliberations. '.

Multiple Claimants cont'd from page 5

11 See id. § 8.01-267.4(A). 12 See id. l3See id. § 8.01-267.6. 14 See id. § 8.01-267.8. ISSee Stevens v. Hospital Auth. of City ofPetersbu1JJ, 42 Va.

Cir. 321 (Richmond 1997). 16See Doe v. Bruton Parish Church, 42 Va. Cir .. 467

(Williamsburg and James City County 1997). 17 See id. at 470. 18 See id. 19See Cal. Civ. Proc. Code § 1048; Colo. R.C.P. 42;

N.C.R.C.P.42. 20See Wadev. Danek Med. Inc., 5 F. Supp. 2d 379 (E.D.Va.

1998) (reporting that products liability actions filed by over five thousand plaintiffs had been consolidated for pretrial proceed­ings); Causey v. Pan American World Airways, Inc., 66 F.R.D. 392 (E.D.Va. 1975) (deciding that claims by passengers killed,in a plane crash should be handled under § 1407); see also Atkini v. Schmutz Mfg. Co., 435, F.2d 527, 533-34 (4th Cir. 1970) (stat- . ing that consolidation for certain pretrial processing is allowed fotcertainmwti-district litigation). ' ..... .... . ··7lThe; Colorado rule lIsts standardsgoyerning, transfer; a'ri,d those standards were the 'illodelfor the factors listed in the Multiple Chii'mahts 'Litigation Actat §'8:01-267I. .

, 22 see ·Cal. Civ.Proc. COde '§§ 404t:lu::ough 404.8; ill. S. Ct. .R. 3M; K.S.A. .§ 60-242.,

23 See Kane v, Town of Estes Park, 786 P .2d 412' (Colo . 1990); Beckord v. District Ct. of County of Larimer, 698 ·P.2d 1323 (Colo. 1985).

24 See BQJ' Indus., Inc. v; State B,d. of EqualiZittion, 694 P.2d 337 (Colo. Ct. App. 1984).

2SSee McGhan Med. Corp: v. Superior Ct. of San Diego County, 14 Cal. Rptr. 2d 264 (Cal. Ct. App. 1992).

26 See Armstrong World Indus., Inc. v. Aetna Cas. &Sur. Co., 26 Cal. Rptr. 2d 35 (Cal. Ct. App. 1993).

27 See Niepotter v. Central Illinois Pub. Servo Co., 707 N.E.2d 1278 (ill. App. Ct. 1999).

28 See Va. Code Ann. § 8.01-267.8(B).

,,~ .. ' ' . ... ~'.

\VINTER 2000 LITIGATION NEWS

Recent Law Review Articles ~--

by R. Lee LivingSton

The following are recently published Law Review articles that may prove useful to you in your practice:

Employment Law Susan Bisom-Rapp. Discerning Form From Substance: Understanding Employer Litigation Prevention Strategies. 3 EMPLOYEE RTS. & EMPLOY.

POL'y J. 1-64 (1999).

Evidence Jon J. Kramer, Note. Dead Men)s Lawyers Tell No Tales: The Attorney-Client Privilege Survives Death. (Swidler & Berlin v. United States, U8 S. Ct. 2081, 1998.) 89 J. CRIM. L. & CRIMINOLOGY

941-972 (1999).

Randi B. Weiss, et al. The Use' of Genetic Testing in the Courtroom. 34 WAKE FORESTL. REv. 889-913 (1999).

Jurisdiction J. Bradley Buckhalter, Comment. ERISA Preemption of Medical Malpractice Claims; Can Managed Care Organizations Avoid Vicarious Liability? 22 SEATTLE U. L. REv. 1165-1186 (1999,).

}JgqC,oleHa and Ad<u~Bain. The Burden . of pro'Ping Jurisd:iction. Un.der the Federal Tort Claims Act: A Uniform Approach to Allocation. 67 FORDHAM L. REv. 2859-2937(1999).

James' H. Ho, Note. State Sovereign !mmunity artd the False Claims Act: Respecting the Limitations Created by the Eleve.nth Amendment . Upon the Federal Courts. 68 FORDHAM L. REv. 189-224 (1999).

Mark S. Kende. Lost in Cyberspace: The Judiciary)s ') Distracted Application of Free Speech and / Personal Jurisdiction Doctrines to the Internet. 77

OR,. L. REv. 1125-U94 (1998).

11

Dawn Lauren Morris, Comment. ERISA Preemption) HMOs) and Denial of Benefit Claims. 59 LA. L. REv. 961-1002 (1999).

Practice and Procedure Reid Hastie, David A. Schkade and John W. Payne. ' Juror Judgments in Civil Cases: Hindsight Effects on Judgments of Liability for Punitive Damages .. 23 LAw & HUM. BEHAV. 597-614 (1999).

Sulaiman M. Qazi, Comment. Licensed to Steal: Has Sovereign Immunity Gone Too Far? 32 J. MARsHALL L. REv; 779-804. (1999) ..

Neil Rickman. Contingent Fees and Litigation Settlement. 19 INT'L REv. L. & ECON. 295-317 (1999).

Products Liability Lars Noah. Authors) Publishers) and Products Liability: Remedies for Defective Information in Books. 77 OR. L. REv. U95-1228 (1998).

, Richard L. Sizemore, Casenote. The Demise of the ((Open and Obvious Danger)] Defense. (Ogletree .p. Navistar International Transportation Corp., 269 Ga. 443, 500 S.E.2d 570, 1998.) 50 MERCER

L. REv; 643-653 (1999).

Remedies Lucian Arye Bebchuk and LP.L.' Png. Damage Measures for Inadvertent Breach of Contract. 19 INT'L REv. L. & ECON. 319-331 (1999) .

Jason R. Berne, Comment. Court Intervention But Not in a Classic Form; A Survey of Remedies in Internet Trademark Cases. 43 ST. LoUISU. L.J.' U57-1214 (1999).

Law Review Articles - contld on pagd2

LITIGATION NEWS 'WINTER 2000

Law Review Articles cont)dfrom page 11

Eileen Silverstein. On Recovery in Tort for Pure Economic Loss. 32 U. MICH. J.L. REFORM 403- 439 (1999).

Torts Jill Jones, Comment. Fanning an Old Flame: Alienation of Affections and Criminal Conversation Revisited. 26 PEPP. L. REv. 61-88 (1998).

Ranney Wiesemann, Comment. On-Line or On­Call? Legal and Ethical Challenges Eme1lJing in Cybermedicine. 43 ST. LOUIS U. L.J. 1119-1155 (1999).

Peter Zablotsky. From a Whimper to a Bang: The Trend Toward Finding Occurrence Based Statutes of Limitations Governing Negligent Misdiagnosis of Diseases With Long Latency Periods Unconstitutional. 103 DICK. L. REv. 455-495 (1999).

LITIGATION NEWS is edited by the Young Lawyers Committee of the Virginia State' BarLitigation Section.

, ,

Newsletter Editor R. Lee Livingston

Statements or expressions of opinion or comments appearing herein are those of the editors, authors and contributors and not necessarily those of the Virginia State Bar or its Litigation Section.

Evidence cont)dfrom page 8

tual connection with the court. On the other hand, there are few things that so quickly create an unfavorable impression as an attorney who handles evidentiary matters poorly.

It is important for lawyers to keep up with developing areas of evidentiary law in the partic­ular trial specialty in which they practice. Judges tend to focus on evidentiary issues because they must rule on these issues frequently. Accordingly, judges are usually aware of the ways to work around evidentiary problems. Lawyers must be prepared to present these options to the judge, so the judge can make the appropriate decision in the context of the case.

If you wish to make a resolution to improve your practice, I suggest that you resolve to focus on the rule of evidence. It will increase your confidence in the courtroom, and it will increase the confidence of the court in you.

Chair cont)dfrom page 2

Of course, the issue of la,wyer training is equally important to the plaintiff and defense sides of the civil litigation bar. We are about to embark ~pon anil1~ospf;c;tix:e exaptination,qf what we are dojng 'and, ",hat we woWd: like to be doing as a Section, and I findiriyself wondering 'whether the Litigation Section shohldattempt

, to do anythirig meariingful to promote the cause oflawyer training. Together with maintaining an indepehdent" j~diciary and. fortifying the impor­tance of telling the truth tinder oath, I canhot think of many things as important to the litiga­tion process as the training of young lawyers. That was Jack Kay's view. I think it has rubbed off on me.

Happy New Y~ar to All!

Susan C. Armstrong, Chair Board of Governors, Litigation Section

12

WINTER 2000 LITIGATION NEWS

Hypothetical contJd from page 9

. client in concluding that the lawyer may retain and use the privileged material. For instance, a California court recently overturned sanctions imposed on a lawyer who did not return privi-1eged documents he had inadvertently received. Noting that the lawyer "had acquired the infor­mation in a manner that was not due to his own fault or wrongdoing," the Court held that the lawyer's "professional obligation demands that he utilize his knowledge about the case on his client's behalf." Aerojet-General Corp. v. Transport Indemnity Ins., 22 Cal. Rptr.2d .. 862, 867-68 (1993).2

Recent decisions indicate that lawyers who fail to notify the adversary or return inadvertent­ly~transmitted privileged documents risk disqual­ification or sanctions. ConleYJ LottJ Nichols Mach.

\ Co. v. Brooks, 948 S.W.2d 345; 349 (Tex. 1997) }

j (although a lawyer's failure to return a purloined

\ /

privileged document would not automatically result in disqualification, "what he did after he obtained the documents must also be consid­ered"; disqualifying lawyer in this case because his retention and use of the knowingly-privi­leged documents amounted to "conduct [that] fell short of the standard that an attorney who receives unsolicited confidential information must follow;'); American Express v. Accu­Weather, Inc., No. 91 CN 6485, 82 CN 705, 1996 WL 346388 (S.D.N.Y. June 25, 1996) (imposing sanctions on a la,wyer for what the court considered the unethical act of opening a Federal Express package and reviewing a privi­leged document after receiving a telephone .call and letter advising that the .sender had inadver­tently included a privileged document in the package and asking that the package not be opened).

Therefore, the best answer to this hypotheti­calis DELETE IT.

13

1 Kentucky Bar Ass'n Ethics Comm., Op. E-374 (rev. 1995) ("Question I: If a lawyer received materials that were ·not intend­ed for the receiving lawyer, should the lawyer be disciplined if the lawyer attempts to use the documents pursuant to a good faith claim that any privilege or protection that would otherwise have obtained has been waived. Answer: No. While such conduct is discouraged (see Answer to Question 2), a lawyer should not be disciplined if the lawyer is making a good faith legal argument on behalf of the lawyer's client. Question 2: If a lawyer received materials under circumstances in which it is clear that they were not intended for the receiving lawyer, should the lawyer refrain from examining the materials, notify the sender, and abide by the instructions of the sender regarding the disposition of the materi­als. Answer: Yes.") (citations omitted); District of ColumbiaBar Legal Ethics Comm., Op. 256 (1995) ("Where a lawyer has inadvertently included documents containing client secrets or confidences in material delivered to an adversary lawyer, and. the receiving lawyer in good faith reviews the documents before· the· inadvertence of the disclosure is brought to that lawyer's attew tion, the receiving lawyer engages in no ethical violation by retaining and using those documents. Where, on the other hand., the receiving lawyer knows of the inadvertence of the disclosure before the documents are examined, Rule I.IS(a) requires the receiving lawyer to return the documents to the sending lawyer; the receiving lawyer also violates Rule 8.4( c) if the lawyer reads and/or uses the material.").

2Accord Maine Bar Prof'l Ethics Comm'n of the·· Bd. of . Overseers, Op. 146 (1994) ("We recognize that the other mem­bers.of the Commission would go further and require Counsel Z to return the inadvertently-sent documents~ That position and the ABA Committee Opinions are based in part on the view that lawyers owe to each other a leveI of courtesy that obligates them to return an inadvertently-disclosed privileged .document. That general philosophy also appears to form the foundation for the J

views of the other Commission members. However appealing such rationale is in theory, we find no support for that conclu­sion in the Maine Bar Rules .... [W]e conclude that the prudent course is to advise the receiving lawyer to notify the sending. lawyer of the receipt of privileged documents. Further,ifrequest­ed by the sending lawyer, the receiving lawyer should .send a copy of the document to the sending . layer in order to.ensure that there is no misunderstanding about the document in issue.) (footnote omitted).

LITIGATION NEWS '''INTER 2000

Virginia State' Bar Litigation Section Board of Governors

Susan Carol Armstrong Chair Mays & Valentine, L.L.P. P.O. Box 1122 Richmond, VA 23218-1122

. 804/697-1220 Fax: 804/697-1339

Glenn Walthall Pulley Vice Chair Clement & Wheatley, P.C. 549 Main street P.O:Box 8200 Danville, VA 24543-8200

804/793-8200 . Fax:' 804/793-8436

Frank Kenneth Friedman Secretary Woods, Rogers & Hazlegrove, PLC .l 0 St; Jefferson Street, Suite 1400 P.O. Box 14125 Roanoke, VA 24038-4125

,. 540/983-7692 Fax: 540/983-7711

Jeffrey Hugh Gray Immediate Past Chair Willcm(~SaVage, P~C: Q.ne: Columbus Center, Suite 1010

'P;Q .. BRJI:!~~8~§ . .... .' . ' , Virginia Beach, VA 23462

'757/628-5516 Fax: 757/6~8-5659

"'.- .. '," ,; .",

J;.L Lee Livingston Newsletter Editor Tremblay & Smith, L.L.P. . 105-109 East High Street P.O. Box 1585 Charlottesville, VA 22902

804/977 -4455 Fax: 804/979-1221

Samuel Vernon Priddy, III Chair - Appellate Practice Subcommittee Sands Anerson Marks &. Miller 801 East Main Street, Suite 1400 P.o. Box 1998 Richmond, VA 23218-1998

804/783-7238 Fax: 804/783-2926

Thomas E. Albro Tremblay & Smith, L.LP. 105-,109 EastHigh Street P.O. Box 1585 Charlottesville, VA 22902-1585

804/977 -4455 Fax: 804/979-1221

Ronald M. Ayers Johnson, Ayers & Matthews 302 Second Street, S~W. P;O. Box 2200

. Roanoke, VA 24009-2200 540/982-3666

Fax: 540/982-1552

Paul Markham Black . Wetherington Melchionna, et al.

310 FirstStreet, Suite 1100' Roanoke, VA '24011 , , . 540/982-3800

Fax::540/342~4480 :,.

Jacqueline G. Epps . Morris and Morris, r.c. P.O. Box 30 " .. Richmond, VA 23218-0030

804/344-8300 Fax: 804/344-8359

James A. Gorry, III DMZ Law Group, L.L.P. 300 East Main Street, 13th Floor Norfolk, VA 23510

757/624-3477 Fax: 757/624-3479

14

Robert T. Hall Hall & Sickels, P.C. 12120 Sunset Hills Road, Suite 150 Reston, VA 20190-3231

703/925-0500 Fax: 703/925-0501

Thomas Moore Lawson 20 South Cameron Street, Suite 301 Winchester, VA 22601

540/665-0050 Fax: 540/722-4051

Robert E. Scully, Jr. Rees, Broome & Diaz, P.C. 8133 Leesburg Pike, Ninth Floor Vienna, VA 22182

703/790-1911 Fax: 703/848~2530

Hon.Mosby Garland Perrow. III Ex-Officio Judicial Lynchburg Circuit Court Twenty"Fourth Judicial Circuit 900 Court Str~et Lynchburg, VA 24504

804/847 -1490 Fax: 804/847-1864

. . Hou. Lydi~,Calvert TaylQr . 'EX-Offib'io l/iaiclal ., . "

, Norfolk,Circuit,Court Fourth Judicia..l Circuit 100 St. Paid's Boulevard Norfolk, VA 23'510-2721

PatriCia Stiger Liaison

" 767/664-4593 Fax: 757/664"4581

Virginia State ,Bar 707 East Main Street, Suite 1500 Richmond, VA 23219-2803

804/775"0576 Fax: 804/775-0501

)

WINTER 2000 LITIGATION NEWS

Virginia State B'ar Litigation Section You'ng Lawyers Committee

John Wilson Secretary Willcox & Savage 1800 NationsBank Center One Commercial Place Norfolk, VA 23510

757/628-5648 Fax: 757/628-5566

Ro· Lee Livingston . Newsletter Editor Tremblay & Smith, L.L.P. 105-109 East High Street P.O. Box 1585 . Charlottesville, VA 22902

804/977-4455 Fax: 804/979-1221

Candace A. Blydenburgh Mays and Valentine P.O, Box 1122 Richmond, VA 23208-1122

804/697-1200 Fax: 804/697-1339

Megan E. Burns Clark & Stant, P .C. One Columbus Center, Suite 900 Virginia Beach, VA.23462

757/499-8800 Fax: 757/473-0395

David B. Carson Johnson, Ayers & Matthews P.O. Box 2200 Roanoke,'VA 24009

540/982-3666 Fax: 540/982-1552

D. Jeffrey Coale Deputy Commonwealth's Attorney Washington County 191 MainStreet Abingdon, VA 24210

540/676-6291 Fax: 540/676-6293

Sean Copeland Hunton & Williams Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA 23219-4074

Laurie Hand

804/788-8200 Fax: 804/788-8218

McGuire, Woods, Battle & Boothe, L.L.P.

Tysons Corner ·8280 Greensboro Drive, Suite 900 McLean, VA 22102-3892

703/712-5415 Fax: 703/712-5050

Brian J. Lubkeman Roeder and Associates, P,C. 8280 Greensboro Drive, Suite 601 McLean, VA 22102

703/749-6034 Fax: 703/749-6027

15

Kevin E. Martin-Gayle Stallings & Richardson, P.C. Pavilion Center, Suite 801 P.O. Box 1687 Virginia Beach, VA 23451-4160

757/422-4700 Fax: 757/422-3320

Steven W. Morris . LeClair Ryan 707 East Main Street, Eleventh Floor Richmond, VA 23219

804/343-4072 Fax: 804/783-2294

Christopher J. Robinette Tremblay & Smith, L.L.P. 105-109 East High Street P.O. Box 1585 Charlottesville, VA 22902

804/977 -4455 Fax: 804/979-1221

William B. Tiller Morris'& Morris,P.C. P.O. Box 30 Richmond, VA 23218

804/344-6335 Fax: 804/344-8359

Mark T. Williams Williams; Stillwell, Morrison, Williamson & Light 317 B Patton Street Danville, VA 24541

804/793-4912 Fax: 804/792-6110

LITIGATION NEWS WINTER 2000

1QI1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1QJ1Q]1Q]1Q]1Q]1Q11Q]1Q]1Q](g(g]1Q]1Q]1Q]1Q]1Q]1Q] IQI Publish Your Work . IQ] ~ IQ] 101 . Litigation News welcomes the submission of litigation-oriented articles. If you 101 IQI have researched or argued an int~resting point of Virginia law, or have practice 101 I LIT tips to share, consider condensing them into an article for Litigtdion News. The 101 101 contact for submission of these articles is: 101 101 R. Lee Livingston, Esq. 101 'I[jl Tremblay & Smith, L.L.P. I[jl l!..!J 105-109 East High Street I.!..!I IQ] PO Box 1585 IQ] .IQ] . Charlottesville, VA 22902 IQ] . I[jl 804/977-4455 I[jl l!..!J fax 804/979-1221 I.!..!I 101 e-mail Ilivingston@firstva.comIOI IQ)." . . IQ] 1Q]1Q]~1QI1Q]1Q](g(g1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]

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