Our Mission Grammar Confidential Causes of Action and Remedies For

. . VBATHE OFFICIAL PUBLICATION News OF THE VIRGINIA BAR ASSOCIATION Journal • VOL. XXXVI, No. 1 • SPRING 2009

Inside: Our Mission Grammar Confidential Causes of Action and Remedies for Insurer Bad Faith in Virginia “She Told Me She Was Scared of Him” 119th VBA Annual Meeting Pictures Triggering the WARN Act

THE VIRGINIA BAR ASSOCIATION VOLUME XXXVI, ISSUE 1 VBA. . . . SPRING 2009 The Virginia Bar Association VBA 701 East Franklin Street, Suite 1120 Richmond, VA 23219 News Journal (804) 644-0041 FAX: (804) 644-0052 4 • President’s Page E-mail: [email protected] Our Mission Web: www.vba.org JOHN D. EPPS President John D. Epps, Richmond 6 • Writer’s Block President-elect Stephen D. Busch, Richmond Grammar Confidential: Chair, Board of Governors Dispelling Common Writing Myths Lucia Anna “Pia” Trigiani, Alexandria DAVID H. SPRATT Immediate Past President G. Michael Pace, Jr., Roanoke 7 • Member Spotlight Law Practice Management Division Chair Robert D. Seabolt, Richmond 8 • 2009 VBA Board of Governors Young Lawyers Division Chair 2009 Section and Committee Chairs Turner A. Broughton, Richmond Young Lawyers Division Chair-elect 9 • Rule of Law Project Launched Henry I. Willett, III, Richmond VBA Law School Students Win ABA Competition Board of Governors The Officers and Thomas R. Bagby, Roanoke 10 • Causes of Action and Remedies for Insurer Bad Faith in Virginia Attison L. Barnes, III, Washington, D.C. Hon. Rudolph Bumgardner III, Staunton JONATHAN M. STERN Hon. Rodham T. Delk Jr., Suffolk C. Thomas Ebel, Richmond Hugh M. Fain, Richmond 14 • “She Told Me She Was Scared of Him”: The Admissibility of Jeffrey H. Gray, Virginia Beach Hearsay Evidence that a Murder Victim Feared the Accused Michael C. Guanzon, Danville PROF. JAMES J. DUANE Susan M. Hicks, Fairfax Hon. Robert Hurt, Chatham Maureen R. Matsen, Richmond 18 • 119th VBA Annual Meeting Pictures William R. Mauck Jr., Richmond Rodney A. Smolla, Lexington Robert C. Wood III, Lynchburg 20 • Triggering the WARN Act Member of ABA House of Delegates DAVID R. KEENE, II E. Tazewell Ellett, Alexandria Legislative Counsel 22 • Advice, Goals and Projects Hon. Robert B. Jones Jr., Richmond Anne Leigh Kerr, Richmond TURNER A. BROUGHTON Executive Director Guy K. Tower 23 • 2009 YLD Committee Chairs Assistant Executive Director Brenda Dillard VBA News Journal Editor Kimberly L. Kovac

Our Mission The Virginia Bar Association is a vol- VBA News Journal, the official publication of The Virginia Bar Association (ISSN untary organization of Virginia 1522-0974, USPS 093-110), is published four times per year. Membership dues lawyers committed to serving the include the cost of one subscription to each member of the Association. public and the legal profession by Subscription price to others, $30 per year. Statements or expressions of opinions promoting the highest standards of appearing herein are those of the authors and not necessarily those of the integrity, professionalism, and excel- Association, and likewise, the publication of any advertisement is not to be con- lence in the legal profession; working strued as an endorsement of the product of service unless specifically stated in the to improve the law and the adminis- advertisement that there is such approval or endorsement. Periodicals postage paid tration of justice; and advancing col- at Richmond, VA 23232. POSTMASTER: Send address changes to The Virginia Bar legal relations among lawyers. Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219. PRESIDENT’S PAGE Our Mission

JOHN D. EPPS What makes The Virginia Bar Association special?

I am often asked why a Virginia By definition, our focus is not on ourselves, on lawyer should join The Virginia Bar ways to increase our income, but, instead, is on Association. Why spend the discre- tionary dollars? Do we need a volun- our profession, our judicial system, legislation, and tary state-wide bar association? What makes The Virginia Bar Association society as a whole. In my mind, the Mission special? Statement is what makes The Virginia Bar These are legitimate, fair questions. Times are tight, and all of us need to Association unique. watch our expenses. So, how do I answer those questions? One thing I do is to refer to The Virginia Bar Association's Mission Statement. It is lawyers meet the goal established in accessed on our website, both inspirational and challenging. It Rule 6.1(a) of the Virginia Rules of www.vba.org. I urge you to read says: Professional Conduct that Virginia them. The Principles have now been The Virginia Bar Association is a vol- lawyers "should render at least two endorsed by the Supreme Court of untary organization of Virginia lawyers percent" of their professional time to Virginia, the Federal courts in the committed to serving the public and the pro bono services. Since its inception, Eastern and Western Districts, and by legal profession by promoting the highest the CSP has recorded 100,000 commu- every major bar group in the standards of integrity, professionalism, nity service and pro bono hours donat- Commonwealth. Printed copies of the and excellence in the legal profession; ed by Virginia lawyers and judges. Principles will soon be hanging in working to improve the law and the Using $200 per hour, that equates to courthouses, law firms and bar offices administration of justice; and advancing $20 million of service! throughout Virginia. collegial relations among lawyers. The Mission Statement is also what The Mission Statement prompted inspired The Virginia Bar Association our most recent project, the Rule of That statement says it all. The mis- to create the commission which draft- Law Project, which has just now come sion is what makes The Virginia Bar ed our new Principles of alive. We all know that the rule of law Association something other than sim- Professionalism. More than 25 promi- has been under attack around the ply a trade organization. By defini- nent lawyers, judges, state and federal, globe. Who can forget the Pakistani tion, our focus is not on ourselves, on have worked for two years to develop judges and lawyers being jailed for ways to increase our income, but, and disseminate principles of profes- standing up for the rule of law in their instead, is on our profession, our judi- sionalism and collegiality to guide all country? Or, how about a rigged elec- cial system, legislation, and society as in our profession. The preamble tion in Zimbabwe, or the denial of the a whole. In my mind, the Mission explains that, "without losing sight of right to dissent in Iraq or China, or Statement is what makes The Virginia what lawyers do for their clients and genocide in the Congo? This is what Bar Association unique. Ours is an for the public, lawyers should always can happen when the rule of law organization which includes lawyers focus on how they perform their breaks down. Generations of of all practice types, from large firms duties." The Principles "serve as a Americans have fought and died to and small, from all parts of the state. reminder of how Virginia lawyers protect the rule of law. It is the special We have no special constituency. We have acted in the past and should act obligation of the legal profession to simply exist to make our profession in the future." Here are a few of the safeguard and teach its importance. and our system of government better. Principles: The rule of law has become a focus of A mission statement is just words, our Association, The American Bar though. What about action? I am • "In my conduct toward every- Association and lawyers worldwide. proud to say that over the years, the one with whom I deal, I should ... act at Is there anything more important Association has worked hard to stay all times with professional integrity, so about our nation that our children true to the mission. It was the Mission that others will know that my word is need to learn about, understand, and Statement that lead The Virginia Bar my bond." cherish than the fact that our nation is Association to create the Community • “In my conduct toward my governed by laws and not men and Service Program ("CSP") five years clients, I should . . . act with diligence that no person is either above or below ago. As stated on The Virginia Bar and dedication—tempered with, but the law? On February 18 of this year, Association's website, the CSP is "a never compromised by, my profession- in junior high schools throughout the program to encourage one of the great al conduct toward others.” Roanoke Valley, sixty Virginia lawyers traditions of our profession . . . helping • “In my conduct toward courts and judges volunteered to teach sev- others in their communities." The pro- and other institutions with which I enth and eighth grade civics classes gram asks that Virginia lawyers and deal, I should . . . avoid conduct that about the importance of the rule of law judges perform fifty hours per year of offends the dignity or decorum of any in our country and our state. Plans are pro bono legal services or non-legal courts or other institutions . . .” being implemented to take this project community service. The program is statewide. Thanks to significant finan- designed to help The full text of the Principles can be cial support from the Virginia Law 4/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 Association was able to create a professional video for use in these classes which includes discussions from Chief Justice Leroy Hassell, Senior Justice Elizabeth Lacy, former Governor Gerald Baliles, and our immediate past president, Michael Pace. Each gave their personal per- spectives on what the rule of law means to them. I invite you to view this video at the website for the Project www.ruleoflaw-vba.org, which can also be accessed at the VBA website. I also urge you to help us spread this program to all school districts in Virginia. Our goal is for the program to go statewide this Fall and we need our members to volunteer. One portion of the Mission Statement says that VBA members are committed to working for improvements in the law. Consistent with that statement, VBA sections every year work with the General Assembly to help make the Code of Virginia more efficient, more fair and current. On any given day while the legislature is in session, VBA members can be found throughout the Capitol, working with individual legislators, committees, and representatives from the Executive and Judicial branches on bills ranging from the administration of our judicial system to statutes involving civil litigation, probate, business, taxation, families, health, construction, and criminal law. These lawyers are not paid for this work but spend countless very valuable hours simply because they are committed to the goal of improving the law in the Commonwealth. Year in, year out, this work is among the most important that our Association does. As these examples demonstrate, The Virginia Bar Association's Mission Statement is the touchstone of what we have done as an organization. And, if there ever was a year when the Mission Statement will be important to our endeavors, it will be this year. The economic difficulties we face as a nation have substantially increased the stress on our legal system. Our legal aid organizations were already operating significantly past their capacities and yet the best estimates are that only 20 percent of the need for free legal services is being met. The drop in interest rates has had a devastating effect on IOLTA income for legal services. So, just when the need is the great- est, funding is declining at an alarming rate. Virginia lawyers have always been generous with their time and continue to volunteer. The CSP is evidence of the generosity of our profession. We must, however, redouble these efforts. With hard economic times come increased legal service needs for those without resources. Chief Justice Hassell has asked The Virginia Bar Association to work with him to encourage even more pro bono service by the private bar, and we have accepted the Chief's challenge. While there is more being planned, among the initiatives we are working on already are the following: 1. Meeting with leaders of our legal aid services to discuss areas of collaboration. 2. Working with several organizations, including the William and Mary law school, and private firms, to help our returning veterans to ensure they have the legal assistance they need for a smoother reentry to life at home. 3. Working with our Young Lawyers Division to enhance and expand the award-winning Pro Bono Hotline Program. 4. Initiating a new YLD pro bono project specifically focused on providing assistance to Hispanic workers in Virginia. It is often said that the legal profession is recession proof. While that is not entirely true, and this recession is proving that that statement is not true, it is true that troubled times are when our society needs lawyers the most. More lawyers in Virginia are providing more free legal services than ever before and will continue to do so. Our profession has always stepped forward and will during these difficult times, with The Virginia Bar Association playing its part, to help our friends, neighbors and community. It is, after all, our mission. So, if you get asked why join The Virginia Bar Association, that is my answer. As your president, I will do my best at all times to focus on our Mission Statement. I hope you will help.

SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/5 Writer’s Block GRAMMAR CONFIDENTIAL: DISPELLING COMMON WRITING MYTHS BY David H. spratt Urban myths or shared folklore are a been a rational basis for objecting to the threatening stomach cramp, causing significant part of our common her- split infinitive, the subject has become a you to drown. False! itage. Much, if not all, of this folklore, is fixture of folk belief about grammar. passed down from generation to gener- You can hardly publish a sentence con- According to internet urban legend ation without questioning its accuracy. taining one without hearing about it websites (and again, you've got to love Some can be tested or proved using from somebody. Modern commenta- my sources), not one death has been common sense, e.g., it doesn't take tors know the split infinitive is not a reported where someone drowned sim- much verification to see the wisdom of vice, but they are loath to drop such a ply as a result of going in the water too your mother's comment to "look both popular subject." 1 soon after eating. ways before crossing the street." (On "Wait," you might be saying, "you Grammar Myth#3: the other hand, although as adults we told us in your last column that we Never End a Sentence with a see the fallacy of the expression, "step should always know our audience. If I Preposition. False! on a crack, break your mother's back, am writing for someone who is a stick- step on a line, break your mother's ler for long-abandoned grammar rules, This supposed "rule," unlike the spine," some of us still find ourselves should I still split my infinitive and risk other two, is less commonly quoted acting overly careful when walking the wrath of my reader who now thinks these days, due in some part to Winston down a sidewalk.) Other rules that sur- I have made a grammar mistake?" My Churchill, who mocked its absurdity, vive through the years are much less advice here is no different: know your stating either "This is the sort of English reasonable and often steeped in fiction. reader and recognize that certain read- up with which I will not put" or "This is Many of these rules relate to basic ers will be distracted when faced with a the sort of bloody nonsense up with grammar. This column seeks to debunk split infinitive. In short, there is noth- which I will not put." The exact quote many of the grammar "myths" that ing incorrect about refusing to routine- seems to be unverified, and the number have gained a stronghold in our collec- ly split infinitives unless this refusal of unsubstantiated variations on the tive conscience. results in a misplaced modifier or adds quote continues to grow. ambiguity to a sentence that would oth- There are some readers, however, Urban Myth #1: erwise be clear (forgive my split, I who still feel somewhat queasy when If you swallow a piece of chewing gum, couldn't help myself). confronted with a dangling preposi- it will take seven years to pass through tion. When ending a sentence with a your system. False! Urban Myth #2: preposition, ask yourself two questions: Mikey from the Life cereal commercial Although gum resists the body's 1) does the sentence need the ending died after eating Pop Rocks and drink- preposition or would the same point be attempts at digestion, gum is eliminat- ing Coca-Cola. False! ed as human waste the same way and made by deleting it? (If so, delete the at the same rate as anything else that We can all breathe a collective sigh of dangling preposition); and 2) does we swallow. relief. John Gilchrist, the child actor revising the sentence to remove the who played Mikey, is alive and well. dangling preposition to put it some- Grammar Myth #1: Pop Rocks when eaten with any type of where else make sense or does the revi- Never Split an Infinitive. False! carbonated beverage produce at most, sion sound as strained as Churchill's an unwelcome burp. quote? (When the sentence becomes Splitting an infinitive, while it sounds strained after trying to revise it, leave a bit draconian, is nothing more than Grammar Myth #2: the dangling preposition.) placing one or more words between the Never Begin a Sentence with a Future columns will likely deal with word "to" and a verb. Probably the Coordinating Conjunction (like "and," additional rules you learned from a most-quoted example of a split infini- "but," or "or"). False! long-dead English teacher. Let me tive can be traced to Star Trek: "To bold- know if there are any others I should be ly go where no man has gone before." Starting a sentence with a coordinat- aware of. I hope I didn't shatter your To split infinitives is something that ing conjunction is not incorrect. Before world. strict grammarians like my high school doing so, however, consider whether English teacher and William Strunk, Jr. your idea can be better expressed with- NOTES: (at least in the early editions of The out resorting to such "deviant" behav- 1) http://www.merriam-webster.com/dic- Elements of Style) would have ior; often, a phrase that begins with a tionary/split%20infinitive abhorred. Modern grammar texts, coordinating conjunction is really a sen- however, including the later and online tence fragment, not a complete sen- David H. Spratt is a professor at The versions of Strunk and White, have tence. And given your likely audience American University, Washington College abandoned this rule, and advocate and purpose, persuading or providing of Law, where he teaches Legal Rhetoric, splitting infinitives if doing so elimi- information to a court, client, or other Introduction to Advocacy, and Family Law nates confusion, adds precision, or sim- lawyer, writing in complete sentences is Practice and Drafting. Professor Spratt ply sounds better. preferable. practiced family law for ten years and is a Merriam-Webster Online, in dis- Urban Myth #3: former chair of the VBA Domestic cussing the usage of split infinitives, Never go swimming within one hour of Relations Section. states, "Even though there has never eating or you will get a severe, life- 6/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 The Virginia Bar Association Member Spotlight Nupur S. Bal Firm: The Lewis Law Firm, PC City: Washington, D.C. VBA Member Since 2007 VBA Activities: YLD Executive Committee; Membership Committee YLD representative; Domestic Relations Section member 1. What is your most memorable YLD moment? April 2008, Sanderling Resort, YLD Spring Meeting,"after hours social." 'nuff said... 2. What is one thing every law student should know? A "tort" is not a pastry and if your highlighting marker still has ink after the first week or so, you might as well drop out. 3. Where is your favorite place to go in NOVA? Loudon County Virginia Wine Country on a spring afternoon with a packed picnic basket. 4. What is currently on the background of your computer? A picture from a trip to London; I love to travel! 5. What is your favorite line from any movie?"Fiddle-dee-dee!", Gone with the Wind and "Of all the gin joints in all the towns in all the world, she walks into mine." Casablanca 6. When you were younger, what did you want to be when you grew up? A Psychiatrist just like my mom. 7. On Saturdays I like to... go out for a champagne brunch followed by some shopping and quality time with my husband. Wait, I mean, I go into the office and read law journals…

Howard C. McElroy

Firm: McElroy, Hodges & Caldwell City: Abingdon VBA Member Since 1978 VBA Activities: Commission on Professionalism member; Chair of the Committee on Federal Judgeships, Western District; Former member of the Board of Governors 1. The best thing about being a VBA member is... Making many friends working on VBA law reform and public service projects with other VBA members 2. If you could have dinner with three people living or dead, who would they be? Ernest Hemingway; Winston Churchill; my wife, Heidi (and our children)

3. Who was your most inspiring law school professor? David J. McCarthy, former Dean of Georgetown University Law Center, who taught a local government law course that awakened me to the possibilities of a small-town law practice 4. What is the most interesting thing on (or near) your desk? Memorabilia of my years of volunteer work (not acting!) with Barter Theatre in Abingdon. 5. What is the title of the best book you’ve ever read? Impossible to say. However, the best book I recently read was The Post-America World by Fareed Zakaria. Mr. Zakaria explains how the United States can adapt and thrive in a world that will be reshaped by the rise of countries such as China, India, and Brazil. 6. What is your favorite springtime activity? Fly fishing for trout in the mountain streams and rivers of Western Virginia. 7. If you could visit any place in the world, where woud you go and why? I would go to Paris to enjoy its streets, cafes, restaurants, and art, with my wife, Heidi.

SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/7 VBA LEADERSHIP Meet the 2009 VBA Board of Governors Along with the swearing-in of John D. Epps Also serving are Robert D. Seabolt (Troutman (Hunton & Williams LLP, Richmond) as the 2009 president Sanders LLP, Richmond), chair of the Law Practice of The Virginia Bar Association, other new officers and Management Division, and Young Lawyers Division Chair members of the Board of Governors were elected during Turner A. Broughton (Williams Mullen, Richmond) and the Annual Meeting. Stephen D. Busch (McGuireWoods, Chair-elect Henry I. Willett, III (Christian & Barton, LLP, LLP, Richmond) became president-elect. Lucia Anna "Pia" Richmond). VBA executive director Guy K. Tower and Trigiani (MercerTrigiani, Alexandria) will chair the Board assistant executive director Brenda Dillard provide staffing of Governors and G. Michael Pace, Jr. (Gentry Locke Rakes service to the Board. & Moore LLP, Roanoke) will serve as Immediate Past In related matters, past president E. Tazewell Ellett President. (Hogan & Hartson LLP, Washington D.C.) was elected to New Board members include: Thomas R. Bagby serve as the VBA representative to the American Bar (Woods Rogers PLC, Roanoke), Attison L. Barnes, III Association House of Delegates. (Wiley Rein LLP, Washington D.C.), Susan M. Hicks (Susan Hicks Group PC, Fairfax) and Michael C. Guanzon (Clement & Wheatley, Danville). Judge Rodham T. Delk of Suffolk was elected to a third one-year term as the judicial representative and Dean Rodney A. Smolla (Washington & Lee School of Law) was elected to a first one-year term as the law faculty representative. Senator Robert Hurt (Chatham) was elected to a second one-year term as the legislative representative. They join C. Thomas Ebel (Sands Anderson Marks & Miller, PC, Richmond), William R. Mauck, Jr. (Williams Mullen, Richmond), Robert C. Wood, III (Edmonds & Williams, Lynchburg), Judge Rudolph Bumgardner, III (Senior Judge, Court of Appeals of Virginia, Staunton), Row 1: Epps, Pace, Trigiani, Guanzon, Seabolt; Row 2: Busch, Hugh M. Fain (Spotts Fain, PC, Richmond), Jeffrey H. Gray Barnes, Smolla, Hurt, Wood; Row 3: Delk, Mauck, Gray, Ebel, (Troutman Sanders LLP, Virginia Beach) and Maureen R. Bumgardner; Row 4: Tower, Broughton, Willett, Bagby, Fain; Not pictured: Hicks, Matsen Matsen (Office of the Attorney General, Richmond). 2009 Chairs of VBA Sections and Committees

ADMINISTRATIVE LAW SECTION: Michael J. Quinan, Christian & REAL ESTATE SECTION: C. Grice McMullan, Jr., Thompson & Barton, LLP McMullan, PC APPELLATE PRACTICE SECTION: L. Steven Emmert, Sykes, TAXATION SECTION: J. Christian Tennant, McGuireWoods LLP Bourdon, Ahern & Levy, PC TRANSPORTATION LAW SECTION: R. Bruce Rider, Norfolk BANKRUPTCY LAW SECTION: Loc Pfeiffer, Kutak Rock LLP Southern Corp. BUSINESS LAW SECTION: James J. Wheaton, Troutman Sanders WILLS, TRUSTS AND ESTATES SECTION: James P. Cox, III, LLP Michie, Hamlett, Lowry, Rasumssen & Tweel PLLC CIVIL LITIGATION SECTION: Henry N. Ware, Jr., Spotts Fain PC COMMISSION ON THE NEEDS OF CHILDREN: Prof. Margaret I. CONSTRUCTION AND PUBLIC CONTRACTS LAW SECTION: Bacigal, University of Richmond Michael L. Sterling, Vandeventer Black LLP COMMITTEE ON FEDERAL JUDGESHIPS/EASTERN DISTRICT: CORPORATE COUNSEL SECTION: Rudolph Bumgardner, IV, Thomas L. Appler, Wilson Elser Moskowitz Edelman & Dicker LLP Dominion Resources, Inc. WESTERN DISTRICT: Howard C. McElroy, McElroy, Hodges & CRIMINAL LAW SECTION: Kim Slayton White, Office of the Caldwell Commonwealth’s Attorney JUDICIARY COMMITTEE: David G. Shuford, Dominion Resource DOMESTIC RELATIONS SECTION: Lynne M. Kohm, Regent Services, Inc. University COMMITTEE ON NOMINATIONS TO VIRGINIA COMMISSIONS ELDER LAW SECTION: Neil L. Rose, Willcox & Savage, PC AND APPELLATE COURTS: Thomas F. Farrell, II, Dominion ENVIRONMENT, NATURAL RESOURCES AND ENERGY LAW Resources Services, Inc. SECTION: Eric A. DeGroff, Regent University COMMISSION ON PROFESSIONALISM: Thomas E. Spahn, HEALTH LAW SECTION: Thomas W. Greeson, ReedSmith LLP McGuire Woods LLP INTELLECTURAL PROPERTY AND INFORMATION TECHNOLO- COMMITTEE ON SPECIAL ISSUES OF NATIONAL AND STATE GY LAW SECTION: Ian D. Titley, Schroder Fidlow & Titley, PLC IMPORTANCE: David Craig Landin, Hunton & Williams LLP JUDICIAL SECTION:Hon. W. Allan Sharrett, Sixth Judicial Court VIRGINIA JOINT ALTERNATIVE DISPUTE RESOLUTION LABOR RELATIONS AND EMPLOYMENT LAW SECTION: Thomas COMMITTEE: M. Bruce. Wallinger, Hoover Penrod PLC R. Bagby, Woods Rogers PLC

8/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 Rule of Law Project Launches in Roanoke Program will go statewide in September

Middle-school students in Virginia's Roanoke Valley were the first in the state to get a unique lesson in the law as part of The Virginia Bar Association Foundation Rule of Law Project, a new educational program taught by volunteer citizen lawyers and judges. The program, which was piloted on February 18 in 122 classrooms in Roanoke County, Roanoke City, and Salem, is specifically designed to enhance the teaching of the rule of law to seventh and eighth grade civics students in public and private schools throughout Virginia. The VBA Rule of Law Project is consistent with the Virginia Standards of Learning and it is expected to be introduced in other schools throughout the state in the fall, with citizen lawyers in each locality Pace teaching middle-school students about the rule of law on the working collaboratively with teachers and administrators in inaugural day of the Rule of Law Pilot Project. each school district to implement the program. (Picture courtsey of Miranda Adkins, The Roanoke Times) In 2008, when Immediate Past President Mike Pace asked his daughter what she was learning in her middle A web site has been developed to support the program school civics class, she explained clearly the Constitution, the that includes lesson plans, materials and resources, Bill of Rights, the three branches of government, the system of which will be updated regularly and will eventually checks and balances. What she didn't say was "the rule of law." include the capability to allow teachers to exchange cur- That struck a chord with Pace, leading him to propose an edu- riculum and feedback online. cational program involving lawyers, judges, and teachers to "Working with the teachers and administrators help students better understand the rule of law as the founda- in Roanoke has been extremely gratifying for everyone tion for democracy and freedom in the United States. involved and we're looking forward to working on this "What many students do not fully understand is that project with other local bar associations in the future," the rule of law in America is the basis for the freedoms we all said Guy Tower, VBA Executive Director. "The tradition enjoy as citizens," says Pace. "Incorporating these principals of The Virginia Bar Association has been one of promot- into current civics curriculum will provide a unique opportu- ing professionalism and community involvement and nity to reach students early, and encourage them to be active the Rule of Law Project has been a great example of that." and engaged citizens throughout their lives." The VBA Rule of Law Project and related educa- According to Bob Penn, a teacher with Andrew Lewis tional materials are intended to be generally available Middle School in Salem, having experts willing to volunteer online for use by other schools, civic groups, law schools, their time to educate students is extremely beneficial. "On its local bar associations, and others. The project is funded surface, the rule of law may sound like common sense to most by a $50,000 partnership grant from the Virginia Law students, but there is more to it than that. Being able to hear Foundation for 2008-09, and recently received an addi- about real life examples of how the law applies to daily life, tional $50,000 grant for 2009-10. from experts who deal directly with the law every day, is a "In a very difficult economic year, for the great learning opportunity." Virginia Law Foundation to authorize another signifi- The program utilizes a DVD on the history and mean- cant grant, on top of the first, is very gratifying," says ing behind the rule of law, narrated by a teenager and features Tower. Gerald Baliles, former Governor of Virginia, Leroy Rountree For more information about the Rule of Law Hassell, Sr., Chief Justice of Virginia, Elizabeth B. Lacy, Senior Project, visit www.ruleoflaw-vba.org. Justice of the Supreme Court of Virginia, and Pace.

VBA Law School Student Members from the University of Richmond Win ABA National Trial Advocacy Competition A team consisting of VBA student members from the University of Richmond School of Law emerged victorious in a field of 64 competitors from across the country in the American Bar Association's second annual National Finals of the Student Trial Advocacy Competition. The Labor and Employment Law Section of the American Bar Association hosted the National Finals in the Chicago federal courthouse with federal judges, law professors and prominent employment lawyers from around the nation serving as evaluators. Students were judged on their advocacy skills and courtroom presence at each stage of the trial. Each team consisted of four law students, two serving as lawyers and two acting as witnesses for the trial. U.S. District Court Judge Rebecca Pallmeyer judged the competition. (L to R) Scott Jones, Kristen Wright, Richmond coach and adjunct "Our competition began five years ago as a pilot program and has steadily professor Paul Thompson, Joe Tilson, National Co-Chair of the ABA grown into a national competition with eight regions. This year we added two Competition, Judge Pallmeyer of the U.S. District Court, Jeannine new regions - Boston and the Pacific Northwest," said Joe Tilson of Chicago- Ponzera and Hank Gates. based Meckler Bulger Tilson Marick & Pearson LLP, National Co-Chair of the ABA's Trial Advocacy Competition.. "Each year, we continue to be impressed by the polished trial skills shown by these law students." SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/9 Causes of Action and Remedies for Insurer Bad Faith in Virginia BY JONATHAN M. STERN

I. INTRODUCTION issue of first impression or a reasonably action.29 Advice of counsel may also be a debatable question of law or fact. 10 viable defense to a bad faith claim.30 An insurance policy is a contract. At Even if there is coverage, to state the common law, a defendant's state of Virginia courts employ this test obvious, the absence of bad faith may be mind was not relevant to a breach of whether the issue is the failure timely to 1 11 demonstrated by a showing of good contract claim. The contract either was pay a claim or provide a defense. faith. breached or it was not. Recognizing the unique and impor- II. BAD FAITH CAUSE OF IV. RELATED CAUSES OF tant role that insurance plays in the lives ACTION ACTION of its citizens, many state legislatures As previously stated, Virginia does The breach of contract action, supple- and courts have provided for, or recog- not recognize a cause of action for insur- nized, new causes of action against 12 mented by the implied covenant of ance bad faith. Virginia has enacted an good faith and fair dealing and the insurers for "bad faith." In some states, Unfair Trade Practices Act,13 and the bad faith by an insurer is treated as a statutes discussed in the following sec- Virginia Bureau of Insurance, which is a tion, will be the standard fare for litiga- tort with the associated broader range department of the State Corporation of remedies. Not so in Virginia.2 tion between bad faith claimants and Commission, has promulgated regula- insurance companies. In rare cases, it is Virginia law does not recognize a cause tions pursuant to the Act.14 Unlike many 3 possible that fraud or intentional inflic- of action for insurance bad faith. states, however, there is no private right Virginia does, however, provide a limit- 15 tion of emotional distress claims will be of action to enforce the Act. viable.31 In such cases, however, the duty ed number of additional remedies for Enforcement is left to the Insurance bad faith breaches of an insurance poli- 16 of the insurer to act or refrain from act- Commissioner. Indeed, an insurer's ing in a particular way will have to arise cy by an insurer. These include attor- practices are deemed to constitute neys' fees, court costs, double damages, independently from the insurance con- unfair claim settlement practices only if tract.32 For example, in Merenstein v. St. double pre-judgment interest, and—in the regulations are violated with such the case of failure to settle within policy Paul Fire & Marine Ins. Co., No. 04-1631, frequency as to indicate a general busi- 142 Fed. Appx. 136, 2005 U.S. App. limits in a third-party liability case— ness practice.17 While not unique in this payment of excess judgments. LEXIS 14024 (4th Cir. 2005), the Fourth respect, Virginia is among a minority of Circuit reversed the district court's dis- Bad faith claims require, in addition jurisdictions in the United States that do to proof the insurance contract was missal of the insured's fraud claim. The 4 not recognize a cause of action for insur- claim was predicated on the insurer's breached, proof that the insurer acted 18 ance bad faith. employee's assurance that settling a in bad faith in its handling of the insur- The claimant must, under Virginia ance claim. It is not enough that an medical malpractice suit would have no law, find his, her, or its cause of action adverse effect on the insured doctor's insured is unhappy with the insurer's for bad faith breach of an insurance pol- handling of a claim. Bad faith requires 19 future ability to obtain coverage. icy in the common law of contract. The Dismissal of the claim was not warrant- action or inaction of the insurance com- refusal of Virginia courts to recognize a pany that in some way impairs the ed, the court ruled, because, among tort cause of action for insurance bad other considerations, a promise made in insured's ability to receive the benefits faith can be viewed as an appropriate of the insurance policy. 5 To assess this the absence of a present intention of application of the economic loss doc- performing could constitute fraud.33 additional requirement, one must trine, which seeks to separate those define "bad faith" or, conversely, "good claims appropriately confined to the V. REMEDIES FOR INSURER faith." contract from tort claims.20 For this rea- BAD FAITH In most cases, the insurer acts in good son, it will be important for practition- faith if it takes reasonable,6 or "reason- Virginia law provides a limited num- 7 ers representing claimants to explore ably debatable," positions. For exam- the possibility of application of the law ber of remedies beyond those generally ple, if an insurer disclaims coverage for of a state with more favorable bad faith available for breach of contract when an particular property damage to the home law. Likewise, lawyers representing insurer breaches its policy in bad faith. of the insured under a homeowner's insurers, unless Virginia's substantive The first, liability for excess judgments, policy, the insurer will have acted in insurance coverage is less favorable to actually is a traditional remedy (conse- good faith if coverage was reasonably their positions, likely will seek applica- quential damages) arising out of an debatable. It is not bad faith to come to tion of the insurer-favorable bad faith implied duty. The remainder of the the wrong conclusion.8 Bad faith in law of Virginia.21 additional remedies are statutory, some Virginia is determined by a multi-factor of very limited application. standard. 9 III. DEFENSES TO BAD FAITH A bad-faith analysis generally would A. Excess Judgments require consideration of such questions as Because in Virginia there can be no recovery for bad faith in the absence of Perhaps the most important of the whether reasonable minds could differ in the insurance coverage,22 any defense to cov- interpretation of policy provisions defining 23 remedies available under Virginia law coverage and exclusions; whether the insur- erage is a defense to a claim of bad faith. for insurer bad faith is that of compen- Therefore, the following defenses, if sation for judgments in excess of insurer had made a reasonable investigation of the successful, should also avoid any expo- facts and circumstances underlying the 24 ance policy liability limits where an sure for bad faith: statute of limitations, insurer, acting in bad faith, fails to settle insured's claim; whether the evidence dis- material misrepresentations in the covered reasonably supports a denial of lia- 25 a liability claim against its insured with- application, material misrepresenta- in policy limits. bility; whether it appears that the insurer's tions or fraud in the claim,26 including refusal to pay was used merely as a tool in 27 28 In the context of contract law, settlement negotiations; and whether the arson, breach of a condition precedent, Virginia has not deeply embraced the including the failure to cooperate, and implied covenant of good faith and fair defense the insurer asserts at trial raises an preemption of the state law cause of 10/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 dealing. See, e.g., Ward's Equip. v. New Holland N. Am., 254 Va. 379, 385, 493 ABOUT THE AUTHOR S.E.2d 516, 520 (1997) ("[W]hen parties Jonathan M. Stern is co-chair of the aviation group of Schnader Harrison Segal & Lewis to a contract create valid and binding in Washington, D.C. He is a member of the District of Columbia, Maryland, rights, an implied covenant of good faith and fair dealing is inapplicable to Pennsylvania, and Virginia bars, holds an AV rating from Martindale-Hubbell, and has those rights…. Generally, such a been listed in the Washington DC Super Lawyers for the last three years for his work in covenant cannot be the vehicle for insurance coverage, civil litigation defense, and aviation. A frequent author of articles, rewriting an unambiguous contract in book chapters, and books on law, Mr. Stern also holds commercial pilot, ground instruc- order to create duties that do not other- tor, and control tower operator certificates and has worked as an aviation research ana- wise exist."). Nonetheless, Virginia lyst, a flight instructor, and an air traffic controller. He received a B.S. from Embry- does recognize such an implied covenant as a part of contracts made in Riddle Aeronautical University and a J.D. from American University. Virginia. E.g., Levine v. Selective Ins. Co. of Am., 250 Va. 282, 286-87, 462 S.E.2d 81, good faith, the insurer is not liable for the deductible is claimed, the insured (or a 84 (1995). The implied covenant pre- amount of the judgment which exceeds the person entitled to medical payment cludes a contracting party from exercis- policy limits.] benefits) under a motor vehicle insur- ing "contractual discretion" in bad faith. A good faith decision is one that is made ance policy may recover double the Virginia Vermiculite, Ltd. v. W.R. Grace honestly and intelligently in light of the amount due, expenses, and reasonable & Co., 156 F.3d 535, 542 (4th Cir. 1998); insurer's expertise in the field. attorney fees if the insurer in bad faith Clemons v. Home Savers, LLC, 530 F. denies, refuses, or fails to pay the claim.44 Supp. 2d 803, 812 (E.D. Va. 2008), aff'd 2-47 Virginia Model Jury Instructions - A claim for policy rescission by the without published opinion, No. 08- Civil Instruction No. 47.710. insurer, in and of itself, does not consti- 1230, 2008 U.S. App. LEXIS 8055 (4th tute denial of coverage or failure or Cir. Apr. 14, 2008). Thus, while most Good faith in defending an insured refusal to make payment. 45 third-party liability policies permit but against a liability claim requires a pru- A third-party claimant who brings a do not require the insurer to settle law- dent investigation, a reasonable analysis claim for $3,500 or less against a motor suits against an insured, the refusal or of the facts and law, provision of a com- vehicle insured also is entitled to double failure of an insurer to settle a claim petent defense, and a reasonable deter- damages, expenses, and reasonable within policy limits may be actionable mination of whether the case can, and attorneys' fees if the motor vehicle as a breach of contract. Aetna Casualty whether it should be, settled within the insurer acted in bad faith in denying the & Surety Co. v. Price, 206 Va. 749, 146 liability limits of the policy. A standard claim and a court of competent jurisdic- S.E.2d 220 (1966). 34 frequently used in other jurisdictions is tion found the insured liable to the The Supreme Court of Virginia, in that the insurer, in evaluating settle- claimant.46 adopting this rule in Price explained the ment opportunities, should act as The Supreme Court has recognized rationale: though the policy has no limits of liabil- that, absent these enhancements of ity. The fact that the insurance policy recovery, claims of this size normally The reason for the rule becomes obvious provides, for example, only $100,000 of could not be pursued.47 As with attor- when it is noted that, in the usual liability coverage is a faulty consideration neys' fees, the burden of proof on the insurance contract, control of the defense of because it (a) provides the comforting claimant is a preponderance of the evi- any claim covered by the contract is vested thought to the insurance company rep- dence.48 in the insurer and it is permitted … to resentatives that they can lose no more "make such investigation, negotiation and than $100,000, and (b) promotes the D. Double Pre-Judgment settlement of any claim or suit as it deems insurer's financial well being to a higher Interest 38 expedient." In such a situation, a relation- plane than that of the insured. The Where more than $3,500 in excess of ship of confidence and trust is created effect of Price in Virginia and similar the deductible is claimed in a motor between the insurer and the insured which law elsewhere is that the insurer does vehicle case, the insured or a person imposes upon the insurer the duty to deal have more to lose than its limits of lia- entitled to medical payment benefits fairly with the insured in the handling and bility. 39 may recover the amount due, double disposition of any claim covered by the poli- There is authority that an excess judg- 35 prejudgment interest, costs, and reason- cy. ment may be recovered from the insur- able attorneys' fees. 49 The foregoing are er that fails to undertake the insured's 40 available where the claimant proves by Aetna Casualty & Surety Co. v. Price, 206 defense, but the law is not entirely clear. a preponderance of the evidence that Va. 749, 760-61, 146 S.E.2d 220, 227-28 B. Attorneys' Fees the insurer acted unreasonably in han- (1966) (reversing judgment for policy- dling the claim.50 holder upon finding insufficient evi- When it comes to attorneys' fees, the dence of bad faith). "American Rule" provides that, absent E. Punitive Damages In such a case, an insured may bring authorization by contract or statute, a Because there is no tort cause of action a contract action against the insurer and successful litigant is not entitled to may, upon proper proof, recover the under Virginia law for bad faith breach recover attorneys' fees. By statute, of an insurance contract, punitive dam- excess amount of the judgment as con- Virginia law provides for recovery of sequential damage.36 Proper proof ages are not available to successful costs and reasonable attorney fees if the 51 requires showing, by clear and convinc- claimants. The Supreme Court has insurer has acted in bad faith in denying held, however, that the available statu- ing evidence, that the insurer placed its coverage or failing to provide contractu- financial interests ahead of those of its 41 tory remedies are both remedial and 37 al benefits. The attorneys' fee statute punitive.52 insured. The pattern jury instruction in provides only an additional remedy; Virginia on the duty to settle provides: there must be a viable cause of action.42 F. Emotional Distress If a liability insurer has an opportunity Unlike with the recovery of an excess to settle a claim against its insured for an judgment, attorneys' fees most likely are It is highly unlikely that emotional amount within the policy limits and it refus- distress damages would be available in available upon proof by a preponder- 53 es in bad faith to settle the claim, it is liable ance of insurer bad faith. 43 an insurance bad faith case in Virginia. for the whole amount of the judgment against the insured, even if the judgment C. Double Damages exceeds the policy limit. [If the insurer's decision not to settle the claim is made in When $3,500 or less in excess of the Continued on next page

SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/11 Continued from previous page ness standard."). Guaranty Residential Ins. Co., 678 F. Supp. 10) CUNA Mutual Insurance Society v. 610 (W.D. Va. 1987). VI. CONCLUSION Norman. 237 Va. 33, 38, 375 S.E.2d 724, 727 26) United States Fidelity & Guaranty Co. v. (1989) (quoted in part in Nationwide Mut. Ins. Haywood, 211 Va. 394, 397, 177 S.E.2d 530, Virginia law provides a relatively limit- Co. v. St. John, 259 Va. 71, 524 S.E.2d 649, 533 (1970); Moore v. Va. Fire & Marine Ins. ed, but adequate, set of tools for insurance 650-51 (2000) (considering Va. Code § 8.01- Co., 69 Va. 508, 28 Gratt. 508 (1877). claimants to address bad faith by an insur- 66.1(A))); see also Field v. Transcon. Ins. Co., 27) Fedele v. National Liberty Ins. Co., 184 Va. er. The policy itself, a contract, is the 219 B.R. 115, 123 (E.D. Va. 1998), aff'd 173 528,534-535,35 S.E.2d 766,768-769 (1945). F.3d 424 (4th Cir. 1999); Spence-Parker v. Md. 28) Stonewall Ins. Co. v. Hamilton, 727 F. source of the insurer's duties. The reme- Ins. Group, 937 F. Supp. 551, 558 (E.D. Va. Supp. 271 (W.D. Va. 1989). dies generally are limited to the contract 1996). 29) Salomon v. Transamerica Occidental Life except insofar as the General Assembly has 11) E.g., Spence-Parker v. Maryland Ins. Ins. Co., 801 F.2d 659, 660-61 (4th Cir. 1986) provided a right to shift litigation costs, Group, 937 F. Supp. 551, 558 (E.D. Va. 1996) (involving ERISA preemption). including attorneys' fees, and has provided (citing Scottsdale Ins. Co. v. Glick, 240 Va. 30) E.g., Chipouras v. A J , &, L Corp., 223 Va. some supplemental remedies for motor 283, 397 S.E.2d 105 (1990)). 511, 290 S.E.2d 859 (1982). vehicle insurance cases where bad faith is 12) Douros v. State Farm Fire & Cas. Co., 508 31) Morgan v. American Family Life Assur. F. Supp. 2d 479 (E.D. Va. 2007) (holding Co., 559 F. Supp. 477 (W.D. Va. 1983) (ques- established. that there is no tort cause of action for bad tioned or criticized by A & E Supply Co. v. For their part, insurers need not always faith). Nationwide Mut. Fire Ins. Co., 798 F.2d 669, be right but should always act reasonably. 13) Va. Code §§ 38.2-500-517. Unfair 673-74 (4th Cir. 1986), Howarth v. If they do, Virginia law will not find them claims settlement practices are set forth in Rockingham Publ'g Co., 20 F. Supp. 2d 959 to have acted in bad faith. section 38.2-510, but only the (W.D. Va. 1998)). Commissioner of Insurance may enforce 32) See, e.g., Moorehead v. State Farm Fire & NOTES: the statute. Va. Code §§ 38.2-510(B). Cas. Co., 123 F. Supp. 2d 1004 (W.D. Va. 14) 14 VAC 5-400-10, et seq.; see Salomon v. 2000). 1) E.g., Bettius & Sanderson, P.C. v. National Transamerica Occidental Life Ins. Co., 801 33) After remand, summary judgment was Union Fire Ins. Co., 839 F.2d 1009, 1016 (4th F.2d 659, 660-661 (4th Cir. 1986); A&E granted to the insurer. Merenstein v. St. Cir. 1988) (citing Kamlar Corp. v. Haley, 224 Supply Co. v. Nationwide Mut. Fire Ins. Co., Paul Fire & Marine Ins. Co., 2006 U.S. Dist. Va. 699, 299 S.E.2d 514 (1983)); Augusta 798 F.2d 669, 675 (4th Cir. 1986). LEXIS 22440 (E.D. Va. Mar. 28, 2006). Mut. Ins. Co. v. Mason, 274 Va. 199, 645 15) Va. Code. §38.2-500, et seq. See Salomon 34) While the Court in Price did not tie the S.E.2d 290 (2007); Spence v. Norfolk & W. v. Transamerica Occidental Life Ins. Co., 801 viability of the excess claim to the implied R.R. Co., 92 Va. 102, 116, 22 S.E. 815, 818 F.2d 659, 660-61 (4th Cir. 1986) (holding covenant of good faith and fair dealing, it is (1895). that Va. Code § 38.2-209 provides for sup- logical to do so. See, e.g., Allan D. Windt, 2) See note 1. plemental relief and does not create a pri- Insurance Claims and Disputes, § 5:1 (5th 3) Salomon v. Transamerica Occidental Life vate right of action); A&E Supply Co. v. ed. 2007) ("One of an insurer's obligations Ins. Co., 801 F.2d 659 (4th Cir. 1986); US Nationwide Mut. Fire Ins. Co., 798 F.2d 669, under a contract of liability insurance, aris- Airways, Inc. v. Commonwealth Ins. Co., 64 675 (4th Cir. 1986). ing out of its implied duty of good faith Va. Cir. 408, 419 (Arlington Cty. Cir. Ct. 16) Va. Code §§ 38.2-218 to -221, 510(B), and fair dealing, is to settle a claim that has 2004) ("The statute does not create a sepa- 515. been brought against the insured when it is rate cause of action; rather, any claim 17) 14 VAC 5-400-10; Allstate Ins. Co. v. appropriate to do so."). under the statute must stem from a suit United Servs. Auto. Ass'n, 249 Va. 9, 452 35) Despite the similarity of these words to that already exists."), rev'd on other grounds S.E.2d 859 (1995). the definition of "fiduciary," the Supreme sub nom., PMA Capital Ins. Co. v. US 18) An insurance bad faith treatise lists Court of Virginia has held that an insurer Airways, Inc., 271 Va. 352, 626 S.E.2d 369 states that recognize a tort for bad faith, 43 providing a defense is not a fiduciary to its (2006). for first-party and 37 for third-party cases. insured. State Farm Mut. Auto. Ins. Co. v. 4) In Virginia there can be no bad faith (at 1-1 Insurance Bad Faith Litigation § 1.01, Floyd, 235 Va. 136, 143, 366 S.E.2d 93, 97 least no bad faith claim) in the absence of n.3-4 (Matthew Bender & Co. 2007). Its (1988). The insurer is entitled to protect its policy coverage. Reisen v. Aetna Life & Cas. reliability, however, is questionable. It lists own financial interests at the same time as Co., 225 Va. 327, 335, 302 S.E.2d 529, 533 two cases in support of Virginia recogniz- it protects those of its insured. Id. ("The (1983); Sentry Ins. v. U.S. Fid. & Guar. Co., 51 ing such a tort in first-party cases, which is insurer has the right to protect its own Va. Cir. 418, 2000 WL 288467 at *1 (2000). incorrect. Id., § 1.01, n.3. Nonetheless, it is interest along with that of the insured. It is This is the majority rule. E.g., Am. Med. safe to say that a majority of states recog- that factor which prevents the develop- Int'l v. Nat'l Union Fire Ins. Co., 244 F.3d nize one or more causes of action in tort for ment of a fiduciary relationship between 715, 720 (9th Cir. 2001). It is not, however, an insurer's bad faith. insurer and insured. A fiduciary owes total a unanimous rule. E.g., Deese v. State Farm 19) E.g., A&E Supply Co. v. Nationwide Mut. fidelity to the interests of his principal. Mut. Auto. Ins. Co., 172 Ariz. 504, 838 P.2d Fire Ins. Co., 798 F.2d 669, 675 (4th Cir. 1986) While the relationship continues, he may 1265 (1992); Delmonte v. State Farm Fire & (Virginia does not recognize remedy in tort engage in no self-dealing which may have Cas. Co., 90 Haw. 39, 975 P.2d 1159 (1999); for bad faith). any adverse effect on the interests of his White v. Unigard Mut. Ins. Co., 112 Idaho 94, 20) See, e.g., Gerald M. Moore & Son, Inc. v. principal.… That duty of unswerving 730 P.2d 1014 (1986). Thus, a threshold Drewry, 251 Va. 277, 467 S.E.2d 811 (1996) fidelity is inconsistent with the right of an requirement of a bad faith claim in Virginia (holding economic loss not recoverable in insurer, pursuant to a contract, to protect is coverage in fact. negligence where there was no privity of its own interest along with that of its 5) Florists' Mut. Ins. Co. v. Tatterson, 802 F. contract with employee of contracting insured. The creation of a fiduciary rela- Supp. 1426, 1437 (E.D. Va. 1992). party). tionship in this context would impose a 6) Reasonableness of insurer is determi- 21) See, e.g., Ryder Truck Rental, Inc. v. UTF standard even more favorable to the nant of good or bad faith. Capitol Envtl. Carriers, Inc., 790 F. Supp. 637, 639-42 (W.D. insured than the negligence standard Servs. v. N. River Ins. Co., 536 F. Supp. 2d Va. 1992). which we rejected in Price."). 633, 646 (E.D. Va. 2008) (claim was for 22) Bohreer v. Erie Ins. Group, 475 F. Supp. 36) It is likely that an excess insurer can attorneys' fees pursuant to Va. Code. § 38.2- 2d 578 (E.D. Va. 2007) (where court granted bring a similar action against the primary 209). summary judgment to insurers on duty to insurer in an appropriate case. See Horace 7) CUNA Mutual Insurance Society v. defend, it did not even address bad faith Mann Ins. Co. v. Gov't Employees Ins. Co., 231 Norman. 237 Va. 33, 39, 375 S.E.2d 724, 727 claim). Va. 426, 344 S.E.2d 906 (1986) (reversing (1989) (considering Va. Code § 38.2-209). 23) E.g., Reisen v. Aetna Life & Cas. Co., 225 ruling that primary insurer committed bad 8) E.g., Capitol Envtl. Servs. v. N. River Ins. Va. 327, 335, 302 S.E.2d 529,533 (1983). faith by failing to settle within primary pol- Co., 536 F. Supp. 2d 633, 646 (E.D. Va. 2008) Whether the same is true in the context of icy limits on the basis that there was no evi- ("While its reliance on the contract and pro- an action by the Commissioner of dence of bad faith rather than that there fessional services exclusions were ultimate- Insurance for violation of the Unfair Trade was no such cause of action: "Assuming, ly incorrect, North River's interpretation of Practices Act is an issue beyond the scope without deciding, that Aetna applies in a the policy was not so unreasonable as to of this paper. primary-secondary insurer situation, the demonstrate bad faith."). 24) Bilicki v. Windsor-Mount Joy Mut. Ins. rule established in Aetna has no application 9) CUNA Mutual Insurance Society v. Co., 954 F. Supp. 129 (E.D. Va. 1996) (ques- to the facts in the present case."); Sentry Ins. Norman, 237 Va. 33, 38, 375 S.E.2d 724, 726- tioned in Zaeno Int'l v. State Farm Fire & v. United States Fid. & Guar. Co., 51 Va. Cir. 7 (1989) ("[I]n evaluating the conduct of an Cas., 152 F. Supp. 2d 882, 885 (E.D. Va. 418 (2000). insurer, courts should apply a reasonable- 2001)). 36) State Farm Mut. Auto. Ins. Co. v. Floyd, 25) Mountain Sec. Sav. Bank v. United 12/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 235 Va. 136, 143, 366 S.E.2d 93, 97 (1988). 42) Salomon v. Transamerica Occidental Life an amount double the amount of the judg- The higher showing of clear and convinc- Ins. Co., 801 F.2d 659, 660-61 (4th Cir. 1986). ment awarded the third party claimant, ing evidence is necessary to overcome a 43) Nationwide Mut. Ins. Co. v. St. John, 259 together with reasonable attorney's fees presumption that parties to a contract have Va. 71, 524 S.E.2d 649, 651 (2000) (consider- and expenses. acted in good faith. Nationwide Mut. Ins. ing Va. Code § 8.01-66.1(A)). 47) Nationwide Mut. Ins. Co. v. St. John, 259 Co. v. St. John, 259 Va. 71, 524 S.E.2d 649, 44) Va. Code § 8.01-66.1(A) provides the Va. 71, 524 S.E.2d 649, 651 (2000). 653-54 (2000) (concurring opinion). following: 48) Nationwide Mut. Ins. Co. v. St. John, 259 38) The insurer evaluating settlement Remedy for arbitrary refusal of motor vehi- Va. 71, 524 S.E.2d 649, 651 (2000). opportunities on behalf of its insured may cle insurance claim. 49) Va. Code § 8.01-66.1(D) provides the not "act[] in furtherance of its own interest, A. Whenever any insurance company following: with intentional disregard of the financial licensed in this Commonwealth to write D. 1. Whenever a court of proper jurisdic- interest of the insured." State Farm Mut. insurance as defined in § 38.2-124 denies, tion finds that an insurance company Auto. Ins. Co. v. Floyd, 235 Va. 136, 144, 366 refuses or fails to pay to its insured a claim licensed in this Commonwealth to write S.E.2d 93, 97 (1988). of $3,500 or less in excess of the deductible, insurance as defined in § 38.2-124 denies, 39) A & E Supply Co. v. Nationwide Mut. Fire if any, under the provisions of a policy of refuses or fails to pay to its insured a claim Ins. Co., 798 F.2d 669, 678 (4th Cir. 1986) motor vehicle insurance issued by such of more than $3,500 in excess of the ("The distress that persons experience at company to the insured and it is subse- deductible, if any, under the provisions of a times of personal or financial loss leaves quently found by the judge of a court of policy of motor vehicle insurance issued by them vulnerable to exploitation, a tempta- proper jurisdiction that such denial, refusal such company to the insured and it is sub- tion that would be enhanced if the insurer's or failure to pay was not made in good sequently found by the judge of a court of contractual liability could never, as a mat- faith, the company shall be liable to the proper jurisdiction that such denial, refusal ter of law, extend beyond the policy limits insured in an amount double the amount or failure to pay was not made in good for even the most flagrant breach."). otherwise due and payable under the pro- faith, the company shall be liable to the 40) See Spence-Parker v. Maryland Ins. visions of the insured's policy of motor insured in the amount otherwise due and Group, 937 F. Supp. 551, 558 (E.D. Va. 1996) vehicle insurance, together with reasonable payable under the provisions of the (citing Bettius & Sanderson, P.C. v. National attorney's fees and expenses. insured's policy of motor vehicle insur- Union Fire Ins. Co., 839 F.2d 1009, 1016-17 The provisions of this subsection shall be ance, plus interest on the amount due at (4th Cir. 1988)); 1 M.J., Insurance, § 156, n.3 construed to include an insurance compa- double the rate provided in § 6.1-330.53 (Matthew Bender & Co. 2007). The argu- ny's refusal or failure to pay medical from the date that the claim was submitted ment would be strongest where the expenses to persons covered under the to the insurer or its authorized agent, insured did not have the financial where- terms of any medical payments coverage together with reasonable attorney's fees withal to mount a defense in a case where extended under a policy of motor vehicle and expenses. a competent defense likely would have insurance, when the amount of the claim 2. The provisions of this subsection shall prevailed. A & E Supply Co. v. Nationwide therefor is $3,500 or less and the refusal be construed to include an insurance com- Mut. Fire Ins. Co., 798 F.2d 669, 677 (4th Cir. was not made in good faith. pany's refusal or failure to pay medical 1986) ("Because the suit for bad faith per- 45) Carolina Cas. Ins. Co. v. Draper & expenses to persons covered under the formance is thus in effect an action on the Goldberg, PLLC, 369 F. Supp. 2d 667, 672 terms of any medical payments coverage insurance policy, 'the provisions of the con- (E.D. Va. 2004), rev'd on other grounds in extended under a policy of motor vehicle tract govern the measure of recovery rather unpublished opinion, No. 04-2285, 138 Fed. insurance when the refusal was not made than any rules applicable to cases sounding Appx. 542, 2005 U.S. App. LEXIS 13691 (4th in good faith. in tort …'. For some types of breach, these Cir. 2005). 50) Nationwide Mut. Ins. Co. v. St. John, 259 provisions might successfully limit the 46) Va. Code § 8.01-66.1(B) provides the Va. 71, 524 S.E.2d 649, 651 (2000). available damages to the stated amount of following: 51) E.g., Lissmann v. Hartford Fire Ins. Co., indemnity…. But if an indemnitor has vio- B. Notwithstanding the provisions of sub- 848 F.2d 50, 53 (4th Cir. 1988); Bettius & lated the contractual duty of good faith, the section A, whenever any insurance compa- Sanderson, P.C. v. Nat'l Fire Ins. Co., 839 F.2d indemnitee may recover full general and ny licensed in this Commonwealth to write 1009, 1016-1017 (4th Cir. 1988); TIG Ins. Co. consequential damages…. Had A & E insurance as defined in § 38.2-124 denies, v. Alfa Laval, Inc., No. 3:07CV683 (E.D. Va. proved foreseeable losses, not susceptible refuses or fails to pay to a third party March 5, 2008). to mitigation, resulting from Nationwide's claimant, on behalf of an insured to whom 52) E.g., Nationwide Mut. Ins. Co. v. St. John, bad faith refusal to pay, Virginia contract such company has issued a policy of motor 259 Va. 71, 524 S.E.2d 649, 650-51 (2000). law would make A & E whole."). vehicle liability insurance, a claim of $3,500 53) Moorehead v. State Farm Fire & Cas. Co., 41) The statute provides the following: or less made by such third party claimant 123 F. Supp. 2d 1004 (W.D. Va. 2000); 1 M.J., § 38.2-209. Award of insured's attorney fees and if the judge of a court of proper juris- DAMAGES, § 20 (Matthew Bender & Co. in certain cases. diction finds that the insured is liable for 2007) ("Damages for emotional disturbance A. Notwithstanding any provision of law the claim, the third party claimant shall are not ordinarily allowed in contract to the contrary, in any civil case in which an have a cause of action against the insurance actions, subject to two exceptions. The first insured individual sues his insurer to company. If the judge finds that such exception permits recovery for emotional determine what coverage, if any, exists denial, refusal or failure to pay was not disturbance where the claim involves bod- under his present policy or fidelity bond or made in good faith, the company, in addi- ily injury. The second exception provides the extent to which his insurer is liable for tion to the liability assumed by the compa- that a plaintiff may recover where the con- compensating a covered loss, the individ- ny under the provisions of the insured's tract or the breach is of such a kind that ual insured shall be entitled to recover policy of motor vehicle liability insurance, serious emotional disturbance was a partic- from the insurer costs and such reasonable shall be liable to the third party claimant in ularly likely result."). attorney fees as the court may award. However, these costs and attorney's fees shall not be awarded unless the court determines that the insurer, not acting in good faith, has either denied coverage or failed or refused to make payment to the Congratulations to insured under the policy. "Individual," as used in this section, shall mean and include Betty S. W. Graumlich any person, group, business, company, organization, receiver, trustee, security, with Reed Smith LLP corporation, partnership, association, or governmental body, and this definition is in Richmond declaratory of existing policy. B. Nothing in this section shall be deemed for winning an iPod Touch to grant a right to bring an action against an insurer by an insured who would other- for participating in the VBA wise lack standing to bring an action. C. As used in this section, "insurer" shall Membership Survey! include "self-insurer."

SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/13 "She Told Me She Was Scared of Him": The Admissibility of Hearsay Evidence that a Murder Victim Feared the Accused BY PROFESSOR JAMES J. DUANE

In the tragically frequent cases in which scope of that exception. The defendant, a man is charged with the murder of his who was charged with murdering his current or former wife or girlfriend, wife, admitted that he shot her but insist- friends and relatives of the deceased rou- ed that he did so by accident. He testified tinely come forward who remember hear- that he did not recall pulling the trigger, ing her once say that she was afraid of and that the gun "just went off" while he him, almost always because of threatening was holding it during an argument. 8 The things she claimed (or at least implied) Supreme Court of Virginia asserted that "it that he had done or said in the past. is difficult to reconcile the conflicting concerning the accused, such statements Prosecutors naturally wish to find some cases" as to when the state of mind logically tell the jury nothing about what way to use this evidence if they can, but it hearsay exception may be used to prove the accused was likely to have done unless is of course hearsay if offered to prove that that an alleged murder victim had once the prosecutor misuses the evidence "for the accused had in fact threatened the claimed to be afraid of the accused, but the impermissible purpose of showing that woman before she spoke those words. To cited and adopted authority from other the victim's fear of the defendant was jus- get around this difficulty, prosecutors rou- states holding that such hearsay is admis- tified." 12 Statements of fear by the deceased tinely try to justify its admission under the sible "to rebut claims by the defense of are never admissible under the "state of hearsay exception for statements about self-defense, suicide, or accidental death." 9 mind" hearsay exception if they are the declarant's "state of mind." But will Since Mr. Clay claimed that the gun he offered, as they were in Clay, to persuade that work? was holding went off and killed his wife the jury "that [the defendant] was a man by "accident," the Supreme Court unani- capable of murder, that he had done A State of Mind mously reasoned that he opened the door things in the past to [the deceased] to jus- In Virginia and every other state, for the prosecutor to prove the hearsay tify this fear, or that [he] had explicitly hearsay statements by a victim about ear- statements she had once made about her threatened [her] life in the past." 13 fear of him, for the purpose of proving lier alleged threats and actions by the Hearsay Claims accused are of course not ordinarily that in fact the discharge of the weapon admissible at a murder trial under the was no accident. On the contrary, hearsay statements by exception for statements about the speak- A Mistaken Ruling the victim as to what she feared or remem- er's state of mind, at least when the bered are properly admitted under this accused makes no claim that he knew any- The ruling in Clay is mistaken and inde- exception only in those unusual cases thing about how his alleged victim died.1 fensible, for two reasons. where such evidence may help the jury This is because that exception never First, in an effort to distinguish Virginia decide whether a person with her mental allows the admission of a statement of cases that had generally refused to admit state would have done the things the memory to prove the fact that was such evidence, the Supreme Court falsely defense claims she did. Such hearsay is allegedly remembered.2 As Justice Koontz asserted that this case was different admissible only to assist the jury in resolv- has correctly pointed out, this critical because "Clay placed his intent at issue, ing conflicting claims about the conduct of restriction is necessary to ensure that the claiming Joy's death was accidental."10 the alleged victim, not the accused. A mur- courts do not "permit the state of mind That makes no sense. Like every criminal der victim's statements of fear of the exception to consume the hearsay rule." 3 defendant, Clay placed his intent at issue accused "may properly be offered to show The Advisory Committee on the Federal by the mere act of pleading not guilty. that the victim would not have acted the Rules of Evidence has explained that this Even if a defendant asserts nothing and way the defendant contends," but should limitation "is necessary to avoid the virtu- offers no evidence, the prosecutor at any be excluded if "there is no dispute about al destruction of the hearsay rule which murder trial is always entitled and the [victim's] conduct as to which [her] would otherwise result from allowing required to prove that the alleged victim's state of mind of fear would be relevant." 14 state of mind, provable by a hearsay state- death was intentional - that is, not the This distinction is critical, because evi- ment, to serve as the basis for an inference product of accidental or natural causes. dence of an alleged victim's fears or beliefs of the happening of the event which pro- Since a simple plea of "not guilty" puts the or other mental state can often give us duced the state of mind." 4 If statements prosecution to its proof as to every ele- important information about her likely about some memory were routinely ment of the offense, including the intent of behavior, even without asking the jurors admissible to prove the accuracy of that the accused, any otherwise admissible evi- to make any forbidden assumption that memory, as Justice Cardozo observed, dence that an alleged murder victim did those beliefs or memories were accurate, "[t]here would be an end, or nearly that, to not die from accidental causes is relevant or that those fears were well-founded. the rule against hearsay." 5 "Obviously, if regardless of whether the accused "raise[s] For example, suppose a defendant the exception for then existing mental con- the defense of accidental death at trial." 11 claims he shot his ex-girlfriend in self- dition included the mental states of mem- Second, Clay rests on a profound mis- defense after she showed up at his house ory or belief offered to prove facts external understanding of the extent to which the with a gun, or attacked him, or invited to the declarant, this exception would "state of mind" hearsay exception applies him to come to her house. In such a case, swallow the entire hearsay rule." 6 to statements about alleged memories of it makes sense to allow the prosecutor to In Clay v. Commonwealth,7 however, earlier events. When a prosecutor offers prove on rebuttal that the victim had stat- Virginia's appellate courts unwittingly hearsay statements of an alleged murder ed shortly before her death that she was swept aside this critical limitation on the victim describing her memories or fears terrified of the defendant, or of guns. 14/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 Even if the jury obeys the necessary limiting instruction that these statements are ABOUT THE AUTHOR offered only to prove her fear—and not whether she had any valid reason to be James J. Duane is a Professor at Regent University School of Law in Virginia Beach. He graduat- afraid—this testimony would still help a ed magna cum laude from Harvard College, where he was elected to Phi Beta Kappa, and cum jury evaluate the defendant's insistence laude from Harvard Law School. He is on the faculty of the National Trial Advocacy College at that she invited him into her house or that the University of Virginia School of Law and is a member of the Boyd-Graves Conference. she came to his house with a gun and threatened him. Even if she is completely mistaken about the memories or beliefs the shooting was accidental and not delib- that she was afraid of the defendant.20 that gave rise to her fears, a woman who is erate. Logically, a deceased's fear of an In a more recent case, Riner v. genuinely terrified of some man or of individual accused of murder is inconsis- Commonwealth,21 the accused was charged guns is not likely to invite him over, or to tent with a claim that the events in ques- with killing his wife by setting their house show up at his house uninvited with a tion culminating in the death were the on fire while she slept. Even though the gun, or to pick a fight with him.15 result of 'pure chance.'" 17 That is simply not accused claimed he was sleeping when The same is true if a murder defendant true. A woman's fear of her husband does the fire started, the trial judge took Clay to claims that his wife shot herself in an act of not logically undermine the plausibility of its logical conclusion and admitted suicide. In that case, the prosecutor should his later claim that he shot her by accident, hearsay evidence that the wife had told be able to call a rebuttal witness to testify unless the jury is improperly permitted her friends about threats she had alleged- that "shortly before she died, the victim and invited to reason — as even Virginia's ly received from the accused, supposedly told me she was leaving her husband and appellate courts did in that case — that a to rebut his suggestion that perhaps the was excited about a new life with her woman who claims to fear her husband fire had started by accident. In the mother and kids in Montana." Even if the must have had some good reason to be Supreme Court of Virginia, the three dis- jurors assume, as the law requires, that afraid of him. If a jury is properly instruct- senting justices — Justice Koontz, joined this testimony cannot be used as evidence ed that her statements were admitted only by Chief Justice Hassell and Justice that she had any valid reason to fear or to prove that she was afraid of that man, Keenan — correctly concluded that this leave her husband, this evidence would and not to be considered as any evidence hearsay was clearly inadmissible, and that still help a jury assess the plausibility of that her fear was rationally based on his the logic adopted by the lower court his assertions about her later conduct. A past conduct, those jurors would have no would "permit the state of mind exception woman who is genuinely excited about a logical basis to discount the probability of to consume the hearsay rule." 22 (The major- new life away from her husband is not his assertion that he shot her by accident. ity did not disagree or even reach that very likely to suddenly change her mind a After all, in comparison with a woman issue, holding that any error in the admis- few days later and take her own life. But who has no fear of her husband, a woman sion of this hearsay had been waived.) But even in that case, the "state of mind" who once mistakenly believed that her those dissenters, who had all joined the exception only admits hearsay evidence husband meant her harm is no more like- Court's unanimous opinion in Clay, were that the deceased had some optimistic and ly to be the victim of a later accidental mistaken to insist that the two cases were upbeat state of mind that was "inconsis- death caused by his carelessness. Guns distinguishable, or that the logic of Clay tent with a suicidal bent,"16 not that she was sometimes go off and take lives by acci- would admit such hearsay only when an afraid of the defendant. dent, and the odds of a woman being accused claiming accidental death "admits A Claim of Accident killed in that manner are not decreased in some role in the events causing the vic- the slightest just because (by an ironic tim's death." 23 The dissenters erroneously The conduct of the alleged victim is coincidence) she once mistakenly feared reasoned that Clay was distinguishable always the central issue in any case in that he intended to hurt her at some time "because Riner was not contending that which a murder defendant claims that he in the past. The suggested inference — "if the fire was the result of his actions." 24 That acted in self-defense ("She started the fight, she once feared him, he probably mur- attempt to distinguish Clay was an illogi- and attacked me first") or that the death dered her" — only makes sense if we make cal and frantic effort to close the barn was a suicide ("I did not shoot her; she shot the forbidden assumption that he had doors long after the horses were gone. herself"). But that is rarely true of cases in done things to give her good reason to fear Evidence that a woman once feared her which a defendant claims that his alleged him. husband tends to rebut his later claim that victim died as the result of an accident, "I shot her by accident" (as Mr. Clay had usually by insisting—as Mr. Clay did— A Victim’s Fear insisted) in precisely the same way it that "I was holding the gun, but I did not So what do the courts mean when they rebutted Mr. Riner's defense that "So far as mean to shoot and it went off by accident." say that evidence of a person's fear of the I know, the fire in our house somehow Such a defendant is not making any accused may sometimes be admitted to started by accident"—namely, by improp- claims about the conduct of his alleged rebut a defense that her death was the erly inviting the jury to make the forbid- victim, not even by implication. Mr. Clay result of an accident? When the Virginia den assumption that what she said about testified, for example, that he started a Supreme Court approved the admission his earlier threats was true, and to then fight with his wife and got a shotgun that of hearsay evidence about a murder vic- reason that it would be a most unlikely discharged by accident; all she allegedly tim's fears of the accused in cases involv- coincidence for any woman who had actu- did was to sit in a chair in her own home. ing "self-defense, suicide, and accident," it ally received murder threats from some A prosecutor cannot properly rebut that cited no judicial authority other than man to ever die any sort of accidental sort of defense testimony with evidence United States v. Brown.18 But in explaining death in his presence. The trial judge in that the wife had once expressed fears that what it meant by "accident," that court Riner correctly extended the indefensible her husband might hurt her, as the specifically described a case in which reasoning of Clay to its logical conclusion. Supreme Court of Virginia allowed in "defendant's version of the facts is that the Although they did not say so and may not Clay, because such evidence only under- victim picked up defendant's gun and was have realized the point, the dissenting jus- mines the plausibility of her husband's accidentally killed while toying with it."19 tices in Riner were actually explaining claim of accident if the jury is improperly What the court had in mind was not a why Clay was thoroughly mistaken and invited to infer that her fear of the man defendant who claims he shot his wife by must be overruled, not distinguished. was somehow justified based on his past accident, but one who testifies that she actions or threats. played with a gun and accidentally shot Shared Opinion The Court of Appeals of Virginia explic- herself. And even then, it would only be itly committed this very fallacy in Clay proper for the prosecutor to rebut the Of course I am not the first to make any when it reasoned: "Testimony of the vic- defendant's allegations with evidence that of these obvious points. They were all tim's fear is relevant to Clay's claim that his alleged victim was afraid of guns, not made plainly enough by Judges Benton

SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/15 and Elder on the Court of Appeals whe on the ability of the jury to understand the 11) Estelle v. McGuire, 502 U.S. 62, 69-70 (1991). they dissented in Clay,25 and they are even required limiting instruction that those 12) 3 STEPHEN A. SALTZBURG, MICHAEL made in the same authorities upon which statements are admissible "only to prove M. MARTIN & DANIEL J. CAPRA, FEDERAL the Supreme Court of Virginia mistaken- that the witness had some memory or RULES OF EVIDENCE MANUAL 1660 (7th lyrelied in that very case! The only case memory, but not that the memory or belief ed. 1998) (emphasis added). cited by that Court specifically empha- was justified." As I have shown, that fine 13) United States v. Brown, 490 F.2d 758, 778 sized that it was talking about an accused line was completely missed by both the (D.C. Cir. 1973). who claims that his alleged victim was Court of Appeals and the Supreme Court 14) SALTZBURG, MARTIN & CAPRA, supra "accidentally" shot by herself,26 not by of Virginia in Clay. When so many of the n. 12, at 1660-61 (emphasis added). 27 15) United States v. Brown, 490 F.2d 758, 767 someone else. And the only treatise cited finest judges in this Commonwealth are so (D.C. Cir. 1993) ("a defendant's assertion that by the Supreme Court in Clay notes that easily confused by this notoriously com- the deceased first attacked him may be evidence of the victim's fear of the accused plex hearsay doctrine, how can we expect rebutted by the extrajudicial declarations of the is "admissible where the defense claims an ordinary jury to understand that dis- victim that he feared the defendant, thus ren- self-defense, suicide, or accidental death tinction with a ten-second explanation? dering it unlikely that the deceased was in fact because in each of those situations the the aggressor in the first instance"). statements look to the future in that dece- NOTES 16) Id. dent's fear makes unlikely and thus helps 1) West v. Commonwealth, 12 Va. App. 906, 909- 17) Clay, 33 Va.App. at 107, 531 S.E.2d at 628 to rebut defense claims about the dece- 11, 407 S.E.2d 22, 23-24 (Va. Ct. App. 1991). It (citations omitted). dent's subsequent conduct," but not as evi- probably goes without saying, but should still 18) 490 F.2d 758 (D.C. Cir. 1973). dence "of the defendant's act or state of be emphasized, that the prosecutor is perfectly 19) Id. at 767 (emphasis added). mind." 28 The Supreme Court of Delaware free to call any eyewitness who actually saw or 20) Id. has likewise pointed out that a victim's heard the defendant assault or threaten his 21) Riner v. Commonwealth, 268 Va. 296, 601 hearsay statements of fear of the defen- alleged victim at some time before her death. S.E.2d 555 (2004). dant are admissible during the State's That testimony is not hearsay at all, and its 22) Id. at 337, 601 S.E.2d at 579 (Koontz, J., dis- rebuttal case only "to counter a defense admissibility is beyond question. This article senting on other grounds). theory that places the victim's own actions only concerns witnesses who did not see the 23) Id. at 338, 601 S.E.2d at 579. squarely at issue," 29 and specifically noted defendant make any threats, but who claim the 24) Id. victim once told them about those threats. 25) Clay, 33 Va.App. at 113-22, 531 S.E.2d at that this limitation was missed by the 631-35. Supreme Court of Virginia in Clay. 30 2) THE BOYD-GRAVES CONFERENCE, A GUIDE TO EVIDENCE IN VIRGINIA 94 26) Brown, 490 F.3d at 767. Conclusion (2007); Kauffmann v. Commonwealth, 8 Va. App. 27) Id. at 780 n.81. 400, 406-07, 382 S.E.2d 279, 282-83 (Va. Ct. App. 28) 2 KENNETH S. BROUN ET AL., Far too many women live in fear of vio- 1989). Testimony about an out-of-court state- MCCORMICK ON EVIDENCE § 276 (2006) lence at the hands of some male acquain- ment by some person describing her memory (emphasis added). tance, and many of those women have or belief - for example, "She told me that she 29) Capano v. State, 781 A.2d 556, 615 (Del. expressed that fear at some point to a was late for a 2:00 appointment to meet her 2001) (emphasis added). friend. Tragically, far too many of these boss" - is only admissible under this hearsay 30) Id. at n.154. women are right about the threat posed by exception if it is offered solely to prove that she 31) United States v. Brown, 490 F.2d 758, 781 that man. But it is just as certain that not had that memory or belief (that is, she thought (D.C. Cir. 1973). all of those women are correct. At least on she was late, perhaps offered to show why she rare occasions such fears are felt by a thought she had reason to hurry). But such evi- woman who mistakenly worries that dence may not be admitted under this rule to some male acquaintance poses a real dan- prove that her memory or belief was accurate or justified (that is, that she really was late and Stay connected with the VBA, ger to her, perhaps because of her exces- that they had indeed agreed to meet at 2:00), as our members and events by sive nervousness, or mild paranoia, or the judge must instruct the jury upon request becoming a “fan” on because she misunderstood some inno- any time hearsay evidence of a memory or a cent or ambiguous remark on his part, or belief is admitted under this exception. gave too much weight to a hasty word 3) Riner v. Commonwealth, 268 Va. 296, 337, 601 spoken in anger, or just did not know that S.E.2d 555, 579 (2004) (Koontz, J., dissenting on he had long since gotten over his anger. If other grounds). that man is later charged with her murder, 4) ADVISORY COMMITTEE NOTE to FRE he has the right to insist that her out-of- 803(3). court statements of memories about his 5) Shepard v. United States, 290 U.S. 96, 105-06 alleged conduct and threats not be admit- (1933). ted under the "state of mind" exception as 6) GLEN WEISSENBERGER & JAMES J. evidence of his guilt, for he would have no DUANE, WEISSENBERGER'S FEDERAL EVI- or a group member on chance to cross-examine her to ascertain: DENCE 489 (5th ed. 2006). See also CHRISTO- "On what grounds did the victim base PHER MUELLER & LAIRD KIRKPATRICK, [her] fear of [him]? Was the fear a ration- EVIDENCE 828 (3rd ed. 2003) (but for this lim- al one? Even if justified in fearing some- itation on the reach of the exception, "[t]he one, was [he] the proper focus of that hearsay doctrine would nearly vanish," 31 because "[v]irtually all statements that carry fear?" And that is no small matter to the information about acts, events, or conditions accused, who is of course presumed to be can be characterized as statements of memory innocent. because they openly disclose the speaker's This article was written in part to clari- thoughts"); United States v. Brown, 490 F.2d 758, Simply search fy why the Supreme Court of Virginia 775 (D.C. Cir. 1973) ("After Shepard, it has been “The Virginia Bar went so terribly wrong in Clay, just in case unquestionably accepted that to allow hearsay that Court is ever persuaded to reconsider statements which relate past events on memo- Association” in each that ruling. Until that happens, however, ry or belief under the state of mind exception my primary objective is to alert trial would in effect swallow the hearsay rule."). program and join us! judges to the need for great caution before 7) 33 Va.App. 96, 531 S.E.2d 623 (Va. Ct. App. using the "state of mind" exception to 2000) (en banc), affirmed, 262 Va. 253, 546 S.E.2d admit hearsay statements describing a 728 (2001). speaker's memories or beliefs, even in 8) Id., 546 S.E.2d at 730. cases where Clay allows their admission, 9) Id. whenever the right to a fair trial will hinge 10) Id. 16/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 Reward yourself. From breakfast on the run to a night at the movies, use your Virginia Bar Association Platinum Plus® MasterCard® credit card with WorldPoints® rewards. You’ll earn points you can redeem for cash, travel, merchandise, even unique adventures. ◆ Rewards for the things you buy anyway. You also have the chance to show your support for Virginia Bar Association every time you present your card.

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Calendar of Events

May 6, 2009 July 23-226, 2009 "Mediator Best Practices: What the VBA Summer Meeting Marketplace Wants" The Homestead, Hot Springs Open Positions Presented by the Virginia Alternative Dispute Resolution Committee ReedSmith LLP, Falls Church October 2-33, 2009 AV Virginia Beach firm seeks attorney 37th Annual Conference on Labor & with 2-4 years experience in civil liti- May 13, 2009 Employment Law gation. Familiarity with commercial/ "Mediator Best Practices: What the Hilton Virginia Beach Oceanfront construction law would be beneficial. Marketplace Wants” Send resumes to John Norris at Norris Presented by the Virginia Alternative October 9-111, 2009 & St. Clair, PC at 2840 S. Lynnhaven Dispute Resolution Committee YLD Executive Committee Meeting Rd., Virginia Beach, VA 23452-6715 or Troutman Sanders LLP, Richmond Stonewall Jackson Hotel, Staunton fax to 757-498-7744

May 7, 2009 October 16-118, 2009 11th Annual Health Law Legislative Update and Extravaganza Board of Governors Meeting The General Assembly Building House Wintergreen Resort Room D, Richmond January 21-224, 2010 CONSULTING SERVICES May 15-117, 2009 120th VBA Annual Meeting YLD Executive Committee Meeting Colonial Williamsburg Statistical Consultant, Human Rights The Sanderling Inn, Duck, NC Cathy Furlong [email protected] (703) 242-7468 $75/hour Visit www.vba.org for the most up-to-date 9412 Cello Ct. information and registration details! Vienna, VA 22182

SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/17 119th VBA Annual MeetingIn Pictures

7 1) (L to R) Charles F. Witthoefft, John H. OBrion, Jr., Jeanne F. Franklin, Lawrence H. Hoover, Jr. and Charles V. McPhillips pres- 8 ent a CLE on ADR. 2) Meeting sponsors Matthew Scott (L) and Tom Krahe from SunTrust(R) relax at the reception 3) Justice Donald W. Lemons addressing “The Vanishing Jury Trial” 4) 2009 VBA President John D. Epps is sworn in accompanied by past VBA presidents. 5) (L to R) James V. Ingold, Hon. Charles E. Poston and David N. Anthony confer between programs. 6) (L to R) Barbara and Jim Korman, Hon. Winship Tower, and Carol Schrier-Polak attend the welcome reception 7) Spouses and guests learn how to prepare “A romantic Valentine Dinner” 8) Incoming YLD Chair Turner Broughton (L) with outgoing chair Livy Haskell (R) 9 9) Attendees enjoy the breakfast buffet on Friday morning. 18/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 2

1) The Intellectual Property &

6 Information Technology Law Section business meeting 2) 2008 VBA President Mike Pace intro- duces the general session program, “A Nation in Debt: Our Obligations to Servicememebers Returning from Combat” 3) A CLE presentation on lawyer addic- tion and mental illness 4) 2008 VBA President Michael Pace (R) presents a portrait of Justice S. Bernard 7 Goodwyn (L) painted by Nancy Mauck 8 (C), to Justice Goodwin 5) (L to R) Angela B. Swanson and Derek Swanson with Russell W.S. Stoner and Emily L. Aldrich at the reception. 6) Participants in the YLD Law School Liaison Recruiting Roundtable 7) A Health Law Section CLE program 8) A fife and drum corps greets reception guests 9) Guests enjoy the continental breakfast at the Annual Breakfast Meeting 10) Community Service Program Chair Nicole Harrell at the CSP booth collect- ing new and gently used books for local charities. 10

9 SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/19 Triggering the WARN Act BY DAVID R. KEENE, II

It is early 2009 and the United States The notices to the State Dislocated planned action is temporary, the estimated remains mired in a recession. In an effort Worker Unit and to the chief local elected duration (if known). Providing this infor- to cut costs, businesses are reducing official must contain: (1) a statement mation can ease the blow of being laid off. staffing through buyouts, retirements, and whether the planned action is expected to While the WARN Act leaves service of layoffs (reductions in force, or RIFs). Such be permanent or temporary and, whether process wide open,13 I counsel you to sent efforts have resulted in a surge in job loss- the entire plant is closing; (2) name and the notice to employees via registered es: In December 2008 the U.S. economy address of the site where the plant closing mail and regular, first-class mail. I have shed 524,000 jobs, and the unemployment or mass layoff will occur; (3) an indication had clients complain about the cost of reg- rate rose to 7.6%.1 From December 2007 whether or not bumping rights exist; (4) istration and postage, but I recommend through December 2008, the total number the name and telephone number of a com- this because: (1) employees often ignore of mass layoff events (defined as one pany point of contact; (5) expected date of mail from their employers (other than employer having at least 50 unemploy- the first separation, and the anticipated paychecks); (2) employees may work ment claims in a five week period) was a schedule for later separations; (6) job titles shifts that make it difficult to get to the staggering 21,137. 2 Put more starkly, at of affected positions, and the number of post office, and; (3) it should not be diffi- least 1,056,850 persons have lost their job affected employees in each job title; (7) the cult for employees to receive notice of as part of a mass layoff event in the past name, address, and chief local elected offi- their impending job loss. year. cial of each union representing affected In my practice I have seen attorneys Each mass layoff event or RIF has the employees (if any).9 draft employee WARN notices that potential to trigger the Worker Notifying the proper chief local elected become a de facto severance agreement, Adjustment and Retraining Notification official can be difficult. For example, in adding extraneous information and Act (WARN Act) 3. The WARN Act is a fed- one location where I counseled a client unnecessary formality. It is important to eral statute requiring employers to pro- conducting a RIF, traveling one mile in keep the notice simple. (Now is not the vide notice of impending job losses to var- any direction seemed to result in going time to show off your SAT words and ious persons and governmental entities, into a different borough, township, village Latin terms should be kept to a dull roar.) who can then take a pro-active approach or city. Who is to receive the notice? The notice must clearly convey informa- to job losses. The WARN Act does not, There, I studied a map I bought at a local tion about the impending layoff; it is nei- however, apply in all circumstances, and convenience store and determined exactly ther a termination letter nor a COBRA determining whether it does can be diffi- where the plant was located and, there- notice, so don't turn it into either. cult. Because of the heavy penalties fore, exactly who to notify. Absolutely do An employment loss is one of three imposed by non-compliance-including not rely on mailing addresses, as these are things: (1) a layoff of more than six months of back pay and attorneys' fees-it often based on convenience, not actual months; (2) a termination (excluding ter- is important to know whether the WARN geography. Finally, if the location remains minations for cause, voluntary termina- Act applies and, if so, how to apply it. unclear, send the notice to multiple offi- tions, or retirement); or (3) the reduction This article begins with a primer on the cials. (If you are worried that the press of work hours of more than fifty percent WARN Act, providing definitions and will learn of the job losses based on the during each month of any six month peri- compliance tips gleaned from years of extra notice, don't be-the press is going to od. 14 A plant closing is an action resulting in practice. It then moves into more difficult find out anyway.) an employment loss within a 30 day peri- material, including when certain excep- Notice to a union must list: (1) the name od for at least 50 or more employees at a tions might apply. Finally, the article con- and address of the site where the plant single site of employment or one or more cludes with a reminder that the WARN closing or mass layoff will occur, and the facilities or operating units, within a single Act is a notice statute, not a make-work name and telephone number of a compa- site of employment. 15 A mass layoff is a law. In total, this article provides attor- ny contact person; 2) a statement whether layoff at a single site of employment neys and human resources professionals the planned action is expected to be per- where at least 33% of the workforce and at with a basic knowledge of the WARN Act manent or temporary and whether the least 50 employees are laid off for a period and, most importantly, the ability to spot entire plant is to be closed; (3) the expect- of six months or more.16 issues. ed date of the first separation and the The WARN Act has a 90-day look back, anticipated schedule for later separations, or aggregation, provision that captures The WARN Act-An Introduction and and; (4) the job titles of affected positions individual events that did not, on their Examples and the names of the workers currently own, trigger the WARN Act.17 This is a trap holding affected jobs.10 for the unwary. Under this provision, it is An employer with 100 or more employ- If there is no union, notice must be sent assumed that any layoffs in the prior 90 ees that is planning a plant closing or mass to individually affected employees.11 The days are related to the current layoff, and layoff must provide at least 60 calendar notice must be written in plain, easily it is the employer's burden to show that days written notice of such impending job understood language and must contain the prior terminations are unrelated. losses. 4 This sentence appears simple on the following: (1) statements of whether Therefore, when small numbers of the surface, but in fact is deeply complex the planned action is expected to be per- employees are terminated over a period of and must be explored. manent or temporary, and whether the greater than 90 days, employers must The WARN Act's definition of employ- entire plant is to be closed; (2) the expect- aggregate each layoff to see whether the ee is broad-anyone who has worked for ed date when the plant closing or mass WARN Act is triggered and, if it is, take the employer more than 6 months in the layoff will commence and when the indi- steps to comply. last 12 months, and employees who work vidual employee will be separated; (3) a There are substantial penalties for fail- an average of 20 hours or more a week, statement of whether seniority rights ure to comply. Failure to provide appro- qualify as employees under WARN. All exist; and (4) the name and telephone priate notice can result in penalties of up other persons are excluded.5 Employer is number of a company official to contact to 60 days worth of back pay and benefits defined as any private, for-profit company for further information.12 for each aggrieved employee, minus any and private, nonprofit companies with 100 These four items are the minimum actual payments made (if any).18 Failure to or more employees.6 amount of information the notice to provide notice to a unit of local govern- The notice is a letter that informs certain employees must contain. In my experi- ment is subject to a civil penalty not to persons of the upcoming employment ence, it is helpful to include additional, rel- exceed $500 for each day of violation.19 losses.7 This written notice must be sent to evant information. That information can Additionally-and this is where WARN the State Dislocated Worker Unit, the chief include how to obtain unemployment really bears its teeth-the prevailing party elected official of the local government benefits, the address of the local unem- can be awarded attorneys' fees. 20 where the plant closing or mass layoff is to ployment office, if special unemployment occur, the union, if there is one, and, if not, benefits are available, potential transfer to each individually affected employee.8 opportunities, severance, and, if the 20/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 When WARN Act Obligations are Excused ABOUT THE AUTHOR David R. Keene, II is an associate with Baker Donelson Bearman Caldwell and Berkowitz in There are three situations in which the Act's 60-day notice requirement is Washington, D.C. where he focuses his practice on labor and employment law. Mr. Keene is a fre- excused: (1) faltering company; (2) unfore- quently published author and speaker regarding all aspects of labor and employment law. He is a seeable business circumstances, and; (3) member of the Pennsylvania, Tennessee and Virginia bar associations, the Society for Human natural disaster. Resource Management and the American Society of Association Executives. Mr. Keene received The faltering company exception is nar- a B.S. from George Mason University and a J.D. from Catholic University of America. rowly construed, and covers situations where a company has sought (but failed to ing an employment transition; it is not a persons in the United States has increased to obtain) new capital or business in order to "make work" statue. This point was made 3.6 million, with approximately 1.8 million stay open and where giving notice would clear in Long v. Dunlop Sports Group of those unemployed losing their jobs in the ruin the opportunity to get the new capital Americas, Inc.27 In Long, the employer shut past three months. Id. or business. This exception applies only to down its South Carolina facility, provided 3) 29 U.S.C. §§ 2101-2109. plant closings.21 the proper WARN Act notices, told 4) 29 U.S.C. § 2101(a)(1), (2), and (3). The unforeseeable business circum- employees not to report to work, and con- 5) 29 U.S.C. § 2101(a)(8). stances exception applies to closings and tinued to provide pay and benefits during 6) 29 U.S.C. §2101(a)(1); 20 C.F.R. § 639.3(a). layoffs that are caused by business cir- the next 60 days.28 The notice stated that 7) 29 U.S.C. § 2102. cumstances that were not reasonably fore- displaced employees would receive pay 8) 29 U.S.C. § 2102(a)(1); 20 C.F.R. § 639.6. seeable at the time notice would otherwise and benefits for 60 days, unless they took 9) 29 U.S.C. § 2102; 20 C.F.R. § 639.7(e). have been required. The unforeseen cir- a job with the plant's purchaser, at which 10) 29 U.S.C. § 2102; 20 C.F.R. § 639.7(c). cumstances must be sudden and unex- point pay and benefits would end.29 11) 29 U.S.C. § 2102; 20 C.F.R. § 639.7(d). pected, and outside the employer's con- During the 60 day period, 22 employ- 12) 20 C.F.R. § 639.7(d). trol, such as the loss of a major contract or ees were hired by the purchasing compa- 13) 20 C.F.R. § 639.8. The regulations per- an unanticipated and dramatic major eco- ny, at which point the former employer mit "any reasonable method of delivery." Id. nomic downturn.22 stopped providing wages and benefits to Notice may be placed in pay envelopes, pro- Finally, the natural disaster exception them. Those 22 employees sued the for- vided that such notice is extraordinary; plac- applies where a closing or layoff is the mer employer for the remainder of their ing the WARN notice on a document nor- direct result of a natural disaster, such as a money and benefits as required under mally delivered with employees' paychecks flood, earthquake, drought or storm.23 WARN.30 is insufficient. Id. If an employer provides less than 60- The employees lost at both the trial and 14) 29 U.S.C. § 2101(a)(6); 20 C.F.R. § 639.3(f). days notice of a closing or layoff by rely- appeals courts. In both instances, the 15) 29 U.S.C. § 2101(a)(2); 20 C.F.R. § 639.3(b). ing on one of these three exceptions, the courts found that the employees had not 16) 29 U.S.C. § (a)(3); 20 C.F.R. § 639.3(c). employer bears the burden of proof that experienced job losses on the date they 17) 29 U.S.C. § 2102(d); 20 C.F.R. 639.5(a)(ii). the exception applies.24 In my practice, I received the WARN notices, but that the 18) 29 U.S.C. § 2104(a)(1), (2). have yet to encounter a situation where job loss, if any, would occur when their 19) 29 U.S.C. § 2104(a)(3). one of these exceptions applies. Other benefits ended. 31 The courts' decisions 20) 29 U.S.C. § 2104(a) & (b). than the natural disaster exception, the emphasized that employees have the 21) 29 U.S.C. § 2102(b)(1); 20 C.F.R. § 639.9(a). others are so narrowly tailored that meet- rights to notice and compensation, but not 22) 29 U.S.C. § 2102(b)(2)(A); 20 C.F.R. ing their criteria is difficult. Note that, to perform work.32 The Fourth Circuit §639.9(b). even if one of these exceptions does apply, added that nothing in the WARN Act sug- 23) 29 U.S.C. § 2102(b)(2)(B); 20 C.F.R. § the employer also must give as much gests Congress sought to protect an indi- 639.9(c). notice as is practicable. vidual's ability to continue performing 24) 29 U.S.C. § 2102(b)(3). work during the 60-day notice period, and 25) 29 U.S.C. § 2103(1); 20 C.F.R. § 639.5(c). When WARN Act Obligations that Dunlop's decision to pay for 60 days 26) 29 U.S.C. § 2103(2); 20 C.F.R. § 639.5(d). Do Not Arise work without requiring 60-days labor 27) 506 F.3d 299 (4th Cir. 2007). There are two situations where WARN "entirely accords with the language, pur- 28) Id. at 300-301. does not apply. First, there is no need to pose, and structure of the WARN Act[.]" 33 29) Id. at 301. provide notice if closing a temporary facil- Conclusion 30) Id. at 301-302. ity, or if the closing or mass layoff is the As the WARN Act is designed to con- 31) Id. at 303. result of the completion of a project.25 This vey necessary information to important 32) "[N]othing in the [WARN] Act suggests exemption applies only if the workers persons, so is this article. The reader that Congress sought to protect an individ- were hired with the understanding that should now have a basic understanding of ual's ability to continue performing labor their employment was limited to the dura- the WARN Act and be aware of its com- during the 60-day period[.]" Id. at 303. tion of the project. An employer cannot mon pitfalls. And finally, remember that 33) Id. at 303. label an ongoing project "temporary" in before conducting a order to evade its obligations under RIF, perform a WARN WARN. As a practical point, I recom- Act analysis to deter- mend that companies hiring employees mine whether it for a limited duration make sure that this applies-a little analysis is communicated in writing. now might prevent a lot Second, an employer need not provide of expense (including notice to strikers or locked out workers the opposing party's when the strike or lockout is equivalent to attorneys' fees) later. a plant closing or mass layoff.26 Non-strik- ing employees who lose their jobs because NOTES of a strike and workers who are not part of the locked out bargaining unit(s) who lose 1) Mass Layoffs in their jobs must receive notice. An December and Annual employer does not need to give notice Total for 2008, news, when permanently replacing a person Bureau of Labor who is an "economic striker" as defined Statistics, U.S. under the National Labor Relations Act. Department of Labor, Compliance Through Closure Jan. 28, 2009. On occasion I have had clients ask 2) The percentage of whether they can pay simply shut down unemployed persons their plant, and pay employees their two rose to 7.6% in January, months salary and benefits pursuant to 2009 from 7.2% in the WARN Act. Each time, the client is December, 2008. Since surprised when I answer "yes". December 2007 to Remember, the WARN Act's purpose is December 2008, the to provide notice and pay while undergo- number of unemployed SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/21 YOUNG LAWYERS DIVISION E. Livingston B. Haskell (Lumber Liquidators, Inc., Toano and previousl elected Executive Committee members YLD Elects New Leaders for 2009 Elaina L. Blanks (Kaufman & Canoles, PC, Norfolk), R. Lucas Hobbs (Elliott Lawson & Minor, Bristol), Rudene Mercer Bascomb (Hunton & Williams LLP, Richmond), Daniel T. Campell (Crowell & Moring LLP, Washington, DC), Travis H. Hill (Williams Mullen, Richmond), Daniel E. Ortiz (Blankenship & Keith, Fairfax), Andrew P. Sherrod (Hirschler Fleischer, PC, Broughton Willett King Richmond) and Heather Hays Lockerman (Troutman Sanders LLP, The Virginia Bar Association Young chair-elect; B. Webb King (Woods Richmond). Lawyers Division elected its new lead- Rogers, PLC, Roanoke) will serve as sec- VBA/YLD committee chairs, who ers for 2009 at its annual business meet- retary-treasurer. with the Executive Committee will ing and luncheon during the 119th VBA Two new members were elected the comprise the Division’s Executive Annual Meeting in Williamsburg. VBA/YLD Executive Committee: Dana Council, are listed on the facing page. Turner A. Broughton (Williams A. Dews and Christopher M. Gill both Contact information for all VBA/YLD Mullen, Richmond) is this year’s with Christian & Barton, LLP in committees is available at VBA/YLD chair. Henry I. Willett, III Richmond. www.vba.org, in addition to brief (Christian & Barton, LLP, Richmond) is They will join Immediate Past Chair, descriptions of committee activities. Advice, Goals and Projects BY TURNER A. BROUGHTON, 2009 YLD Chair Ten years ago, John Epps provided get more young lawyers involved in high school students with a better me with some sound advice as he service to the bar and service to the pub- understanding of government and the assigned me my first task as a lawyer: lic. We believe that the long-term suc- rights guaranteed by the Constitution "Turner, everything will be just fine as cess of this organization is grounded in through in-class presentations. long as you don't screw it up." Sensing involvement. By getting involved, Along with additional opportunities my nervousness, John chuckled before young lawyers understand the personal for involvement, our committees con- politely asking me to get out of his and professional benefits that this tinue to turn in exceptional work. The office. organization provides to them. At the Richmond Law School council recently In many ways, I will do well to heed same time, the public and members of held a political asylum symposium. John's advice over the next year as I the bar get a better understanding of the Under the leadership of Elaina Blanks, chair the VBA's Young Lawyers value that the VBA provides, which Dana Dews, Monica McCarroll and Division. Under Livy Haskell's leader- attracts new members. Karen Robinson, Diversity Recruitment ship: In terms of outlets for involvement, is set to expand yet again, and is explor- there are a couple of projects that are ing conducting mock interviews and • For the first time ever, the VBA new to the VBA that are worth high- resume workshops to assist prospective received first or second place in all four lighting. First, we intend to build on candidates with their marketability in ABA Award of Achievement categories; Hunton & Williams' and Williams this trying economic environment. Mullen's work with the Hispanic Nupur Bal and others involved with the • Led by Katja Hill, the VBA partnered Chamber of Commerce. We are devel- membership committee continue to with the Attorney General's office to oping a VBA-sponsored program to work hard to gain new members raise more than 1,364,000 pounds of help the Hispanic community in through programs that demonstrate the food for food banks around the Richmond with basic legal needs that value of VBA membership to prospec- Commonwealth; are often unmet because of the barrier tive candidates. The Model Judiciary that a lack of command of the English Program and its dozen of volunteers • Travis Hill, through the YLD's language presents. Mike Goldman and continue to teach and inspire Virginia's Richmond Town Hall Meeting Ryan Furgurson are heading up the next generation of lawyers. Committee, played an instrumental role project, and they are currently working The YLD is constantly looking for in the VBA's involvement in and spon- to develop a training program for new ideas, and the YLD Leadership has sorship of the Richmond mayoral lawyers who are participating in the challenged its various committees to debates that occurred this past fall; and project. Once things are up and run- come up with the next project that fos- ning in Richmond, we intend to expand ters the VBA's twin goals of service to • The Diversity Job Fair expanded, with this project to other parts of the the bar and service to the public. To the approximately 225 students registering Commonwealth, beginning with extent that any member of this organi- for the opportunity to network and Northern Virginia. zation has an idea that advances the interview with more than 20 employers. Second, under Brian Hager's leader- VBA's mission, please let us know. Our ship, and in partnership with the John members are willing to provide the Moving forward, the leadership of Marshall Foundation, we will work manpower and elbow grease necessary the Young Lawyers Division's goal is to with Richmond-area judges to provide to turn a good idea into a reality.

22/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL SPRING 2009 VBA Young Lawyers Division Committee Chairs for 2009 ABA Liaison/Project Development/ Law School Council/George Mason: H. Wiegard, Gentry Locke Rakes & Moore Grants: Rudene Mercer Bascomb, Hunton & Mark D. Dix, Bucci & Dix, LLC Divya S. LLP Williams LLP Shenoy, IMC, Inc. Model Judiciary Program: Daniel T. ABA/YLD Award of Achievement: Law School Council/Regent: Joy E. Weber, Campbell, Crowell & Moring, LLP Daniel E. Ortiz, Blankingship & Keith M. Farrah deLeon, Hirschler Fleischer PC National Moot Court: W. Alexander Burnett, Advance Directives Day Project: Molly Law School Council/Richmond: Nancy B. Williams Mullen, Andrew P. Sherrod, Shuttleworth Evans, Unity Health Care, Inc., Sasser, LeClair Ryan, P.C., Heather Hays Hirschler Fleischer PC, Jeffrey F. Starling, Nathan A. Kottkamp, McGuire Woods LLP Lockerman, Troutman Sanders LLP McGuireWoods Bridge-the-Gap: George P. Sibley III, Hunton Law School Council/Virginia: Tarah S. New Lawyers' Survival Guide: Olaun A. & Williams LLP. Grant, Hogan & Hartson LLP, William G. Simmons, Nichols Zauzig Sandler P.C. Choose Law: R. Lucas Hobbs, Elliott Lawson Homiller, Troutman Sanders LLP Pro Bono Hotlines/Statewide Coordinator: & Minor, Elizabeth Hope Cothran, Woods Law School Council/Washington & Lee: Spencer M. Wiegard Gentry Locke Rakes & Rogers, PLC, Martin C. Boyle, Christen C. Church, Gentry Locke Rakes & Moore LLP McGuireWoods LLP, R. Robert Rivers- Moore LLP, Sakina K. Paige, Wachovia Pro Bono Hotline/Central Virginia: Benaicha, Williams Mullen Securities, LLC Richard W. Brooks, Hunton & Williams LLP, Communications/Publicity:Thomas K. Law School Council/William & Mary: Kevin M. Georgerian, Hunton & Williams Johnstone IV, Lewis F. Powell, Jr. U.S. Timothy O. Trant II, Kaufman & Canoles, PC, LLP Courthouse, W. Brian McCann, Hirschler Sarah D. Messersmith, Kaufman & Canoles, Pro Bono Hotline/Northern Virginia: Sarah Fleischer PC PC E. Dean, Hogan & Hartson LLP Community Law Week/Law Day: Monica S. Law School Liaison: Derek Kung, Williams Pro Bono Hotline/Roanoke: F. Elizabeth Burke, Hogan & Hartson LLP Mullen Burgin, Woods Rodgers PLC, Lindsey A. Credit Issues Project: Rudene Mercer Lawyers for the Arts: Jacob H. Rooksby, Waters, Gentry Locke Rakes & Moore LLP, Bascomb, Hunton & Williams LLP, Kimberly McGuireWoods LLP Spencer M. Wiegard, Gentry Locke Rakes & A. Pierro, Kutak Rock LLP Lawyers Helping Lawyers Liaison: Harold Moore LLP Disaster Legal Assistance: Ryan W. Boggs, Han, Hancock, Daniel, Johnson & Nagle Pro Bono Hotline/Tidewater: Richard J.P. Dominion Resources, Inc., Michael P. Legal Food Frenzy: Christopher M. Gill, Crouch, Vandeventer Black LLP Nicholson, Williams Mullen, Ethan G. Ostroff, Christian & Barton, LLP, Erin F.M. Professionalism & Civility in Practice: Vandeventer Black LLP Niedzielski-Eichner, Hunton & William LLP, Benjamin S. Barlow, National Security Diversity Recruitment: Elaina L. Blanks, Derek H. Swanson, McGuireWoods LLP, Agency, Robert E. Byrne Jr., Martin & Kaufman & Canoles, PC, Dana A. Dews, Jacob S. Woody, McGuireWoods LLP Raynor, PC, Daniel E. Ortiz, Blankingship & Christian & Barton, Monica McCarroll, Membership/Statewide Coordinator: Keith, PC, Peer A. Segelke, LeClair Ryan, Williams Mullen, Karen R. Robinson, Kaye Nupur S. Bal, The Lewis Law Firm, PC P.C., D. Cabell Vest, Troutman Sanders LLP Scholer, LLP Membership/Hampton Roads: George G. Special Education Committee: Audrey J. DMV Project/Richmond:W. Brian McCann, Booker, Jr., Troutman Sanders LLP, Burges, Strother Law Offices, PLC Hirschler Fleischer PC Jason E. Manning, Troutman Sanders LLP Town Hall Meeting/Richmond: Travis G. DMV Project/Roanoke: D. Cabell Vest, Membership/Northern Virginia: Emily L. Hill, Williams Mullen Troutman Sanders LLP Aldrich, Hunton & Williams LLP Town Hall Meeting/Roanoke: Lauren Domestic Violence Project/Northern Membership/Richmond: Richard N.P. Morgan Ellerman, The Frith Law Firm, Virginia: Marli J.P. Kerrigan, Federal Bureau Naylor, Hunton & Williams LLP, Lile T. Trice, Maxwell H. Wiegard, Gentry Locke Rakes & of Prisons Troutman Sanders LLP, Thomas R. Waskom, Moore LLP Domestic Violence Project/Richmond: Hunton & Williams LLP The Virginia Lawyer: Thomas G. Voekler, Robyn S. Gray, McGuireWoods LLP Membership/Roanoke: Gregory D. Habeeb, Hirschler Fleischer PC Immigrant Assistance: Alyson E. Stokowski, Gentry Locke Rakes & Moore LLP, Michael Wills for Heroes: Anishiya Abrol, Heather Williams Mullen R. Sloan, Edmunds & Williams, P.C. Hoch Szajda, Williams Mullen, Jennifer A. John Marshall Foundation Liaison: Brian L. Mentor Program/Richmond: Sarah P. Kosteva, McGuireWoods LLP Hager, Hunton & Williams LLP Bridges, Hunton & Williams LLP, Sherry Y. Youth Court Expansion Project: Thomas K. Law School Council/Appalachian: Justin L. Hutter, Hunton & Williams LLP Johnstone, IV, Lewis F. Powell, Jr. U.S. Williams- Mentor Program/Roanoke: Melvin E. Courthouse Williams, Grimes & Williams, P.C., Maxwell Cheek and Hill receive awards at Annual Meeting

Matthew E. Cheek and Travis G. Hill, both with Williams Mullen in Richmond, received special honors during the VBA’s 119th Annual Meeting for their outstanding contributions to the work of the VBA Young Lawyers Division. Cheek received the Sandra P. Thompson Award, which honors outstanding work and long-term service to the YLD. Cheek , has previously served as 2007 YLD chair, Cheek Hill on the YLD Executive Committee, Law School Liaison Hill received the Emerson G. Spies Award, which recog- Committee Chair and as the young lawyer liaison to the nizes enthusiasm, loyalty and dedication to the VBA and VBA’s Community Service Program Council, Membership VBA/YLD. He currently serves on the YLD Executive Committee Committee and the Regional Advisory Committee. and as chair of the Richmond Town Hall Committee. Cheek is a graduate of the University of North Hill is also a graduate of the University of North Carolina Carolina Chapel Hill and Washington & Lee University Chapel Hill and the University of North Carolina School of Law. School of Law. He focuses his practice on banking and real He focuses his practice on general governmental affairs matters. estate matters. SPRING 2009 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/23 PRE-SORTED . . STANDARD VBA U.S. POSTAGE The Virginia Bar Association PAID 701 East Franklin Street, Suite 1120 Permit No. 784 Richmond, Virginia 23219 RICHMOND, VA