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© 2001 Massachusetts Mutual Life Insurance Company (MassMutual), and subsidiary companies, Springfield, MA 01111. Securities offered through Registered Representatives of MML Investors Services, Inc., Trust services offered by ]he MassMutual Trust Company, FSB, www.massmutual.com Member SIPC 4 President’s Page: Judicial Independence Vir~nia.$~/le’ j. Edward Betts 6 The Independent Judiciary:. Law and Politics: The Imperative of Judicial Self-Restraint Hon. D. Arthur Kelsey 9 VBA Model Criteria for Judicial Selection and Retention 10 ° The VBKs 112th Summer Meeting in ~ 12 ° Legal Focus/Civil Litigation: Recovery of Lost Profits: An in the War on Trade Secret Attison L. Barnes IIl and Charles C. Lemlcy 16 ° Young Lawyers Division:

17 ° Book Program An~nced! 18 ° Across the Commonwealth New group for arts, Rumsey receives VBA fall meetings announced Two members named ~ Joint,O.E

’Court End Society" 21 VBA Law Practice Management ~ ~ Professional Skills Survey ~lendar

The Official Publication of The Virginia Bar Association

Volume XXVilI, Numbcr 6 ~"acptcmDcr 2002 ...... PRESIDENT’S PAGE Judicial Independence Virginia-Style m* J. EDWARD BETTS

IT]he Judicial Department comes Another important element of judges’ home /27 its effects to every man’s independence is tenure in office. This f/?eside: it passes on h/~ proper04 his was the issue that inspired Chief Justice reputation, h/} Iif~, h/} all Is it not to the Marshall to his oratorical heights quoted last degree important, that [a judge] should be rendered perfectly and above. Some, like John Adan~s, believed completely independent... ? / have in lfl~ tenure to maintain an independent always thought, from my earliest youth judiciary,- so that judges were "subservient till now, that the greatest scourge an to none." D. McCullough, John Adams, and~ Heaven ~v~r /bf//~t~d upon an at 103. This is the federal model. Some undrat~fu/ and sinnin~ p~op/6 was an states hold popular elections for judges. /dnoran~ a corrup~ or a d~p~nd~nt Virginia has taken a middle ground. The Judic/~ ~l/ you draw down th/~ curs~ General Assembly selects and rene~vs upon ~?d/b/b ?* the terms of our judges, ~vith the Governor havhag limited appointment Thanks to Chief Justice Marshall and rights while the General Assembly is not those who have followed him, Virginia in session. Va. Const. Art.VI, §7. offers a workable Constitutional Economic security also fosters framework for preserving a Virginia judicial independence. In Virginia, the judge’s ability to think and rule General Assembly prescribes salaries, independently. Various of the other states which can be supplemented from local and the federal goven~nent have taken The occupants of the funds. Va. Const. Art.VI, §9. Given somewhat different approaches to three branches of the critical role of an independent preserving an independent and thus ~overnment must act with judiciary in our free society, it is my impartial judiciary, with some having comity and deference personal hope that our General greater success than others. But let us Assembly will always keep in mind focus upon Virginia. towards each other to how important an independent Our Constitution declares "That the strike the balance that judiciary is when it prescribes judicial legislative, executive and judicial preserves the separation salaries. Virginia cannot afford to have departments of the Commonwealth of powers, and only wealthy judges of impartial mind. should be separate and distinct...." Va. particularlyjudicial Although Virginia’s Constitution Const. Art. I, §5. Other Constitutional provides a framework for the judiciary provisions prohibit sitting judges from independence. to maintain its independence, it is being members of the General inevitable that tensions will arise Assembly or officers in the Executive among our three branches which could Branch. Va.Const. Art. IV, §4, and in the early days decreed divorces, granted discharges in bankruptcy and undermine this Constitutional intent. Art.VI, § 11. These declarations of the Thus, the occupants of the three separation of powers are essential to rendered a wide variety of decisions that branches must act \vith comity and an independent judiciary. we consider today to be reserved to the deference towards each other to strike Yet even though this doctrine appears judiciary," L.L. Fuller, Mammy of the the balance that preserves the to be a permanent fixture of American Law, at 32. Thus, we must remain vigilant to assure that incursions on an separation of powers, and particularly law, the functions of the three branches judicial independence. President have often been blurred in our history. independent judiciary do not occur in Roosevelt’s attempt to "pack" the For example: "American state legislatures any form. United States Supreme Court is an example of an executive department’s *John Marshall, then Chief Justice of the United States, made these remarks in Virginia’s Constitutional overreaching. Judge Kelsey’s fine Convention of 1829-30, as a representative of the city of Richmond, Ex-Presidents James Madison and James Monroe also participated in the Convention, Marshall’s efforts, directed to article on judicial self-restraint, protect judicial tenure, were successful, and the Judiciary article was adopted substantially as he published in this issue starting on page had written it. J.E.Smith, John MarshalL. Dcf/her of a Nation, at 504-06. 6, demonstrates how the judiciary

4 THE VIRGINIA BAR ASSOCIATION should not confuse its role with that as it engages in its selection and rene~val of the legislative branch. Buttressing process of judges, such that the latter his article is The Virginia Bar remain free to render independent, Association Model Criteria for Judicial impartial derisions. Selection and Retention (Model The VBA, along with Virginia’s Chief Criteria), published on page 9 of this Justice, has constantly called for a merit issue. One of its criteria is the selection and retention process for Suite 1120 "Willingness to Follow the Law." judges, and the General Assembly has 701 East Franklin Street Of course, "following the law" does moved in that direction in recent times. Richmond, VA 23219 This is the reason for the VBA’s Model (804} 644-0041 not inhibit a judge from construing a FAX (804) 644-0052 statute reasonably. That is the very Criteria. In the context of judicial E-mail: [email protected] essence of a judge’s work. Indeed, a independence, three of these criteria bear Web: http://www.vba.org judge’s ability to do so impartially particular attention. Under the general President demonstrates the importance of judicial heading of "Integrity," we set forth as J. Edward Betts, Richmond independence. And a judge’s right to criteria: "Free of Bias or Prejudice"; "Free President -Elect make a reasonable construction of a of Favoritism"; and "Evenhandedness." Frank A. Thomas Ill, Orange statute imposes a concomitant Without comity and deference among Immediate Past President responsibility on the General Assembly, our three branches of government, these Jeanne E Franklin, Alexandria that of deference to the judiciary. criteria, and impartial justice, will never Young Lawyers Division Chair Vaugnan Gibson Aaronson, Richmond In fact, an impartial judge is often in a be realized. Nor will our Constitution Young Lawyers Division Chair-Elect better position to construe a statute than be honored. Va. Const. Art. I, § 15, Stepnen D. Otero, Richmond are the draftsmen. In one famous English states that in order to preserve a free Law Practice Management Division Chair debate, Lord Nottingham stated that he government: Heman A. Marshall Ill, Roanoke had reason to know the meaning of a ... all citizens [recognize] that they Chair, Board of Governors given statute since he had drafted it. In have duties as well as rights, and E. Tazewel Ellett, Alexandria response, it was stated "if Lord that such rights cannot be enjoyed Board of Governors Nottingham dre~v it, he was the less save in a society where law is Th~ Oftic~rs ancl Ann T. Burks, Richmond qualified to construe it; the author of an respected and due process is ~rof. Roger D. Groot, Lexington act considering more what he privately observed. James V. Meath, Richmond intended than the meaning he has Without an independent judiciary, Hon. William C. Mims, Leesburg Frank West Morfison, Lynchburg expressed." Fuller, supra, at 33-34. law will lack respect and due process Sharon E. Pandak, Prince William Moreover, restraint and deference must will go unobserved. @ D. Alan Rudlin, Richmond also be honored by the General Assembly Grego~ T. St. Ours, Harrisonburg Harriette H. Shivers, Roanoke William R. Van Buren Ill, Norfolk More on the subject: The American Bar Association has chosen Hon. John E. Wetsel Jr., Winchester E Blair Wimbush, Norfolk "Independent Courts Protect Our Liberties" as the 2003 Law Day Member of ABA House of Delegates theme. The Constitution grants us rights, but without courts the Constitution Hon. R. Terrence Ney, Fairf~x might just be a quaint document on parchment. It is the courts that enforce the Constitution, protect our rights as Americans, and make the rule of law a reality. Legislative Counsel Anthony E Troy, Richmond Law Day can help people understand that "independent" courts are fair, David G. Shuford, Richmond impartial, and dedicated to the rule of law. Through Law Day, we can stress the Robert B. Jones Jr., Richmond importance of courts and judges free from political interference. Ever/Law Executive Vice President Day, we try to help Americans understand how our freedoms depend on our Charles Breckenridge Arrington Jr. great system of law. On this next Law Day, let*s help our fellow citizens Administrative Director appreciate that judicial independence is "the most essential characteristic of a Sandra F~ Thompson free society." In a democrao/, no one -- no matter how powerful -- is VBA N~ws Journal Editor above the law, as long as judges have the authority to apply the law Caroline Bolte Card,yell impartially and fairly. -- Amer/~an Bar~soc/~tion~ ~o OUR MISSION The Virginia Bar Association is a VBA NEWS JOURN.~I_, the ott]cial publication of The Virginia Bar Associatiou (ISSN 1522-0974, voluntary organization of Virginia USPS 093-110), is published eight times per year (in the months ofJ anua~, March, April, June, lawyers committed to se~ing the public July, September, October aud December). Membership dues include the cost of one subscription and the legal profession by promoting to each member of the Association. Subscription price to others, $30.00 per year. Statements the highest standards of integrity, or expressinns of opinion appearing herein are those of the authors and uot necessarily those of professionalism, and excellence in the the Association, and likewise the publication of any advertisement is not to be consu-ued as an legal profession; working to improve the law and the administration of justice; endorsement of the product or service unless specifically stated in the advertisement that there and advancing collegial relations among is such approval or endorsement. Periodicals postage paid at Richmond, VA 23232. lawyers. POSTMASTER: Send address changes to The Virginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219.

NEWS JOURNAL ¯ SEPTEMBER 2002 Law 6, Politics: The Imperative of Judicial Self-Restraint

BY HON. D. ARTHUR KELSEY

Thc fo//ow/hs art/~/c /~ from a speech one-time ~vaiver to the marriage la~v, needed to restore some intellectual and presented by Yuds¢ Kds~y b¢forc th~ applicable only to Hen~’. moral legitimacy." to his reign. The king Portsmouth Bar ~soc/ation at its Law Over time Queen Catherine lost favor appointed More to the highest judicial Day prodram on May ~, £00~. in Henu’s eyes. She developed a deep, post in the land, Lord Chancellor of Betbre I be~n, I want to honor ~vo of abiding reli~ous f~ith~some%ing of a England. This was a job More was your favored sons. Like many of %e character quite lbrei~ to HenU. Her uniquely qualified to perfom3. More had ~auyers here, I aRended William and MaT strate~c value to the kingdom also a protbtmd understanding of law, a strong ~w School and studied law under Dean diminished when the Spanish alliance interest in legal scholarship, and an Bi~ Spong. I later x,t-nt on to clerk proved less profitable to England than unimpeachably honest intellect. Judge John MacKenzie in the tbderal Hem/ex~pected it to be. To make ma~ers But Henr~’ VIII needed More not coup. As I &ore to Po~smouth today, I worse, Catherh~e of ~agon had ~ven his legal skills, but tbr his reputational realked how deeply in debt I was to these Hemy a daughter, but had commi~ed capital. Not long alter More’s Bvo inen. the ~fimate royal sin of not ~x~ng ~e appoinmaent, Henry asked More to issue But there is another man, one I never ~ng a male heir to his throne. ~d, of a public declaration of the legaliw of ~ew, who also left a lasth~g impression course~ ~lere was one ()~ler reason Hen~"s divorce and remamage. ~lore on me. He was an extraordinarily HenQ"s change of hea~ (one as commou re~s£’d on the ~ound that it fbll far success~l lau)’er, a j~st of the first order, to kings as to peasants): there was another outside his subjec~-ma~er jufisdic~on and a man ofg~eat influence and learning woman~me Boleyn. wotdd, in any event, x~olate his conscience ~he was also a man convicted tbr a Though the ~ng was uot knmx~ to meddle in such roarers. capitol ottk’nse and executed hy the state. his scholars~p, somehow Hel~"s marital In the 1962 play A Man For/UI Seasons, His name was Sir Thomas More. This problems led 15m into a ~eat deal of the playxvright Robe~ Bolt has a scene man’s ston, beans in England, in academic reflection on the reliabiliw of where More explains ~is to ~ng Hen~,. early; 1500s, at the time of King HenQ~ ecclesiastk’al law. Much to his delight, More then asks the ~ng, "Why does ~II. As fhr as kings went, HenQ’ ~II was Hcn~’ discovered %at the Pope should your Grace need my poor suppo~?" an arche~e of ~e worst so~. Though have ne~r ~anted He~w’s earlier request HemT replies: reasonably competent at goven~g o~ers, fi)r a special waiver of the marriage Because rou are honest. What’s more Henw~ was quite incompetent at the a~ prohibi~on of papal law. So HenQ" addsed to the propose, ;you’re known to be of self-government ~a thtal flaw not at the Pope that he was fight all along, and honest. There dre those who.fl~]]ow me ~1 unique to ~at time or that place. that the king s marriage to Queen because l wear the crown, and there He~W got to ~e throne entirely by an Ca~efine was in Ihct void ab initio. Not in are those who~fidhnv me because acddent o~ fate. His older brother, the least amused, the Pope reused to are jackals ~dth s~arp teeth and I am had been goomed lbr the job ~so much anntd the maMage and to t)ennit Hcn~’ their hon, and there is a mass q[men so ~at he maMed Ca~efiue of ~agon, to mm~" tSs paramour. that.hallows me because it a Sp~ish princess who woNd help ensure Both ou~aged and in no small measure ~hing that moves ~and then there the continui~ of the Anglo-Spauish quite emba~assed, HenQ’ began a host~e alliance. But ~t~ tmex])ectedly died ~keover of the ecclesias~cal sphere of ~obert Bolt, A Han For All Seasons before assuming the throne from his England. He appointed a poli6cal hack, 31-32 (1962), original text father. As the heir apparent, HenQ’ Thomas Cranmer, to ~e high post of paraphrased. decided to ~ke his brother’s widow as ~chbishop of CanterbuU, who repaid What Hemx ~II wanted was not a his o~ wiff and, upon his thief’s death, the deed by issuing the appropriate judMal decision from the high judge of to declare l~mself Mng. Hen~’s problem religious edict authorizing both the chanceQ’, but a political decision that x~s that both England aud Spain (~vorce of Catherine and the ma~iage to announced the Chaucellor’s personal Cl~isfian monarchies, and ecclesiastical ~me Boleyn. opinion on the subject. This smmk Sir law &d not permit a man (even a ~ng) to Now, while all this was going on, a Thomas More as a clear x4olation of his ma~ his brother’s x~dow. Undete~ed highly gibed laxD,er named Thomas More oath of office. He was being asked to use by this legal technically, Hen7 waged an had become we~ ~ox~ ~roughout the his judicial position tbr the sole puq)ose intense diplomatic campaigi~ and ~ngdom as a man of inte~, and honor. of promoting a political and personal ultimately secx~ed from the Pope a speciM ~d he was just the ~nd of man Henw ageuda of the monarchy.

6 THE VIRGINIA BAR ASSOCIATION On the other hand, Sir Thomas More-~even though the higlwst judge in the land ~4ewed himself as a sen,ant of the law. As a student of the Ma~a Ca~, More believed ~e law governed e~ls,one in the kingdom equally~lYom monarchs to plowboys. Equally clear to More ~vas that no one, not even a Mng, should use the institution of the ju~ciao" to promote Iris poli6cal and personal goals. Does the stolT orang Heno’ VIII and Sir Thomas More have relevance today? I think so. We live in a time where many ~eficans are deeply suspicious about the role of politics and the courts. Sometimes this suspicion is teMbl7 tu~ir, other times perhaps understandable. I do not believe the public’s tbars on this isstle should go uuaddressed. When judges inteoe~ their personal poli6cal philosophies into their judicial ophfions, THE KING: At his accession in 1509, Henry whether explicitly or implicitly, they THE LAWYER: A learned man of formidable Tudor was described as the handsomest integrity, later canonized, Thomas More prince in Europe. Twenty-five years later, arrogate a power to themselves ~at our refused to compromise his conscience and he had become a lusty and capricious tyrant ~pa~ite system of government clearly the law in order to serve his sovereign’s obsessed with siring a male heir and willing denies them. ~H~e Constitution does not personal agenda. He once said of Henry, to destroy anyone--wives, counselors, authorize the judicial" to ~Mte laws that "If my head would win him a castle in France, clergymen--who stood in his way. the le~slature t~iled to enact, or to repeal it should not fail to go." those that violate no recognizable After refusin~ the king’s request, More arguments relying on statutes and roles consfitufonal principle, or to amend laws resi~ed from the Chaucer’ bench and of court. And every day trial la~yers try, that are reasonably adequate but went into what he hopedwould be a to find clever ways to tempt us into nonetheless can be improved upon. &s quiet retirement. At uo time, either belbre ex])anding or contracting those laws Thomas ]eftbrson put it, a judicia~ that or after his resi~3ation, ~d More once dependhag on their poteutial impact on pushes beyond these limits would place privately or publicly cba~cnge the Mng or the case before us. We must, of course, us all uuder the "despotism of an question his authofiw. Unable to se~’e resist this temptation. Our personal views oligarchy" ~me flatly at odds ~ the his soverei~ x~th a clear conscience, on the ostensible w~sdom of legislation democratic principles of our republic. More simply withdrew from public lifb or the alleged policy justification In my view, we judges must cons~nfly ahogether. underl)4ng it should play no role in our revisit these ~ndamen~l limitations on Hcn~ nonetheless isstied orders judicial reasoning. our prover if we are to be fhi~hil to our More’s anest aud imprisoned him in ~e Our task, actually, is quite simple: read oath of ofllce. When we are ca~ed upon Tower of London. Hen~~ then impaneled the statute, read the rule--and do exactly to intewret fl~e Constitution in order to a special juD, of his ~el~ds, which (as he what it says.. Add nothing to it; subtracx adjudge a specific case or controversy’, expected) fimnd More ~il~’ of high nothing from it. Some say this view is ~eason. Hen~, issued ~e writ fiw More we must repress any political or uaively simplistic, that the law is much philosophical view we hold that is to be beheaded. ShoMv betbre his death, too complex tbr this. I couldu’t disagree incousistent with the plain meaniug of More repo~edly told d~e king: "Be~veeu more. Quantum physics is complex. ¯ e constitutional te:~ or its historical you aud me, Sire, there is only one thing Game theory mathematics is complex. context. If~ve thil to exercise this ~brm of ~I die today, aud you tomorrow." General and specific relativi~ is complex. inte~ec~al selt2discipline, ~ve ~411 bumble The contest be~veen ~ng Hen~’ VIII Law is nothing of the kind. Vague, it do~ a path that, in the words of Justice and Chancellor More was not just a often may well be but don’t confuse Scalia, "proceeds on the emmeous and brutish clash of ~lls, a brawl be~veen obscurity with complexity. all-too-common assumption that the ~x~ ambitious and pmwrful men. It was Few of you would say as much out Constitution means what we think it a clearly fi-amed clash of ideas. To loud, but many of you are probably ought to mean. It does uot; it means the la~ was as malleable and fleefin~ as thinking, "Really, now, what is the big what it says." Apprendi v. New Jet,if, 530 Igs lusts. The law was what he wanted it deal?" Some of you may go even further U.S. 466, 499 (2000) (Scalia, J., to be, when he wanted it to be, and and say to yourself: "Come to think of it, whate~r he wauted it to be in order to concuMng). I kind of like some of the opinions that This principle is not limited to sen’e his personal and political interests. might be considered judicial excesses." consOtufional jurisprudence. Eve~ day In the plainest of terms, Henlw VIII Fair point, to be sure. But let me give you in our courts ,re trial judges hear thought himself above the law. three reasons to reconsider your views.

NEWS JOURNAL ¯ SEPTEMBER 2002 course of history might have been The systemic capacity for inertia that diflbrent if the majority on the Court had characxerizes the judicial system makes it Judge D. Arthur Kelsey sits heeded the warnings in Justice Curtis’s a poor laboratory for improvising on social on the bench of the Fifth dissent? policy. Judicial Circuit in Suffolk and In the same league of error I would This lack of flexibility means that even serves as a member of the VBA Civil Litigation Section place the decision of Korematsu v. United the best of social engineers, if he or she Council. Before coming to States’, 323 U.S. 214 (1944), a Supreme sits on the bench, cannot respond quickly the bench, Judge Kelsey was Court decision that permitted thousands to evolving societal trends and the a partner at Hunton & of innocent U.S. citizens of Japanese vicissitudes of the public will. Williams and a former law heritage to be interned in detention camps My third and last reason for considering clerk to U.S. District Judge on American soil. Korematsu, in so many this issue important has to do with its John A. MacKenzie. words, told us that the high court reserved effect on our democracy. Judicial to itself the option of suspending lawmaking inoculates the political class constitutional liberties in time ofwar--a from having to deal with the hard realities proposition you will find neither in the of governing a diverse, pluralistic society’. First, the moment ~ve become tolerant literal text nor the historical context of When a polarizing social issue makes its of judges imposing their own personal or the Constitution. way into the courts, you can almost hear political philosophies through judicial Another example (less egregious, but legislators let out a collective sigh of relief. edicxs --a tolerance, by the way, that we equally erroneous) would be Lochner v. Once the courts monopolize the issue, conveniently embrace only when we think New York, 198 U.S. 45 (1905), in ~vhich the legislative branch of government is the judges got the answer right--we an economically conservative Supreme relieved of the responsibility for compromise our ability to make a Court used the substantive clue process artkxdating public policy with any degree principled objection to ~is exercise of clause as a platfbrm fbr repudiating any of specificity. This has the effect of power ~vhen we think the judges got the laws inconsistent with the laissez-faire anesthetizing some citizens and alienating answer wrong. If you think this point not market theories held by the Justices. Years others. When we take the hard issues of that important, let me remind you of later, the Court relied on Lochner over the day out of the public square, we leave some painful history. Go back and reread and over again in its eflbrt to repeal FDR’s the ordinary citizen to believe that his or the Dred Scott decision, in which the New Deal legislation, an eflbrt the Court her view is no longer relevant. Worse highest court in the land declared there ultimately abandoned when FDR refused still, we imply that our citizens are neither to be a constitutional right to enslave our to back down. intellectually competent nor ethically countrymen, and on that basis, struck My point in marching this parade of capable of working out a just resolution down the Missouri Compromise. After horribles by you is not merely to condemn of these issues. It wonld be very much to you read the majority opinion, go to the the political immorality of those times, our disfavor if the great debates of our dissent of Justice Curtis. This is what you but to show the common denominator times are banished from the vast find: to be the same in each: the judges went marketplace of ideas that we call America Political reasons have not the far outside the boundaries of any and restocked on the shelves of a single requisite certainty to aflbrd rules of recognized legal precedent and entered shop--owned, operated, and self- [judicial] interpretation. They are the dangerous sphere of judicial regulated by" the judiciary. The egalitarian different in different men. They are lawmaking. The judicial process left the traditions of our people and their virtuous different in the same men at safb ground of legal analysis and wandered disn’ust of elites make these undemocratic different times. And when a strict into the perilous ground of philosophical consequences wholly unacceptable to interpretation of the Constitution, dialectic. It is not enough, therefore, for me--and, I hope, to you as well. according to the fixed rules which us to object to the results they reached in Let me close with this one thought. govern the interpretation of laws, is those cases. We must also understand, Implicit in what I’ve been saying is that abandoned, and the theoretical and then dismantle, the reasoning that we judges must avoid the seduction of opinions of individuals are allowed led them to those results. thinking ourselves too wise. A measured to control its meaning, we have no Second, even if the courts had plenary amount of institutional humility, I believe, longer a Constitution; we are under authority to make law, they are certainly would go a long way right about now. the government of individual men, ill equipped to do it. Truth be told, the Let’s face it: We are not philosopher- who for the time being have power institution of the judiciary is not at all kings; we are not guardians in Plato’s to declare what the Constitution is, nimble enough to engage the kind of imaginary republic; ~ve are not linear according to their own views of social experimentation necessary to make descendants of Solomon. what it ought to mean. good law. Once a court issues a ruling, Along these lines, I like the response DredScott v. Sanffbrd, 60 U.S. (19 How.) the doc~crine of stare decisis immediately Justice Byron White gave at his Senate 393,620-21 (1857) (Curtis, j., dissenlkag). encamps around it to stifle any later conth-mation hearing when asked what It was only a few years after Justice change or repudiation. That is not at all he thought the role of the U.S. Supreme Curtis issued this dissent that our nation the situation with legislation, which can Court should be. He paused quiedy and took a violent free-fall into civil war. come and go as political power migrates said, "To decide cases." I think that is Consider this -- is it possible that the from one set of interest groups to another. exactly the response Sir Thomas More

8 THE VIRGINIA BAR ASSOCIATION might have Wen to that question. In A Manfl~r A]l Seasons, there is a scene THE VIRGINIA ASSOCIATION where More’s \vi[~¯ Mice~ his daughter Margaret and his son-in-law William MODEL CRITERIA Roper argue xdth More because he rethses to have a certain man arrested. The scene FOR JUDICIAL SELECTION AND RETENTION ends with this exchange: Margaret: Father, that man’s bad. INTRODUCTION More: The judicial system is an important public service. There is no law against that. Public safety and individual liberty and life are at stake in criminal cases. Roper: Civil disputes are matters of enormous importance to the parties, e.g., There is! God’s law! custody, property division, compensation for personal injury, business ~lore: contracts and government operations. Then God can arrest him. A judge’s job is .challenging. Caseloads have risen steadily for many years as a result of the litigious Roper: nature of our society and high crime rates. Judges must competently Then you set man’s law above God’s! and expeditiously, with a high degree of professionalism, handle a More: broad range of matters, many of them complex. Moreover, judges No,.~r below; but let me draw your function with a great deal of autonomy, so high levels of self-motivation attention to a fl2ct --I’m not God. and self-management are required. The currents and eddies ~?Jnght and Use of the criteria. wnmg, which you find such plain The General Assembly and the Governor have selected good judges at sailing, I can’t navigate. I’m no all levels from a wide variety of backgrounds. Not all the criteria will apply v~vager. But in the thickets the law, in all circumstances, and the relative importance of the criteria is for the oh, there I’m a forester. I doubt f user to determine. there’s a man alive ~ho could follow THE CRITERIA me there, thank God... 1. Integrity Alice: Honesty ¯ Intellectual Honesty ¯ Fr~ of Bias or Prejudice While you talk, he’s gone [the man ¯ Free of Favoritism ¯ Evenhandedness ¯ Courase you should arrest]! More: 2. Judicial Temperament And so he should, if he was the De~ql Courtesy ¯ Patience ¯ ~rnness ¯ Decisiveness himself, until he broke the law! ¯ Thoroushness ¯ Conscientiousness ¯ Coll~siality Roper: ¯ Public Service Commitment So now you ’d give the Devil benefit ~" 3. Judgment law! Substantive ¯ Procedural * Ev/d~ntiary More: ¯ Sound andA,loderate Exercis~ of Discretion (e. Yes. What ~ould)ou do? Cut a great s~nt~ncins, dom~_stic r~lations, bench trials) road through the law to get after the ¯ Common Sense ¯ W/llindness to Follow th~ Law Devil? Roper: 4. I~gal Skills I’d cut down eve9" law in England to Knowled9e.. Substantive, Procedural, Evidentiary ¯ Analysis do that! ¯ ~ritins ¯ Speech More: 5. Management Skills Oh? And when the last law was down, Docket Control ¯ Disposition Time ° R~quiHns Civility and the Devil turn round on you-- ¯ Pr~trialA4ana~ement ¯ THaIA4anadement where would you hide, Roper, the law ¯ Fac/litatins Settlement ¯ Alternative Disput~ R~solution (ADR) all being flat? This country’s planted thick ~th laws from coast to coast-- 6. Work Ethic man’s laws, not God’s--and f you Effort ¯ Efficiency ¯ Productivity cut them down (and you’re just the 7. Experience man to do it) d’you really think you Lesal ¯ Other ~elevant could stand upright in the ~nds that would blow then? Yes, I’d give the 8. Continuous Improvement Devil benefit of law,for my own safety’s Continuins L~sal Education ¯ Personal ¯ t~ana~Tem~nt sake. ¯ Judicial System

Well said, Sir Thomas. I would too. ¯ 9. Health

NEWS JOURNAL ¯ SEPTEMBER 2002 9 10 THE VIRGINIA BAR ASSOCIATION J ll-14, 2002-

FACING PAGE, CLOCKWISE: Dr. Elliot Engel, wearing a replica of the suit worn by Charles Dickens while touring America in 1842, entertained the banquet audience. "The Highway or lxlo Way: The 2002 Transportation Referenda" drew a capacity crowd for a spirited discussion of upcoming ballot issues. The Special Issues Committee’s well-attended general session focused on current areas of concern in education. Gov. Mark Warner and Atty. Gen. Jerry Kilgore brought greetings to banquet attendees. VBA Young Lawyers Division leaders gathered for a working breakfast to present their fall plans. Dr. James Kelly of the Virginia Historical Society spoke of "Thomas Jefferson: His Friends and Foes" to a packed room during the Legacy Series luncheon. VBA Business Law Section Chair David Greenberg listened as Randy Parks presented key points of the 2002 Virginia Business Trust Act. THIS PAGE, CLOCKWISE: Dexter Rumsey, recipient of the Walker Award of Merit, addressed the banquet audience (more, page 19). Panelists for "9/1 "i Today," led by Sen. John Warner (top right), flanked by images of the World Trade Center (center right), discussed legal ramifications of the terrorist attacks before an audience of more than 300. The Saturday luncheon drew a jovial crowd for burgers, dogs, barbecue and great tunes. Chef Albert Schnarwyler and his apprentice demonstrated culinary arts (and doable dishes) for VBA spouses and guests. Former Army Secretary and Congressman Jack Marsh was the guest of honor at the Saturday reception sponsored by LexisNexis.

NEWS JOURNAL ¯ SEPTEMBER 2002 11 LEGAL FOCUS/CIVIL LITIGATION Recovery of Lost Profits: An Improved Weapon in the War on Trade Secret Misappropriation m" ATTISON L. BARNES III AND CHARLES C. LEMLEY

A high-level executive abruptly departs disproportionate impact on high-tecb necessary, permits, and the Plaintiff, tmable from your client, a promising new* businesses. It will also explore Virginia’s to open his service station, sued [br lost venture, to exploit the company’s ~rade ne~v statute and forecast its impact on profits. On appeal, the Virginia Supreme secrets on her o~. You immediately these same companies, illustrating the Court set aside a jury’s award tbr lost advise the client to consider emergenQ, benefits and pitfalls of the new’ rule. profit damages on the grounds that the injunctive relief, but soon you discover court considered these damages to be that the |briner executive has already hit Brief History of New Business too speculative. ~4 the market vdth the production. The cat Rule in Virginia Relevance to High-Tech Companies is out of the bag, and your client is furious. What is an Unestablished Business? The new business rule has always been Despite the misappropriation of your The unestablished business definition particularly oppressive to innovative high- client’s corporate opportunities, you includes a much wider group of tech companies. The Internet’s remember the "new business rule" from enterprises than one may first suspect. exceptional growth exacerbates this ,v°ur legal training: a new or unestablished Besides a newly formed company yet to problem: business may not recover lost profits. engage in business, unestablished This difficulty exists to a greater Now,, however, a majoriV of states, businesses consist off (1) businesses that extent on t’he Internet, as it including most recently Virginia as of Jtdy have opened and operated for a short pertains to new businesses. It is 1, 2002,~ provide some relief to new period of time; (2) an existing business difficult to determine how many businesses by abandoning the new engaged in a new, prexfiously unexplored, people ~vill dsit the site per day business rule and permitting recovery of venture; or (3) a new branch of an exqsting and how many of those peopl~ lost profits upon proper proof.2 franchise] In the past, these COlnpanies would purchas’e something from The basic rationale behind the once- faced a greater degree of risk when those stores. This, coupled with prevalent "new’ business rule" was that embarking on a new venture in Virginia the worldwide presence makes it an a~vard of lost profits to an m~established as compared to other states as a result of even more difficult to gauge lost business is inequitable because any such the Virginia law exclusion of lost profits profits. ]~ esthnation is overly speculative.~ Today, recovery, s The new business rule’s dramatic the predominant vie,v is to permit Principal New Business Rule Cases in, pact on Internet startups is exemplified recover), for new or unestablished in Virginia bv an opinion by the Circuit Court for businesses, provided that the plaintiffs The new business rule in Virginia has tl~c City., of Mexandria in @arC_aft, L.C. v establish their damages to a "reasonable long prevented lost profits recover’ for America Online, Inc. ~" There, the plaintiff certainty.’’4 Although Virginia’s new unestablished businesses.9 In Mullen v. was a startup company that contracted statute brings the Commonwealth in line Brantley,1° the Virginia Supreme Court with AOL to prm4de advertising and with the current law of a majority’ of prohibited recovery for a plaintiff w’ho online seMces for its new business states, a plaintiff attempting to obtain an established both the existence of a venture. AOL allegedly breached its award of lost-profit damages must still contract and its subsequent unlaw£ul agreement B~th the plaintiff shortly after elicit "proper prooP’s to establish that repudiation. 11 The court stated, "[w]here the new business venture began lost profits are not "uncertain, speculative, a new business or enterprise is involved operations. The court granted sm~maary or remote.’’~ This standaM of proof may ... [profits depend on] too many... judgment in favor of the defendant, ruling be insurmotmtable for many high-tech contingencies to furnish a safeguard" in that the new business rule prohibited the companies, as the pioneering nature of fixing the measure of damages.’’12 In plaintiff from recove~g damages fbr lost many of these companies--including Pennsylvania State Shopping Plazas, Inc. v. profits, despite the fact that the plaintiff Internet start-ups, software Olive,~ the Virginia Supreme Court also presented profit projections prepared in manufacturers, etc.--prevents a refused recovery of lost profits damages. consultation w~th and approved byAOL ~v reasonable basis from which a plaintiff There, the Plaintiff sold the ddbndant, a ka~v innovative business, by definition, may establish lost profits. Nevertheless, shopping center, a parcel of land on which has no past earnings bistorv from which a the new statute will have consequences the Defendant promised to construct a court can estinaate ~ost profits. for all involved. shopping center for its ovm use and a Consequently, upon the introduction of This Article will inu’oduce the "new" service station for Plaintiff. The Defendant new’, potentially" profitable ventures, high- business rule" in Virginia and its subsequently failed to obtain the land or tech companies would forego any chance

12 THE VIRGINIA BAR ASSOCIATION of recovering profits lost to unscrupulous direction, however, may be found in case other than the new venture; (2) similarity competitors, partners, and others. law from other states that have abandoned to other business ventures; and (3) expert the new business rule, and in Virginia testimony. New Statute cases interpreting the phrase under other Prior Successful Experience in a Inequities of the New Business Rule circumstances. In Clark v. Scott,26 the Business other than the New Venture Two years ago, the Virginia Supreme Virginia Supreme Court offered plaintiffs In those states operating without the Court seemed to recognize the inequity some direction by stating ~vhat is not "new business" rule, many courts have of the old rule without abandoning it. In required--mathematical precisionflv applied a standard of recovery similar to Lockheed Information Mgt. Syx. Co. v. Maximus, Courts require the plaintiff to put forth that used under the new business rule.33 Inc.,~s the court found that the lower their "best available proof," as lost profits In Kids’ Universe, the California Appellate court did not err in permitting recovery damages are not capable of exact Division denied lost profits damages to a of lost profits for a plaintifPs unestablished measurement; assuming compliance, a high-tech business owner suing over the business while still proclaiming to follow court should permit recoveryY failure of an Internet start up project. the new business rule.~9 The court Defendants may claim that the new The plaintiff in Kids’ Universe was an early distinguished this situation from other rule is unfair to them in that it would developer of retail websites for children’s new business rule cases on the grounds permit recovery of lost profits that are toys who had negotiated a placement that the plaintifPs evidence of previous speculative or difficult to measure. Courts, contract with a high traffic Internet service success in nearly identical ventures, however, have rejected such arguments provider. Following these preparatory coupled with the intentional nature of on the grounds that "It]he wrongdoer actions, the defendants accidentally the defendant’s i~ctions, offered sufficient has created the problem.., therefore, he flooded the plaintifPs store, effectively evidence to allow a reasonable estimate cannot now complain that the damages preventing the launch of its website. After of the plaintifPs lost profits.2° Echoing cannot be measured exactly.’’29 the plaintiff completed the necessary the equitable reasons that compelled other What this Means for the Parties repairs, a significant amount of time had states to abandon the new business rule The requirement of "best available passed and it was unable to consummate as an absolute bar to recovery of lost proof," is a double-edged sword,s° its pre-existing plans. profits, the court stated that such an Plaintiffs may recover lost profits damages Despite the court’s statement that the absolute bar would permit "anybody... so long as they produce the best evidence defendant may not object to the [to] lie, cheat, and steal to deprive any of lost profits available. Defendants, uncertainty of lost profits, "as he made it ne~v business . . . ~vith complete civil conversely, may also use this evidentiary impossible [for their realiTation],’’s4 the impunity.’’2~ The new business rule was requirement to their advantage. If a court denied damages as being too beginning to lose its teeth. defendant convinces a court that superior speculative. This result is particularly The new business rule has given way, evidence exists, ~vhich the plaintiff failed worrisome for high-tech unestablished in many states, to a rule permitting to present, a court may deny recovery.3~ business plaintiffs -- and conversely unestablished businesses to recover lost Not all jurisdictions, however, follow comforting for defendants -- because profits damages. This reasoning has led this "best available proog’ standard. the court observed that this was a well- to the establishment of a majority rule Virginia courts may well follow courts organized plaintiff. The court drew permitting unestablished businesses lost that have rejected that standard of proof inferences that the plaintiff’s site was profits recovery when plaintiffs prove for a new business’s lost profits in favor "state-of-the-art," placed on "highly damages to a "reasonable certainty.’’22 of evidence that permits a "reasonable trafficked" web sites likely allowing it to New Statute basis for computation of damages," attract a "very high number of wealthy Absent an expression of purpose in regardless of whether it is the best (or potential customers," and prepared to legislative history, one can only speculate only) evidence available,s~ The General meet a high number of orders,ss that the General Assembly reacted to Assembly provided no guidance on the Nevertheless, the court refused to award calls of inequity)3 With the exception of issue of "proper proof." See Va. Code {} damages as the plaintiff had never a specific exclusion prohibiting recovery 8.02-221.1. operated his website as a "profit making in a wrongful death or personal injury New Law Applied venture.’’36 action other than defamation,~4 Virginia’s to High-Tech Businesses Why did the court deny lost profits for recent amendment permits the recovery such a promising new business? The court Unestablished Business Damages of lost profits for unestablished businesses emphasized the fact that the "market in High-Tech Cases upon proper proof. The legislature [defendant was operating in].., was not At the time this article was written, apparently was, as were the courts of an established one."3v It ignored the profit Virginia courts had yet to apply the new other jurisdictions, substituting a more record of the plaintiffs physical toy store, statute (effective July 1, 2002) to a case equitable evidentiary standard for a apparently on the grounds that an involving a high-tech company seeking complete prohibition on recoveryfls extrapolation of profitability would be lost profits. A review of cases from other The Recovery Standard: much too uncertain.3s Kids’ Universe jurisdictions provides a helpful guide. In Proof to a Reasonable Certainty demonstrates that a difficult burden those cases, high-tech startups have The phrase "reasonable certainty" is remains for a plaintiff seeking lost profits succeeded in recovering lost profits an amorphous standard that provides little damages for a new business even in the primarily through three types of evidence: to no guidance for practitioners. Some absence of the new business rule. In order (1) prior successful experience in business

NE-WS JOURNAL . SEPTEMBER 2002 13 narrowly enough on products similar to Charles C. Lemley is an associate in Wiley Rein & Fielding’s Washington, D.C., office and a member of the firm’s Employment & Labor, Health Care and his 0~.*4 Litigation Practices. He provides litigation and counseling solutions to clients on Both Milex and Morgan demonstrate matters related to labor arbitration, employment discrimination and commercial that in order tbr plaintiffs to succeed on a disputes, and has significant experience in highly complex product liability similar business claim, they must show litigation. A member of the District of Columbia and Florida bars, Mr. Lemley that the unestablished business is the near received his B.A. degree summ~ cure/~uo’e from the University of North Florida equivalent to other operating companies. and his J.D. degree m~o~ c~m/~uo’e from the Georgetown University Law Center. He is an adjunct professor at the George Mason University School of A defendant, alternatively, can rebut such Law, and also coached the school’s undefeated mock trial team in national claims by pointing out inconsistencies in competition. Attison L. Barnes III is a partner in Wiley Rein F~ Fielding’s Washington, the plaintifPs analog?.’. D.C., office and a member of the firm’s Employment & Labor, Intellectual Property, Expert Testimony and Litigation Practices. Among other things, Mr. Barnes counsels companies who Both plaintiffs and defendants can seek to protect intellectual property rights and trade secrets from former employees utilize expert testimony to prove the past and other entities. A member of the District of Columbia and Virginia bars, Mr. Barnes is a graduate of the University of Virginia and the T.C. Williams School of Law, profitability, of the plaintiff’s business, the where he serves on the board of the Law School Association. A Iongtime VBA similarities to other businesses, and the volunteer and the recipient of the 1996 Emerson J. Spies Award and the 1999 likelihood of future profitability. Fellows Award, he currently serves on the VBA Civil Litigation Section Council. Accordingly, expert testimony can be critical to the success of an action tbr an unestablished business’s lost profit to prevail on such a claim, the plaintiff Similarity to Other Businesses damages.4~ In DSC, Ibr example, the court must give the court some reasonable basis In Milex Products, Inc. v. ALRA Labs, upheld a damages award based upon a from which it may estimate dana,ages. Inc. ,4~ the plaintiff; a drug company, sued complex model estimating the plaintiff’s DSC v. Next Level~ illustrates such a defendants for breach of contract -- lost profits. The model relied upon reasonable basis. In DSC, the dd~ndants, ~hiling to manuihc~ure their new drug. estimates of what the plaintiIPs market founders of Next Level, were DSC The defendant previously represented to share ~xx)uld have been had the defendants employees that developed a new type of the plaintiffs that it would be able to not formed their own company as communications technology. The manufacture up to two million of the compared to what that market share defendants left DSC and ibrmed their plaintifPs pills. Only later, when the would be in light of the new company’s own corporation, Next Level, foCusing plaintiffs requested that the defendant existence, all Jar a pn)dua market that had on the continued development of their begin production, did the defimdant state not even been established.4~ The court upheld ne~v technology. DSC sued the that it would be tunable to do so. As a the damages model because it was defendants for breach of contract, result of this delay, the plaintiff; sued "adequately supported" by "data ohtained diversion of corporate opportunity’, and lost profits follo~ving from interruption from respected sources in the misappropriation of trade secrets, seeking of an existing business. telecommunications market.’’4~ This damages tbr lost profits it ~vould have In its holding, the court uoted that expert testimony, would have been earned from the new business ~nture. Illinois law does not proscribe an awaM properly excluded under Virginia’s Ibmaer The court disa~-eed ~th the ar~ment of damages to a new business as long as it new business rule.4s that the "ne~ess" of the technolog?’ led is able to establish lost profits to a to speculative, uncertain damages. In reasonable certainty. The court concluded Conclusion rejecting these challenges, the court took that lost profits ~vere ascertainable here, Virginia law is now inore amenable notice off (1) the early success of the new as the product market was already to a claim for profits lost to former technology; (2) the histo~’ -- past established -- despite the newness of employees misappropriating trade profitabiliv -- of DSC; and (3) the the product -- aud awarded damages. secrets, as well as other situations intensive market research plaintif|; Morgan v. Microsoft,42 also illustrates invoMng unestablished businesses. The presented, suggesting the future what is necessary to succeed on a "simil~ new law still imposes a hea~), evidentiary profitability" of the technology,g° Based to other businesses" claim. In Morgan, burden on the plaintiff in such a case, on these three factors, the court affinncd the court denied recovery on the plaintiff’s but has lifted the absolute bar to the trial court’s lost profits award. tortious interference claim as the plaintiff; recover~-. The secret to success on such DSC demonstrates that courts may look a so’rare manufac~xtrer, failed to establish a claim is to focus on exfdence that beyond the uncertainty surrounding a lost profits to a "reasonable certainty." reduces the speculation in the damages future market, especially where a The court stated that Washin~on faw equation, specifically evidence of prior successthl existing business seeks lost does not prohibit recovery for success in business, success of similar profits related to a new business venture. unestablished businesses, and e~;idence businesses, and expert testimony. Cotmsel should tbcus on evidence of past of "’identical or similar businesses’... supported bv reliable data from profitability and avoid the uncertainties operating under ’substantially the same respected sources. With the right prompted in Kids’ Unirerse where the conditions," provides a method by which evidence, solid lost profit awards can plaintiff was askhag the court to estimate a court can make a reasonable estimation be obtained even Mth respect to new not only the profitability of the website, of an appropriate award.4~ The court then business ventures that never got off the but also the profits that a possible IPO denied plaintitPs attempt at recover’ ground. ~1, woukt produce. because his evidence was not focuse~l

14 THE VIRGINIA BAR ASSOCIATION (although not impossible) for a plaintiff business 4 (quoting Commercial Business Sys., Inc. v. 1. Va.Code Ann. §8.01-221.1 (2002) ("Damages to prove lost profits with reasonable certainty."). BellSouth Sen/., Inc., 249 Va.39, 49-50 (1995)). for lost profits of a new or unestablished business 16. 50 Va.Cir. 146 (Alex.Cir.Ct. 1999). 28. Dunn, supra note 7, at 388. may be recoverable upon proper proof. A 17. Conversely, in Interactive Return Service v. £9. Id. at 385; see also Story Parchment Co. v. party shall not be deemed to have failed to Virginia Polytechnic Inst., 5£ Va.Cir. 161 Paterson Parchment Paper Co., £8£ U.S. 555, prove lost profits because the new or (Richmond Cir. Ct. 2000), the court refused to 563 (1931) C[I]t would be a perversioh of unestablished business has no history of profits. grant the defendant summary judgment based fundamental principles of justice to deny all relief Such damages for a new or unestablished upon the new business rule despite the fact that to the injured person, and thereby relieve the business shall not be recoverable in wrongful any lost profits would have arisen out of an wrongdoer from making any amend for his act .... death or personal injury actions other than actions invention that was never even developed or The wrongdoer is not entitled to complain that for defamation.") specifically contemplated. This ruling was hardly they cannot be measured with the exacthess 2. John P. Fishwick Jr., ’~irginia’s New Business a resounding rejection of the new business rule; and precision that would be possible if the Rule: Time for a Change," The Journal of ~he rather, it simply relied upon Loc~eedlnformat~on case, which he alone is responsible for making, Virginia Trial Lawyers Associabbn, Spring 2001, M~t. Sys. Co. v. Maximus, Inc., 259 Va. 92 (2000), were othe~Mse.") at8, 12. for the proposition that the new business rule 30. Dunn, supra note 7, at 389. 3. Pennsylvania 5tare Shopping Plazas, Inc. v. was not absolute, and permitted the plaintiff to 31. See/vlartin Motor ,Sales, Inc. v. Saab-Scania Olive, 202 Va. 862, 869 (1961). present its evidence at trial. of Ame~, Inc., 45£ F.Supp 1047, 1053 (S.D.N.Y. 4. Howard O. Hunter, Modern Law of Contracts, 18. 259 Va. at 110. 1978) (denying profits because the plaintiff did §14.21 (revised ed. 1993). 19. Id. at 108-10. not present probative evidence that was readily 5. Va.Code Ann. §8.01-221.1. 20. Defendants sued prior to the effective date available at little to no cost); S.C Anderson, Inc. 6. Walter D. Kelley Jr., "Recovery of Lost Profits in of § 8.01-221.1 should not be overly concerned v. Bank of Amer., 24 CalApp.4th 5£9, 5£8 Virginia," Litiga#on News, Vol. IV, No. 3 at 3 with Lockheed, the facts of that case were ( 1994); Oyster Creek financial Corp. v. IO~hwood (1997) (citations omitted). exceptional and courts are likely to confine its. Inv. II, Inc, 957 S.W.2d 640, 649 (Tex.App. 7. Robert L Dunn, Recovery of Damages for Lost holding to its facts. 1997). Profits §§ 4.6-4.13 (5th ed. 1998); see also 21. Lockheed, 259 Va. at 109; see also Central 3 £. See Dunn, supra note 7, at 390 (citing Graphic CigarCafe, L.C v. America Online, Inc., 50 Va.Cir. Telecomm., Inc. v. TCI Cablevision, Inc., 800 F. Directions, Inc. v. Bush, 86£ P.2d 1020 146, 160 (Alex. Cir. Ct. 1999) (Virginia new £d 711, 7£9 (8th Cir. 1986) (stating that a court’s (Colo.App.1993) (disapproving of the "best business rule encompasses businesses not yet refusal to award lost profit damages to an available evidence" standard and requirinf a in operation and those operating only a short unestablished business would "immunize a contrary level of proof). time). defendant from the consequences of his unlawful 33. See, e.g., Kids’ Universe v. IngLabs, 95 8. Virginia courts often avoided the new business acts.") (citations omitted). CaLApp.4th 870 (£002). rule by being slow to characterize a venture as a ££. See Fera v. Village Plaza, Inc., 396 Mich. 639 34. Id at 884. "new business." See, e.g., Baden v. Opbknum (1976); Cifone v. City of Poughkeepsie, 650 35./d. at 886. Choice, Inc. 38 Va.Cir. 239, 246 (Fairfax Cir. Ct. N.Y.S. £d 797 (App.Div. 1996); Texas Instruments, 36. Id. at 887. 1995) (discussing reluctance of Virginia courts Inc. v. Teletron Energy Mgt., Inc., 877 S.W.£d 37. Id to identi6/ventures as new businesses for these 276 (Tex. 1994); Restatement (Second) of 38. See id. at 887 (discussing its hesitation to purposes). Contracts §35£, cmt. a (1981); UCC §£-708, estimate damages as the website was too 9. The new business rule retained its validity in cmt. 2 ("It is not necessary to recovery of ’profit’ dissimilar to plaintiff’s physical store); see also Virginia to the end. Just last year, the Fourth to show a history of eamings, esp~cialiy ifa new Texas Instruments, Inc. v. Teletron, Inc., 877 Circuit upheld the district court’s decision to venture is involved.") (emphasis added); S.W.£d £76, 280-81 (Tex.1994) (refusing to exclude expert testimony of lost profits for a Recovery of Anticipated Lost Profits of New award damages to a plaintiff suing a defendant new golf course venture based upon the new Business: Post-lg65 Cases, 55 A.LR. 4th 507 that was unable to produce a microprocessor business rule. Pertyv. 5cru~gs, 2001 WL 929873 (1987) (discussing the many state courts refusing necessary for plaintiff’s state-of-the-art thermostat. at *4 (4th Cir. 2001). to follow the n~v business rule). In Texas Instruments, the defendant made several 10. 213 Va. 765 (1973). £3. See Fishwick, supra note £. attempts at producing the necessary har,,cM,are, 11. The court rejected recovery despite strong £4. Va.Code Ann. § 8.01-£21.1. finally gMng up after two years of failure. The evidence of the new pizza parlor’s potential for £5. An unestablished business may pursue lost court distinguished precedent permitting profit -- the plaintiff offered evidence of average profits under either tort or contract theories. The recovery with a new product, noting that here profits for this pizza franchise and profits of standard of proof under either avenue is the market was completely "unestablished" and, several franchises in the vicinity. Mullen, 213 Va. essentially the same. When evaluating a lost profits more importantly, the product never existed.); at 768. Moreover, the plaintiff owned some of contract claim for an existing business, the Virginia Resort Video, Ltd. v. Laser Video, 35 CalApp.4th the other franchises and had a track record of Supreme Court stated that recovery will be 1679, 1698 (1995) (noting that there may be an running them successfully./d permitted so long as lost profits can be award if the "owners have experience in the 12. Id. at 768 (citing Pennsylvania State Shopping ascertained to a "reasonable certainty." Bo99s v. business they are seeking to establish, and where Plazas, Inc. v. Olive, 202 Va. 862 (1961)). See Duncan, 202 Va. 877, 883 (1961). Virginia courts the business is in an established market."). also duPont Co. v. Univ. Moulded Prod., 191 Va. have applied a similar standard in tort cases. 39. 107 F.3d 3££ (Sth Cir. 1997). 5£5, 573 (1950); Whitehead v. Cap~ Henry Kelley, supra note 6, at 3 ("In Virginia, loss of 40./d. at 3£9. Syndicate, 111 Va., 193, 197 (1910); Sinclair future profits proximately caused by wrongful 41.3£7 IllApp.3d 177 (1992). Refining Co. v. Hamilton &’ Dotson, 164 Va. £03, conduct.., may be recovered from a tort feasor, 42. 2001 WL 78758 (Wash.App.Div. July 9, 211 (1935)). provided the lost profits are capable of 2001). 13. 202 Va. 862 (1961). reasonable ascertainment and are not uncertain, 43. Id. at #4. 14. Id. at 870. speculative or remote.") (citing Hop In Food 44. Id. at #5. 15. Morgan Stewart, "Commercial Access Stores, Inc. v. Sen/e-N-Save, Inc., 247 Va. 187, 45. See DSC v. Next Level, 107 F.3d at 329 Contracts and the Intemet: Does the Uniform 190(1994)); see also Lockheed, 259 Va. at 110 (permitting recovery in part because of the Computer Information Transactions Act Clear the (addressing the defendant’s argument that plaintiff’s expert testimony); see also Resort Video, Air with Regard to UabililJes when an Online awarding lost profits to the plaintiff would be 35 CalApp.4th at 1699 (refusing re(~overy in Access System Fails?" 27 Pepp.L.Rev. 597, 611 too speculative without mentioning any part because of plaintiffs lack of substantive (2000) (citation omitted); see also distinction between the plaintiff’s theories of market research). Skywizard.com LLC v. Computer Personalities recovery, tortious interference, and other 46. DSC, 107 F.3d at 329. Sys., Inc., £000 WL 1186263, at *3 n.2. (DMe. contract claims). 47. Id. at 330. £000) ("The sheer newness of the enterprise is a 26. 258 Va. 296 (1999). 48. See Pertyv. Scruggs, 2001 WL 929873, at *4 factor that has been observed to make it difficult 27. Id. at 303; see also Kelley, supra note 6, at 3- (4th Cir. 2001).

NEWS JOURNAL ¯ SEPTEMBER!2002 15 YOUNG LAWYERS D wS ON Voluntea + Programs Reaching i ore Peopl BY VAUGHAN GIBSON AARONSON

Late smnmer conjures up images of to young people as they obtain their many things -- dwindling beach days, driver’s licenses. the approach of Labor Day weekend, the The list goes on and on. Again, the start of school -- but to the VBA Young more volunteers, the more people Lawyers Division, it also marks the halt~,ay reached~ point of our year. Since the "official" bar In addition to these ongoing projects, year began in January, our many ¯ e VB~LD has been wor~g this year volunteers have worked hard in thei; on a number of new initiaO~s aimed at dedication to ongoing VBA/YLD projects helphg vi~ms of child abuse, oflbfing and new initiatives through donating pm bono legal services to nonprofit countless volunteer hours to our bar and organizations, assisting working parents our con~’nunities. Yet just because we in finding suitable child care, and are in the middle of our bar year does not providing ~idance to first-year a~ornevs mean that we don’t need new |hces and as thev m&c ~e adjusm~en{ t?om student new energy. Our committees and projects to practicing la~s’er.. You will hear more are in constant need of additional about these excifiug new proKams in ~e assistance. It is simple: the more coming monks. volunteers we have, the more people we One project which we are "rolling can help. immigrants’ rights; out" right now, however, is our Special So as surruner ends and f3Jl approaches, ¯ Our Lawyers for the Arts Committee Mucation Handboob. This proje;t began I encourage you to think of the new’ is seeking w)lunteers to staff clinics where during the term of my predecessor David "school year" as a new opportunity, to get artists can obtain legal advice on a number Antony and Commi~ee Chair Mhley involved. Our many ongoing projects of issues; Taylor has been collaboraOng wi~ ~e provide endless opportunities to serve. ¯ Our Mentor Programs are in search ARomey General’s office over ~e past For exan~ple: of volunteers to work with at-risk |burth- year to produce ~is convenient handbook ¯ Our Pro Bono Hotlines all over the and fifth-graders in public schools in that summarizes Virginia’s special state are always looking for new Richmond, Roanoke and ~’nchburg; education procedural sat~guard volunteers; ¯ Our National Moot Court requirements. This handbook x~ be an ¯ Our Domestic Violence Projects in Committee is in the mklst of plam~h~g ~valuable reso~ce tbr paren~ ofchikken Northern Virginia and Richmond are in this year’s competition and has put out a needing special education in that it need of additional attorneys to represent call for vokmteer judges; and explains what educa~onal sen’ices are victims; ¯ Our DMV Projects in Richmond and available to them and how to access ~ose ¯ Immigration attorneys are needed Roanoke are looking for attorneys to work se~@es. If you or someone you know has to help produce a handbook on with local judges to present brief programs a child with special needs, I strongly recommend you obtain a copy. They are available ~rough the ~A office and we More about the VBA/YLD Sp ial Education Handbook welcome your ideas for dis~bufing ~em to organi~tions and indMduals ~at can Virginia’s special education procedural safeguard requirements. It includes a benefit from this handbook. discussion of, among other things, the due process procedures designed to For a complete list of our VB~D protect both parents and students, IDEA disciplinary procedures and confidentiality projects and se~ce oppo~nities, please concerns. The Handbook is a useful tool to assist parents in understanding what v~sit ~e Division’s page on ~e VBA services are available and how to access those services. While there are several website at ~w.vba.org or contact Re~na publications on this topic, many are not user-friendly and can be intimidating, Moss, our s~ff liaison, at (804) 644- particularly for a family that is unfamilar with the process. The Handbook is the 0041 or me direly at (804) 697-1316. product of the volunteer efforts of lawyers across the Commonwealth, most of We need vou~ @ whom have had some degree of personal involvement with the special education Nominations are sought for VBA/YLD services offered in Virginia. Copies can be obtained by contacting Regina Moss at leadership positions in the ~003 bar year. the VBA office, (804) 644-0041, or the Virginia Department of Education at (804) For d~ails, pleas~ turn to page ~0 of 225-2020. --Ashley Taylor, VBA/YLD Special Education Handbook Chair this issue or visit the VBA/YLD w~,b page.

16 THE VIRGINIA BAR ASSOCIATION Today’s successful law firm has to be client-focused, organized and efficient in order to compete and be profitable. All that takes good management. The key to improving your practice and achieving your goals is to find resources you can trust containing information you can use. That can sometimes be difficult, but The Virginia Bar Association Law Practice Management Division is dedicated to bringing lawyers flesh ideas, new perspectives and creative ways to manage every aspect of your practice. The VBA Law Practice Management Division has established an agreement with the American Bar A~sociation to sell ABA books to all members of the VBA/LPMD -- that is, all members of The Virginia Bar Association -- at a 20 p~rcent discoun~ You will be able to go to the VBA website at www.Coa.org, click on a link to the Book Program (www.Coa.org/books.htm), peruse a list of available books with pricing information, and print out an order form to send to the VBA office with your payment. Other arrangements will be offered to VBA members who do not have Internet access. The Book Program will be promoted in VBA publications, our website and at our meetings. These books will provide you with everything you need to compete in today’s legal world. Whether you are looking for information on technology, marketing or management -- or books on a specific area of practice -- there will be something for you. And think of the money you’ll save!

The°nthe InternetvBAat www.vba.org.BoOkOn the phoneprogramat(804) 644.0041. ~La~me,~! Sponsored by the Law Practice Mana.qement Division of The Vicqinia Bar Association

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NEWS JOURNAL ¯ SEPTEMBER 2002 17 ACROSS THE COMMOI’ /EALTH

New VBA ffroup VBA Labor Relations 6, Employment Law formin for arts, Conference meets at Kingsmill this month entertainment The 32nd Annual Conference on ¯ "Putting on the White Hat: Tips for Fulfilling sports lawyers Labor Relations mad Emplopnent Law, the State Bar’s New Pro Bono Publico sponsored by the VBA Labor Relations Requirements and Avoiding Positional The Virginia Bar Association is and Employment Law Section, will be Conflicts with Billable Clients"; determining interest within the general heht September 27-28, 2002, at ¯ "The ABCs of H-’I Bs--What Employment membership in establishing a new Kingsmill on the James in Williamsbu~. Lawyers Need to Know about Immigration Enforcement After 9/11 "; group on arts, entertainment and The conference ,vill begin w~th a full ¯ "Successful Tips for Negotiating Executive sports law. The group’s broad missiou clay of CLE programs on Friday, Ibllowed would be to provide a forum for VBA Employment and Stock Option by an evening reception. Attendees xvill Agreements and Handling the Litigation members to explore legislative, legal reconvene Saturday morning |br more that Often Follows"; and business issues which relate to the CLE programs and adjourn at midday. ¯ "Home Cooking: Trends in the Fourth arts, entertainment, sports and media Nine hours of CLE credit, including 1 Circuit, Virginia Supreme Court, and Federal fields whether commercial or Ethics credit, will be available to District Courts in Virginia"; nonprofit, amateur or professional. cont~rence participants. ¯ "Virginia Point and Counterpoint-- 2002: If your practice or interests include The conference will feature the Friendly Adversaries Exchange Fire on representation of clients in such fiekls following program topics: Current Litigation Strategies"; as ~4sual or perforlning arts, music, ¯ "What’s Next: Hot Issues in Employment ¯ "Dealing with the Incumbent Plaintiff: A media and broadcasting, cultural Law on the Supreme Court’s Docket for Case Study in Keeping the Peace at Work activities, entertainment and sports, the 2002-03 Term"; While Doing Battle in Court"; you may be interested in joining this ¯ "Does Virginia Need a Whistleblower ¯ "Legislative Developments in Virginia: Bounty Hunters and Whistleblowers Under group. Protection Act? The General Assembly the ’Fraud Against Taxpayers Act’ and If you would like to participate in Wants to Know, and the Bar Struggles with the Legal and Public Policy Issues"; Other Assorted Suspects"; and the new group as a member or leader, ¯ "Use and Abuse of Statistics in ¯ "Reading the Tea Leaves: Practical please contact one of the following Employment Litigation: An Expert Considerations for Plaintiff and Defense Steering Committee members: Statistician’s Tutorial on Developing and Counsel in Investigating and Evaluating Jim Meath, (804) 783-6412, Using Statistical Evidence to Your Client’s Employment Claims." [email protected]; Advantage"; A full list of conference speakers, ]eft Cohen, (703) 24~-63~3, ¯ "Choosing Your Battles: Effective including Prof. Samuel Estreicher of [email protected]; Appellate Advocacy and the Role of New York Llniversity, Virginia Victor Cardwell, (540) 983- Amicus Curiae"; Lieutenant Governor Tim Kaine, Hon. 7529, [email protected]; ¯ "Pay Equity: Detecting, Correcting and Diana Gribbon Mo> of the LI.S. Court Philip Goodpasture, (804) 697- Defending Compensation Disparities"; of Appeals fbr the Fourth Circuit, Chief ¯ "Waiting for the ’Bush Board’: Prospects 4117, [email protected], or Judge Aline B. Holtou of the Richmond and Advocacy at the NLRB"; Breck Arrington at the VBA ()trice, Juvenile & Domestic Relations Court, ¯ "How Disabled Has the ADA Become? (804) 644-0041, [email protected]. Practice Pointers and Litigation Strategies Dr. Joan Haworth of Economic Rese~ch Watch for more details! in Light of Recent ADA Developments"; Services, former National Labor Relations Board member J. Robert Brame, and a host of other well-known Two VBA will fill new ommi e spots and haowledgeable figures in labor and Two VBA members have been nominated by VBA President Ed Betts to fill enaployment law, is available on the newly created positions on the Joint Continuing Legal Education Comm,ttee in Section’s activities page on the VBA the 2002-03 year. website, along ~vith regisl~ation details. Aubrey J. Rosser Jr. of Altavista and E. Ford Stephens (Christian f~ Barton LLP) Anne Gordon Greever of Rictunond, of Richmond have been nominated for initial and renewable one-year terms a partner in the law firm of Hunton & on the Joint CLE Committee expiring in June 2003. Williams, chairs the VBA Labor Relatio~s They will join fellow VBA representatives J. Lee E. Osbome of Roanoke and Emplo.~nent La~v Section. (Carter, Brown & Osborne, PC), Elaine R. Jordan of Richmond (Sands, Anderson, Hotel reservations should be made Marks & Miller), Nell S. Lowenstein of Norfolk (Vandeventer Black LLP), Paul B. Terpak of Fairfax (Blankingship F~ Keith PC) and VBA/YLD representative Valerie direc~v \\4th Kingsmill on the James at W. Long of Charlottesville (McGuireWoods LLP)o 1-800-832-5665.

18 THE VIRGINIA BAR ASSOCIATION Capital Defense October onferm e details announced by VBA Workshop planned The ~ Corporate Counsel Section’s Annual Fall Forum wil be held on for Novembe 21-22 October 10 at The Jefferson Hotel in Richmond. The one-day event will be similar to previous forums, with prominent speakers, opportunities for neNvorking The 10th Annual Capital Det;ense and discussion, and a focus on current issues in corporate law. Workshop will be held November 21 - On October 25, the VBA Taxation Section will convene its annual ~r~inia 22 at the Richmond Marriott. The Tax Practitioners’ Roundtable at Farmington in Charlottesville, featuring current program is sponsored by the VBA interests of tax practitioners in the Commonwealth during the half-day program. Criminal Law Section and financially Both meetings will offer continuing legal education credit to attendees. assisted by. the Virginia Law Schedules and registration information for both events, under final discussion Foundation. at press time, will be mailed to members of the respective sections and will be Because of changes made to the posted on the VBA website at www.vba.org. standards tbr attorneys in capital cases as of January 1,2002,’the workshop x~ll again provide the necessary tbrensic Lawyers Helpins Lawyers Conference trahaing to comply x~th the re~luirements of § 19.2-163.8 of the Vir~nia Code. will September 27-28 in Richmond The application of Ring v Ariama, decided "Join the Voices of Recovery.’... Networ "k/Impaired Practitioners June 24, 2002, in Virginia will be Calling the Imgal Profession to Action" Pro~am of Florida, whose subject will discussed. There xx~ll also be a session will be the theme of the biennial be "Looking at the Big Picture: on the effects ofAtkins v. Virginia, decided kawy’ers Helping ka~3’ers Conference, hnproving the Prognosis fbr Recow~ry." June 20, 2002, in which the Supreme Sep]~ember 27-28 at the Omni Other speakers scheduled to appear Court barred execution of the mentally Richmond. The theme echoes that during the conference are Hon. Harry.. retarded. National Recovery Month, \vhich is L. Carrico, chief justice of Vir~nia; Dr. The Workshop Committee is in the observed during S’eptelnber. Jitendra Desai, presklent of Avenues to process of assembling an outstanding Kew~ote speakers will include GaU Recovery, Inc., of Roanoke; Dr. Peter program u~th excellent presenters, and A. T~nnis, chief of le~slation tbr the R. Coleman of Commonwealth it ~s~ll be offered with only a nominal Philadelphia district attorney’s otflce, Addiction Treatment Center in charge for attorneys, wb’o agree to who ~11 present "A ’L3w and Order’ Richmond; LHL Program Director accept appointment in capital cases. Prosecutor’s Case for Drug and Alcohol Susan D. Pauley; and 96-year-old James Brochures xx411 be mailed later this fall Treatment: A Wake-Up Call tbr the Houck, known as the "great life and the schedule and registration Legal Profession" on Friday morning, changer," who is the only living person details ~xdll be posted on ~xax3v.vba.org and Dr. Ra.vmond M. Potato, medical who has firsthand h3owledge of the as soon as they are available. director for the Physicians RecoveU material used by Bill W. and others to w~ite the book f~Jcoholics Anon)rnou~. In addition to informative sessions, Dexter Rumsey receives Walker Award the conference will feature a luncheon, social and banquet on Friday and Dexter C. Rumsey III of Irvington, a has served as a member of the VBA exhibits and networking opportunities partner in the law firm of Rumsey and Executive Committee from 1994 to Bugg, received the VBA’s Walker 1997, and as VBA Secretary in 1996- throughout the event. Award of Merit on July 12 during the 97. He has served on the VBA Wills, L~’ers Helping Ua~ers pro~des l"12th VBA Summer Meeting at The Trusts and Estates Section Council and confidential, non-disciplina7 assistance Homestead in Hot Springs. its legislative committee. to members of ~e legal prolbssion h~ The Walker Award is named in honor Since 1997, he has chaired the Vir~nia who experience professional of the late John L. Walker Sr., and John L. Virginia Law Foundation Joint impairnaent as a result of substance Walker Jr., both former VBA presidents Continuing Legal Education Committee, abuse. La~D,ers Helping La~Ters is and Roanoke residents, and is presented on which he has served for more than administered by the ~A and endorsed in recognition and appreciation of a decade as a VBA representative. He by ~e Vir~nia State Bar. Policies and exceptional leadership within the is a Fellow of the Virginia Law ~idelines are established by ~e ~A organized bar and the VBA in particular. Foundation and has served as Substance Abuse Commi~ee. Born in Charleston, S.C., Rumsey is a president of the Northern Neck Bar graduate of the University of North Association, chaired the Virginia State Charles G. Meyer III of Richmond, a Carolina and the University of Virginia Bar Trusts and Estates Section and pa~ner in the law firm of ~Clair Ryan School of I_aw. He served in the U.S. been elected to membership in the PC, chairs %e VBA Substance Abuse Marine Corps (1964-68), achieving the American College of Trust and Estate Commi~ee. rank of Captain. Counsel, among other professional and More details are available at Rumseyjoined the VBA in 1974. He civic activities. ~wba.or~.hma.

NEWS JOURNAL . SEPTEMBER 2002 19 Heather Mercer (right), one of the two American aid workers During the recent ABA Awards of Achievement presentation in Afghanistan who were imprisoned by the Taliban for at the ABA Young Lawyers Division Annual Meeting in several months in 2001, shared Washington, D.C., the VBA Young Lawyers DMsion received her story at a luncheon a first place for Service to the Bar, for its program on lifestyle sponsored byTroutman Sanders balance, co-sponsored wi~ the VBA Professionalism Working LLP at Richmond’s Boiling Haxall Groups at the 2002 VBAAnnual Meeting; a second place for House on .July 23. Her uncle, Se~ce to the Public, for the regional Town Hall Meetings in David Mercer, is a partner in the 2001; and a second place in the Comprehensive category, law firm and a former chair of all in DMsion IC competition. Nicole C. Daniel of Hunton 6~ the VBA Substance Abuse Williams in Richmond, chair of the VBA/YLD Awards of Committee. Achievement Committee, prepared the entries for the During her talk, Mercer shared competition. photos and tales of her work and daily life in Afghanistan, her imprisonment on charges of spreading Christianity among "Court End t l" planned for Afghan Muslims, and the dramatic rescue of the aid workers John Narshall’s birthday S pt. by U.S. Special Forces. She told the audience that she hopes to return to Afghanistan to continue her work there, as The John Marshall House, located at 818 East Marshall she feels a great love for the Afghan people and a desire to Street in domatown Richmond, ~dll present "Court End serve them. Society" in honor of Jolm Marsh;ali’s 248th birthday on Mercer and her colleague Dayna Curry have co-authored Stmday, September 22, from noon to 4 p.m. an account of their experiences, Prisoners of Hope; The Court End, just north of Capitol Square, became a Story of Our Captivity and Freedom in Afghancstan. Proceeds fashionable residential neighborhood in the late 1700s. John from book sales go to the foundation the women have Marshall built his home in 1790 and lived there tmtil his death started to help the people of Afghanistan. in 1835. After his appoinnnent to the Supreme Court in 1801, he was Richmond’s most prominent citizen. "Court VBA/YLD seeks nominations for End Socie.ty" ~411 celebrate the contributions he made to Richmond and its lifestTle in the Federal era. ’03 Secretary/Treasurer, 4 EC posts Rita Bagby, well-la~oma Richnaond tour ~ide, x~ll talk on The nomination process [br selecting the 2003 VBA Young early Richmond history, Court End residents and their homes. Lawyers DMsion Secretary/Treasurer and new members of An exhibit ~qll [bature maps, copies of watercolor paintings by" the ~xecutive Committee has begun with the appointment of Benjamin Latrobe, and old photographs of some Court End the VBA!YLD Nominating Committee: homes. Lilbstvles of early resident~s will be portrayed by IMng King Tower, Chair, Williams Mullen, Richmond; history inteq~reters, and ~th music and dances of the early [email protected], (804) 783-6438. 19th centulW. Reffestunents ~ill be ser~ed. Cra~s will be Monica Taylor Monday, Gentm, Locke I~kes & Moore demonstrate’d in the newly refurbished gaMen, and items by LLP, Roanoke; monica_monday@~entQlocke.com, (540) local artists will be on sale’in the Cellar Gift Shop. 983-9405; Regular admission ($5 for adults, $4 lbr seniors, $3 for Erica Beardsley, Watt, Tieder, Hoffar & Fitzgerald, student_s through college) x~qll be charged. AAA, AARP and McLean; [email protected], (703) 749-1068; active nailitar).- discounts are available. For additional Steve Otero, Troutlnan Sanders LLP, Richmond; information, call (804) 648-7998. [email protected], (804) 697-1200; Stacy Colvin (non-voting), Hunton & Williams, Classified ads now available Richmond; [email protected], (804) 788-8379; and The VBA NewsJournalnow offers classified advertising. Yaughan Gibson Aaronson, Trouunan Sanders LLP, Categories available are as follows: positions available, Richmond; [email protected], (804) positions wanted, books and software, office equipment/ 697-1316. furnishings, office space, experts, consulting services, VBA/YLD members interested in being considered business services, vacation rentals, and educational nomination as an officer or Executive Committee member (at opportunities. Rates are $1 per word for VBA members this point, four Executive Committee positions will need to and $1.50 per word for non-members, with a $35 be filled), should contact the Nominating Committee minimum, payable at the time of submission. Ad costs members. All VBA/YLD members are encouraged to seriously must be paid in advance. The VBA News Journal reserves consider these positions. the right to review all ad copy before publication and to The Nominating Committee plans to complete the reject material deemed unsuitable. Deadlines will be one nomination process by the September 27-28 VBA/YLD month in advance of the date of publication (November 1 for December, etc.). Information is available online at meeting in CharlottesMlle. Interested nominees should contac~ vwvw.vba.org, or call for details at (804) 644-0041. the committee as soon as possible.

20 THE VIRGINIA BAR ASSOCIATION The Virginia Bar Association Law Practice Management Division Professional Skills Committee Survey

This survey is intended to solicit your thoughts and sentiments regarding professional skills (non-CLE) that are most important to your practice of law. You can answer this survey in less than 8 minutes. Your responses will contribute significantly to the direction of the Professional Skills Program being developed by our Committee for the January 2003 VBA Annual Meeting. Across the VBA we have substantial variance in what our attorneys want and need in terms of their profes- sional skills development. This survey will help better define the nature of those needs and assist us in addressing them. Thank you for your time and contribution to this most important effort. Your input is important, confidential and anonymous.

Before You Start: Biographical Background

Total number of attorneys within your firm or organization (’circ/e cate~oO~,~: 1-5 6-49 50-99 100-249 250+ # years practicing law (circ/~ category,: Less than 5 5-10 11-20 21 ÷ Management/Leadership Position within firm or organization (ci~c/~ ca~oo,~: Yes No

The first section of our survey will ask you to rate the relative importance of each topic or skill area in terms of its comparative importance to you in your practice of law. The second section is open-ended so as to allow you the opportunity to comment on any particular topic, theme, skill area or subject regarding professional skills development:

Section h ~mportance Rating Scale (’C-/~ck ar~s~v~r~ Not Important Slightly Important Important Very Important Most Important Business Valuations Case Management Client Budgeting Client Counseling Client Development Skills Client Relations Skills Dealing with Difficult People Delegating Emotional Intelligence Evaluating Performance ~ Providing Feedback Formal Presentations Government & Corporate Structures , How to be a "Virginia Lawyer" Interpersonal Skills ~ their Relationship to Success Knowledge Management Leadership Development ~ Leading Attorneys Managing Support Staff Mentoring Negotiations Networking Personal Practice Management Public ~ Media Relations The Art of the Informal Presentation Team Building within Law Firms Time Management Understanding Financial Statements Use of Technology (Please turn over to Section II)

NEWS JOURNAL ¯ SEPTEMBER 2002 21 Section I1: Open-Ended Questions What is the most important Professional Skill that you would like to develop?

What is the most important developmental need for a Professional Skill that you believe is required by members of your firm, office or organization?

Does your firm or organization have a mentoring program? (Please circ/e answer) Yes No (Please comment or describe)

Do you feel that professional skills training (Non-CLE) is an important tool for attorney development? (Please circle answer) Yes No (Please elaborate)

How do young associates learn about the business side of law?

What can the Professional Skills Committee of the Law Practice Management Division of the VBA do "down the road" to benefit the practice of law and your firm specifically?

What message or theme would you like to share with the VBA in terms of professional skills development?

Please r~turn this survey to Dr. Robert R. Begland, c/o The Virginia Bar Association, 701 East Franklin Street, Suite 1190, Richmond, VA Q3~19. Thank you!

22 THE VIRGINIA BAR ,~SSOCIATION A Tribute to The Honorable Harry Lee Carrico Chief Justice of Virginia

In Celebration of his Illustrious and Distinguished Tenure As the Leader of Virginia’s Judicial System

Reception and Dinner Thursday, December 5, 2002, 6:00 P.M. The Jefferson Hotel, Richmond, Virginia

Sponsored by Virginia State Bar The Virginia Bar Association Old Dominion Bar Association Virginia Trial Lawyers Association Virginia Association of Defense Attorneys Virginia Women Attorneys Association The Bar Association of the City of Richmond

Space for this evetit is limited. Individual reservations will be confirmed on a first-come, first-served basis. In order to confirm your tickets, please return the form below, together with your check, as soon as possible. Your cancelled check will serve as your receipt; confirmation of your reservation will be sent to the email address provided below. Business Attire .

RESERVATION FORM

Please reserve ) individual tickets at $125 each for the dinner in honor of Chief Justice Carrico on Thursday evening, December 5th.

NAME (Last) (First) (Middle 1.)

FIRM/AFFILIATION

ADDRESS CITY STATE ZIP

TELEPHONE ( EMAIL (for confirmation)

NAMES OF OTHER Guest 1 [~ Please charge my credit card $. GUESTS IN MY PARTY: (Names must be provided; Guest 2 ~1 Visa [~1 MasterCard [~ AMEX please print) Card #: Exp. Date:__ Guest 3 Signature:

Enclosed is my check in the amount of $. . Please make your checkpayable to The Virginia BarAssociatlon and mail it with this form to The Virginia Bar Association, 701 East Franklin St.,Suite 1120, Richmond, VA 23219. For questions concerning reservations or other aspects of the event, please call Elizabeth (Bet) Keller at the Virginia State Bar (804) 775-0516, or Brenda Dillard at The Virginia Bar Association, (804) 644-0041. Law firms and bar groups interested in sponsoring a patron table should contact Bet or Brenda. CALENDAR

September 26-28, 2002 November 6, 2002 VBA Labor Relations & Employment Law Conference Pro Bono Hotline Roundtable Kiugsmill, Williamsburg Holiday Inn Hotel and Suites, Bristol

September 27-28, 2002 November 14-16, 2002 Lawyers Helping Lawyers Conference National Moot Court Competition, Region IV Omni Richmond U.S. Courthouse, Richmond

September 27-28, 2002 November 19, 2002 VBA/YLD Executive Committee & Council Meeting VBA Legislative Workday Boar’s Head Inn, Charlottesville The Berkeley Hotel, Richmond October 10, 2002 November 21-22, 2002 VBA Corporate Counsel Fall Forum VBA Capital Defense Workshop The Jeffersou Hotel, Richmond Richmond Marriott October 18-20, 2002 Januar).. 16-19, 2003 VBA Board of Governors Meeting VBA 113th Annual Meeting Capou Spriugs, West Virginia \Villiamsl3urg l.o(lgc & (.7ont;~.rcntc October 25, 2002 July 10-13, 2003 VBA Virginia Tax Practitioners Roundtable VBA 113th Summer Meeting Farmin~on, Charlottesville The (Jrccnbrier, White gulphuv Springs, W.Va. October 25-26, 2002 Boyd-Graves Conference VBA office at (804) 644-0041, or visit www.vba.org. Norfolk ~’aterside Marriott

Many Thanks to Our Summer Meeting Sponsors! American National Lawyers Insurance Reciprocal and The Reciprocal Insurance Agency, Ltd. (Members of The Reciprocal Group) ¯ CSX Corporation ¯ Dominion Virginia Power ¯ The Homestead ¯ Hunton 6, Williams ¯ Lawyer’s Staffing, Inc. ¯ LexisNexis ¯ Norfolk Southern Corporation ¯ Troutman Sanders LLP

VBA THE VIRGINIA BAR ASSOCIATION

701 E’,ST FFL-\NKLIN STREET, SLIITE 1120 P~CHMOND, VA 23219 (804) 644-0041