LITIGATION NEWS - vsb.org · I ) \ ) LITIGATION NEWS ~ ,PUBLISHED BY THE LITIGATION SECTION OF THE...

$: LITIGATION NEWS - vsb.org · I ) \ ) LITIGATION NEWS ~ ,PUBLISHED BY THE LITIGATION SECTION OF THE VIRGINIA STATE BAR FOR ITS MEMBERS. VOLUIvlE V NUMBER 3 FALL 1998 The ''New'' Motion$
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LITIGATION NEWS ~ ,PUBLISHED BY THE LITIGATION SECTION OF THE VIRGINIA STATE BAR FOR ITS MEMBERS.

VOLUIvlE V NUMBER 3 FALL 1998

The ''New'' Motion to Dismiss in Vtrginia

Use It Again for the First Time! by [(ent Sinclair & R. Edwin Burnette, Jr.

By 0, rder of the Virginia Supreme Court effective October 1, 1997, Rule 3:16 was amend-

, ed to read as follows: Rule 3:16. General Provisions as to Pleadings. (a) All motions in writing, including a motion for a bill of particulars and a motion to dismiss, are pleadings. (emphasis added).

This seemingly innocuous amendment appears to state the obvious: that a rriotion to dismiss is a pleading. However, the amendment was prompted by the following language contained in a 1995 Virginia Supreme Court opinion:

Although the trial court ruled on what was called a "motion to dismiss," the pleading in reality was amotion for summary judgment. 1

1 This court's rules governing actions at law, do not provide for a "motion to dismiss." Aetna CM. &' Sur. ,Co. v. FiregutU"d Corp., 249 Va. 209 at 211 (1995). (emphasis added) ,',

A review of reported cases for the Virginia Supreme Court in the last 35 years' prior to the Aetna opinion disclosed 200 cases where motions to dismiss wereJodged! In those reported cases apart from pass~ ing'Teferencesequatingmotions to dismiss with attempts·to,$et'forth a demurrer br'motion fot summar,yjtlclg~ent,. the Vit;ginia Supreme Court hacl,not Criticize<i"counsel for interposing a motion to dismiss. r~e'bl~t,language ,in the Aetna opipion sufficiently raIsed the level of concern among Boyd-Graveli Conference members, including the authors, that a fommittee was formed in 1996,to make a recommenL dation to address the issue. This recommendation is embraced in the amendment to Rule 3:16. Now that 'a motion to dismiss is officially recognized as a pleading'

Kent Sinclair is Professor of Law and Director of A~v~c~cy ,& Lawyer Training at the University of

, Vtrgmta Sc~ool of £.aw. R. Edwin Burnette, Jr. is an attorney wtth the ftrm Edmunds & Williams P.G.

. Richmond, Vir~inia. " ,

1

under the Virginia Supreme Court Rules, a brief survey of those doctrines which constitute the grounds generally relied upon when seeking dismissal of a claim by filing a motion to dismiss may be helpful.

Subject matter jurisdiction A common occasion for lodging a motion to dismiss is to assert that the trial court lacks subject matter jurisdiction to entertain some or all of the claims advanced in a motion for judgment or complaint.! Some subject matter j~sdiction motions arise because of the timing of the claIm allegedly falling outside the window of actionability provided by a governing statute.2 Others arise where a necessary step is omitted under a statutory cause of action and it is treated as having jurisdictional consequences. 3 Another category of cases would be those where it is claimed that another court has exclusive jurisdiction, by statute or by operation of a doctrine of preemption,4 or that the claim properly must be filed before an administrative agency.5

cont'don page 3

Table of Contents The "Ne'\\'" Motion to Dismiss in Virghua: ... i'

by Kent Sinclair & R. Edwin Burnette, Jr. " ,

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

The Collateral Source Rul Keeps -Pandora's Box of Health Insurance:

Write-offIssues Closed ................. 7 by Roger T. Creager

Seeing Is Believing?: The Persuasive and Cost-Effective Use of Videotaped Depositions ...................... , .. 13

byG~orge E. Kostel

Ghostwriting ... ; ..... : . . . . . . . ....... 17 by DannYM. Howell

Cyber Cite . . . . . . . .................. 19

Recent Law Review Articles ............ 20

Litigation Section Board of Governors .... 22 ,.'

Young Lawyers Committee ............. 23

LITIGATION NEWS FALL 1998

Letter from the Chair

G' reetings to all members of the Virginia State

, ' 'Bar's Litigation Section. As the newly installed , chair of our Section, I thought it would be

useful to recap some of what our Section has been doing and what our plans are for the upcoming year.

First and foremost, however, I want to acknowledge the efforts by our outgoing chair, John Sabourin, with the Falls Church office of Hazel & Thomas. John has provided great leadership for the Litigation Section over the past year and has put in countless non-billable hours in overseeing the Section's activities. John's efforts are all the, more commendable, given that he made it a point to cover all of his duties as chair even while involved in a trial in Illinois that laSted for nearly four months. John represented the only defendant to receive a defense verdict in that trial.

At the annual meeting in June, the terms of several of our Board of Governors members expired. Those members were Charlie Purcell of Louisa, Dan Frith of Roanoke (former Section chairs), and Bob Ward of Bristol. We, have appreciated the contributions which each of these board members have made over the years.

I am excited about working with our current bOCWP-lll,embers on the bu~inessof our Section during th,euptoming year. At the Annual Meeting .in June,~tlI'iee ,_Litigation Section'membe'rs'W~re ' appointed to the Section's Board of Governors. .

Tom Albro is a partner in the firm of Tremblay & ~IDith in Charlott~sville. Tom practices primarily in the fi,~ld of plaintiffs' medical malpractice arid personal m.jllry law. Tom currently serves as chair of the' Boyd ~~aves Conference_ and of the VSB Standing G?prrimittee on Professionalismaild Lawyer 4:(ivertising and Solicitation. He is aformet presiden~ of,the Vrrginia Trial Lawyers,Association, - ' ~: Paul Black is.apartner with Wetherington,

1v,ieIchionna, Terry, Day & Ammar in Roanoke;:<lhci pr.tctices primarily in the field of coll1ID.ercial,litigatiori andhankruptcy. Paul previously has served. this Section as chair of its Young Lawyers,COInmittee, back ~en he was still a ''young lawyer."

\1 Last but not least, Bob Scully became a member of our Board of Governors at the last meeting. Bob is a partner with the firm of Rees Broome & Diaz in Vienna and describes himself as a "general commercial and civil litigator.'" Bob serves as representative of the 19th Judicial Circuit on the VSB Bar Council and is a

2

recent appointee to the VSB Committee on Lawyer Discipline.

The position with our Section that involves the greatest amount of work for the least amount of recognition is that of newsletter editor., In this regard, Lee Livingston of Tremblay & Smith in Charlottesville has been doing an outstanding job of ,overseeing all aspects of producing our newsletter' for over a year now. Lee is a member of our Young Lawyers Committee and took over this job from fellow Young Lawyers Committee member Cathy Welsh. Lee has mastered the art of being "polite yet persistent" in following up with contributors to the newsletter and keeping this publication on schedule. I have been particularly impressed with the caliber of articles that have appeared in our newsletter over the past year, and I applaud Lee for his efforts as newsletter editor. By the way, we are always looking for good articles having practical value for litigators, and would be happy to consider any potential submissions that any member of our Section may have.

Finally, I am thankful for the continuing assistance of my good friend, Pat Sliger, as our VrrginiaState Bar Association liaison. Although' Pat has' many responsibilities in her position with the VSB, she has consistently given assistance "above _ and beyond the call of duty" to our Section. Pat has served as the Litigation Section's liaison for many years and iS'responsible for much of the effort behind the scenes which has helped to insure the success of our Section's activities.

Over thepastyea.r, your Section ,has been involved ina number of projects. We have served asa spoFlsor;ofvari0us{~LE selIlinars.qrinterest to Jitigators~~ We Sp()l1sored ,an' issue ,of ;The:'Virginia,bawyer

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

-LI-tIGA'rI6N' NB~Sj is-:~dfte(f_bY t:he'youIi~' 'Lawyers COinmittee of lhe VirginhlState Bar Litigation Sectiori~ .'. ' " - " . . . "

'.Chair ", Kevin W. Grierson

Newsletter Editor R. Lee Livingston

Statements or expressioris of opinion or com-ments appearing herein are those of the editors,

. authors and contributors and not necessarily those of the Virginia State Bar or its Litigation Section. .

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FALL 1998 LITIGATION NEWS

dedicated to litigation issues. The Section contributed to and provided judges for the "Law in Society" high school essay contest. Our Appellate Practice Committee had an active year, with various programs of interest. Your Section also sponsored an inspiring program at the annual meeting, with Morris Dees as our speaker. The Section published four issues of this newsletter, 'containing a variety of tlSeful and practical articles and features of interest to litigators.

In the upcoming year, we expect to continue with many of these activities. In addition, we will be looking into concerns raised by lawyer advertising. This is an issue which has been much debated around the country and about which there are particularly strong views on both sides. I would invite any views that our Section members may have on this subject, and will report to you further on the status of our review of this issue. Just to be clear, we have not been tasked by the State Bar to get into the business of regulating lawyer advertising, and I doubt that there is any move afoot or support for the prospect of doing so, beyond the current limited activity conducted by the VSB Standing Committee on Lawyer Advertising and Solicitation.

On the other hand, many members of our Section have raised questions, for example, about whether advertising by litigators has contributed to or accelerated the continuing trend of negative public perception of attorneys. Questions have also arisen about whether (and to what extent) advertising by firms specializing in plaintiffs' personal injury work has had an impact on the jury verdicts that the clients of those firms receive. If any of our Section members or judges have personal experience with these issues, I would invite them to relate those experiences to me or to any member of our Board. .

. In conclusion, I look forward to an exciting and eventful year as the chair of but Section. I will do' my best to continue with the good work undertaken by my predecessors in this position. .

Jeffrey H. Gray, Chair Board of Governors, Litigation Section

3

Motion to Dismiss contJd from page 1

Some "subject matter jurisdiction" motions to dismiss could also be viewed in another light. For example, if a defendant argues that an injury or death suit must fail because the injured party was the "statutory employee" of an entity,6 the litigant is not really claiming that the trial court lacks statutory authorization to hear personal injury or death cases. Rather, the claim is that the particular litigation is barred by a statute allocating exclusive relief to another scheme, such as Workers' Compensation. Whether so characterized, or labeled claims of "immunity," these matters are sometimes raised in motions to dismiss.7

Procedural bars A variety of cases have asserted that a procedural bar should preclude further litigation, using the motion to dismiss device, such as efforts to pursue enforcement of a preclusionary theory arising from the nonsuit statute and repeated nonsuits. 8 Use of "inappropriate" procedures has been addressed in a motion to dismiss,9 as has then-existing interspousal immunity rules.lO Failure to comply with prior court orders prescribing steps to be taken has been taken as grounds for a motion to dismiss.ll

Alternative remedies at law) which bar pursuit of equitable relief, have been raised in' a motion to dismiss the equitable proceeding.l2

Procedural defects bearing on legitimacy of the proceedings Some motions to dismiss have asserted procedural failings claimed to undermine the fairness or integrity of the litigation proceedings. This category includes motions focusing on the submission of orders in the pending case,13 and conduct in prior litigation argued to work a waiver of rights. 14

Failure to satisfy a statutory prerequisite to action in court Many motions to dismiss assert i1 failure of the plaintiff to complete some step or otherwise comply with a statutory prerequisite to filing of a lawsuit.l5 Failure to comply with the notice16 or timing requirements17 for medical malpractice actions under the pertinent code sections have generated "motions to dismiss" the court proceedings.l8 Failure to specifY the location of an injury in an action against a mun:.cipality

cont)d on page 4


Motion to Dismiss contJdjrom page 3

has been similarly raised by motion.l9 It appears that failure to comply with statutes governing the substantive issue may be raised by motion to dismiss.2o

Bar by the exclusive remedy provisions of a statute Where the defendant argues that a statutory scheme provides the exclusive remedy for plaintiff's claim, a "motion to dismiss" has often been filed. The exclusivity bar of the Workers' Compensation Act is a typical example.21

Claims outside the scope of coverage of a statutory cause of action Closely related to the preceding category are instances where the defense is that the statute does not govern the individuals or circumstances of a case, such as an assertion that the defendant is not a "health care provider" under, the medical malpractice statutes~22 Whether a statutory scheme applies to parties of a particular character has also been raised by motion to dismiss.23

Statutory defenses, generally That the agreement alleged is void for violation of the statute of frauds has been raised by motion to dismiss.24

Contractual barriers to suit .M9t!Pl}S to~~miss <1-ppear to be ,~ed to assert that ~~'R~iiC!s'Ii~ve'agrC!edpreviqiIslYmat di~putes will ~e hatidJe'd- in, some other fqr~ ot' by s'ome other procedure, such as arbitration,25 91." only after dispute

, resolution procedures contemplated in the parties' 'agrdhnent.26 Aclefense--based on a contractual forum selection clause was also raised byniotiontodismiss~27

CollstitutionaI'defenses A theory that the Constitution of the United States, or the Constitution of Virginia, supervenes to block a claim has been raised by motion to dismiss,28 including instances where a statute is challenged.29 Similarly, claims that defense motions are unconstitutionally restricted under existing law have been raised by motion to dismiss.3o

4

Failure to complete common law prerequisites to suit A motion to dismiss might be used to assert that a party failed to tender payment or take some similar step which, in law, is a prerequisite to maintaining a court action on a claim.31 '

The defense of sovereign immunity This defense is commonly raised by a motion to dismiss in Virginia.32

Res judicata Several motions to dismiss in' the reporters assert a preclusionary defense based on the doctrine of res judicata or the estoppel effect of final decision in a related litigation.33 Other defenses based on prior court orders have similarly been raised.34

Full faith'and credit effect for a foreign judgment Similar in effect to res judicata, this defense has been raised in a motion to dismiss.35

Collateral estoppel The similar doctrine of collateral estoppel has also been raised by motion to dismiss where the issue previously determined would obviate the present suit.36

Release A plea that a prior release bars a claim presently asserted in a 'lawsuit has been raised in a motion to dismiss.37 "

Accord and satisfaction' ' Thi$'dei~rise has > atsobee~r3.i~~4 by:m.9tiOn.38 "

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

Shnilar waiver orpto¢e4t4-at barriers arising in court proceedll1.gs ",

Similar to qlotions to diSnrlssonli.mitations grounds are those motions to dismiss which have asserted failure to file objections in a prescribed time, take administrative or court-based appeals, or to observe similar deadlines.39

Waiver or procedural bars arising from private arrangements Failure to exhaust remedies specified in a contract or union agreement prior to commencing action in the court system has been raised by motion to dismiss.4o

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Proper parties; standing A number of the reported cases in which motions to dismiss have been lodged involve attack on the plaintiff as not a proper party to maintain suit under a statute,41 or lacks standing under general case law on standing.42 A cognate form of claim is one asserting that the purported plaintiff is not a juridical entity entitled to maintain suit, which has been raised by motion to dismiss.43 Conversely, some defendant's have filed motions to dismiss contending that they are not proper defendants, though stopping short of

'arguing absolute immunity.44 A defendant who has transferred her interest in property to another raised this defense by motion.45

Misjoinder Has been raised by motion to dismiss as well.46

Absence of necessary parties The assertion that the case cannot proceed because a necessary or indispensabk 'party is absent, which is mentioned expressly in the statute, has been raised in a motion to dismiss,47 particularly where the failure is accompanied by the passage of time raising the argument that the entire action is barred.48

Statute of limitations defenses While these matters are often raised by special plea, in Virginia. the plea is often accompanied by a motion to dismiss and on occasion only the motion appears to have been used to assert the bar, both pre-trial49 and at the time of triaL 50 Most such motions to dismiss raise limitation provisions from Title 8.01 of the Code of Virginia, 51 but others have asserted limitations bars follnd in the substantive statutory regime,from which the claim flows, such as the mechani<z's lien52 or tax laws.53

. A related' form of motion to dismiss involves an at;gument of statutory construction about the application of limitations' principles toa particular context, such as wrongful death actions~54

And, in equity, the similar defense of laches) commonly asserted in a plea, has been raised by a motion to dismiss.55

Service of process defects While the Code appears to call for a "motion to quash" where there are service of process defects, in practice this motion has not uncommonly been labeled a "motion to dismiss. "56 Some of these applications assert that the trial court "lacks jurisdiction"57

5

though this may turn out to be a claim that the adversary's procedural mistakes make intervening steps a nullity. 58

Personal jurisdiction Motions to dismiss are used on occasion to assert that the court lacks jurisdiction over the person of the defendant. 59 The difference between in rem and in personam jurisdiction has also been challenged in a motion to dismiss.60

Claims void for public policy reasons Motions to dismiss have been used to assert that the plaintiffs claim arises in a context where it is barred on public policy grounds, such as the theory that a contractual confidentiality agreement was not enforceable on public policy grounds,61 that an agreement sued upon should be considered void because it purports to run for an unreasonable or unconscionable period,62 or that recovery for the circumstances claimed would be contrary to policy.63

Other defenses A variety of other defenses have been raised by motion to dismiss in Virginia in recent decades. These include an assertion that the plaintiff has engaged in "immoral and illegal acts" barring a right of recovery under traditional case law,64 that an individual's actions were not in the scope of his employment, in furtherance of the corporate defendant's business, or ratified by it.65

Habeas cases Many motions to dismiss have been lodged by. the respondents in habeas corpus petitions.66 Some, but not all, of these motions aSsert a lack of jurisdi(;tion to undertake habeas review in the court where the petition is lodged.67

Now that the motion to dismiss is an officially recognized pleading under the Rules, plead it with confidence and use it again for the first time. .

1 Texaco, Inc. p. Runyon, 207 Va. 367, 150 S.E.2d 132 (1966).

2 Commonwealth p. Brunson, 248 Va. 347, 349, 448 S.E.2d 393, 394 (1994)(in actions contesting forfeitures of property

cont)d on page 6

LITIGATION NE\VS FALL 1998

Motion to Dismiss cont~d from page 5

seized in connection with drug investigations: "In both cases, the owners of the property filed motions to dismiss for lack of subject matter jurisdiction. The trial courts sustained the motions, holding that they had no subject matter jurisdiction because the Commonwealth failed to file the information within 90 days after the property was seized as required by Code § 19.2-386.3(A)")

3 Glisson v. Loxley, 235 Va. 62, 366 S.E.2d 68 (1988) (motion to dismiss for lack of subject matter jurisdiction for lack of statutory notice required in malpractice actions).

4Brown v. Beacham, 244 Va. 319, 422 S.E.2d 375 (1992) (federal preemption under ERISA raised by 'motion to dismiss"); Moore v. Local No. 10,211 Va. 520, 179 S.E.2d 15 (1971) (National Labor Relations Act); Pearman v. Rayon Corp., 207 Va. 854,153 S.E.2d 227 (1967) (collective bargaining agreements).

5 Transcontinental Gas Pipe Line v. Prince William County, 210 Va. 550,172 S.E.2d 757 (1970).

6Ford v. City of Richmond, 239 Va. 664,391 S.E.2d 270 (1990).

7 See Id. at 665, 391 S.E.2d at 271 (claim of immunity owing to the exclusive remedy provisions of the Workers' Compensation Act; trial court sustained the motion for want of subject matter jurisdiction).

8Albright v. Burke & Herbert Bank & Trust, 249 Va. 463, 457 S.E.2d 776 (1995).

9 City of Portsmouth v. City of Chesapeake, 232 Va. 158, 349 S.E.2d 351 (1986) (court appears to refer to boundary statutes more than court procedures).

10McMillan v. McMillan, 219 Va. 1127,253 S.E.2d 662 (1979).

nPennsylvania-Little Creek Corp. v. Cobb, 215 Va. 44, 205 S.E.2d 661 (1974).

12Stroobants v. Highway Commissioner, 209 Va. 275, 163 S.E.2d 192 (1968).

13 Kingrey v. Hill, 245 Va. 76, 77 n. 2,425 S.E.2d 798, 799 n. 2 (1993) (mechanics of endorsement and submission of [mal order as "seen");

, 14 Weidman v. Babcock, 214 Va. 40; 400 S.E.2d 164 (1991) (Wtho/a~of motions in a prior proceeding as a waiver of cer-~nqa!ms ipth,~pen<fu.I~ case).. " ... '. . ..•. '

lSSec;e,g., Nuckols v. Moore, 234 Va. 478, 362 S.E.2d 715 (1988) (procedural prerequisites for lawsUit againstl11tinicipality, raised by motion to dismiss); Barbour v. City of Roanoke, 207 Va. 544, 151 S.E.~d 398 (1966).

f6 Hagan v. Antonio, 240 Va. 347, 397S.E.2d 810(1990); Hewittv. ';Virginia Health Services Corp:, 239:Va. 613, 391 S.E.2d 59 (1990r (failure to serve notice by registered or certified m3il as invalidating the notice).

17 See, e,g., Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753 (1990) (premature filing of legal action); Edwards v. City of Portsmouth, 237 Va. 167, 375 S.E.2d 747 (1989) (same).

18 Taylorv. Mobil Corp., 248 Va. 101,444 S.E.2d 705 (1994); Pierce v. Caday, 244 Va. 285,422 S.E.2d 371 (1992) (failure to provide written notice); Glisson v. Loxley, 235 Va. 62, 366 S.E.2d 68 (1988) (motion to dismiss for lack of subject matter jurisdiction for lack of statutory notice required in malpractice actions).

19 Town of Crewe v. Marler, 228 Va. 109, 319 S.E.2d 748 (1984).

6

20 Williams v. Fairfax Co. Housing Auth., 227 Va. 309, 315 S.E.2d 202 (I 984)(dicta to the effect that the trial court had power to grant a motion to dismiss for violation of Code § 25-46.34 for failure to pay); City of Richmond v. County of Chesterfield, 208 Va. 278, 156.S.E.2d 586 (1967).

21 Taylor v. Mobil Corp., 248 Va. 101, 444 S.E.2d 705 (1994); Mizenko v. Electric Motor Contracting Co., 244 Va. 152, 155, 419 S.E.2d 637, 639 (1992); Hunter P. Virginia International Terminals, 419 Va. 654 (1992) (scope of'trade or business" under the Act); Barr P. Town & Country Properties, Inc., 240 Va. 292, 396 S.E.2d 672 (1990); Intermodal Services, Inc. P. Smith, 234 Va. 596,364 S.E.2d 221(1988).

22 Turner P. Wexler, 244 Va. 124,418 S.E.2d 886 (1992) (podiatrist).

23Historic Landmarks Comm. P. Louisa Co., 217 Va. 468, 230 S.E.2d 449 (1976) (Art Commission argued that it was not an agency within intendment of statute).

24H-B Partnership P. Wimmer, 220 Va. 176,257 S.E.2d 770 (1979).

2sBader P. Central Fidelity Bank, 245 Va. 286, 287, 427 S.E.2d 184,185 (l993) (motion to dismiss based on prior execution of brokerage account agreement calling for submission of disputes to stock exchange arbitration).

26See, e.g" Pearmanv. Rayon Corp., 207 Va. 854, 153 S.E.2d 227 (1967) (grievance procedure in collective bargaining agreement,raised in motion to dismiss premature legal action).

27 Paul Business Systems, v. Canon, U.SA., 240 Va. 337,397 S.E.2d 804 (1990).

28 Taylor P. WorrellEnterprises, Inc., 242 Va. 219, 409 S.E.2d 136 (1991) (separation of powers and executive privilege issues); City of Emporia v. Newsome, 226 Va. 518, 311 S.E.2d761 (1984) (argument that a statute fostered an unconstitutional delegation of authority, raised by motion to dismiss); Commonwealth v. E. A. Clore Sons, 222 Va. 543, 281 S.E.2d 901 (1981) (warrantless OSHA inspection challenged). .

29Alexander P. Commonwealth, 212 Va. 554, 186 S.E.2d 43(1972).

30Caldwell P. Seaboard System Railroad, 238 Va. 148,380 S.E.2d 910 (1989) (interstate forum non conveniens barred by statute; motion to dismiss denied).

3,1 Brown P. BeaCham,244 Va. 319,422 S.E.2d 375 (1992) (failiire to tender lump sum of benefits).

32See, e.g., ¥B!Jetfv. Caudill, 247 Va. 130, 133,439 S.E.2d 350,352 (1994) (trial court ;granted'amotion tQ:dis!Dissto.3.n expressway superintendent who assertedsoveteign immt,mity;:the Supreme C0llrtgnutted an appeal,. holding that the. disqllssal was a fiQaI irld appealable order); Morrison p.lJe~ler, ~39 Va. 166, 387 S.E.2d 753 (1990)( discussing earlier caSes on this point); Ga;y;ulo v.Ohar, 239 Va. 209,387 S:E.2d787(1990) {motion to dismiss by doctor employed in state facility );Edwards v, City of fo~u(", 237 Va. 167, 375 S.E2d 747 (1989) (ciqr and hospital); Hinchey v. Ogden, 226 Va. 234, 307 S.E.2d 891 (1983) {highway officiall11aae motion to dismiss, Supported by testimony and documentary exhibits); Bowers P. Commonwealth, 225 Va. 245,302 S.E.2d 511 (1983).

33 Horton v. Morrison, 248 Va. 304, 305, 448 S.E.2d 629, 630 (1994) ("Morrison filed a plea of res judicata and motion to dismiss in Horton's action, claiming that Morrison's success in the third-party action in Shaver's case precluded Horton from pursuing her own claim against Morrison. The trial court sustained Morrison's motion, concluding that Horton's. action 'had been

cont~d on page 8

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The Collateral Source Rule I(eeps Pandora's

Box of Health Insurance Write-off

Issues Closed by Roger T. Creager

For more than a century, the Virginia

. Supreme Court has approved and applied the collateral source rule in tort cases.! The

collateral source rule provides that a tortfeasor's liability for damages is not to be reduced by taking into consideration financial benefits to the plaintiff resulting from collateral sources.2 '''The party effecting the insurance paid the full value for it, and there is no equity in the claim of the defendant to the benefit of a contract for which it gave no consideration. "'3

In recent years, some defense attorneys have attempted to erode the collateral source rule in cases where a portion of the plaintiff's medical bills were purportedly "written off" pursuant to health insurance arrangements. These attorneys have argued that the part of any medical bill written off pursuant to health insurance cannot be recovered at trial.

Numerous courts have recognized that this defense argument is nothing more than an attempt to evade the collateral source rule.4 The fact that the plaintiff, due to health insurance he carried, never personally had to pay all of his medical bills has long been irrelevant under the collateral source rule.

In the past few years, however, some courts have accepted the defense argument, and have held that any portion of the plaintiff's medical bills that was written off due to the plaintiff's health insurance cannot be proved or recovq:ed at trial. 5

These courts have ruled, with little or no explanation, that the issue is not governed by the collateral source rule, and have concluded that amounts written off were never really owed by the plaintiff and thus cannot be recove~ed as damages.

Roger T. Creager is an attorney with Marks & Hamson, P.e., Richmond, VA.

7

This article will demonstrate that the courts adopting the defense position are wrong on both counts: First, the issue is squarely governed by the collateral source rule. Second, amounts eventually written-off pursuant to health insurance arrangements are, nevertheless, part of the medical billliability of the plaintiff and can be recovered as damages.

Moreover, none of the trial courts that have adopted the defense position have considered the Pandora's box of problems that would be created by injecting collateral health insurance matters into tort litigation. This article will identify those problems. A review of the number, complexity, and unsolvable nature of these problems demonstrates the soundness of the decisions holding that the collateral source rule bars consideration of collateral health insurance matters, including write-offs and writedowns of medical bills pursuant to health insurance.

Finally, a 1997 legislative amendment of the contractual "med-pay" coverage statute and a 1998 Virginia Supreme Court "med-pay" decision do not abrogate the collateral source rule and are inapplicable to the write-offs issue in tort actions.

Collateral Source Rille Bars Consideration of Write-Offs and Other Collateral Insurance Benefits Under the collateral source rule, "the defendant in a personal injury case is not excused from liability for medical expenses because the plaintiff has health insurance. The rule provides .that "[ t ]here can be no abatement of damages on the principle of partial compensation received for the injury where it [the partial compensation 1 comes from a collateral source wholly independent of the defendant, and is as to him a res inter alios· acra. . .. As has been said by another, to permit a reduction of damages on such agreement [i.e. an insurance agreement not procured by the defendant] would be to allow the wrongdoer to pay nothing, and take all the benefit of a policy of insurance without paying the premium."6

"For more than a century, this Court [the Virginia Supreme Court] has approved and applied the collateral source rule in tort cases."7 The collateral source rule in Virginia dates back at least as

cont'd on page 9


Motion to Dismiss cont)dfrom page 6

adjudicated when judgment was granted on behalf of Ms. Morrison against Ms. Horton in the third party action filed in [Shaver's] case'."); Vi'=!Jinia Used Auto Parts v. Robertson, 212 Va. 100, 181 S.E.2d 612 (1971).

34See, eg., Anderson v. Van Landingham, 236 Va. 85, 372 S.E.2d 137 (1988) (prior order of juvenile court, entered on consent).

35 Addison v. Addison, 210 Va. 104,168 S.E.2d 281 (1969). 36 Graham v. VEPCO, 230 Va. 273, 337 S.E.2d 260 (1985);

cf. Finkel Outdoor Products v. Bell, 205 Va. 927, 140 S.E.2d 69$ (1965).

37 Bartholomew v. Bartholomew, 233 Va. 86, 353 S.E.2d 752 . (1987) (the defendant mother "then filed a plea of release in the form of a motion to dismiss").

38 Bangor-Punta Operations, Inc. v. Atlantic Leasing, Ltd., 215 Va. 180,207 S.E.2d 858 (1974).

39Zapulla v. Crown, 239 Va. 566, 391 S.E.2d 65 (1990) (failure to lodge timely appeal from a marine commission's permit ruling, raised by motion to dismiss); Occoquan Land Development Corp.v. Cooper, 239 Va. 363,389 S.E.2d 464 (1990) (similar); Upshur v. Haynes Furniture, 228 Va. 595,324 S.E.2d .653 (1985); Commonwealthv. County Utilities, 223 Va. 534,290 S.E.2d 867 (1982).

40Harrison v. Local 679, 237 Va. 349, 377 S.E.2d 403 (1989) (union contract required exhaustion of administrative remedies prior to legal action).

41 Radin v. Crestar Bank, 249 Va. 440, 457 S.E.2d 65 (1995) (UCC 8.4-406, who is a "customer" entitled to sue); Cross v. Sundin, 222 Va. 37, 278 S.E.2d 805 (1981) (convict without committee).

42 Standing has also been raised by summary judgment motion in Virginia. See, e.g., The Rotonda Condominium Unit Owners .A.croc. 17.· Rotonda Associates, 238 Va. 85, 380 S.E.2d 876 (1989); Heirs of Galen Roberts v. Coal Processing Corp., 235 Va. 445, 369 S.E.2d 188 (1988).

43 Wells p. Lorcom House Condominiums) Council of CoOwners, 237.Va. 247, 377.S.E.2d 381 (1989) (under prior condoffiinium sta~te, owners council not entitled to sue).

44Ztipul(a p. Crown, 239 Va. 566, 391 S.E.2d 65 (1990) (mirine commission raised sovereign immunity in its demUrrer, an<ltcl1en ~lJ::gp.ed improper party theories ina "'motion to dis~ss,"<;ontending that it was not a .necessary or proper party defendant); Combs p.lJickenson-Wise Medical Group, 233 Va. 177,355 S£2d553 (1987) (trust argued on motion to dismisS that it could. not be sued "as a legal entity). '

~5yicars p. Mullins) 22TVa. 432, 318 S.f..2d 377 (1984). ~iktiz.f. Btr-rrett,222Va. U8, 278 S.E.2d,833 (1981). 47 irit:nds o/6tafk M0tf1m"in Foundation p. Orange County,

242 "a. 16, 406 S.E.2d 19 (1991): 48Id. (30 day period to challenge zoning decision). The

mechanics' lien cases are to the same effect once the six-month period has expired.

49 Vines v. Branch, 244 Va. 185,418 S.E.2d 890 (1992); Turner p. Wexler, 244 Va. 124, 418 S.E.2d 886 (1992); Heirs of Galen Roberts p. Coal Processing Corp., 235 Va. 445, 369 S.E.2d 188 (1988).

50 Curley p. Dahlgren Chrysler-Plymouth, 245 Va. 429, 432, 429 S.E.2d221, 223 (1993).

8

51 See, eg., Lavery v. Automation Management Consultants, 234 Va. 135,360 S.E.2d 336 (1987); Trumanv. Spipey, 225 Va. 274,302 S.E.2d 517 (1983).

52Bush v. Patel, 243 Va. 84,412 S.E.2d 703 (1992) (six month limitation period under Code § 43-17).

53 Knopp Bros. p. Dept. of Taxation, 234 Va. 383,362 S.E.2d 897 (1988). .

54Hendrix v. Daugherty, 249 Va. 540,457 S.E.2d 71 (1995). 55 City of Portsmouth v. City of Chesapeake, '232 Va~ 158, 349

S.E.2d 351 (1986) (the Court noted that the doctrine of "acquiescence," asserted in addition·to aches, was not properly presented in the trial colirt when the motion to dismiss was argued).

56 See Mechtensimer v. Wilson, 246 Va. 121, 122,431 S.E.2d 301 (1993); lliffp. Richards, 221 Va. 644, 272 S.E.2d 645 (1980) (service defect attacked in trial court by motion to dismiss); Minton p. First National Exchange. Bank, 206 Va. 589, 145 S.E.2d 139 (1965); Spiegelman v. Birch, 204 Va. 96, 129 S.E.2d U9(1963). .

57 Id. 58Id. 59 Krantz p. Air Line Pilots Ass)n, 245 Va. 202, 203, 427

S.E.2d 326, 326 (1993); Witt p. Reynolds Metals Co., 240 Va. 452,397 S.E.2d 873 (1990).

60 Cranford v. Hubbard, 208 Va. 689, 160 S.E.2d 760 (1968).

61 Dionne p. Southeast Foa'm Converting & Packaging, Inc., 240 Va. 297, 397 S.E.2d UO (1990).

62 The Bank of Southside Vi'=!Jinia p. Candelario, 238 Va. 635, 385 S.E.2d 601 (1989).

63Millerp. Ruth, 231 Va. 177,341 S.E.2d 301 (1986) (damages for birth of healthy child).

64 Wackwitz p. Roy, 244 Va. 60, 62, 418 S.E.2d 861, 862 (1992) (suicide).

65 Kelly v. First Virginia Bank-Southwest, 404 Va. 723 (1991) (sexual harassment case).

66Stricklerp. Murray, 249 Va. 120,452 S.E.2d 648 (1995) . 67 McClenny p. Murray, 246 Va. 132, 133, 431 S.E.2d 330

(1993) ("detention," a j~risdictional prerequisite for habeas relief, where the defendant was not incarcerated, but was given a communityservice sentence; dismissal was granted in·themalcourt).

t

\

.j


Collateral Source Rule contJdjrom page 7

far as 1877, and has been steadfastly applied in tort actions.S

It was upon this substantial historical foundation that the Virginia Supreme Court in 1988 in Schickling confirmed the continued vitality of the collateral source rule in tort actions. Reviewing the Virginia decisions, the Schickling court concluded that the collateral source rule is designed to strike a balance between two competing principles of tort law: (1) the plaintiff's entitlement to complete compensation for his injuries and (2) the defendant's liability for all damages proximately resulting from his wrong. 9 According to the court, a plaintiff who receives a double recovery (by recovering damages from the tortfeasor and rc:rcovering his own insurance benefits) for a single tort enjoys a windfall, but a defendant who escapes liability for his wrong, in whole or in part, also reaps a windfall.10 The court concluded that "[b ]ecause the law must sanction one windfall and deny the other, it favors the victim of the wrong rather than the wrongdoer."ll

In Schickling, the Virginia Supreme Court noted that the collateral source rule had never been applied in contract cases and questioned whether the collateral source rule would apply in a contract case. The discussion of the collateral source rule in Schickling makes clear, however, that the· rule remains fully effective in tort cases.

The position advocated by the insurance defense bar - that a plaintiff's medical expenses should be reduced as a result of insurance write-offs - is a direct attack on the collateral source rule. Absent the plaintiff's health insurance, the plaintiff clearly would have had to pay the full amount of the health care provider's standard charges for the services provided. Even if a defendant could prove that any health care provider was bound by health insurance arrangements to allow the plaintiff certain writeoffs, these write-offs are benefits from the plaintiff's health insurance and are thus irrelevant in a tort action under the collateral source rule.

9

Health Insurance Write-Offs Do Not Establish That the Plaintiff Was Never Liable for the Full Amount of the Medical Bill The premise (whether stated or unstated) of the trial court decisions holding that the plaintiff cannot prove and recover any amount written off pursuant to health insurance is the assumption that these amounts were never really part of the plaintiff's liability for medical bills.12 In fact, in most or all cases the plaintiff is liable for the full amount of the bills. The write-offs pursuant to health insurance occur only after issuance of a bill for the full amount and only if a series of conditions are met, i.e. the plaintiff timely submits the bill to his health insurance, the health insurance carrier timely processes and pays the bill, and the health care provider writes off part of the bill as part of his contractual arrangements with the patient and the health insurance carrier. These subsequent conditional write-offs eventually allowed by the health care provider do not change the fact that the plaintiff's liability was for the full amount of the bill unless and until the plaintiff's health insurance and the collateral benefits thereunder was applied.

A Pandora's Box of Unsolvable Problems Would Arise from Consideration of Health Insurance Write-offs None of the trial courts that have adopted the defense write-off arguments have fully explored the implications of their abrogation of the collateral source rule. In many of the cases where the defendant has prevailed, the issue has been ruled upon from the bench at or near trial with little or no evidentiary record regarding the alleged writeoffs. Counsel and the trial court appear to have assumed or implicitly stipulated the nature and amount of the write-offs, and. the only issue presented to the court was the legal effect of an, assumed or admitted write-off.

A full exploration of the insurance-write-off issue demonstrates that numerous trial practice and proof problems would be created by an abrogation of the collateral source rule to allow consideration in tort cases of health insurance write-offs.

cont'd on page 10


Collateral Source Rule cont'd from page 9

All of these problems militate in favor of adherence to the collateral source rule.

Trial proceedings would be burdened, confused, and prejudiced by detailed health insurance evidence The amount, nature, and effect of the "write-off" asserted by the defendant cannot merely be assumed, but must be proved by admissible evidence. Witnesses must be called and evidence introduced to prove the terms and application of the agreements and documents between each health care provider and the plaintiff/patient, and to prove the terms and application of the agreements and documents between each health care provider and the health insurance carrier.

The proof regarding health insurance write-offs is inadmissible All of the information about insurance write-offs and the effect of insurance is classicallyinadmissible and prejudicial in a tort action. 13

Evidence of the cost of the health insurance would need to be admitted If the defendant were to be given the benefit of write-offs resulting from health in'surance, the defendant would, in fairness, have to be required to pay the premiums for plaintiff's health insuranceduring the entire period of the policy; Yet another type of inadmissible,confusing, time-con-1!Hl!liI1g,eQ.d ;prejudicialevidence. )"ot:!ld· be. injected into"thetort .action. .. ,~-\

Proolregar,iJing any other payments retCived bftlie hfiiltbtare providers from the health insurance tarritrswould be necessary , SoIi}e~2hlth irisut:rnc~ ~arners payperiddic fees or ()tli~( 'a'#1Qunts topart~eipaiing 'provide~s in addition to· iliepaymentS made on' individual bills. If the insurance write-off arguinent were to be accepted, the trial court would have to receive evidencebf all fees and jnc~ntives received by the health care provider in addition to payments on individual bills, and would have to pro rate the amount of these fees and incentives acr()ss all of the health care provider's bills in order to determine

10

the true total amount of the payments and fees that the health care provider received as a result of his care of the plaintiff.

Proof of health insurance write-offs would interfere with and impinge upon the right to jury trial

A ruling that any portion of the medical bills that was written off is not compensable as damages would force the plaintiff to choose between a ruined jury trial, in which the jury would know that the plaintiffs medical bills have been paid by insurance, and a judge trial, which the plaintiff may have to choose to avoid having the jury prejudiced by knowledge of plaintiff's health insurance.

The defendant may suggest that the court should rule on the write-offs.' But the write-offs, and the factual predicates required to establish the write-offs, must be proved by the evidence. In jury trials, the jury hears the evidence and decides the facts. Judges sometimes make factual determinations on motions in limine, but those are threshold factual determinations regarding the admissibility of evidence (whether a statement should be excluded as hearsay, whether the attorney-client privilege was waived by publication beyond the privilege, etc.), not factual determinations regarding the amount of recoverable damages.l4

Judicial and litigant economy would be disservtd

Whether the trial court decides that all of the facts pertinent to the alleged insilrancewrite-offs rriust be ,decided by the Jury, or can' pioperlVb~decided by ih'e Court itselt,ineither eve'ui ifljectingthese collateral mattetsintO the case woUld"have serious nega~ tlve consequences on' judicial and litigant efficiency. tf the write.:.off facts are tried in advance of trial,the case would require two trial·'dcites instead of one. If the write-off facts are tried during trial,then either the jury would hear this evidence, with the obvious potential for prejudice and confusion, or the judge would hear this evidence outside the presence of the jury. In either case, the trial will be lengthened and complicated in' a manner undesirable for the court, the jurors, the witnesses, and the litigants.

)


The health care providers would need to be joined as parties

If the plaintiff is to be denied recovery of part of the plaintiff's medical bills on the basis that the health care provider has written off that portion of the bills, then the health care provider should be made a party to the tort action so that he will be bound by the determinations regarding the write-offs.l5

The full amount of the medical bills would come into evidence even if the defense position on write-offs were adopted

Even if the portion of a medical bill that was written-off could not be recovered as special damages, evidence of the full amount of the plaintiff's medical bills would nevertheless have to be admitted as relevant to the nature, degree, and extent of the plaintiff's injuries, pain, i~convenience, and other damages. 16

All of the considerations reviewed above demonstrate that the courts would be well-advised to adhere to the long-established collateral source rule precluding the defendant from obtaining the benefit of insurance arrangements the plaintiff has made.

The 1997 Amendment of Contractual "Med-Pay" Statute Did Not Alter the Collateral Source Rule in Tort Actions

In 1997, the General Assembly adopted a statutory provision applicable to claims under medical payments coverage provisions of motor vehicle insurance policies. 17 This amendment provides that portions of medical bills that are written off are not recoverable under medical payments coverage. This statute applies only to contractual "med-pay" claims, and plainly does not apply to tort claims. The General Assembly apparently reco'gnized the profound differences between contract claims by an insured against art insurance company on a medpay policy provision, and tort liability claims against wrongdoers. The General Assembly enacted no legislation allowing for insurance write-offs in the context of tort liability claims and did not abrogate the collateral source rule as applied in tort cases.

11

State Farm v. Bowers does not govern tort actions In State Farm v. Bowers,18 the insured's medical payments coverage provided certain benefits for medical expenses. The policy defined medical expenses as "all reasonable and necessary expenses for medical. .. services .. .incurred within three years after the date of the accident." 19 The evidence showed that the insured "would never be liable for any amount greater than the amount" that the various health care providers had agreed to accept as full payment for their services based on a fee schedule established by the health insurance carrier.20 Upon this evidence, the Virginia Supreme Court held that amounts in excess of the amounts set forth in the fee schedule were not "incurred" by the insured within three years after the accident, as required to be compensable under the policy.

The State Farm v. Bowers case was not a tort action against a wrongdoer (in which the collateral source rule would apply) but rather was a contractual med-pay dispute between an insured and the insurance company under express policy language of a med-pay coverage provision. The State Farm v. Bowers opinion does not, directly or indirectly, cast doubt upon the continuing vitality of the collateral source rule in tort actions. The Supreme Court of Virginia did not overrule or abrogate the collateral source rule,. and in fact did not even mention the rule or cite any case involving the rule.21

Conclusion The collateral source rule bars evidence of collateral insurance matters in tort actions. Evidence of \Yrite-offs or discounts of a plaintiff's medical bills is excluded and inadmissible in tort actions under this rule, as numerous trial courts have correctly held. The trial court decisions to the contrary have abrogated the collateral source rule without reason or authority, and have opened a Pandora's box of problems that they have failed to consider. The 1997 med-pay statutory amendment and the 1998 State Farm v. Bowers med -pay decision do not abrogate the collateral source rule, and that rule continues to forbid the injection of health insurance write-offs and other collateral insurance matters into tort actions.

cont'd on page 12


Collateral Source Rule cont'd from page 11

1 Schicklingv. Aspinall, 235 Va. 472, 476 (1988).

2 Owen v. Dixon, 162 Va. 601,608-09 (1934).

3 Id. at 609 (quoting earlier decision). 4Hill v. Tuttle, CL97-734 (Circuit Court for the City of

Roanoke) (April 2, 1998), the trial court refused to allow the defendant in a tort action to conduct discovery regarding health insurance write-offs. The Circuit Court held that under the cole lateral source rule "any benefit bought and paid for by the injured party will not be used to reduce the damages owed by the tortfeasor." Numerous other courts have agreed. Shrader v. Sentara Hospitals (Norfolk Circuit Court, Judge Lydia C. Taylor, April 1997); Hooks v. Sentara Hospitals (Norfolk Circuit Court, Judge Junius P. Fulton, III, May 1997); Smith v. Jernigan (Norfolk Circuit Court, Judge Everett A. Martin, Jr., June 1997); Wooten v. Gore (Hampton Circuit Court, Judge W.C. Andrews, III, reported June 1997); Boehm v. Machado (Fairfax County Circuit Court, March 27, 1998) [all of these trial court decisions are available from the Virginia Trial Lawyers Association at (804) 343-1143].

5Thus, for example, in Comley v. Shepard, CL95-487 (Circuit Court of Spotsylvania County) that the defendant would be permitted to permitted to conduct discovery regarding alleged health insurance write-offi or write-downs of medical bills.

6Johnson v. Kellam, 162 Va. 757, 764-65 (1934). See Schickling v. Aspinall, supra.

7 Schickling, 235 Va. at 475.

8 Baltimore .& Ohio Railroad Co. v. Wrightman's Adm'r, 70 Va. (29 Gratt.) 431 (1877), rev'd on other grounds, 104 U.S. 5 (1881). In Baltimore & Ohio Railroad Co., the Virginia Supreme Court did not permit the defendant in a wrongful death action to show that the deceased's widow had received life insurance benefits payable upon the death of her husband. The Baltimore & Ohio Railroad Co. case was cited with approval in Owen v. Dixon, 162 Va. 601 (1934), in which the court stated that the reason for. the collateral source rule is to require a wrongdoer to compensate an injured party for harm that the wrongdoer has inflicted, without any reference to other compensation. According to the Owen decision, when. a defendant is .liable in dama$es, his liability is not to be measured by taking into consideration any financial benefits to the plaintiff resulting from collateral sources. Owen, 162 Va. at 608-09. The Court repeated its earlier reasoning in Baltimore & Ohio Railroad Co.: '''The party effecting· the insurance paid the. full value for it, and there is no equity ill. the claim of the defendant to the benefit of a contract for which it gave no consideration.''' 162 Va. at 609.

The collateral source· rule was reaffirmed in Johnson v. Kellam, 162 Va. 757 (1934) and Burks v. Webb, 199 Va. 296 (1957). In Johnson, the Virginia Supreme Court observed: "The reason for this rule is that the defendant, who by his negligence, has injured another, owes to such other compensation for the injuries he has inflicted and the payment for those injuries from a collateral source cannot relieve the defendant of his obligation." 162 Va. at 764. The Johnson court cited with approval authority setting forth the principle that a defendant, who did not procure

12

the insurance proceeds out of which a plaintiff is compensated for injuries caused by the defendant, cannot reap the unearned reduction in his responsibility that would result from allowing him credit against the plaintifPs damages commensurate with the plaintiff's insurance proceeds. If the defendant were allowed such a credit, it would be tantamount to giving a wrongdoer the benefit of a policy of insurance without his payment of any premium. 162 Va. at 765. The Burks opinion reaffirmed this rationale for the collateral source rule. Burks, 199 Va. at 304.

The collateral source rule was again unequivocally approved by the Virginia Supreme Court in Walthew v. Davis, 201 Va. 557, 111 S.E.2d 784 (1960). In Walthew, the court refused to allow admission of evidence that the decedent's mother was the beneficiary of a life insurance policy covering the decedent. In so holding, the court invoked the principle that a defendant cannot be relieved of responsibility for his negligent infliction of an injury on the plaintiff on the basis that the plaintiff received some compensation though insurance. 201 Va. at 563.

9 Schickling, 235 Va. at 474-75.

10235 Va. at 475.

llId.

12 See, e.g., Comley v. Shepard, supra.

l3See, e.g., Hope Windows, Inc. v. Snyder, 208 Va. 489 (1968) (admission of evidence or argument that defendant is insured is reversible error); Walthew v. Davis, 201 Va. 557, 563 (1960) (fact that the plaintiff has been or may be compensated for an injury by his own insurance carrier is not admissible).

14Indeed, Virginia law narrowly circumscribes the authority of the court to make factual determinations. See Rule 3:18, Rules of the Supreme Court of Virginia; VA. CODE § 8.01-420.

15 See Rule 3:9A, Rules of the Supreme Court of Virginia; Unemployment Compensation Commission v. Harvey, 179 Va. 202 (1942) (non-party not bound by prior proceedings even though she attended them).

16See Parker v. Elco Elevator Corp., 250 Va. 278 (1995) (medical bills were admissible to support the plaintifPs claim for pain and suffering even though they were inadmissible to prove special damages due to violation of discovery deadline).

17VA. CODE § 38.2-.2201(A)(3).

18255 Va. __ (Virginia Supreme Court, April 17, 1998, Record No. 971257, VTLA No. 1743).

19Id. SlipOpinioilat 1-2 (quoting policy language).

20 Id. Slip Opinion at 6-7.

21 For a more detailed discussion of the issues addressed by this article, see an article by the same author entitled, "Health Insurance Write-Offi Irrelevant Urider Collateral Source Rule," THE JOURNAL OF THE VIRGINIA TRIAL LAWYERS AsSOCIATION, pp. 2-10 (Summer 1998) [copy available upon request by calling the Virginia Trial Lawyers Association at 804/343-1143].

)


Note As the preceding article by Roger Creager was going to press, the Circuit Court of Fairfax County issued a ruling on the collateral source rule as applied to health insurance write-offs. Judge J. Howe Brown of the Fairfax County Circuit Court held that the collateral source rule bars any evidence regarding purported insurance write-offs. The defense argued that the April 1998 decision by the Supreme Court of Virginia in State Farm v. Bowers established that writeoffs should be deducted from the Plaintiff's medical bills. The Fairfax County Circuit Court rejected this argument and held:

... I think that tha t case [State Farm v. Bowers] and 38.2-2201 [the amendment providing for consideration of write-offs on contractual med-pay claims] related to Med. Pay and first party liability, and the defendant is not entitled to the benefit of any agreement the doctor may make with other providers to reduce the amount of the doctor's claim. The plaintiff is entitled to recover a fair amount for the services rendered, and the collateral source rule would prevent it [i.e. would prevent reducing plaintiff's bills by the amount of the asserted write-offs pursuant to health insurance] .

There would be no logic to require - in requiring or allowing the defendant to take the benefit of the deal that ... third-party payers make.

(Boehm v. Machado, Law No. 165267 (Circuit Court of Fairfax County, July 8, 1998) (Transcript of Hearing and Decision at 3-4).

13

Seeing Is Believing?: The Persuasive and

Cost-Effective Use of Videotaped Depositions

by George E. Kostel

T he litigator in the age of television faces the dilemma of when the deposition of a key witness should be recorded on videotape. While

videotaped depositions have been used with success in certain types of cases, the conscientious practitioner should be wary of the cost - both in terms of attorney time and videographer expense - attendant to their use. The following article attempts to outline some of the most common advantages offered by videotaping testimony while relating the difficulties inherent in deposition preparation, recording, and use at trial.

Procedure for Recording Depositions by Videotape Both Virginia and federal procedure now expressly authorize the use of videotape and other non-stenographic means to record depositions) As of this writing, Virginia is one of only three states that have adopted the Uniform Audio-Visual Deposition Act.2 The Uniform Act does not require a transcript to be taken concurrently with the video recording, but a party may insist on a stenographic transcript as long as that party is willing to bear the added expense.3 As the absence of a written record poses a difficult problem when the witness attempts to review his or hertestimony, it is probably wise to continue to create a stenographic transcript of depositions even when video technology is used.4

In federal practice, taking videotaped depositions once required court approval; however, Fed. R. Civ. P. 30(b) was amended in 1993 "to enable practitioners unilaterally to select alternative means of recording depositions, including videotaping them."5

Why Use Vide<;>.taped Depositions? Using videotaped depositions allows a trier of fact to better judge the credibility of the deponent and

George E. Kastel is an attorney with Hazel & Thomas, P.G., Falls Church, Virginia.


Seeing is Believing? contJd from page 13

affords an opportunity to observe the witness' manner and demeanor.6 This seemingly simple answer begs the question of the deposing attorney: is the witness one whose testimony you want the jury to see? If a witness is expected to be evasive or non-responsive, these traits will be more apparent on video.7

Another potential benefit to be assessed prior to videotapirig a deposition is the deterrent effect of a camera on a witness or counsel who is expected (or known) to be obstreperous.8 Having to review the videotape of his or her conduct in front of a judge provides a powerful tool in preventing both deponent and counsel from misbehaving.

Other benefits of the videotaped deposition include the increased possibility of settlement and potentially less hectic trial preparation. Objections to videotaped testimony can be resolved in advance, avoiding some scheduling problems. Videotaped depositions force attorneys to concentrate on the cruCial aspects of their cases, and require a more objective evaluation of both good and bad facts, enhancing the potential for settlement. Attorneys may also be able to better evaluate the appearance, believability, and candor of their - and the opponents'- witnesses. However, counsel may feel pres- . sured to reveal more information in the deposition tllan he normally would.

While the use of video depositions at trial may reduce trial preparation time, extensive preparation is nonetheless needed for the video depOSItion itself, and time for editing the tape and arguing objections must be made before trial, as opposed to making:. argument on the objectionable testimony when it is offeredattrial.9 The result may simply bearealloca-", tion of trial preparation time, rather than a . true timesaver. Even though the rules afford 'the practitioner discretion' to use modern technology, it should not always be exercised.lO

Preparing. for the Videotaped Deposition The most important aspect of a videotaped deposition (aside from the testiniony)is how it looks on television. Because jurors are accustomed to the sophisticated sets of television shows, the videotaped deposition must be polished and professional in order to be effective.ll Of course, production quality is directly proportional to cost. While the initial

. appeal of selecting the cheapest videographer may be strong, the impact at trial may be disastrous.l2 A suc-

cessful video deposition requires (1) witness preparation' (2) proper lighting and set staging, (3) proper sound quality, and (4) professional and accurate editing. The deposing attorney should prepare as if the deponent were testifying at trial.

Preparation of both counsel and witness is the key to a successful video deposition. The attorney must assume the role of director. Witnesses should be advised about manner of speech, upright posture, proper attire arid appropriate body language.l 3 One attorney' suggests sending a detailed letter to each witness who will be deposed using videotape and a meeting before the deposition to review procedures.l4 Others recommend an on-camera "dress rehearsal."l5 This allows the attorney and the witness to see what the jury will be seeing and provides an opportunity both to achieve some level of comfort in front of the camera and determine what subconscious behaviors need to be avoided or amplified during the actual deposition.l6 Proper preparation allows witnesses to feel confident and relaxed on deposition day.

·Conducting the Videotaped Deposition The attorney and her staff must have the proper setting for the deposition. Questions should be as brief as possible.l7 Diagrams and exhibits should be used as often as possible if the testimony is likely to be used at trial. Juries react better to an active scene than they do to a talking head.

The Uniform Act provides basic guidelines for conducting the video deposition. These guidelines include on-screen introductions by each attorney as well as others present, identification of the videogra-

. pher, and objections made in the same way that they • would be fbra stenographic depbsltion.lS '

14

Cost Considerations The cost effectiveness· of video depositions remains uncertain.l9 One prediction is that with all of the added preparation and editing costs, the video deposition may cost twice as mucl;t as a traditional deposition.20 Some suggest videotape can actually save money when a stenographic record is not made as a backup. Further, for those situations where video depositions are used at trial, clients can avoid having to pay an expert to appear twice. It remains to be seen whether or not the cost and efficiency of videotaped depositions decreases to the level of traditional depositions once an in-house production routine has been established. .

)

) -.-~/


Editing the tapes adds to the expense. The process begins with each party designating portions of the depositions to be offered at trial. Opposing and reply designations are then made. If no transcript was prepared from the tape, the designating party must review the footage, which takes longer than reading a transcript, especially since there is no index for the videotape like the one that accompanies the manuscript versions of stenographic transcripts. Objections are then argued and require a ruling in advance of trial, so that the video can be edited. This often proves to be a cumbersome process, especially when rulings made on motions in limine or on issues that arise during trial obviate the need for particular testimony. Invariably, the issues counsel selects from the deposition in advance of trial are not identical to the ones presented at trial. The result is the inevitable delay and confusion (along with juror fatigue) caused by having to advance the video through the extraneous portions of testimony.2l Before trial in the midst of all of the other details for which counsel must prepare, worrying about editing of videotapes simply adOs another preparation concern.22 The pre-trial editing process is not normally required when transcripts are read. At trial, when testimony is offered by transcript recitation, designations can be deleted without delay, with only the stroke of a marker.23

Juror Interest in Videotaped Depositions Trial lawyers have noted with increasing frequency the inability of videotaped depositions to hold juror attention. At least one commentator has noticed a startling failure of videotapes to hold the attention of . jurors.24 After 12 hours, viewers retain only 10% of information presented orally, but can recall 65 to 85% oOnformati()n that is presented bqth orally and visually.· Such studies do not readily lend themselves to an analysis of the effectiveness of videotaped depositions, however, because the "visual" element is largely absent. Watching videotaped testimony is an exceedingly passive exercise -like watching only the audio of a television show.25 This phenomenon has come to be known as the "talking head effect," caused by seeing only a head-shot of the witness in the screen with no variety of camera angles. Having a witness examine models or diagrams during the video deposition - and showing them as exhibits to the jury - tends to alleviate ennui. Looking at charts or graphs in conjunction with live testimony is the type of sensory interplay likely to command the jury's attention.26 In any event, extensive designation of videotaped deposition testimony will. likely be less

15

effective than having individuals testify in court.27 Thus, while video depositions do offer some relief from the boredom of a transcript recited in the monotone of one unfamiliar with it, most agree that there is no real substitute for the presence of a human being in the courtroom. The "talking head" problem may improve as attorneys become more skilled in producing effective video depositions, and as new forms of technology broaden the range of what documents and evidence can be shown to the jury along with the testimony.

Alternatives to Video The advent of television and video in the courtroom was once hailed as the ultimate elixir for juror boredom. If anything, commentators and practitioners have realized that videotape in the courtroom has only enhanced jurors' tendencies to drift.·

Deposition summaries seem to provide a viable alternative to dull recitations of questions and answers of a deponent. The summaries consist of a narrative recitation of the witness' testimony, without the need to include repetitive testimony, lawyerly wrangling and mincing of words. Key points in the testimony can be highlighted by verbatim recitation of the answer to a question. "Cross-examination" summaries may be prepared by the adverse party and read after the summary offered in direct. Any objections to the summary or to questions prompting the testimony can be resolved by the trial court prior to the summary reading to the jury.

Videotaped depositions are increasin3ly being combined with cutting-edge CD-ROM and laser disc technology to create multi-media presentations for the jury. Laser disc technology allows documents to be projected simultaneously with prior testi~ony to impeach the deponent's trial testimony.28 The addic tion of this visual element likely will increase juror interest.

Conclusion· While the initial glowing response to video deposition has dimmed, video isa powerful tool when used correctly with the proper witness. Seeing can be believing -'--'- or disbelieving. If the witness is adverse· and very presentable, consider using a deposition summary or an actor to read the transcript. Thoughtful consideration of one's case and familiarity with the potential deponents in advance of deposition discovery can only assist in case preparation and

contJd on page 16

LITIGATION NEWS FALL 1998 /

Seeing is Believing? contJdfrom page 15

makes the process of selecting a medium for preserving the testimony an easier one.

1 The National Court Reporter's Association has promulgated standards that attempt to ensure uniformity in the procedure, quality, and accuracy of recording depositions on videotape. See NCRA Standardsfor Videotaping Depositions (May 1998 Ed.) (a copy of these Standards can be obtained by calling the NCRA at 800-272-NCRA).

2 See Va. Code Ann. §§ 8.01-412.2-412.7 (Michie 1998) (the "Uniform Act") (North Dakota and Tennessee are the others). Most other states permit deposition videotaping modeled on the former federal procedure requiring court approval, or based on the unilateral power of the noticing party adopted in the 1993 amendments to Fed. R. Civ. P. 30. In all, nearly 40 states have some form of statute permitting deposition recording by videotape.

3Va. CodeAnIL § 8.01-412.2 (Michie 1998). 4Michael 1. Henke & Craig D. Margolis, The Taking and

Use of Video Depositions: An Update, 17 Rev. Litig. 1 (Winter 1998).

58A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure (Civil) §2115 (2d ed. 1994 and 1998 Supp.) (the Federal Rules still require video depositions used at trial or any dispositive motion to be accompanied by a stenographic transcript).

6Stenographic recording allows lawyers to conceal unfavorable aspects of the testimony. Thus, "a lawyer may be able to shield from the jury an unpresentable witness - for example, one whose physical unattractiveness or hostility renders him unlikely to be an effective witness." Rebecca W. Berch, A Proposal to Amend 30(b) of the PRCP: Cross~Disciplinary and Empirical.Evidence Supporting Presumptive. Use of Video to Record Depositions, 59 FordhamL. Rev. 347,349 (Dec. 1990).

7 C6nvefs~ly: Vl.ciiotaping ~. glib~tness capable ~f expl3.ining reSponses in such a way as to curry favor With the jury, or m:ake the attorney sound lik~avillain; is not a gooed· candidate for video. See Gerson A. Zweifach, Depositions Under the New Federal Rules, 23 Litigation 6 (Winter 1997).

8The videotape may also capture evasiveness Qr long perio~ dfhesitation by the witness. Id. .

·9Fred'[l'Ieller ,The Telivised . Witness: Preparing Videotaped Depositions,Trial, September 1992, at 50.

10Zweifach, 23 Litig. at 9 (pointing out the ·benefits of having transcriptr<;acl by "actors" and not using videotape when the witness is not trustworthy or appealing).

11 The Metropolitan Corporate Counsel, Annual Index, September 1996-August 1997.

12 The insights on arranging the most effective video production possible are borrowed from an article authored by Nicholas Walsh, appearing in the Maine Bar Journal. See Nichols H. Walsh, Esq., Alternatives to Live Trial Testimony, 11 Maine Bar. J. 106 (Mar. 1996).

16

13l. Ric Gass, Preparing Your Witness for a Videotape Deposition, For The Defense (September 1992).

14Id.

15 Stacey Hunt & Michael R. Jencks, Video Depositions, Legal Assistant Today, March/April 1998, Vol. 15 No.4 p. 54-59.

16 Henry H. Perritt, Jr., The Randolph W Thower Symposium: Changing Litigation With Science And Technology: Video Depositions, Transcripts and Trials, 43 Emory L.J. 1071, 1074 (Summer 1994) (describing how exaggerated facial expressions, hand gestures, and rocking in one's seat cali be on camera).

17Paul M. Lisnek, Video Testimony Needs More than Just Lights, Camera, Chicago Daily Law Bulletin, March 7, 1994.

18Va. Code Ann. § 8.01-412.4 (Michie 1998). 19 According to some Northern Virginia court reporters, costs

are typically comparable for videotape and stenographic recording. Having both types of records or having a transcript typed from the taped recording will double the cost of the deposition.

20 Videotaping Depositions, Legal Assistant Today, March/April 1998, at 61.

21 Such problems may be short-lived, however as new technology allows the use of a pointer and a bar code to identify specific portions of the taped testimony in seconds. Donald F. Parsons, Technological Tools for Litigation, 14 Delaware Lawyer 33 (Wmter 1996). Furthermore, attorneys are urged to resolve evidentiary issues before trial so that objectionable material may be edited out of the tape that the jury will see. Sheffield, supra at 463.

22 Editing and review time can be reduced by copying the video onto another tape using the extended or long play modes, and reviewing the copy. Heller, supra at 54.

23 Henke & Margolis, supra at 15. 240ne judge has noted, "[F]rankly, I think the verdict is 'in'

on video depositions and the simple truth is that most jurors. do not like them." The problems encountered by the judge include objection.editing problems and delays in skipping excluded material. Sheffield, supra at 462. .

25 Jurors pay attention to the first 15 to 20 minutes of a videotape. This rapid loss of .interest is attributable in,large part to the inability to vary the view, angles and subject. "Americans are used to the MTV version of videos, which means the picture changes every seven seconds. The novelty of going to the movies at trial wears off within five minutes, rendering the· balance of the testimony a challenge. to staying awake. 00 whatever it takes to ,k~C?pthe testimony 01;1 point, short and ,direct. When this is impossible, plaritp ask the COUlt for break time, a~ thi~ is the 'Oiilyruterative'i:ok'eepmg the jury awake:" Lisnek; sUpra at'6: u~ . .

. 27Themcreasingly common practice ofhiriilg actors to 'play ethepart; ()fanul1available witness is illustrative of the preference f()r live testimony. Id.

28 ,zweifac:h, .supra at 9.·

) ./


Ghostwriting by Danny M. Howell

~ the old saying goes, "no good deed goes

unpunished." This is certainly. true when it omes to attorneys who decide to "ghost

write" pleadings for a pro se party litigant. A growing number of court decisions from around the country - including two recent opinions from the Eastern District of Virginia - make it clear that judges are fast losing their patience with ghostwriters, well-intentioned or otherwise.

Ghostwriting Takes Many Different Forms, Presents Different Risks Lawyers are motivated to pen pleadings or simi~ar documents without attribution in a number of SItuations. An attorney might intend to "len[d] some assistance to friends, family members, and others with whom he or she may want to share specialized knowledge."1 Attorneys have been retained by clients "for the discrete limited purpose of drafting the [pro se] complaints."2 Counsel for plaintiffs suing insured defendants m~ght want .to "assist" them in bringing or threatemng bad faith claims against their insurers.3

In any of the above instances, if the document prepared by the attorney is going to filed ~th the Court, it creates numerous problems for Judges and opposing counsel that have prompted threats from the bench of contempt proceedings. Moreover, regardless of whether the document is ever filed in court, it may violate ethical prohibitions. Finally; if the ghosted document embodies legal advice or legal services that are below the standard of care for attorneys, it may serve as a basis for a malpractice action.

Courts Are Threatening To Hole;! . Ghostwriters In Contempt Among a flurry of recent federal court rulings condemning the practice of lawyers ghosting pro se pleadings are two published opinions from the Eastern District's Norfolk Division, both warning attorneys that such conduct may merit sanctions for

Danny M. Howell is an attorney with Schraub & Company, Chtd., Alexandria, Virginia.

17

contempt in the future. 4 In Laremont-Lopez v. Southeastern Tidewater Opportunity Project, the court noted three reasons why the practice is problematic for the Court:

1. Pro se pleadings are held to less· stringent standards than formal pleadings drafted by lawyers. s "When, however, complaints drafted by attorneys are filed [pro se], the indulgence extended to the pro se party has the perverse effect of skewing the playing field rather than leveling it."6

2. "Rule 11 prohibits the imposition of monetary sanctions against a represented party for filing legally frivolous claims. Thus, although the plaintiffs have signed the complaints, they may assert immunity from sanctions because they retained counsel to draft the complaints. "7

3. "[T]he practice of ghostwriting pleadings or motions for otherwise pro se litigants allows attorneys to circumvent [lotal rules of court providing] that once an attorney has entered an appearance ... withdrawal is permitted only by order of the court .... "8

To date, in no reported decision has an attor-. ney been sanctioned for ghostwriting pleadings. Nevertheless, citing a fundamental concern that ghostwriting interferes with the fair and efficient administration· of justice, courts have taken the trouble to publish lengthy opinions for the express purpose of putting the bar on n?tic~ tha~ such conduct may merit contempt cltatlOns 10 the future.9

'Does Ghostwriting Violate Ru1es Of Professional Conduct? Some courts have complained that the PlClctice of ghostwriting does not appear to fit within any specific ethical prohibiti()n,lO But depending on the circumstances, such conduct may certainly violate several general ethics rules. .

Thus, in one of the few such opinions nationwide to address the issue, Virginia Legal Ethics Opinion 1592 provides that an attorney, retai~ed by an insurance company to represent a carner, who advises a purported pro se uninsured motorist "about the issues in the case or matters which will be presented to the court," without disclosing such

cont'd on page 18


Ghostwriting contJdfrom page 17

conduct to the Court, violates (a) Disciplinary Rule 7-102(A)(3) of the Virginia Code of Professional Responsibility, which requires that a lawyer shall not conceal.or knowingly fail to disclose that which he is required by law to reveal; and (b) D.R. 7-105(A), which provides in part that a lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal.

The opinion also notes that failure to disclose the attorney's substantial assistance, "including the . drafting of pleadings and motions, may also' be a

. misrepresentation to the Court and to opposing counsel and, therefore, violative ofD.R. 1-102(A)(4) prohibiting a lawyer from "engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer'S fitness to practice law. "11

Finally, if the prose party's interests "have a reasonable possibility of being in conflict with the interest of the lawyer's client," the lawyer is prohibited, under D.R. 7-103(A)(2), from giving any advice to the pro se party other than the advice to secure counsel.

Does Ghostwriting Establish An Attorney-Client Relationship? An equally. big headache for ghostwriting lawyers involves potential conflict and malpractice issues. Writing pleadings for pro se parties typically involves giving legal advice - indeed, the advice is embodied in the document itself, and maybe. accompanied bYQtherfoJ.:m~· of .legaL .advice and! services .. The a·90ye~dted.Virginia L~gaLEthics; Opinion 1592 c()fiduded. that under its hyp()~etical; me a~torney w~o prepared discovery responses and gave other adyite . to the pro se. party, estab-

. . lished an attoflley-dientrdationship with that part)r).i ., . .. . .

. Under such circumstances, the full panoply of conflIct rules may suddenly descend on counsel's head, including the possibility that an attorney may find herself simultaneously representing conflicting parties in violation of Canon 5.13 This can produce disastrous consequences. For example, assume that an attorney represents plaintiff A in a lawsuit against insured defendant B. Thereafter, the attorney for plaintiff A learns that defendant

B's insurer has brought a declaratory judgment action seeking to determine whether coverage exists with respect to plaintiff A's claim, and that defendant B is proceeding pro se in the coverage action. The attorney for plaintiff A may believe that it is somehow safe to ghostwrite pleadings for defendant B in the coverage case- after all; presumably both plaintiff A and defendant B share a common interest in seeing that there is insurance coverage for the claim.

. But if the effect of ghostwriting pleadings for defendant B in the coverage suit is to create an attorney-client relationship between plaintiff A's attorney and defendant B, plaintiffA's attorney will end up - albeit unwittingly - in the position of simultaneously representirig two clients whose interests are essentially adverse, and therefore subject to disqualification.

Moreover, the attorney for plaintiff A risks a malpractice suit by defendant B should the attorney's advice or services embodied in the ghostwritten pleading turn out to be below the standard of care and to proximately cause damages. For that matter, should the attorney's conduct lead to disqualification in plaintiff A's suit, plaintiff A might claim malpractice as well.

Evaluating The Risks "[G]hostwritingis far more serious than might appear at first blush. "14 Nevertheless, by some accounts the practice of ghostwriting is common, both in Virginia and elsewhere.15

It remains to be seen whether those c.ourts. that have warned of contempt sanctions for ghostwriting will follow thrO.ughwith future findings of conJern.pt .. Meanwhile". ina world where attorneys

.'. :already face myriad risks. associated. with . the everyday, practice of law, it is surprising that any lawyer would knowingly embrace the potentially severe adverse consequences associated with ghostwriting .

18

1 Ricotta, .P. State) 1998 U:S. Dist. LEXIS 6253, *74 (S.D. Cal. April 15, 1998).

2Laremont-Lopez P. Southea,stern Tidewater Opportunity Project) 968 F. Supp. 1075,1078 (E.D. Va. 1997).

3See N.Y. St. Bar Ass'n Comm. on Professional Ethics Opinion No. 358 (Sept. 10, 1974) (reproduced in 46 N.Y. St. B.J. 625 (1974)(plaintifPs attorney wanted to let a proposed

)


defendant in a personal injury case kflow - by copying him on a letter to the carrier - that the carrier's failure to settle would be bad faith and would expose the carrier and the insured to a judgment in excess of policy limits; North Carolina Ethics Opinion No. 194 (Jan. 13, 1995), reported in ABA/BNA Lawyers' Manual On Professional Conduct at 1001:6613 (Plaintiffs' personal injury lawyer wrote unrepresented prospective defendant encouraging him to settle, "noting that while the insurance company will hire a lawyer to defend the claim, 'his or her responsibility will be divided between you and the insurance company.'"

4See Clarke v. United States, 955 F. Supp. 593, 598 (E.D. Va. 1997)(Doumar, J.); Laremont-Lopez, supra, 968 F. Supp. at 1080 (Morgan, J.).

5 Laremont-Lopez, supra, 968 F. Supp. at 1078, citing Haines v. Kerner, 404 U.S. 519 (1972); White v. White, 886 F.2d 721, 725 (4th Cir. 1989).

6 Laremont-Lopez, supra, 968 F. Supp. atl078.

7 Laremont-Lopez, supra, 968 F. Supp. at 1079, citing Fed. R Civ. P. 1l(c)(2)(A).

8 Laremont-Lopez, supra, 968 F. Supp. at 1079.

9 Laremont-Lopez, supra, 968 F. Supp. at 1077; Johnson v. Board of County Commissioners; 868 F. Supp. 1226, 1232 (D. Colo. 1994)("As a' matter of fundamental fairness, advance notice that ghostwriting can subject an attorney to contempt of court is required. This memorandum opinion and order being published thus serves that purpose. ").

10 See Johnson, supra, 868 F. Supp. at 1232 ("[S]uch conduct may be contemptuous irrespective of the degree to which it is considered unprofessional by the governing bodies of the bar."); Laremont-Lopez, supra, 968 F. Supp. at 1080 ("[T]here is no specific rule which deals with ... ghostwriting. "); Ricotta, supra, 1998 U.S. Dist. LEXIS 6253, *77 (calling on local courts and the bar ·"to directly address the issue of ghostwriting and delineate what behavior is and is not appropriate. ").

11 Virginia Legal Ethics Op. 1592. See also Wesley v. Don Stein Buick, Inc., 9.87,F. Supp. 884 (D. Kan. 1997); citing Model Code ofPro(essional Responsibilio/ DR 1-102(A)(4).

12Virginia Legal Ethics Op. 1592, citing Part Six, Section I(B) of the Rules of the Supreme Court ofVrrginia.

13 See Formal Opinion 102, ABA Comm. on Professional Ethics (Dec. 15, 1933)("It is not improper for an attorney representing an employer to draw up settlement papers ... when the employee is not represented by counsel as long as the attorney dOes hot advise or mislead the employee as to the law ... " " ... the attorney in drafting the settlement papers should refrain from advising the servant about the law, and particularly, must avoid misleading the servant concerning the law or the facts.").

14 Johnson, supra, 868 F. Supp. at 123l.

15 See Laremont-Lopez, supra, 968 F. Supp. at 1077 ("[I]t was represented to the Court that this practice of ghostwriting is not unique to the Attorneys and cases at hand .... This Court is unaware that this practice is as widespread as represented by counsel at oral argument and by affidavit. ").

Cyber Cite by Kevin W Grierson

In this issue, I have a list of some government sites of interest to litigators. Thanks in no small part to Vice President Gore's

national information infrastructure initiatives, the federal government is making much more information available to the public via the web than ever before. Here's a sample of some sites:

http://www.house.gov/govsites.htmlis the House of Representatives listing of government sites.

http://www.gsa.gov/ is the home page of the General Services Administration.

http://www.gpo.gov/ is the Government Printing Office's home page, which contains a database of publications.

http://fic.info.gov/ is the home page of the Federal Information Center, a very large information site.

For those of you who get lost trying to find the right department in the right agency, http://fedgate.org/ provides an easy way to locate U.S. government sites.

Finally, here, area couple of private sites that may have information useful to litigators:

http://wWW~l1lada.orgl is the home page for the National'Legal Aid & Defender Association, providing information on criminal defense.

, http://www.ncdd.com/articie.s.html/ contains pointers to a collection of articles on vehicular alcohol offenses, presented by the National College for DUI Defense, Inc.

19


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:

Evidence Adam J. Myers, III. MisapplicatiDn Df the AttDrney

Matthew J. Bester, Comment. A Wreck Dn the InfDBahn: ElectrDnic Mail and the DestructiDn Df Evidence. 6 CommLaw Conspectus 75-88 (1998).

Julie E. Blend. Using Expert Witnesses in Employment LitigatiDn. 17 Rev. Litig. 27-68 (1998).

Scott Brewer. Scientific Expert TestimDny and Intellectual Due PrDcess. 107 Yale L.J. 1535-1681 (1998).

Kim K Burke. The Use Df Experts in EnvirDnmental Litigation: A PractitiDner)s Guide. 25 N. Ky. L. Rev. 111-139 (1997).

Ronald J. Colombo, Note. FDrgive Us Our Sins: The Inadequacies Df the Clergy-Penitent Privilege. 73 N.Y.U. L. Rev. 225-252 (1998).

Lesley E. Daigle, Note. Tell Me No. Timing Rule and Pll Tell You No. Lies: Why A Child)s PriDr CDnsistent Statements ShDUld Be Admissible WithDut a PremDtive Requirement-A Critique Df. .. (Tome v. United States, 513 U.S. 150, 1995.) 17 Rev. Litig. 91-117 (1998).

Stephen D. Easton. ((Yer Outta Herefl' A FramewDrk fDr Analyzing the PDtentialExclusiDn Df Expert '. ~$tim~ny U~4er the Federal Rule~- DflJc-eitipn,ce, 32; g. ' Ric~.;L..-~v.1-62 (l ?98). . ..

Michael.J; Henke and Craig D. Margolis. The Taking ~

""nd Use of V~d~,o .. JJfpositiD!1s: An Up4(;{,te. 17 Rev. Litig,;1~25(1998} " . . ... '. .' .

DonnieL.Kidd, In, Casenote;, Pretending iD Upset the Balance: Old Chiefv. VnitedStates and ExclusiDn . Df PriDr FelDny CDnvictiDns Evidence Under Federal Rule Df Evidence 403. (Old Chief v. United States, . 117 S. Ct. 644, 1997.) 32 U. Rich. L. Rev. 231-273 • (1998).

Bryan A. Liang. ShDrtcuts to. ((Truth»: The Legal MythDIDgy Df Dying DeclaratiDns. 35 Am. Crim. L. Rev. 229~277-(1998).

20

Malpractice Paradigm to. LitigatiDn Services: ((Suit Within a Suit)) ShDrtcDmings CDmpel Witness ImmunityfDr Experts. 25 Pepp. L. Rev. 1-35 (1997).

William A. Schroeder. Evidence Df Habit and RDutine Practice. 29 Loy. U. Chic. L.J. 385-410 (1998).

Stephen Aaron Silver, Note. BeYDnd Jaffee v. RedmDnd: ShDuld the Federal CDurts RecDgnize a Right to. Physician-PatientCDnfidentiality? (Jaffee v. Redmond, 116 S. Ct. 1923, 1996). 58 Ohio St. L.J. 1809-1866 (1998).

Brian M. Smith, Note. Be Careful HDW You Use It Dr YDU May LDse It: A MDdern LDok atCDrpDrate AttDrney-Client Privilege and the Ease Df Waiver in VariDUS Circuits. 75 U. Det. Mercy L. Rev. 389-414 (1998).

Andrew R. Taggart, Comment. Parent-Subsidiary CDmmunicatiDns and the AttDrney-Client Privilege.· 65 U. Chi. L. Rev. 315"343 (1998).

Insurance Law R.D. Blanchard. An Insurance Agen~s Legal Duties to' CustDmers. 21 Hamline L. Rev. 9-30 (1997);

Colleen B. Hand,Casenote. Limitations' Dn an Insurer)s Duty. Toward . Third~ Party Claimants. (Theriot v;; Midland Risk Ins'.; CO., '694 So~"'2d 184, La. f997. }43Loy; L. Rev.489~502 (1997): ',. . --.

J ~ffrey 0' Connell ~nd' Christopher J. Robinette'. -((Cftoice Auto. Insurance»;' Do. Theories Df Justice R,elfttire Lin,kage.Between 1njurersanAthe Injured? 1997U. Ill. L. Rev. 1109-1138.

Charles D. Weller. The Secret Life' of the DDminant FDrmof Managed Care: SelFInsured ERISA NetwDrks. 6 Health Matrix 305-348 (1996).

Practice and Procedure Jose Felipe Anderson. Catch Me If YDU Can! ResDlving the Ethical·Tragedies. in the Brave New ~rld DfJury SelectiDn. 32 New EJ;lg. L. Rev. 343-400 (1998).

) J


Recent Law Review Articles (cont'd)

Coburn R. Beck, Note. The Current State of the Peremptory Challenge. 39 Wm. & Mary L. Rev. 961-1001 (1998).

Alan K Chen. The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law. 47 Am. U. L. Rev. 1-104 (1997).

Steven T.O. Cottreau, Note. The Due Process Right to Opt Out of Class Actions. 73 N.Y.U. L. Rev. 480-528 (1998).

Nancy J. King. Silencing Nullification Advocacy Inside the Jury. Room and Outside the Courtroom. 65 U. Chi. L. Rev. 433-500 (1998).

Steven S. Sparling, Note. Relation Back of (John Doe)} . Complaints in Federal Court: What You Don)t Know Can Hurt You. 19 Cardozo L. Rev. 1235-1282 (1997).

Products Liability David L. Sunding and David Zilberman. Allocating Product Liability in a Multimarket Setting. 18 Int'l Rev. L. & Econ. 1-11 (1998).

Joel R. Wolfson. Express Warranties and Published Information Content Under Article 2B: Does the Shoe Fit? 16 J. Marshall 1. Computer & Info. L. 337-392 (1997).

Torts Todd S. Aagaard, Note. Identifying and Valuing the Injury in ~st Chance Cases. 96 Mich. L. Rev. 1335-1361 (1998).

Neville M. Bilimoria. Beware HMOs: The Future of HMO Medical Malpractice Liability is Uneertain. 1 DePaul J. Health Care L. 711-722 (1997~

Jan. Crawford, Comment. Tort Law: The Appropriate Vehicle to Control HMO Abuse of Gag Clauses. 29 Ariz. St. L.J. 1103-1126 (1997).

KeithE. Edeus, Jr., Comment. Subrogation of Personal Injury Claims: Toward Ending an Inequitable Practice. 17 N. Ill. U. L. Rev. 509-526 (1997).

21

Tara C. Fappiano, Note. Finding a Legal Remedy for the HIV-Positive Infant: Wrongful Life and Lack of Informed Consent Explored. 12 St. John's 1. Legal Comment. 205-240 (1996).

Gil B. Fried. Illegal Moves Off-The-Field: University Liability for Illegal Acts of Student Athletes. 7 Seton Hall J. Sport L. 69-101 (1997).

Thomas C. Grant, Comment. How Uni~ed States v. Noland Prohibits the Disallowance of Punitive Damage Claims in Chapter 11. (United States v. Noland, 116 S. Ct. 1524, 1996). 14 Bankr. Dev. J. 199-226 (1997).

Kirtan K Khalsa, Note. Tort Law -A Cause of Action for Negligent Horseplay. (Yount v. Johnson, 121 N.M. 585, 915 P.2d 341, Ct. App. 1996.) 27 N.M. L. Rev. 661-677 (1997).

Brenda Kimery, Comment. Tort Liability of Nonprofit Corporations and Their Volunteers, Directors, and Officers. 33 Tulsa L.J. 683-704(1997).

Kevin L. Kite, Note. Incremental Identities: LibelProof Plaintifft, Substantial Truth, and the Future of the Incremental Harm Doctrine. 73 N.Y.U. L.Rev. 529-563 (19?8).

Joseph B. Maher, Comment. Survival of the Common Law Abuse of Process Tort in the Face of a NoerrPennington Defense. 65 U. Chi. L. Rev. 627-652 (1998),

Julie Barker Pape, Note. Physician Data Banks: The Public)s Right to Know Versus the Physician)s Right to Privacy. 66 Fordham L. Rev. 975-1028 (1997).

RonaldK Schuster, Note. Standard of Care in Jones Act Negligence Cases-From Slight to Ordinary Care. (Gautreax v. Scurlock Marine, Inc., 107 F.3d 331, 1997 AMC 1521, 5th Cir. 1997, en bane.) 22 Tul. Mar. L.J. 315-327.

Anthony 1. Sperber, Comment. When Nondisclosure Becomes Misrepresentation: Shaping Employer Liability for Incomplete Job Reftrences. 32 U.S.F. L. Rev. 405-431 (1998).


Virginia State Bar Litigation Section Board of Governors

J effr~y Hugh Gray Chair· Willcox & Savage, P.C. One Columbus Center, Suite 1010 P.O. Box 61888 Virginia Beach, VA 23462

757/628-5516 Fax: 757/628-5659

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

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

Glenn Walthall Pulley Secretary Clement & Wheatley, P.C. 549 Main Street ' P.O. Box 8200 Danville, VA 24543-8200

804/793-8200 Fax: 540/793-8436

John J. Sabourin, Jr. Immediate Past Chair Hazel & Thomas, P.C. 3110 Fairview Park Drive, Suite 1400 P.O. Box 12001 Falls Church, VA 22042

703/i?41-:U70 Fax: 703/641-434(),

; :Q..o~,ertCr.tig Wqod . "Past'Chair '. . '.' M~Guire,Wdods, Battle &

Bo()the; L.L.P .. 418 East J~fferson Street P:O.B6i12'88 . Charlbttesvillej VA 2~902~1288

~Q1=/~71 ~ 2,,5,{)O Fax: 8{)4/980~2222

Kevin W. Grierson 9hair-Liti;gation YLC Jon~, Blechman, Woltz & Kelly, P.C. 600 Thimble Shoals Boulevard P.O. Box 12888 Newport News, VA 23612-2888

757/873-8061 Fax: 757/873-8103

R. 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

Me~sa Warner Scoggins Chatr - AppeltatePractice Subcommittee P.O. Box 9035 Chesapeake, VA 23321-9035

757/488-5500 Fax: 757/465-9577

ThomasE. Albro Tremblay & Smith, L.L.P. 105-109 East High 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 Wetheringtpn Melchionna, et al. P.O. Box 90 .•

; R()an()ke, VA24.002-0090 .' . 540/982~3800 Fax: ,540/342-4480

. Frank K,ent1¢th Friedman . VV~~Wqs,'; Ro~ers ~ Hailegrove, PLC' lOSt. J efferspn Street, Suite 1400

. P.O. Box 14125 Roanoke, VA 24038-4125

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

22

James A. Gorry, III Taylor & Walker, P.C. P.O. Box 3490 Norfolk, VA 23514-3490

757/625-7300

George Howard Gromel, Jr. Hunton & Wtlliams 951 East Byrd Street Richmond, VA 23219-4074

804/788-8457

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

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

Mary Lynn Tate Tate, Lowe & Rowlette, P.C. 205 West Main Street Abingdon, VA 24210

540/628-5185 Fax: 540/628-5045

Hon. Mosby Garland Perrow III Ex-Officio Judicial Lynchburg Circuit Court Twenty-Fourth Judicial Circuit 900 Court Street Lynchburg, VA24504

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

Hon. Lydia Calvert Taylor·, < ~::OfftciQ]udicial .' ',. '

Ncirfolk Circuit Court,' . . . 100 St.'p~ui'sBduievard Norfolk, VA 23510-2721

757/664-4593 Fax: 757/664-4581 .

Patricia Sliger Liaison Virginia State Bar 707 East M3.in Street, Suite 1500 Richmond, VA 23219-2803

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

m


Virginia State Bar Litigation Section Young Lawyers Committee

Kevin W. Grierson Chair Jones, Blechman, Woltz & Kelly, P.C. 600 Thimble Shoals Boulevard P.O. Box 12888 Newport News, VA 23612-2888

757 /873~8061 Fax: 757/873-8103

Jirnese L. Pendergraft Past Chair Assistant City Attorney City of Portsmouth, Virginia 801 Crawford Street P.O. Box 820 Portsmouth, VA 23705-0820

757/466-0464 Fax: 757/466-8242

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

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

R. 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 Main Street 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 Office of the County Attorney 12000 Government Center Parkway Suite 549 Fairfax, VA 22035-0064

703/324-2670 Fax: 703/324-2665

23

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


Publish Your Work Litigation News welcomes the submission of litigation-oriented articles. If you have researched or argued an interesting point of Virginia law, or have practice tips tq share, consider condensing them into an article for Litigation News. The contact for submission of these articles is:

R. lee livingston, Esq. . Tremblay & Smith, l.l.P. 105-1 09 East High Street

PO Box 1585 Charlottesville, VA 22902

804/977-4455 fax 804/979-1221

~LITIGATION NEWS Virginia State Bar . Eighth & M.ain Building 707E. Main Street, Suite 1500 Richmond, VA 23219-2803

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