2019 Boyd-Graves Conference October 4-5, 2019 Hotel Roanoke

2019 Boyd-Graves Conference October 4-5, 2019

Hotel Roanoke

Revised Materials

BOYD-GRAVES CONFERENCE Hotel Roanoke Roanoke, Virginia October 4-5, 2019

AGENDA

STEERING COMMITTEE: Friday, October 4 Appalachian Room 11:30 a.m. – 1:00 p.m.

SESSIONS: Friday, October 4 2:00 p.m. – 5:00 p.m. Roanoke Ballroom AB

Saturday, October 5 9:00 a.m. – noon Roanoke Ballroom AB

RECEPTION: Friday, October 4 6:00 p.m. Crystal-Roanoke Foyer

DINNER: Friday, October 4 7:00 p.m. (Business Attire) Crystal Ballroom AC Acknowledgment

The Boyd-Graves Conference expresses its heartfelt appreciation to the Virginia Bar Association for its extensive support of the Conference. Although the Conference is not part of the VBA, the VBA makes its staff available for administrative support of Conference activities. The Boyd-Graves members especially thank the staff of the VBA for their outstanding contributions to the success of this Conference.

The 2019 Boyd-Graves Conference is supported by many generous sponsors from our members, and we appreciate your time, expertise and financial support. But this year, Boyd- Graves received an unexpected grant from Virginia Tech’s Center for Organizational and Technological Advancement (COTA) in the amount of $1,110 to support our meeting. COTA provides grants to support conferences and programs hosted at the Hotel Roanoke and Conference Center. COTA seeks to bring organizations to the Roanoke Valley area to highlight the many offerings of the area.

We embrace the opportunity to visit the Star City and Hotel Roanoke and Conference Center and thank COTA for their generous support of our meeting.

REVISED TABLE OF CONTENTS Friday, October 4, 2019

Topic Time Tab Page

Introductions 2:00 p.m. 1 1 John A. C. Keith, Conference Chair

Minutes of 2018 Conference 2:10 p.m. 2 5 Donna M. Rostant, Conference Secretary

Conference Arrangements 2:15 p.m. John A. C. Keith, Conference Chair

Legislative Report 2:20 p.m. 3 21 Professor Hamilton Bryson

Rules of Evidence Update 2:30 p.m. 4 39 Lee Livingston Kent Sinclair

HB 1888 – Statute of Limitations on Sexual Abuse Actions 2:50 p.m. 5 48 Irv Blank

Amendment to §8.01-271 re: Client Signing Pleadings - McGinnis Case 3:05 p.m. 6 51 Roger Creager

GDC Rulings on Unlawful Detainer After Appeal 3:25 p.m. 7 64 Grimes Creasy

Va. Code §8.01-422 – Statutory Recoupment 3:35 p.m. 8 89 David Gogal

Motions to Crave Oyer 3:45 p.m. 9 96 John McGavin

GDC Jurisdiction 4:05 p.m. 10 199 Brian Dolan

Va. Code §8.01-521.20(C) – Limit Experts to Two Per Issue 4:15 p.m. 11 213 Stephanie Grana

Va. Code §54.1-3933 in Light of Rule 3:25 4:25 p.m. 12 217 Stephen Price

Va. Code §8.01-113 – Judicial Sales 4:35 p.m. 13 225 Bill Glover

SB 1190 – Heirs Property 4:45 p.m. 14 232 David Gogal

i Saturday, October 5, 2019

Topic Time Tab Page

Cumulative Experts Fee Shifting 9:00 a.m. 15 271 Elizabeth Perrow

Blockchaining 9:05 a.m. 16 274 Jay O’Keefe

Va. Code §8.01-670 Interlocutory Appeals - Legislative Privilege 9:25 a.m. 17 294 Stuart Raphael

Virginia Supreme Court Rules – Statement of Court’s Jurisdiction 9:40 a.m. 18 318 Monica Monday

Final Pretrial Conference 9:50 a.m. 19 321 Lee Livingston

Use of Depositions in Court Proceedings 10:00 a.m. 20 325 Sandy Havrilak

Amendment to UPTSO to Extend Time for Expert Designations 10:10 a.m. 21 328 Richard Ottinger

Rule 3:8 – Define Responsive Pleadings 10:20 a.m. 22 331 Arthur Schmalz

Removal of Custody Cases from JDR 10:35 a.m. 23 349 Larry Diehl

Magistrate Judges in Circuit Court 10:45 a.m. 24 354 Stephanie Grana for Derrick Walker

Va. Code §55-820.2 10:55 a.m. 25 357 George Peterson a.-p.

Is Publication a Reasonable Way to Give Notice 11:05 a.m. 26 359 John Walk

Deadman’s Statute Study 27 381 Thomas W. Williamson, Jr.

Best Report Award Presented by Conference Chair

Concluding Remarks John A. C. Keith, Conference Chair

ii TAB 1

1 MISSION STATEMENT The Boyd-Graves Conference seeks to improve the quality of civil justice in Virginia. It does so through scholarly study and discussion among experienced civil trial lawyers, judges, legislators, and educators, leading to recommendations for changes to the rules and statutes governing the civil justice system in Virginia. The credibility of the Boyd-Graves Conference is maintained by reporting only on areas in which its members have expertise. Invitations to participate in the Conference are issued based upon demonstrated competence in civil litigation, with a view to fostering balance and diversity in practice areas, in gender and ethnic backgrounds, in geographic dispersion throughout Virginia, and in representation of various firm sizes and practice groups. The Boyd-Graves Conference does not represent or advocate the interests of any group or constituency. The independence of the Conference depends on the good faith of the members’ voting their conscience. Members must sometimes subordinate the private interests of the groups to which they belong, or even their own practice area, to the greater good. By accepting an invitation to participate in the Boyd-Graves Conference, each member pledges to uphold these principles. HISTORY More than three decades ago, Thomas V. Monahan, past-president of both the Virginia Bar Association and the Virginia Trial Lawyers Association, invited a small group of experienced civil trial lawyers to a meeting at the Tides Inn in Irvington to discuss potential changes in the rules and procedures applicable to the trial of civil cases in Virginia state courts. Those invited to attend the initial meeting included lawyers from across Virginia who practiced in both large and small firms. A deliberate effort was made to secure a balance between those who primarily represented plaintiffs in civil trials and those who typically represented defendants. From the outset, the focus of the Conference was the identification and discussion of problems encountered in State court civil litigation, with the objective of reaching a consensus concerning needed changes in either the Rules of Court or the Code of Virginia. Whenever a consensus was reached, the resulting recommendation was made directly to the Supreme Court or to the General Assembly. The Conference, which initially took its name from the site of the meetings, came to be known as the Tides Inn Conference. In its formative years, the Conference worked closely with T. Munford Boyd, Edward S. Graves, and Leigh B. Middleditch, Jr., who had served as advisors to the Virginia Code Commission during the 1977 transition of the Code of Civil Procedure from Title 8 to Title 8.01. Because of their significant contribution to the success of the Conference, the name was changed to the Boyd- Graves Conference.

2 The Conference soon outgrew the Tides Inn, and for many years its annual meetings have been rotated to locations throughout the Commonwealth. What began as informal face-to-face meetings on the sofas of a small lounge at the Tides Inn is now a carefully planned event attended by more than 100 lawyers, judges, professors, and legislators. The Conference is governed by a Steering Committee and a Chair, who generally serves for two years. The Conference has a familial relationship with the Virginia Bar Association, which serves as the repository of the Conference’s records and financial resources and provides invaluable administrative support. Membership in the Conference continues to be by invitation only. We endeavor to facilitate a full and open discussion of issues by maintaining a roundtable configuration and by limiting the number of participants. Larger numbers tend to constrain the individual participation that has been so vital to the work of the Conference. There are no term limits, but neither are there permanent members. Even those who are most active are regularly rotated off the membership rolls to make room for new participants. The Membership Committee attempts to maintain a balance of representation from the various civil litigation practice disciplines, selecting individuals with experience, reputation, and demonstrated ability to contribute to the work of the Conference, as well as a willingness to put aside what benefits his or her particular practice in favor of a solution in the best interests of all involved in civil litigation in Virginia. Although the Boyd-Graves Conference has become larger and more structured, it has remained true to its heritage. At each meeting, the members are invited to suggest topics for future consideration. Other study requests have come from judges, from lawyers who are not currently members of the Conference, and from legislators or legislative committees. The Boyd-Graves Conference feels a particular affinity for the Civil Litigation Section of the Virginia Bar Association, with which it shares members and many common professional interests; members of the Civil Litigation Section are invited to suggest potential topics for study. The Steering Committee evaluates each suggested topic and decides which should be approved for consideration at the next meeting of the Conference. The Conference Chair has the responsibility of appointing a committee to study each of the approved topics. Committee members frequently include lawyers who are not members of the Conference but who are willing to contribute their expertise to its work. Each committee is expected to complete its work and to submit a report of its findings and recommendations to the Conference Chair in advance of the annual meeting. These reports are published in the form of an agenda booklet that is distributed to each member of the Conference in advance of the annual meeting. The agenda booklet was once distributed in paper form. Beginning in 2014, the Conference has distributed the booklet in electronic form only.

3 Each report is presented to the Conference by the committee chair and, after discussion and possible modification of the committee’s recommendations, the Conference votes to approve or disapprove those recommendations. The Conference will make a recommendation for a statutory or rule change only if there is a consensus. A simple majority is not sufficient. Although the question of whether there is a consensus is left to the discretion of the Conference Chair, the overwhelming majority of the participants (at least two-thirds) must agree before a recommendation for change will be made. The 2019 meeting of the Boyd-Graves Conference will convene at the Hotel Roanoke on October 4-5, 2019. In addition to the issues carried over from 2017, the Conference will consider a variety of topics, both procedural and substantive, relating to the handling of civil litigation in Virginia state courts. As it has done for more than three decades, the Conference will work toward reaching consensus recommendations that reflect the best of the creative talents of its members.

TAB 2

5 Boyd-Graves Conference Minutes of the Meeting on the Full Conference Williamsburg Lodge, Williamsburg, Virginia October 5 and 6, 2018 Call to Order. Chairman John Keith called the meeting of the Boyd Graves Conference to order at 2:05 p.m. at the Williamsburg Lodge in Williamsburg, Virginia. The Chairman recognized three new members, Judge Dan Ortiz, Judge Richard Patterson and Solicitor General Toby Heytens and welcomed them to the conference. The Chairman also reported that two legislative members would be present including Senator Mark Obenshain and Delegate Jay Leftwich, Jr. Chairman Keith reminded members to review the Mission Statement and History of the Boyd Graves Conference found at Tab 1 of the Conference handbook. Chairman Keith announced that the pre-dinner reception would begin at 6:00 p.m., with dinner following. The dinner keynote speaker will be Robin Wood, former Boyd Graves member. Mr. Wood will provide personal anecdotes about Munford Boyd and Edward Graves followed by memorable moments of his officiating career. Chairman Keith thanked all of the sponsors of the 2018 Conference and reiterated the importance of sponsorships. The 2019 Boyd Graves Conference will be held at the Hotel Roanoke on October 4 and 5, 2019. Sponsors are needed for the 2019 Conference. Members desiring to sponsor the 2019 Conference, should report their interest to the Chair. The Chairman again expressed the Conference’s gratitude to the Virginia Bar Association staff, Yvonne McGhee, Khadijah Vasser and Marilyn Shaw, to Kristen Walsh and Brittany Olwine from Legislative Services, and to Jeff Palmore, the VBA lobbyist. The Chairman also recognized and thanked Hamilton Bryson and Kent Sinclair for the academic support provided to the conference, and the sponsors for providing financial support. Legal pads were circulated for members to document suggested topics for study in 2019. Approval of Minutes. The October 6, 2017 minutes were approved without corrections or amendments. Legislative Report. Hamilton Bryson reported that all three statutory changes recommended by the Conference in 2017 passed with ease. Professor Bryson reported that an especially important statutory change codified the procedure for contempt of court proceedings. Five Rule changes were proposed. One rule change, sanctions for complete failure to respond to discovery, was adopted by the Supreme Court without the need to proceed through the Rules Advisory Committee. Three other rule changes were successful. The

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6 rule change involving preservation of error in motions to reconsider was not approved. The Legislative Report is found at Tab 3 of the Conference Handbook. Rules of Evidence Update Lee Livingston and Kent Sinclair presented the Evidence Committee’s report and highlighted important changes to the evolving Virginia Rules of Evidence. Lee Livingston reminded members that Emerald Point v. Hawkins, 294 Va. 544 (2017) was annotated in two sections – 2:702 (Testimony By Experts) and 2:706 (Use of Learned Treatises with Experts). A careful practitioner should review the case carefully to determine whether the holding requires a more timely designation of medical literature. Professor Sinclair highlighted the significance of Rule 2:606 (Jurors Competency as a Witness), adopted by the Supreme Court of Virginia effective July 1, 2018. The Evidence Committee’s full report is found at Tab 4 of the Conference Handbook.

Study Topics Tab 5: Rules on Witnesses in Depositions David Gogal presented the topic for the study group which recommended one amendment to Rule 4:1(c) and two amendments to Rule 4:5 as set forth below:

Rule 4:1(c): Protective Order. Upon Motion by a party or by the person from which discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with the affected parties in an effort to resolve the dispute without court action, and for good cause shown the court ….may make an order which justice requires to protect a party or person from annoyance, embarrassment, oppression or under burden or expense, or to ensure the integrity of the proceeding, including one or more of the following: …. (2) that the discovery may be had only on specified terms and conditions …. (5) that discovery should be conducted with no one present except persons designated by the court.

The amendment to Rule 4:1(c) was approved by consensus.

Rule 4:5(b)(4): (b) Notice of Examination: General Requirements; Special Notice; Production of Documents and Things; Deposition of Organization.

(4) Unless otherwise agreed to by the parties or otherwise provided by court order or by law, generally only the witness, the parties, their respective

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7 counsel including such counsel’s staff and those involved with the administration of the deposition (such as court reporters and translators) may attend the deposition, given the private nature of discovery. Counsel of record for the parties and counsel for any non-party deponent shall timely confer regarding any other attendees which are requested by a party or by the deponent to be present at the deposition, and any objections shall be resolved by the court prior to the deposition, in the court’s discretion.

The amendment to Rule 4:5(b)(4) was approved by consensus.

Rule 4:5 (c): Examination and Cross Examination; Record of Examination; Oath; Objections. (1) Unless the parties agree otherwise, examination and cross- examination of witnesses shall proceed in the sequence normally found at trial. Objections pursuant to Virginia Rule of Evidence 2:103 shall not be required, and a party need only object to the form, of a question, and on issues of confidentiality or privilege; all other evidentiary objections are preserved for trial. Examination and cross examination of witnesses may proceed as permitted at trial.

The amendment to Rule 4:5(c) did not achieve a consensus.

Tab 6: Rule 3:18(b) Study Committee Presented by John Fletcher. The study group examined the issue of whether a general allegation of negligence or contributory negligence is sufficient in cases where expert testimony is required, or whether the rule should be amended to require more specificity to avoid surprise or unfair prejudice. After polling judges and practitioners in the field, the study group determined that general allegations of negligence were rare, that when general allegations were present, the issues could be resolved by Motions for Bills of Particulars or by discovery, that there was not a problem with litigants being surprised, and that it would be unfair to require detail of every allegation of negligence in a Complaint, - when information is continually obtained and updated throughout the discovery process.

The study group recommended no change to Rule 3:18(b).

Tab 7: Gap in the Statute of Limitation for Written Contract not signed by the Party to be Charged. Presented by study group chair, David J, Gogal, the study group recognized that Code Section 8.01-246 includes a “gap” in the statute of limitations for written contracts not signed by the party to be charged. To cure the deficiency, the study group recommended that written contracts not signed by the party to be charged be specifically included in Section 8.01-246(4) so that the three year statute of limitations would apply and

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8 proposed an amendment to accommodate that goal. The proposal carried with only slight modifications to include:

A BILL to amend and reenact §8.01-246 of the Code of Virginia, relating to the statute of limitations; action based on unsigned written contract.

Be it enacted by the General Assembly of Virginia: 1. That §8.01-246 of the Code of Virginia is amended and reenacted as follows:

§8.01-246 Personal actions based on contracts Subject to the provisions of §8.01-243 regarding injuries to persons and property and of §8.01-245 regarding the application of limitations to fiduciaries, and their bonds, actions founded upon a contract, other than actions on a judgment or decree, shall must be brought within the following number of years next after the cause of action shall have accrued: 1. In actions or upon a recognizance, except recognizance of bail in a civil suit, within 10 years and in actions of motions upon a recognizance of bail in a civil suit, within three years, omitting from the computation of such three years such time as the right to sue out such execution shall may have been suspended by injunction, supersedeas or other process; 2. In actions on any contract that is not otherwise specified that is in writing and signed by the party to be charged thereby, or his agent, within five years whether such writing be under seal or not; 3. In actions by a partner against another for settlement of the partnership account or in actions upon accounts concerning the trade of merchandise between merchant and merchant, their factors, or servants, within five years from cessation of the dealings in which they are interested together; 4. In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, and/or his agent, or (ii) any unwritten contract, express or implied, within three years. Provided that as to any action to which §8.2-725 of the Uniform Commercial Code is applicable, that section shall be controlling except that in products liability actions for injury to the person and for injury to property, other than the property subject to contract, the limitation prescribed in §8.01-243 shall apply.

With the slight modifications to the study group’s original recommended amendment (reflected in italics above), the motion carried by consensus of the Committee.

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9 Tab 8: Motion to Reconsider Finality of Order Study group chair Tom Williamson reported that the group sought to determine whether the Rules of Court should be amended to clarify that a post-trial motion suspends the finality of an order similar to the operations of F.R.C.P. 59 and FRAP 4; and, - whether the standard of review, should be an abuse of discretion – in an appeal of a motion to reconsider that raises new issues.

After extensive discussion, a majority of the study group did not favor adoption of a rule suspending the finality of an Order modeled on the federal system. The Group also concluded that abuse of secretion is the current standard of review and no further action was needed.

Tab 9: Nonsuit-Statute of Repose Study group chair Bryan Slaughter reported that this group was assigned to determine whether the nonsuit tolling statute, Va. Code §8.01-229(E)(3) should be amended to provide for tolling of the statute of repose. Ultimately, the group was in favor of changing the nonsuit tolling statute to include the statute of repose and recommended the following modification (in italics):

3. If a plaintiff suffers a voluntary nonsuit as prescribed in §8.01- 229(E)(3), the statute of limitations or statute of repose as contained in §8.01- 250, with respect to such action shall be tolled by the commencement of the nonsuited action, regardless of whether the statute of limitations is statutory or contractual ….

The recommendation to amend Va. Code §8.01-229(E)(3) passed by consensus of the Committee.

Tab 10: Rule 1:12 – Provision Requiring Separate Faxed or Mailed Certificate of Service Presented by Henry Ware, the study group was asked to consider whether Rule 1:12 should be amended by deleting the provision that requires a separate faxed or mailed certificate of service when service of a document is made by electronic mail.

After extensive discussion, the group determined that while several study group members, as well as most polled on the issue, favored deleting the separate certificate altogether, there was insufficient support to recommend a change at this time. Moreover, the study group believed that revising the language carried the potential to increase the burden and expense on counsel.

Thus, the Study Group made no recommendations for change.

Tab 11: Appellate Damages – Va. Code §8.01-682 George Somerville reported that the study group investigated whether §8.01-682 should be amended to provide, or clarify, that appellate damages should be awarded to an appellee who substantially prevails on appeal. Under the current practice, the mandate

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10 issued by the Clerk awards damages to appellees, at the judgment interest rate, if a money judgment is affirmed in its entirety; awards no damages if a money judgment is affirmed in part; awards $250 damages if a judgment “not for the payment of money, except costs” is affirmed in its entirety; and awards no damages if such a judgment is affirmed in part.

After the Committee concluded that the statute should be amended, the Study Group presented two Amendment options.

After deliberating the options, the Conference, by consensus, selected Option 1 as set forth below:

Option 1: §8.01-682 What damages awarded appellee

When any judgment is affirmed whether in whole or in part, damages shall be awarded to the appellee on the portion of the judgment affirmed. When the judgment is for the payment of money, the damages shall be the interest to which the party is legally entitled, as provided in §6.2-302, or any other provision of law, from the date of the filing the notice of appeal until the date the appellate court issues its mandate. Such interest shall be computed upon the whole of the recovery affirmed, including interest and costs, and such damages shall be in satisfaction of all interest during such period of time. When the judgment is not for the payment of any money, except costs, the damages shall be such specific sum as the appellate court may deem reasonable, not being more than $2,500 nor less than $150.

Tab 12: Using “Shall” in Legislative Drafting Presented by Study group chair Stuart Raphael, this group’s task was to study use of the word “shall” in legislative drafting and make appropriate recommendations. After extensive research (the results summarized in the Conference award-winning report at Tab 12) the group concluded the word shall, replete in the Virginia Code and Rules of Supreme Court, is subject to substantial ambiguity and should be replaced by the correct term such as must, may, will, should or is entitled to (the ABC Rule). The study group recommended that the Conference approve and publish its recommendation to the bench and bar; and designate a working group to coordinate with the Division of Legislative Services, the Code Commission, and the Virginia Rules Advisory Committee to formulate a long-term plan to revise the Code and Rules to implement the ABC Rule.

The group’s recommendations passed unanimously by the Conference.

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11 Tab 13: Should Rule 5A:25(d) be amended to require an Appellee, when filing its designation of additional contents to be include in the appendix, also include a statement of additional Assignments of Error so appellant may consider whether to include additional records in Joint Appendix? Presented by Study group chair, Monica Monday, the group concluded that Rule 5A:25(d) be amended to require the appellee include with his designation of the appendix, a statement of any additional assignments of error that he intends to raise in the brief of the appellee. The group proposed the following amendment:

(d) Determination of Contents. Within ten date after the filing of the record with the Court of Appeals, or, in a case in which a petition for appeal has been granted, within ten days after the date of the certificate of appeal issued by the clerk of the Court of Appeals, counsel for appellant shall file in the office of the clerk of the Court of Appeals a written statement signed by all counsel setting forth an agreed designation of the parts of the record to be included in the appendix. In the absence of such an agreement, counsel for appellant shall file with the clerk of the Court of Appeals a statement of the assignments of error and a designation of the contents to be included in the appendix within fifteen days after the filing of the record or, in a case in which a petition for appeal has been granted, within fifteen days after the date for the certificate of appeal; not more than ten days after this designation is filed, counsel for appellee shall file with the clerk of the Court of Appeals a designation of any additional contents to be included in the appendix and in appeals of right, a statement of any additional assignments of error the appellee wishes to present. The appellant shall include in the appendix the parts thus designated, together with any additional parts he considers germane.

The Study Group’s proposal carried by consensus of the Committee.

Tab 14: Are amendments needed to §64.2 et seq. of the 1950 Code of Virginia, - Service of Guardianship Petitions? Roger Mullins presented this group’s findings in the absence of study group chair, Sandy Hvarilak. The group was asked to determine whether Virginia Code §64.2 et seq. to require that any person entitled to notice of a petition for guardianship or conservatorship be served with a summons and copy of the petition to clarify that such a person shall have standing to participate in the proceeding, and whether the seven day notice period provided in §64.2-2004 allows sufficient time to prepare a proper response to the petition. As part of its due diligence, the study group sought input from the Virginia Academy of Elder Law Attorneys (the “Academy”), the Elder Law and Special Needs Section Council of the VBA (the Section”), and the Wills, Trusts and Estate Section of the VBA.

Although the study group believe the statute is in need of legislative review and change, they were unable to reach a consensus with the Academy and Section, as to how it

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12 should be revised. Thus, the study group recommend the issue be abandoned by the Conference until such time as the Academy or Section may request input.

Tab 15: Is the Joint Appendix Index still necessary in the age of electronic filing? After studying the issue of whether the joint appendix was still essential in the age of electronic storage and filing, study group chair Frank Friedman reported that the group concluded that the appendix should not be retired. Because it is streamlined to assist in identifying documents in a sprawling record, the appendix still plays a positive role in the appellate process and while imperfect, the majority of the study group found that the benefits of the appendix outweighed any disadvantages. The study group concluded that appendix should remain in place as is, and no further recommendations were made.

October 6, 2018 Call to Order. Chairman John Keith reconvened the meeting of the Steering Committee at 9:00 a.m.

Chairman Keith recognized and thanked Eckert Seamans for sponsoring the Conference and apologized to Tony Troy for inadvertently omitting the firm from its list of sponsors.

Chairman Keith reminded Committee members that he was directed to write to the Chief Justice to ascertain interest in studying and/or providing guidance on abolishing Assignment of Errors, and whether Virginia should adopt appeals of right in all cases except death penalty appeals. Chief Justice Lemons declined to appoint a group to study abolishing assignments of error. (See Attachment A). He did however, support a group to investigate whether Virginia ought to adopt appeals of right, led by Professor Kent Sinclair. Professor Sinclair reported that the group included Justices Goodwyn and Kelsey, Chief Judge Huff and fifteen other leaders from the various Virginia bar groups. Professor Sinclair reported that Virginia is the only state that does not have appeals of right, and while there was great support for the idea among the group members, there were many obstacles from practical and economic standpoints. The group strongly supported the idea of appeals of right, but will take no action at this time given concerns about the current staffing crisis in the Clerk’s offices especially General District Courts and the lack of available funding. Professor Sinclair reported that the proposal will likely be addressed again in the future when the immediate staffing and funding issues have been resolved.

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13 Tab 16: Protective Order Study Group Following its review of the relevant statutes relating to protective orders, Study Group chair Susan Hicks presented the six issues considered by the group including:

1. Should the civil and criminal protective order statutes be amended to provide for expungement if such protective order has been denied? 2. Should the current burden of proof (preponderance of the evidence) to obtain a protective order be modified to a higher burden in light of the potential, criminal consequences of a violation? 3. Should any or all of the protective order statutes be modified to clarify that a respondent is not precluded from petitioning for his or her own preliminary protective order? 4. Should Code §§ 16.1-253.2(D) and 18.2-60.4(D) be amended to remove the mandatory jail sentence for violations of a protective order when the violation does not involve any violent act or other action that would warrant the issuance of a protective order? 5. Is the Commonwealth Attorney a mandatory party to a protective order when the protective order is extended simultaneously with a conviction for a violation of that protective order? 6. Should Code §§16.1-253.1(A) and 19.2-152.9(A) be amended to require the presiding judge to make written findings when the judge grants a preliminary protective order without an accompanying written affidavit?

Lively discussion ensued as to whether it was within the purview of Boyd Graves to recommend changes to protective orders, given that the General Assembly largely views them as essentially criminal in nature.

The Conference voted to recommend the various issues be studied by the Virginia Criminal Justice Conference.

Tab 17: Court Reporter Certification This carryover topic was once again presented by study group chair Phillip Coulter who reported the results of the VBA survey which asked participants to: (1) identify problems with court reporting, if any, (2) whether there was a need for certification of court reporters; and, (3) general experience with court reporters. Of the over 850 responses, 70% of the members reported no problems with court reporters, but 52% believed there should be mandatory certification and /or regulation of reporters. Mr. Coulter also reported that the Virginia Court Reporters Association intends to introduce legislation to create a Virginia Board of Court Reporting to address quality standards for court reporters. Those efforts are supported by the National Verbatim Reporters Association and the National Court Reporters Association. The study group recommended that in light of the proposed legislation, it remain active to provide further study of any legislative proposal that may be introduced to the General Assembly so it could make informed recommendations to the Boyd Graves Conference.

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14 The recommendation to continue the Study Group to monitor legislative proposals regarding court reporters carried with a consensus. Tab 18: Should Virginia Code § 55-82.2 be amended? Study Group chair George Peterson reported the task assigned was to determine whether Virginia Code §55-82.2 should be amended to more clearly set forth the notice required, the Court’s responsibility to acquire jurisdiction over a party, and whether a transferee is deprived of procedural mechanisms for attaching the motion. During discussion of the study group’s proposed amendment, members of the Conference proposed revisions that were accepted by the Study group. However, some members expressed concerns regarding the interplay between §55-80 and § 55-81, and the potential for conflict.

The Conference, by consensus, recommended the study group carry over to further study the issue. Tab 19: General District Court – Discovery and Jurisdictional Limits Initially two study groups, one chaired by John Walk, and one chaired by Brian Dolan, were appointed to study General District Court issues. With permission of Conference Chair Keith, the two groups merged to discuss the general issues of whether the discovery rules should be expanded in General District Court and whether the jurisdictional limit for General District Court should be increased beyond $25,000.00 The issue of removal from General District Court was also briefly addressed by the groups.

Study group chairs John Walk and Brian Dolan reported on the combined activities of the two groups.

A. Expanded Discovery in GDC. The two methods of discovery available for a litigant in General District Court are a Bill of Particulars and a subpoena duces tecum. The study group believed that the advantages of General District Court are its speedy and economical resolution of matters, which would be compromised if more discovery methods were available to the full extent permitted in Rule 4 in Circuit Court. As for a more modest method to obtain additional discovery, the Group considered a proposal to amend Rule 3:7 related to Bill of Particulars, to require that, if ordered, the BOP would provide additional information including witnesses with knowledge, disclosure of expert testimony to be offered at trial and particulars of damages and their method of calculation. However, the group did not reach a consensus as to whether the amendments were necessary or desirable.

B. Increase of jurisdictional limit of $25,000. Chairs Walk and Dolan relayed the study group’s discussion about the advantages and disadvantages of increasing the jurisdictional limit. The initial reaction of many members was that no increase was necessary. However, after discussing the economic difficulty of litigating a case in the $25,000 to $50,000 range in Circuit Court, the groups decided to request the issues be carried over to allow time to develop a proposal whereby the jurisdictional limits would be expanded to a $40 - $50K range,

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15 coupled with restoring the defendant’s right of removal as to cases falling within the General District Court’s expanded jurisdiction. Thus, a plaintiff desiring increased discovery could initiate a case in Circuit Court and a defendant would have the option to remove the case.

Chairs Walk and Dolan recommended the joint groups be merged, and the issues carried over to study, in more detail, the potential amendments. By consensus, the recommendation was approved by the Committee.

Tab 20: Should the Rules of Court be amended to permit the use of depositions in Juvenile and Domestic Relations Courts (the “juvenile courts”) and if so, under what conditions? Chair Larry Diehl presented the Study Groups’ concerns that time limitations for hearings and trials involving issues important to families, such as custody and visitation, often prevents the presentation of all of the evidence important to a fair and just outcome. A compromise was to supplement trial or hearing evidence with limited, deposition testimony. With that in mind, the Study Group proposed an amendment to Rule 8:15 (c) as set forth below: Rule 8:15. Discovery … (c) Other Cases. – In all other proceedings, the court may, upon motion timely made and for good cause, enter such orders in aid of discovery and inspection of evidence as permitted under Part Four of the Rules, except that no deposition may be taken; provided, however, that a party shall be entitled to take the deposition of one witness in any case if the court finds one or more of the conditions set forth in Rule 4:7(a)(4) applies to the witness. In cases with multiple pending petitions or motions to amend or review the same parties, the one deposition per party limit shall apply to all pending petitions or motions to amend or review cumulatively. The proposal carried with a consensus of the Committee.

Tab 21: Pretrial Scheduling Order Designation Deadlines for Depositions to be Used at Trial. Chair Lee Livingston identified two concerns identified by the study group, in the Pretrial Scheduling Order regarding deposition testimony to be used at trial. The first concern was the impracticality of the deadlines by which portions of a non-party deposition must be disclosed. The second concern is if, and if so, when, a excerpts of a party’s deposition testimony should be disclosed pretrial. The Study Group concluded that the Pretrial Scheduling Order deadlines for designating non-party deposition testimony were impractical and recommended a change as set forth below:

Boyd Graves Conference Minutes Fall 2018 11

16 XI. Deposition Transcripts to be Used at Trial. Counsel of record …….. Other than trial depositions taken after completion of discovery under Paragraph II, designations of portions of non-party depositions, other than for rebuttal or impeachment, shall be exchanged no later than 30 days before trial, except for good cause shown or by agreement of counsel. It becomes the obligation of the non- designating parties of any such designated deposition to file any objection or counter-objection within seven days after the proponents designation. Further, it becomes the obligation of the non-designating parties to bring any objections or other unresolved issues to the court for hearing no later than 5 days before the trial. The proposed Amendment amending deadlines for non-party deposition designations was approved by consensus of the Committee. The Study Group presented options concerning party deposition designation, none of which achieved a consensus. Tab 22: Should the Virginia Uniform Interstate Depositions and Discovery Act be amended to clarify certain provisions? Study group chair Arthur Schmalz reported the group’s findings to four areas of inquiry:

1. Whether a proper “foreign subpoena” under the VUIDDA must be issued only by the clerk of court of record in another state, or whether the term, also contemplates a foreign-issued subpoena? The Group concluded that the VUIDDA was sufficiently clear to allow foreign attorney- issued subpoenas to be domesticated in Virginia using the procedures set forth in the Act. Thus, no amendments were recommended.

2. Whether the procedures a Virginia Circuit Court Clerk must follow under the VUIDDA should be clarified? The Group found that the procedures set forth in VUIDDA, while not extensive in detail, were sufficiently clear. Thus, no amendments were recommended.

3. Does Code §8.01-412.10(E) conflict with Rules 4:5(a1)(iv) and 4:9(b)(iv) insofar as it may allow out-of-state litigants to use discovery processes in Virginia other than those under the VUIDDA? The Group found no substantial conflict between §8.01-412.10(E) and Rules 4:5(a1)(iv) and 4:9(b)(iv), and saw no need to address the issue further.

4. Does Code §8.01-407(C) continue to serve a valid purpose after enactment of the VUIDDA? The Study Group found that §8.01-407(C) no longer serves a valid purpose after enactment of the VUIDDA and in fact, could conflict with the Act. Thus, the Group recommended that subsection (C) be deleted from §8.01-407. A draft bill accomplishing the recommended action was drafted by Legislative Services.

Boyd Graves Conference Minutes Fall 2018 12

By a consensus, the Committee approved the Study Group’s recommendation to excise subsection C from §8.01-407.

Tab 23: Should the Virginia Code and/or Rules of Court Permit Live Testimony by Video Chair Frank Hilton presented this study group’s proposal for Rule 1:26 regarding the incorporation of video testimony. After a robust discussion with the full Conference, the Study Group agreed to incorporate revisions and clarifications to the Rule. With the revisions included, as set forth below, Rule 1:26 was approved by consensus.

Rule 1:26. Testimony by Audiovisual Means in Civil Cases (a) Implementation of Statutory Authority; Specification of Conditions. In accordance with Code § 17.1-513.2, live (real-time) testimony by any party or witness in a civil action or proceeding by any means of audiovisual technology that complies with Code § 19.2-3.1(B) shall be permitted on the conditions specified in subparts (b) through (f) of this Rule. (b) Order for Audiovisual Testimony; Contents. The court may grant permission for the testimony of any witness by audiovisual means under subpart (d) of this Rule by entering an order implementing the oath and consent provisions of subpart (e) of this Rule and the responsibility/cost provisions of subpart (f). The order must include provisions demonstrating that the court has considered: (1) the size, number and location of video display screens at the remote location and in the courtroom or facility where the trial or hearing will take place; (2) any requirements for camera angle or point of view, any picture-in- picture requirements, and/or camera movement; (3) requirements for the witness' ability to view counsel, the parties, the jury, and the judge; (4) handling of exhibits; (5) procedures for sidebar conferences between counsel and the court; (6) making and ruling on objections within and outside of the hearing of the remote witness; (7) any required encryption of signal transmission; (8) creation of a record of such testimony; and (9) any necessary limitations or conditions upon persons who may be present in the location where the witness testifies, and whether those persons must be identified prior to the testimony of the witness. (c) Leave of Court. The court should enter an order permitting live testimony by means of any audiovisual technology under subpart (b) of this Rule as follows:

Boyd Graves Conference Minutes Fall 2018 13

18 (1) Consent of All Parties. Upon consent of all parties for live testimony of any party, lay witness, or expert witness by means of any audiovisual technology; or, (2) Distant and Other Specific Witnesses. If (i) a lay witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the Commonwealth, unless it appears that the absence of the witness was procured by the party offering the testimony, (ii) the witness is a judge, or is a superintendent of the hospital for the insane more than 30 miles from the place trial, or is a physician, surgeon, dentist, chiropractor, or registered nurse who, in the regular course of his profession, treated or examined any party to the proceeding, or is in any public office or service the duties of which prevent his attending court; provided, however, that if the witness is subject to the jurisdiction of the court, the court may, upon a showing of good cause or sua sponte, order the witness to attend and to testify ore tenus. (d) Motion for Leave of Court to Present Testimony by Audiovisual Means. Where neither subparts (c)(1) or (c)(2) of this Rule apply, a party may move for leave to present the live testimony of one or more witnesses by audiovisual means. Unless the court in its discretion allows a motion on shorter notice, such motion shall be filed at least 60 days in advance of the trial or hearing. Any party opposing such motion shall file any objections in writing 10 days after service of such motion, unless a different schedule is set by the court. In the exercise of its discretion on such motion, the court should consider whether the ability to evaluate the credibility and the demeanor of a witness or party is critical to the outcome of the proceeding and whether the non-moving party has demonstrated that face-to-face cross examination is necessary because the issue or issues the witness or party may testify about may be determinative of the outcome, and may enter an order under subpart (b) of this Rule permitting presentation of live testimony by a witness by audiovisual means as follows: (1) Non-Party Lay Witnesses. Upon a finding that good cause exists for accepting testimony by audiovisual means for each witness who will so testify. (2) Party and Expert Witnesses. Upon a finding that – with due regard for the importance of presenting such testimony orally in open court – exceptional circumstances warrant receiving the testimony of a party or expert witness by audiovisual means in the interests of justice. (e) Witness Oath; Consent of Nonresidents. (1) Remote Testimony Given in Virginia. Any witness testifying from a remote location within Virginia shall be placed under oath in the same fashion as any live witness present at the trial or hearing. (2) Remote Testimony Given Outside the Commonwealth. Any witness testifying from a remote location outside the Commonwealth shall sign before testifying a written consent: (A) to provide testimony under an oath administered by court personnel located in the Virginia court or facility;

Boyd Graves Conference Minutes Fall 2018 14

19 (B) expressly agreeing to be subject to the penalties of perjury under Virginia law; and, (C) consenting to personal jurisdiction of the Virginia courts for enforcement of the perjury laws. The consent of each such witness shall be signed before a notary or other person authorized to take oaths or sworn acknowledgments in the jurisdiction where the witness is located, and shall be filed among the papers of the Virginia action or proceeding before such testimony, or promptly thereafter. (f) Provision of Necessary Equipment; Allocation of Costs. Unless the courtroom or facility where the testimony will be presented has equipment meeting the standards of Code § 19.2-3.1(B) and complying with the court's order under subpart (b) of this Rule, the party offering testimony of a witness by audiovisual means is responsible for providing the necessary equipment, and all necessary logistical arrangements, at no cost to the court. All costs and arrangements for the location where the witness will give testimony shall also be the responsibility of the party offering the testimony. Failure to assure that the courtroom or facility where the trial or hearing is to be held – or the location where the witness would testify – is properly set up for such testimony shall preclude the offering of testimony by audiovisual means, and shall not constitute grounds for a continuance sought by the party attempting to offer such testimony. Tab 24: Telephonic Trial Testimony Conference Chair Keith reported that this Study Group, chaired by Sandra Rohrstaff, was tasked with analyzing the issue of Out of Court Witness Testimony. The group began its work by studying rules and procedures adopted in other states, before proposing a new draft Rule 1:24. Given the complexity and number of issues involved, the Study Group requested it be continued for further work in conjunction with the Group studying Video Testimony, chaired by Frank Hilton, with a draft Rule 1:24 to be presented in 2019. The Study Group will be carried over to 2019. Concluding Remarks: In his concluding remarks, Chairman Keith announced that the Best Report Award will be presented to Stuart Raphael for his report - The Use of Shall vs. Will in Statutes. The Chairman thanked the members of the conference for their dedication and hard work. The Conference was adjourned at 12:25 p.m. Minutes by Donna Miller Rostant, Conference Secretary

Boyd Graves Conference Minutes Fall 2018 15

TAB 3

21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

TAB 4

39 To; Boyd Graves Conference From: Rules of Evidence Committee R. Lee Livingston, Chair; Professor Kent Sinclair, Project Reporter

Report on the Guide To Evidence Revisions for 2019 August 30, 2019

The Guide to the Rules of Evidence in Virginia contains the full text of the Virginia Rules of Evidence adopted by the Supreme Court of Virginia and enacted into law by the General Assembly. It retains the format of recent years. The Evidence Committee reviewed recent case law and statutory developments over the summer, met in person, and prepared edits for the Guide through an effective date of August 1, 2019.

Case law included in the Notes has continued importance in Virginia practice. The wording of section 5 of chapters 688 and 708 of the 2012 Acts of Assembly, Virginia Rule of Evidence 2:102 as set forth in this book, and the Committee’s Note to that Rule make it clear that case law—whether it predates or follows the adoption of the Rules of Evidence—may be cited and considered in interpreting and applying the now-codified Rules.

Boyd Graves Evidence Committee Members for the 2019 Revisions W. Coleman Allen, Jr., Esq. Hon. D. Arthur Kelsey Monica T. Monday, Esq. John D. McGavin, Esq. Sona Rewari, Esq. Hon. Deanis Simmons Hon. James Willett Thomas W. Williamson, Jr. Catherine French Zagurskie, Esq. Prof. Kent Sinclair, Project Reporter R. Lee Livingston, Esq., Chair

Style Change The Evidence Committee unanimously concluded in its 2019 discussions that continued inclusion of parallel citations to the S.E. reporter system is

40 unnecessary, in view of the ready availability of access to opinions using the official reporter numbering, as well as copies available on the web sites of the Court of Appeals and Supreme Court. The Supreme Court itself stopped including parallel citations one year ago. We discussed the matter with Virginia CLE, which publishes the Guide, and that office was in complete support of this change, which will greatly improve readability of the Notes included in the Guide, and make sure it remains in a handy size.

Editorial Highlights of the 2019-2020 Edition Edits

Rule 402 -- Revised Notes on dog-alert evidence, reading in part:

Dog alerts and tracking behavior. The Supreme Court has approved admission of evidence concerning the behavior of trained canines upon foun- dational testimony establishing appropriate training and reliability of the dog in tracking persons or in the detection of specific drugs by odor, and the witness-handler’s qualifications in interpreting the dog’s behavior, together with circumstances conducive to dependable interpretation of the dog’s responses. See Jones v. Commonwealth, 277 Va. 171, 670 S.E.2d 727 (2009) (drug detection dog alerts); Epperly v. Commonwealth, 224 Va. 214, 233, 294 S.E.2d 882, 893 (1982) (dog tracking evidence). See also Castillo v. Commonwealth, 70 Va. App. 394 (2019) (cadaver dog evidence). For discussion of the foundation for expert testimony, see the Notes to Rule 2:702.

Rule 404 – Revised Note regarding proof of a victim’s character for violence.

Subdivision (a)(2). Introduction of evidence of a pertinent character trait of the victim where the defendant argues self-defense is permitted by Virginia law. Carter v. Commonwealth, 293 Va. 537, 544-45, 800 S.E.2d 498, 501-02 (2017) (threats allegedly made by the victim); Barnes v. Commonwealth, 214 Va. 24, 197 S.E.2d 189 (1973); Canipe v. Commonwealth, 25 Va. App. 629, 491 S.E.2d 747 (1997); see Randolph v. Commonwealth, 190 Va. 256, 56 S.E.2d 226 (1949). Regarding admissibility of prior charges and convictions to show the victim’s character for violent or turbulent behavior, see Anderson v. Commonwealth, 69 Va. App. 396, 402- 05 (2018). The prosecution may offer proof of the victim’s character for pertinent traits only after the defendant has put the victim’s character in issue. Lee v. Commonwealth, 188 Va. 360, 365-66, 49 S.E.2d 608, 610-11 (1948). Evidence pertaining to the victim of a criminal sexual assault is controlled by the statute embodied in Rule 2:412. See also Epperly v. Commonwealth, 224

41 Va. 214, 294 S.E.2d 882 (1982) (to establish death of victim). On the character of the victim, see Luck v. Commonwealth, 30 Va. App. 36, 515 S.E.2d 325 (1999). On the issue of how recent the victim’s conduct must be in order to be admissible, see Carter, 800 S.E.2d at 503 (“the ultimate issue becomes whether such evidence of prior conduct was sufficiently connected in time and circumstances” as to be probative of present character). The court has discretion to determine how many prior acts of the victim will be received. Id. (allowing recent acts but excluding events years earlier).

Rule 404 – Revised Notes regarding proof of a defendant’s prior sexual offenses and other prior “bad acts”

Under Virginia Code § 18.2-67.7:1(A), an exception to the doctrine under Rule 404(b) enacted in 2014, a defendant’s prior conviction for a sexual offense (as defined in the statute) is “admissible and may be considered for its bearing on any matter to which it is relevant” as proof in the prosecution of a felony sexual offense involving a child victim. Effective July 1, 2014, the Supreme Court of Virginia adopted new Virginia Rule 2:413 to implement the specific provisions of this statute, and the opening phrase of Rule 2:404(b) was added to provide a cross-reference to the new Virginia statute and Rule, which establish an exception to the general ban of Rule 2:404(b) on the use of prior conduct to support the inference that a defendant committed the presently charged offense. There is very little reported case law interpreting the new provisions as this edition of the Guide is prepared, but the clear intention of the statute is that “any matter” to which the prior conviction is relevant will include use of the prior offense to prove that the defendant committed the presently charged offense (that he has a “propensity” to commit such crimes) and perhaps to address other issues, such as knowledge or intent. As is true of all “prior bad acts,” proof admissible in Virginia under Rule 2:404(b), pursuant to Rule 2:413(e), of evidence of prior sex crime convictions, while “admissible” (not barred by basic character evidence principles or Rule 2:404(b), for example), may nonetheless be excluded “in accordance with the Virginia Rules of Evidence, including but not limited to Rule 2:403.” Va. Code § 18.2-67.7:1(E). See Blankenship v. Commonwealth, 69 Va. App. 692, 700-02 (2019) (Prior convictions may only be excluded under the statute if the danger of unfair prejudice substantially outweighs their probative value. The trial court may consider the details of the prior convictions in determining admissibility, but only the conviction orders themselves may be received in evidence). The new statute and Rule are not limited to instances when the defendant elects to testify and is subject to impeachment as provided in Rule 2:609.

42 There are several other exceptions to the general rule excluding evidence of prior conduct of the accused under Virginia case law. Evidence of “other crimes” is relevant and admissible if it tends to prove any element of the offense charged. Thus, evidence of other crimes is allowed when it tends to prove motive, intent, or knowledge of the defendant. Guill, 255 Va. at 138, 495 S.E.2d at 491; Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805; see McGowan v. Commonwealth, 274 Va. 689, 652 S.E.2d 103 (2007); Pryor v. Commonwealth, 276 Va. 312, 661 S.E.2d 820 (2008) (incidents after the crime unduly prejudicial as bad acts offered to show identification of the perpetrator); see also Slaughter v. Commonwealth, 49 Va. App. 659, 644 S.E.2d 89 (2007) (other acts admissible to show intent); Thomas v. Commonwealth, 44 Va. App. 741, 607 S.E.2d 738 (2005) (crime scene facts and motive); Mughrabi v. Commonwealth, 38 Va. App. 538, 567 S.E.2d 542 (2002) (showing state of mind and intent to defraud). Evidence of other crimes, wrongs, or acts may also be introduced to show such things as relationship, identification, preparation, general plan or scheme, and absence of mistake or accident, where the probative value for such a purpose outweighs the prejudice to the defendant. Ortiz v. Commonwealth, 276 Va. 705, 667 S.E.2d 751 (2008); Rodriguez v. Commonwealth, 249 Va. 203, 454 S.E.2d 725 (1995); Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988). See Castillo v. Commonwealth, 70 Va. App. 394, 416-17 (2019) (use of protective order on issues of access to crime scene and authority to enter premises). Concerning the admission of other crimes proof to show a “common plan,” see Severance v. Commonwealth, 67 Va. App. 629, 645, 799 S.E.2d 329, 336 (2017) (“common plan or scheme”); Scates v. Commonwealth, 262 Va. 757, 553 S.E.2d 756 (2001) (this ground for admission requires such a concurrence of common features that the various acts in the present case are naturally to be explained as part of a general plan of which they are the individual manifestations); Satcher v. Commonwealth, 244 Va. 220, 230- 31, 421 S.E.2d 821, 827-28 (1992); McWhorter v. Commonwealth, 191 Va. 857, 870-71, 63 S.E.2d 20, 26 (1951). Virginia Rule of Evidence 2:404(b) expressly directs that admission of evidence of other crimes committed by a defendant, under the exceptions to the general rule of exclusion of such proof, is subject to the further requirement that the legitimate probative value of the evidence must exceed the incidental prejudice to the defendant. Castillo v. Commonwealth, 70 Va. App. 394, 417 (2019); Pryor v. Commonwealth, 276 Va. 312, 661 S.E.2d 820 (2008); see McGowan v. Commonwealth, 274 Va. 689, 652 S.E.2d 103 (2007); Commonwealth v. Minor, 267 Va. 166, 172, 591 S.E.2d 61, 65 (2004); Scates v. Commonwealth, 262 Va. 757, 761, 553 S.E.2d 756, 759 (2001); Guill, 255 Va. at 139, 495 S.E.2d at 491-92; Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890 (1983).

Rule 412 – Revised Note on admissibility of prior “sexual conduct” between a rape/sexual assault victim and the defendant

With the exception of minor wording adaptations in the opening paragraph with no substantive effect, this Rule tracks the language of the statute. “Prior sexual conduct” for purposes of this shield statute is defined in Virginia Code § 18.2-67.10(5) to be “any sexual conduct on the part of the complaining witness which took place before the conclusion of the trial, excluding the conduct involved in the offense alleged under this article.” It has been held that where the evidence offered involves prior allegations, not “sexual conduct” under Virginia Code § 18.2-67.7, the rape shield statute is not implicated. See Roadcap v. Commonwealth, 50 Va. App. 732, 653 S.E.2d 620 (2007); Richardson v. Commonwealth, 42 Va. App. 236, 590 S.E.2d 618 (2004) (citing cases). See also Fahringer v. Commonwealth, 70 Va. App. 208, 215- 18 (2019) (kissing was not prior sexual conduct under the statute and rule).

Rule 413 – Revised Note on interpretation of Code § 18.2-67.7:1

Both the statute and Rule 2:413 recite that the admissibility they auth- orize does not displace any other grounds that may exist in Virginia law for using a prior conviction, such as impeachment under Rule 2:609 or proof of substantive elements of a crime (such as the offense of being a felon in possession of a firearm or being a “repeat offender” under certain drunk driving statutes). On the other hand, both the statute and Rule make it clear that— while subsection (a) declares that qualifying prior convictions are “admissible”—the offer of such convictions by the prosecution is subject to defense objections that the probative value of such proof is substantially outweighed by its prejudice to the defendant under Rule 2:403, or that the proof should be excluded under any other provision of the Virginia Rules of Evidence. In Blankenship v. Commonwealth, 69 Va. App. 692, 700-02 (2019), the Court of Appeals describes the general operation of Code § 18.2-67.7:1 and confirms that such prior convictions may be excluded only if the danger of unfair prejudice substantially outweighs their probative value. The statute and rule state that – while the trial court may consider the details of the prior convictions in determining admissibility – only the conviction orders themselves may be received in evidence.

44 Rule 611 – Revised Note on constitutionality of child video testimony statute for criminal cases

Subdivision (a). Virginia has allowed its trial judges great latitude regarding the mode and order of examination of witnesses. See, e.g., Butler v. Parrocha, 186 Va. 426, 43 S.E.2d 1 (1947). After adverse examination of a witness, cross-examination must be allowed. Food Lion, Inc. v. Cox, 257 Va. 449, 513 S.E.2d 860 (1999). See also Virginia Code § 18.2-67.9 regarding testimony of child witnesses, applied in Parrish v. Commonwealth, 38 Va. App. 607, 567 S.E.2d 576 (2002). See also Castillo v. Commonwealth, 70 Va. App. 394, 417 (2019) (holding § 18.2-67.9 constitutional). On the mode of interrogating children who are the victims of alleged sexual offenses, in light of the trial court’s discretion under Rule 2:611(a) to protect witnesses, the testimonial provisions of Virginia Code § 18.2-67.9, and the requirements of the Confrontation Clause of the Sixth Amendment to the United States Constitution, see Turner v. Commonwealth, 63 Va. App. 401, 758 S.E.2d 81 (2014) (child witness apparently unable to testify orally to details of the sexual offense was permitted to answer questions from the prosecution by hand writing responses in open court on anatomically correct drawings, in the presence of defendant and counsel, and subject to cross-examination by defense counsel).

Rule 803(6) – Revised Note on business records kept in the “cloud” or in computer file servers maintained by others

The codified Rule is the modern iteration of both the “shopbook rule,” Buchanan v. Higginbotham, 123 Va. 662, 97 S.E. 340 (1918), and the traditional business records exception, French v. Virginian Ry., 121 Va. 383, 93 S.E. 585 (1917). Virginia case law admits facts or events contained within the business record, but not otherwise inadmissible opinions or conclusions expressed therein. Neeley v. Johnson, 215 Va. 565, 211 S.E.2d 100 (1975); Boone v. Commonwealth, 213 Va. 695, 194 S.E.2d 689 (1973). The alleged presence of opinion in a document is an independent ground for objection and must be raised by the opponent of the exhibit separately from any general attack on the foundation for the business records hearsay exception. See Arnold v. Wallace, 283 Va. 709, 725 S.E.2d 539 (2012). On computer records and computer-generated records or reports, see McDowell v. Commonwealth, 273 Va. 431, 641 S.E.2d 507 (2007) (inventory prepared using computer records on the day of a shoplifting crime); McDowell v. Commonwealth, 48 Va. App. 104, 628 S.E.2d 542 (2006); Lee v. Commonwealth, 28 Va. App. 571, 507 S.E.2d 629 (1998). See also Melick

45 v. Commonwealth, 69 Va. App. 122, 135-47 (2018) (records stored in file server computers owned or controlled by others, or in the “cloud”). Several modern cases hold that practical necessity creates substitutes for the personal knowledge of the recorder of the information. See Joyce v. Commonwealth, 56 Va. App. 646, 696 S.E.2d 237 (2010).

Rule 804(b)(5) – Revised Note on the Deadman’s Act hearsay exception

Exception (b)(5) invokes the statutory provisions of Virginia Code § 8.01- 397, the “Dead Man’s statute,” which generally provides that when one who would have been a party litigant is incapable of testifying on his own behalf, due to death or incapacity, the testimony of a surviving adverse party litigant must be corroborated. See 1924 Leonard Rd., LLC v. Van Roekel, 272 Va. 543, 636 S.E.2d 378 (2006); see generally Keith v. Lulofs, 283 Va. 768, 724 S.E.2d 695 (2012) (corroboration in wills context); Virginia Home for Boys & Girls v. Phillips, 279 Va. 279, 688 S.E.2d 284 (2010) (corroboration must emanate from competent witnesses or legal sources outside the surviving witness’s own testimony or from circumstances beyond the control of the surviving witness); Williams v. Condit, 265 Va. 49, 574 S.E.2d 241 (2003) (application of the corroboration requirement); Diehl v. Butts, 255 Va. 482, 499 S.E.2d 833 (1998) (heightened corroboration required in fiduciary relationships); Bowman v. Commonwealth, 28 Va. App. 204, 503 S.E.2d 241 (1998) (rule inapplicable where decedent is not party). A substantial body of case law addresses this statute. See Johnson v. Raviotta, 264 Va. 27, 563 S.E.2d 727 (2002); Rice v. Charles, 260 Va. 157, 532 S.E.2d 318 (2000); Economopoulos v. Kolaitis, 259 Va. 806, 528 S.E.2d 714 (2000). An “interested party” is a witness who has a pecuniary interest in common with the party for whom the witness testifies. Jones v. Williams, 280 Va. 635, 639, 701 S.E.2d 405, 407 (2010). Uncorroborated testimony may be relied upon even though an adverse party is unable to testify, if another person having an interest derived from the person unable to testify, testifies on behalf of himself or the person unable to testify. Johnson, 264 Va. at 34-35, 563 S.E.2d at 732.

Under the plain language of the Dead Man’s Act and this Rule, there is a hearsay exception for “all entries, memoranda, and declarations” by a decedent—a doctrine making all of the decedent’s statements admissible to the extent they are “relevant to the matter in issue,” whether or not they were made contemporaneously with the transaction in suit. Gelber v. Glock, 293 Va. 497, 800 S.E.2d 800 (2017)(this hearsay exception applies in any case by or against a decedent/incapacitated person); Shumate v. Mitchell, 296 Va. 532, 546-49 (2018) (applying the hearsay exception and distinguishing the corroboration requirement applicable under other provisions of the Dead Man’s Act).

Numerous other minor editorial corrections and changes were made in the 2019 updating.

For 2020, please send any comments or suggestions to:

Evidence Committee c/o Prof. Kent Sinclair, Reporter [email protected] [email protected]

TAB 5

Boyd-Graves S/C for Sexual Abuse - Voting

Judge Gordon Willis No Steve Busch No Malcolm McConnell Yes Tom Carrico Yes Wyatt Durrette No Kia Memmer No Irving Blank No

§8.01-249(b)

The Committee was made up of Judge Gordon Willis, Steve Busch, Malcolm McConnell, Wyatt Durrette, Tom Carrico, Kia Memmer and Irv Blank, Chairman. The Committee benefitted from the contributions of those associated with both Plaintiffs and Defendants' perspective, as well as the judiciary.

We had two spirited meetings with interesting comments and perspectives offered. Wyatt Durrette offered to discuss this with the patron, Delegate Miyares. His report of that meeting did change one vote from against the change to favoring it.

The Committee also reviewed a summary of four recommendations by a Pennsylvania Grand Jury regarding the Pennsylvania diocese victims’ report, a Wall Street Journal article summarizing the views Dr. Paul McHugh, a professor at the John Hopkins School of Medicine, and the anecdotal evidence of one of our members who has litigated these cases for the defense.

The vote was 5-2 against the proposed change to Va. Code §8.01-249.6.

Perhaps the most influential factor in the recommendation was our interpretation of the present wording of Va. Code §8.01-249.6. It clearly states that the statute of limitations does not accrue until "…after the removal of infancy or incapacity, or when the fact of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician, psychologist, or clinical psychologist."

The present wording of Va. Code§ 8.01-249.6 allows a cause of action to be brought many years after occurrence of the sexual abuse or the victim reaching adulthood.

The Committee was also concerned about employers or others with exposure being left to defend these actions long after the abuse occurred and/or the perpetrator had died and/or witnesses and evidence were no longer available.

The Committee thought the present limitations posed by Va. Code §8.01- 249.6 are among the most generous in Title 8.01.

While this appeared to be an easy topic, there was considerable back and forth during our deliberations. We considered the thoughts of the patron, the horrible and complex consequences of sexual abuse, the difficulty of defending these suits and decided that both Plaintiffs and Defendants litigating under Va. Code §8.01-249.6 are presently adequately and appropriately protected and the statute should not be amended as proposed.

Thank you for the opportunity to look at this topic and report thereon.

Irving M. Blank Chairman

TAB 6

51 THE CREAGER LAW FIRM, PLLC

September 7, 2019

By E-Mail John A. C. Keith Blankingship & Keith, PC 4020 University Drive, Suite 300 Fairfax, VA 22030

Re: Boyd Graves Study Regarding Motion or Pleading Personally Signed by a Represented Party

Dear John:

You have asked our Committee to study the following topic:

[W]hether Virginia Code § 8.01-271 should be amended to address the situation raised in McGinnis v. Comm., Rec. No. 180055 (Dec. 13, 2018) where a pleading was signed by a represented party but not counsel.

The members of our Committee (in addition to myself) are:

Lucia Anna Trigiani, Esq. Donald N. Patten, Esq. Wallace B. Wason, Jr., Esq. Martha JP McQuade, Esq. Peter C. DePaolis, Esq.

As will become evident from the discussion below, the issue that emerges from McGinnis is whether an amendment of the Rules of Supreme Court of Virginia or of Virginia Code Section 8.01-271.1 should be proposed to address motions, pleadings, or other documents which are signed by parties who are represented by counsel.

The members of this Committee considered that issue and decided that the interests of justice would be served by allowing this type of defect in the signing of a motion, pleading, or other document to be cured. This could be accomplished by an amendment of Virginia Code Section 8.01-271.1 and an amendment of Rule 1:5A of the Rules of Supreme Court of Virginia. The Committee recommends the proposed amendments which are set forth later in this report.

In McGinnis v. Commonwealth, 296 Va. 489, 493 (2018), Daniel Ernest McGinnis, a criminal defendant, filed a post-trial motion to set aside verdict and for a new trial. Although McGinnis was represented by counsel, the motion was not signed by his counsel but was personally signed by McGinnis. The motion contended that the evidence was insufficient to sustain his convictions of three counts of larceny by worthless check because the Commonwealth

1500 Forest Avenue, Suite 120, Richmond, Virginia 23229 (804) 747-6444 (Work) (804) 747-6477 (Fax) [email protected] 52 failed to prove that the checks were “not in payment of a debt” and had been passed with an intent to defraud. The trial court denied the post-trial motion. McGinnis’ appellate counsel signed and filed a timely notice of appeal, and thereafter signed and filed a Petition for Appeal with an assignment of error alleging that the evidence was insufficient as a matter of law. McGinnis averred that the error had been preserved by the post-trial motion and the order denying it.

The Court of Appeals granted McGinnis an appeal on his assignment of error. After the parties had filed their briefs and the appendix, the panel of judges assigned to the appeal advised the parties that they should be prepared to answer the following question at oral argument:

Is a motion to set aside the verdict that was signed by the defendant but was not signed by the defendant's attorney of record sufficient to preserve an issue for appellate review? See Code Section 8.01-271.1.

On the next day, McGinnis’ appellate counsel asked to sign the post-trial motion but the trial court clerk’s office denied the request.

At oral argument in the Court of Appeals, McGinnis’ counsel argued that the issues raised by the post-trial motion were sufficiently preserved for appeal for two reasons. Counsel contended that the contemporaneous objection requirement was satisfied because even though the post-trial motion was filed on the twentieth day after the trial court’s judgment, the trial court had actually ruled upon the motion and denied it. Regarding the defective signature of the post-trial motion, counsel contended that Virginia Code Section 8.01-271.1 includes a provision (hereinafter referred to as the “safe harbor provision”) that a defectively signed motion can be signed after the defect is called to the attention of counsel. The statute includes the following sentence: “If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.” Va. Code § 8.01-271.1.

The Court of Appeals held that the defectively signed post-trial motion was not sufficient to preserve for appeal the issue which it sought to raise. The Court of Appeals further held that the safe harbor provision of Virginia Code Section 8.01-271.1 was not applicable. The Court of Appeals affirmed the convictions.

On appeal, the Supreme Court of Virginia discussed the procedural issue. The Supreme Court observed that in a long line of decisions it had held that pleadings which were defectively signed were invalid. 296 Va. at 498-99. The Supreme Court further stated: “In none of these cases, however, were we required to consider the efficacy of a pleading filed pro se by a represented party.” 296 Va. at 498-99. In discussing that issue, the Supreme Court noted that Rule 1:4, Rule 1:5, and Virginia Code Section 8.01-271.1 all contain provisions requiring that a pleading, motion, and other paper must be signed by an attorney representing the party or by the party if the party is not represented by counsel. Neither the Rules nor the statute contain provisions allowing a party who is represented by counsel to sign a motion, pleading, or other document.

The Supreme Court further stated that the “safe harbor provision” contained in Virginia Code Section 8.01-271.1 did not apply to the defectively-signed motion at issue in the case. The Supreme Court held:

The safe harbor provision of Code § 8.01-271.1 does not apply in this case simply because it applies only where the "pleading, motion, or other paper is not signed." (Emphasis added.) The motion to set aside the verdict filed January 18, 2017 was signed by McGinnis. Accordingly, we need not address McGinnis' second assignment of error in this appeal. This conclusion, however, also lays bare the fact that Code § 8.01-271.1 provides no express remedy to the circumstances of this case. The statute simply does not contemplate a pleading signed by a party who may or may not have authority to do so.

296 Va. at 500 (italics added by the Supreme Court).

The Supreme Court ultimately ruled, however, that it did not need to decide whether a motion, pleading, or document which is defectively signed by a party who is represented by counsel is invalid. The Commonwealth argued that language in Virginia Code Section 8.01-271.1 which authorized a “party who is not represented by an attorney” to file a pleading pro se implicitly meant that a party who is represented by an attorney may not do so, and thus the post-trial motion should be found invalid. The Supreme Court did not decide this issue. The Court stated:

Because in this case we are of opinion that we can assume without deciding that the merits of McGinnis' assignment of error were properly before the Court of Appeals, it is not necessary to adopt or reject the Commonwealth's contentions.

296 Va. at 500. The Supreme Court then addressed the merits of the appeal and held that the convictions of McGinnis were supported by sufficient evidence.

Regarding the undecided issue regarding the effect of a pleading signed by a party who is represented by counsel, the Supreme Court further stated:

We can certainly envision circumstances where a criminal defendant, for example being unable to contact his counsel or having counsel refuse to act on his behalf and facing the expiration of the 21-day period under Rule 1:1, would wish to prosecute a post-verdict motion pro se. The record in the present case does not reflect why trial counsel did not sign McGinnis' post- conviction motion. Nevertheless, we conclude that we are unable to make a determination of this issue in the present case because it is the function of appellate courts to interpret statutes passed by the General Assembly, not to add language to them to address situations perhaps not contemplated when the legislation was drafted.4 "Courts cannot 'add language to the statute the General Assembly has not seen fit to include.' Holsapple v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561 (2003). '[N]or are they permitted to accomplish the same result by judicial interpretation.' Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360 (2001)." Washington v. Commonwealth, 272 Va. 449, 459, 634 S.E.2d 310 (2006).

296 Va. at 500-01.

In footnote 4, the Supreme Court stated:

While we have not addressed the validity of a supplemental pleading filed pro se by a person represented by counsel, the circumstances of this case are likely to recur in the future and, thus, we presume that the General Assembly will seek to clarify its intent with respect to the signing of pleadings by represented parties if it is so inclined.

296 Va. at 501 n.4. [Interestingly, the Supreme Court’s opinion made no mention of Rule 1:5A (entitled “Curing Defective Signatures”) which the Court had promulgated by Order dated May 31, 2017, and made effective August 1, 2017].

Thus, as noted at the outset of this report, the issue that emerges from McGinnis is whether any amendment of the Rules of Supreme Court of Virginia or of Virginia Code Section 8.01-271.1 should be proposed to address motions, pleadings, or other documents which are signed by parties who are represented by counsel. The members of this Committee considered that issue and decided that the interests of justice would be served by allowing this type of defect in the signing of a motion, pleading, or other document to be cured. This could be accomplished by an amendment of Virginia Code Section 8.01-271.1 and an amendment of Rule 1:5A of the Rules of Supreme Court of Virginia.

The Committee recommends that Virginia Code Section 8.01-271.1 be amended as shown on the document attached hereto as Exhibit 1A. A “clean” copy of the statute, as amended, is attached hereto as Exhibit 1B.

The Committee also recommends that Rule 1:5A should be amended as shown on the document attached hereto as Exhibit 2A. A “clean” copy of the Rule, as amended, is attached hereto as Exhibit 2B.

The Committee members appreciate the opportunity to study and offer this report regarding this interesting issue. Sincerely yours,

/s/

Roger T. Creager

Cc: Lucia Anna Trigiani, Esq. ([email protected]) Donald N. Patten, Esq. ([email protected]) Wallace B. Wason, Jr., Esq. ([email protected]) Martha JP McQuade, Esq. ([email protected]) Peter C. DePaolis, Esq. ([email protected])

55 20100267D 8/14/2019 01:52 PM Exhibit 1A Olwine, Brittany

SENATE BILL NO. ______HOUSE BILL NO. ______

1 A BILL to amend and reenact § 8.01-271.1 of the Code of Virginia, relating to pleading, motion, or other 2 paper; signature requirement of attorney of record or unrepresented party; signature by party 3 represented by attorney.

4 Be it enacted by the General Assembly of Virginia: 5 1. That § 8.01-271.1 of the Code of Virginia is amended and reenacted as follows:

6 § 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions. 7 Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, written motion, and 8 other paper of a party represented by an attorney shall be signed by at least one attorney of record in his 9 individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in 10 the action. A party who is not represented by an attorney, including a person confined in a state or local 11 correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address. 12 A minor who is not represented by an attorney shall sign his pleading, motion, or other paper by his next

13 friend. Either or both parents of such minor may sign on behalf of such minor as his next friend. However, 14 a parent may not sign on behalf of a minor if such signature is otherwise prohibited by subdivision 6 of § 15 64.2-716. 16 The signature of an attorney or party constitutes a certificate by him that (i) he has read the 17 pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after

18 reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument 19 for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper 20 purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a

21 pleading, written motion, or other paper is not signed by an attorney of record on behalf of a party 22 represented by such attorney, or is not signed by a party who is not represented by an attorney, it shall be 23 stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant 24 attorney of record or the party who is not represented by an attorney, respectively. If a pleading, written 25 motion, or other paper is signed by a party represented by an attorney of record, it shall be stricken unless

1 56 20100267D 8/14/2019 01:52 PM Olwine, Brittany

26 it is signed promptly by such party's attorney of record after the error is called to the attention of such 27 party's attorney of record. 28 An oral motion made by an attorney or party in any court of the Commonwealth constitutes a 29 representation by him that (i) to the best of his knowledge, information and belief formed after reasonable 30 inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the 31 extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, 32 such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

33 If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon 34 motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, 35 a represented party, or both, an appropriate sanction, which may include an order to pay to the other party 36 or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or 37 other paper or making of the motion, including a reasonable attorney's fee. 38 #

2 57 Exhibit 1B 20100267D 9/10/2019 06:16 PM Olwine, Brittany

SENATE BILL NO. ______HOUSE BILL NO. ______

4 Be it enacted by the General Assembly of Virginia: 5 1. That § 8.01-271.1 of the Code of Virginia is amended and reenacted as follows:

13 friend. Either or both parents of such minor may sign on behalf of such minor as his next friend. However, 14 a parent may not sign on behalf of a minor if such signature is otherwise prohibited by subdivision 6 of § 15 64.2-716. 16 The signature of an attorney or party constitutes a certificate by him that (i) he has read the 17 pleading, motion, or other paper; (ii) to the best of his knowledge, information, and belief, formed after

18 reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument 19 for the extension, modification, or reversal of existing law; and (iii) it is not interposed for any improper

20 purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a 21 pleading, written motion, or other paper is not signed by an attorney of record on behalf of a party 22 represented by such attorney, or is not signed by a party who is not represented by an attorney, it shall be 23 stricken unless it is signed promptly after the omission is called to the attention of the attorney of record 24 or the party who is not represented by an attorney, respectively. If a pleading, written motion, or other 25 paper is signed by a party represented by an attorney of record, it shall be stricken unless it is signed

1 58 20100267D 9/10/2019 06:16 PM Olwine, Brittany

26 promptly by such party's attorney of record after the error is called to the attention of such party's attorney 27 of record. 28 An oral motion made by an attorney or party in any court of the Commonwealth constitutes a 29 representation by him that (i) to the best of his knowledge, information and belief formed after reasonable 30 inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the 31 extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, 32 such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

2 59 Exhibit 2A

M$%*+N=>>>>>X== >==Z\Z>=^^>>\^%=^_`$^{Z$=|}~^ ^"+||+|+${ *${>*%X$=_%>=^X>>^ \=^=Z^_X{=X%X>=Z_$> *==X>_=\%*$>>=Z$*X>=^X>>+ >{$*X>%X*$_X>>=Z^>=^X>>X== {\=^^X==={*X^X*X==Z\^%=^+ {$%*\${Z$>^>\>^=M$ %*=*+NM%>=^X>>%=^{X=%%>Z ^_{Z*$=%*^^{Z>$X^>**=X =X_X{=X%*$=$X^>>=Z%X *==^>**=ZNX%*$=%*^M $>*X>>>NM*$=Z=\%*$>>=Z^%= $*X>=^X>>+%>^{ZX*$X*%^* >\^^${>*%X$=_X>>=Z*$^^>=^X>>X=={ \=^^X==={*X^X*X==Z\^%=^+ **%X=$%>=*+N\*$$^%*$^ ${>{%X$=X=={XX$^^*%X*$_^X=={ ={==Z^%$X*%X^% $*+^$*X=\Z{ *^^X>\*Z>*X>%$*Z{$^ > $^*+$*X*^Z*=$^`$XX>Z*$X$ ^%*{$Z*^%_*=$^{=Z%_*$^{ZX >==Z$=%X^%*\$+^=\*$ $^%*X==>*%Z^%%=^\*%X>>=Z*$^>>+ ^$%\^{Z$+N%*>=%=^***\= *N>\^^$=}N^^{*$^{Z>X $X^>**=_X$%=%%=%Z*=^ XX=={*>$^=X%XX*>^`$^{Z ^"+||+ *%>>=+N%*%>>=%X**$*$%=^X=ZX

60 $%ZX>$>^>\XX$X^>** =X=X_^{Z>Z>^{Z*$=_=*%>>= X>*^{X=%%X>Z>^=X $^ ^N%>>=Z*$^{ZZ`$=%^>**=_^%=^ X^Z%X=NX==={*X^%%=%X=*% >>=+

61 Exhibit 2B

Boyd Graves Conference

Recommended Amendment to Rule 1:5

RULES OF SUPREME COURT OF VIRGINIA PART ONE RULES APPLICABLE TO ALL PROCEEDINGS

Rule 1:5A. Curing Signature Defects.

(a) Pro Se Litigants –Signature Defects. – A litigant appearing in propria persona shall personally sign every pleading and paper served or filed, as required by Rule 1:5 and Virginia Code § 8.01-271.1. Subject to subpart (c) of this Rule, if a pleading or other paper is not signed or is not validly signed, within a reasonable time thereafter the pro se litigant may, upon written notice to all other parties, seek leave of court to sign such pleading or other paper. Upon obtaining such permission from the court, the properly signed pleading or other paper shall be valid and shall relate back to the date on which it was originally served or filed.

(b) Represented litigants – Signature Defects; Relation Back. – If a pleading or other paper filed on behalf of a party was not signed by counsel of record or was signed by a person not authorized to practice law in the Commonwealth, promptly after the omission or error is called to the attention of counsel of record – upon notice to the opposing parties – counsel may seek leave of court to sign and file such pleading or other paper. If permitted by the court in the exercise of its discretion as provided in subpart (c) of this Rule, the properly signed pleading or other paper shall be valid and shall relate back to the date on which it was originally served or filed.

(c) Discretion of the Trial Court; Time for Compliance. —Leave to cure a signature defect under subparts (a) or (b) of this Rule shall be within the sound discretion of the court, and shall be liberally granted in furtherance of the ends of justice. An order granting such leave may be conditioned with provisions necessary to protect other parties from unnecessary burdens or prejudice. Such conditions may include a requirement that the party seeking to cure the signature defect reimburse any extra costs and fees, including reasonable attorney's fees, incurred by other parties solely as a result of the defective or missing signature. An order granting leave to cure a signature defect shall specify a date for filing and service of the properly executed paper.

(d) Statute of Limitations Governed by Statute. —If a complaint filed commencing a civil action—as provided in Rule 3:2(a)—is dismissed because it was signed by a person who is not authorized to practice law in Virginia, the statute of limitations for refiling of any claims asserted therein shall be computed in light of the time the action was pending as required by Virginia Code § 8.01-229(E)(1).

(e) Notices of Appeal. —If a notice of appeal from the circuit court is filed with only the signature of an attorney or other purported representative who is not then authorized to practice law in the Commonwealth, or is signed by a party represented by counsel, a later notice of appeal

62 in the same proceeding on behalf of the same party or parties and relating to the same judgment or order—if properly executed by an attorney qualified to practice law in Virginia, and filed within 90 days after the original—shall relate back to the date of filing of the original notice of appeal.

TAB 7

64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88

TAB 8

89 90 91 92 93 94 95

TAB 9

96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA Fairfax County Courthouse 4110 Chain Bridge Road Fairfax, Virginia 22030-4009 703-246-2221 • Fax: 703-246-5496 • TOD: 703-352-4139

BRUCE D. WHITE, CHIEF JUDGE COUNTY OF FAIRFAX CITY OF FAIRFAX THOMAS A. FORTKORT RANDY I. BELLOWS J. HOWE BROWN ROBERT J. SMITH F. BRUCE BACH BRETT A. KASSABIAN M. LANGHORNE KEITH MICHAEL F. DEVINE ARTHUR B. VIEREGG JOHN M. TRAN KATHLEEN H. MACKAY GRACE BURKE CARROLL ROBERT W. WOOLDRIDGE. JR. DANIEL E. ORTIZ MICHAEL P. McWEENY PENNEY S. AZCARATE GAYLORD L FINCH, JR. STEPHEN C. SHANNON STANLEY P. KLEIN THOMAS P. MANN LESLIE M. ALDEN RICHARD E. GARDINER MARCUS D. WILLIAMS DAVID BERNHARD September 16, 2019 JONATHAN C. THACHER DAVID A. OBLON CHARLES J. MAXFIELD DONTAE L. BUGG DENNIS J. SMITH LORRAINE NORDLUND JUDGES DAVID S. SCHELL JAN L BRODIE

Caitlin Brown, Esquire RETIRED JUDGES Silver & Brown, P.C. 10621 Jones St., Ste. 101 Fairfax, VA 22030 Counsel for Plaintiffs

James Hoyle, Esquire Kalbaugh, Pfund & Messersmith, P.C. 901 Moorefield Park Dr., Ste. 200 Richmond, VA 23236 Counsel for Defendant

Re: Antonios Marios, et al. v. Virginia Electric and Power Company, CL-2019-1068

Dear Counsel:

This matter is before the Court on Virginia Electric and Power Company's ("VEPCO") Motion Craving Oyer. VEPCO argues that the agreement that forms the basis of the Plaintiffs Antonio Marios' ("Marios" or "Plaintiffs" collectively) and Marios Tile and Marble, Inc.'s (the "Business" or "Plaintiffs" collectively) breach of warranty claim should be produced and attached to the Plaintiffs' complaint. The Court is called upon to decide two central issues: 1. Whether VEPCO may crave oyer of a document other than a deed or letter of probate administration? 2. Does the agreement between the parties form the basis of the Plaintiffs' claim, under the doctrine of oyer?

After considering the pleadings and oral arguments presented by Counsel, the Court finds that under Virginia law, a motion craving oyer may be granted as to any documents that form the basis of the complaint. The Court additionally finds that in this case, the requested agreement is a document that forms the basis of the Plaintiffs' complaint. Therefore, the Court grants the motion craving oyer as to the parties' agreement. OPINION LETTER 194 Re: Antonios Marios, et aL v. Virginia Electric and Power Company Case No. CL-2019-1068 September 16, 2019 Page 2 of 5

I. BACKGROUND

This matter arises out of a property damage case in which Marios' business property, Mario Tire and Marble, Inc., was damaged in a fire on February 17, 2017. VEPCO supplied electric and power to the Business through an electrical meter box located on the Business' property. Plaintiffs claim that VEPCO's electrical meter box caused the fire on their property, based on an inspection report from the Fairfax County Fire Marshall. The Plaintiffs sued VEPCO on January 23, 2019 for negligence, breach of warranty, and trespass, alleging that VEPCO was the only entity that had control over or access to the meter box, that VEPCO had a duty to operate the electrical box safely, and that an express and implied warranty agreement between the parties imposed liability for the damage on VEPCO. Compl. 1¶6-19, 39. VEPCO filed the present Motion Craving Oyer on February 26, 2019 seeking the agreement that is the basis of the Plaintiffs' express warranty claim (the "Agreement"), and any document that forms the basis of their implied warranty claim.

STANDARD OF REVIEW

A defendant may crave oyer of any documents that form the basis of the Complaint. Culpeper National Bank v. Morris, 168 Va. 379, 382 (1937). This includes documents sued upon or collateral documents that are necessary to the Plaintiff's claim. Ragone v. Waldvogel, 54 Va. Cir. 581, 582 (Roanoke 2001). Merely referencing certain documents in the Complaint does not justify incorporating those documents into the pleadings. Id. If Oyer is granted, the document that is produced is treated as a part of the pleadings. Sjolinder v. Am. Enter. Sols., Inc., 51 Va. Cir. 436 (Charlottesville 2000).

I. ARGUMENTS

A. Defendant's Argument

VEPCO states that the documents that form the basis of the Plaintiffs' breach of warranty claim should be produced and attached to the complaint. It acknowledges that the use of oyer was limited at common law, but asserts that it has since been greatly expanded by the Supreme Court of Virginia. In support of this premise, VEPCO cites cases from 2003 and 1937 in which parties' ability to crave oyer on items other than deeds and letters of probate, and specifically on agreements that formed the basis of warranty claims, was maintained. Pulte Home Corp. v. Parex, Inc., 265 Va. 518, 522-24 (2003); Culpeper National Bank v. Morris, 168 Va. 379, 382 (1937).

B. Plaintiffs' Response

Plaintiffs' opposition argues that the Supreme Court of Virginia has articulated a limit on the use of motions craving oyer. Plaintiffs cite caselaw dictating that one may only crave oyer on deeds and letters of probate administration. Grubbs v. National Life, etc., Co., 94 Va. 589 (1897); Langhorne v. Richmond R. Co., 91 Va. 369 (1895); Eib v. Pindall's Ex'x, 32 Va. 109 (1834). Plaintiffs also cite recent decisions emerging from Fairfax County Circuit Court in support of OPINION LETTER 195 Re: Antonios Marios, et al. v. Virginia Electric and Power Company Case No. CL-2019-1068 September 16, 2019 Page 3 of 5

their position, including Antigone v. Taustin, in which Judge Oblon concluded "the Supreme Court of Virginia has not explicitly expanded the Oyer Doctrine beyond deeds or letters of probate and administration." 98 Va. Cir. 213 (Fairfax 2018).

II. ANALYSIS

A. A Motion Craving Oyer may be Granted as to Documents other than Deeds and Letters of Probate Administration

The motion craving oyer may be granted as to the Agreement because it forms the basis of the claim.

Motions craving oyer serve a practical role for litigants and the courts. They ensure that documents which form a basis of an action — regardless of the type of action — become part of the record. From a court's perspective, "a litigant has no right to put blinders on the Court and attempt to restrict its vision to only such parts of the record as the litigant thinks tend to support his view." Culpeper National Bank v. Morris, 168 Va. 379, 382-83 (1937). The Supreme Court of Virginia has recognized the functional purpose of such motions dating back to the nineteenth century. In Welch v. McDonald, plaintiffs in error assigned error to a court's overruling of a demurrer. The case involved "an action of trespass on the case for breach of contract" — considering the proceedings, the Court opined:

The defendants did not crave oyer of the contract, but demurred to the declaration, and to each count thereof. . . . The radical difference between the contract declared on and the one really made and put in evidence did not then appear, and the demurrer was properly overruled as to these counts. Had oyer of the contract been craved, and the true contract made known to the court, the demurrer to these counts ought to have been, and doubtless would have been, sustained.

Welch v. McDonald, 85 Va. 500, 8 S.E. 711, 713 (1888) (emphasis added).

Oyer motions are appropriate whenever "a court is asked to make a ruling upon any paper or record. . . ." Culpeper National Bank v. Morris, 168 Va. 379, 383 (1937). The Culpeper case is particularly instructive — it involved a will dispute in which Culpeper National Bank (the "Bank") sought to reinstate a jury verdict that had been subsequently set aside. Id. at 382. The Bank's complaint heavily relied on the proceedings and documents from the previous case that had resulted in the set aside verdict. Id. As such, the Defendants craved oyer of the complete court record of that prior case, and the trial court granted oyer as to the all of the documents that comprised the entire court record. Id. On appeal, the Supreme Court of Virginia upheld the trial court's granting of oyer, noting that the Bank had described all of the proceedings in the first will dispute and described many of the documents involved in it, but filed only small portions of the court record with its complaint. Id The Court noted that Inio intelligent construction of any writing or record can be made unless all of the essential parts of such paper or record are produced. . . . When a court is asked to make a ruling upon any paper or record, it is its duty to require the pleader to produce all material parts." Id. at 383 (emphasis added). OPINION LETTER 196 Re: Antonios Marios, et al. v. Virginia Electric and Power Company Case No. CL-2019-1068 September 16, 2019 Page 4 of 5

Subsequent cases decided in the Supreme Court of Virginia have implicitly followed the holding in Culpeper National Bank. See, e.g., Riverside Healthcare Association v. Forbes, 281 Va. 522, 534 (2011) (reversing a demurrer sustained in the trial court because the Defendant had not craved oyer as to an accounting document demonstrating that Plaintiff's relief had been satisfied, and the trial court considered the document without it being "an exhibit accompanying the pleading nor a document produced in response to a motion craving oyer"). In Dodge v. Trustees of Randolph-Macon Woman's College, 276 Va. 1, 6 (2008), the Supreme Court of Virginia affirmed a trial court's decision to sustain a demurrer in a breach of contract action. There, after the Defendant craved oyer as to the contract relied upon, the trial court granted the motion craving oyer, and the documents produced by the Plaintiff failed to show a breach of contract. Likewise, in Pulte Home Corp. v. Parex, Inc., 265 Va. 518, 522-24 (2003), the Supreme Court of Virginia upheld the trial court's sustaining of a demurrer after the Defendant craved oyer on a contract in a breach of warranty case and the Plaintiff could not produce any documents in support of its claim. In Ward's Equip., Inc. v. New Holland N Am., Inc., 254 Va. 379, 383 (1997), the Supreme Court of Virginia found no error when a trial court admitted and considered a contract under a motion craving oyer. Considering the appellant's contention that the trial court erred in sustaining a demurrer "by considering questions of fact not in the record", the Supreme Court of Virginia affirmed, stating, "[w]hen a demurrant's motion craving oyer has been granted, the court in ruling on the demurrer may properly consider the facts alleged as amplified by any written agreement added to the record on the motion", including the contract that had been produced in response to the motion craving oyer. Id. at 382-83. The motion has additionally been used to admit appraisals in an action for breach of contract and fraud without objection — "[Aursuant to SunTrust's motion craving oyer, the circuit court admitted into the record four appraisals that SunTrust had obtained. . . ." Sweely Holdings, LLC v. SunTrust Bank, 296 Va. 367, 372 (2018). In following the Culpeper National Bank decision and subsequent Virginia case law, this Court concludes that oyer may be granted over documents whenever "a court is asked to make a ruling upon any paper or record . . . ." Culpeper National Bank, 168 Va. at 383.1

B. The Requested Agreement Forms the Basis of the Complaint

Oyer may be granted as to the Agreement because it forms the basis for the claim. Culpeper National Bank v. Morris, 168 Va. 379, 382 (1937) (applying oyer to "any paper or record" that is the basis for a claim). In Sjolinder v. Am. Enter. Sols., Inc., 51 Va. Cir. 436 (2000), the Circuit Court for the City of Charlottesville considered whether a Stock Exchange

I Plaintiffs argue that craving oyer's use is limited in scope. This Court is aware that some Virginia Circuit Court cases express as much. See, e.g., Setian Holdings, LLC v. The Unit Owners Association of the Midtown at Reston Town Center, Va. Cir. (Fairfax 2019); Antigone v. Taustin, 98 Va. Cir. 213 (Fairfax 2018). The rationale behind the argument relies largely on dictum from Langhorne v. Richmond R. Co., a case in which the Supreme Court of Virginia decided that oyer could not be granted on certain documents because they did not form the basis of the claim. See 91 Va. 369 (1895) (commenting that the right to crave oyer exists "as a general rule, only to deeds and letters of probate and administration, not to other writings."); see also Nancy F. Reynolds, Current News on Oyer Motions: A New Wrinkle for an Old Tool, 30 J. Civil Litigation 477, 481-83 (2018) (discussing Langhorne's dictum and its successors in arguing that oyer motions are not limited to matters of probate and administration). This Court finds the Supreme Court of Virginia's ongoing treatment of the motion controlling in deciding this issue. OPINION LETTER 197 Re: Antonios Marios, et al. v. Virginia Electric and Power Company Case No. CL-20 I 9-1068 September 16, 2019 Page 5 of 5

Agreement upon which oyer was craved formed the basis of the Plaintiffs' claim, which largely centered around a breach of implied contract claim. The court stated that although the Stock Exchange Agreement was mentioned in the complaint, it was not relied upon, as the complaint alleged injury based on an implied, rather than express, contract. Id. The Sjolinder court noted that the Plaintiffs could have made additional claims based on the Stock Exchange Agreement in question but chose not to. Id. Thus, there was no reasonable basis for granting oyer of it. The present case differs from Sjolinder in that the complaint alleges claims of both breach of express and implied warranties. In alleging an express warranty claim, Plaintiffs here rely on those documents that created the express warranty, and the documents thus form the basis of the claim. As such, and in keeping with established oyer motion practice, this Court grants the motion craving oyer because the requested Agreement forms the basis of the Plaintiffs' claim.

CONCLUSION

For the foregoing reasons, the Court finds that a motion craving oyer may be granted as to an agreement that forms the basis of the complaint. The Court also finds that the requested Agreement forms the basis of the Plaintiffs' complaint, and the Court thus grants the motion craving oyer.

Sincerely,

Daniel E. Ortiz Circuit Court Judge

OPINION LETTER 198

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