Virginia LawyerVOL. 67/NO. 3 • October 2018 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar The Litigation Issue Sanctions for ESI Spoliation Animal Bites on the Job Avoiding Waiver in Unanticipated Rulings A Tale of Two Litigators Virginia Lawyer The Official Publication of the Virginia State Bar October 2018 Volume 67/Number 3 Features Noteworthy LITIGATION VSB NEWS 45 Join the Disciplinary System – 21 The Litigation Issue Applications Sought for District by Nathan J. D. Veldhuis Committee Vacancies 22 Avoiding Waiver When Facing an Unanticipated 46 NOTICE: Check Your MCLE Hours Ruling: Cherry v. Lawson Realty Corp. Online Now by Erin B. Ashwell 47 In Memoriam 24 Spoliation under Fed. R. Civ. P. 37(e): 48 VLF Announces 2018 Grant What a Party Must Prove to Obtain Sanctions Recipients for Failure to Preserve ESI 49 Conference of Local and Specialty by Kristan B. Burch Bar Associations 28 Bradner, Bowers, and the Adequacy of Jury Verdicts in Personal Injury Cases Access to Legal Services by the Honorable Joseph A. Migliozzi Jr. and Alexander R. McDaniel, Esquire 42 Andrew Nea is the 2018 Lewis F. Powell Jr. 34 Bites, Nips and Stings – Animal Encounters, Pro Bono Award “Arising Out Of,” and Workers’ Compensation Recipient by Commissioner Wesley G. Marshall 43 Prince William County Bar 40 Appellate Mediation Comes to Virginia Association Receives Frankie Muse by Monica T. Monday Freeman Pro Bono Award 43 2018 Pro Bono Conference A Tale of Two Litigators: 44 Virginia Free Legal Answers’ 2nd 32 Emily Munn: “Everyone in This World Anniversary Deserves to Have a Voice” by Deirdre Norman Departments 33 David and the Giant Verdict by Deirdre Norman 6 Forum 54 CLE Calendar 61 Professional Notices VIRGINIA LAWYER REGISTER 62 Classified Ads 57 Disciplinary Summaries 58 Supreme Court of Virginia Seeks 62 Advertiser’s Index 58 Disciplinary Proceedings Comments on Rule Changes 58 VSB Council Seeks Comments 59 Chief Justice Issues Statement on on Proposed Changes to Judicial New Criminal Discovery Rules Columns 59 Supreme Court of Virginia Amends Candidate Evaluation Committee 10 President’s Message Procedures and Policies Rules 1:1, 1:11, and 3:20 58 Supreme Court of Virginia 59 Lemons Re-elected Chief Justice of 12 Executive Director’s Message Committee Releases Report on the Supreme Court of Virginia 14 Ethics Counsel’s Message Lawyer Well-being 59 New Clerk of the Court Appointed 18 Legal Aid 58 Legal Advertising Opinions 59 Join the Disciplinary System 50 Law Libraries Withdrawn 59 VSB Disciplinary Board to Hear 58 Supreme Court of Virginia Amends Steven Frank Helm’s Reinstatement 51 Technology and the Practice of Law Rule 1A:1 Petition on November 16, 2018 52 Books Cover: The Board of Governors of the 3,200 member VSB Litigation Section: Left to right: Kevin Gerrity, Judge Jeffrey Parker, Monica Monday, Carter Younger, Nathan Veldhuis (chair), Brian Schneider, Missy York, Judge Gregory Ashwell, Professor Jennifer Franklin, and Bob Byrne. 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Bradley Marrs writes in his Letter to the is to have such admissible evidence or Increased representation of civil Editor (August 2018 Virginia Lawyer) the means to lay foundation at trial. We defendants will undoubtedly result in that “the court is supposed to enforce have all sat through General District individuals who actually do owe money the law, after all, and when debtors fail Court return-date dockets where we see avoiding a judgment against them, just to pay justly due debts, plaintiffs are creditor after creditor obtain default as the existence of public defenders’ entitled to judgments[.]” Anyone who judgments or consent judgments against offices has resulted in acquittals of has ever tried a case knows that nothing pro se defendants for debts that they individuals who actually did commit could be further from the truth. This would never be able to prove at trial, crimes. In the criminal field, we accept statement is akin to saying, “If a defen- were the defendant