Volume XIII Number 2 Spring 2006 Recognizing Partner Abuse ...

1

Recognizing PartnerAbuse Torts:

Consistent withAwarding Punitive

DamagesE. Scott Austin and Shyrell A. Reed

I. IntroductionExemplary damages have served an invaluable role in our

legal system for over three centuries. These damages serve sev-eral functions. They permit a victim-plaintiff to be punitiveand exact some sort of monetary revenge on his aggressor.These damages also serve as a deterrent to others, who might bein similar situations to the defendant- aggressor, placing themon notice that certain conduct will not go unpunished. Thisdual role of specific and general deterrence permits punitivedamages to enforce public policy. This deterrence permits someavenue for punishment to those who might otherwise avoid it.The flexibility in application of awarding exemplary damagesillustrates the fluidity and dynamism of our legal system.

However, the law is not always quick to change. As itconstantly attempts to address present understandings insocial and psychological science, there is an inherent “lagtime.” Society’s understanding of domestic violence anddomestic abuse has been slow and we have yet to achieve acomplete enlightenment. Understandably, the law of spousaland partner abuse torts has progressed slowly as well. Whilesome states, specifically New Jersey, are seemingly the flag-ships for domestic tort redress, other states are significantlybehind. As the law continues to expand and evolve, onehopes there will be a more complete understanding of thecontinuous nature of domestic abuse. Recognition of partnerabuse as a continuous tort may toll the statute of limitationsand permit an abused spouse or partner an opportunity to

present evidence from all periods during the abuse. As thedoor is opened wider in domestic abuse tort law, it is likelythat punitive damages will play an increasingly larger role as adeterrent. Exemplary damage awards will punish the domes-tic tortfeasor and simultaneously deter others from abusingtheir partners.

II. History of Punitive DamagesA. The Trend in the United States

English common law initially recognized punitive dam-ages in 1763.1 However, the theory of punitive damages hasmore ancient roots.2 The Hammurabi Code of AncientBabylon, the Hindu Code of Manu and the Bible all containprecursors to the present day remedy of punitive damages. 3

The doctrine was adopted in the United States soon afterindependence.4 Genay v. Norris, decided in 1784, was thefirst United States case to award punitive damages.5

In Genay, the Supreme Court of South Carolina award-ed what it called “vindictive damages” against a physician forpoisoning an adversary and causing him “extreme and excru-

Volume XIII Number 2 Spring 2006

E. Scott Austin is a partner at Gentry, Locke, Rakes & Moore in Roanoke. Shyrell A.Reed is an associate at the firm. The authors acknowledge the significant contributionsto this article by James M. Green, a 2006 graduate of Rutgers University School of Law.

Partner Abuse Torts — cont’d on page 4

Recognizing Partner Abuse Torts: Consistent with Awarding Punitive Damages . . . . . . . . . .1by E. Scott Austin and Shyrell A. Reed

Letter from the Chair . . . . . . . . . . . . . . . . . . . . . . . . . . . .2by Samuel W. Meekins, Jr..

The Law of Standing in Virginia – The Court of AppealsPlows New Ground in Environmental Cases . . . . . . . . . .3by Brian L. Buniva

Five Questions to Ask Before Structuring Tort Recoveryfor a Disabled Client . . . . . . . . . . . . . . . . . . . . . . . . . . .8by Carter R. Brothers

The Basics of Litigating a Religious Land use Case UnderRLUIPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16by John G. Stepanovich & Isaiah Kalinowski

View from the Bench . . . . . . . . . . . . . . . . . . . . . . . . . .18by The Honorable Rodham T. Delk, Jr.

Litigation Section Board of Governors . . . . . . . . . . . . . .29

Improper Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . .30by Brett A. Spain

Recent Law Review Articles . . . . . . . . . . . . . . . . . . . . . .32by R. Lee Livingston

TTaabbllee ooff CCoonntteennttss

2

Litigation News Spring 2006

I am sure we are all familiar with the phrase “familiar-ity breeds contempt.” While I do not believe any attorney iscontemptuous of the attorney-client privilege, the fact thatwe deal with it on a daily basis may make us cavalier regard-ing the steps necessary to protect it. The attorney-clientprivilege can be intentionally waived or can be inadvertentlywaived. There are a number of basis for the inadvertentwaiver and to that end, I refer you to L.E. Op. 1786 whichcontains an excellent discussion of the various possibilitieswhen a privileged document somehow comes into the handsof opposition counsel.

Recently, a federal district court had occasion to dealwith the attorney-client privilege in the context of a letterwritten by a city attorney addressed to council membersadvising them regarding the legal implications of an upcom-ing vote. The court was required to review the concept ofprivilege when plaintiffs moved to compel the defendants toproduce the letter on the basis that it was not privileged or,in the alternative, that any such privilege had been lost dueto its handling. In addressing this issue, the federal courtundertook an examination of the concept of attorney-clientprivilege and its protection in the Fourth Circuit. Set forthbelow are excerpts from that Opinion and Order.

A. General Requirements of PrivilegeThe Fourth Circuit Court has adopted the “classic”

test for determining whether privilege applies. See Hawkinsv. Stables, 148 F.3d, 379-83. The attorney-client privilegeonly shields information from discovery if (1) the assertedholder of the privilege is or sought to become a client; (2)the person to whom the communication was made is amember of the bar of a court, or his subordinate in connec-tion with this communication is acting as a lawyer; (3) thecommunication relates to a fact of which the attorney wasinformed by his client, without the presence of strangers, forthe purpose of securing primarily either an opinion on law,legal services or assistance in some legal proceeding, and notfor the purpose of committing a crime or tort; and (4) theprivilege has been claimed and not waived by the client. Id.The burden is on the proponent of the privilege to estab-lish its applicability. In re Grand Jury Subpoena, 415 F.3d333, 338-39 (4th Cir. 2005); United States v. Jones, 696 F.2d1069, 1072 (4th Cir. 1982).

It has long been held that an entity can assert the

attorney-client privilege. United States v. Louisville &Nashville R.R. Co., 236 U.S. 318, 336 (1915) (cited inUpjohn Co. v. United States, 449 U.S. 383, 390 (1981)). Asan entity, a municipal organization may invoke the privilege.Restatem. (Third) of Law Governing Lawyers 74 (2000). Itis more difficult, however, to determine how an entity, orwho in an entity, may assert the privilege and who may waiveit. “The identity of that responsible person or body is a ques-tion of local governmental law.” Id. If the appointment andremoval of the city attorney is made at the pleasure of the citycouncil, the city council is the city attorney’s client and onlythe city council can assert or waive the privilege.

B. Protecting the PrivilegeThe privilege may be waived if a disclosing party does

not take reasonable steps to insure and maintain the confi-dentiality of the information. See In re Grand JuryProceedings, 727 F.2d 1352, 1356 (4th Cir. 1984). “It is nottoo much to insist that if a client wishes to preserve the priv-ilege under such circumstances, he must take some affirma-tive action to preserve confidentiality . . . . Taking or failingto take precautions may be considered as bearing on intent.”FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D.479, 482 (E.D. Va. 1991) (quoting In re: Grand JuryProceedings, 772 F.2d at 1356). In looking for guidance as towhat types of inadvertent disclosure may lead to waiver,many courts have relied on the factors described in LoisSportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D.103, 105 (S.D.N.Y. 1985). The Court in Lois stated that“[t]he elements which go into that determination include thereasonableness of the precautions to prevent inadvertent dis-closure, the time taken to rectify the error, the scope of thediscovery and the extent of the disclosure.” Id.

In this particular case, the court determined that theletter was not adequately protected. The court began by rec-ognizing that the attorney-client privilege is not favored infederal courts (as opposed to the rule of full disclosure) andthe court must view the steps taken by the city in this case tomaintain the confidentiality of the letter in light of that fact.In looking at how the letter was delivered, the court conclud-ed that the city did not take reasonable steps to insure theconfidentiality of the letter. Cited as factors in support ofthat conclusion was the fact that from the outside, the letterlooked like and was handled like any other mail that wouldbe delivered, privileged or not. While the document itself

LLeetttteerr FFrroomm TThhee CChhaaiirrSamuel W. Meekins, Jr.

Samuel W. Meekins, Jr. is Chairman of the Virginia State Bar Litigation Section. Heis a partner in the Virginia Beach firm, Wolcott Rivers Gates.

Letter from the Chair — cont’d on page 21

The Law of Standingin Virginia – The Court ofAppeals Plows

New Ground inEnvironmental Cases

Brian L. Buniva

Many pages have been written about, and many caseshave addressed, the law of standing in Virginia applicable tochallenges to rulings on decisions of state governmental agen-cies. For decades Virginia Courts (unlike federal court jurispru-dence interpreting Article III of the U.S. Constitution)1 deniedplaintiffs standing to challenge decisions of state agencies unlessthe plaintiff met the “person aggrieved” standard, which gener-ally requires the plaintiff to assert a substantial grievance causedby the challenged agency action, which either denied the plain-tiff some personal pecuniary or property right, legal or equi-table, or imposed a burden or obligation different from that suf-fered by the public generally.2 Even after Virginia’s environ-mental laws were amended in the late 1990s to incorporateArticle III into the statutory judicial review provisions of statelaw,3 Virginia courts routinely applied the “person aggrieved”standard rather than the more “generous” standard enunciatedby the U.S. Supreme Court under Article III. All of that waschanged, at least for the moment, by two recent decisions of theCourt of Appeals of Virginia in cases brought by theChesapeake Bay Foundation (the “CBF”) challenging decisionsof the Virginia State Water Control Board (the “SWCB”) in2005 and 2006.

The first case, decided July 19, 2005, involved a chal-lenge by the CBF and a second citizens’ group to the decisionof the SWCB to issue a Virginia Water Protection Permit to adeveloper, which authorized the developer to drain 144 acres ofwetlands in connection with a development project adjacent tothe public Stumpy Lake Nature Preserve. The circuit courtgranted the SWCB’s demurrer, holding that Virginia law, unlikefederal law under Article III, does not recognize “representation-al standing” (a suit brought by an organization on behalf of its

members), and held further that CBF did not allege sufficientfacts in its pleadings, or establish in its affidavits, that it had apecuniary interest or that it owned land that was adverselyaffected.4 The Court of Appeals affirmed, on other grounds,that CBF did not have standing in its own right,5 but reversedand remanded for a determination of whether CBF had allegedsufficient facts to establish “representational standing,” holdingthat the State Water Control Law does indeed recognize theability of an organization to sue on behalf of its members ifproperly alleged in the suit.6 The SWCB petitioned theSupreme Court of Virginia for an appeal, which was denied.7

Having definitively held that the judicial review provi-sions of the Virginia environmental laws identified in footnote23, supra, recognize “representational standing,” the stage wasset to test the application of that concept in Chesapeake BayFoundation, Inc. v. Virginia State Water Control Board.8 Relyingupon the decision of the Circuit Court of the City of Richmondin the Stumpy Lake case, and prior to its partial remand by theCourt of Appeals, the Circuit Court of Chesterfield Countygranted the demurrer of the SWCB and dismissed CBF’s chal-lenge to a wastewater discharge permit issued by the SWCB.The CBF alleged the SWCB permit authorized the wastewaterdischarge of more nitrogen and phosphorus pollution into analready overloaded segment of the James River in violation offederal and state law. The Chesterfield Circuit Court held thatVirginia law did not allow CBF to bring suit in a representativecapacity on behalf of its members, and also found that CBF hadnot alleged sufficient facts to establish the legal standing criteriaunder Article III in its own right. The Court of Appealsreversed both holdings of the trial court and remanded the casefor trial.9

The Court of Appeals made numerous significant pointsin Chesapeake Bay Foundation, Inc. v. Virginia State WaterControl Board. First, in order for an organization to establish ithas standing to challenge an agency decision in its own right, itmust establish that it meets the three-part test established byfederal cases interpreting Article III of the United StatesConstitution, i.e. the plaintiff must allege (i) an injury in fact,(ii) causation, and (iii) redressability. The injury alleged must beboth concrete and particularized, and actual or imminent there-by precluding those with merely generalized grievances frombringing suit to vindicate an interest common to the public atlarge.10 The injury may be to economic interests, but theinjury may also be to the plaintiff ’s “aesthetic or recreationalinterests.” The Court held that aesthetic and environmentalwell-being, like economic well-being, are important ingredientsof the quality of life in our society, “. . . and the fact that partic-ular environmental interests are shared by the many rather thanthe few does not make them less deserving of legal protection aslong as the party seeking review is himself among the

3

Spring 2006 Litigation News

Brian L. Buniva, is a partner on the Administrative Law and Government Relationsteam at LeClair Ryan.

Standing in Virginia — cont’d on page 10

4


ciating pain.”6 The court instructed the jury that “a veryserious injury to the plaintiff . . . entitled him to very exem-plary damages, especially from a pro-fessional character, who could notplead ignorance of the operation andpowerful effects of this medicine.”7

So from the first use of punitivedamages in the United States, itspurpose was to protect a weaker orunsuspecting victim from the reck-less acts of an aggressor.

Another early case was Coryellv. Colbaugh,8 a 1791 New Jerseycase.9 In Coryell, when the defen-dant breached his promise to marrythe plaintiff, the jury awarded dam-ages for “example’s sake” againsthim.10 The judge instructed thejury “not to estimate the damages byany particular proof of suffering oractual loss; but to give damages forexample’s sake, to prevent suchoffenses in the future.”11

During the nineteenth century, however, courts weregenerally disinclined to order payment of punitive damages.12

Even if punitive damages were awarded, the size of the puni-tive award was rather small in comparison to the compensa-tory damage award.13 Moreover, as the penalty could notdestroy the offender’s ability to make a living, even nominalpunitive damages were considered ample punishment.14

B. Contemporary Treatment of Exemplary DamagesToday, requesting an award of punitive damages is a

much more common aspect of tort litigation.15 Punitivedamages are often sought by plaintiffs and occasionallyawarded by juries. Further, these awards are seldom dis-turbed on appeal.16

Virginia law imposes punitive damages, otherwiseknown as exemplary damages, against “a wrongdoer who hasacted. . . . with a disregard of the rights of others . . . .”17

The award of punitive damages is a jury issue where the factsand the inferences therefrom establish that the defendant’snegligence is so “willful and wanton” as to evince a consciousdisregard of the right of others.18 The Supreme Court ofVirginia has defined “willful and wanton negligence” as“action undertaken in conscious disregard of another’s rights,

or with reckless indifference to consequences with the defen-dant aware, from his knowledge of existing circumstancesand conditions, that his conduct probably would causeinjury to another.”19

The conclusion that a party actedwith a conscious disregard of another’srights need only be a “possible conclu-sion” the jury could reach for thismatter to be submitted to the jury fora decision on punitive damages.20

Twenty-four states have eitherpassed statutes requiring plaintiffs toprove punitive damages by theheightened standard of “clear andconvincing evidence,” or have dictat-ed the heightened standard throughcase law.21 Eleven states maintainstatutes requiring plaintiffs to estab-lish the existence of malice on thepart of defendants before their courtswill sustain punitive damageawards.22 At the least, negligencewill often not be enough to permitrecovery for punitive damages.Alabama and Virginia have taken an

even more extreme track, capping punitive damages at fixedamounts.23 Alabama has further limited the award of puni-tive damages by setting a standard of 3-1 punitive to com-pensatory damages ratio.24 While not as rigid, Virginia doesmaintain a maximum recovery of $350,000 per plaintiff.25

Many push for further punitive damage reform.26

One proposed reform is the Model State Punitive DamagesAct proposed by the President’s Council onCompetitiveness.27 The six-part Model Act provides for: (1)the elimination of ad damnum clauses in punitive cases; (2) aheightened standard of proof based on clear and convincingevidence; (3) proof that the defendant acted with malice andintent to cause serious harm; (4) bifurcated trials where courtsaward punitive damages only after a separate trial specificallyestablishing punitive liability; (5) judge- rather than jury-determined punitive damages; and (6) a cap on punitive dam-ages at no more than the total compensatory award.28

III. When Should Punitive Damages Be Awarded?A. Purpose of Exemplary Damages

The primary motivation for awarding punitive damages, his-torically, was to restrict the abuse of the weak by the power-ful.29 Even today, the most common justification given to

Partner Abuse Torts cont’d from page 1

Society’s understanding of

domestic violence and

domestic abuse has been

slow and we have yet to

achieve a complete

enlightenment.

Understandably, the law of

spousal and partner abuse

torts has progressed

slowly as well.

5


support the recovery of punitive damages is that the awardfunctions to punish the defendant, as well as to deter othersin the defendant’s position from comparable behavior.30

Legal scholars and courts alike regularly note punishmentand deterrence as the dual social functions of punitive dam-ages.31 In Pacific Mutual Life Insurance Co. v. Haslip,32 theUnited States Supreme Court reaffirmed that punitive dam-age awards should be reasonably related to the goals of retri-bution and deterrence.33 By their nature, punitive damagesdiffer from compensatory damages because they do nothinge on the amount of financial loss suffered by the dam-aged party — rather, the amount awarded is based upon afigure that is believed to properly punish or deter the wrong-ful conduct.34

Courts may theoretically “impose punitive damages infour general situations: punishment necessary but deterrenceunnecessary, punishment unnecessary but deterrence neces-sary, both necessary but greater punishment desired, and bothnecessary but greater deterrence desired.”35 Specific deter-rence focuses on preventing a defendant from repeating an act,whereas general deterrence focuses on sending a message to theworld that specific misconduct will not be tolerated.

In other words, to collect punitive damages in a tortcase, there must be some additional element of asocial behav-ior that goes beyond the facts necessary to create a simple casein tort.36 Thus, it has held been that, with rare exceptions,punitive damages are available only for intentional torts.37

Courts regularly assess exemplary damages against thosewho oppress the socially powerless and physically weak.38

Courts also award punitive damages to female plaintiffs forassault and battery, rape, and sexual harassment.39 The rem-edy has been used not only to punish and deter sexual assaultand harassment, but also to keep the peace and uphold com-munity morals.40 Further, punitive damages are awarded incases of malicious injuries accompanied by oppressive or cruelconduct, including damages for the alienation of a spousewhen accompanied by such conduct.41

In some other early cases, courts would justify awardsof punitive damages as a recognition of the differences inphysical strength and stature between men and women.42

In Powell v. Meiers,43 the male defendant argued that thefemale plaintiff ’s initiation of the assault, which occurred byher throwing a hand towel in his face, justified his con-duct.44 The Court said that “we are not impressed that thedefendant was in such grave danger of personal harm at thehands of Mrs. Powell that he was justified in hitting her andkicking her with the force disclosed by the record.”45

B. Punitive Damages Straddle the Line BetweenCriminal and Tort Law

In most jurisdictions, it is now recognized that puni-tive damages serve an important purpose of bridging the gapbetween criminal and tort law. Conduct lying on the bound-ary between crime and tort entails conduct that is tortiousand at the same time inimical to the public safety.46

Punitive damages serve the valuable purpose of helping tobridge this gap and, in part, represent a type of recognitionof this blurred distinction.47 Exemplary damages have aunique ability to straddle the border between tort and crimeby offering a motivation to plaintiffs.48

C. The Haslip FactorsIn reviewing a punitive damage award, the United

States Supreme Court delineated several factors that shouldbe considered. In Haslip, the Court determined which fac-tors should be used “for determining whether a punitiveaward is reasonably related to the goals of deterrence and ret-ribution.”49 These factors include:

(a) whether there is a reasonable relationshipbetween the punitive damages award and theharm likely to result from the defendant’s conductas well as the harm that actually has occurred; (b)the degree of reprehensibility of the defendant’sconduct, the duration of that conduct, the defen-dant’s awareness, any concealment, and the exis-tence and frequency of similar past conduct; (c)the profitability to the defendant of the wrongfulconduct and the desirability of removing thatprofit and of having the defendant also sustain aloss; (d) the “financial position” of the defendant;(e) all the costs of litigation; (f ) the imposition ofcriminal sanctions on the defendant for its con-duct, these to be taken in mitigation; and (g) theexistence of other civil awards against the defen-dant for the same conduct, these also to be takenin mitigation.50

D. Examples of When Punitive Damages Are AwardedSpecific tort-based causes of action in which punitive

damages may be available include actions for: injuries to, or forthe wrongful taking or destruction of, property, abuse ofprocess, injuries to and by animals, assault and battery, person-al injuries or wrongful ejection by carriers, arrest or imprison-ment, fraud and deceit, criminal conversation or alienation of


6


affections, interference with employment, contract, or busi-ness relations, damages resulting from the sale of intoxicatingliquors, libel or slander, malicious prosecution, medical mal-practice, nuisances, seduction, wrongful acts in regard to thetransmission or delivery of telegraphic messages.51

Many courts have held or implied that the intoxica-tion of a driver is a proper basis for an award of punitivedamages.52 Other cases indicatethat the mere fact of a motorist’sintoxication will not support anaward of punitive damages absent ashowing of malice, but this is not thelaw in Virginia.53 However, thewillful consumption of alcoholicbeverages to the point of intoxica-tion, knowing that one will operate amotor vehicle afterwards, constitutesa conscious disregard of the safety ofothers, which may, in turn, consti-tute malice.54 Further, a statuteproviding a specific basis for award-ing punitive damages in cases involv-ing a tortfeasor’s operation of a vehi-cle while voluntarily intoxicated mayeliminate the requirement that theplaintiff prove malice.55

Previously, recovery of punitivedamages was denied when predicated on an act which is pun-ishable under the criminal law. However, presently, as a gen-eral rule, the recovery of punitive damages will not be deniedmerely because the wrongful act upon which the action isbased may be or has been punished criminally.56 Courts fol-lowing the general rule take the position that allowing puni-tive damages in such cases does not violate the constitutionalguarantee that no person shall be twice put in jeopardy for thesame offense.57 Thus, a punitive damages award may supple-ment the criminal law in punishing the defendant.58

IV. Domestic TortsA. Background – Recognition of Battered Woman’s

SyndromeNew Jersey is arguably at the forefront of domestic

violence protection. New Jersey has permitted batteredwoman’s syndrome to be used as a defense as well as to justi-fy tolling the statute of limitations for tort claims.59

However, other states have not been quick to follow.60 In

Kelly,61 the New Jersey Supreme Court, relying heavily onthe research of Lenore E. Walker,62 noted that batteredwoman’s syndrome is a recognized medical condition. Bydefinition, a battered woman is one who is repeatedly physi-cally or emotionally abused by a man in an attempt to forceher to do his bidding without regard for her rights.63

According to experts, in order to be a battered woman, thewoman and her abuser must go through the “battering cycle”at least twice.64

The battering cycle consists ofthree stages. Stage one, the “tension-building stage,” involves some minorphysical and verbal abuse while thewoman tries to prevent an escalationof the abuse by assuaging the abuserwith her passivity.65 Stage two, the“acute battering incident,” is charac-terized by more severe battering dueto either a triggering event in theabuser’s life or the woman’s inabilityto control the anger and fear sheexperienced during stage one.66

During stage three, the abuser pleadsfor forgiveness and promises that hewill not abuse again.67 This periodof relative calm and normalcy even-tually ends when the cycle beginsanew.68

Battered woman’s syndrome ismore correctly the medical condition resulting from contin-ued acts of physical or psychological misconduct.69 Becausethe resulting psychological state, composed of varied butidentifiable characteristics, is the product of at least two sep-arate and discrete physical or psychological acts occurring atdifferent times, to overcome the statute of limitations it isimperative that the tortious conduct giving rise to the med-ical condition be considered a continuous tort.70

Domestic violence typically stems from and rein-forces a pervasive pattern of male power and female sub-servience within the family and society.71 Domestic vio-lence usually is prevalent along a continuum with othermanifestations of sex discrimination, including inequalityin the workplace, and inadequate access to welfare, childsupport, and child care.72 Professor Goldfarb points outthat each and every aspect of women’s oppression rendersthem vulnerable to violence.73 This, in turn, creates a pos-itive feedback loop: this violence makes women more vul-nerable to other forms of disadvantage, which makes them


As the law continues to expand

and evolve, one hopes there will

be a more complete

understanding of the continuous

nature of domestic abuse.

Recognition of partner abuse as

a continuous tort may toll the

statute of limitations and

permit an abused spouse or

partner an opportunity to

present evidence from all

periods during the abuse.

more vulnerable to more violence.74

B. Recognition of the Tort of Partner AbuseThe challenge for the law is to respond to domestic

violence in a way that recognizes and redresses such acts as adeprivation of women’s fundamental right to equality.75

One of the first attempts, and the first federal attempt, at thiswas the Violence Against Women Act of 1994 (“VAWA”).76

VAWA’s civil rights provision declared there to be a federalcivil right to be free from gender-motivated violence.77 Theprovision allowed a victim of a “crime of violence motivatedby gender”78 to bring a civil action to recover compensatorydamages.79 Moreover, the Act specifically gave a cause ofaction for recovery of punitive damages.80

Although it was struck down as unconstitutional bythe United States Supreme Court in United States v.Morrison,81 a case handled by Gentry, Locke, Rakes &Moore, VAWA’s civil rights remedy remains the most ambi-tious and most visible attempt ever made in this country toapply the discrimination model to violence against women.Moreover, the drafters fully intended there to be recovery forpunitive damages. While the Act was applicable to allwomen who were victims of violence, the Act would certain-ly apply to women who were victims of violence in a domes-tic setting.

In Giovine v. Giovine,82 plaintiff wife sued defendanthusband for divorce, alleging as alternative grounds habitualdrunkenness and extreme cruelty.83 Additionally, plaintiffasserted tort claims for damages based upon assault and bat-tery, intentional infliction of emotional distress, a continu-ous wrong resulting in severe emotional and physical damageand negligence.84 The trial court granted defendant’smotion to strike all tortious claims arising more than twoyears before the date of the complaint.85

On appeal, the plaintiff contended that that “battered-woman’s syndrome is the result of a continuing pattern ofabuse and violent behavior that causes continuing dam-age.”86 The Court held the statute of limitations on plain-tiff ’s tort claims pertaining to “battered women syndrome”was tolled provided that plaintiff could prove that defen-dant’s wrongful acts rendered her temporarily insane whichresulted in her failure or inability to institute her action priorto the running of the statute of limitations.87

The Court concluded that a wife diagnosed with bat-tered woman’s syndrome should be permitted to sue herspouse in tort for the physical and emotional injuries sus-tained by continuous acts of battering during the course ofthe marriage, provided there is medical, psychiatric or psy-chological expert testimony establishing that the wife was

caused to have an inability to take any unilateral action toimprove or alter the situation.88

Further, the Giovine court recognized the fundamentaldifference between an action for a dissolution of a marriageand a domestic tort action in ascertaining when a right to trialby jury attaches.89 The Giovine court recognized that despitean inherent relationship, a marital tort claim and a dissolutionaction are generally considered to be independent and theright to trial by jury will normally attach to the former.90

C. Punitive Damages for Intentional TortsWhen a plaintiff pleads and proves an intentional tort

under the common law of Virginia, the trier of fact mayaward punitive damages.91 Punitive damages may be recov-ered for wrongful termination in violation of public policy,even where the public policy violated is embodied in theVirginia Human Rights Act which expressly prohibits theaward of punitive damages.92

Punitive damages are awarded above compensatorydamages as a punishment to the defendant for particularlyegregious conduct and to act as a deterrent against futureconduct. Virginia courts have been receptive to protectingthe weaker victim. In Scott v. Neal, a Bedford County juryawarded $175,000 in punitive damages, the largest punitivedamage award in the history of the county.93 Plaintiff Scott,represented by Gentry, Locke, Rakes & Moore, was brutallyassaulted in the face by the significantly larger defendant,after repeated verbal harassment. The assault broke Scott’sjaw, which had to be wired shut for six weeks.94

In determining the amount of punitive damages, thedefendant’s finances are important and discovery can bemade of his finances, so the trier of fact can determinewhether this award will serve as a punishment and a deter-rent against the defendant.95

V. Bringing a Domestic Tort ClaimA. Negligence or Intentional Tort?

The victim of domestic violence has several decisionsto make in order to pursue a claim. What type of claim topursue and when to pursue it are, perhaps, the most impor-tant of these decisions. Many factors should be reviewed andanalyzed before a victim comes to a decision.

The victim may choose to argue negligence as opposedto battery.96 The reason for this is that a negligence claimmay lead to a deeper pocket than that of the batterer as neg-ligently inflicted injuries are typically covered by insurancepolicies, while intentionally inflicted injuries are not.97 This

7



8


Five Questions toAsk Before

Structuring TortRecovery for a

Disabled Client Carter R. Brothers

For many clients, a successful tort recovery will bringan end to an often long and stressful process and providesome financial stability to an uncertain future. For clientswho have become disabled as a result of the defendant’saction, a successful tort recovery may, however, bring morestress and confusion as the client is forced to navigate theByzantine world of governmental benefits in order to deter-mine how the recovery will affect the client’s eligibility forthese often quite valuable services. Before any recovery isstructured, the attorney should address the following fivequestions in order to avoid rendering the client ineligible forthese benefits. Failure to consider how the recovery will affectyour client’s eligibility may give rise to yet another lawsuit foryour client. But this time, you will be on the other side.1

Question #1:What Benefits are Available to Your Client?

For purposes of this discussion, we will assume thatthe client in question meets Virginia’s definition of a “dis-abled” individual: that is, the client is an individual who isage 18 or older who is unable to do any substantial gainfulactivity (work) because of a severe, medically determinablephysical or mental impairment that has lasted, or is expectedto last, for a continuous period of not less than 12 continu-ous months, or which is expected to result in death.2

There are then two distinct categories of benefits avail-able to a disabled individual in Virginia: (1) those not basedon financial needs, and (2) those based on financial needs.Benefits that are not based on financial needs, such as SocialSecurity Disability Insurance and Medicare, are generally notaffected by tort recovery and therefore will not be discussedin this article.

The most common needs-based benefits that may beavailable to a disabled client are (1) Supplemental SecurityIncome (SSI), (2) Medicaid, and (3) Department of Housingand Urban Development’s (HUD’s) Section 8 Federal HousingChoice Voucher Program. The Section 8 housing benefit,unlike SSI or Medicaid, does not require a separate determina-tion of disability. A detailed examination of each of these pro-grams and the benefits they offer is outside the scope of thisparticular discussion.3 In general, SSI provides a monthlystipend, Medicaid will cover all medical expenses, and Section8 will offer a reduced rent in the nature of a subsidy.

For these three needs-based benefits, eligibility willdepend on both the client’s annual net income and theclient’s available resources. Unfortunately, each program hasits own income and resource limitations, so the attorneymust be familiar with each program in order to determineeligibility. For most clients, however, the tort recovery willfar exceed these rather modest limitations. For example, theSSI resources limit (exclusive of certain items such as thefamily home and car) for an unmarried person is $2,000($3,000 if married).4

It is axiomatic that these needs-based benefits should onlybe made available to those in need. The question then becomes,“What should happen as a matter of public policy to a disabledindividual’s eligibility when he or she receives a substantial tortrecovery?” The answer takes us to our second question.

Question #2:Can a Disabled Client Receive a Substantial TortRecovery Without Jeopardizing His or HerEligibility for Needs-based Benefits?

As a matter of public policy, the government had threechoices when addressing this issue. First, it could have sim-ply treated the tort recovery as a countable resource for pur-poses of the separate resource and income limitations, thusrendering most successful plaintiffs immediately ineligiblefor these benefits. Second, it could have capped the tortrecovery at a maximum level, and allowed those clients whoreceived only up to that maximum amount to remain eligi-ble. Finally, it could create a special trust having requiredterms that if properly drafted and administered would allowthe disabled individual to remain eligible for these benefitsregardless of the size of the recovery.

The government decided on the third choice by allow-ing tort recovery to be held in a special type of trust (gener-ally referred to as a “pay-back trust”5), which if properlydrafted, established, and funded will not affect the disabledclient’s eligibility for needs-based benefits. Another permit-ted trust, which will not be discussed in this article, is the

Carter R. Brothers is an attorney with Melchionna, Day, Ammar & Black, P.C. inRoanoke, Virginia. He focuses his practice on gift and estate tax planning and fiduciarylitigation, which often involves the use of supplemental needs trusts.

9


“pooled trust,” which must be managed by a nonprofitorganization.6 If the disabled client receives his or her tortrecovery in a form other than a pay-back trust, he or she willmost likely be disqualified from receiving any needs-basedbenefits.

The requirements of a pay-back trust, which are setforth in the federal statute, are deceptively simple:

(1) The trust must be funded with the assets of a disabled individual.(2) The disabled individual must be under the age of 65 at the time the trust is funded.(3) The trust must be established for the benefit ofthe disabled individual by a parent, grandparent, legalguardian, or a court.(4) The trust must provide that at the death of thedisabled individual any state that paid medical assis-tance on behalf of the disabled individual must bereimbursed from any amounts remaining up to anamount equal to the total medical assistance paid ofhis or her behalf (the “pay-back” provision in a “pay-back trust”).7

At the state level, Virginia has implemented the feder-al exception by providing that assets transferred to a pay-backtrust will not be considered an available resource when deter-mining eligibility.8 For Section 8 purposes, there is no com-parable rule that provides an exception from the income andresources limitations for transfers to pay-back trusts per se.9

Instead, the HUD rules governing the proper treatment ofassets held in trust focus on the issue of a beneficiary’s“access” to his or her trust assets.10 This issue of “access” willbe discussed more fully when in the next section we look atparticular provisions of pay-back trusts. It will be clear thata properly drafted pay-back trust will not affect a disabledclient’s eligibility for Section 8 housing.

One of the difficulties facing the attorney is the factthat there are multiple state and federal agencies whose sep-arate rules and regulations must be consulted when draftinga pay-back trust. For example, Virginia’s Medicaid Manualprovides general guidance for the proper treatment of a pay-back trust that is consistent with the OmnibusReconciliation Act of 1993.11 The Foster CareIndependence Act of 1999 (“FCIA”) basically applied theMedicaid trust rules to SSI eligibility determinations.Pursuant to FCIA, the Social Security Administration thenpublished instructions for its own Programs OperationsManual (“POMS”)12 to provide guidance for the propertreatment of trusts when processing Social SecurityClaims.13 There is an entire section devoted to the excep-

tion for pay-back trusts, which goes into far greater detailthan that found in the Virginia Medicaid Manual.14 Thisinstruction includes the following warning to attorneys:

NOTE: Labeling the trust as a Medicaid pay-back trust, OBRA 1993 pay-back trust, trustestablished in accordance with 42 USC 1396,or as an MQT, etc. is not sufficient to meet therequirements of this exception. The trust mustcontain language substantially similar to the lan-guage [set out in this instruction]. 15

With this warning duly noted, it is time now to con-sider our next question.

QUESTION #3:What Provisions Should Be Included in a Pay-backTrust?(1) Reimbursement at Death for Medical AssistanceProvided by State.

From the statutory definition of the pay-back trust, wealready know that one provision that must be in the trust isthe “pay-back” provision itself. The Virginia MedicaidManual’s version of this provision requires that “the State[must] receive all amounts remaining in the trust upon thedeath of the individual up to an amount equal to the totalmedical assistance paid on behalf of the individual.”16 ThePOMS adds the following guidance: “The State must be list-ed as the first payee and have priority over payment of otherdebts and administrative expenses except as listed in [POMS]SI 01120.203 B.3.a.”17 The listed exceptions are (i) taxesdue from the trust to the State or Federal governmentbecause of the death of the beneficiary, and (ii) reasonablefees for administration of the trust estate such as an account-ing of the trust, completion and filing of any necessaryadministrative documents, or other required actions associat-ed with the termination and wrapping up of the trust.18

The POMS instruction also provides some examples ofexpenses that are not permitted prior to reimbursement ofthe State, which include (i) payment of debts owed to thirdparties, (ii) funeral expenses, and (iii) payments to residualbeneficiaries.19 Failure to comply with these requirementswill cause the trust not to be treated as a “pay-back trust” andthus disqualify the disabled client from SSI and Medicaid.

(2) Establishment of Trust.As mentioned above, a pay-back trust must be estab-

lished by the disabled client’s parent, grandparent, legal

Five Questions — cont’d on page 12

10


injured.”11 Environmental plaintiffs adequately allege injury infact when they aver that they use the affected area and are per-sons for whom the aesthetic and recreational values of the areawill be lessened by the challenged activity. Furthermore,although the injury must be concrete and particularized, it neednot be large; an identifiable trifle will suffice.12

CBF alleged that the permit failed to comply with thefederal and state limits designed to protect the fishable andswimable designated uses of the James with the unfortunateresult that the SWCB’s permit approved pollution discharged involume and concentrations that violate the law. CBF alsoalleged that the excessive nutrient discharges will contribute toformation of algae blooms, which the Court found were con-crete and imminent threats of harm.13 CBF further allegedparticularized injuries to the organization by asserting that theexcessive discharges destroyed the sub aqueous vegetation(“SAV”) that it plants annually at a yearly xpense exceeding$100,000.00 in the area of the discharge, as well as elsewhere.Additionally, CBF alleged that the authorized discharge willcontribute to the adverse impact upon it’s utilization of its boat,The Chesapeake, which is moored in a marina downstream fromthe discharge point. “Thus, CBF has alleged sufficient econom-ic, aesthetic, and recreational injuries to itself, injuries that areboth concrete and particularized and actual or imminent, toestablish standing to maintain suit.”14

The Court found the second standing prong, that theinjury is fairly traceable to the challenged decision and not theresult of the independent action by a third party not before thecourt, was met by the same allegations found sufficient to meetthe “injury in fact” prong. The Court found the traceabilityprong satisfied by CBF’s allegations that the discharge in excessof the standards mandated by federal and state law, but author-ized by the permit issued by the SWCB, “contributes” to thealleged injuries suffered by CBF as an organization. The Courtnoted, “CBF need not allege that Philip Morris’s Park 500 Plantis the only facility discharging effluents capable of causing thisharm. ‘It would be strange indeed if polluters were protectedfrom suit simply by virtue of the fact that others are also engag-ing in the illegal activity.’”15

The third prong necessary to establish Article III stand-ing requires the plaintiff to allege sufficient facts to support theconclusion that the injury in fact suffered by the plaintiff that iscaused by or contributed to by the challenged action will likelybe redressed by a favorable decision from the court. The pur-pose of this requirement is to ensures that a plaintiff will person-ally benefit in a tangible way from the court’s intervention.

The SWCB argued that CBF could not meet the thirdprong requirement because Philip Morris is not the sole, or even

the primary, contributor of the pollutants to this segment of theJames. The Court rejected this argument. “Thus, as long as therelief CBF seeks would redress the part of the harm caused byPhilip Morris, that harm is, in fact, redressable to the extentrequired to demonstrate standing. As quoted above, ‘It wouldbe strange indeed if polluters were protected from suit simply byvirtue of the fact that others are also engaging in the illegal activ-ity.’”16

In addition to holding that CBF had alleged sufficientfacts to establish that it had standing to challenge the SWCBpermit decision in its own right, the Court, following its con-trolling precedent in The Chesapeake Bay Foundation, Inc. , etal., v. Virginia State Water Control Board,17 concluded thatCBF’s same allegations also supported its standing to challengethe decision as a representative of its members. The standard for“representational standing” articulated by the Court was suc-cinctly stated as follows:

An association has Article III standing to sueon behalf of its members when (a) its memberswould otherwise have standing to sue in theirown right; (b) the interests it seeks to protect aregermane to the organization’s purpose; and (c)neither the claim asserted nor the relief request-ed requires the participation of individual mem-bers in the lawsuit.18

Only one member of the association, not all of its members,must satisfy the Article III standing requirements in order forthe organization to satisfy the representational standing require-ments. The Court found that the same allegations that support-ed CBF’s standing in its own right satisfied the standing require-ments for CBF to maintain suit on behalf of its own membersin a representational capacity.19

In addition to the clear and definitive articulation of bothindividual and representational standing requirements in thisdecision, a final point of note is the Court’s treatment ofSWCB’s argument that this panel of the Court of Appeals wasnot bound to follow the Stumpy Lake panel’s conclusion thatrepresentational standing is authorized by the environmentalstatutes which incorporate Article III standing into state law.The SWCB, recognize that stare decisis may bind the Court tofollow the decision in Stumpy Lake. Nevertheless theCommonwealth argued that this panel of the Court of Appealswas not bound if it found that the decision of the Stumpy Lakepanel of the Court of Appeals was based on a “flagrant error ormistake.” The Court rejected this argument out of hand bynoting:

Appellees misconstrue the holding in[Commonwealth v.] Burns [240 Va. 171, 174(1990)], which permits this Court to correct “‘fla-

Standing in Virginiacont’d from page 3

11


grant error or mistake’ in a panel decision . . .through the en banc hearing process.” . . . Contraryto appellees’ assertions, Burns affirms the principlethat the decision of one panel is binding on all otherpanels unless and until reversed by the Court sittingen banc [a request the Commonwealth chose not tomake] or by a higher court on appeal. . . . Thus, weare not at liberty to revisit the holding of the panel inStumpy Lake that “Virginia recognizes representa-tional standing … . . . and that Code § 62.1-44.29confers this representational standing” in cases meet-ing its requirements.20

Earlier in its opinion, the Court noted that the SupremeCourt had refused to consider the Commonwealth’s appeal on themerits from the Stumpy Lake decision rendered by its sister panel.

The Court of Appeals’ decision from this past April clear-ly and firmly establishes that Virginia is squarely in line with thedecisions of the United States Supreme Court in its interpreta-tion of Article III of the United States Constitution with respectto challenges to decisions by Virginia’s environmental agenciesand boards. For the first time a Virginia appellate court hasruled that a private membership organization dedicated to thepreservation and restoration of a natural resource, theChesapeake Bay in this case, may bring suit on behalf of itsmembers, or in its own right, so long as it alleges facts sufficientto support the conclusion that at least one of its members, or theorganization itself, has suffered an injury in fact, which is causedor contributed to by the agency action it challenges, and thatthe injury may be remedied, at least in part, if the Court grantsthe relief requested by the plaintiff. The Court has squarelyrejected the “aggrieved person” analysis to Article III and hasnoted that the original “aggrieved person” analysis has been sup-planted by amendments to state statutes that incorporate ArticleIII into them.

Finally, the Court has soundly rejected the SWCB’s argu-ments that in order for “representational standing” to be the lawin Virginia, the General Assembly must not only pass statutesincorporating Article III into their language as it did in the late1990s, but the General Assembly must say so explicitly. Inessence the SWCB, through the Attorney General, asserts thatthe General Assembly must also pass a law that says, “oh and wealso mean that ‘representational standing’ as articulated by myr-iad U.S. Supreme Court Article III standing cases is the law inthis Commonwealth.” Given that representational standinghas been a part of the U.S. Supreme Court’s Article III standinganalysis since at least 1972, and given that the General Assemblyis presumed to know the law in existence when it legislates, per-haps this most recent and clear pronouncements of the Court ofAppeals rendered on April 4, 2006, will bring an end to theCommonwealth’s long-standing and consistent efforts to deny

its citizens and organizations with standing under Article IIIjudicial review of state environmental agency decisions in thecourts of our Commonwealth. U

1 There is no provision in the Virginia Constitution comparable to Article III of theU.S. Constitution. 2 Pearsall v. Va. Racing Comm’n., 494 S.E.2d 879, 881-82 (Va. Ct. App. 1998); Va.Beach Beautification Commi’n. v. Bd. of Zoning Appeals, 344 S.E.2d 899, 902-03 (Va.1986). 3 “Any owner aggrieved by, or any person who has participated, in person or by sub-mittal of written comments, in the public comment process related to, a final deci-sion of the Board…, . . ., whether such decision is affirmative or negative, is entitledto judicial review thereof in accordance with the provisions of the AdministrativeProcess Act . . . if such person meets the standard for obtaining judicial review of acase or controversy pursuant to Article III of the United States Constitution. A per-son shall be deemed to meet such standard if (i) such person has suffered an actualor imminent injury which is an invasion of a legally protected interest and which isconcrete and particularized; (ii) such injury is fairly traceable to the decision of theBoard and not the result of the independent action of some third party not beforethe court; and (iii) such injury will likely be redressed by a favorable decision of thecourt.” Va. Code Ann.§ 62.1-44.29. The Virginia Waste Management Act and theVirginia State Air Pollution Control Law each have provisions similar to the quotedprovision of the Virginia State Water Control Law. 4 Chesapeake Bay Found., Inc. v. Commonwealth ex rel. Va. Water Control Bd., 65 Va.Cir. 440 (Cir. Ct of Rich. 2004) (the “Stumpy Lake” case). 5 The Court of Appeals rejected the circuit court’s “aggrieved person” analysis butaffirmed its decision to grant the demurrer on alternative grounds finding that CBFdid not alleged sufficient facts to support the conclusion that CBF as an organiza-tion had been injured in fact or met the other prongs of Article III standing analysis. 6 Chesapeake Bay Found., Inc. v. Commonwealth ex rel. State Water Control Bd., 616S.E.2d 39 (Va. Ct. App. 2005).7 See Commonwealth v. CBF, No. 051767 (Va. Sup. Ct. Jan. 25, 2006). 8 628 S.E.2d 63 (Va. Ct. App. 2006).9 Two days after the opinion was published, the Attorney General filed a Notice ofAppeal, and on May 4, 2006, the Commonwealth’s Petition for Appeal was filedwith the Supreme Court of Virginia. Commonwealth v. Chesapeake Bay Found. Inc.,No. 060866 (Va. Sup. Ct. 2006). Appeals from the Court of Appeals to theSupreme Court, while not unheard of, are uncommon. According to Virginiastatute, when the Court of Appeals has decided an appeal in cases originating beforea state administrative agency, its decision “shall be final, without appeal to theSupreme Court” unless the Supreme Court determines on a petition for review thatthe decision of the Court of Appeals involves a substantial constitutional question asa determinative issue or presents a matter of significant precedential value. Va. CodeAnn. § 17.1-410.A.2, and B. 10 Chesapeake Bay Foundation, 628 S.E.2d 63.11 Id. at 69 (citing Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972)).12 Id. at 69.13 Id. at 70. 14 Id. at 70-71.15 Id. at 71 (citing Am. Canoe Assoc. v. Murphy Farms, Inc., 326 F. 3d 505, 520 (4th

Cir. 2003)). 16 Id. at 72. 17 616 S.E.2d 39 (Va. Ct. App. 2005).18 Chesapeake Bay Foundation, 628 S.E.2d at 72 (citing The Stumpy Lake Case). 19 Id. at 74. 20 Id. at 72.

o

12


guardian, or a court. Obviously, the facts of the particularcase will need to be analyzed to see which method is appro-priate. For most situations, having the court establish thetrust will be the safest method of complying with thisrequirement. There should be a recital in the trust agree-ment referring to the appropriate Order or Decree establish-ing the pay-back trust. For suits in which confidentiality isa concern, the trust can be established early in the proceed-ings to hold any recovery that may later be received either bysettlement or judgment.

(3) Irrevocability of the Trust.Although the statutory definition of a pay-back trust

does not address the revocability of the trust, a pay-back trustmust be irrevocable in order not to affect the disabled client’seligibility for needs-based benefits. If a particular trust is rev-ocable, then by definition it means that the person establish-ing the trust always will have “access” to the trust property. Asbriefly mentioned above, the HUD Occupancy Handbookfocuses on this issue of access by categorizing trusts as eitherrevocable or “nonrevocable” (this discussion will use the moreaccepted term “irrevocable”).20 Where the individual hasaccess to the trust property by means of a revocation power(including a power of withdrawal), HUD will treat the trustassets as countable resources of the applicant.21 Similar rulesapply for Medicaid and SSI eligibility criteria.22 Therefore,the pay-back trust should explicitly state that it is irrevocableand that the disabled client retains no power to alter, amend,revoke, or terminate any trust provision or interest of the trust.It is good practice to include “Irrevocable” in the name of thetrust itself to avoid any confusion.23

While the trust should be irrevocable as it pertains tothe disabled client, the attorney should consider granting thetrustee the power to amend the trust to make sure it complieswith any future changes to the law in this area.

(4) Dispositive Provisions During Disabled Client’sLifetime.

When addressing the particular dispositive provisionsof the pay-back trust, the federal statute states only that itmust be established for the benefit of the disabled individual.The POMS provides additional guidance by explaining thata trust is established for the benefit of an individual if pay-ments from the trust can be paid to another person or entity“so that the individual derives some benefit from the pay-ment.”24 Therefore, it is always advisable to allow thetrustee to make payments directly to third parties who have

provided a beneficial service to the disabled client. In addi-tion, the trust should allow for the direct payment of anyexpenses of the trust or disabled client, such as income taxesor other valid debts and obligations.

A critical distinction to keep in mind is that the pay-back trust exception for SSI and Medicaid purposes onlyapplies with respect to the determination of an applicant’savailable resources; it does not by its terms provide an excep-tion to the determination of an applicant’s annual income.25

The POMS contains separate instructions for when dis-bursements from trusts will be considered income for SSIpurposes, regardless of whether the assets of the trust weretreated as countable resources.26 These rules are the same asthose found in the Virginia Medicaid Manual § M1120.200E.1 for Medicaid purposes.

Obviously, if the pay-back trust provides for mandato-ry distributions to the disabled client, those distributions willbe counted as income for eligibility purposes. If distribu-tions can be made to third-party payees that provide for thedisabled client’s food, clothing, or shelter, those distributionsare treated as income in the form of in-kind support andmaintenance, which will trigger a possible reduction or dis-qualification from benefits.27 All other disbursements tothird-party payees that result in the disabled client’s receivingitems that are not food, clothing, or shelter are not treated asincome. For example, funds paid to a provider of medicalservices for care to the beneficiary would not be consideredincome for eligibility purposes.28

So what do these rules tell us about the trust’s particu-lar dispositive provisions? It is clear that the pay-back trustshould not include any mandatory distributions directly tothe disabled client. The issue then becomes to what extentdiscretion should be granted to the trustee in making distri-butions either to the disabled client or to third-party payees.Any distribution to the disabled client (either mandatory ordiscretionary) will count as income and affect his or her con-tinued eligibility for needs-based benefits. Under certain cir-cumstances it may be appropriate to retain the flexibility ofallowing for discretionary distributions to the disabled clientso long as the trustee understands the consequences.

Some attorneys have advocated an “everything but”approach that grants complete discretion to the trustee butthen specifically prohibits distributions that would be con-sidered in-kind support and maintenance (that is, a prohibi-tion on distributions for food, clothing, and shelter). Othershave advocated a grant of complete discretion without anylimitations, coupled with a provision explaining that the pur-pose of the trust is to supplement, not replace, the disabledbeneficiary’s benefits. While this additional explanatory lan-

Five Questions cont’d from page 9

13


guage will not bind the trustee, it will serve to guide thetrustee’s exercise of discretion.

Whichever approach is taken, the discretionary stan-dard should not be tied to any ascertainable standards. Forexample, discretion in the trustee to make distributions tothird-party payees for the support or maintenance or care inreasonable comfort of the disabled beneficiary will likely vio-late the “irrevocability” requirement discussed above sincethe disabled beneficiary could ask the local court to orderdistributions pursuant to this ascertainable standard. As aresult, all or a portion of the trust would be considered anavailable resource for eligibility purposes.

Although the official guidance in this area is rather thin,giving the trustee discretion to make distributions pursuant toan ascertainable standard also appears to cause some or all ofthe trust to be considered “accessible” for Section 8 purposes.The HUD Occupancy Guidebook contains a special excep-tion for what it labels as “special needs trusts.” The onlydescription given for a special needs trust is a trust that is oftencreated by family members for disabled persons who are notable to make their own financial decisions and whose assets arenot accessible to the beneficiary.29 No further direction isprovided as to what makes the trust assets inaccessible.

A separate direction in the HUD OccupancyHandbook that addresses the treatment of irrevocable trustsgives some insight. It reads as follows: “If no family memberhas access to either the principal or income of the trust at thecurrent time, the trust is not included in the calculation ofincome from assets or in annual income.”30 The reference toaccess “at the current time” suggests that any power in the ben-eficiary to compel a distribution (such as through court actionenforcing a distribution to meet an ascertainable standard or apower of withdrawal) would cause some or all of the trust tobe considered “accessible.” When combined with the case lawfor SSI and Medicaid eligibility, it becomes clear that thetrustee’s discretionary authority to make distributions for thebenefit of the disabled client should not be based on any ascer-tainable standard such as support or maintenance.31

(5) Remainder Disposition After Disabled Client’sDeath.

Finally, the attorney must also give particular consid-eration to the remainder disposition after the death of thedisabled client. The issue that is raised here again concernsthe irrevocable nature of the trust. In particular, it becomesa problem when the remainder is left generally to the dis-abled client’s “heirs” or to his or her “estate.” In these situa-tions, some regional offices of the Social SecurityAdministration (SSA) have raised the common law Doctrine

of Worthier Title to disqualify some pay-back trusts. Forstates that have retained this doctrine, the regional SSAoffices are instructed to apply the doctrine’s “reversion theo-ry” to the attempted remainder, thus vesting all interests backin the name of the disabled client. As a result, state law thengives the disabled client the power to revoke the trust, thusviolating the “irrevocability” requirement and making thetrust property an available resource.32

Virginia has not abolished the Doctrine of WorthierTitle, although it has abolished its common law cousin, theRule in Shelley’s Case.33 To avoid any problem, it is prefer-able to identify particular remainder beneficiaries, either byname or by permitted class (such as “my children,” or “mydescendants”). In certain situations, it may also be beneficialto give the disabled client a testamentary power of appoint-ment limited to and among these particular remainder ben-eficiaries to address any needs that may develop after thetrust has been established.34

(6) Spendthrift Provision.A spendthrift provision should also be included in a

pay-back trust. Otherwise, the ability of the disabled clientto assign or alienate his or her interest in the trust for valuecould give rise to a finding that all or some portion of thetrust remains “available” to the disabled client.

Ordinarily, Virginia law will allow theCommonwealth to seek reimbursement for medical assis-tance from standard spendthrift trusts.35 There is, however,an exception for a spendthrift trust that benefits an individ-ual who has “a medically determined physical or mental dis-ability that substantially impairs his ability to provide for hiscare or custody and constitutes a substantial handicap.”36

Question #4:What Other Trust Considerations Should BeAddressed Before Drafting the Pay-back Trust?

The prior question focused on the particular provi-sions of a pay-back trust needed not only to qualify it as apay-back trust but also to protect the eligibility of the dis-abled client during the administration of the trust. Thereare, however, at least two other concerns that should also beaddressed before drafting the trust, even though they do notaffect these eligibility concerns.

(1) The Trustee.First and foremost, the attorney drafting the pay-back

trust should give careful consideration to who will be servingas the trustee. As discussed above, the pay-back trust must


14


give the trustee broad discretionary authority in making dis-tributions to or for the benefit of the client. The effort andexpense taken to draft a pay-back trust can be immediatelywasted by a trustee who uses his or her discretion to makedisqualifying distributions. Some disabled clients may havefamily members who are capable of handling these addition-al fiduciary obligations. Others may not. For this reason, itis often preferable to ask an independent party (either a non-family member or a professional fiduciary) to serve as thetrustee of a pay-back trust.

While the independent trustee can be trusted to han-dle the various fiduciary obligations, there may be concernover its ability to understand the particular needs of the dis-abled client. In that situation, it may be necessary to estab-lish in the trust agreement a “family advisor”-type position toserve as the liaison between the disabled client and the inde-pendent trustee. This position could be given to the familymember who provides or oversees the day-to-day care of thedisabled client. In other situations, a committee could beestablished that might also include other professionals serv-ing the disabled client.

(2) The Income Taxation of the Pay-back Trust.Although a detailed explanation of how trusts are

taxed for income tax purposes is beyond the scope of this dis-cussion, some consideration should be given to this questionbefore drafting the pay-back trust. In general, there are twoways the trust can be taxed. First, the trust can be taxedunder the standard tax rules for trusts and estates, which willallocate the tax attributes of the trust among the trust and itsbeneficiaries.37 Or the trust can be disregarded as a taxableentity under the grantor trust rules, in which case the taxattributes will be allocated back to the disabled client (whowill be considered the grantor of the trust).38

Because of the compressed tax brackets for trusts andestates, it is often advisable to try to structure the pay-backtrust as a grantor trust, which will allow for income taxationunder the individual’s broader tax brackets. The InternalRevenue Code contains several provisions that explain whatprovisions and situations will cause a trust to be treated as agrantor trust.39 While this idea may sound easy in theory,it will often require a very detailed analysis of the trust’s pro-visions, including who is selected to serve as the Trustee andwhat discretionary standards have been chosen. For this rea-son, it may be necessary to consult a tax attorney on this par-ticular issue.

Question #5:Now That the Trust Is Drafted, What Practical StepsMust Be Taken Before Funding?

(1) Notice of the Establishment of the Pay-back Trust.For individuals who are currently recipients of SSI,

Medicaid, and Section 8 housing, there is a continuing obli-gation to report any changes in income, resources, livingarrangements, and other lifestyle conditions. The failure tonotify the respective agencies of the establishment of the pay-back trust can lead to three results, none of which is good:(1) a refunding request from the agency for the overpaymentof benefits if the agency finds the pay-back trust is a counta-ble resource; (2) immediate disqualification from currentbenefits, which for Section 8 recipients may mean eviction;and (3) the imposition of fraud charges. For individuals whoare applying for SSI, Medicaid, or Section 8 benefits, there isan obligation to report the existence of the pay-back trust oneach application.

For either situation, the attorney should always submita copy of the pay-back trust to each agency with a cover letternotifying it of the establishment of the trust and a brief opin-ion as to why the trust meets the requirements of a pay-backtrust. The attorney should consult the rules for each particu-lar agency for any particular time limits for giving notice.Because of the risk of an unfavorable ruling from the agency,it is preferable to submit the notice prior to the establishmentand funding of the trust in case changes need to be made.

(2) Payment of Medicaid Liens.Federal law requires that states implement rules that

require Medicaid applicants to assign their rights to anyrecovery from third-party tortfeasors to the state.40 InVirginia, a lien is created in favor of the Commonwealth forthe total amount paid by the Commonwealth for the med-ical care of an individual who has sustained personalinjuries.41 Normally, written notice is required before thelien becomes effective, except when the attorney for theinjured party knew that medical services were either provid-ed or paid by the Commonwealth.42 The lien then attach-es to any recovery, whether by judgment or settlement, andmust be paid prior to the funding of the pay-back trust. Thestatutory lien may be compromised by the AttorneyGeneral.43 In addition, the trial court may reduce theamount of the lien and apportion the recovery between theplaintiff, the plaintiff ’s attorney, and the Commonwealth asthe “equities of the case appear.”44

The presence of the statutory lien, if applicable, raisestwo separate questions for the attorney. First, the attorney


15


must consider the “equities of the case,” which may suggestfollowing the compromise procedures with the AttorneyGeneral and, if denied, a motion before the local court toreduce the statutory lien. The attorney should be aware thathis or her fee may be subject to apportionment under theterms of the statute.45 Second, the pay-back trust cannot befunded prior to satisfying the lien. For some disabled clients,the repayment of the lien will seriously reduce their recovery,which may reduce or possibly eliminate the need for the pay-back trust in the first place.

So far, the circuit courts in Virginia have proved unwill-ing to reduce the lien for disabled clients whose recoverywould otherwise pass to a pay-back trust. In the two reporteddecisions addressing the request for reduction, both judgesfailed to reduce the lien.46 These opinions reveal a possibleundercurrent of judicial disfavor with the use of pay-backtrusts. Both judges wrote in their opinion that the use of thepay-back trust (described as “special needs trusts” in bothopinions) will mean that none of the recovery will be availableto pay for the disabled plaintiff ’s future medical needs since heor she will be eligible to have the Commonwealth pay for theseservices under Medicaid.47 Since the Commonwealth willtherefore be called upon to pay for these future services, it wasappropriate and just that “while funds are available”48 theCommonwealth should be reimbursed, despite the impact onthe plaintiff ’s net recovery. It is expected that this particularissue will continue to be litigated as more pay-back trusts areused to hold tort recoveries.49

This article has highlighted the issues confronting anattorney of a disabled client prior to finalizing his or herrecovery by asking five questions. Some of the questionshave clear answers; others only lead to more questions. Oneof the key reasons for the confusion and uncertainty in thisarea of law is the involvement of the various state and feder-al agencies in the administration of these needs-based bene-fits. While there is a tremendous amount of overlap andrelatedness, each agency remains an independent participanthaving its own set of rules and regulations. Virginia and theother state courts are only beginning to address the variousunresolved issues that have been raised in this article.50

What works today may not work tomorrow. So despite hav-ing asked a series of questions in this article to help you pre-pare and draft a pay-back trust, it is likely that the only ques-tion to which you have a definitive answer is the one askedafter your client has reviewed your bill—“Didn’t you justhave a form for that?” U

1 See Rajcan v. Donald Garvey & Assocs., Ltd., 807 N.E.2d 725 (Ill. App. Ct. 2004);French v. Glorioso, 94 S.W.2d 739 (Tx. Ct. App. 2002). In addition to the malprac-tice liability, there may also be disciplinary action brought by the state bar.

2 Virginia Medicaid Manual § M0310.112 Definition of “Disabled,” available athttp://www.dss.virginia.gov/benefit/me_famis/manual.cgi. This definition is takenfrom § 1614(a)(3) of the Social Security Act, but the Disability DeterminationServices (DDS), which is a division of the Virginia Department of RehabilitationServices (DRS), is charged with making the determinations of medical eligibility fordisability benefits under Social Security, Supplemental Security Income, andMedicaid. 3 For a more detailed explanation of these programs and their benefits, see SpecialNeeds Trusts and Medicaid Planning and Guardianship, Virginia CLE (2005);Frolik & Brown, Advising the Elderly or Disabled Client, 2nd Edition (WGL);Begley, Jr. & Hook, Representing the Elderly or Disabled Client: Forms andChecklists with Commentary (WGL). See also Special Needs Alliance website athttp://www.specialneedsalliance.com/.4 For SSI reference, consult the official web page for Social Security athttp://www.socialsecurity.gov/, which will have links specifically dealing with SSI. 5 The pay-back trust was officially created by Congress in the OmnibusReconciliation Act of 1993 and is currently described in 42 U.S.C. 1396p(d)(4)(A).Some practitioners will refer these trusts as a “(d)(4)(A) trust” or a “D4a trust” forthis reason. A pay-back trust is a subset of a broader type of trusts known gener-ally as either “supplemental needs trusts” or “special needs trusts” or “SNTs” Careshould be taken when describing the particular trust because a pay-back trust willalways be an SNT, but not all SNTs will be pay-back trusts. 6 42 U.S.C. 1396p(d)(4)(C). Beneficiaries of pooled trusts are typically personswith modest means but see Lewis v. Magee Women’s Hosp. of UPMC, 2004 WL2526187 (Pa. Comm. Plea July 26, 2004) (unpublished), where the local courtallowed nearly $1.85 million to be placed into a state pooled trust. In that case, thestate objected to the use of a pooled trust since it was not required to pay back thestate for medical care provided to the beneficiary after the beneficiary’s death. Forpooled trusts, the money may remain in trust for the benefit of other disabled ben-eficiaries. The trade-off is of course that the remaining funds may not be distrib-uted back to the disabled client’s family. 7 42 U.S.C. 1396p(d)(4)(A).8 12 VAC 30-40-300.E.3.g.(1); Virginia Medicaid Manual § M1120.202. 9 As will be discussed later in this article, the HUD Occupancy Handbook doeshave a provision for “special needs trusts,” but there is very little guidance as to whatHUD considers a “special needs trust.” 10 Rules for HUD’s Section 8 limitations can be found in the HUD OccupancyHandbook 4350.3 REV-1, Ch. 5 “Determining Income and Calculating Rent.”Available at: HUD information site, http://www.hudclips.org. 11 For this reason, Virginia’s Medicaid rules for pay-back trusts are found in the sec-tion dealing with trusts established on or after August 10, 1993. 12 Available at http://www.socialsecurity.gov/regulations/index.htm. Although thePOMS are not comparable to federal regulations, the Supreme Court has declaredthat they “warrant respect.” Washington State Dep’t. of Soc. & Health Servs. v.Guardship Estate of Keffeler, 537 U.S. 371 (2003). Since FCIA’s changes to SSI hada January 1, 2000 effective date, the POMS instructions have separate rules fortrusts established on or after 1/1/2000. 13 See SI 01120.201, SI 01120.202, SI 01120.203, and SI 01120.204. 14 SI 01120.203 “Exceptions to Counting Trusts Established on or after 1/1/00.” Tomake things even more confusing, the POMS chose to refer to these exceptions as“Medicaid trust exceptions” despite the fact that they are also SSI exceptions. ThePOMS explain this choice because of the additional exceptions to counting trustsprovided in SSI law such as undue hardship and because the term has become a“term of common usage.” 15 POMS SI 01120.203 B.1.f.16 Virginia Medicaid Manual § M1120.202 B.17 POMS SI 01120.203 B.1.f.18 POMS SI 01220.203 B.3.a.19 POMS SI 01220.203 B.3.b. For this reason, pay-back trusts will often providefor the purchase of prepaid funeral arrangements and other post-death services. 20 HUD Occupancy Handbook 4350.3 Rev-1, § 5-7 G.1.b.21 HUD Occupancy Handbook 4350.3 Rev-1, § 5-7 G.1.b.(2).


16


The Basics ofLitigating a

Religious Land useCase Under RLUIPA

John G. Stepanovich & Isaiah Kalinowski

The Religious Land Use and InstitutionalizedPersons Act of 2000 (RLUIPA) has been garnering moreattention around the country these days. This federalstatute protects religious rights in two contexts where his-torically those rights were too often abused by govern-mental authorities: local land use decisions and prisons.

The statute carried bipartisan support throughboth houses of Congress and was signed into law bythen-President Clinton. Since its passage, it has consid-erably affected local zoning boards, bodies that have his-torically ruled without substantial federal oversight.1

Although the statute has been controversial, and has evenbeen held unconstitutional by some courts,2 the primaryforce of its general rule has been upheld by the UnitedStates Supreme Court,3 and the statute is here to stay.

Litigating a claim under RLUIPA might not seemthat complicated after an initial reading of the statutorytext, found at 42 U.S.C. § 2000-cc. The statutory textitself is relatively brief, in comparison to many other fed-eral statutes, but it incorporates several constitutionalterms of art that have been explained at length throughhundreds of Supreme Court opinions, such as “unequaltreatment,” “substantial burden,” and “compelling gov-ernmental interest.” Also, there may be complicatedquestions regarding how and where to employRLUIPA, as it is applicable to an offensive or defensivestrategy by both plaintiffs and defendants, and jurisdic-

tion over RLUIPA claims is concurrent in both federaland state courts.

The first section of RLUIPA places federal limitationson land use regulations. This area of law is regulated heavilyat every level of government, and land use regulations in anygiven locality differ markedly. Our involvement in litigatingcases under this statute in three separate states has illustratedthat no two states regulate land use the same way, and that justas every piece of land is unique, every case litigated underRLUIPA is unique. An attorney litigating an RLUIPA claimshould therefore know the state and local land use law or havea knowledgeable land use attorney as co-counsel.

One area that illustrates this uniqueness has been thevariety of constitutional provisions that come into play inthese types of cases. Most obvious is the First Amendmentguarantee of Free Exercise of Religion, which remains thestatute’s primary focus, but most RLUIPA cases implicate theEqual Protection Clause and other aspects of the FourteenthAmendment to a very large extent. Also, because of the stateof constitutional jurisprudence today, there are typically sis-ter claims brought along with the Free Exercise claim, arisingfrom the First Amendment’s other protections for free speechand association. Similarly, many such cases deal with themore ‘procedural’ rights addressed in the Fifth

Amendment.4

What this means in practical terms is that at the earlystage of litigation, even before drafting the initial pleadings,counsel must conduct a careful analysis of all potential claimsupon which to base relief.

One of the strongest provisions of RLUIPA is theremedy granted for unequal treatment in Section 2(b),which pertains to “Discrimination and Exclusion.” Thefirst step, which is often quite time-consuming, is to minethrough the zoning code of the municipality to analyze howreligious uses are treated in comparison to other uses thatsimilarly impact or use the land. Non-religious association-al uses, such as meeting halls, fraternal organizations, evenschools and libraries, if allowed to exist in a zone where reli-gious uses are excluded or treated on less-than-equal terms,should elicit a red flag, as potentially violative of RLUIPA’sunequal treatment provisions.

Similarly, should you discover that a religious land usefrom one denomination was allowed in the same zone where asimilar use from a different denomination or religion wasexcluded, this is likewise reason for further investigation, asthis may violate the nondiscrimination provision of RLUIPA.

John G. Stepanovich is licensed in Virginia, New York, and Ohio. Mr. Stepanovichis a founding partner in the Virginia Beach law firm of Lentz, Stepanovich &Bergethon, P.L.C., and has practiced law for over 20 years.

Isaiah Kalinowski is a graduate of Regent University School of Law and WabashCollege. Isaiah is a Virginia-licensed attorney, and recently has shared primarydrafting responsibility with Mr. Stepanovich in several cases under RLUIPA and inother areas of complex litigation. Previously, Isaiah served as Director of Researchfor the Common Good Foundation.

17


More obviously, the total exclusion of religious assembliesfrom an entire jurisdiction is certainly actionable, but it is typ-ically the case that the devil is in the details of defining the geo-graphical size and precise dimensions of the “jurisdiction.”

If, at first glance, there is no apparent facial discrimina-tion by which religious uses are treated differently in the plainterms of the zoning code, then the next task is categorizing theharm suffered by the party seeking the religious use in light ofthe “substantial burden” standard. Nowhere in the statute isthe term “substantial burden” defined. Nevertheless, any prac-titioner who litigates constitutional cases will recognize the

term “substantial burden” from cases like Sherbert v. Verner,5

Wisconsin v. Yoder,6 Employment Division v. Smith,7 andRLUIPA’s statutory predecessor, the Religious Freedom

Restoration Act8 (RFRA), which was found not to apply to

state governments in City of Boerne v. Flores.9 For the litigatornot so familiar with this line of cases, we attempt to summa-rize as follows:

Under Smith, a facially neutral law that only incidental-ly affects a religious practice is not actionable.10 However,where a religious practice is denied or excluded based uponadministrative discretion, such as where a governmental offi-cial is given authority to make an “individualized assessment”of the religious use, Smith does not alter the previous Sherbertv. Verner “substantial burden” rule.11 Administrative zoningdecisions that apply the zoning code to a particular piece ofland will typically constitute an individualized assessment, andare expressly included in the statutory definition of “land useregulation.”12 Therefore, in cases where approval or denial ofa religious practice is left to governmental discretion, a denialmay become a “substantial burden on religion.”

What is important to note here is the entirety of thephrase “substantial burden on religion.” Whether the burdenimposed actually affects religious practice usually becomes thecentral issue of a substantial burden case. If, in reality, the bur-den imposed only affects considerations of cost or convenienceto the claimant within the context of religious exercise, there isno true burden on the constitutionally protected religiouspractice. Again, we find ourselves looking back to the text ofnumerous court opinions for the analysis here, cases likeRector, Wardens, and Members of Vestry of St. Bartholomew’sChurch v. City of New York13 and First Covenant Church ofSeattle v. City of Seattle,14 which delineate governmentaldenials that substantially burden religious rights, and thosethat do not rise to that level.

Typically paired with the foregoing analysis is a determi-nation of whether the burden on religious practice in the landuse regulation is sufficiently substantial to be actionable. Theanswer to this question differs between the several federal cir-cuits. Though the Fourth Circuit has not directly addressedthis issue,15 some circuits, like the Eighth and Third Circuits,have ruled that “Congress intended that the language of[RLUIPA] is to be applied just as it was under RFRA,” i.e.,whether the governmental restrictions “significantly inhibit orconstrain [religious] conduct or expression.”16

The other circuits that have ruled on the issue have fol-lowed a slightly more rational interpretation for what kinds ofburdens qualify as “substantial”. The Seventh and NinthCircuits have found a burden to be substantial where govern-mental restrictions render the religious practice “effectivelyimpracticable.”17 The Eleventh Circuit is even more protec-tive of religious practice, finding burdens substantial wherethey result in “pressure that tends to force adherents to foregoreligious precepts or from pressure that mandates religiousconduct.”18

In reality, however, the line between substantial andinsubstantial often comes down to a “sniff-test” for the indi-vidual judge, such that the standard articulated by the govern-ing Circuit Court of Appeals may not necessarily be applied incertain ‘exceptional’ cases.19

The reason the battle in RLUIPA cases so often centersaround whether the municipality’s actions amount to a sub-stantial burden on religion is the powerful and straightfor-ward language found in the “General Rule” of RLUIPA:“No government shall impose…a substantial burdenon…religious exercise…unless the government demonstratesthat…the burden…is in furtherance of a compelling govern-mental interest [and] is the least restrictive means of further-ing that compelling governmental interest.”20

These constitutional phrases mean, in practical effect,that if the party alleging the substantial burden on religiousexercise convinces the Court that their burden satisfies thestandards above, then the burden of proof shifts to themunicipality to justify the necessity of the restriction embod-ied in its regulation or administrative action. Then, themunicipality must prove that this restriction was the bareminimum (“least restrictive”) way to accomplish this justifi-cation.21 The usual reasons most zoning codes are enactedand enforced, such as a esthetics and land values, will failunder this rigorous analysis. Only the strongest traditional

RLUIPA — cont’d on page 20

View From the BenchTHOUGHTS ON

SETTLING CASESRodham T. Delk, Jr.

Judge, Fifth Judicial Circuit

Over the course of the past several years, there havebeen many developments in the area of settlement of law-suits, to the extent that the orderly settlement of such caseshas developed not just into a formalized movement, involv-ing private and public efforts, but also into a practical neces-sity for the prompt, fair and efficient management of thecourt system’s civil docket.

Historically, the direct attorney-to-attorney settlementof civil cases has held a position of importance in the courtsystem. This has become heightened in recent years by devel-opments in the settlement process leading to specific formal-ized and institutionalized settlement procedures. Herewithfollow the comments of one trial judge on the business ofsettling cases.

Pre-trial settlements of civil cases in the Virginia courtsare accomplished by three distinct processes other than directlawyer-to-lawyer negotiations: arbitrations, mediations, andsettlement judge procedures under the auspices of theSupreme Court of Virginia. These processes may be private-ly funded, as in the case of many mediations and all arbitra-tions, or publicly funded, as in the case of mediations in thegeneral district courts and juvenile and domestic relationsdistrict courts and in the case of the Virginia SupremeCourt’s Judicial Settlement Conference program. Althoughthe process of arbitration is generally undertaken as a resultof prior contract, and because arbitration necessarily involvesa result imposed by the arbitrator rather than one agreedupon by the parties, I will confine my remarks to mediationand settlement judge processes. Furthermore, as a sitting trialjudge on a circuit court with no formal experience in settle-ment proceedings, in my remarks in this article I have gainedthe benefit of the perspective of those directly involved in thesettlement process.1

The distinctions between classic mediation proceed-ings and settlement judge proceedings are largely nuanced,an example being the requirement of neutrality on the partof the settlement judge and the mediator. Although a neutral

in the process, the settlement judge may provide the parties hisown evaluation of the case and even his opinion regarding thelikely outcome in court if the case is tried. The mediator is pre-cluded by ethics and the Code of Virginia from providing legaladvice while serving as a mediator.2 Aside from that, for thegeneral purposes of this article, I will lump them togetherunder the general rubric of settlement proceedings.

Settlement proceedings are voluntary, collaborativeprocesses which necessarily involve direct client participa-tion. They may take place at any stage of the controversy.When undertaken by the parties in good faith, and whetherprivately or publicly funded, effective settlement proceedingsbenefit the court system, litigants, the bar and the public.

Distilled to its essence, our system of courts exists as aforum for the peaceful and binding resolution of disputesbetween citizens, abrogating the need for people in disputewith each other to resort to self-help and the attendant badconsequences that result. To the extent that settled cases pro-duce results which, as a consequence of the voluntary andcollaborative process, the parties can live with (why wouldthey have agreed to a settlement otherwise?), the raison d’etre of the court system is upheld.

Importantly to the administration of the court system,settled cases help to free up the trial court dockets, makingmore room for those cases that will be tried to a verdict, andenabling those cases to be tried with less of the delay that sofrustrates the public. Public perceptions of the glacial pace oflitigation are much improved.

Importantly to the litigants, settled cases remove theuncertainty and risk of trial, notwithstanding the actual or per-ceived skills of trial counsel. Furthermore, settled cases reducethe overall costs of litigation, and all the more so the earlierthat settlement is accomplished. An example of this inMaryland was the recent Baltimore Harbor Ferry mediationprocess, where all of the death and injury claims were success-fully mediated prior to the filing of any suits or the undertak-ing of any formal discovery. Additionally, and perhaps mostimportantly, the litigants are spared the stress of trial and areafforded the opportunity to personally speak their feelings,and even apologize, without objection by counsel. Sincereapologies may well win settlements when all else fails.

Importantly to the bar, settled cases can lead to speed-ier resolution of cases and avoidance of the risk of untowardresults, to the advantage of clients. Prompt and efficientcompletion of litigation can only serve to increase public sat-isfaction with lawyers at a time when lawyers rank embarrass-ingly low in public esteem.

Finally, importantly to the public, settled cases amelio-rate perceptions of runaway jury verdicts or otherwise unfair,The Honorable Rodham T. Delk, Jr. is a circuit court judge of the 5th Judicial Circuit.

18


catastrophic trial results. To that extent, public acceptanceand appreciation of the court system as a reliable forum forthe resolution of civil disputes is enhanced. The value to thepublic of the maintenance and enhancement of our courtsystem is upheld and promoted.

What Mediators and Settlement Judges Want3

Be Prepared (Clients as Well as Lawyers). Successfulsettlement of cases first begins with lawyer preparation. Thisrequires not only a thorough knowledge of all of the factsthrough investigation and discovery, but also early reviewand consideration of jury instructions, in order to fullyunderstand the issues and proofs required in the case. Thelawyer should fully understand both sides of the case (somesay to the extent that the lawyer could try both sides of thecase if called to do so). In fact, nothing focuses preparationbetter than the creation of a trial notebook, undertaken atthe earliest possible stage.

Client preparation is absolutely critical. The clientmust also fully understand her case, as to its merits and risks,and, to the greatest extent possible, the opponent’s case aswell. The prospects of a successful settlement (as well as thedegree of the client’s satisfaction with the results) will bedirectly related to the extent of her knowledge and under-standing of the case and the settlement process.4

Give Us the Exhibits. Thorough preparation leads tothe preparation of effective exhibits. The settlement judge ormediator should have all anticipated trial exhibits in handbefore the settlement proceeding in order to fully understandall aspects of the case.

Give Us the Law. The well-prepared lawyer will alsoknow the law of the case (remember, she has already reviewedthe applicable jury instructions) and a concise brief of theanticipated conflicts as to the law of the case is of great helpto the settlement judge or mediator.

Give Us Your Trial Notebook. While in most cases,a settlement proceeding is undertaken too early in the con-troversy for counsel to have prepared a trial notebook, in theunusual case where one has been prepared, give a copy to themediator or settlement judge for his personal use in theprocess. See above, “Be Prepared,” “Give Us the Exhibits,”and “Give Us the Law.” The entire settlement process ismade more efficient when everyone can literally be on thesame page during negotiations.

Show Us the Money. The hands of the mediator or set-tlement judge are significantly tied if the insurance carrier’s rep-resentative or other non-party source of funds is not present, orat least immediately available to the settlement proceeding.

Get to Know Us. Almost all mediators and settlement

judges have reputations and track records (those who do noteventually will), and the better the lawyers understand themediator or settlement judge, the more efficient and effectivethe process will be. If you have not already called around forthis, you should do so before the negotiations begin.

Give Until it Hurts and then Give Some More. Thesuccessful resolution of a case through a settlement proceed-ing necessarily requires a degree of mutuality on the part ofboth sides of the case. Settlement is, by nature, a mutualcompromising of opposing positions in a case, and accept-ance of something less than initially claimed. The client whois unwilling to compromise until some pain is felt is theclient who will likely prevent a settlement from occurring.Indeed, to the extent that the parties are satisfied that a nego-tiated settlement is fair, it is to a large degree the result of amutual perception of shared pain in the accomplishment ofthe settlement.

Professionalism. In a settlement proceeding, you arenot about the destruction of your opponent’s case or to other-wise persuade a judge or a jury of strangers. You are mutuallyengaged with the opposing side in the settlement process inorder to persuade a party to compromise her case in order toreach a settlement. No one can be forced into a settlementagainst their will. Firmness in negotiations has its appropriateplace, but poisoning the well for one party to the case willequally poison the well for all in a settlement or mediation.Settlement of cases requires the same degree of professionalismas the trial itself, and is expected to the same degree by the set-tlement judge or mediator. Remember the “Four C’s”: compe-tence, cooperation, civility and communication.5 They formthe foundation for a successful settlement process, and togeth-er they will by example certainly go far to engender greaterwillingness on the part of the litigants to settle.

ConclusionGenerally, by the time a lawsuit reaches the stage

where settlement procedures are undertaken, much hasalready been invested in the case in terms of the parties’ timeand monetary resources and, likewise, in terms of thelawyers’ time and resources. A settlement proceeding is notwithout cost to either the litigants or their attorneys. It fol-lows that a well-considered and thoroughly planned settle-ment process on the part of both sides has the strong poten-tial for benefit, not only to the litigants, but also to the courtsystem and the public as a whole. It should not be looked atas a mere stepsister to the trial process, but as a full-fledgedpart of any course of litigation.

19


View from the Bench — cont’d on page 21

20


police-power reasons will suffice: health, safety, and publicwelfare. Because of the stringent tests required by such “strictscrutiny,” most land use regulations will necessarily abate soas to allow the religious use.

Because of the breadth of RLUIPA and the change itbrings to the tradition, lasting almost a century, of zoningboards acting with essentially unchecked authority (whichwas the condition Congress sought to correct by passing thestatute), certain courts have taken a squinty-eyed approach toRLUIPA. Municipalities have used this trend to their advan-tage by arguing that those advocating the religious use mustexhaust local administrative remedies before bringing suitunder RLUIPA,22 a rationale that flies in the face of substan-tial constitutional jurisprudence.23 Though this logic hasnot been largely followed, the rationale may become morepersuasive over time.

This situation makes it advantageous for the munici-pality to drag the application through years of red tape, so asto avoid ever giving a definitive denial to the religious use,which then flounders in bureaucratic limbo. Remember, noamount of inconvenience or cost will place a substantial bur-den on religion, so this route may be taken by the municipal-ity with relative impunity. The task for counsel representingthe religious use will be to expedite this process to the fullestextent possible.

What this means for the practitioner representing thereligious use is that you should avoid basing a claim solely onthe zoning code or a preliminary administrative denial, andthen arguing that the use is burdened so substantially as to beactionable. Instead, the application for the religious useshould be denied by the highest authority available in themunicipality, as soon as is practicable.

That’s it: RLUIPA in a nutshell. The statute has beenuseful in leveling the playing field for the protection of pre-cious First Amendment rights and it looks as if it is here tostay. But, as in any type of litigation, there is a high premiumon careful analysis of the facts and the law in litigating a suc-cessful claim. U

1 Our experience has been in litigating land use cases under Section 2 of RLUIPA,and so this article will not focus on the “Institutionalized Persons” portions of thestatute (Section 3). However, the general rules remain the same in both sections; it isthe application of these rules that cause them to differ markedly.

2 See, e.g., Madison v. Riter, 240 F. Supp. 2d 566 (W.D. VA 2003); ElsinoreChristian Ctr. v. City of Lake Elsinore, 270 F. Supp. 2d 1163 (C.D. Cal. 2003);Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003).3 Cutter v. Wilkinson, 544 U.S. 709 (2005).4 There is an unsettled question between courts as to whether RLUIPA applies togovernmental takings of religiously used land. For cases finding that it does, see, e.g.,Cottonwood Christian Ctr. v. Cypress Redev. Ag., 218 F. Supp. 2d 1203 (C.D. Cal.2002); for a recent case finding that it does not, see Faith Temple Church v. Town ofBrighton, 405 F. Supp. 2d 250 (W.D.N.Y. 2005). 5 374 U.S. 398 (1963).6 406 U.S. 205 (1972).7 485 U.S. 660 (1988); 494 U.S. 872 (1990).8 42 U.S.C. § 2000-bb.9 521 U.S. 507 (1997).10 494 U.S. at 884.11 See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 126 S. Ct. 1211(2006); Cottonwood, 218 F. Supp. 2d at 1222; but see Faith Temple Church v. Town ofBrighton, supra.12 See RLUIPA Section 8 (5).13 914 F.2d 348 (2d Cir. 1990).14 840 P.2d 174 (Wash. 1992).15 Before RLUIPA’s passage, the Eastern District of Virginia ruled that a municipal-ity’s denial of a church application for a meal ministry for the homeless was a sub-stantial burden, but applied the RFRA definition of religious exercise that the text ofRLUIPA was drafted to change. See Stuart Circle Parish v. Bd. of Zoning Appeals,946 F. Supp. 1225 (E.D. Va. 1996); see also Horen v. Commonwealth, 479 S.E.2d553 (Va. Ct. App. 1997).16 Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 987 (8th Cir 2004); see also DeHartv. Horn, 390 F.3d 262 (3d Cir. 2004). Both of these circuits have added a require-ment, expressly contradicted by RLUIPA’s text itself, which requires that the reli-gious practice burdened must be ‘central’ or ‘fundamental’.17 Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.2003); San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1035 (9thCir. 2004).18 Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (2005).19 See Charles v. Verhagen, 348 F.3d 601, 604-05 (7th Cir. 2003); Charles v. Frank,101 Fed. Appx. 634 (7th Cir. 2004); Sts. Constantine & Helen Greek OrthodoxChurch, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005). 20 Section 2(a)(1).21 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32(1993).22 See, e.g., Westchester Day Sch. v. Vill. of Mamaroneck, 386 F.3d 183, 191 (2d Cir.2004).23 365 U.S. 167 (1961).

ZZZZZZZZZZZ

RLUIPA cont’d from page 17

21


1 The author acknowledges and appreciates the editorial advice and comments ofHon. E. Everett Bagnell, Judge (Retired), a Virginia Supreme Court-designatedSettlement Judge; Hon. Diane M. Strickland, Judge (Retired), a mediator and mem-ber of the McCammon Group; and, Ms. Geetha Ravindra, Director, Department ofDispute Resolution Services, Supreme Court of Virginia. 2 See, e.g., Va. Code Ann., §8.01-581.24. 3 The author acknowledges inspiration for this from Hon. Mark A. Drummond,Judge, “What Judges Want,” The Journal of the Section of Litigation, American BarAssociation, Vol.31, No. 4 (Summer 2005).4 See, e.g., Hon. Diane M. Strickland, “The Art of Ethical Advocacy in Mediation,”20 Va. Law Weekly 1226 (Mar. 13, 2006). 5 See, Hon. Melvin R. Hughes, Jr., Judge, “A View from the Bench,” LitigationNews, Va. State Bar (Summer 1995).

ZZZZZZZZZZZ

22 POMS SI 01220.200 D.1.23 Ordinarily, one would think that this issue would be one that could easily beavoided through proper drafting, but see Pritchett v. Comm’r of Soc. Sec., 2005 WL1566651 (E.D. Mich. July 6, 2005) (unpublished).24 POMS SI 01220.201 F.1.25 POMS SI 01220.203 B.1.a. provides only that the “resource counting provi-sions” will not apply to pay-back Trusts.26 POMS SI 01220.201 I. 27 POMS SI 01120.201 I.1.b. For a good example of how distributions from anotherwise properly drafted special needs trust can affect eligibility, see Hecht v.Barnhart, 2003 WL 21510348 (2nd Cir. June 27, 2003) (unpublished). 28 POMS SI 01220.201 I.1.c. Virginia Medicaid Manual § M1120.200 E.1.c.29 HUD Occupancy Handbook 4350.3 Rev-1, § 5-7 G.1.c.30 HUD Occupancy Handbook 4350.3 Rev-1, § 5-7 G.1.b.(3).31 See Corcoran v. Dept. of Soc. Servs., 859 A.2d 533, 545 (Conn. 2004). See alsoLewis v. Dept. of Soc. Servs., 61 S.W.3d 248 (Mo. Ct. App. W.D. 2001). 32 See POMS SI ATL01120.201 (Atlanta); SI BOS01120.200 (Boston), SICHI01120.201 (Chicago), SI DAL01220.201 (Dallas) and SI NY01220.200 (NewYork City). None of these instructions apply to Virginia. 33 Va. Code Ann. § 55-14 (1950). There is actually some question over the stateof the Doctrine of Worthier Title in Virginia because the statute, which refers to theRule in Shelley’s Case, appears to describe the situation addressed by the Doctrineof Worthier Title. Given this uncertainty, to avoid this problem, practice properdrafting.34 The testamentary power of appointment may also lessen the chance of the IRS’arguing a gift has occurred at the formation of the pay-back trust. See Treas. Reg.§ 25-2511-2(c), which explains when retained control over a transfer will cause thetransfer not to be treated as a gift. 35 Va. Code Ann. § 55-19.D (1950).36 Va. Code Ann. § 55-19.D (1950) (flush language).37 I.R.C. §§ 641-663 (1986).38 I.R.C. § 671 (1986).39 I.R.C. §§ 672-79 (1986).40 42 U.S.C. § 1396a(a)(25)(H). 41 Va. Code Ann. § 8.01-66.9 (1950).42 Va. Code Ann. § 8.01-66.5 (1950).43 Va. Code Ann. § 8.01-66.9 and § 2.1-127 (1950). 44 Va. Code Ann. § 8.01-66.9 (1950). See Commonwealth v. Huynh, 546 S.E.2d677 (Va. 2001) (discussing the procedure for reducing and compromising the lien). 45 This knowledge is “presumed” as a result of Hyunh, 546 S.E.2d at 680.Fortunately for attorneys, the Court held in this case that “the trial court mayreduce, but not eliminate, the fee provided for in the contract for legal servicesbetween the injured party and the attorney” in making this apportionment. Id. 46 In re Ashe, 1995 WL 1055735 (Va. Cir. Ct. Jan. 3, 1995) (unpublished); Ouiversv. Suffee, 2001 WL 1590463 (Va. Cir. Ct. Dec. 3, 2001) (unpublished).47 Similar concerns have been raised by other courts. See Norwest Bank v. Doth,969 F.Supp. 532 (D. Minn. 1997); Calvanese v. Calvanese, 710 N.E.2d 1079 (N.Y.1999); Cricchio v. Pennisi, 683 N.E.2d 301 (N.Y. 1997).48 In re Ashe, 1995 WL 1055735, at *3. 49 For example, there is currently a dispute among the states as to whether a statecan only recover its cost of care expenses from that portion of the settlement orjudgment that represented payment for past medical expenses. Ahlborn v. Ark.Dep’t. of Human Servs., 397 F.3d 620 (8th Cir. 2005). 50 And one cannot forget that the new Virginia Uniform Trust Code goes intoeffect July 1, 2006, which will only further muddy the water.

ZZZZZZZZZZZ


View from the Bench cont’d from page 19

was marked for privilege, a person would not know this unlesshe or she first opened the envelope, which was sealed with areusable clasp, and read the document. The envelope was notmarked confidential or privileged. The envelope was not evensealed using tape or glue. Any person could have opened theenvelope, discovered its contents, and re-clasped the envelopewithout notice. The court concluded that while requiringencoded documents or secret drop boxes would strain thebounds of reasonableness, moistening an envelope’s flap andwriting confidential on its exterior are reasonable steps thatshould have been taken to deter illicit observation and warnthe receiver and intermediate handlers of the presence of sen-sitive information.

While in this case the document was eventually deter-mined not to be disclosable under the Attorney Work ProductDoctrine embodied in Federal Rule of Civil Procedure26(c)(3), the warnings regarding the protection of attorney-client information are clear. We cannot take that privilege forgranted and we must take reasonable steps to protect it in ourwritten communications with our clients. U

Letter from the Chair cont’d from page 2

22


option might be considered if the facts warrant it and com-pensation is the key motivating factor.98

However, there are two caveats to a claim of negligencethat suggest an intentional tort claimis the best way to proceed. Not onlywould a negligence claim likely leadto a type of “cover up” on the part ofthe victim with respect to the inten-tional partner abuse, but also puni-tive damages are unlikely to beawarded in a negligence claim.

B. The Two Main IntentionalDomestic Torts

The most commonlyemployed claims in the context ofdomestic abuse are assault and battery and intentional inflic-tion of emotional distress.99 While the intentional inflictionof emotional distress may be very promising in manyrespects, it is subject to one severe limitation: it depends ona judge or jury finding that the defendant’s behavior is“extreme and outrageous,” “beyond all possible bounds ofdecency” or “utterly intolerable in a civilized community.”100

Several courts have come to different conclusions as towhat behavior will qualify. In one instance, the IdahoSupreme Court, in 1993, in Curtis v. Firth,101 upheld a mil-lion dollar verdict, which included a $225,000 sum forintentional infliction of emotional distress and $725,000 inpunitive damages, for behavior ranging from forcing theplaintiff to participate in sexual activity that she found“repugnant,” to forced sodomy, to mental abuse.102

However, the New Mexico Supreme Court, in 1991,in Hakkila v. Hakkila,103 reversed a damage award enteredon behalf of a wife who claimed intentional infliction ofemotional distress. The court held: “The merits of the wife’sclaim can be disposed of summarily. Husband’s insults andoutbursts fail to meet the legal standard of outrageous-ness.”104 The court reasoned that:

Conduct intentionally or recklessly causingemotional distress to one’s spouse is prevalent inour society. This is unfortunate but perhapsnot surprising, given the length and intensity ofthe marital relationship. Yet even when theconduct of feuding spouses is not particularly

unusual, high emotions can readily cause anoffended spouse to view the other’s misconductas “extreme and outrageous.” Thus, if the tortof outrage is construed loosely or broadly,claims of outrage may be tacked on in typical

marital disputes, taxing judi-cial resources.105

C. A New, Continuing Tort of“Partner Abuse”

Professor Dalton suggests the cre-ation of a new tort of “partnerabuse,” which would permit thecumulative history of combinedemotional and physical abuse to bepresented to the court to support asingle claim.106 Recognition of thiscause of action might advance thegoal of improving comprehension of

domestic violence in the legal arena by exhibiting the tort asit is, an ongoing oppression.107 One state that has alreadytaken this initiative is New Jersey, recognizing “battered-woman’s syndrome as an affirmative cause of action underthe laws of New Jersey.”108 However, other states have beenconsiderably less receptive to the idea.109

Professor Dalton cautions that this new cause of actionmay be conceived rather inflexibly.110 Professor Daltonwarns that the unfortunate result might be to discredit theclaims of some victims of abuse, stranding them in a worseposition than they currently enjoy under the present piece-meal approach.111

Ultimately, the strongest argument in favor of a newcause of action is that if domestic partner abuse were understoodas a continuing tort, victims of abuse would be free of the arti-ficial constraints imposed by existing statutes of limitation.112

In Curtis v. Firth,113 the victim brought a personalinjury action seeking damages for battery and intentionalinfliction of emotional distress, she also sought punitivedamages.114 She presented extensive expert testimonyregarding battered wife syndrome and post traumatic stressdisorder at trial.115 The jury returned a verdict in favor ofthe victim, awarding her $50,000 in compensatory damagesfor battery, $225,000 for intentional infliction of emotionaldistress and $725,000 in punitive damages.116 Affirmingthe award on appeal, the court discussed “continuing torts,”defining them as:

[O]ne inflicted over a period of time; it involves


As the door is opened

wider in domestic abuse

tort law, it is likely that

punitive damages will play

an increasingly larger role

as a deterrent.

23


a wrongful conduct that is repeated until desist-ed, and each day creates a separate cause ofaction. A continuing tort sufficient to toll astatute of limitations is occasioned by continualunlawful acts, not by continual ill effects froman original violation, . . .117

The Court then held “there was substantial evidencepresented on which a jury could have found [the defendant’s]conduct to be an extreme deviation from reasonable stan-dards of conduct. Similarly, the jury could have found fromthe evidence presented that [the defendant] acted with mal-ice, oppression, wantonness, or gross negligence.”118

D. LitigationThe most successful litigation strategy to date has been

to argue that partner abuse should be understood as a con-tinuing tort, and a cumulative injury, so that statutes of lim-itation begin to run only when the abuse stops, which will bewhen the partners separate.119 However, this argumentappears to have been successful only for claims of intention-al infliction of emotional distress, rather than for claimsbased on physical injury.120 This may lead to an artificialseparation of the physical and emotional portions ofabuse.121

Professor Dalton suggests pushing harder for the recog-nition of the cumulative impact of both the physical and emo-tional components of abuse, so that they would be consideredcontinuing torts.122 This might best be accomplished by theformulation of a new tort of partner abuse, characterized pre-cisely by its cumulative or continuing character.123

VI. The Issue of TimingIf it is likely a claim will survive, when and how should

the claim be brought? Should the claim be brought beforeor after the divorce proceeding? Must the claim be com-bined with the divorce proceeding? The problem and possi-ble solutions are presented differently in different states.124

In Virginia, courts have been slow to permit a tort actioncommitted during the marriage to be maintained even afterthe parties are divorced.125 The Counts Court was not per-suaded that permitting a living spouse to sue for torts com-mitted by one on the other, except in automobile accidentlitigation, would have done otherwise than contribute to thedestruction of their marriage.126 The Court believed if itwere to authorize such damage suits, the availability of a rem-edy and the accompanying prospect of a monetary awardwould have contributed to the disruption of many mar-

riages.127 However, the trend in Virginia appears to bemore receptive to recovery for intentional torts.128

In Roussel v. Roussel, the wife sued her husband forassault and battery.129 A few months later, she filed fordivorce on the grounds of abuse, adultery and desertion.130

There was an agreement during the divorce trial that the wifewould not present evidence of her abuse, but would, in fact,limit her fault evidence to the husband’s adultery. After thefinal divorce decree was entered, the husband sought summa-ry judgment in the tort action, which had not been activelypursued during the divorce proceeding, alleging that the wife’sclaim was barred by the doctrine of res judicata and/or by thedoctrine of equitable estoppel and other policy considera-tions.131 The Court denied the motion, finding that res judi-cata did not bar the tort action because it would not constitutea re-litigation of the same cause of action. Further, the Courtfound that collateral estoppel did not apply because the partieshad expressly agreed that the assault and battery action would,in fact, be set aside for another time if the wife should laterchose to pursue her claim.132

A. Bars to Tort ActionsIn some situations, three obstacles arise if the claim is

not brought concurrently with the divorce proceeding: resjudicata, equitable estoppel and waiver. However, somestates forbid the joining of a tort claim with a divorce pro-ceeding133 while other states take the view that torts may becombined with divorce but need not be.134

Res judicata has been frequently used by courts to bara subsequent tort claim after the conclusion of a divorce pro-ceeding.135 There is a fine line where it may attach. Thisappears to be determined by how the divorce settlement isstructured.136 If the settlement contemplates a divisionbased upon fault or recovery of expenses related to injury, thecourts are more likely to bar a subsequent tort claim.137

Equitable estoppel, on the other hand, has sometimes beenused by the courts to dismiss a subsequent tort claim on thegrounds that there was not disclosure to the abusive partyduring the divorce proceedings.138 Waiver has been mostlylimited to bar subsequent claims when release clauses are partof the divorce settlement.139

In Virginia, the doctrine of res judicata has been invokedto bar an ex-wife’s action to recover damages for the allegedfraudulent misrepresentation of her ex-husband.140 This wasbecause it was based on the same allegations used by the wifeduring the divorce proceedings to recover alimony.141

In a reversal of the traditional lawsuit, in Mustilli v.


24


Mustilli,142 plaintiff husband sought dissolution of his mar-riage to defendant wife and alleged an act of extreme crueltybut did not seek compensatory or punitive damages. Thedefendant wife told the plaintiff to take a pill for venerealdisease because she contracted one.143 The plaintiff latersought to amend his complaint to include a claim for dam-ages.144 The defendant wife opposed the motion on thegrounds that it was barred by the statute of limitations.

The Court held plaintiff sought to base his new claimon identical facts contained in his original complaint, that hewent from seeking a dissolution of marriage to asserting anindependent tort cause of action, that a marital tort claimand a dissolution action were independent actions, with dis-tinct legal and equitable natures, that the amendment didnot relate back to the original filing, and thus, was barred bythe statute of limitations.145 It was important to the Courtthat there was no claim of “psychological paralysis” – aninability to seek redress.146

B. If Possible, A Delay in Bringing the Action Is Betterfor the Victim

When possible, the best time to bring a tort claim is“later” – after the divorce is final. The most persuasive argu-ment in favor of this option is it permits the victim to waituntil the divorce is resolved before the victim brings a tortaction.147 Often, a woman may believe that pursuing a claimis simply too dangerous until her separation from her abuserhas been successfully accomplished.148 If she is forced to pur-sue the tort claim together with the divorce, or even to notifythe court she is bringing it, or plans to bring it in anothercourt, she may well forfeit the claim to buy her safety.149

If an abused spouse cannot instigate a tort claim sub-sequent to a divorce, the abused former partner will beforced to elect between three equally unpalatable alternatives:(1) commence a tort action during the marriage and possiblyendure additional abuse; (2) join a tort claim in a divorceaction and waive the right to a jury trial on the tort claim; or(3) commence an action to terminate the marriage, foregothe tort claim, and surrender the right to recover damagesarising from spousal abuse.150

When a victim pursues a claim, another considerationis available remedies. As mentioned previously, a negligenceclaim, while potentially targeting deeper pockets, will pre-clude the recovery of punitive damages. Other claims, inten-tional tort claims, will only be directed at the abuser; howev-

er, the possibility of an exemplary damage award becomesfeasible. Unfortunately, in most reported matrimonial cases,there are little specific references to damages.151

As the recognition of a partner abuse tort becomes moreprevalent in our society, the issue of timing will becomeincreasingly more important. Certain hurdles may alwaysneed to be avoided, lest a bar to tort recovery arise. However,careful consideration and planning should permit an abusedplaintiff to bring a tort action, with punitive damages, afterdissolution of the marriage. Waiting until after the divorceshould serve two important purposes for the victim. First andforemost, the victim will be away from the control of theaggressor and should no longer fear retribution for a filedaction. Additionally, the extra time away from the abuser mayfacilitate a victim’s cognizance and understanding of what tortswere committed and may permit the victim to feel more com-fortable bringing an action for compensatory redress (theintentional tort permitting an opportunity to seek punitivedamages to punish the particular tortfeasor, to deter otherpotential abusers and to help police public policy).

VII. ConclusionThe primary purpose of awarding punitive damages

has not faded. To be sure, Virginia courts have becomeincreasingly more open to an award of punitive damages,while still relying upon ancient precepts, such as protectionof the weak. Domestic violence is, unfortunately, all tooprevalent in our society, and science is in the process of com-prehending why. Some states have already begun to seizeupon and utilize this information. Partners, who have beenabused, need legal redress. Without it, there is little motiva-tion for their aggressors to stop. Moreover, punitive damages– hitting the tortfeasor where it counts – provides an appro-priate avenue, consistent with historical caselaw, with whichto punish the aggressor and provide a deterrent for otherdomestic abusers.

1 David G. Owen, Punitive Damages in Products Liability Litigation, 74 MICH. L.REV. 1257, 1262-63 (1976). The earliest case to expound a principle of “exempla-ry” damages in English law was Huckle v. Money, 2 Wils. 205 (K.B. 1763). Id. at1263, n.19.2 Nina Lempert, Note & Comment: Punitive Damages – The Dischargeability DebateContinues, 11 BANKR. DEV. J. 707, 711 (1995).3 James Sales & Kenneth Cole, Punitive Damages: A Relic That Outlived Its Origins,37 VAND. L. REV. 1117, 1119 (1984). Lempert, supra note 2. The Roman law alsocontained a theory of multiple damages, which joined castigation with reimburse-ment. See Linda L. Schlueter & Kenneth R. Redden, Punitive Damages 3 (MichieCo. 1989) (1980) (noting existence of multiple damages documented as early as2000 B.C.).4 Owen, supra note 1.


25


5 1 S.C.L. (1 Bay) 6 (1784); see also Michael Rustad & Thomas Koenig, TheHistorical Continuity of Punitive Damages Awards: Reforming the Tort Reformers, 42AM. U.L. REV. 1269, 1286 (1993). 6 1 S.C.L. (1 Bay) 6.7 Id.8 Coryell v. Colbaugh, 1 N.J.L. 77 (1791).9 Michael Rustad & Thomas Koenig, The Historical Continuity of Punitive DamagesAwards: Reforming the Tort Reformers, 42 AM. U.L. REV. 1269, 1291 (1993). 10 Id.11 Coryell, 1 N.J.L. 77.12 Lempert, supra note 2, at 712; notwithstanding that in the Amiable Nancy, 16U.S. (1 Wheat) 546 (1818), the United States Supreme Court acknowledged thatAmerican courts continue to recognize the recovery of exemplary damage awards asan appropriate civil remedy. 13 Lempert, supra note 2, at 712. In Pac. Mut. Life Ins. Co. v. Haislip, 499 U.S. 1(1990), the treatment of punitive damages in the 1800s was summarized in a briefsubmitted to the Supreme Court by amici. This analysis showed the largest puni-tive damage award in the United States in the nineteenth century was $4,500 (hav-ing a present value of $58,000). Research further revealed that awards ranging from$12,560 to $50,000 in 1930 were startling to scholars of the day. A 1955 case inCalifornia, in which the jury awarded $75,000 in punitive damages, representedone of the two largest punitive damage awards in the United States at the time. 14 Lempert, supra note 2, at 71215 Id.16 Id. 17 Baker v. Marcus, 114 S.E.2d 617, 620 (Va. 1960). 18 Doe v. Isaacs, 579 S.E.2d 174, 176 (Va. 2003). 19 Id.20 Smith v. Litten, 507 S.E.2d 77, 80 (Va. 1998) (holding that the conclusion thata party acted with a conscious disregard of another’s rights need only be a “possibleconclusion” the jury could reach for punitive damages to be a jury issue).21 Rustad & Koenig, supra note 9, n.63. The following states have enacted suchlegislation: ALA. CODE § 6-11-20 (2005); ALASKA STAT. § 09.17.020 (2006); CAL.CIV. CODE § 3294(a) (2006); COLO. REV. STAT. § 13-21-102.5(3) (2005) (requir-ing proof beyond reasonable doubt); FLA. STAT. ANN. § 768.73(1)(b) (2005); GA.CODE ANN. § 51-12-5.1(b) (2006); IOWA CODE ANN. § 668A.1 (2005) (requiringevidence that is “clear, convincing and satisfactory”); KAN. STAT. ANN. § 60-3701(c)to -3702(c) (2005); KY. REV. STAT. ANN. § 411.184 (2006); MINN. STAT. ANN. §549.20(a) (2006); MONT. CODE ANN. § 27-1-221(5) (2005); NEV. REV. STAT. §42.005(1) (2006); N.D. CENT. CODE § 32-03-07 (2006) (requiring prima facie evi-dence as threshold support for motion to amend pleadings to allow exemplary dam-ages claim); OHIO REV. CODE ANN. § 2307.80 (2006); OKLA. STAT. ANN. tit. 23 §9A (2005); OR. REV. STAT. § 30.925(1) (2006); S.D. CODIFIED LAWS § 21-1-4.1(2006); UTAH CODE ANN. § 78-18-1(1)(a) (2005).

Six states, conversely, have established the clear and convincing standard via caselaw. Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 681 (Ariz. 1986); Masakiv. Gen. Motors Corp., 780 P.2d 566, 575 (Haw. 1989); Ragsdale v. K-Mart Corp.,468 N.E.2d 524, 527 (Ind. Ct. App. 1984); Tuttle v. Raymond, 494 A.2d 1353,1362-63 (Me. 1985); Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 657 (Md.1992); Wangen v. Ford Motor Co., 294 N.W.2d 437, 458 (Wis. 1980).22 Rustad & Koenig, supra note 9, n.64. See ARIZ. REV. STAT. ANN. § 12-653.02to .03 (2006) (requiring actual malice in action for libel or slander); CAL. CIV.CODE § 3294(a) (2006) (requiring oppression, fraud, or malice in action for breachof noncontractual obligation); DEL. CODE ANN. tit. 18, § 6855 (2006) (requiringmalice or willful or wanton misconduct in health care malpractice insuranceaction); MONT. CODE ANN. § 27-1-221 (2005) (requiring finding of actual maliceor actual fraud); NEV. REV. STAT. § 41.337 (2005) (requiring actual malice to sup-port punitive damages award in libel or slander action); NEV. REV. STAT. §42.005(1) (2006) (requiring oppression, fraud, or malice, express or implied, inaction for breach of noncontractual obligation); N.J. STAT. ANN. § 2A:58C-5(2006) (requiring in product liability actions that tortious conduct be actuated by

actual malice or accompanied by wanton and willful disregard of safety of productusers or others who foreseeably might be harmed by product); N.D. CENT. CODE §32-03-07 (2006) (requiring oppression, fraud, or actual or presumed malice inactions for breach of noncontractual obligation); OHIO REV. CODE ANN. § 2315.21(2006) (requiring that acts or omissions of defendant demonstrate malice, aggravat-ed or egregious fraud, oppression, or insult); R.I. GEN. LAWS § 28-5-29.1 (2006)(requiring conduct to be motivated by malice or ill-will and that such conductinvolves reckless or callous indifference to statutorily protected right of others); S.D.CODIFIED LAWS § 21-1-4.1 (1987) (requiring willful, wanton, or malicious conducton part of defendant); VA. CODE ANN. § 8.01-52 (2006) (allowing recovery ofpunitive damages for willful or wanton conduct or recklessness evincing consciousdisregard for safety of others).23 Alabama sets maximum allowable punitive damages at $500,000 in non wrong-ful death cases. ALA. CODE § 6-11-21(a) (2006). Virginia has capped all punitivedamages at $350,000. VA. CODE ANN. § 8.01-38.1 (2006). Kansas has a hybridmodel, limiting punitive damages to the lesser of five million dollars or “defendant’shighest gross annual income earned for any of the five years immediately before theact for which such damages are awarded.” KAN. STAT. ANN. § 60-3701(e) (2005).The plaintiff can circumvent this cap by proving that the defendant expected tomake a profit exceeding the maximum damage award. KAN. STAT. ANN. § 60-3701(f ). If the plaintiff qualifies for the exception, damages may be set at one andone-half times this expected profit. Id.24 Forrest S. Latta, A New Day in Alabama for Insurers? (Alabama reduces punitivedamages, but expands bad faith tort) (2004), available athttp://www.bowronlatta.com/ publications/new_alabama.pdf. On appeal theAlabama Supreme Court reduced the punitive damages to a ratio of 3-to-1, netting$750,000. In specially concurring opinions, a majority of the justices endorsed this3-to-1 ratio as a “benchmark” for the future. Under the new “benchmark” theplaintiff has the burden to justify an award of punitive damages over 3-to-1, and thedefendant has the burden to justify less. Cases in which the Court has said it willaffirm larger awards include those in which (1) the evidence shows aggravated orhighly reprehensible facts, or (2) the compensatory award is so low that a higherratio is required to offset the plaintiff ’s litigation costs. Conversely, it will apply alower ratio where the defendant’s financial condition would be unduly impaired bythe award. See, e.g., Williams v. Williams, 768 So.2d 477 (Ala. 2000).25 VA. CODE ANN. § 8.01-38.1 (2006). The U.S. Court of Appeals for the FourthCircuit upheld the constitutionality of this statute in Wackenhut Applied Techs. Ctr.Inc. v. Syngetron Prot. Sys., 979 F.2d 980 (4th Cir. 1992).26 Rustad & Koenig, supra note 9, at 1277.27 Model State Punitive Damages Act (Office of the Vice President 1992) here-inafter Model Act. Former Vice President Quayle introduced the statute as a reform“proposed by the President’s Council on Competitiveness in its report ‘Agenda forCivil Justice Reform in America’ . . . . The President urges that punitive damages bereformed in order to eliminate randomness and unpredictability in the system,while continuing to punish egregious and intentional misconduct.” Dan Quayle,Introduction to Model Act. The main impetus for the reform and the Model Actis believed to be “excessive” punitive damage awards in verdicts against corporationsand because they constrain big business. Rustad & Koenig, supra note 9, at 1278.28 Rustad & Koenig, supra note 9, at 1278-81.29 Id. at 1278-81, 1309.30 Rustad & Koenig, supra note 9, at 1309. The punishment and deterrence ratio-nales are the most prevalent justifications to which courts refer for a punitive dam-age award. Id. “Punishment is mentioned in the common law decisions andstatutes of 36 of the 46 states that permit punitive damages.” Id. at 1318 n.249.Further, the deterrence of future bad acts is frequently cited as an important func-tion of punitive damages. Thirty-one states permit an award of these damages as aspecial deterrent, to deter that specific defendant from repeating the malfeasance.Thirty-seven of the 46 states assess punitive damages as a general deterrent, to deterothers from committing similar malfeasance. Id.31 Id. at 1318.32 499 U.S. 1 (1991).


26


33 Id. at 21. Jurors are given considerable discretion to impose punitive awards as

long as the “punitive damages are reasonable in their amount and rational in light

of their purpose to punish what has occurred and to deter its repetition.” Id.34 Lempert, supra note 2, at 713-14.35 Note, An Economic Analysis of the Plaintiff ’s Windfall from Punitive Damage

Litigation, 105 HARV. L. REV. 1900, 1904 (1992).36 22 AM JUR 2D Damages § 569 (2004); Shugar v. Guill, 277 S.E.2d 126 (N.C.

Ct. App. 1981).37 Jemison v. Nat’l Baptist Convention, USA, Inc., 720 A.2d 275 (D.C. 1998). See

also Shaw v. Titan Corp., 498 S.E.2d 696 (Va. 1998) (holding when a plaintiff

pleads and proves an intentional tort under state common law, the trier of fact may

award punitive damages).38 Rustad & Koenig, supra note 9, at 1292-93. See, e.g., Hollins v. Gorham, 66 S.W.

823, 823 (Ky. 1902) (upholding $450 punitive damages award to 12-year-old boy

assaulted by man in public park); Moore v. Fisher, 135 N.W. 1126, 1127 (Minn.

1912) (upholding $1500 punitive damages award to “small man over 50 years old

struck by younger, larger, and much stronger man”); Nyman v. Lynde, 101 N.W.

163, 163 (Minn. 1904) (upholding $1500 punitive damages award against defen-

dant who criminally abused minor child); Dix v. Martin, 157 S.W. 133, 134-36

(Mo. 1913) (upholding $200 punitive damages award to young female servant

viciously lashed by adult with buggy whip); Cathey v. St. Louis & S.F.R.R. Co., 130

S.W. 130, 131-34 (Mo. Ct. App. 1910) (awarding punitive damages to male crip-

ple kicked in face by railway employee); August v. Finnerty, 10 Ohio C.C. (n.s.) 433,

433 (1908) (upholding $450 punitive damages award against defendant who threw

16-year-old female down flight of stairs). See generally George H. Parmele, Damage

Verdicts: Excessiveness or Inadequacy of Verdict in Actions for Personal Injuries, Assault,

Death (1927) (documenting punitive damages awards favoring women, children,

invalids, and other socially disadvantaged plaintiffs over physically or socially more

powerful defendants).39 Rustad & Koenig, supra note 9, at 1293. See, e.g., Birmingham Macaroni Co. v.

Tadrick, 88 So. 858, 860 (Ala. 1921) (upholding $3000 punitive damages award for

female assault victim); Chicago Consol. Traction Co. v. Mahoney, 82 N.E. 868, 869-

72 (Ill. 1907) (upholding $1250 punitive damages award against conductor who

humiliated female passenger by using unnecessary force in ejecting her); McGee v.

Vanover, 147 S.W. 742, 743-46 (Ky. 1912) (upholding $500 punitive damages

award against defendant who assaulted pregnant woman causing miscarriage);

Campbell v. Crutcher, 224 S.W. 115, 116-18 (Mo. Ct. App. 1920) (upholding

$1000 punitive damages award against defendant whose assault upon woman

caused her severe bodily injury and subsequent nervous breakdown); Flynn v. St.

Louis S.W. Ry. Co., 190 S.W. 371, 371-72 (Mo. Ct. App. 1917) (upholding $1500

punitive damages award against conductor found guilty of fondling female passen-

ger’s breasts and making other improper sexual advances); Craker v. Chicago & N.W.

Ry. Co., 36 Wis. 657, 657-58 (1875) (upholding $1000 punitive damages award

against conductor found guilty of fondling female passenger).40 Rustad & Koenig, supra note 9, at 1293-94.41 Id. at 1294. See generally L.C. Warden, Annotation, Punitive or Exemplary

Damages in Action by Spouse for Alienation of Affections or Criminal Conversation, 31

A.L.R.2D 713 (1953) (collecting cases where punitive damages were awarded for

alienation of spousal affection).42 Rustad & Koenig, supra note 9, n.122.43 Powell v. Meiers, 209 N.W. 547, 548 (N.D. 1926).44 Rustad & Koenig, supra note 9, n.122.45 Powell, 209 N.W. at 549. The court upheld a lower court’s award of $500 in

punitive damages. Id. at 548, 552.46 Rustad & Koenig, supra note 9, at 1327. See generally Clarence Morris, Punitive

Damages in Tort Cases, 44 HARV. L. REV. 1173, 1195-96 (1931) (discussing overlap

of crime and tort and recognizing that “allowance of punitive damages for torts

which are also crimes may remedy some maladjustment not adequately treated by

the criminal law”); Kimberly A. Pace, Recalibrating the Scales of Justice Through

National Punitive Damage Reform, 46 AM. U.L. REV. 1573, 1580 (1997) (stating

that “[t]he very labels given “punitive’ or “exemplary’ damages, as well as the ratio-

nales that support them, demonstrate that they share key characteristics of criminal

sanctions”).47 Rustad & Koenig, supra note 9, at 1327.48 Id. But see Robert D. Cooter, Economic Analysis of Punitive Damages, 56 S. CAL.

L. REV. 79, 90 (1982) (suggesting that courts may have additional motives for

awarding punitive damages, including rewarding plaintiffs who otherwise would

not have sued and compensating victims fully). 49 Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21 (1991).50 Id.51 22 AM JUR 2D Damages § 570 (2004).52 22 AM JUR 2D Damages § 573 (2004); see Miller v. Blanton, 210 S.W.2d 293

(Ark. 1948); Infeld v. Sullivan, 199 A.2d 693 (Conn. 1964); Alexander v. Alterman

Transp. Lines, Inc., 387 So. 2d 422 (Fla. Dist. Ct. App. 1st Dist. 1980); Madison v.

Wigal, 18 Ill. App. 2d 564, 153 N.E.2d 90 (2d Dist. 1958).53 Giddings v. Zellan, 160 F.2d 585 (D.C. Cir. 1947) (applying law of Maryland);

Bethel v. Janis, 597 F. Supp. 56 (W.D.S.D. 1984). Cf. Where a statute requires mal-

ice, exemplary damages in an automobile-accident case were improper, even though

the evidence might have shown that the driver was intoxicated. Ruther v. Tyra, 247

P.2d 964 (Okla. 1952).54 Taylor v. Super. Ct. of Los Angeles, 598 P.2d 854 (Cal. 1979); Anderson v.

Amundson, 354 N.W.2d 895 (Minn. Ct. App. 1984); Allers v. Willis, 643 P.2d 592

(Mont. 1982).55 C.T. ex rel. Taylor v. Johnson, 977 P.2d 479 (Utah 1999).56 22 AM. JUR. 2D Damages § 582 (2004); see generally Winkler v. Roeder, 37 N.W.

607 (Neb. 1888); Fay v. Parker, 53 N.H. 342 (1872); Moore v. Illinois, 55 U.S. (1

How.) 13, 14 L. Ed. 306 (1852); Shelley v. Clark, 103 So. 2d 743 (Ala. 1958).57 Hansen v. Johns-Manville Prods. Corp., 734 F.2d 1036 (5th Cir. 1984); E. F.

Hutton & Co., Inc. v. Anderson, 596 P.2d 413 (Colo. Ct. App. 1979). In some

states, the long-standing rule against awarding punitive damages if the defendant

was subject to a criminal prosecution for the act or omission has been abrogated by

statute. Gosnell v. Ind. Soft Water Serv., Inc., 503 N.E.2d 879 (Ind. 1987).58 Nappe v. Anschelewitz, Barr, Ansell & Bonello, 477 A.2d 1224 (N.J. 1984). The

awarding of punitive damages is not prevented by a prior criminal conviction for

the same act, which is relevant only to the amount of the award; nor does the grant-

ing of punitive damages prevent a subsequent criminal conviction. A prior crimi-

nal sanction does not generally, as a matter of law, bar punitive damages. In re

Exxon Valdez, 270 F.3d 1215 (9th Cir. 2001).59 See State v. Kelly, 97 N.J. 178, 193; Giovine v. Giovine, 663 A.2d 109 (N.J.

Super. Ct. App. Div. 1995). 60 See, e.g., Commonwealth v. Hackett, 32 Va. Cir. 338 (Westmoreland Co. 1994)

(denying defendant’s motion, the court stated it was unable to find any Virginia case

where evidence regarding “battered wife syndrome” had been allowed).61 State v. Kelly, 97 N.J. at 178.62 LENORE E. WALKER, THE BATTERED WOMAN (Harper Paperbacks 1979). See

also Lenore E. Walker, Roberta K. Thyfault and Angela Browne, Beyond the Juror’s

Ken: Battered Women, 7 VT. L. REV. 1 (1982).63 State v. Kelly, 97 N.J. at 193.64 Id. See Lenore E. Walker, Roberta K. Thyfault and Angela Browne, Beyond the

Juror’s Ken: Battered Women, 7 VT. L. REV. 1 (1982).65 State v. Kelly, 97 N.J. at 193.66 Id.67 Id. at 193-94.68 Id. at 194.69 Giovine, 663 A.2d at 115.70 Id.71 Sally F. Goldfarb, Symposium: Applying the Discrimination Model to Violence


27


Against Women: Some Reflections on Theory and Practice, 11 AM. U.J. GENDER SOC.

POL’Y & L. 251 (2003).72 Id. at 252. See also ELIZABETH M. SCHNEIDER, BATTERED WOMEN & FEMINIST

LAWMAKING 23, 198 (Yale Univ. Press 2000). 73 Goldfarb, supra note 71, at 252.74 Id.75 Id.76 42 U.S.C. § 13981 (1994).77 Goldfarb, supra note 71, at 252.78 42 U.S.C. § 13981 (1994). Enacted in 1994, the VAWA, 42 U.S.C. § 13981,

provides in part:

(c) Cause of action. A person (including a person who acts under

color of any statute, ordinance, regulation, custom, or usage of any

State) who commits a crime of violence motivated by gender and

thus deprives another of the right declared in subsection (b) shall

be liable to the party injured, in an action for the recovery of com-

pensatory and punitive damages, injunctive and declaratory relief,

and such other relief as a court may deem appropriate.

Id.79 Id.80 Id.81 United States v. Morrison, 529 U.S. 598 (2000). The Supreme Court held that

neither the Commerce Clause nor section 5 of the Fourteenth Amendment gave

Congress the authority to enact this section. Id.82 Giovine, 663 A.2d 109.83 Id. The parties had originally filed for divorced 10 years previously and had rec-

onciled until the instant litigation. Id. at 112.84 Id. at 112.85 Id.86 Cusseaux v. Pickett, 652 A.2d 789 (N.J. Super. Ct. Law Div. 1994). As such, “it

must be treated in the same way as a continuing tort.” Id.87 Giovine v. Giovine, 663 A.2d at 109. Battered woman’s syndrome would there-

fore be an exception to N.J.S.A. 2A:14-2, that “every action at law for an injury to

the person caused by the wrongful act, neglect or default of any person within this

state shall be commenced within 2 years next after the cause of any such action shall

have occurred.” Id.88 Id. at 114.89 Id. at 109-10.90 Id. at 110.91 Foreign Mission Bd. v. Wade, 409 S.E.2d 144 (Va. 1991); see Kamlar Corp. v.

Haley, 299 S.E.2d 514 (Va. 1983).92 Shaw v. Titan Corp., 498 S.E.2d 696 (Va. 1998). 93 John Barnhart, Lawsuit Brings $175,000 Punitive Damage Award, BEDFORD

BULLETIN, March 16, 2005, at 8.94 Id.95 Shaw, 498 S.E.2d at 699. Professor Wildstein has noted that a jury hearing the

tort action “cannot assess a defendant’s assets properly to determine punitive dam-

ages without knowledge of the defendant’s financial position. Yet until equitable

distribution has been made, the tortfeasor’s net worth is an open question.” David

M. Wildstein, The Application of the Entire Controversy Doctrine to Family Part

Actions, 16 N.J. FAM. L. 69, 77 (1996).96 Clare Dalton, Domestic Violence, Domestic Torts and Divorce: Constraints and

Possibilities, 31 NEW ENG. L. REV. 319, 341 (1997). However, a claim of negligence

will preclude the recovery of any punitive damages.97 Id. 98 Id.99 Id.100 RESTATEMENT (SECOND) OF TORTS § 46 (1965). These requirements are

“aimed at limiting frivolous suits and avoiding litigation in situations where only

bad manners are mere hurt feelings are involved.” Womack v. Eldridge, 210 S.E.2d

145, 148 (Va. 1974). 101 Curtis v. Firth, 850 P.2d 749 (Idaho 1993). The court said:

On numerous occasions Curtis would publicly and loudly scream at Firth if she dis-

pleased him. On some occasions she could identify the conduct which displeased

him, such as Curtis not liking her cooking; but frequently she had no idea what

made him angry or when he might start using profanities toward her. She also iden-

tified incidents where Curtis physically shook her so hard she feared she would fall

off a boat dock, placed his foot in her back and kicked her out of bed, slapped her

on the buttocks hard enough to leave a hand print, and pulled her hair as he threw

her against the sink.

Id. at 757.102 Dalton, supra note 96, at 342.103 Hakkila v. Hakkila, 812 P.2d 1320, 1326-27 (N.M Ct. App. 1991). The hus-

band’s behavior included assaulting and battering his wife; insulting his wife in the

presence of others; screaming at his wife at home and in the presence of others;

making repeated demeaning remarks about her sexuality; and continuously stating

to his wife that she was insane and incompetent. Id. The incidents of assault and

battery included slamming part of the trunk lid on her hands; throwing her face

down across a room and using excessive force during sex. Id.104 Id. at 1327.105 Id. at 1325.106 Dalton, supra note 96, at 344. 107 Id. at 344-45.108 Cusseaux v. Pickett, 652 A.2d 789, 793 (N.J. Super. Ct. Law Div. 1994) (hold-

ing that the new action requires a showing that the partners are involved in a mar-

tial or similar relationship, the dominant partner has used abuse over an extended

period of time, there has been recurring injury and that victim suffers from an

inability to take any action). The court held that “because the battered-woman’s

syndrome is the result of a continuing pattern of abuse and violent behavior that

causes continuing damage, it must be treated in the same way as a continuing tort.”

Id.109 Dalton, supra note 96, at 345. In de la Croix de Lafayette v. de la Croix de

Lafayette, 15 Fam. L. Rep. (BNA) 1501, 1501 (D.C. Super. Ct. Aug. 14, 1989), the

court declined to acknowledge a new tort of “spouse abuse.” Id. Virginia, like the

great majority of states, does not currently recognize “battered women’s syndrome”

legally. Commonwealth v. Hackett, 32 Va. Cir. 338 (Westmoreland Co. 1994) 110 Dalton, supra note 96, at 345.111 Id. at 345-46. There could be a similar effect as to some who claim “battered

wife syndrome” in cases of self-defense, finding that to be an inflexible stereotype.

Id.112 Id. at 346.113 Curtis v. Firth, 850 P.2d 749 (Idaho 1993).114 Id. at 753.115 Id.116 Id.117 Curtis, 850 P.2d at 754. The court also discussed the importance of distin-

guishing between separate acts which may be assault, defamation, or battery, and a

continuing course of wrongful conduct which constitutes intentional infliction of

emotional distress. Id. “Since usually no single incident in a continuous chain of

tortious activity can ‘fairly or realistically be identified as the cause of significant

harm,’ it seems proper to regard the cumulative effect of the conduct as actionable.”

Id. (citing Page v. United States, 729 F.2d 818, 821-22 (D.C. Cir. 1984)).118 Id. at 756.119 Dalton, supra note 96, at 358.120 Curtis, 850 P.2d at 756. Courts have more stringently applied the shorter

statutes of limitations to physical abuse claims such as assault and battery. Id.121 Dalton, supra note 96, at 358.


28


122 Id.123 Id. This was the strategy followed by the New Jersey courts in recognizing “bat-

tered woman’s syndrome” as creating an independent cause of action. Id.124 Id. at 373.125 Counts v. Counts, 266 S.E.2d 895 (Va. 1980).126 Id.127 Id. The Court held that the mere availability of such an interspousal action

injected into the marriage relationship just one more abrasive and unnecessary

ingredient to be added to existing criminal and divorce remedies.128 Roussel v. Roussel, 63 Va. Cir. 323 (Rockingham Co. 2003).129 Id.130 Id. 131 Id.132 Id.133 Dalton, supra note 96, at 375. These states include Arizona, Colorado, New

Hampshire, Illinois, Utah and Vermont. Id. Jurisdictions are split between prohib-

ited joinder, mandatory joinder, and permissive joinder. Compare Brown v. Brown,

506 A.2d 29, 32 (N.J. Super. Ct. App. Div. 1986) (requiring joinder of all tort

claims in a divorce action because an intentional tort between spouses constitutes a

“constituent element” of the divorce action), with Walther v. Walther, 709 P.2d 387,

388 (Utah 1985) (forbidding the joining of a tort claim with a divorce action on

grounds that tort actions and divorce proceedings are fundamentally distinct), and

Stuart v. Stuart, 421 N.W.2d 505, 508 (Wis. 1988) (rejecting a mandatory joinder

requirement and holding that tort claims may be joined with divorce actions but do

not have to be).134 Id. at 376. These states include Alaska, Arkansas, Idaho, Texas and Wisconsin.

Id. Other authorities are split on the issue. See generally Barbara Glesner Fines,

Joinder of Tort Claims in Divorce Actions, 12 J. AM. ACAD. MATRIM. L. 285 (1994)

(debating question of whether a divorce should be the final battle between two

spouses or simply the first step in an ongoing war); Andrew Schepard, Divorce,

Interspousal Torts, and Res Judicata, 24 FAM. L. Q. 127 (1990) (advocating the strict

application of res judicata to interspousal tort claims filed after divorce); Barbara H.

Young, Interspousal Torts and Divorce: Problems, Policies, Procedures, 27 J. FAM. L.

489 (1989) (examining the difficult procedural and policy issues faced when a party

in a divorce action has tort claims against his or her spouse). 135 Dalton, supra note 96, at 378. See Kemp v. Kemp, 723 S.E.2d 138, 139-40

(Tenn. Ct. App. 1986).136 Dalton, supra note 96, at 378. See also Brinkman v. Brinkman, 966 S.W.2d 780

(Tex. App. 1998) (holding wife’s tort claimed barred by res judicata since she was

aware of the claim during the divorce proceeding and used it to her advantage dur-

ing settlement). 137 Dalton, supra note 96, at 378.138 Id. at 381-83. 139 Id. at 383.140 Schmidt v. Schmidt, 12 Va. Cir. 313 (Richmond Cir. Ct. 1988).141 Id.142 Mustilli v. Mustilli, 671 A.2d 650 (N.J. Super. Ct. Ch. Div. 1995).143 Id. at 651.144 Id.145 Id. at 652. The new tort claim would require discovery into the cited allega-

tions contained in the complaint never sought previously because neither party had

demonstrated a desire to contest whether the marriage should be dissolved. Id.146 Mustilli, 671 A.2d at 652. The court further noted that it appeared that the

“psychological paralysis” argument referred to in Giovine is an argument that may

only be made by a woman, even though this may be incongruous in a society so

earnestly seeking to free itself of gender bias. Id.147 Id. at 386-87. See also Brennan v. Orban, 678 A.2d 667 (N.J. 1996) (holding

that plaintiff was entitled to a jury trial because public policy against domestic vio-

lence outweighed other matters awaiting disposition in her divorce from defendant

husband).

148 Dalton, supra note 96, at 387.149 Id. An increasing number of jurisdictions are permitting a former marital part-

ner to bring tort claims after the divorce proceeding. Id. See Henricksen v. Cameron,

622 A.2d 1135 (Me. 1993); Delahunty v. Mass. Mut. Life Ins. Co., 674 A.2d 1290

(Conn. 1996). Both courts stressed that this may result in undue delay in divorce

proceedings that may effect both the courts and instances of child custody. Further,

the delay in resolving the divorce proceeding may have a negative psychological

impact on parties by prolonging the uncertainty of their marital status. Brennan v.

Orban, 678 A.2d 667, 678 (N. J. 1996).150 Dalton, supra note 96, at 387-88. Such an election might require an abused

spouse to relinquish both the constitutional right to a jury trial and valuable prop-

erty rights in order to preserve his or her well-being. Id.151 Elliot H. Gouritz, Domestic Torts in New Jersey, available at

http://www.gourvitz.com/).

ZZZZZZZZZZZ

Samuel W. Meekins, Jr.ChairWolcott Rivers Gates One Columbus Center, Ste. 1100Virginia, Beach, VA 23462

757/497-6633Fax: 757/497-

7267

Vicki Hansen DevineVice ChairFurniss, Davis, Rashkind andSaunders, P.C.P.O. Box 12525Norfolk, VA 23541-0525

757/461-7100Fax: 757/461-0083

Ronald Lee LivingstonSecretaryTremblay & Smith, LLP105-109 East High StreetP.O. Box 1585 Charlottesville, VA 22902

434/977-4455Fax: 434/979-1221

Robert E. ScullyImmediate Past ChairRees, Broome & Diaz, P.C.8133 Leesburg Pike, 9th FloorVienna, VA 22182

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

Kevin W. MottleyNewsletter EditorTroutman Sanders LLP1001 Haxall PointP.O. Box 1122 Richmond, VA 23218-1122

804/697-1263Fax: 804/697-1339

Scott Carlton FordMcCandlish Holton, PCP.O. Box 796Richmond, VA 23218

804/968-4581Fax: 804/775-3816

Philip G. GardnerGardner, Gardner & BarrowFidelity Bank Building 4th Fl.231 East Church StreetMartinsville, VA 24112-2840

276/638-2455Fax: 276/638-2458

Gregory Joseph HaleyGentry, Locke, Rakes & Moore10 Franklin Road, SEP.O. Box 40013 Roanoke, VA 24022-0013

540/983-9368Fax: 540/983-9400

Harry Margerum Johnson IIIHunton & Williams951 East Byrd StreetRichmond, VA 23219-4074

804/788-8200Fax: 804/344-7999

Kevin Philip OddoLeClair Ryan Flippin Densmore1800 First Union TowerDrawer 1200 Roanoke, VA 24006

540/510-3000Fax: 540/510-3050

Jennifer Lee ParrishParrish, Houck & Snead, PLCSuite 100701 Kenmore Avenue Fredericksburg, VA 22401-5737

540/373-3500Fax: 540/899-6394

Simon Herbert Scott III Sams &Scott, P.C.(757) 627-3999500 Plume StreetNorfolk, VA 23510

757/627-3999Fax: 757/627-4042

Mary Catherine Zinsner TroutmanSanders LLP1660 International Drive, Suite 600McLean, VA 22102-3805

703/734-4363Fax: 703/734-4340

Hon. Rodham Tulloss Delk, Jr.Suffolk Circuit CourtPost Office Box 1814Suffolk, VA 23439-1814

757/923-2271Fax: 757/923-2429

Hon. Michael Francis UrbanskiEx-Officio JudicialUnited States District CourtWestern District of VirginiaP.O. Box 38Roanoke, VA 24002

540/857-5124Fax: 540/857-5129

Sandra T. Chinn-GilstrapChair, Young Lawyers CommitteeDanville Regional Law Center520 Piney Forest RoadDanville, VA 24540

434/797-9681Fax: 434/797-1488

Ann Kiley CrenshawChair, Computer Task ForceKaufman & Canoles2101 Parks Ave., Ste. 700Virginia Beach, VA 23451

757/491-4044Fax: 757/491-4020

L. Steven EmmertAppellate PracticeSykes, Bourdon, Ahern & LevyPembroke Office Park, 5th Floor281 Independence BoulevardVirginia Beach, VA 23462-2989

757/499-8971Fax: 757/456-5445

Homer C. EliadesSr. Lawyers Conference409 North 6th AvenueP. O. Box 967Hopewell, VA 23860-0967

804/458-6366Fax: 804/458-6380

Patricia SligerLiaisonVirginia State Bar707 East Main Street, Suite 1500Richmond, VA 23219-2800

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

29


Virginia State Bar Litigation Section2005 - 2006 Board of Governors

30


Improper PleadingsBrett A. Spain

Improper Pleadings Answers page 35

31


Across

1. Hunk

5. Irate with

10. Title ins. form

14. Sound quality

15. Oldsmobile model

16. Swerve

17. Oscar winning role for Julia

18. Congo neighbor

19. Lemonheads’ Dando

20. Punches?

23. Red book author

24. Actress Sorvino

25. Belief system

28. Jump bail

31. Eight _____ Freaks

35. Base opposite

37. Ain’t right

39. Chamber instrument

40. Beseeches a waitress?

43. Imitate a sheep

44. DEA agent

45. Entrance sometimes

46. Iraqi ace?

48. Ancient Peruvian tribe

50. _____ Moines

51. La _____ (tar pit locale)

53. Mother of Jupiter

55. Ask for a divorce?

63. Inter _____

64. Executrix, e.g.

65. Asian range

66. Lincoln’s locale

67. Managing partner’s directive

68. Lost ground on the charts

69. Prepares to sow

70. Makes an impression

71. Copyright suit target

Down

1. Halt2. Deere rival

3. Blood quantity4. Neil Diamond’s cloth5. Cruise film

6. Malpractice insurer7. Discharge target

8. ______With a View9. Frequently removed item10. Finding a median

11. Jacob’s son12. Wood variety

13. English composer Thomas21. Clod22. Roman fountain

25. Dickinson feet26. La ______ (opera house)

27. Wired29. New MNF locale30. Chou _______

32. Spoil33. Make happy34. Truth alternatives

36. Common J&DR defendants

38. Gull relative41. Arcade button42. Narratives

47. Spoke Persian?49. Calculation of interest52. Place to get good service54. Pitcher’s alteration?55. Speed of sound56. Butter substitute57. Creeping plant58. Poker table phrase

59. Jury issue60. 51 or drop61. Cheap commodity62. Cosmopolitan rival

32


Recent Law ReviewArticlesR. Lee Livingston

CIVIL RIGHTS AND DISCRIMINATION

Becker, Carri. Note. Private Enforcement of theAmericans with Disabilities Act Via Serial Litigation:Abusive or Commendable? 17 Hastings Women’sL.J. 93-114 (2006).

Celli, Melissa A. Note. Jumping the Gun: CanMunicipalities be Held Liable Under 42 U.S.C. §1983 for Failing to Provide Police Officers with Less-Lethal Weapons? 39 Suffolk U. L. Rev. 185-205(2005).

Harris, Donald P. and students Daniel B. Garrie andMatthew J. Armstrong. Sexual Harassment: Limitingthe Affirmative Defense in the Digital Workplace. 39U. Mich. J.L. Reform 73-97 (2005).

Mroz, Susannah P. Note. True Believers?: Problemsof Definition in Title VII Religious DiscriminationJurisprudence. 39 Ind. L. Rev. 145-76 (2005).

Risk, Carol L. and Richard A. Bales. Family MedicalLeave Act Standards of Proof and the Impact ofDesert Place on Retaliation Claims. 28 N.C. Cent.L.J. 68-86 (2005).

COMMUNICATIONS LAW

Blythe, Stephen E. Hong Kong Electronic SignatureLaw and Certification Authority Regulations:Promoting E-Commerce in the World’s ‘Most Wired’City. 7 N.C. J.L. & Tech. 1-65 (2005).

Borchers, Kelly A. Note. Mission Impossible:Applying Arcane Fourth Amendment Precedent toAdvanced Cellular Phones. 40 Val. U. L. Rev. 223-66 (2005).

Hricik, David and Amy Falkingham. Lawyers StillWorry Too Much About Transmitting E-Mail Over theInternet. 10 J. Tech. L. & Pol’y 265-300 (2005).

CONSTITUTIONAL LAW

Tilgham, Richard H. IV. Comment. RethinkingConstitutional Limitations on Punitive Damages:Providing Economically Efficient Incentives toPrevent Nursing Home Abuse. 54 DePaul L. Rev.1007-38 (2005).

CONTRACTS

Barnes, Richard L. Rediscovering Subjectivity inContracts: Adhesion and Unconscionability. 66 La.L. Rev. 123-88 (2005).

Geniuk, Kenneth Jeremy. Note. Untipping theScales: Using State Contract Law to Protect At-WillEmployees from Unfair Mandatory ArbitrationAgreements. 74 UMKC L. Rev. 197-220 (2005).

Moringiello, Juliet M. Signals, Assent and InternetContracting. 57 Rutgers L. Rev. 1307-49 (2005).

EMPLOYMENT PRACTICE

Leger, Shannon D. Note. Employment Law – Here’sLooking at You: High Tech “Peeping” in theWorkplace and the Role of Title VII. 28 W. New Eng.L. Rev. 89-131 (2005).

EVIDENCE

Kamarchik, Lisa Alumbaugh. Casenote. Last Dancewith the Daubert-Kumbo Decisions: One StepForward from Two Steps Back. (Howerton v. AraiHelmet, Ltd., 597 S.E.2d 674 (N.C. 2004)) 28 N.C.Cent. L.J. 109-25 (2005).

Malhotra, Geetanjli. Note. Resolving the AmbiguityBehind the Bright-Line Rule: The Effect of Crawfordv. Washington on the Admissibility of 911 Calls inEvidence-Based Domestic Violence Prosecutions.(Crawford v. Washington, 541 U.S. 36 (2004)). 2006U. Ill. L. Rev. 205-41.

33


Recent Law Review Articles — cont’d on page 34

McLain, Lynn. Post-Crawford: Time to Liberalizethe Substantive Admissibility of a Testifying Witness’sPrior Consistent Statements. 74 UMKC L. Rev. 1-40(2005).

Nicklaus, Edward R. and Alexander J. Perkins.Frequently Addressed Evidentiary Issues for theTrucking Accident Trial Lawyer. 41 Tort Trial & Ins.Prac. L.J. 105-21 (2005).

Schaffzin, Katharine Traylor. An UncertainPrivilege: Why the Common Interest Doctrine DoesNot Work and How Uniformity Can Fix It. 15 B.U.Pub. Int. L.J. 49-90 (2005).

Vitale, Michael S. Note. Damaged Goods: Why, inLight of the Supreme Court’s Recent Punitive DamagesJurisprudence, Congress Must Amend the FederalRules of Evidence. 58 Vand. L. Rev. 1405-41 (2005).

INSURANCE LAW

Neumeier, Richard L. Disclaiming Coverage Whenthe Insured Fails to Give Proper Notice of “AnyCircumstance” Giving Rise to a Claim. 41 Tort Trial& Ins. Prac. L.J. 45-60 (2005).

INTELLECTUAL PROPERTY LAW

Holland, H. Brian. Tempest in a Teapot or TidalWave? Cybersquatting Rights and Remedies RunAmok. 10 J. Tech. L. & Pol’y 301-51 (2005).

Leary, Matthew J. Note. Welding the Hood Shut:The Copyrightability of Operational Outputs and theSoftware Aftermarket in Maintenance andOperations. 85 B.U. L. Rev. 1389-1438 (2005).

JUDGES

Geyh, Charles Gardner. The Judgment of the Boss onBossing the Judges: Bruce Springsteen, JudicialIndependence, and the Rule of Law. 14 Widener L.J.885-905 (2005).

JURISDICTION

Choper, Jesse H. and John C. Yoo. Who’s’ Afraid ofthe Eleventh Amendment? The Limited Impact of theCourt’s Sovereign Immunity Rulings. 106 Colum. L.Rev. 213-61 (2006).

Exon, Susan Nauss. Personal Jurisdiction: Lost inCyberspace? 8 Computer L. Rev. & Tech. J. 21-82(2003).

Helmer, Elizabeth. Comment. The Ever-ExpandingComplete Preemption Doctrine and the CopyrightAct: Is this What Congress Really Wanted? 7 N.C.J.L. & Tech. 205-231 (2005).

PRACTICE AND PROCEDURE

Cohen, Stephen B. Misassigning Income: TheSupreme Court and Attorneys’ Fees. 25 Va. Tax Rev.415-49 (2005).

Slobogin, Christopher. Subpoenas and Privacy. 54DePaul L. Rev. 805-45 (2005).

Speight, Howard L. and Lisa C. Kelly. ElectronicDiscovery: Not Your Father’s Discovery. 37 St.Mary’s L.J. 119-77 (2005).

Wong, Jarrod. Court or Arbitrator – Who DecidesWhether Res Judicata Bars Subsequent ArbitrationUnder the Federal Arbitration Act? 46 Santa ClaraL. Rev. 49-92 (2005).

PRODUCTS LIABILITY

Ortego, Joseph J. and James W. Weller. ProductsLiability and the Elements of Science: Admissibilityof Expert Testimony in New York and Other FryeStates. 41 Tort Trial & Ins. Prac. L.J. 83-103 (2005).

REMEMDIES

Hoffer, Joseph E. Comment. Qui Tam: Survival of theAction and Fate of the Proceeds Following the Death ofthe Relator. For the King and for Himself…and HisHeirs. 37 St. Mary’s L.J. 199-240 (2005).

34


SECURITIES LAW

Morrissey, Daniel J. After the Ball is Over: InvestorRemedies in the Wake of the Dot-Com Crash andRecent Corporate Scandals. 83 Neb. L. Rev. 732-61(2005).

TORT LAW

Calvert, Clay and Robert D. Richards. Journalism,Libel Law and a Reputation Tarnished: A Dialoguewith Richard Jewell and His Attorney, L. Lin Wood. 35McGeorge L. Rev. 1-43 (2004).

Johnson, Vincent R. Cybersecurity, Identity Theft, andthe Limits of Tort Liability. 57 S.C. L. Rev. 255-311(2005).

Lee, William E. The Priestly Class: Reflections on aJournalist’s Privilege. 23 Cardoza Arts & Ent. L.J.635-86 (2006).

Schwartz, Victor E. and Emily J. Laird. Non-Economic Damages in Pet Litigation: The SeriousNeed to Preserve a Rational Rule. 33 Pepp. L. Rev.227-73 (2006).

Smith, Hans. Class Actions and Their Waiver inArbitration. 15 Am. Rev. Int’l Arb. 199-214 (2004).

Turner, Jennifer A. Going After the ‘Hired Guns’: IsImproper Expert Witness Testimony UnprofessionalConduct or the Negligent Practice of Medicine? 33Pepp. L. Rev. 275-309 (2006).

Recent Law Review Articlescont’d from page 33

35


Improper Pleadings Answers from page 30

Litigation News is published by theVirginia State Bar Litigation Section.

Newsletter EditorKevin W. Mottley

Statements or expressions of opinionor comments appearing herein arethose of the editors, authors and con-tributors and not necessarily those ofthe Virginia State Bar or itsLitigation Section.

Publish Your WorkLitigation News welcomes the submission of liti-gation-oriented articles. If you have researched orargued an interesting point of Virginia law, or havepractice tips to share, consider condensing them intoan article for Litigation News. The contact forsubmission of these articles is:

Kevin W. Mottley, Esq.Troutman Sanders LLP.

1001 Haxall PointP. O. Box 1122

Richmond, VA 23218-1122804/697-1263

fax 804/697-1339e-mail

[email protected]


PRST STDU.S. POSTAGE

PAIDPERMIT NO. 709

RICHMOND

Virginia State BarEighth & Main Building707 East Main Street, Suite 1500Richmond, Virginia 23219-2800

Volume XIII Number 2 Spring 2006 Recognizing Partner Abuse ...

Documents

Transcript of Volume XIII Number 2 Spring 2006 Recognizing Partner Abuse ...