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We hope having these options available will help. Let one of our professionals help you and your clients. Virginia Barristers Alliance, Inc. The Insurance Agency Subsidiary of The Virginia Bar Association Dean Hardy and Howard DiSavino Jr. 4880 Sadler Road, Suite 110, Glen Allen, Virginia 23060 (804) 290-8720 direct line • 1-800-358-7987 toll-free • (804) 762-4192 fax e-mail: [email protected] THE VIRGINIA BAR ASSOCIATION VOLUME XXXII, ISSUE 5 VBA• • OCTOBER/NOVEMBER 2006

701 East Franklin Street, Suite 1120 Richmond, VA 23219 (804) 644-0041 FAX (804) 644-0052 News Journal E-mail: [email protected] Web: www.vba.org 4 • President’s Page President Regaining Our Moral Compass William R. Van Buren III, Norfolk William R. Van Buren III President -elect Glenn C. Lewis, Washington, D.C. Chair, Board of Governors 5 • Come to the 117th VBA Annual Meeting! G. Michael Pace Jr., Roanoke Immediate Past President James V. Meath, Richmond Legal Focus/Civil Litigation: Law Practice Management Division Chair 6 • Effective E-Mail Discovery: Be Proactive and Combine David H. Sump, Norfolk Practical, Technical and Legal Strategies Young Lawyers Division Chair Lori D. Thompson, Roanoke Jon M. Talotta Young Lawyers Division Chair-elect Matthew E. Cheek, Richmond 9 • Tortious Interference with Contract or Business Board of Governors Expectancy: An Overview of Virginia Law The Officers and Prof. Margaret I. Bacigal, Richmond David N. Anthony Stephen D. Busch, Richmond John D. Epps, Richmond Cheshire I. Eveleigh, Virginia Beach 15 • The Constitutionality of Irrebuttable Presumptions William E. Franczek, Norfolk Professor James J. Duane Karen Turner McWilliams, Reston Steven R. Minor, Bristol J. Lee E. Osborne, Roanoke 18 • Young Lawyers Division Stephen C. Price, Leesburg Glenn W. Pulley, Danville The YLD 50th Anniversary: Nancy N. Rogers, Richmond A Celebration of a Noble Profession Hon. Pamela Meade Sargent, Abingdon Richard C. Sullivan Jr., Falls Church Lori D. Thompson Member of ABA House of Delegates E. Tazewell Ellett, Alexandria 22 • Classified Ads Legislative Counsel 22 • Professional Announcements Hon. Anthony F. Troy, Richmond Hon. Robert B. Jones Jr., Richmond 24 • Calendar Anne Leigh Kerr, Richmond Executive Director Guy K. Tower On the Cover: The Clifton Forge City Hall (1911). One hundred forty photographs of Virginia courthouses are contained in Virginia’s Historic Courthouses, written Assistant Executive Director by John O. and Margaret T. Peters with a foreword by the late Justice Lewis F. Brenda J. Dillard Powell Jr.; photographs by John O. Peters; published by University Press of VBA News Journal Editor Charlottesville; and sponsored by The Virginia Bar Association. To order the Caroline B. Cardwell book, call the VBA at (804) 644-0041 or 1-800-644-0987.

OUR MISSION The Virginia Bar Association is a voluntary VBA NEWS JOURNAL, the official publication of The Virginia Bar Association (ISSN 1522- organization of Virginia lawyers 0974, USPS 093-110), is published six times per year (December/January, February/March, committed to serving the public and the April/May, June/July, August/September and October/November). Membership dues legal profession by promoting the highest include the cost of one subscription to each member of the Association. Subscription price standards of integrity, professionalism, to others, $30 per year. Statements or expressions of opinion appearing herein are those and excellence in the legal profession; of the authors and not necessarily those of the Association, and likewise the publication working to improve the law and the of any advertisement is not to be construed as an endorsement of the product or service administration of justice; and advancing unless specifically stated in the advertisement that there is such approval or endorsement. collegial relations among lawyers. Periodicals postage paid at Richmond, VA 23232. POSTMASTER: Send address changes to The Virginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219. PRESIDENT’S PAGE Regaining Our Moral Compass

BY WILLIAM R. VAN BUREN III

Tyco. Enron. Hewlett-Packard. All We urge the Supreme Court of Virginia to legendary corporate names now consider the adoption of . . . principles to be associated in the media with tales of corporate scandal. Unfortunately for published with the Rules of Professional Conduct our profession, too often such and to serve as a basis for a continuum of scandals trace their alleged origins to professionalism training . . . These principles can corporate lawyers said to be the architects of the schemes underlying be a guiding light to young lawyers, advancing the ensuing tragedy. the traditions of professionalism to the next Do the ends of our clients always generation, and reminding us all of the standards justify the means? Clearly, lawyers who that set us apart from mere hired guns. advise their clients to engage in conduct that is illegal have crossed an improper line. But what of immoral conduct? Will our reputations survive a strategy of the people who engaged in Speaking to the Forum for where the only boundary to our advice these ill-conceived activities. Corporate Conscience, Buffett is that which is legally possible? But somewhere along the line reinforced the same message about Discussing the proliferation of they picked up the notion – the importance of ethical behavior: reports of backdating of stock options, perhaps suggested to them by “You can lose a reputation that took a commentator on the NewsHour with their auditor or consultant – 37 years to build in 37 seconds… And Jim Lehrer remarked that lawyers who that a number of well- it might take more than 37 years to improperly advise their clients respected managers were build it back.” regarding such conduct should be engaging in such practices and Borrowing a page from Warren targeted in enforcement actions. Do therefore it must be OK to do Buffett’s playbook, I submit to each of his predictions need to become reality so. It’s a seductive argument. you that the reputation of our before our profession cleans its own profession is similarly in your hands. “But it couldn’t be more wrong. house? Hidden behind the cloak of attorney- In fact, every time you hear the On the heels of the most recent client privilege, the bold advice we phrase ‘Everybody else is doing scandal at Hewlett-Packard, where give our clients is shielded from public it,’ it should raise a huge red flag. its corporate executives have been view. Yet the actions those clients Why would somebody offer accused of violating state privacy ultimately take at our direction and such a rationale for an act if there in seeking the source of urging may not play quite as well in were a good reason available? information leaks emanating from the light of day. If the advice feels Clearly the advocate harbors at their board room, Warren Buffett, wrong in private, it may well be least a small doubt about the act chairman of investment giant reason to pause. Slick lawyers, too if he utilizes this verbal crutch. Berkshire-Hathaway, wrote a memo clever in the pursuit of their own to his corporate executives that urged “So, at Berkshire, let’s start with client’s aims and devoid of their own each of them to resist the temptation what is legal, but always go on moral compass, are damaging to the to engage in improper behavior. to what we would feel health of our collective reputation. His directive to management comfortable about being printed Perhaps a pause to reflect on Warren began with the admonition that “the on the front page of our local Buffett’s advice will not only enhance five most dangerous words in paper, and never proceed our investment portfolios but enlarge business may be “Everybody else is forward simply on the basis of our reputations as well. doing it.” His memo elaborates further the fact that other people are The leadership of The Virginia Bar with telling comments about the doing it.” Association believes the time is right shallow nature of this approach: to reinforce to the public and the In closing, Warren Buffett lawyers of Virginia that professionalism “You would have been happy admonishes his managers that and integrity are cornerstones of the to have as an executor of your “Berkshire’s reputation is in your practice of law. will or your son-in-law most hands.” 4/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006 Over a dozen states have adopted formal Principles of Professionalism Dear Friends: to serve as aspirational standards of civility, integrity and professionalism. Our 2007 Annual Meeting . . We urged the Supreme Court of features a homecoming for the VBA VBA Virginia to consider the adoption of in a great many respects. We not similar principles to be published only return to the newly renovated with the Rules of Professional Conduct and upgraded Williamsburg and to serve as a basis for a continuum Lodge, we will welcome back of professionalism training, beginning many of the leaders of the VBA in the law schools and reinforced Young Lawyers Division who built 1957-2007 throughout each lawyer’s career. the foundation for the great yldyldyld I am pleased to report that Chief reputation the YLD enjoys today. Justice Hassell recently advised that the Justices of the Court are of the On January 18-21, 2007, we will celebrate the 50th Anniversary of our opinion that a study of the Principles award-winning Young Lawyers Division. In addition to the special of Professionalism concept would be programming we have arranged to provide career development for our a worthwhile endeavor. current young lawyers, our Friday night black-tie banquet has been These principles can be a guiding transformed into a delightful dinner dance featuring a short trip down the light to young lawyers, advancing the YLD memory lane and a long night of dancing to the music of “The traditions of professionalism to the Entertainers,” a terrific show band from Charlotte, North Carolina. next generation, and reminding us all of the standards that set us apart from We will be offering a wide range of substantive programming, with a mere hired guns. This effort is an mix of 15 concurrent sessions and three general sessions appealing to important building block to the both lawyers and their guests. Our showcase general session will be reputation of the profession, but the presented by the Committee on Special Issues of National and State rest will be up to each of you. One Importance and the Miller Center and will focus on the immigration scandal can hurt us all. VBA debate. Improvement of Virginia’s jury system will be the focus of another general session sponsored by the Judiciary Committee and Judicial Section. The Law Practice Management Division will present a third general session program entitled, “Marketing by Associates: Increasing Additional VBA/CSP the Bottom Line While Training Future Leaders.” Servants announced Other presentations by our Law Practice Management Division will The following VBA members, listed include a concurrent session specifically geared towards young lawyers, alphabetically by community, have been “Taking Control: Strategies for Your Career and Your Life”; and, for the added to the previously published roster of annual Managing Partner’s Roundtable Luncheon on Saturday, the topic VBA Community Service Program will be “Developing the Next Generation of Great Virginia Lawyers” – a participants by certifying service hours for presentation certain to be of interest to managing partners in firms of all 2005: sizes. The topic of Friday’s installment of the always popular Legacy VBA Community Servants Series Luncheon will be the 400th anniversary of Jamestown. On behalf of (50 or more hours of certified nonlegal the Committee on Special Issues of National and State Importance, Dr. community service) James C. Kelly of the Virginia Historical Society will present “Jamestown C. Edward Russell Jr., Kaufman & Canoles, PC, Norfolk 1607, Quebec 1608, Santa Fe 1609: Three North American Beginnings.” Jeffrey M. Stedfast, Kaufman & Canoles, PC, Norfolk This meeting is sure to appeal to young and young-at-heart lawyers Matthew E. Cheek, Williams Mullen, alike. But for those of you who have long since “aged out” of the YLD, I Richmond Lori D. Thompson, LeClair Ryan, hope you’ll remember it’s never too late to pretend you’re young. Make Roanoke reservations today – we promise to make you feel young again! Watch for the meeting brochure and for e-mails with program updates. To reserve VBA Pro Bono Servants (50 or more hours of certified pro bono your room, either use the reservation form (to be included in the publico legal service) brochure) or call 1-800-HISTORY and mention the VBA Annual Meeting. John M. Holloway III, Hunton & Williams LLP, Richmond I look forward to seeing you in Williamsburg! As 2006 draws to a close, please complete the online certification form and submit it Sincerely, to the VBA office, or call (804) 644-0041 for more information. The VBA Community Service Program encourages all Virginia lawyers who serve their communities to William R. Van Buren III certify their service hours! Watch for details President of a special service project at the VBA Annual Meeting in January.

OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/5 LEGAL FOCUS Civil Litigation Effective E-Mail Discovery: Be Proactive and Combine Practical, Technical and Legal Strategies BY JON M. TALOTTA

As we all know, e-mail is often the e-mail in order to frame the discussion managed (e.g., system structure, key source of evidence in litigation. in a context likely to be familiar to all storage and disaster recovery E-mail is probably the most common readers. procedures). If you do not educate form of written communication in the yourself, it will be difficult to establish workplace and at home. More I. Client E-Mail: From the Outset, an efficient litigation hold (which can importantly, an e-mail may form a Preserve and Investigate be unduly burdensome if too broad contract, contain statements In terms of protecting your client’s and dangerous if too narrow). concerning important facts, e-mail and other information, you Moreover, you will not understand knowledge or intent and, in some cannot “hide the ball,” but you can whether certain e-mail is inaccessible instances, be actionable in and of itself preserve and investigate your client’s or overly expensive to collect and, as (e.g., defamation, phishing). In records and systems to safeguard a result, miss opportunities to discuss addition, although they are creating against spoliation and manage costs. these issues with opposing counsel a writing that can be easily Preservation. Upon notice of early in the case. In addition, you may forwarded and potentially lasts impending litigation, take steps to not be able to assess whether use of forever, people are remarkably preserve your client’s potentially an e-discovery vendor would be unguarded in their use of e-mail as relevant e-mail. Your client may helpful or necessary. compared to other written already have an ESI policy in place communication. Thus, e-mail is covering e-mail and litigation “hold” II. Opposing Party E-Mail: Broad usually the most revealing (and often procedures. If so, get a copy, determine Requests May Be Counter-Productive the only) contemporaneous record of whether it has been followed in the Conducting e-mail discovery on an a party’s thoughts and intentions as past, and ensure that any litigation opposing party involves choices. events or transactions unfold. hold procedures are followed going Broad requests are likely to cover the As we also know, discovery is forward. If not, establish litigation available information you need, but driven by two fundamental goals: hold procedures as soon as can result in massive productions protect your client’s information; and practicable. Sanctions for spoliation that are costly to review. As a result, obtain information from others that can be severe. attempt to gather information about you may need for your case. E-mail Investigation. At the same time, an opposing party’s e-mail and discovery, however, can be very meet with your client’s information systems early on, in order to make expensive for both the requesting technology (IT) personnel, whether informed decisions about the nature party and the producing party, and your client’s information system is a and scope of your discovery requests. producing e-mail always involves single computer or a multi-server Preservation. Consider sending a the risk of inadvertently disclosing infrastructure. Meeting with litigation hold letter to the opposing privileged information, particularly management is not enough, but it can party to provide clear notice of in large productions. As a result, be helpful to give both IT personnel preservation obligations. This will set lawyers must be proactive from the and management a written up a framework for resolving disputes outset, combining practical, technical questionnaire to complete before your over incomplete productions or 1 and legal strategies in order to protect meetings. The responses will help spoliation that may arise later. client information and maximize the you ask informed questions and can Investigation. Courts now expect, return on a client’s investment in be useful later. if not require, counsel to cooperate on 2 e-mail discovery. Technical issues. In order to plan an e-discovery issues. Pre-discovery To a large extent, the keys to effective effective e-mail discovery strategy, conferences are an opportunity to e-mail discovery apply generally to you have to consider more than the explore preservation, scope, electronically stored information (ESI) issues likely to be relevant in the accessibility and cost issues prior to in all aspects of electronic discovery litigation – you must understand the discovery. If your client wants to limit (e-discovery). This article focuses on basics of how your client’s e-mail is the scope of e-mail discovery, you 6/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006 may want to explore whether the ○○○○○○○○○○○○○○○○ opposing party will produce or accept ABOUT THE AUTHOR production of e-mail limited to specific Jon Talotta is a senior litigation associate in Hogan & Hartson LLP’s individuals or agreed-upon topics or office. He is a graduate of the University of Virginia School of Law, served as a law clerk 3 search terms. In addition, if an to the Honorable James C. Cacheris (E.D.Va.) after law school, and focuses his law opposing party has lots of e-mail or practice on complex litigation and counseling clients on a range of commercial complex systems, you may want to matters, including intellectual property, the Internet, and insurance coverage. depose its IT personnel and/or serve targeted interrogatories prior to Once you have determined a third Final review. The most critical – and serving the bulk of your merits party may have relevant e-mail, you expensive – aspect of an e-mail discovery requests. should consider sending a litigation production is usually the final review Technical issues. Here, as well, hold letter, particularly if it is unlikely for responsiveness and privilege. It is understanding technical issues that the third party, such as an ISP, is difficult to completely automate this relating to the opposing party’s e-mail aware that it may be subject to process, but search technology and systems may eliminate the discovery in your dispute. usually can identify a large reflexive urge to serve broad requests percentage of potentially privileged that are easy to draft but can result in e-mail. There always is a risk that massive productions.4 More IV. Preparing Client E-Mail privileged information will be importantly, you will be in a better Productions: Combine Practical, inadvertently produced, particularly position to anticipate potential Technical and Legal Strategies in very large productions. Because the objections to your discovery requests, The process of producing e-mails rules on waiver of privilege vary including whether an opposing party (as with all documents) can be broken across jurisdictions,9 it is worth may assert that certain e-mail is down into four phases: identification; attempting to work out “quick peek” inaccessible or too expensive to collection; final review; and production. or “claw back” arrangements with○○○○○○○○○○○○○○○○○○○○○○○○○○○ collect, and thereby reduce the chance Identification. The initial investigation the requesting party, to avoid waiver that the opposing party will be able of your client’s information systems and reduce review costs.10 to shift some of its costs onto your will help you identify the sources of Agreements to forego the preparation client. potentially responsive e-mail more quickly. Identify all sources, including of privilege logs, or at least limit what III. Third Party E-Mail: live files, archives and disaster must be logged (e.g., documents Can Be Very Helpful to Your Case recovery files, whether on internal or relating to key people or issues), can Do not overlook. There usually is out-sourced systems or servers, reduce costs as well. Finally, little downside to serving requests on computers, laptops, or mobile devices. e-discovery vendors can be a valuable third party individuals or entities, Do not forget about employee home asset at this stage, but you too must 11 and the return on your investment computers. stay on top of the technical details. can be significant. Of course, a third Collection. You do not have to Production. E-mail can be produced party may have relevant e-mail or collect all potentially responsive in a variety of formats: native files other information that neither your e-mail, but you need to identify it and (e.g., PST); exported files (e.g., for use client nor an opposing party has in be able to articulate a reasonable with database software); images (e.g., its possession. A less obvious reason justification for what is not collected TIFF, PDF); and hard copy. The amount for requesting third party e-mail is to based on inaccessibility and/or cost.6 of information included with each obtain metadata from e-mail sent by In other words, as the “marginal e-mail (e.g., metadata, attachments), the third party that would not be utility” of collecting certain e-mail the level of searchability, and the available in your client’s or another decreases, your client may be able to ability to protect privileged party’s copy, such as the blind copy forego collecting the e-mail or shift the information, vary with each format. (bcc) recipients of an e-mail. cost of collection onto the requesting For example, requesting parties often Usually not difficult to obtain. party.7 Document management want native files, which contain Assuming the third party resides in software can be used to eliminate some metadata and attachments, rather the United States, it is relatively easy non-responsive e-mail and identify than TIFF and PDF files, which might to request e-mail or related duplicates prior to the final review to not. E-mail in native files, however, information in federal or state court save costs. In addition, you need to can be more difficult to Bates stamp proceedings. In some instances, your ensure that your client’s IT personnel and redact than in TIFF or PDF files. In client may not be able to identify the remain informed throughout this the past, producing parties often third party, because the discovery is process, because they may have to attempted to limit the information triggered by an e-mail received from provide affidavits or testimony later, provided in, and the searchability of, anonymous e-mail address. For to authenticate and/or establish a an e-mail production by producing example, a defamatory e-mail sent to foundation for e-mail you are the least functional format possible. your client and others from an attempting to introduce into evidence. Today, however, amended Rule 34(b) anonymous e-mail address is not Do not assume that your client’s e-mail of the Federal Rules of Civil Procedure very useful until the true identity of or other ESI will simply fly into evidence. (effective December 1, 2006), gives the the author is known. This type of third Your records custodian should be requesting party the ability to specify party discovery is often directed at well-versed in the maintenance and the format of the production. This Internet service providers (ISPs).5 storage of your client’s ESI.8 change will no doubt influence the OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/7 states to make changes as well. As a on the circumstances of each case, creditor status in debtor’s proceeding, result, the safest approach is usually including the information systems of because American Express’ custodian of records lacked sufficient knowledge of the to produce e-mail in the same format your client and the other parties company’s ESI management and storage that you intend to use during the involved. Nevertheless, if you are procedures). litigation, unless you can articulate a proactive from the outset, and can 9. The ABA has proposed new Federal Rule reasonable basis for producing it in a combine practical, technical and legal of Evidence 502, which is intended to promote 12 uniformity across jurisdictions with respect different format. strategies, you will increase the to the rules on waiver of privilege. Among likelihood of protecting your client’s V. Reviewing and Managing Opposing/ the provisions, subject matter waiver is e-mail and other information, and of limited to “unusual” situations; inadvertent Third Party E-Mail Productions: Identify maximizing the return on your disclosures do not result in waiver if Potential Disputes Early, Stay Organized client’s investment in e-mail reasonable steps were taken prior to and Once you receive an e-mail after the disclosure; intentional disclosure discovery. VBA of privileged information to the government production, you need to determine during an investigation will not result in a whether it is complete and, if not, NOTES waiver as to third parties; and federal court whether e-mail is missing as a result 1. An ESI questionnaire can cover: computer, orders regarding waiver will be enforceable server, and system structure and procedures; of a disagreement over the scope of against non-parties in other federal and state ESI storage and procedures; disaster proceedings. your requests, the routine deletion of recovery and business interruption 10. These arrangements allow the requesting e-mail, or spoliation. In addition, you procedures; and litigation hold procedures. party to conduct an initial (“quick peek”) need to organize and manage the ESI questionnaires can be tailored to address review of the collected e-mail and to request the specific issues relevant to a particular selected e-mails to be produced. The e-mail production along with the rest case. For example, in an employment case, of your case. producing party then conducts a privilege the questionnaire might include questions review of just the selected e-mail and retains Production Disputes. Reviewing about employee termination, departure, or any privileged e-mail (“claw back”) prior to another party’s e-mail production is transfer procedures. the actual production. See Fed. R. Civ. P. almost expensive as the final review 2. For example, in federal court cases, 26(f)(3) (as amended, effective December 1, counsel are required to address ESI-related of your own productions (the former 2006). discovery issues during the pre-discovery 11. Recent headlines confirm the need to does not include privilege review). conference, pursuant to amended Rule 26(f) remain informed on technical issues. In Your short-term objective is to assess of the Federal Rules of Civil Procedure connection with the ongoing Enron litigations, the production’s completeness as it (“Federal Rule”), effective December 1, 2006. an e-discovery vendor prepared 3. See, e.g., J.C. Assocs. v. Fidelity & Guar. productions that included numerous e-mail relates to your discovery requests. Ins. Co., 2006 U.S. Dist. LEXIS 32919 (D.D.C. Software usually is not enough. containing no text. At first, it was suspected May 25, 2006) (court approved collection of that the e-mail might have been erased, Human review, depositions, and/or responsive documents based on search but ultimately was determined that no e-mail discovery responses often are terms used to limit production of 1.4 million had been erased and that the problem was necessary as well. Occasionally, potentially responsive insurance claim files software-related. See Software Glitch May down to 454 files). disputes over completeness arise that Have Erased E-Mail Text in Enron Suits 4. Similarly, if your client does not want, or (August 10, 2006) (available at http:// may require a computer forensics cannot afford, to respond to broad requests, biz.yahoo.com/law/060810/ expert to resolve. Forensic experts can you may not want to serve them on an fc7314b1eaf35588924f84e05fcc9b81.html?.v=1). inspect systems, devices and files, and opposing party (i.e., you want to avoid having Nonetheless, the story is a cautionary tale – may be able to recover deleted records the well-known axiom “sauce for the goose even your e-discovery expert can have is sauce for the gander” directed at your technical problems. or, in extreme cases, detect intentional client as a result of your own requests). 13 12. See, e.g., CP Solutions PTE, Ltd. v. General spoliation. 5. Virginia and many other jurisdictions have Electric Co., 2006 U.S. Dist. LEXIS 27053 (D. Document Management. Your statutory and/or rules that Conn. Feb. 6, 2006) (producing party ordered long-term objective is to organize and permit so-called “John Doe” discovery. See, to produce native files with attachments e.g., Va. Code Ann. § 8.01-407.1 (providing integrate the e-mail production into included; TIFF files without attachments not for discovery of identity of “persons reasonable); Williams v. Sprint/United Mgmt. the rest of your case. Here, in communicating anonymously over the Co., 2005 U.S. Dist. LEXIS 21966 (D. Kan. particular, document management Internet”); America Online, Inc. v. Nam Tai Sept. 29, 2005) (producing party ordered to technology and software can result Electronics, Inc., 264 Va. 583 (2002) produce metadata previously “scrubbed” (permitting “John Doe” discovery in from Excel spreadsheets in production, in significant time and expense Commonwealth). savings. This technology can enhance because metadata was relevant to issues in 6. For example, amended Federal Rule litigation). searchability and preserve 26(b)(2)(B), effective December 1, 2006, 13. Sanctions for spoliation can include annotations/notes and other related requires a party to identify in its discovery default judgments. See, e.g., Krumwiede v. information in one centralized responses ESI that exists but is deemed Brighton Assoc. LLC, 2006 WL 1308629 (N.D. “inaccessible” due to the infeasibility or cost location, thereby reducing the Ill. May 8, 2006) (default judgment entered of collection. The rule sets up a framework for willful deletion of files). Significant duplication or repetition of your for a producing party to object to an sanctions have been imposed in several efforts. e-discovery request and thereby seek to shift prominent cases over the past two years for the costs onto the requesting party if the discovery abuses relating to e-mail. See, VI. Conclusion collection is actually performed. e.g., Zubulake v. UBS Warburg LLC, 2004 This roadmap merely scratches the 7. A leading common law analysis on WL 1620866 (S.D.N.Y. July 20, 2004) (adverse surface of e-mail discovery. There are cost-shifting is set forth in Judge Scheindlin’s jury instruction against defendant and costs series of opinions in the now-famous many details and nuances underlying imposed for willful destruction of e-mail); Zubulake case. See, e.g., Zubulake v. UBS Coleman (Parent) Holdings, Inc. v. Morgan each of the issues discussed above. Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). Stanley & Co., 2005 WL 679071 (Fl. Cir. Ct. The precise path to effective e-mail 8. See, e.g., In re Vinhnee, 336 B.R. 437 March 1, 2005) (adverse jury instruction discovery (as with all discovery, (B.A.P. 9th Cir. 2005) (affirming bankruptcy against defendant for willful destruction of ESI-related or otherwise) will depend court exclusion of electronic records e-mail; counsel disqualified; burden shifted submitted by American Express to establish to defendant to prove it did not commit fraud). 8/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006 LEGAL FOCUS Civil Litigation Tortious Interference with Contract or Business Expectancy: An Overview of Virginia Law BY DAVID N. ANTHONY Tortious interference with contract tort beyond personal service Actual Malice is not or business expectancy occurs when contracts to contracts of virtually any an Essential Element of the Claim a person intentionally damages the type or character.4 After significant A key component of a tortious plaintiff’s contractual or other disagreement, most American courts interference with contract claim is the business relationship with a third eventually recognized the tort.5 In third party’s intent as summarized person. This common law tort strikes Worrie v. Boze, the Supreme Court of by a noted treatise as follows: “[i]t is a delicate balance between two ideals: Virginia first acknowledged that “the clear that liability is to be imposed the promotion of healthy economic right to performance of a contract and only if the defendant intends to competition and the protection of the right to reap profits therefrom are interfere with the plaintiff’s existing or reasonably certain property rights which are entitled to contractual relations, at least in the prospective contractual relations. protection from the courts.”6 Since sense that he acts with knowledge American contract law encourages Worrie, Virginia courts have continued that interference will result, and if, in lawful, free market competition, yet to develop the nuances of the claim, addition, he acts for an improper also recognizes that vital interests, occasionally by drawing from purpose.”9 This emphasis on intent rights and obligations worthy of analogous claims.7 occasionally misleads counsel into protection arise once a contract exists Stating a Claim for Tortious believing that that a plaintiff must between parties. If contracts are not Interference with Existing Contract prove malice in the traditional sense given protection from intentional of ill-will or spite. However, the interference by others, then the Under Virginia Law Supreme Court of Virginia has made certainty of their duration is at risk Under Virginia law, a claimant clear that actual malice is not an thereby jeopardizing the incentive to must prove at least four elements to essential element to prove a claim for do business by contract. Given these maintain a viable claim for tortious tortious interference with a competing interests, Virginia courts interference. The elements for a claim contract.10 All that is required is that routinely address disputes that differ slightly depending on whether the plaintiff demonstrate that the straddle the fine line between the basis for the claim for interference defendant intentionally engaged in vigorous, hardnosed competition and is an existing contract or prospective the conduct with the primary intentional interference with business expectancy, business purpose of interfering with the contracts or business expectancies. relationship or economic advantage. plaintiff’s existing contractual or Background Basic Elements business relationship with the third party. Tortious interference claims A plaintiff must establish four originated in early Roman law, where elements in order to state a prima facie Additional Element if the Existing the head of a household could bring cause of action for tortious Contract is Terminable at Will an action against some third party interference with an existing contract: Counsel are cautioned that, if the who injured a member of his 1. Existence of a valid contractual contract at issue is terminable “at household.1 The modern history of relationship or business expectancy; will,” a plaintiff also must establish the claim for tortious interference 2. Knowledge of the contractual that the defendant interfered through with contractual relations claims relationship or expectancy by the the use of “improper methods.”11 As traces to 19th century England.2 In defendant; the Supreme Court of Virginia has the seminal case of Lumley v. Gye, an 3. Intentional interference inducing held: English court recognized a claim or causing a breach or termination of Unlike a party to a contract for a brought by a theater owner against a the contractual relationship or definite term, however, an rival theater owner’s interference expectancy; and individual’s interest in a contract with his contract with a well-known 4. Resultant damage to the party terminable at will is essentially only singer.3 whose contractual relationship or an expectancy of future economic Subsequent decisions expanded the expectancy has been disrupted.8 gain, and he has no legal assurance that he will realize the

OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/9 expected gain. See Restatement Existence of an Enforceable Contract merely one of several equally (Second) of Torts § 766 comment g In the context of a claim for tortious surmisable possibilities.”32 As Prosser (1979). Thus, the cause of action interference with an existing contract, has stated, “[i]n such cases there is a for interference with contractual counsel may overlook the requirement background of business experience on rights provides no protection from 16 the basis of which it is possible to the mere intentional interference that a plaintiff must allege and prove with a contract terminable at will.12 that it was a party to a valid existing estimate with some fair amount of 17 This distinction makes logical and contract. While the existence of a success both the value of what has practical sense, as a contract valid contract is not at issue in many been lost and the likelihood that the cases, courts have identified a number plaintiff would have received it if the terminable at will may be ended at 33 any time by the parties; however, “the of circumstances where the alleged defendant had not interfered.” fact that a contract is terminable at underlying contract is not enforceable, Virginia courts have held that a the will of the parties does not make it such that the plaintiff cannot satisfy variety of asserted business terminable at the will of others.”13 this element of a tortious interference expectancies do not satisfy the Given the more tenuous nature of a claim. Examples include: requisite standard of reasonable 18 contract terminable at will,the · a contract violating a rule of law; certainty, including: Supreme Court of Virginia requires a ·a contract against the public policy · continuing to do or remaining in 19 34 plaintiff to prove more than mere of Virginia; business; · a lawfully terminated lease;20 · retroactive promotions;35 intentional interference with the at 36 will contract by a third party.14 See · a contract to which the defendant ·real estate sale purchase contracts; himself is a party;21 ·sales to unidentified, and infra for a fuller discussion of the meaning of 37 “improper means or methods.” · an employee’s ERISA benefits unidentifiable, “potential” buyers preempted by federal law;22 and Stating a Claim for Tortious · an unenforceable covenant not to · consulting contracts with nothing Interference with Contract compete;23 more than a hope that the business Expectancy, Prospective Business · a contract providing easement relationship would continue in the Relationship or Economic Advantage rights;24 future.38 · an assignee of a contract not a Basic Elements Knowledge of the Contract Under Virginia law, the basic party to the contract at issue;25 and · a non-binding letter of intent to or Business Expectancy elements for a claim for tortious Virginia law also requires a plaintiff interference with a contract negotiate in good faith.26 Courts outside of Virginia have to establish that the defendant had expectancy, prospective business knowledge of either the contract or relationship or economic advantage considered the enforceability of the underlying contract within the the expectancy and of the fact that he differ slightly from those required for was interfering with the performance a claim for tortious interference with context of a tortious interference 39 claim, including violations of federal of the contract. Indeed, a court will existing contract. The elements are: dismiss a tortious interference claim 1. The existence of a contract law, restraint of trade, usury laws, the statute of frauds, invalid where the defendant does not have expectancy, prospective business knowledge of the alleged contract.40 relationship or economic advantage; agreements, want of consideration, mutuality or certainty.27 In many circumstances, a defendant 2. Knowledge of the contract has actual knowledge of the expectancy, prospective business Existence of a Business Expectancy existence of a contract or business relationship or economic advantage with a Reasonable Certainty expectancy, and a plaintiff easily can by the defendant; of Being Realized satisfy this element. Further, at least 3. A reasonable certainty that, Where the claim involves an one Virginia trial court has set a more absent defendant’s intentional relaxed standard than requiring misconduct, plaintiff would have anticipated business relationship, a plaintiff must establish a specific actual knowledge of the potential continued in the relationship or opportunity that is reasonably business relationship, by allowing a realized the expectancy; plaintiff to satisfy the knowledge 4. The defendant used improper certain to be realized in order to prove the existence of a valid business element by proving that the means or methods to intentionally expectancy.28 Courts routinely have defendant had “knowledge of fact interfere with the contract expectancy, that, upon reasonable inquiry, prospective business relationships and dismissed claims for tortious interference with business expectancy should lead to disclosure of the economic advantage; and 15 where the plaintiff merely alleges, in existence of the contract or potential 5. Resultant damage to the plaintiff. 41 general terms, that a defendant has business relationship.” However, Proving a Claim interfered with potential or hoped- the knowledge requirement does not for Tortious Interference for29 business opportunities rather mean that the defendant must Regardless of whether a claim is than a particular business expectancy appreciate fully the legal significance or relationship.30 Instead, a plaintiff of the facts giving rise to the one for tortious interference with an 42 existing contract or tortious interference must prove the existence of the alleged contractual relationship. with business expectancy, many of the business expectancy “based upon Intentional Interference something that is a concrete move in elements and necessary proof are by the Defendant that direction”31 or “at least a substantially the same. The plaintiff also must show the reasonable probability rather than 10/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006 defendant, through his conduct, intended to interfere with the ABOUT THE AUTHOR plaintiff’s contract or expectancy. David N. Anthony is a partner in the law firm of Kaufman & Canoles, P.C., in Richmond. He in Virginia has not provided earned his law degree from Washington & Lee University School of Law in 1990. Upon a thorough analysis of what graduation, he clerked for the Hon. William T. Prince, Magistrate Judge, U.S. District Court constitutes “interference.” Generally, for the Eastern District of Virginia, Norfolk Division. In 2001, he served as Chair of the VBA a plaintiff simply must show some Young Lawyers Division, and Mr. Anthony currently chairs the VBA Civil Litigation Section . type of intentional43 act or conduct His civil litigation practice concentrates on commercial, consumer and construction by the defendant,44 as not every disputes in federal and state courts. interference is actionable.45 The Restatement (Second) of Torts has noted speculation, and into the realm of . . . we have also identified actions that: legitimate inference.’”51 Significantly, as improper which are not There is no technical requirement themselves tortious or illegal, as to the kind of conduct that may the improper conduct must have been intended to cause the interference such as unfair competition or result in interference with the third unethical conduct. . . . Nor does party’s performance of the with the plaintiff’s contract 52 the name given the cause of contract. The interference is often expectancy. action impart a requirement of by inducement. The inducement Improper Means or Methods independently tortious acts. may be any conduct conveying to ‘Tortious interference’ means the third person the actor’s desire When dealing with an “at will” or expectancy case, the Supreme Court only that the interference was to influence him not to deal with intentional and improper under the other. Thus it may be a simple of Virginia requires a plaintiff also to the circumstances, not that the request or persuasion exerting prove the additional element that the ‘improper methods’ used were only moral pressure. Or it may be interference occurred through inherently illegal or tortious.55 a statement unaccompanied by “improper means or methods.”53 Given this broad standard, Virginia any specific request but having the Indeed, intentional interference courts have identified a number of same effect as if the request were claims commonly hinge on the examples of what conduct may or may specifically made. Or it may be a question of whether the defendant not constitute “improper means or threat by the actor of physical or methods.” economic harm to the third person used “improper means or methods” or to persons in whose welfare he while interfering with the contract Defamation is interested. Or it may be the or expectancy at issue. Evidence of defamation that might promise of a benefit to the third “Improper Means or Methods” not rise to the level of an actionable person if he will refrain from 46 Discussed in the Restatement tort is sufficient to create a jury issue dealing with the other. 56 (Second) of Torts with respect to improper methods. Examples of interference include Similarly, specific allegations of threats, economic coercion, persuasion The Restatement (Second) of Torts sets forth a helpful list of certain factors to defamatory statements are sufficient based on mutual interests, a more to withstand a demurrer.57 Improper attractive contract, false statements, consider in determining whether the conduct of a defendant who interferes methods, however, do not include defamation, physical violence, unfair stating true facts regarding a competition, intimidation, unfair with a contract or prospective contractual relation is “improper.” competitor or competing markets to competition, bribery and constitutional customers.58 violations.47 However, Virginia law These factors include: “(a) the nature does not require that the conduct of the actor’s conduct, (b) the actor’s Misuse of Inside constituting interference rise to the motive, (c) the interests of the other or Confidential Information level of an independent tort.48 with which the actor’s conduct Improper methods may include interferes, (d) the interests sought to Causation misappropriation of client information be advanced by the actor, (e) the social or trade secrets.59 However, where there As with any other tort, a plaintiff interests in protecting the freedom of is no non-compete or confidentiality must prove proximate causation in action of the actor and contractual covenant between a company and its order to recover for a claim for interests of the other, (f) the proximity 49 former employees, the Court has held tortious interference. Virginia law or remoteness of the actor’s conduct that former employees are not using defines “proximate cause” as “that to the interference and (g) the relations improper methods when they 54 act or omission which, in natural and between the parties.” compile from memory a list of the continuous sequence, unbroken by an What Are and Are Not company’s clients and solicit their efficient intervening cause, produces business.60 the event, and without which that “Improper Means or Methods” event would not have occurred.”50 Under Virginia Law Violations of Established Standard The Supreme Court of Virginia has In describing generally what does of a Trade or Profession clarified that “[b]efore the issue of and does not constitute “improper Improper methods also may be proximate cause may be properly means or methods,” the Supreme established by a showing that the submitted to the jury, however, the Court of Virginia has stated that: defendant’s actions “violate an evidence proving a causal connection While we have identified actions established standard of a trade or must be ‘sufficient to take the question as improper which were also profession.”61 The investigation and independently tortious or illegal, out of the realm of mere conjecture, or review of a debtor’s credit and loan

OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/11 information by a purchaser of credit from those customers;73 and Court of Virginia has recognized is a “lawful acquisition of information · Exercise of a lawful right such as a justification or privilege as an necessary for sound business bank’s foreclosure on its UCC lien on a affirmative defense to tortious decisions” and not considered a debtor’s property after the debtor had interference claims.86 In Chaves v. tortious act.62 arranged a sale to a third party74 or Johnson, the Court provided five termination of agreement as provided grounds for this affirmative defense: Unethical Conduct for by its plain terms.75 · Legitimate business competition; The Supreme Court of Virginia has Resultant Damage to the Plaintiff · Financial interest; stated that methods may also be · Responsibility for the welfare of improper because they involve Compensatory Damages another; “unethical conduct,” although the As with any other claim, the · Directing business policy; and Court has not provided detailed plaintiff must prove that it sustained · The giving or requested advice.87 76 guidance as to what types of unethical damages from the alleged interference. Generally, however, the Supreme conduct will rise to the level of being Since tortious interference is an 63 Court of Virginia has not provided deemed “improper” in this context. economic tort, a plaintiff potentially its own extensive, independent Litigation Initiated may recover monetary damages in analysis of the type of conduct that the form of: (1) the plaintiff’s direct for the Wrong Reasons would qualify as “justified” or expenses;77 (2) lost profits;78 (3) Evidence of conduct otherwise “privileged” activity in the context of damages for partially completed permitted by statute – such as the this affirmative defense, instead citing projects; (4) contracts that had been initiation of litigation – may still be generally to the discussion of this awarded but no work performed; (5) considered improper for purposes of defense set forth in the Restatement. As future contracts that had been a tortious interference claim.64 with any affirmative defense, the promised but not awarded; (6) However, when a defendant acts in burden of proof rests on the defendant permanent destruction of the accordance with published court to prove that its interference was business relationship; and (7) damage decisions and engages in conduct that 79 justified or privileged under the to the plaintiff’s business reputation. 88 is encouraged by federal law, such circumstances. While a plaintiff must provide actions cannot establish the basis for sufficient facts and circumstances Conclusion improper methods of interference.65 concerning his damages, a plaintiff Ordinarily, disputes involving Other Examples need not prove his compensatory commercial transactions do not give of “Improper Methods or Means” damages to an exact amount.80 rise to any type of tort claim under In Duggin v. Adams,66 the Supreme However, a plaintiff must demonstrate Virginia law. However, Virginia Court of Virginia delineated with reasonable certainty that the courts have demonstrated a numerous other examples of conduct defendant was the proximate cause willingness to protect the sanctity of by a defendant that may constitute of each claimed damage.81 contracts, in part, through the improper methods, including: doctrine of tortious interference with Punitive Damages contracts. This willingness does not ·Means that are illegal or As with other torts, punitive independently tortious, such as mean that a Virginia court will allow damages are an available remedy every commercial dispute between violations of statutes, or provided the plaintiff can prove that recognized common law rules;67 business competitors to be turned the defendant willfully interfered into a business tort. Thus, Virginia ·Violence, threats or intimidation; with or destroyed the business ·Bribery; 82 courts afford existing contracts that relationship. However, the defendant’s are not terminable at will a greater ·Unfounded litigation; conduct must be particularly 68 69 degree of protection than terminable ·Fraud, misrepresentation or “egregious.”83 The plaintiff must show deceit; at will contracts or prospective that the defendant acted with actual contractual relationships that are · Duress or undue influence; malice or such recklessness or 70 only tentative. Further, the Supreme ·Breach of a fiduciary relationship; negligence to evince a conscious ·Sharp dealing and overreaching; 84 Court of Virginia in Duggin and disregard of the rights of others. The Maximus made clear that, where the and standard to recover punitive · Unfair competition.71 claim involves interference with a damages is a high one, and plaintiffs contract that is terminable at will, or Examples of Methods or Means should not assume that a court will a future business expectancy, the That Are Not “Improper” view defendant’s actions as being plaintiff must demonstrate that the Virginia courts also have sufficiently egregious to justify an defendant used “improper means or determined that some methods or award of punitive damages merely 85 methods.” This element may be the means are not “improper” as a matter because they were intentional. most difficult for a plaintiff to of law, and thereby fail to satisfy this Defenses to Tortious establish, and Virginia case law has element, including: Interference Claims demonstrated that cases involving a · Interference occurring after terminable at will contract or 72 In acknowledgment of the tension termination of the contract; between the protection of contractual interference with a prospective · Utilizing one’s memory to compile relations or business expectancies contractual relationship will survive a list of the names of the plaintiff’s with the defendant’s freedom of fair or fail based upon whether the customers and soliciting business and lawful competition, the Supreme defendant used “improper methods” 12/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006 to interfere. Since what conduct required by its terms); Prof’l Heating & Cooling, Inc. v. 767 F. Supp. 1335, 1340 (E.D. Va. 1991) (citing actually constitutes “improper means Smith, 64 Va. Cir. 313 (City of Norfolk 2004) (ruling Glass v. Glass); Levine v. McLesky, 881 F. Supp. that plaintiff had to demonstrate improper methods 1030, 1057 (E.D. Va. 1995) (concluding that “the or methods” is fact driven and because preventive maintenance contracts were expectancy of remaining in business is too general to constantly evolving, lawyers can terminable at will); Instruction 40.150, II Va. Model support a tortious interference claim”), aff’d in part, expect to see many more cases reach Jury Instructions (setting forth the elements a verdict rev’d in part, 164 F.3d 210 (4th Cir. 1998). the Supreme Court of Virginia on must be based upon to recover for tortious interference 29. Commercial Bus. Sys., Inc. v. Halifax Corp., 253 with a contract terminable at will). Va. 292, 301, 484 S.E.2d 892, 897 (1997) (ruling precisely this issue. VBA 13. Duggin, 234 Va. at 226, 360 S.E.2d at 836 that “mere proof of a plaintiff’s belief and hope that a (citing Truax v. Raich, 239 U.S. 33, 38 (1915)). business relationship will continue is inadequate to NOTES 14. Duggin, 234 Va. at 226-27, 360 S.E.2d at 836; sustain the cause of action”). 1. See W. Page Keeton, Prosser & Keaton On The see also Maximus, 254 Va. at 414, 493 S.E.2d at 30. See RFE Indus., Inc. v. SPM Corp., 105 F.3d Law Of Torts § 129, at 970-80 (5th ed. 1984) 378 (noting that “not all business relationships are 923, 927 (4th Cir. 1997) (concluding that plaintiff’s (observing that the status or relation in which the entitled to the same level of protection and . . . that a selling products on an as-needed basis to its parties stood toward one another and with which the contract not terminable at will was entitled to more customers with no firm commitment for future defendant interfered was the focus, rather than the protection than a contract terminable at will”) (citing purchases only provided plaintiff with an expectation existence of a contract, as the theory was that the Duggin). that it “would retain its customers only so long as it head of the household’s wife, children, slaves or 15. Maximus, 254 Va. at 414, 493 S.E.2d at 378; met their demand for a quality product at a competitive other members of his establishment were so accord Williams v. Dominion Tech. Partners, L.L.C., price”); Eurotech, Inc. v. Cosmos European Travels associated with him as to constitute a wrong against 265 Va. 280, 289-90, 576 S.E.2d 752, 757 (2003) Aktiengesellschaft, 189 F. Supp. 2d 385, 391 (E.D. the head of the household) (hereinafter, “Prosser”). (quoting Glass v. Glass, 228 Va. 39, 51-52, 321 Va. 2002) (holding that “[b]ecause plaintiffs do not 2. Restatement (Second) of Torts § 766, at 8-9 S.E.2d 69, 76-77 (1984)). identify the specific business relationships with which (1979). 16. See Masco Contractor Servs. E., Inc. v. Beals, defendant has interfered, plaintiffs’ tortious interference 3. 2 El. & Bl. 216, 118 Eng. Rep. 749 (Q.B. 1853); 279 F. Supp. 2d 699, 710 (E.D. Va. 2003) (dismissing claim fails”); see also Levine, 881 F. Supp. at 1057- see generally Tortious Interference With Contractual tortious interference counterclaim in ruling that “[t]he 58 (finding insufficient plaintiff’s contention that its Relations In The Nineteenth Century: The counterclaim makes absolutely no mention of any members expects to renew their memberships was Transformation of Property, Contract, And Tort, 93 particular contract” or existing business relationship); specific enough); McDonald’s Corp. v. Turner-James, Harv. L. Rev. 1510 (1980). accord Commerce Funding Corp. v. Worldwide Sec. No. 05-804, 2005 U.S. Dist. LEXIS 42755, at *13 4. Restatement (Second) of Torts § 766 at 9; Servs. Corp., 249 F.3d 204, 213 (4th Cir. 2001); (E.D. Va. Nov. 29, 2005) (ruling that “merely identifying Prosser § 129, at 980-81. see also Cranor v. Homebuyers Inspections, Inc., 69 the parties with whom Defendants had discussions in 5. Prosser § 129, at 980-81. Va. Cir. 10, 11 (City of Richmond 2005) (ruling that ‘several telephone calls’ about ‘various aspect of the 6. 198 Va. 533, 536, 95 S.E.2d 192, 196 (1956) plaintiff sufficiently alleged the elements of a tortious restaurant and its operations’ . . . would still fall far (holding that “under these allegations, the wrong interference claim). short of what they must allege to proceed with their done and damage done are directed to the estate or 17. Sunsport, Inc. v. Barclay Ltd., 984 F. Supp. 418, claims”); Williams, 265 Va. at 292, 576 S.E.2d at property of the plaintiffs and not to them personally”) 423 (E.D. Va. 1997). 758 (quoting Commercial Bus. Sys., Inc., 253 Va. at (citations omitted). 18. Marina Shores, Ltd. v. Cohn-Phillips, Ltd., 246 303, 484 S.E.2d at 898). 7. See Watson v. Lee Bank & Trust Co., 22 Va. Cir. Va. 222, 226, 435 S.E.2d 136, 138 (1993) (citing 31. Moore v. United Int’l Investigative Servs., Inc., 495, 505 (County of Lee May 7, 1982) (noting that Winn v. Aleda Constr. Co., 227 Va. 304, 307, 315 209 F. Supp. 2d 611, 619-20 (E.D. Va. 2002). “Virginia does not appear to have developed a well- S.E.2d 193, 194 (1984). 32. Charleston Area Med. Ctr., Inc. v. Blue Cross & defined body of law for tortious interference with 19. Marina Shores, Ltd., 246 Va. at 226, 435 Blue Shield Mut. of Ohio, Inc., 6 F.3d 243, 247 (4th contractual or business relations, the most analogous S.E.2d at 138 (citation omitted). Cir. 1993); Levine, 881 F. Supp. at 1058. cases being conspiracy to induce breach of contract 20. Id. 33. Prosser § 130, at 1006. or misrepresentations or fraud or deceit or libel or 21. Fox v. Deese, 234 Va. 412, 427, 362 S.E.2d 34. Levine, 881 F. Supp. at 1058; Am. Tel. & Tel. slander which results in breaches of contract or tend 699, 708 (1987); see also Hatten v. Campbell, No. Co., 767 F. Supp. at 1340. to injure others in their trade or business.”) (citing CL06-259, 2006 Va. Cir. LEXIS 118, at *10 (County 35. Morris v. Massingill, 64 Va. Cir. 202, 203 (City of Worrie and M. Rosenberg & Sons v. Craft, 182 Va. of Chesterfield Circuit Ct. June 5, 2006) (holding that Norfolk 2004). 512, 29 S.E.2d 375 (1944)). “a person cannot intentionally interfere with his own 36. French v. Garraghty, Case No. CH05-1285, 8. Chaves v. Johnson, 230 Va. 112, 120, 335 contract”); Britt Constr., Inc. v. Magazzine Clean, 2006 Va. Cir. LEXIS 125, at *3 (City of Richmond S.E.2d 97, 102 (1985); see also Instruction 40.150, L.L.C., 69 Va. Cir. 478, 480 (County of Loudoun Circuit Ct. June 1, 2006). II Va. Model Jury Instructions (setting forth the 2006) (holding that the general contractor’s allegations 37. McDonalds Corp. v. Turner-James, No. 05-804, elements a verdict must be based upon to recover for sufficiently stated an action for tortious interference 2005 U.S. Dist. LEXIS 42755, at **12-14. tortious interference with a contract that is not despite the architect’s agency relationship with the 38. Williams, 265 Va. 292, 576 S.E.2d at 758; see terminable at will). owner based upon the contractually expressed also Simbeck, 44 Va. Cir. at 62 (observing that “the 9. Prosser § 129, at 982. limitation upon the nature of the architect company’s business expectancy of a renewal insurance policy 10. Chaves, 230 Va. at 121, 335 S.E.2d at 102-03; relationship with the owner). was on the outer reaches of the concept of a cognizable see also Maximus, Inc. v. Lockheed Info. Mgmt. Sys. 22. Smith v. Logan, 363 F.Supp.2d 804, 813 (E.D. business expectancy”). Co., 254 Va. 408, 414, 493 S.E.2d 375, 378 Va. 2004). 39. Glass, 228 Va. at 51-52, 321 S.E.2d at 77. (1997) (holding that plaintiff was not required to 23. Power Distrib. v. Emergency Power Eng’g, 569 40. Meadow Ltd. P’ship v. Heritage Sav. & Loan prove malice or other egregious conduct in order to F. Supp. 54, 56 (E.D. Va. 1983). Ass’n., 639 F. Supp. 643, 651 (E.D. Va. 1986). prove its tortious interference claim); Simbeck, Inc. v. 24. Ortiz v. Flattery, 63 Va. Cir. 309, 312 (County of 41. Simbeck, Inc., 44 Va. Cir. at 62 (citing Dodd-Sisk Whitlock Corp., 44 Va. Cir. 54, 65 (City of Fairfax 2003). Restatement (Second) of Torts § 766, comment i). Winchester 1997) (stating that “proof of actual malice 25. Sunsport, Inc., 984 F. Supp. at 423. 42. Restatement (Second) of Torts § 766 comment or ill will is not necessary in order to recover for 26. Marketplace Holdings, Inc. v. Camellia Food i. tortious interference with an existing contract that is Stores, Inc., At Law No. L03-2601 (City of Norfolk 43. See John L. Costello, Virginia Remedies § not terminable at will”), aff’d, 257 Va. 53, 508 Circuit Ct. Feb. 27, 2004). 17A.02[5][a], at 17A-20 (3d ed. 2005) (noting that S.E.2d 601 (1999); Prosser § 129, at 982-89 27. See James D. Pearson, Annot., Liability for no independent tort exists in Virginia for the negligent (discussing intent requirement). Interference with Invalid or Unenforceable Contract, interference with contract). 11. Duggin v. Adams, 234 Va. 221, 227-28, 360 96 A.L.R.3d 1294 (1979) (discussing examples in a 44. Duggin, 234 Va. at 226, 360 S.E.2d at 835. S.E.2d 832, 836 (1987); wide variety of states throughout the United States); 45. Nida v. Bus. Advisory Sys., Inc., 44 Va. Cir. 487, 12. Id. at 226, 360 S.E.2d at 836 (citing Hechler see also Restatement (Second) of Torts § 766 501 (City of Winchester 1998) (holding that “the fact Chevrolet v. Gen. Motors Corp., 230 Va. 396, 402, comment f (stating that a third party is not free to that defendant’s activity has injured plaintiff’s business 337 S.E.2d 744, 748 (1985)); accord Rappahannock interfere with the performance of a contract even the does not mean that plaintiff necessarily is entitled to Pistol & Rifle Club, Inc. v. Bennett, 262 Va. 5, 546 if the third party may have a technical defense to a remedy” as “[a]n injury may be of the kind which, in S.E.2d 440 (2001); see also George K. Degnon avoid liability, such as “the statute of frauds, formal a relatively free economy, a citizen is obliged to suffer, Assocs. v. Acad. for Eating Disorders, Law No. defects, lack of mutuality, infancy, unconscionable an injury resulting from lawful competition of which he 227768, 2005 Va. Cir. LEXIS 202 (County of Fairfax provisions, conditions precedent to the obligation or cannot complain.”). Circuit Ct. Nov. 29, 2005) (holding that three year even uncertainty of particular terms”). 46. Restatement (Second) of Torts § 766, comment contract was not terminable at will because defendant 28. See Am. Tel. & Tel. Co. v. E. Pay Phones, Inc., k. did not give notice to terminate the contract as OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/13 47. Prosser § 129, at 90-94 (citations omitted). at will sales contract and plaintiff was entitled to performance constituted improper conduct). 48. See Maximus, 254 Va. at 414-15 n.7, 493 use general information, including customer 70. See Hilb, Rogal & Hamilton Co. v. DePew, S.E.2d at 378-79; accord Prosser § 129, at 993; names to begin a new business so long as 247 Va. 240, 249, 440 S.E.2d 918, 923 (1994) see also Virginia Remedies § 17A.02[5], at 17A- information was not acquired in violation of their (holding that breach of a fiduciary relationship is 20 (stating that "[t]he methods of interference duties as agents); Deepwood Veterinary Clinic, evidence of the required improper methods. The need not be tortious themselves"). Inc. v. Sabo, 45 Va. Cir. 508, 509 (County of court, however found that post-termination 49. Chaves, 230 Va. at 120, 335 S.E.2d at 102. Fairfax 1998) (holding that solicitation of activities were not a violation of a fiduciary duty 50. Beale v. Jones, 210 Va. 519, 522, 171 customers through use of list compiled by memory said to have been owed by a former employee to S.E.2d 851, 853 (1970); Instruction 5.000, I Va. was not actionable absent a covenant not a former employer); Appleton v. Bondurant & Model Jury Instructions. compete or improper methods). Appleton, P.C., 68 Va. Cir. 208 (City of Portsmouth 51. Cohn v. Knowledge Connections, Inc., 266 61. Duggin, 234 Va. at 228, 360 S.E.2d at 837; 2005) (holding that breach of a fiduciary duty Va. 362, 369, 585 S.E.2d 578, 582 (2003) see Simbeck, 257 Va. at 57, 508 S.E.2d at 603 would be the basis for improper methods, (quoting Beale, 210 Va. at 522, 171 S.E.2d at (holding that defendant's attempt to recoup however, the former employees did not commit 853 and Hawkins v. Beecham, 168 Va. 553, money owed by plaintiff by refusing to release an a breach of their fiduciary duties). 561, 191 S.E. 640, 643 (1937)). insurance quote unless plaintiff executed a note 71. Duggin, 234 Va. at 227-28, 360 S.E.2d at 52. Magnuson v. Peak Tech. Servs., Inc., 808 F. was a deviation of established custom and 836 (citations omitted). Supp. 500, 516-17 (E.D. Va. 1992); see also practice in the trucking insurance industry and 72. Perk v. Vector Res. Group, 253 Va. 310, Restatement (Second) of Torts § 766, comment "totally improper"). 313, 485 S.E.2d 140, 143 (1997). h (stating that "[t]he essential thing is the intent 62. Peterson v. Cooley, 142 F.3d 181, 187 (4th 73. Peace, 246 Va. at 282, 435 Va. at 135. to cause the result. If the actor does not have Cir. 1998). 74. Charles E. Brauer Co. v. NationsBank of Va., this intent, his conduct does not subject him to 63. Duggin, 234 Va. at 228, 360 S.E.2d at 836; N.A., 251 Va. 28, 36, 466 S.E.2d 382, 387 liability under this rule even if it has the Wuchenich v. Shenandoah Mem'l Hosp., No. 99- (1996). unintended effect of deterring the third person 1273, 2000 U.S. App. LEXIS 11557 (4th Cir. May 75. R&D 2001, L.L.C. v. Collins, No. Cl-2005- from dealing with the other."). 22, 2000) (suspending plaintiff's medical staff 7021 2006 Va. Cir. LEXIS 131 (County of Fairfax 53. Duggin, 234 Va. at 227-28, 360 S.E.2d at privileges without just cause and reporting two of Circuit Ct. July 12, 2006). 836. plaintiff's cases to peer review without just cause 76. Masco Contractor Servs. E., 279 F. Supp. 2d 54. Restatement (Second) of Torts § 767, at 26- constitute unethical conduct and improper at 709. 39; see also Belena v. Air Line Pilots' Assn., 31 methods); Commerce Funding Corp. v. Worldwide 77. Simbeck, 44 Va. Cir. at 63 (citing Bettius & Va. Cir. 413, 415-16 (County of Fairfax Sept. 1, Sec. Servs., 249 F.3d 204, 214 (4th Cir. 2001) Sanderson, P.C. v. Nat'l Fire Ins. Co., 839 F.2d 1993) (citing Restatement (Second) of Torts § (holding that the conduct of a party who, based 1009, 1012 (4th Cir. 1988)). 167). on good faith belief, asserted claims to funds in 78. See Hop-In Food Stores, Inc. v. Serv-N-Save, 55. Maximus, Inc., 254 Va. at 414, 493 S.E.2d an interpleader action in which it had no legal Inc., 247 Va. 187, 190-91, 440 S.E.2d 606, 608 at 378 (citing Duggin, 234 Va. at 227-28, 360 interest was not considered unethical or on the (1994) (holding that a plaintiff may recover lost S.E.2d at 836-37) (footnote omitted). level of improper conduct). profits proximately caused by the defendant's 56. Stamathis v. Flying J., Inc., No. 7:01cv00838, 64. See Maximus, 254 Va. at 414-15, 493 S.E.2d wrongful conduct "provided the lost profits are 2002 U.S. Dist. LEXIS 12398 (W.D. Va. July 9, at 378-79 (evidence that defendant filed a protest capable of reasonable ascertainment and are 2002); see also Douty v. Irwin Mortgage Corp., to a government agency's Notice of Intent to not uncertain, speculative, or remote") (citing 70 F. Supp. 2d 626, 634 (E.D. Va. 1999) (holding Award a contract to the plaintiff in which United Constr. Workers v. Laburnum Constr. that plaintiff's allegations, while extremely vague, defendant alleged that two members of the Corp., 194 Va. 872, 887, 75 S.E.2d 694, 704 were sufficient to satisfy the "improper means" agency's proposal evaluation panel had (1953), aff'd, 347 U.S. 656 (1954); see also requirement). undisclosed conflicts of interest — allegations Boggs v. Duncan, 202 Va. 877, 883, 121 S.E.2d 57. Eslami v. Global One Commc'ns, Inc., 48 Va. which caused the agency to withdraw the NIA for 359, 363 (1961) (requiring a plaintiff to provide Cir. 17, 24 (County of Fairfax 1999). fear of a delay in proceedings and public criticism, sufficient evidence to estimate lost profits with 58. See Hechler Chevrolet, 230 Va. at 402, 337 and which proved to be false — was sufficient to reasonable certainty); Va. Code Ann. § 8.01-221.1 S.E.2d at 748 ("If a competitor is in fact about to present a prima facie case that defendant's (allowing new or unestablished businesses to cease marketing a competing product, it is not actions were improper, despite the fact that recover lost profits upon proper proof). unlawful to state that fact truthfully to defendant had a statutory right to file a protest). 79. United Constr. Workers, 194 Va. at 887-93, customers"); see also Bridge Tech. Corp. v. Kenjya 65. See Am. Online v. GreatDeals.net, 49 F. 75 S.E.2d at 704-08. Group, Inc., 65 Va. Cir. 23, 28 (County of Fairfax Supp. 2d 851, 863-64 (E.D. Va. 1999) (holding 80. Murray v. Hadid, 238 Va. 722, 731, 385 2004) (holding that contractor's alleged that AOL had a right to prevent trespass to chattels S.E.2d 898, 904 (1989); see also Worrie, 198 defamatory remarks to the N.S.A. could not be by blocking plaintiff's transmission of unsolicited Va. at 542, 95 S.E.2d at 200 (stating that a the basis of a civil conspiracy claim because they bulk e-mail, which is encouraged by federal law, plaintiff does not to prove the quantum of its are privileged). to its subscribers). damages with absolute certainty). 59. See McGladrey & Pullen, L.L.P. v. Shrader, 66. Duggin, 234 Va. at 227, 360 S.E.2d at 835 81. See MicroStrategy, Inc. v. Bus. Objects, S.A., 62 Va. Cir. 401, 412 (County of Rockingham (citations omitted). 429 F.3d 1344, 1361 (Fed. Cir. 2005) (finding 2003) (given the confidentiality and non- 67. See Multi-Channel TV Cable Co. v. Charlottesville that plaintiff "MicroStrategy did not account for solicitation agreement signed by defendant, his Quality Cable Corp, 31 Va. Cir. 551, 552-53 (City other potential causes for its loss of business employer "had a reasonable expectancy" that of Charlottesville 1992) (plaintiff claimed that and [defendant] Business Objects' gain in defendant would not "purloin[] confidential client Adelphia's violation of statute was improper business over the same period"). information . . . and us[e] it . . . to solicit [the methods). 82. United Constr. Workers, 194 Va. at 894, 75 employer's] clients"); Int'l Paper Co. v. Gilliam, 63 68. See Williams v. Omana, 18 Va. Cir. 165, 167 S.E.2d at 708. Va. Cir. 485, 492 (City of Roanoke 2003) (County of Fairfax 1989) (holding that a fraudulent 83. Ross v. Sigley, No. 96-00129-H, 1998 U.S. (involving an alleged violation of a confidentiality conveyance is an improper method). While fraud Dist. LEXIS 3300, at *4 (E.D. Va. Jan. 30, 1998). agreement and misappropriation of a trade secret); may serve as an "improper method," the Supreme 84. Puent v. Dickens, 245 Va. 217, 219, 427 Stone Castle Fin. v. Friedman, Billings, Ramsey Court of Virginia has refused to address fraud S.E.2d 340, 342 (1993). & Co., 191 F. Supp. 2d 652, 660 (E.D. Va. 2002) within the context of a Pastor's tortious 85. See Simbeck, 44 Va. Cir. at 65 (nothing the (alleged breach of confidentiality agreement). interference claim against officials of his church "lesser scienter requirement for proof of the tort 60. See Check 'n Go of Va. Inc. v. Laserre, No. for termination of his employment. See Cha v. is not to be confused with the concepts of 'malice' 6:04-CV-00050, 2005 U.S. Dist. LEXIS 16591 Korean Presbyterian Church of Washington, 262 and 'wanton' conduct which are the underlying (W.D. Va. Aug. 9, 2005) (plaintiff was able to Va. 604, 613-14, 553 S.E.2d 511, 515-16 justification for an award of punitive damages"). prove a misappropriation of trade secrets by a (2001). The Court reasoned that "the court could 86. Chaves, 230 Va. at 121, 335 S.E.2d at 103. former employee who took plaintiff's policy and not adjudicate such claim without considering 87. Id. (citing Restatement (Second) of Torts §§ procedure manual for development of a similar issues regarding the church's governance, faith 768-72 and Calbom v. Knudtzon, 396 P.2d 148, manual for a competitor); Peace v. Conway, 246 and doctrine." Id. at 613 n.1, 553 S.E.2d at 515. 151 (Wash. 1964)). Va. 278, 282, 435 S.E.2d 133, 135 (1993) (ruling 69. See Magnuson, 808 F. Supp. at 516-17 88. Commerce Funding Corp., 249 F.3d at 210 that plaintiff had to demonstrate defendant used (concluding that false statements regarding work (citing Chaves, 230 Va. at 121, 335 S.E.2d at improper methods to interfere with a terminable 103)). 14/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006 LEGAL FOCUS Civil & Criminal Litigation The Constitutionality of Irrebuttable Presumptions BY PROFESSOR JAMES J. DUANE

Twenty-five years ago, in Fairfax County Fire and Rescue presumption; both in ordinary usage and as a legal term Services v. Newman,1 the Supreme Court of Virginia of art, it is undisputed that a conclusive presumption and announced the standard for assessing the constitutionality an irrebuttable presumption are the exact same thing.11 of a statutory presumption — that is, a law which “makes But the strangest irony of all is the fact that even the the proof of one particular fact presumptive evidence of Supreme Court of Virginia regularly makes up the another fact.”2 The court unanimously concluded that, for functional equivalent of irrebuttable presumptions itself. any presumption to be constitutional under the due Here are three obvious examples: (1) the rule that “a child process clause, even in a civil case, “the presumption must under 7 years of age is conclusively presumed to be be rebuttable.”3 This necessarily implies, as the Court of incapable of contributory negligence”12 ; (2) the rule that Appeals of Virginia has recently reasoned, that all certain weapons may be declared by the courts to be “per irrebuttable presumptions must be unconstitutional.4 To se ... deadly” and “as a matter of law a ‘deadly weapon’”13 ; keep things simple, I shall refer to this rule as the holding and (3) the doctrine of negligence per se, which identifies in Newman, even though that case also established other certain kinds of conduct that are conclusively presumed points that are of no concern to us here. to constitute negligence as a matter of law.14 It boggles the The supreme court thought this holding was dictated mind to imagine how these three conclusive presumptions, by both state and federal law, for it announced that it was among many others, were made up by the same court interpreting the requirements of “due process of law under that has more recently declared that all irrebuttable the Fourteenth Amendment of the United States statutory presumptions are unconstitutional. Constitution and Article I, § 11 of the 1971 Virginia Moreover, even before Newman was decided, the Constitution.”5 In support of this conclusion, however, Supreme Court of the United States explicitly rejected the the court cited no federal cases, and no authority but its suggestion that all irrebuttable presumptions are own holdings in a line of criminal cases dating back almost unconstitutional. In Weinberger v. Salfi,15 the Supreme Court 30 years.6 considered a due process challenge to the Social Security That holding has never been overruled or qualified by Act’s presumption which denied all benefits to certain the Supreme Court of Virginia, and obviously remains widows whose husbands died less than nine months the law of Virginia. To this day, the Virginia Court of after they were married. The presumption was, of course, Appeals, citing Newman, routinely upholds a statutory “conclusive, because applicants were not afforded an presumption as constitutional only after first checking to opportunity to disprove the [presumed] presence of [an] ensure, among other things, that it is rebuttable.7 So far as illicit purpose” behind the marriage.16 Nevertheless, the I am aware, nobody in Virginia until today has ever Court held even a conclusive presumption dealing with the publicly questioned the Supreme Court’s holding in noncontractual distribution of public benefits is normally Newman that all irrebuttable presumptions are constitutional, provided only that it is “rationally related unconstitutional. But that statement is simply not true. to a legitimate legislative objective.”17 Indeed, it cannot be true, because it would wreak havoc There is no question, therefore, that Newman was wrong with the law of this state. the very day it was decided, at least in its construction of For starters, the United States Congress obviously does what is required by the due process clause of the federal not think that irrebuttable presumptions are constitution, and the Supreme Court has reaffirmed that unconstitutional, because it enacts them all the time.8 The point since Newman was decided.18 But technically Newman Virginia General Assembly obviously thinks the same remains good law in Virginia, because that ruling was thing. Out of the dozens of Virginia statutes that declare also based on the court’s interpretation of the due process that certain facts “shall be presumed,” many add an requirements of the state constitution, and Virginia, like explicit provision that the presumption “may be any state, enjoys the “sovereign right to adopt in its own rebutted”9 – which would be a strange thing to spell out if Constitution individual liberties more expansive than all constitutionally valid presumptions, by definition, those conferred by the Federal Constitution.”19 Thus, the were rebuttable. Moreover, dozens of statutes scattered Supreme Court of Virginia is theoretically free, if it wishes, throughout the Virginia Code explicitly create an to adhere to its ruling in Newman that all irrebuttable irrebuttable presumption by specifying the circumstances presumptions are illegal under the state constitution. But under which certain facts will be “conclusively presumed.”10 that is out of the question as a practical matter. As it turns Every one of these statutes creates an irrebuttable out, the holding in Newman is simply incoherent. There is

OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/15 nothing unconstitutional, illegal, or even un-American firearm shall be irrebuttably presumed to be a deadly weapon.” about irrebuttable presumptions. All of these statutes are absolutely identical in Due Process and Irrebuttable Presumptions: substance, meaning, and operation; all that distinguishes them is a meaningless variation in semantics. But which What Does the Constitution Require? of them would be unconstitutional under Newman? It is When courts or legislatures refer to something as a not obvious, because there are two different ways to read conclusive or irrebuttable presumption, they invariably that ruling. One reading makes the rule absurd, and the mean “[a] presumption that cannot be overcome by any other makes it practically meaningless. Either way it is 20 additional evidence or argument.” But even though we dead wrong. can intelligibly describe such rules as presumptions, the On the one hand, it is possible that Newman requires the fact remains that they do not have much in common with invalidation of any law, no matter how it is worded, that the operation of an ordinary presumption, which is operates precisely like an irrebuttable presumption and usually rebuttable. A conclusive presumption does not is therefore the functional equivalent of such a shift any burden of proof or any burden of production to presumption. Under that reading, the due process clause the opposing party. It simply ends the discussion entirely of the Virginia Constitution would require the courts to by establishing a legal equivalence between two facts and strike down all four of the statutes outlined above, along dictating that proof of one automatically requires a finding with almost every other substantive legal rule on the that the other is also true as a matter of law. As Justice books. That would of course be ludicrous. As the Supreme Scalia has pointed out, however, “the same can be said of Court of the United States correctly prophesied — six any legal rule that establishes general classifications, years before Newman made that very mistake — any 21 whether framed in terms of a presumption or not.” This categorical ban on irrebuttable presumptions in the name is why courts and legal scholars universally agree that of the due process clause, if consistently applied, would be any so-called “irrebuttable presumption” (regardless of “a virtual engine of destruction for countless legislative whether one chooses as a matter of semantics to call it a judgments which have heretofore been thought wholly true presumption) is not really a rule of evidence at all, consistent with the Fifth and Fourteenth Amendments to but is actually a rule of substantive law masquerading in the Constitution.”27 And it would not stop there, for 22 the traditional language of a presumption. As one Newman would also require the state supreme court to leading writer has observed, “a conclusive or irrebuttable overrule all of the irrebuttable presumptions it has made presumption is really an awkwardly expressed rule of up itself — including its ruling that the judicial branch 23 law.” And this is why the United States Supreme Court has the power to declare that a loaded firearm constitutes was correct to reject any suggestion that the due process a deadly weapon as a matter of law. clause categorically forbids an irrebuttable presumption. To avoid that extreme result, one could plausibly read Any ordinary rule of substantive law can be easily recast Newman as forbidding only rules of law that explicitly use into the language of an irrebuttable presumption, and the language of an irrebuttable presumption. In that case, vice versa, with no change in its meaning or operation. only the fourth statute above would be unconstitutional, Of course, the constitutional requirement of due process but not the others, even though all four are absolutely does impose some limits on the use of evidentiary 24 identical in both their meaning and how they would operate presumptions in civil and criminal litigation. In a at any trial. That bizarre conclusion would flagrantly criminal case it forbids the use of a presumption to violate the axiom that “[c]onstitutional distinctions should establish an essential element of the prosecution’s case or not be based on technicalities in draftsmanship that do to shift the burden of proof to the defense on the central not affect the merits.”28 It would also render the rule in issue of intent, but that is true even if the presumption is Newman utterly trivial, for it could then always be 25 rebuttable. The constitution also requires that a circumvented by the General Assembly with ridiculous presumption have at least some rational basis, but that ease by simply rewriting any statute so that it says the 26 requirement also applies to rebuttable presumptions. same thing without the three forbidden words Indeed, none of those constitutional limits require a law to “irrebuttable,” “conclusive,” or “presumption.” In the be struck down merely because it is worded or operates next section of this paper I will show how easily this can like an irrebuttable presumption. be done with a number of Virginia’s statutory irrebuttable The inherent absurdity of the ruling in Newman can be presumptions. easily demonstrated. Consider its application to the So the ruling in Newman is either absurd or virtually following statutes, which are obviously just four different meaningless. And either way it is surely wrong, because ways of saying the exact same thing: it would require (if nothing else) the invalidation of the 1. “It shall be unlawful to possess a loaded firearm in fourth statute listed above – and that statute is plainly any school.” constitutional. When a statute makes some act a crime, 2. “It shall be unlawful to possess a deadly weapon in the jurors may not be instructed that a man’s commission any school. For the purposes of this statute, a deadly of that act, or his intent to do so, is “presumed” from other weapon shall be defined to include any loaded firearm.” actions or facts, including some event taking place at a 3. “It shall be unlawful to possess a deadly weapon in later date.29 This is why, for example, Virginia Code § any school. For the purposes of this statute, any loaded 18.2-183 is plainly unconstitutional in creating a firearm shall be deemed a deadly weapon as a matter of rebuttable presumption of fraudulent intent in bad check law.” cases when the defendant later fails to make payment on 4. “It shall be unlawful to possess a deadly weapon in the check within five days after learning that his check any school. For the purposes of this statute, any loaded 16/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006 has been dishonored by the bank for insufficient funds.30 That is quite different, however, from any presumption, ABOUT THE AUTHOR rebuttable or otherwise, that is used by the legislature as an awkward way of defining the essential terms of a Professor James J. Duane has taught and written about evidence law at Regent Law School for 15 years. He is the co-author of criminal statute. Just as surely as a legislature may forbid Weissenberger’s Federal Evidence (5th ed. 2006), and the author of possession of a loaded firearm in a school, it may do the over 20 articles on evidence law. He is a member of the New York same thing indirectly and clumsily, if it wishes, by State bar, The Virginia Bar Association, the Boyd-Graves Conference, forbidding the possession of a deadly weapon — and then and the faculty of the National Trial Advocacy College at the University providing that a loaded firearm shall be irrebuttably of Virginia School of Law. He is a graduate of Harvard College magna presumed to be a deadly weapon. As one noted cum laude (1981) and Harvard Law School cum laude (1984), and commentator has aptly observed: “Oddly enough, the has significant practice experience in civil litigation and criminal most powerful way in which a jurisdiction can ease the defense. This article is a truncated version of a more substantial prosecution’s burden is also the one least vulnerable to discussion that will appear in the fall 2006 issue of the Regent Law constitutional attack: It may simply alter the definition of Review; see that journal for a more extended presentation of these and a few related points. the crime.”31 Thus, even if Newman is given its narrowest possible interpretation and only applied to statutes that explicitly presumed to constitute injurious exposure.”37 This is simply use the language of a conclusive presumption, it would a maladroit method of defining “injurious exposure.” This require the invalidation of many statutes that have no definition could have been written just as precisely and constitutional infirmity at all. We can see these points even more clearly by deleting the four redundant words I more clearly by taking a look at some of the many have italicized.38 There was no need to make any mention irrebuttable presumptions that are scattered throughout of any presumption of any sort, but you can’t blame the the , and the implications that would members of the General Assembly for wanting to sound follow if they were subjected to a consistent application of more like lawyers. It’s all just innocent fun, since nothing the holding in that case. turns on the distinction between these two ways of saying A Look at Some of the Irrebuttable Presumptions the same thing — nothing, that is, apart from the in the Virginia Code suggestion in Newman that one of these two equivalent A presumption has been aptly described as one of “the formulations is plainly unconstitutional but the other is slipperiest member[s] of the family of legal terms.”32 just fine. Indeed, “one author has listed no less than eight senses in Although most irrebuttable presumptions are really which the term has been used by the courts.”33 The just rules of substantive law, the Virginia General Virginia General Assembly frequently uses the language Assembly has gotten so swept up in the fun that it of conclusive presumptions when drafting statutes, sometimes uses them to draft procedural rules as well. When although it does so to mean many different things. As we it does so, however, the language of a presumption is shall see, however, none of them are unconstitutional for typically employed in a context where it means nothing that reason, and the consistent application of the contrary at all. For example, one Virginia statute declares that the ruling in Newman would lead to intolerable – and address given to the police by a nonresident motorist sometimes comical — results. “shall be conclusively presumed to be a valid address of such defendant for the purpose of the mailing provided for in Usually, the General Assembly uses an irrebuttable 39 presumption, just as the Supreme Court of Virginia this section.” This “conclusive presumption” is nothing typically does, to create a rule of substantive law. For more than a specification of the proper address for the example, one Virginia statute forbids a landlord from service required under that statute. The four otiose words “unreasonably” refusing to rent a manufactured home, italicized here should have been left out of this statute and then adds that “[a]ny refusal or restriction because entirely; their omission would not change the meaning or the operation of this strange statute in the slightest of race, color, religion, national origin, familial status, 40 elderliness, handicap, or sex shall be conclusively presumed degree. to be unreasonable.34 This statute explicitly establishes It has been observed that every statute of limitations is, for all practical purposes, a “conclusive presumption” that an irrebuttable presumption but surely it is not 41 unconstitutional for that reason. Clearly the General actions after that deadline are barred. Some Virginia Assembly had the constitutional authority, if it had statutes make that explicit, by specifying that certain acts chosen, to declare that a refusal to rent to a person because shall be “conclusively presumed” to have been properly and lawfully done if no lawsuit is filed within a certain of his race (for example) “shall be forbidden.” That is 42 precisely what was intentionally accomplished, however time afterwards. If all irrebuttable presumptions are imperfectly, through the clumsy wording of this statute.35 truly unconstitutional, then all of these statutes must be In Virginia, the language of an irrebuttable presumption set aside on the grounds that they deny due process to is often used as a clumsy method of writing a definition. As anyone who claims “I am being denied the chance to one leading treatise puts it, any time some statute provides contest the regularity of this filing just because nobody that fact A leads to an irrebuttable presumption of fact B, objected to it sooner.” In fact, there was no need to use any “[f]act B becomes another way of stating fact A.”36 presumption, much less a conclusive one, in any of these Virginia’s Workers’ Compensation Law, for example, statutes, which all could have made the same point by provides that “[e]xposure to the causative hazard of declaring that any action to challenge the legality or pneumoconiosis for ninety work shifts shall be conclusively propriety of some event must be filed within a certain

OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/17 period after that event. That is what statutes of limitations child under the age of seven cannot be guilty of always do. contributory negligence. Other Virginia statutes employ the language of The Supreme Court of Virginia must take the first presumptions for no real purpose at all.43 Virginia’s available opportunity to explicitly overrule its statement Workers’ Compensation Law dogmatically decrees that in several cases, most recently Newman, that presumptions “[e]very employer and employee, except as herein stated, must be rebuttable to comply with the commands of the shall be conclusively presumed to have accepted the due process clause. That rule must be rejected entirely, provisions of this title respectively to pay and accept and not merely watered down or qualified, because it is compensation for personal injury or death by accident totally false and there was never any trace of truth or arising out of and in the course of the employment and sense to it at all. shall be bound thereby.”44 Imagine the consequences for Meanwhile, the General Assembly could do us all a Virginia’s tort law system if this law were struck down great favor if it would stop writing statutes that explicitly along with the rest of the state’s conclusive and create a “conclusive presumption,” and then remove that irrebuttable presumptions! By that logic, every injured phrase from the several dozen statutes where it now worker who wishes to sue his employer should be able to appears. That language is never necessary in any statute, insist “Well, I never agreed to accept workers’ and its lamentable frequency in the Virginia Code can compensation benefits as my exclusive remedy, so my only lead to a wide range of tragic and comical results as right to due process means that I must be given the chance long as the highest court of the state insists that such to rebut the application of that inflexible presumption to presumptions are always unconstitutional. VBA defeat my right to sue my employer.” That would be NOTES nonsense, of course.45 In truth, this is another poorly 1. 222 Va. 535, 281 S.E.2d 897 (1981). The defendants argued that they drafted statute that should not have mentioned any were denied due process by the workers’ compensation law, which presumption at all. Its point could have been made more provided that certain health problems suffered by firefighters were accurately and succinctly by simply declaring that all “presumed” to be an occupational disease suffered in the line of duty employers and employees are bound by this statutory that was covered under the law. 2. Id. at 540, 281 S.E.2d at 900. scheme, and that it shall furnish the employees’ exclusive 3. Id. at 539-40, 281 S.E.2d at 900 (emphasis added); see also id. at remedy. The gratuitous extra nonsense about a make- 541, 281 S.E.2d at 901 (“The second prong of the [constitutional] test believe presumption that “we will all pretend that requires the presumption to be rebuttable.”). everyone has agreed to accept and comply with this 4. “[I]rebuttable presumptions are unconstitutional…” Medlin v. County statute” is no more necessary here than it would be at the of Henrico Police, 34 Va.App. 396, 407 n.5, 542 S.E.2d 33, 39 n.5 (2001); see also Town of Purcellville Police v. Bromser-Kloeden, 35 Va.App. beginning of any other law, including statutes (like the 252, 262, 544 S.E.2d 381, 385-86 (2001) (citing Newman for the rule that capital murder law) that impose far more drastic penalties a presumption must be rebuttable to be constitutional). for their violation. For a legislature to falsely and 5. Newman, 222 Va. at 539, 281 S.E.2d at 900. dogmatically decree with a gratuitous conclusive 6. The only legal authority the court cited in Newman for this proposition was its holding in Crenshaw v. Commonwealth, 219 Va. 38, 245 S.E.2d presumption that all the state’s workers and employers 243 (1978), which in turn had cited no federal cases, and no authority have agreed to be bound by some law is as unnecessary, but two other criminal cases it had decided in 1953 and 1956. See id. at and as unhelpful, as the days when my mother 42, 245 S.E.2d at 246. unpersuasively insisted to her children “You’ll eat it, and 7. Town of Purcellville Police, 35 Va.App. at 262, 544 S.E.2d at 385-86; you’ll like it.” Medlin, 34 Va.App. at 407 n.5, 542 S.E.2d at 39 n.5; City of Hopewell v. Tirpak, 28 Va.App. 100, 122 n.24, 502 S.E.2d 161, 172 n.24 (1998), Summary affirmed in part and vacated in part on other grounds, 258 Va. 103, 515 S.E.2d 557 (1999); see also Hur v. Virginia Department of Social When the Supreme Court of Virginia laid down the Services Division of Child Support Enforcement, 13 Va.App. 54, 59, 409 rule in Newman that all presumptions “must be rebuttable” S.E.2d 454, 457 (1991) (not citing Newman, but likewise rejecting a due to survive constitutional scrutiny, it announced a standard process challenge to a statute after the court concluded that the law that was incoherent and indefensible. If that standard merely created a rebuttable presumption). 8. E.g., 30 U.S.C. § 921(c)(3) (creating “an irrebuttable presumption” of were consistently applied to every statute that operates total disability for coal miners with black lung disease); see also exactly like an irrebuttable presumption, it would lead to Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 296 (1995) (noting legal anarchy and would require the overturning of nearly that the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § every substantive rule of Virginia law. On the other hand, 922, “creates a conclusive presumption of incapacity to earn wages” for if the ruling in Newman is to be applied only to those certain injuries). 9. Over a dozen Virginia statutes declare that some fact “shall be statutes that explicitly use the words “presume” or presumed” and then explicitly recite that such presumption is “presumption,” it creates a trivial and absurd rule that “rebuttable” or “may be rebutted.” E.g., VA. CODE §§ 8.01-46.1, 8.01- can be easily circumvented by the legislature any time it 413.01, 15.2-2314, 19.2-159, 33.1-346, 33.1-373, 38.2-1322, 38.2- pleases. Either way, that ruling – if consistently followed 1603, 38.2-4230, 46.2-1209, 58.1-2224, 62.1-194, 63.2-1202, 63.2- 1233, and 64.1-76. Others achieve the same result more indirectly by – would require the invalidation of many poorly drafted providing that some fact “shall be presumed … unless the contrary be laws on the books, because of our General Assembly’s shown” by competent evidence. E.g., VA. CODE §§ 15.2-1511, 27-40.1, unfortunate penchant for gratuitously using the and 51.1-813. Still others explicitly create a “rebuttable presumption,” traditional language of presumptions when drafting in those exact words. E.g., VA. CODE §§ 18.2-61, 46.2-341.27. definitions, substantive and procedural legal rules, and 10. E.g., VA. CODE § 2.2-4372(D), 8.01-313(A)(2), 13.1-643(E), 15.2-2627, 15.2-5126, 15.2-5431.15(A), 15.2-6302, 15.2-6409(J), 17.1-258.5, 20- even for no particular purpose at all. It would also require 163(D), 24.2-43426-40, 26-40.1(B), 33.1-184, 33.1-431(D), 38.2-2807(D), the rejection of the many irrebuttable and conclusive 38.2-2906(D), 38.2-5009(A)(2), 46.2-2080, 55-58.1(3), 55-79.77(C), 55- presumptions that the Supreme Court of Virginia has 106.2, 55-131, 55-248, 456-480. 57-15(B), 58.1-2282(B), 58.1-3832(3), created on its own, like the conclusive presumption that a 65.2-300(A), 65.2-404(B), 65.2-504(C), and 65.2-515(A). But you cannot 18/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006 blame the General Assembly for supposing that it has the lawful fact presumed.” Fairfax County Fire and Rescue Services v. Newman, authority to draft irrebuttable presumptions. Only one year after the 222 Va. 535, 539-40, 281 S.E.2d 897, 900 (1981). Virginia Court of Appeals recently declared open season on conclusive 27. Weinberger v. Salfi, 422 U.S. 749, 772 (1975). presumptions with its statement that “irrebuttable presumptions are 28. WEINSTEIN & BERGER, supra note 11, § 5.04[5]. unconstitutional,” Medlin, 34 Va.App. at 407 n.5, 542 S.E.2d at 39 n.5; 29. Carella v. California, 491 U.S. 263, 265-66 (1989) (it is unconstitutional another panel of that same court paradoxically announced that the to tell jurors that the defendant’s intent to commit theft by fraud is General Assembly is ordinarily free to enact conclusive statutory “presumed” if he later failed to return rented vehicle within a specified presumptions if it wishes to do so! Henrico County Div. of Fire v. Woody, number of days after a request for its return). 39 Va.App. 322, 329, 572 S.E.2d 526, 529 (2002) (“Had the General 30. James J. Duane, The Virginia Presumption of Fraudulent Intent in Assembly wished to write a conclusive presumption into Code § 65.2- Bad Check Cases: The Statute That Dare Not Speak Its Name, THE VIRGINIA 402, it could have done so.”) Apparently the message to the General BAR ASSOCIATION NEWS JOURNAL 10 (June/July 2005). Assembly is: “You may enact conclusive presumptions if you’d like, 31. FRIEDMAN, supra note 11, at 570. This was the fatal flaw in the although we will be obligated to strike down every one as reasoning of Crenshaw v. Commonwealth, 219 Va. 38, 245 S.E.2d 243 unconstitutional.” (1978), the only case cited by Newman in support of its ban on irrebuttable 11. BLACK’S LAW DICTIONARY 1223 (8th ed. 2004). This point is made in every presumptions. In Crenshaw, the court erroneously reasoned that a leading treatise on evidence law. E.g., JACK B. WEINSTEIN & MARGARET A. statute criminalizing the possession of a radar detector in a motor BERGER, WEINSTEIN’S EVIDENCE MANUAL § 5.02[1] (2006); GLEN WEISSENBERGER & vehicle — because the statute added that the “[t]he Commonwealth JAMES J. DUANE, WEISSENBERGER’S FEDERAL EVIDENCE § 301.2 (5th ed. 2006); 2 need not prove that the device in question was in an operative condition KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE 497 (6th ed. 2006); RICHARD D. or being operated,” id. at 40 n.1, 245 S.E.2d at 245 n.1 — was FRIEDMAN, THE ELEMENTS OF EVIDENCE 553 (3d ed. 2004); ROGER C. PARK, DAVID P. unconstitutional because it created an irrebuttable presumption that LEONARD & STEVEN H. GOLDBERG, EVIDENCE LAW 109 (2d ed. 2004); CHRISTOPHER was “a purely arbitrary mandate, violative of due process.” Id. at 43, 245 MUELLER & LAIRD KIRKPATRICK, EVIDENCE 112 (3rd ed. 2003). That is why any S.E.2d at 246-47. But the constitutional validity of such a statute presumption, if it is not rebuttable, is conclusive by definition. Francis v. depends entirely on whether possession of an inoperable radar detector Franklin, 471 U.S. 307, 314 n.2 (1985) (“A mandatory presumption may may be lawfully forbidden as a rational exercise of the legislative police be either conclusive or rebuttable”); Grant v. Mays, 204 Va. 41, 44, 129 power (an issue outside the scope of this article), and has nothing to do S.E.2d 10, 12-13 (1963) (contrasting a “conclusive presumption” with with whether the legislature chose to frame that prohibition in the one that may be rebutted); Henrico County Div. of Fire v. Woody, 39 language of an irrebuttable presumption. Assuming for the sake of Va.App. 322, 328, 572 S.E.2d 526, 529 (2002) (same). argument that a legislature could lawfully forbid possession of an 12. Grant v. Mays, 204 Va. 41, 44, 129 S.E.2d 10, 12 (1963) (emphasis inoperable radar detector, just as it can (for example) occasionally added). forbid the use of an unloaded gun as a “dangerous weapon,” McLaughlin 13. Pannill v. Commonwealth, 185 Va. 244, 253-54, 38 S.E.2d 457, 462 v. United States, 476 U.S. 16 (1986), there is no doubt that the legislature (1946) (emphasis added). would not violate the due process clause merely because it chose to 14. Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78-79, 597 S.E.2d 43, draft such a prohibition in the language of an irrebuttable presumption. 46 (2004); Butler v. Frieden, 208 Va. 352, 353, 158 S.E.2d 121, 122 32. 2 BROUN, supra note 11, at 495. (1967). 33. Id. (citing Laughlin, In Support of the Thayer Theory of Presumptions, 15. 422 U.S. 749 (1975). 52 MICH. L. REV. 195, 196-207 (1953)). 16. Id. at 768. 34. VA. CODE § 55-248.47 (emphasis added). 17. Id. at 772. 35. For another example of a Virginia law which unnecessarily creates 18. Michael H. v. Gerald D., 491 U.S. 110, 119 (1989). Five justices an irrebuttable presumption to define a rule of substantive law, Virginia’s agreed that a California statute created a conclusive presumption that Insurance Law provides: “If all moneys accruing to the fund are exhausted was nevertheless constitutional. See id. at 119-21 (Scalia, J.; plurality in payment of retrospective premium adjustment charges, all liability opinion) and id. at 132-35 (Stevens, J., concurring). More recently, the and obligations of the association’s policyholders with respect to the Court unanimously upheld and enforced what it called a pair of “conclusive payment of retrospective premium adjustment charges shall terminate presumptions” adopted by the National Labor Relations Board. Auciello and shall be conclusively presumed to have been discharged.” VA. CODE Iron Works, Inc. v. N.L.R.B. 517 U.S. 781, 786 (1996). § 38.2-2807(D) (emphasis added). That is just a more complicated way 19. Virginia PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 of saying, as statutes routinely do, that the policyholders “shall have no (1980). further liability or obligations.” 20. BLACK’S LAW DICTIONARY 1223 (8th ed. 2004). 36. WEINSTEIN & BERGER, supra note 11, § 5.02[1] (2006). 21. Michael H., 491 U.S. at 120 (plurality opinion). 37. VA. CODE § 65.2-404(B) (emphasis added). 22. See Allentown Mack Sales and Service, Inc. v. N.L.R.B., 522 U.S. 38. For another example of a conclusive presumption used to create a 359, 378 (1998) (NLRB’s “irrebuttable presumption of majority support definition, one statute provides that any deceased employee’s children for the union during the year following certification” is one of those under the age of 18 “shall be conclusively presumed to be dependents “evidentiary presumptions” that “are in effect substantive rules of law”); wholly dependent for support upon the deceased employee.” VA. CODE § Michael H. v. Gerald D., 491 U.S. 110, 119 (1989) (plurality opinion) 65.2-515(A) (emphasis added). The same point could have been (although California statute creating a “conclusive presumption” was accomplished without any presumption, merely by defining any child “phrased in terms of a presumption, that rule of evidence is the under the age of eighteen as a dependent entitled to relief under that implementation of a substantive rule of law”); United States v. Chase, 18 act. F.3d 1166, 1172 n.7 (4th Cir. 1994) (“A conclusive or irrebuttable 39. VA. CODE § 8.01-313(A)(2) (emphasis added). presumption is considered a rule of substantive law.”); WEISSENBERGER & 40. For another example, see VA. CODE § 6.1-125.3(D) (“Service on a party DUANE, supra note 11, at § 301.2 (“The term ‘conclusive presumption’ to the account made at the address on record at the financial institution denotes what is more properly considered a rule of substantive law as shall be presumed to be proper service for the purposes of this section”) opposed to an evidentiary, procedural device.”); WEINSTEIN & BERGER, (emphasis added). supra note 11, § 5.02[1] (2006); PARK, LEONARD & GOLDBERG, supra note 11, at 41. Stogner v. California, 539 U.S. 607, 616 (2003). 109-10; MUELLER & KIRKPATRICK, supra note 11, at 112; RICHARD EGGLESTON, 42. E.g., VA. CODE §§ 20-163(D), 24.2-434, 55-106.2, and 57.15. EVIDENCE, PROOF, AND PROBABILITY 92 (1978); JOHN H. WIGMORE, A STUDENTS’ TEXTBOOK OF 43. Here is one example: “Any failure by a public body to follow the THE LAW OF EVIDENCE 454 (1935). procedures established by this chapter shall be presumed to be a 23. FRIEDMAN, supra note 11, at 553 (emphasis in original elided). violation of this chapter.” VA. CODE § 2.2-3713(E) (emphasis added). Well 24. For a more detailed examination of the controlling Supreme Court of course it is. That goes without saying. precedents, see WEINSTEIN & BERGER, supra note 11, §§ 5.04[3][a] – 5.04[5]. 44. VA. CODE § 65.2-300(A). 25. It is a denial of due process to instruct a jury that a criminal 45. Any plaintiff who took that position would surely be advised by the defendant’s intent is to be “presumed” from certain other facts, even if judge: “You don’t understand; your willingness to be bound by this law is the jury is told “the presumption may be rebutted.” Francis v. Franklin, simply immaterial, because you are subject to this law whether you like 471 U.S. 307, 309 (1985). it or not.” But that is why there was no need to insert this silly and 26. See WEINSTEIN & BERGER, supra note 11, § 5.04[3][a]. This was the point irrelevant presumption in this statute to begin with. the Virginia Supreme Court got right in Newman when it stated that, before a presumption may be upheld as constitutional, “a natural and rational evidentiary nexus must exist between the fact proved and the OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/19 YOUNG LAWYERS DIVISION The YLD 50th Anniversary: A Celebration of a Noble Profession BY LORI D. THOMPSON, Chair, VBA Young Lawyers Division

During a recent meeting of a business organization with which I The truth is that the majority of the people am involved, one of the members that I admire most happen to be lawyers. piped into a discussion about business transactions with a friendly They generously give of their time and jab in my direction about how talents to improve their communities and lawyers are to blame for the general use their legal skills to protect and assist demise of civilization. I probably should have responded by explaining individuals during some of the most difficult how lawyers are responsible for times in their lives. ensuring the rule of law in our society or how lawyers facilitate every commercial transaction in our about the legal profession and DMV Project: Volunteers assist country, but all I could muster at the organize presentations at Virginia’s monthly during driver’s licensing time was a brief retort: “Don’t say high schools and middle schools to ceremonies, over which a Juvenile and that. Some of my best friends happen educate students of various Domestic Relations Court judge to be lawyers.” backgrounds about why they should presides, by presenting a professionally The truth is that the majority of consider a career in the legal profession produced videotape regarding the the people that I admire most happen and to provide diverse role models. legal, financial and practical to be lawyers. They generously give Co-Chairs: R. Lucas Hobbs and E. Hope repercussions of failing to obey traffic of their time and talents to improve Cothran. laws and discussing defensive driving their communities and use their legal Diversity Recruitment: Volunteers techniques in order to curb the skills to protect and assist individuals organize and operate an annual increasing trend toward reckless during some of the most difficult Diversity Job Fair to encourage law behavior by teens in automobiles. Co- times in their lives. I count myself students of every race, gender, Chairs: W. Brian McCann, Christopher fortunate to be part of such a noble ethnicity and sexual orientation to M. Grab, Bryson J. Hunter and D. Cabell profession. practice law in Virginia. The first Vest. In 2007, The Virginia Bar Association Diversity Job Fair is scheduled for Mentor Program: Volunteers are Young Lawyers Division will mark August 18, 2007, at the Embassy assigned to either a particular child its 50th anniversary. While we Suites in Richmond. Co-Chairs: Dana or to a fourth- or fifth-grade classroom celebrate the accomplishments of A. Dews, Monica McCarroll, Nicole S. and serve as positive role models for Terry and Elaina L. Blanks. this particular organization, we also the children. Through the program, volunteers provide students with celebrate and recognize the Programs that educate information and skills they need to dedication and service of its past and and assist young people access positive and productive paths current members and all members of Credit Issues Project: Volunteers and educate them about how the the legal profession who believe that, assist in the preparation of a judicial system operates. Activities with the authority granted by a law publication that focuses on educating may include taking the children on degree, comes the responsibility of teenagers, especially senior high field trips to the local courthouse, public service. school students who are preparing bringing judges into the classroom as The programs of the VBA/YLD to enter college or the workforce, speakers, or putting on mock trials. present an excellent opportunity to about the importance of responsible Co-Chairs: Collin Drabert, Andrew P. serve the public in meaningful ways. credit and debt management and the Sherrod, Sarah P. Bridges, Melvin Below is a brief summary of some of federal and Virginia laws available Williams and James W. (Whit) Ellerman. these valuable programs: to protect their rights as consumers. Model Judiciary Program: The publication will provide Volunteers assist in the organization Programs that promote diversity information on the various credit and administration of a program Choose Law: Volunteers lead on- options available to consumers and which exposes approximately 2000 campus discussions at Virginia the pitfalls surrounding the misuse high school students across the colleges and universities to educate of credit. Co-Chairs: H. Malloy Evans III Commonwealth to our judicial minority undergraduate students and Rudene M. Bascomb. system by encouraging their

20/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006 participation in mock trials and mock to four times each year. Trained Cathryn Le Regulski. appellate arguments before the volunteers provide telephone advice Lawyers for the Arts: Working in Virginia Court of Appeals and the to callers meeting financial eligibility partnership with local arts groups, Virginia Supreme Court. Chair: Daniel requirements to ease the caseload of volunteers participate in clinics and T. Campbell. legal aid attorneys. In 1995, the Pro seminars to provide legal information Youth Court Expansion Project: Bono Hotlines received the ABA’s to artists and arts organizations Together with other local and state bar Harrison Tweed Award, the highest throughout various regions of the organizations, volunteers facilitate the national honor given to projects state. Co-Chairs: Suzanne Sones Long implementation and administration providing legal services for the poor. and Beth G. Hungate-Noland. of youth courts in high schools across Pro Bono Hotlines Statewide Legal Services for the Mentally Ill: the Commonwealth whereby students Coordinator: Kathleen L. Wright. Co- Volunteers provide written and/or serve as jurors in proceedings in which Chairs: Sean Beard, Richard W. Brooks, oral advice or legal representation to appropriate punishment for a student Richard J. Crouch, Ashley R. Dobbs, B. familiy and friends of persons who has admittedly violated a rule of Webb King and Spencer M. Wiegard. suffering from mental illness to conduct is determined. The program ensure that they have access to Programs that educate the public empowers young people to take quality legal advice in various areas responsibility for their actions and about important legal issues of law. The National Alliance for the eases the burdens on school Health Law Project: Together with Mentally Ill-Virginia serves as a administrators for certain categories participants from the VBA Health liaison between the community’s of rule violations. Chair: Patrick T. Law Section, volunteers assist with needs and the project volunteers. Andriano. Advance Medical Directives Chair: John Phelps. workshops to educate the public Nonprofit Legal Support Program: Programs that provide assistance about the necessity for an AMD and Volunteers assist nonprofit groups in in times of crisis to provide such a directive. Co-Chairs: a variety of disciplines by providing Disaster Legal Assistance: Together Molly S. Evans and Nathan A. Kottkamp. pro bono assistance. The Program with volunteers from the VSB Young Town Hall Meetings: Volunteers maintains a database of volunteers Lawyers Conference Emergency Legal assist in coordinating public and when a nonprofit organization Services Committee, volunteers assist meetings across the state focusing on requests assistance, a volunteer individuals rendered needy by topical issues of interest to the attorney is matched to its needs. Chair: emergency situations such as natural particular community. Many of the Megan Starace Ben’Ary. disasters. Committee members work programs are broadcast by local Wills for Heroes: Together with closely with the Virginia Department public television and radio stations volunteers from the the VSB Young of Emergency Management, the ABA/ throughout the state to serve the goal Lawyers Conference, volunteers YLD Emergency Legal Services of educating the public on important provide wills, durable powers of Committee and the Federal Emergency legal issues. Such programs have attorney, and advanced medical Management Agency. All necessary included sponsoring debates of directives to first responders in training is provided during a CLE- political candidates, programs on Virginia (including police officers, approved meeting. Co-Chairs: Ryan W. regional cooperation among localities, firemen and rescue workers) on a pro Boggs and Richard P. Hadorn Jr. and water conservation, among bono basis. Chair: Stephanie M. D. Domestic Violence Project: Volunteers others. Regional Chairs: T. Vaden Albright. represent victims of domestic Warren Jr., Stacy Ross Purcell, Travis G. Attorneys who wish to get violence to help the victims obtain Hill, Henry I. Willett III, Maxwell H. involved with any of the VBA/YLD civil protective orders. The Project Wiegard and Lauren M. Ellerman. programs should visit the VBA sponsors free training programs each Programs tailored to meet website at www.vba.org/division/ year to train volunteer attorneys, yldact.htm, or contact me at who receive four CLE hours for legal needs of discrete populations Immigrant Assistance: Volunteers [email protected]. helping three victims obtain civil These programs are only a small protective orders within 12 months. participate in various projects to Co-Chairs: Amanda D. Newman, Marli provide low-cost, effective legal reflection of the programs sponsored J.P. Kerrigan, Robyn S. Gray and Alexis services to the growing population of by the VBA/YLD and of the valuable Mei Fishel. foreign-born citizens who come in services provided by lawyers Legal Food Frenzy: Together with Virginia in search of work and throughout the Commonwealth each representatives from the Attorney opportunity. The Committee is day. Therefore, as we celebrate 50 General’s office, volunteers assist in a currently working on a pamphlet years of the VBA/YLD providing program in which law firms containing information on access to service to the bar and the public, we challenge each other to collect the basic legal procedures and social should also remember and celebrate most food donations for food banks services for distribution by the local that we are indeed members of a noble around the state. The first statewide and federal courthouses. Chair: profession. VBA Food Frenzy will be in April 2007. Co- Chairs: Christopher M. Gill and Katja H. In Memoriam Hill. Pro Bono Hotlines: Volunteers staff Charles Armistead Blanton II a “hotline” at Legal Aid Society offices 1922-2006 across the state, on a rotating basis, Secretary-Treasurer of The Virginia (State) Bar Association, which usually involves providing 1961-69 assistance for one to two hours, three OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/21 CLASSIFIED ADS PROFESSIONAL ANNOUNCEMENTS

POSITIONS AVAILABLE LeClair Ryan has announced the opening of its New York office at 830 Third EMPLOYEE BENEFITS SPECIALIST - Avenue, where the Richmond-based law firm will initially focus on expanding its Steptoe & Johnson PLLC, one of WV’s existing services in the financial services industry and corporate bankruptcy arena. largest firms, continues to expand its “New York is a natural market for us,” said Gary D. LeClair, the firm’s chairman. Employee Benefits and Executive “Our existing client base in New York has been drawing our lawyers to the city for Compensation practice, with an years. We have just been waiting for the right opportunity and the right person to immediate opening for a lateral attorney lead our New York office.” with experience in ERISA and tax-related Paul A. Merolla, a former executive vice president and general counsel of compliance; executive compensation; Instinet Group Incorporated and a former vice president and associate general LMRA and union benefit counseling; counsel of Goldman Sachs & Co., Inc., will serve as the firm’s office leader in New health, welfare and pension plan drafting York. He is also the immediate past president of the Securities Industry Association’s and advice; and employee benefit Compliance & Legal Division. aspects of mergers and acquisitions. Also joining the New York office as partners are Michael T. Conway and Andrew Minimum 5 years’ experience; portable J. Frisch. Conway, who comes to LeClair Ryan from the law firm of Lazare Potter business a plus but not required. For Giacovas & Kranjac in New York, will head the office’s bankruptcy practice. At the more information about Steptoe & firm, he represented creditors and debtors in a wide variety of industries. Like Johnson PLLC, visit our website at Merolla, Conway will be involved in actively recruiting additional attorneys for his www.steptoe-johnson.com. Candidates practice area. Frisch, who brings 20 years experience practicing criminal law in should send confidential resumes to New York City’s federal and state courts, will lead LeClair Ryan’s white-collar Jane Douglas, Recruiting Coordinator, criminal defense practice, part of the Securities Litigation and Practice Steptoe & Johnson PLLC, P.O. Box 1588, Group. He most recently worked as a federal prosecutor in the Eastern District of Charleston, WV 25326-1588, or New York, successfully prosecuting the director of the Staten Island Ferry Service [email protected]. for the 2003 crash that killed 11 passengers. As senior litigation counsel in the office’s Business and Securities Frauds Unit, Frisch also tried senior executives of a EXPERTS/CONSULTING SERVICES high-technology company for securities and accounting fraud. ADA/DISABILITY ACCESS – We James A. Murphy, chairman of LeClair Ryan’s Securities Litigation and Regulation rapidly identify, analyze, and resolve Group, said, “We are excited to add Paul Merolla’s depth of knowledge of securities ADA/disability access issues. We have law and wealth of experience on Wall Street to our practice group. Andy Frisch’s extensive experience working with background as a federal prosecutor and Michael Conway’s background in Federal, state and local accessibility bankruptcy and creditors’ rights will create a solid foundation for us to build on in standards. We work nationwide with New York. We plan to assemble a talented group of lawyers around them to major developers. Contact Robert enhance our already strong teams in Virginia and Washington, D.C.” Murphy will Sevigny at Hephaestus Associates LLC, divide his time between LeClair Ryan’s Richmond and New York offices. 919-673-3759. Founded in 1988, LeClair Ryan has grown to become a full-service law firm with 140 lawyers and offices in Virginia, New York and Washington, D.C.

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

United States Postal Service Statement of Ownership, Management and Circulation (Requester Publications Only), PS Form 3526-R. 1. Publication Title: VBA News Journal. 2. Publication Number: USPS 093-110. 3. Filing Date: October 1, 2006. 4. Issue Frequency: Bimonthly. 5. Number of Issues Published Annually: 6. 6. Annual Subscription Price: $30. 7. Complete Mailing Address of Known Office of Publication: The Virginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219-2503. 8. Complete Mailing Address of Headquarters or General Business Office of Publisher: Same. 9. Full Names and Complete Mailing Addresses of Publisher, Editor and Managing Editor. Publisher, The Virginia Bar Association, same. Editor: Caroline B. Cardwell, same. Managing Editor: N/A. 10. Owner: The Virginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219. 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None. 12. The purpose, function and nonprofit status of this organization and the exempt status for federal income tax purposes has not changed during preceding 12 months. 13. Publication Title: VBA News Journal. 14. Issue Date for Circulation Data Below: June/July 2006. 15. Extent and Nature of Circulation. Average No. Copies Each Issue During Preceding 12 Months: a. Total Number of Copies (Net press run): 6166. b. Legitimate Paid and/or Requested Distribution (By Mail and Outside the Mail). (1) Individual Paid/ Requested Mail Subscriptions Stated on PS Form 3541: 5944. (2) Copies Requested by Employers for Distribution to Employees by Name or Position Stated on PS Form 3541: 0. (3) Sales Through Dealers and Carriers, Street Vendors, Counter Sales and Other Paid or Requested Distribution Outside USPS(R): 0. (4) Requested Copies Distributed by Other Mail Classes Through the USPS (e.g. First-Class Mail(R)): 0. c. Total Paid and/or Requested Circulation: 5944. d. Nonrequested Distribution (By Mail and Outside the Mail): 86. e. Total Nonrequested Distribution: 86. f. Total Distribution: 6030. g. Copies Not Distributed: 136. h. Total: 6166. i. Percent Paid and/or Requested Circulation: 98.6%. No. Copies of Single Issue Published Nearest to Filing Date: a. Total Number of Copies (Net press run): 6400. b. Legitimate Paid and/or Requested Distribution (By Mail and Outside the Mail). (1) Individual Paid/Requested Mail Subscriptions Stated on PS Form 3541: 6088. (2) Copies Requested by Employers for Distribution to Employees by Name or Position Stated on PS Form 3541: 0. (3) Sales Through Dealers and Carriers, Street Vendors, Counter Sales and Other Paid or Requested Distribution Outside USPS(R): 0. (4) Requested Copies Distributed by Other Mail Classes Through the USPS (e.g. First-Class Mail(R)): 0. c. Total Paid and/or Requested Circulation: 6088. d. Nonrequested Distribution (By Mail and Outside the Mail): 92. e. Total Nonrequested Distribution: 92. f. Total Distribution: 6180. g. Copies Not Distributed: 220. h. Total: 6400. i. Percent Paid and/or Requested Circulation: 98.5%. 16. Publication of Statement of Ownership for a Requester Publication is required and will be published in the October/November 2006 issue of this publication. 17. Signature and Title of Editor, Publisher, Business Manager, or Owner: Caroline B. Cardwell, Editor. Date: October 1, 2006. 22/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006

August 18, 2007 CALENDAR OF EVENTS VBA/YLD Diversity Job Fair Embassy Suites, Richmond December 7-8, 2006 October 26, 2007 VBA Capital Defense Workshop VBA Virginia Tax Practitioners’ Roundtable Richmond Marriott Farmington, Charlottesville January 18-21, 2007 October 26-27, 2007 VBA Annual Meeting Boyd-Graves Conference Williamsburg Lodge & Conference Center Westfields/Hyatt Regency Reston March 30-31, 2007 November 16-17, 2007 Lawyers Helping Lawyers Spring Conference Region IV National Moot Court Competition The Woodlands, Williamsburg Omni Richmond April 20-22, 2007 For more details on specific events, visit our website at VBA Bankruptcy Law Section Conference www.vba.org or call the VBA office at (804) 644-0041. A The Tides Inn, Irvington (tentative) complete calendar of events with links to additional information July 19-22, 2007 is posted on the website. VBA Summer Meeting The Homestead, Hot Springs Celebrate the VBA Young Lawyers Division’s . . 50 years of service at the 117th Annual VBA Meeting, January 18-21, 2007, as the VBA returns to the renovated and expanded Williamsburg Lodge & Conference Center! yldyldyld1957-2007

VBA• • The Virginia Bar Association 701 East Franklin Street, Suite 1120 Richmond, Virginia 23219