~LITIGATION NEWS \lSI PUBLISHED BY THE LITIGATION SECTION OF THE VIRGINIA STATE BAR FOR ITS MEMBERS.

The Guaranty Association: Funded By, but Not For,

Insurance Companies Money for Nothing:

InsurRnce CompRnies Rnd the GUIl/PRnty AssociRtion

by Christian B. Franklin

The Guaranty Association likes to say that it

.. is an insurer of last resort. Generally speak­ing, when a claim is made against an

insured whose insurance company has become insolvent, the Association steps in to defend and indemnify the claim. It is a guardian for insured people, making sure that no person who pays for insurance will go unprotected and unrepresented, and a 'champion for injured people, making sure that no person who suffers a loss caused by a tort­feasor with insolvent insurance coverage will be hung out to dry. Of course there are limits to its goodwill, but a quick read of the statute makes it all seem simple enough.

. Then one day an insured suffers a loss caused . by a tortfeasor. A kind of loss that warrants imme­diate attention, and the responsible insurance com­pany compensates its insured and says, "We'll step in your 'shoes and go get the bad guy." The insured is happy with its insurer (it does happen), and a subrogation action is prepared in the name of the insurer against the tortfeasor. After suit is initiated, the subrogated insurer finds out the tort­feasor's insurance company has been determined to be insolvent. In comes the Guaranty Association to defend the tortfeasor. The Guaranty Association

Christian B. Franklin is an associate with Roberts, Ashby & Parrish, P.L.G. in Fredericksbur.g, Vir.ginia.

1

says that it has never paid a subrogation claim and it is not about to. All of a sudden the Guaranty Act gets a lot more complicated. The far.ts are stipulat­ed and the Guaranty Association files a Motion for Summary Judgment on behalf of the tortfeasor with an insolvent insurer. Here is the story of how

Guaranty Association - cont'd on page 22

Table of Contents The Guaranty Association: Funded by, but not for, Insurance Companies; Money for Nothing: Insurance Companies and the Guaranty Association ................... 1

by Dana R. Cormier

Letter from the Chair .................. 2 by Thomas E. Albro

"It Ain't Broke, Don't Fix It": The Current V rrginia Standard of Admissibility of Expert Testimony Is Superior to Daubert, and Our Gate Should Be Closed to Its Principles .... 3

by Michael F. ImpreJIento

Boyd-Graves Proposal to Merge Law and Equity ....................... 5

by Samuel W. Meekins, Jr.

Appellate Alley: Opposing the Petition for Appeal .................... 7

by WiUiam H. Shewmake

Principles of Cooperation for Physicians and Attorneys in the Commonwealth of Virginia (Third Edition) ............... 16

as Promulgated by The Medical Society of Vi~inia and the Vit;!Jinia State Bar, ·1993

Recent· Law Review Articles ............ 20

Litigation Section Board of Governors .... 30

Young Lawyers Committee ............. 31

Ethics at a Glance: Ethics in the Information Age ..... back cover

by Thomas E. Spahn

Letter from the Chair

A Year in Full ·Swing

In addition to our routine activities, such as pu~lishing our Section newsletter, and planrung the CLE program at the annual

meeting, your Board has been active on a number of other fronts this year.

Kevin Motdey has breathed new life into the Yomig Lawyers' Committee by ,preparing an innovative GLE program,. on d<:position techniques. We have arranged for' a nationally­recognized attorney with a particular focus on deposition strategies and techniques, David G. Markowitz, to present a hands-on workshop

. March 19, 2003 in Richmond. In addition, the Board has been asked to

comment upon the Boyd-Graves conference recommendation to combine law and equity in Virginia. Sam Meekins will chair a subcommit­tee that will investigate whether our section should take a position on this proposal. We welcome your thoughts on this issue which

". litigation News is. pUl:>lished ~y ..... the Virginia State Bar Litigation

....

Section. .

Newsletter Editor R. [eeUVing~ton .'

Statements or expressionsofopin~ ion or comments appearing herein are those of the editors, authors and contributors and not necessarily those of the Virginia State Bar or its Litigation Section.

2

. will, no·· doubt, affect the practice of virtually all litigators in' Virginia.· The Board will decide on April 14, 2003 whether to make a retom­mendation, which will be passed along to the executive committee of the Virginia State Bar for futther action. Sam Meekins has written a primer on the topic, which is being· published in this edition of Litigation N &WS.

Many of us work closely with physicians in many of our cases. The Board has been asked to comment upon updating a brochure pub­lished jointly by the Virginia State Bar and The Medical Society of Virginia entitled Principles of Cooperation for Physicians and Attorneys in the Commonwealth of Vit;ginia (3rd edition).

. This helpful brochure, which may not be widely circulated, addresses frequently~. encountered probkms such as physician avail~ ability, . reasonable fees, charges for copyiri.g, and scheduling. We thought it m~y prOve helpful to you in your practice, so we are publishing it indus issue of Litigation NeWs. The fourth edition will be published soon. Judge Lydia:Tay.1'or volunteered to.:submit coiTirilcirts'\vei,ihay ha~e-·ahoutpr()pos:ed· charigesth' this-dbcuinent' to ··theauthors. of tl1~·htochllre:.LeeLiviI1gstoIl will c<>Uect your' cOlllment:sallq;p(ovide them to Judge Taylor; L~cr 'se~mail :~ddress is lee.livilJ.gston@ treinplaysmith.,<;om. . ..

The ·Board .. appreciates the opportunity to serve you, and we trust the endeavors .that I have outlined above will have a positive impact on your· practice. We welcome your ideas for other ways in which we can assist you.

Thomas E. Albro Ch~, Litigati?n Section

. '" ...... : ... " '.' '.'00" lit

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"It Ain't Broke, Don't Fix Ii": The Current VIrginia Standard of

Admissibility of Expert Testimony Is Superior to Daubert, and Our

Gate Should Be Closed to Its Principles

by Michael F. Imprevento

"If it ain't broke, don't fix it" -A WISE PERSON

" ... Science is organized knowledge, wisdom is organized life ... »

-. IMMANUEL KANT

" .. . Make it simple as possible but no simpler .. . » -ALBERT EINSTEIN

Overview Battle cries of "junk science at the gates," and the call for more "flexibility" in the receipt ofcutting­edge courtroom forensics have spawned changes to the Federal Rules of Evidence and the role of federal courts, culminating in the Supreme Court's decision in Daubert 11. Merrill Dow Pharmaceuticals, Inc.! These changes were sup­posed to open evidentiary gates to new scientific methods and technology more readily than the "general acceptance" test articulated in Frye 11.

United States.2 Yet, despite repeated efforts to clarify and define, the federal system has failed to provide a. clear, consistent and reliable test for the admissibility of e~pert testimony.

In practice, federal courts applying Daubert have not more readily admitted expert testimony as contemplated by the critics of Frye and, in fact, all too often usurp the function of the jury in

Michael F. Imprevento is a partner with Breit, Drescher & Imprevento, P.e. in Norfolk, Vir,ginia.

3

excluding such evidence outright while assuming the role of amateur scientist. It is the position of the undersigned that the Virginia Supreme Court's long established standard for the admissibility of expert testimony provides sufficient existing guid­ance to allow trial courts to determine the admissi­bility both of novel as well as more familiar and proven techniques and methods. Daubert was a response to the 1975 enactment of Rule 702 and its effects on the. longstanding Frye test in use in federal courts. The Virginia Supreme Court has never adopted the "Frye" test. Long before Daubert, Virginia mandated a threshold reliability determination of unfamiliar. science with the Court receiving expert assistance if necessary. Without adoption of Frye, such a reliability finding would not be dependent upon or necessarily even guided by general acceptance of a particular theory or method. The jury would accept or reject the expert's theories and methods if the threshold reli­ability finding of fact so permitted such theories to be heard. For familiar science and engineering dis­ciplines, Virginia courts require a showing of ade­quate foundation and that the proposed testimony will assist the trier of fact in understanding and applying the evidence. Most importantly, the Virginia. standard more readily leaves to the jury the determination of what weight is to be accord­ed to the witness' reasoning. It is the high regard for the role of the jury that, in practice, results in Virginia courts utilizing a simple and effective method fot considering the admissibility of expert testimony. In contrast, the federal system utilizes a confusing, multi-factored Daubert analysis to gauge if "good science" is being proffered. This has all too often resulted in district courts usurping the important role of the jury in determining the weight to be given to important expert testimony. Under Daubert, it is the responsibility of the judi­ciary "to resolve disputes among respected; well­credentialed scientists about matters squarely within their expertise,in areas where there is no scientific consensus as to what is and what is not 'good science,' and occasionally to reject such expert testimony because it was not 'derived by the scientific method. "'3 The Daubert II COurt noted:

Expert Testimony - conrd on page 4

LnIC,\TI():\ NI'ws WI:\IU, 2003

Expert Testimony contJd from page 3

The first prong of Daubert puts federal judges in an uncomfortable position. The question of admissibility only arises if it is first established that the individuals whose testimony is being proffered are experts in a particular scientific field; here, for example, the Supreme Court waxed eloquent on the impressive qualifications of plaintiffs' experts. Id. at 2791 n. 2. Yet something doesn't become "scientific knowledge" just because it's uttered by a scientist; nor can an expert's self-serving assertion that his .

that it was to() new and neither credible nor re1i~ able.s In this opinion, the Court of Appeals of the District of Columbia created the' well-known Stan­dard that expert witness foundation and method­ology "must be sufficiently established to have gained general acceptance in the particular field in which it belongs."6

This became known as the Frye "general accep­tance" standard and was adopted by many federal and stat:ecourts. As jurisprudence evolved, several criticisms of the "Frye" analysis arose. The standard was considered too stringent and was employed to

conclusions were "derived' by the scientific method" be deemed conclusive, else the Supreme Court's opinion could have ended with foot­note two. As we read the Supreme Court's teaching in Daubert, therefore, though we are largely untrained in science and certainly no match for any of the witness­es whose testimony we are reviewing, ids our responsi-bility to determine whether those experts' proposed testi-

It is the high regard for the role of the jury that.

in pradice, results in Virginia courts utilizing a

simple and effedive method for considering

the admissibility of expert testimony.

exclude novel but nonetheless valid and useful expert knowl­edge that could assist the jury. The term "general acceptance" was equivocal and courts were uncertain as to whether "gener­al acceptance" meant a vast majorityora credible minority,7

i Prac~iti?~e~s fought over the admlsslblhty of "generally­accepted" scientific evidence. Prosecutors expressed concern that novel criminal scientific techniques could not be used mony amounts to "scientific

knowledge," constitutes "good science," and was "derived by the scientific method." ... we take a deep breath and proceed with this heady task.4

Virginia contemplates no such role for its trial judges. In practice, Virginia courts are more likely to leave the validity of the reasoning process of competing experts as a question of weight to . be assessed by the trier of fact as. opposed to outright exclusion in a federal system applYing Daubert cri-teria.

~i.r .. oduction: The Old" Frye" Standard . . . . . .

In 1923, James frye was convicted in federal court of second degree murder. On appeal, he contend­ed, that the trial court improperly excluded expert testimony regarding a systolic blood pressure deception test, a simple and early form of the poly­graphs, which demonstrated that he was "telling the truth." In a short opinion, the Court of Appeals for the District of Columbia approved the trial court's exclusion of the testimony on the basis

4

despite high probative value . because they may··not have gained widespread scientific acceptance.

The adoption 6fthe FederaI Rules of Evidence and specifically Rule 702, raised the issue ·of . whether frye had been' incorporated, adopted, rejected or superceded. "Rule 702 provides in rele-vanq)~rt: '.. '" .' . .

".:.if sderitific;technicai, or othe(spedaiiz'ed "kn-owIedge wilUassi&t the trier· of f~ctto understand the evideIi<;:e or to determine ,a

"~ct arid i~u~, ':i:'o/itnessqualified as an exp~rt .byknD"wledge, skill; experience, training or ed~c:itibn, .ma.y te~tify thereto in the form of' 'aIi opiDiori orotherWise.8

UiiderRulc'702,an expertmust'possess scien~' tific, technical or"'specialiiedknowledge and be able to assist the jury in understanding or deter­mining facts and issues relevant to the case. Rule 702 was silent on the issue of the Frye "general acceptance" standard. While Rule 702 ostensibly imposed a'looser admissibility standard, there con~

Expert Testimony:-:- contJd on page ,9 .

f

Boyd-Graves Proposal to Merge

Law and Equity by Samuel W. Meekins, Jr.

The Litigation Section of the Virginia State

. Bar has been asked to take a position on a

. recent proposal of the Boyd-Graves Conference that the law and equity distinction set out under the Virginia Rules of Civil Procedure be replaced by a unified set of procedural rules. The Boyd - Graves recommendation, supported by a memorandum authored by the Honorable D. Arthur Kelsey, makes it clear that the proposal should only affect the procedural rules and should not alter the substantive distinctioris between law and equity involving such things as the right to trial by jury and the power to issue injunctive relief. That being said, is this a good idea? Can it only effect procedural rules? This article is not intended to be a memorandum in response to the Boyd-Graves'recommendation. It is intended to call your attention to the proposal and encourage your input in the process:

For those who do not know much about the Boyd-Graves Conference, a very brief overview is appropriate. It was established in the late 1970s to early 1980s under the auspices of the Virginia Bar Association. The focus is civil litigation. It comprises approximately one hundred members who represent the bench and bar and is self-sustaining through its meinbership committee. A balanced membership is sought taking into account such issues as plaintiff versus defendant practitioners, geographic location, experience at the bar, firm size, and a mix of practic­ing iawyers, judges and professors. The chairman­ship ~lternates between representatives of the defense and plaintiffs bar. Members include past presidents of the VDA and VfIA.

Boyd-Graves has been active in the past on such issues as attorney civility, a study regarding

Samuel W. Meekins, Jr. is a partner with Wolcott, Rivers, Wheaty, Basnight & Kelly, P. C. in Vir.ginia Beach, Vir.ginia.

5

the advantages of comparative versus contributory negligence and an attempted codification of the rules of evidence for Virginia. In fact, on.the latter, the Conference requested that the Virginia Supreme Court include a set of rules of evidence for the Virginia practitioners but the Supreme Court rejected the request. Obviously then, despite its august status, a recommendation by the Boyd-Graves Conference does not assure passage. It does assure, however, discussion in the right cir­cles and must be taken seriously by all those inter­ested in improving litigation in Virginia's courts.

The actual resolution adopted by Boyd -Graves is as follows:

That the Boyd-Graves Conference reaffirms its endorsement of a merger of the law and equity sides of the court into a single form of action together with the necessary amend­ments to the Rules of the Supreme Court of VIrginia and the Code of VIrginia.

No mention is made of the Virginia Constitution, and appropriately not. Since the change is intended to encompass only procedural rights and not substantive ones, the Constitution should not be offended. No doubt, however, the General Assembly would need to go along even though the general rule making authority is vested in the Supreme Court. Va. Code § 8.01-3. Clearly then, the transition to a unified system under a "single form of action" will not happen overnight, if it happens at all.

As evidence of the fact that the merger is pru~ dent, Judge Kelsey points to the fact that the Federal Court system has been operating with uni­fied law and' equity since 1938 and that as far back as thirty yeats ago there were only four states which maintained a strict separation between law and equity courts and only five states (including Virginia) using a single court with law and equity "sides." See, THE LAW OF REMEDIES Section 2.6 Appendix pp. 81 and 82 (1973). Whether or not a unified system will work, does not appear to be an issue. Of tourse it would. But, so does the Virginia

. system currently in place. As with any system, there are advantages and shortcomings. The better analy­sis would involve a review of the benefits, and short­comings under both systems, including a cost analysis regarding the operations of the clerks' of

Boyd-Graves - cont'd on page 6

Boyd-Graves cont)d from page 5

courts. We need to determine what force is driving us to make a change. Hopefully, it would be more than change for change sake or because everyone else seems to be doing it.

Judge Kelsey in his memorandum sets forth a number of reasons why the merger of law and equity under unified rules would prove beneficial to Virginia. His analysis includes the public policy favoring "consistent, clear and concise rules to govern" procedural rights and duties; a more effi­cient system for dispute resolution; and, the enhancement to the right to trial by jury.

As to the public policy favoring consistent and concise rules of procedure, Judge Kelsey compares the Equitable Practice and Procedure Rules (Rule 2:1; et seq.) with those for Practice and Procedure in Actions at Law (Rule 3:1, et seq.). That compar­ison, according to Judge Kelsey, leads to some interesting results. For example, Rule 3:9 autho­rizes a separate trial for a cross-claim but Rule 2:14 does not for a cross-bill. Rule 3:16(a) recognizes a motion to dismiss as a proper pleading ina law case but no rule addresses such a motion in an equity case. A Bill of Particulars is allowed at law (Rules 3:7 and 3:16(a) but not as to an equitable Complaint. Joinder of parties is specifically addressed under Rules 3:9Aand3:14 for actions at law but there is no mention of such joinder under the equity practice and procedure. While these are insightful observations. regarding the distinctions, they seem to be based upon the assumption that all which is present under the law rules should also be present under the equitable rules. Perhaps so, but that could also be accomplished byacomprehen­sive review of the equitable rules to be sure they suit the exigencies of today's equitable practice.

Judge Kelsey's latter two . argument regarding a more efficient system and enhancement of the right to trial by jury are, to my mind, more com~ pelling. The argument goes like this: If a set of facts and circumstances beget both equitable and legal claims, the plaintiff cannot file a single claim to get equitable relief and a jury trial on the legal claims at one time. The current Virginia procedur­al response to this dilemma is to try one claim first and then seek transfer of the remaining claim( s) to the other side of the court. As a practical matter,

6

this usually means trying the equitable claim first since they are typically quicker to trial. The prob­lem is that if the legal and equitable claims have a c.ommon fact that must be determined, the plain­nff may lose the right to a jury trial on that fact under principles of res judicata or collateral estop­pel. Judge Kelsey argues, citing United States Supreme ~ourt precedent, that in a unified system, all the clauns could be brought in one action and tried at once with a jury determining all factsrele­vantto the legal claims even those in common with the equitable claims. Thus, the system is more

. efficient and the right to trial by jury is preserved. Those are, indeed, laudable objectives worth

attaining~ But, there will be differences good and bad. To be considered in this debate point is the fact that, i?deed, while we may all view the concept of the umfied system as dealing with procedural points only, there are hidden issues which might affect ~libstantive rights. For example, in the above scenano we are really expanding the role of juries to decide questions of fact in mixed law and equity cases. Judge Kelsey acknowle4ges this possibility but argues that it is an improvement to our current system since it expands the jury trial concept. There may be other areas of change that are more sub­stantive than procedural which will.float to the. top of future discussions regarding the effects of a merged system. .

The idea of the unified system has much appeal. It will work. It has for most other jurisdictions. But we should be sure we know what we are doing before we undertake the time and initial inconve'­nience to change hundreds of years of Virginia jurisprudence. Just as we should not ding toth.e present systeIlljust.because it-istheway-wehaxe ?een doing things. (or years~ we should not change Jus~because·. everyone. else has .• We need to be sure we have a bettersy~tem, not just .a unified ~ne. '. -. .

Clearly, there are some advantages to our cur­rent ~tem'not the least of which is that there'-is, by neceSSIty, a focus on and appreciation for equity practice. Strategies are developed and pleadings pre~ pared based upon an iriitialdetetmination regarding the remedies the plaintiff seeks. The focus of prac­tice then must be more precise. Also, in a sense, the current system fosters some uniformity since the chancellor who is. called upon to prescribe some temporary. equitable relief is usually the one ulti-

Boyd-Graves - cont)d on page 8 -r-

)

\VINTUZ 2003 LITJ(;xno:\ NI~\\'s

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Appellate Alley

Opposing the Petition for Appeal by William H. Shewmake

P revailing at trial feels good. But the feeling will be fleeting if your favorable verdict is overturned on appeal. The temptation may

be great to relax, and not vigorously oppose a peti­tion for appeal. After all, less than half of all peti­tions are granted, and you can always do a better job when submitting briefs and arguing before the Court after the petition is granted. Such logic is a big mistake. Do not help breathe life into your opponent's case, and do not let him or her leave a favorable impression with the judges who review the petition and may ultimately decide the case on its merits. If you take the brief in opposition seriously, you will enhance the chances that you will retain the verdict for which you worked so hard. Here are a few tips that should help.

• Read the Rules. Make sure you know all the applicable requirements of and limitations on a brief in opposition, as well as the peti­tion for appeal and perfecting the appeal. (If your opponent has not properly perfected the appeal, file a motion to dismiss as well as a brief in opposition.)

• Always summarize the transcript. It will be indispensable in writing an effective brief.

• After summarizing the transcript, scrutinize the record to determine whether the appel­lant adequately preserved the issue he is appealing. If he has not, let the Court know, and explain why the issue is not properly preserved. You would be surprised how often appealable issues are lost because they were not adequately preserved.

• Examine the assignments of error/questions presented. Chances are you will disagree with the slant your opponent is placing on the case. You need to let the Court know what you think the real issues are. Also remember that in the Virginia state court

7

system, the appellant cannot exceed the scope of his assignments of error in the Supreme Court or the scope of his questions presented in the Court of Appeals. If the appellant advances an argument that is not properly covered by his Assignments or Questions, let the Court know.

• If you disagree with the standard of review the appellant is expressly or implicitly advo­cating, have a separate short section styled "standard of review" and explain to the Court what the appropriate standard is.

• Always write your own facts section. Never rely on your opponent's statement of facts. Moreover, if you are entitled to have the facts viewed in the light most favorable to your client, and the appellant has ignored that burden, politely point that out to the Court and write the fact section with the proper presumption in mind. Always provide transcript and record references for each statement of fact. Be faithful to the record.

• Start your brief with a persuasive Nature of the Case that succinctly reflects the real issues before the Court and why you should prevail.

• Never be sarcastic, no matter how inane you think your opponent's argument is. Address all issues raised in a polite, factual, and pro­fessional manner. Let the power of your argument, not personal vitriol, convince the Court.

• Always read every case your opponent cites. Never assume that the cases stand for the proposition cited.

• If possible, review the record of important cases. The review will give insights about the ruling and whether the opinion can be dis~ tinguished based on the record.

• Never just rely on precedents. Explain why cases important to your case apply and why they represent sound public policy. You are arguing before an appellate court . .Appellate

Appellate Alley --:- conrd on page 8

Boyd-Graves· cont'dfro1n page 6

. mately deciding the equitable cases. For instance, imagine the impact of a jury on equitable issues dealing with covenants not to compete coupled with the legal claim for damages arising from a breach. Further, how long can a temporary injunc­tion stay in place while the niceties for a jury trial on a permanent injunction and damages are being dis­covered? Other issues to consider are the effect on trial calendars and, as previously referenced, the impact on clerks of court offices. Finally, can this

Appellate Alley cont'd from page 7

judges can find subtle distinctions if they think prior cases constitute bad law.

• Write your headings and subheadings effec­tively. Headings need to contain some detail and suggest the answer· that you want. In addition, do not underline the heading or place it in all caps. Instead, just capitalize the first letters. The judges read lots of briefs. Be easy on their eyes. (Also, remember to use an appropriate and easily readable font.)

• Be concise. Edit and re-edit.

• If a ground exists to support the trial judge's decision, argue that ground even though the trial court djd not rely upon it. Research and cite those cases that suggest that an appellate court will uphold a correct decision even if it was decided for the wrong reason. The.most persuasive brief in opposition I ever encoun­tered involved a case in which the trial court erred on a question of law and struck the piaintiff's evidence. I took over the appeal and was convinced we would prevail. Unfortunately, while the trial court had erred on its legal reasoning, trial counsel had neglected an element of liability. While there was no dispute as to that element, he failed to introduce evidence on it. Opposing coun­sel essentially conceded the trial court's error but hammered away at the omission. The petition for appeal was denied.

8

change truly be considered a "procedural" change only. . , The Boyd-Graves Conference and Judge Kelsey should be applauded for bringing this· important idea forward at this time. We owe it to them our-. , selves and the citizerls of Virginia to consider the proposal in earnest and to act accordingly. The Litigation Section of the VIrginia State Bar stands ready to accept your thoughts arid input on this important issue so that this section can be heard as regards the ultimate resolution of the unified system proposal. .

• Decide whether you want to assert Assignments of Cross-Error. Remember, however, if the petition for appeal is denied, then the appeal dies. If you want the Court to consider your assignment regardless of the decision on the opponent's petition, you should file a separate petition for appeal, fol ~ lowing all the rules applicable to preserving a petition for appeal and perfecting .an appeal. (Whether or not tactically to file Assignments of Cross., Error is a subject which would need to be· addressed· as a topic in and of itself.)

• Always attend the argument on the petition for appeal. While you are not allowed to speak, your presence tends to keep your opponent "honest" in his representations, and it also ~ay give you an idea of the issues on whfth you heed to focus if the petition forappealisgrartted~· In your· cover letter wifhthe briefin opposition, advise ·the clerk that you Want to be notified of the date . and time of the argument. Also, periodically check with the clerk to make sure the date or time for argument has not changed. If you cannot attend the argu­ment, hire local counsel to attend and report back to you.

Follow these tips, and you will improve your chances that the petition for appeal will b_e denied.

\ 1 !

\VI i'.:TLR 2003 LI I IGATI():\ NL\\'S

Expert Testimony cont)d from page 4

tinued to be open doubt about the proper stan­dard, particularly with regard to the admission of scientific versus non-scientific expert evidence.9

Daubert, Kumho Tire and New FRE 702 In Daubert, the u.s. Supreme Court held that the Federal Rules of Evidence

lower federal courts. Some courts applied the Daubert framework to all expert testimony, while others applied the standard only to scientific evi­dence but not to other specialized knowledge.14 Daubert did not make clear how many of the four non-exclusive considerations an expert must satisfy in a particular case, and the "general acceptance" fourth standard was still left largely undefined.

In Kumho Tire Company v. Carmichael,15 the Supreme Court also resolved the conflicts in vari-

ous courts of appeal regarding superceded Frye and held that expert testimony need not be "generally accepted" provided it is both relevant and reli­able. IO The Daubert court held that implicit in the application of Rule 702, the trial judge should act as the "gatekeeper" in determining whether prof­fered expert testimony should be heard by the jury.ll To fur­ther define the trial court's gateke.~ping function, the court proposed four "general consid­erations" to assist judges in gauging the reliability of expert· witness testimony:

In pradice, Virginia courts are more likely to leave

the validity of the reasoning· process of

competing experts as a question of weight to be assessed by the trier of

fad as opposed to outright exclusion in· a

federal system applying Dtlubert criteria.

the scope of Daubert by hold­ing that the "flexible" Daubert gatekeeping standard applies to all proffered expert witness tes­timony-whether "scientific," "technical," or "other special­ized knowledge" pursuant to Fed. R. Evid. 702. In all cases, and for all types of expert wit­nesses, federal judges are charged with ensuring that tes­timony is both relevant and reliable. 16 This has led to detailed judgments on method­ology and intellectual reason­ing that place lay judges in the difficult role of amateur scien­tist. In· the Kumho Tire opin­1. Testing: whether the

expert's methodology is susceptible to objective testing;

2. Peer review: whether the expert (or other experts from the field) has endorsed the methodology in a published or peer­reviewed writing;

3. Error rates-standards: whether the methodology is accurate, and whether it adheres to accepted standards;

4. General acceptance: whether the method­ology has been widely accepted by the rel­evant .scientific community.12

," The Daubert court did incorporate the Frye standard as one of the four main considerations, but instructed judges that these were intended to be flexible and not an exhaustive list to be applied in each case. 13 Unfortunately, the Daubert deci­sion heralded yet another wave of conflict in the

9

ion, the Supreme Court noted that the factors discussed in Daubert were neither definitive nor exhaustive. The Court explained that particular factors mayor may not be pertinent in assessing reliability, depending on the nature of the case, the witness' field of expertise and the subject of his testimony. The Court emphasized, however, that the objective of Daubert's gatekeeping require- . ment is to "make certain that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. "17 It is the opinion of the undersigned that this policing of intellectual rea­soning and method for all disciplines, familiar and unfamiliar, has created the most criticism of Daubert and has caused confusion and lack of uni­formity.

Expert Testimony - cont)d on page 10

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Expert Testimony cont'd from page 9

Effective December 1, 2000, Rule 702 of the Federal Rules of Evidence was amended to incor­porate the Daubert/Kumho Tire reliability criteria into the Rule;

Testimony by experts - if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a' fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or. education, and testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods and (3) the witness has applied the principles and meth­ods reliably to the facts of the case.1S

Since Daubert and Kumho

scientific proof needed to have expert causa- ' tion testimony admitted).20

Second, the Court stressed that the "potential for non-uniformity in the law under Daubert gives us considerable cause for concern. "21 The Court noted that the Fifth and Ninth Federal Circuits have overruled the per se exclusion of polygraph evidence, which means the trial judges would ,have to reconsider polygraph evidence anew each time it is raised.22 There has been further concern that in the post-Daubert/Kumho Tire world, judges will also impose personal and subjective views of relia­bility and methodology and make judgments which would be best weighed· by a jury consider­ing countervailing opinions subject to cross exami­nation and the factual record. Daubert was intended to "liberalize" and "broaden" admissibil­ity of expert evidence and liberate courts from the

Tire were decided on the basis of the Federal Rules of Evidence and not constitutional

As jurisprudence evolved, restraints of "general accep­tance. "23 In practice, however, it has been used to limit expert testimony in an inconsistent and often arbitrary manner. The Court's subjective opinion regarding the level6f "intellec­tual rigor" employed by the experts is substituted for that of the jury. Commentators have pointed out that Daubert/Kumho Tire is based upon the misguided assump­tion that judges are better qualified than jurors. to decide whet4erane~pert. ha,s offered r~liable, te'stimony; This notion

several criticisms of the grounds, those decisions are IIFrye" analysis arose. The not binding on the states. Some states have applied Daubert cri- standard was considered teria, others the Frye standard too stringent and was or a hybrid of both.19 Some state courts that have refused to employed to exclude adopt Daubert principles have novel but nonetheless expressed concern about its .' application. The Minnesota valid and useful expert Supreme Court, in a series of kn. owledge," that could caseS, has set forth two principal reasons Jor ,reje~ting:Daub~rt~ assist the jury. Eitstj the Court expressed q>n~ , cern that Daubert required judges to make ,deci­sionsb:lSed .ilppn·a scientific. ~expertise: foreign to most members of the bench. Th¢ CQurt ob~erved:

.. .in practice, Daubert does not. necessarily make adm,issible ~xpe~ ~vj4ep!;c;,~at~as .. l,1ot . admissible. under Fry~. One COmmentator haS noted that "the post-Daubert ~ra can fairly be described as the period of 'strict scrutiny' of science by non-sCientifically trained judges." Lucinda M. Finley, Guarding the Gate to the Courthouse: How Trial Judges are Using Their Evidentiary Screening Role to Remake Tort' Causation Rules, 49 DEPAUL

L. REv. 335, 341 (Winter 1999) (arguing that trial judges are raising the threshold of

10

is .the '. battle cry, ofdicr"Dlftl."~r.tpusl:J.~rs." Our Supreni~ Court recognizes the' cqIlective wisdom of jurors whoreceiye the benefit of cross~examina­tion in a" search for the truth. Empirical studies Suppbrtthisview:md strongly suggest that in fact juries are entirely capable of judging the reliability and relevancy of conflicting and often complex expert witness testimony.24

. The outright pre-trial exclusion of testimony under Daubert which·would be'better tested 'by competing opinions and crosS examination, has cre~ ated considerable debate. In practice, testing proto­cols utilized by a pre-emmentautolllotive expert

\VI N'I I- H. 2003 LI I I(;XI ION NI-\\,s

have been excluded in one court but allowed in another utilizing the same admissibility criteria.25

Virginia's Common Sense Approach In John v. Im,26 the Supreme Court of Virginia expressly deferred for another day a decision upon whether to adopt Daubert criteria in examining the reliability of unfamiliar scientific technology. The plaintiff, Dr. Sarah A. John, brought a person-

, al injury action as the result of an automobile acci­dent, claiming that she suffered an injury to her brain as the result of the accident. To establish her claim, the plaintiff sought to offer into evidence the deposition testimony of John K Nash, Ph.D., a licensed psychologist and Robert W. Thatcher, who holds a doctorate in Psychology and was Pro­gram Director of Quantitative Electroencephalo­gram (hereinafter "QEEG test") in a veteran's hospital in Florida. Dr. Thatcher happened to be a colleague of the plaintiff's father who helped develop the QEEG testing and has published books in the field.27 A QEEG test measures the electrical activity in the brain and converts it into a digital format to facilitate analysis and detect devia­tions from normal brain functioning. 28 Plaintiff had a QEEG test performed on her, and Thatcher concluded there was clear evidence from that test that she had suffered an injury to her brain, caused by "rapid acceleration/deceleration trauma."

State Farm, the uninsured motorist carrier, moved in limine to exclude the testimony of Thatcher and Nash. State Farm maintained that the expert testimony was inadmissible, because it lacked proper foundation and tha,t QEEG testing had not been established as reliable scientific evi­dence. under the ev~luation criteria set forth in Daubert.29 The trial court agreed and excluded the testimony of both Thatcher and Nash finding that the QEEG testing technique did not meet the criteria for scientific reliability set forth in Daubert. The trial court then excluded Nash's testimony because it was based on Thatcher's analysis of the QEEG test results and that Nash was not qualified to make a medical diagnosis Qr testify to the causal relationship between the automobile accident and that diagnosis because he was not a medical doc­tor. Thatcher's testimony was excluded on founda-

tional grounds relating to a failure to consider cer­tain testing variables. .

On appeal, the plaintiff maintained that the trial court abused its discretion in excluding evi­dence regarding the QEEG test. The Supreme Court restated its well-settled standard foradmissi­bility of expert testimony in Virginia: that it must assist the trier of fact in understanding the evi­dence, base it on adequate foundation, and consid­er all variables bearing upon the inferences drawn from the facts. 3o In reviewing the trial court's rul­ing to determine if the Court abused its discretion, the Court focused upon deficiencies in the founda­tion of the evidence. Specifically, Thatcher was unable to identify the person who performed the QEEG test on John and was uilable to account for testing variables involving plaintiff's use of certain medications which the expert stated would have an

. effect on the test results.

11

The Court held that the trial court properly excluded Nash's testimony because Nash was a licensed psychologist and not a medical doctor and therefore was not qualified to state an expert med­ical opinion regarding the cause of the plaintiff's injury.3l

The witness had indicated that the use of such medications can affect testing results but he did not specify whether he had observed such effects and did not know when she had last taken such medications. More importantly, the Supreme Court refused to adopt the Daubert standard, stat­ing the following:

Because the testimony of Thatcher and Nash was inadmissible for the reasons stated

. above, we do not reach the merits of the issue whether that evidence· also failed to meet the. criteria for scientific reliability artic­ulated in Daubert, 509 U.S. at 589. We note, however, that we have not previously considered the question whether the Daubert analysis employed by the federal courts shoulcl be applied in our trial court to determine the scientific reliability of expert testimony.3 Therefore, we leave this question open for future consideration.

Note 3 sets forth the following: Prior to Daubert, however, we discussed the trial ,court's role in making a thl:eshold find~

Expert Testimony - contJd on page 12

Expert Testimony cont'd from page 11

ing of scientific reliability when unfamiliar scientific evidence is offered. See Satcher p.

Commonwealth, 244 Va. 220, 244, 421, S.E. 2d 821, 835 (1992), cert. denied, 507 U.S. 933, 122 L. Ed. 2d 705, 113 S.Ct. 1319 (1993); Spencer P. Commonwealth, 240 Va. 78, 97-98, 393 S.E. 2d 609, 621, cert. denied, 498 U.S. 908, 112 L. Ed. 2d 235, I11S.Ct. 281 (1990). (emphasis ours)

The Supreme Court clearly indicated that it had already set forth a framework for a Virginia trial court's consideration of unfamiliar scientific testimony well before Daubert was decided. In fact, in Spencer v. Commonwealth,32 the Court con­

If admissibility were conditioned upon uni­versal acceptance of forensic' evidence, no new scientific methods could ever be brought to court. Indeed, if scientific una­nimity of opinion were necessary, very little scientific evidence, old or new, could be used. Wide discretion must be vested in the trial court to determine, when unfamiliar scientific widence is offered, whether the evi­dence is so inherently unreliable that a lay jury must be shieldedfrom it, or whether it is of such character that the jury may safely be left to determine ct'edibility for itself 34

. In making this threshold finding of fact, the Court must usually rely on expert testimony.· If there is a conflict, and the trial court's finding is supported by credible evidence, it will not be dis~

In all cases, and for till types of expert witnesses, federal

judges are cha~ged with ensuring that testimony is both relevant and reliable.

turbed on appeal. Even whl!re the issue of scientific reliability is disputed, if the Court deter­mines that there is a sufficient foundation to warrant admis­sion of the e11idence; it can, in its discretion, admit the evi­dence with appropriate inStructions to the fory to con­sider the disputed reliability of the evidence in determining its credibility and weight. 35

This has led to detailed . judgments on· meth.,dology and intellectual reasoning that place lay judges in the

difficult role of amateur

sideredthe reliability of PCR DNA analysis testing to deter­mine its admissibility, and it is here that the "need" for Daubert in Virginia courts begins to fall away. In Spencer, the Court noted that it had "declined to adopt the Frye test" in Virginia. Trial courts were instructed to make a threshold finding regarding the reliability of the scientific method, unless it is of a kind so famUiarand accepted as to require no foundation to establish a fundamental relia­bility of the s:fitem such as fin- scientist

Virginia's pre-Daubert evi~ dentiary philosophy also shields expert assessment froin some of the recent criticisms·of Daubert. It reserves to the·trial

. gerprint analysis, or unless it is so unreliable· that the considerations requiring its exClusion have ripened into rules of per se exclusions such as «lie de:tector» tests or unless its admission is regulated by statute s,¥ch as blood alcohilltestresults, i.e. Code of Virginia§ 18.2-268(0), 268(y).33 It should be emphasized that Daubert, itself, Was a response to the ~'Frye" test and PRE 702, which were never adopted by Virginia. Our Supreme Court~ in rejecting Frye, previously saw the need for flexibility in the admis­sion of such evidence and provided sufficient guid­ance for trial courts to determine the reliability of any new and unfamiliar scientific method. The Court stated:

12

courts the wide discretion . to dher~iIie whether tried 'and'truesc-iertce:and methodologies- are :so generally accepted that they should:be admissible if they ineet· proper 'founda­tional requirements and can generally assist the jury, Although iilSpencer the '~Frye test" was rejected, tri:alcol.lrtsare permitted to coilsider widely accepted scientific methods whenpetform:. ing their gatekeeping function'- This procedure leaves to the jury the : right· to· weigh competing opinions. with the assistance of cross:'examination: While the Daubert opinion may have envisioned a similatapproach for the federal courts, specifically referring to the criteria as "flexible," in practice, the· application of Daubert by . many federal courts

)

)

leaves little role for the jury with regard to a battle of experts. 36

Virginia courts have been given the necessary tools and discretion to consider unfamiliar scientif­ic principles and to act in a limited "gatekeeping" role without applying a multitude of confusing and burdensome Daubert criteria. Unlike Daubert, the Virginia standard does not invite trial judges to become amateur scientists and weigh the expert's intellectual rigor and methods. Virginia judges ensure that the factual record supports the conclu­sion in weighing foundation. Even less ,scrutiny is applied in cases involving familiar and well accept­ed scientific and engineering principles. It is also interesting to note that Code of Virginia §§8.01-401.1; 401.3 have not been amended by the General Assembly, to include the three additional amplifiers that appear in the current F.R..E. 702, specifically in response to Daubert. Since the legis­lature is presumed to be aware of the Virginia Supreme Court's application of the statutes it has enacted, the failure of the legislature to amend Code of Virginia §8.01-401.3 is evidence that it simply does not wish to adopt Daubert principles.

It is submitted that in Virginia, a trial court should permit a litigant to introduce all competent material and relevant evidence tending to prove or disprove any material issues unless the evidence violates a specific rule of admissibility. This neces­sarily includes relevant expert testimony. If the expert testimony will assist the trier of fact in understanding the evidence and such evidence would tend to prove or disprove a material issue raised, the evidence should be received as long as it rests on adequate foundation and is not specula­tive.37 If the testimony is within the range of com­mon knowledge of the fact finder, it should not be admitted.38 In contrast to the yoke placed on fed­eral courts by Daubert, the Virginia standard reserves the validity. of the reasoning process of a potential expert as a question for the trier of fact billy going to the weight to be accorded to the opinion.39 The Virginia standard differs in prac­tice from Daubert in that it allows the jury to determine the weight to be given to the testimony of the expert witness after considering the basis for his opinion,the manner by which he arrived at it

and the underlying facts and data upon which he relied.4o

In Rhodes P. Lance Inc., supra, Judge Kelsey, in consideration of the trial judge's limited state gate­keeping role when faced with familiar principles of science or engineering, stated the following in considering the proposed testimony of a traffic engineer from VCU:

Much of the proposed testimony of McAllister does not offend these principles. McAllister's analysis did not rely on an assumption that does not have some arguable factual support - either from the deposition testimony of the parties, or Officer Howe's recollection, or McAllister's personal observations. He accounts for every variable, and the plaintiff identifies none McAllister allegedly missed. Anyone of the facts underlying McAilister~s testimony may later be discredited at trial by other el1i­dence, and thereby topple McAilister~s opin­ion. Nel1ertheless, the al1alidity of the reasoning process» of an expert presents a aquestion for the trier of fact, and goes only to the weight to be Rccorded to the opinion.41

The flexible Virginia standard does not slam the gate shut as long as the circumstances described as above exist. Judge Kelsey did not have to cast himself in the role of traffic engineer to weigh whether the methodology employed passed muster. He simply ensured there was adequate record factual support and left it to the jury to accept or reject the method and the reasoning. This is consistent with the Supreme Court's vision of such role carved out in Spencer, supra. In con­trast, in an example of an all too. common applica- . tion of Daubert, a federal district court excluded plaintiff's mechanical engineer (a well evolved and accepted discipline) by . invalidating the expert's "fault-tree" analysis because the expert refused to consider that the plaintiff may have caused the accident himself- this while praising the pre-emi­nent qualifications of that expert.42 The Court reached this conclusion after considering literature it collected describing the role of "fault-tree" analysis in product design and concluded that the expert was not sufficiently "objective" because he chose to believe the plaintiff's statement regarding how the accident happened. However, there was

Expert Testimony - con~d on page 14

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Expert Testimony cont'd from page 13

no suggestion that the expert did not consider proven facts or reasonable inferences to be drawn from these facts. These points would more proper­ly be used to cross-examine the expert to test his conclusions before the jury but not to exclude his testimony in its entirety.

Federal district courts consid~ring Daubert are only supposed to critique methodology. In fact, too often the Courts take issue with the expert's conclusions regardless of the validity of the meth­ods used to reach those conclusions. The Second Circuit United States Court of Appeals has cau­tioned that trial judges acting as gatekeepers under Daubert must not assume "the role of Saint Peter at the gates of heaven, performing a search and inquiry into the depth of an expert witness' soul" and generally arid thereby usurp, "the ageless role of the jury" in evaluating witness credibility and weight of the evidence.43 Virginia courts consider "generally-accepted" and proven scientific methodologies without further gatekeeping analy­sis because such methodologies have proven to be reliable. Other methods or methodologies, such as lie detector tests, are inadmissible because they have not been proven to be scientifically reliable.44 Any relevant conclusions supported by a· qualified expert witness should be received unless there are distinct reasons for exclusion, These reasons are the familiar ones of prejudicing or misleading the jury,' consuming undue amounts. of time, usurping th~province of the jury· and lack .of.foundation.45

Using a legal standard that recognizes that scientif­ic· validity and . aq:eptance are· ma,tters of degree rather than yes-or-no ju,dgments diminishes. the severity of many of the probleplSthat have plagued both the "general acceptance" and "scientific soundriess" standards.46 · This standard harmonizes general.acceptance principles previously· articulated in Frye (without adoption of it) with the trial court's "gatekeeping" role and ensures, in simple and flexible fashion, that sufficiently reliable and relevant expert testimony gets to the jury. This is "the best of both worlds" standard we have enjoyed in Virginia courts and which Daubert cri­teria will not improve.

14

Conclusion Distilled to its essence, the long-standing Virginia standard for expert admissibility is, like Daubert, designed to the ensure reliability of unfamiliar sci­ence. However, Virgiriia limits the trial court to ensuring that the expert's opinion will assist the trier of fact, has an adequate foundation and is based upon the factual record. Unlike Daubert, our jurisprudence in practice, does not place judges in the role of amateur scientist. Virginia leaves to the jury its traditional. role of weighing, accepting or rejecting the ultimate conclusions and reasoning of experts. Our courts scrutinize the sci­ence, not the scientist and respect the important role of the jury.

1509 U.S. 579 (1993).

2293 F. 1013 (D.C. 1923).

3 Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F3d 1311, 1316 (9th Cir. 1995) (Daubert II); see also United Statesv. Hines, 55 F. Supp. 2d 62, 66 (D. Mass. 1999)

4Id. at 1316.

5293 F. 1013 (D.C. 1923).

6293F. 1013,1014.

7Paul C. Gianelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half Century Later, 8Q COLUM. L. REv. 1197,1219 (1980).

8FED. R. EVID. 702 (Prior to 2000 Amendment).

9 Mark Lewis and Mark Kitrick, Ku~ho Tire CompllnYv. Carmichael: Blowout from the Over~Inflation of Daubertt'. !l{errill DOJI' PhllrinaceutiC4/s, Inc., 31 U. ToL. L. REV: 79, 82(1999).' ' .

. 10509 U.S. 579 (1993).

'u509U.S. at 597.

12509 U.S. at 598.

13509 U.S. at 593.

14Freemanv. Case; 118 F. 3d. IOU (4thCir.1997).

15526 U.S. 137,150 (1999).

16Kumho Tire Company ,v. Carmichael, U9 S. Ct. U74.

17 526 U.S. at 15,2 (emphasis ours).

18 FED. R. EVID. 702.

19Heather Hamilton, The Movement from Frye to DlJubert: Where Do the States StlJnd? 38 JURIMETRICS J.201 (Wfuter 1998). ' .

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"T1 i':TER 2003 LI I ICr\T1():\ Nu\'s

20Goeb 11. Tharaldson, 615 ,N.W. 2d 800, 813 (Minn. 2000), Sentinel Management Company 11. AETNA Casualty and Surety Company, et al., 615 N.W. 2d 819, 825 (Minn. 2000).

21615 N.W. 2dat 814.

22615 N.W. 2d at 815.

23Sanders, Joseph, Complex Litigation at the Millennium: KumhoTire and How We Know, 64 LAw & CONTEMP. PROB. 373,379 (Spring/Summer 2001). .

2431 U. TOL. L. REv. 79, 93.

25 Samuel 11; Ford Motor Company, 96 F. Supp. 2d 491 (D.C. Md. 2000) (excluded), Ford Motor Company 11.

Ammerman, 705 N.E. 2d. 539, 554 (1999)(admitted)("any questions regarding whether research comports with the dic­tates of good science should be addressed through cross examination and presentation of evidence ... ")

26263 Va. 315,559 S.E. 2d, 694 (2002).

27Id. at 318.

28Id.

29Id. at 319.

30Id. at .320 (citing, among .others, Keesee 11. Donigan, 259 Va. 157, 161, 524 S.E. 2d 645, 647 (2000); Tittsworth 11.

Robinson, 254 Va. 151, 154,475 S.E. 2d 261,263 (1996).

31Id. at 321 (Combs 11. Norfolk and W. Ry. Co., 256 Va. 490,496,507 S.E. 2d 355,358 (1998».

32240Va. 78, 393 S.E. 2d 609 (1990).

33240 Va. at 97 (emphasis ours).

34240 Va. at 98 (emphasis ours).

35240Va. at 98 (emphasis ours).

36 Michael J. Saks, The Aftermath of Daubert: An ElIollling Jurisprudence of Expert Ellidence, 40 JURlMETRlCS J 229, 241 '(2000); Daniel R. Ryan, Expert Opinion Testimony and Scientific Ellidence: Does MCL S. 600.2955 «Assist» the· Trial Judge in Michigan Tort Cases? 75 U. Din. MERCY L. REv. 263,297 (1998) (noting there is "a potential internal para­dox in the Daubert decision. In addition to the positive aspect of allowing more expert testimony into· evidence in pursuit of justice and truth, Daubert can also be more restric­tive.") See infra Part V; Reavley & Petalas, A Plea for Return to Ellidence Rule 702, 77 TEX. L. REv. 493, 507 (1998) (observing "several troublesome issues flowing from Dauberfs ambiguous holding, including the problem of determining a standard for 'reliability.'"), James W. McElhaney, Fixing the Expert Mess, 20 LmG. 53, 53-54 (Fall 1993) (observing that Rule 702 has nothing "to do with how

. reliable sCientific evidence has to be," and offering nothing "to put in ... Frye's place"; the Court was therefore "in the awkward position of making something up ... "); See Saks, supra note 5 at 241 n. 6 (2000) (observing, "Oddly enough, most courts have been slow to realize that in many situations, Daubert requires more stringent oversight than the "general acceptance" test of Frye 11. United States, 293 F. 1013 (D.C. Cir. 1923). A number of fields that easily had gained entry

15

under Frye have found themselves at increased risk of exclu­sion. This seeming paradox, is largely a consequence of courts accepting at face value what Daubert said about the test it created, rather than looking at what the test does.") See also Michael J. Saks, Merllin and Solomon: Lessons from the Law's Formatille Encounters with Forensic Identification Science, 49 HASTINGS L.J. 1069, 1077-79 (1998); G. Michael Fenner, The Dllubert Handbook: The Case, Its Essential Dilemma, and Its Progeny, 29 CREIGHTON L. REv. 939, 958-62 (1996). See Michael H. Graham, The Dllubert Dilemma: At Last a Viable Solution?, 179 F.R.D. 1 (1998).

37 Keesee 11. Donigan, 259 Va. 157, 161-62, 524 S.E. 2d 645, 647 (2000). See IIlso Charles E. Friend, THE LAW OF EVIDENCE IN VIRGINIA §§ 17-14 to 17-26 at 590-640 (5th Ed. 1999).

38 Dallid A. Parker Enterprises 11. Templeton, 251 Va. 235, . 237,467 S.E. 2d 488,490 (1996).

39Friend, supra, §17-21 at 635; See IIlso Rhodes 11. Lance Inc. and Sherman Hughson, 55 Va. Cir. 253 (2001).

40Virginia Model Jury Instruction 2.040

4155 Va. Cir. at 256 (emphasis ours).

42ShrCJIe 11. Sears Roebuck & Company, 166 F. Supp. 2d 378,396-399 (U.S.D.C. Md. 2001).

43McCullock 11. HB Fuller Company, 61 F. 3d 1038, 1045 (2d Cir. 1995); See IIlso Guild 11. General Motors Corp. 53 F. Supp. 2d 363, 369 (W.D.N.Y: 1999); ("Under the amended Rule 702, a trial judge has an obligation to screen expert tes­timony to ensure it stems from not just a reliable methodolo­gy, but also a sufficient factual basis and reliable application of the methodology to the facts. The trial judge, however, must still avoid usurping the role of the trier of fact.") Allstate Insurance Company 11. Hugh Cole Builder, Inc. 137 F. Supp. 2d 1283, 1285 (M.D. Ala. 2001); Allison 11. McGhan Med Corp., 184 F. 3d. 1300, 1312 (11th Cir. 1999) ("The gate­keeper role, however, is not intended to supplant the adver­sary system or the role of the jury ... ").

44Lee 11. Commonweillth, 200 Va. 233; 237, 105 S.E. 2d 152, 155 (1958).

45 John Stiong, MCCORMICK ON EVIDENCE, Fifth Editicn, § 203, (1999).

46Id. at § 203.

Principles of Cooperation for

Physicians and Attorneys in the Commonwealth of

Vi •• trgJDla

(Third Edition) as Promulgated by The Medical Society of Virginia

and the Virginia State Bar, 1993

Organization The Medical Society of Virginia and the Virginia State Bar, through their appropriate officials, shall each appoint members to constitute and maintain a Joint committee on Medical/Legal Liaison. The Committee shall seek to foster cooperation between the professions, and it shall encourage the creation of organizations of joint medical/legal committees on the local level in communities where such organizations do not exist.

Privilege Generally, no attorney should request; and no physi~ cian should furnish to a third party, any information concerning the history, physical condition, diagnosis or prognosis of a patient except at the request of or with the written consent of the patient.

Virginia law provides that when the physician Or mental condition, of the patient is at issue in a civil action, facts communicated to; or otherwise learned by, a practitioner in connection with such attendance, examination or treatment shall be dis­closed but only in discovery pursuant to the Rules of Court or through testimony 'at the trial of the action. In addition, disclosure may be ordered when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice. However, no disclosure of facts communi­cated to, or otherwise learned by, such practitioner

See the ULetter from the Chair" on page 2 herein for information about how you can contribute comments for the fourth edition of this publication. '

16

shall occur if the court determines, upon the request of the patient, that such fc1cts are not rele­vant to the subject matter involving the pending action or do not appear to be reasonably calculated to lead to the discovery of admissible evidence. Neither a lawyer, nor anyone acting on the lawyer's behalf, shall obtain, in connection with pending or threatened litigation, information from a practi­tioner of any branch of the healing arts without the consent of the patient except through discovery pursuant to the Rules of Court as herein provided. Nothing herein shall prevent a duly licensed practi­tioner of the healing arts from disclosing any infor­mation that he may have acquired in attending, examining or treating a patient in a professional capacity where such disclosure is necessary in con­nection with the care of the patient, the protection or enforcement of the practitioner's legal rights, including such rights with respect to medical mal­practice actions or the operations of a health care facility or health maintenance organization or in order to comply with state or federal law. The physician should require a signed release from the patient or a court order, with exception of worker compensation cases controlled by Virginia Code Section 65-1-88.l.

In the event the physician has reason to believe the information properiy. sought is not related to the law-suitor believes disclosure would tend to cause physical or emotional harm to the patient, the physician shollld note his opinion in the patient's record and should notify thepatient;s at~orneysothat the appropriate action can be takentQ prevent th~harm. 'N~twithst;trldii1gi the potential harm to the pa1:;ient, an attorIley may obtaiq. the record upon proper written request and with patient or court authorizati()n. It may also" be appropriatefor the physici;m to prepare an affidavit stating·'his position concerning ,the adverse effects of such disclosure for the trial judge.

Physician'S Availability The relation ,between a lawyer and a physician should be based upon mutual courtesy and 'under­standing. A physician should understand that ined­ical testimony is normally indispensable to prove or disprove the nature and extent of injuries.

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'VI:\ II-.R 2003 LiTI(;,HIO:\ NL\\'S

Therefore, when a physician undertakes to treat or evaluate a person who has been injured, he has a responsibility to be available for participation in any legal proceedings which may ensue because of the patient's injury. He should make himself available for testimony in court at reasonable times regard­ing the patient's condition, treatment, diagnosis, prognosis and other medical matters, upon the request of the patient or his attorney.

Presentation of Medical Questions It is the duty of each professional to present fairly and adequately the medical questions involved in controversies. To that end, the practice of pre-trial discussions between physician and attorney of the medical questions involved shall be encouraged. In all instances, a frank discussion between the client's physician and the client's attorney shall be encour­aged for the purpose of, obtaining a complete understanding on the part 'of each as to the medical and legal issues involved. An exchange of facts and opinions in advance of such testimony minimizes confusion and time demand, encourages settle­ments, and enhances the understanding of the roles of the two professions.

Reasonable Fees A physician is entitled to a reasonable fee for time expended for detailed medical reports, attorney / physician conferences and expert testimony, which are proper and necessary items of expense in liti­gation involving medical questions. Generally, vol­untary or subpoenaed participation by a physician iIi a trial or trial preparation in the capacity of a citizen or general factual witness rather· than an expert is not compensable. Any testimony that involved rendering medical opinion constitutes expert testimony for the purpose of determining a reasonable fee.

Payment for expert services and testimony is ultimately the responsibility of the patient. A rea­sonable fee means those charges which' reflect the physician's comperisation for a similar measure of time in his practice' and as are usual and customary in the community. Such fees should in no way be dependent upon the outcome of the litigation, be excessive or unreasonable, or be designed to dis-

17

courage patients or their attorneys from utilizing the services of a physician where necessary. The fee should be based solely on the time involved. Attorneys and physicians should discuss and agree on the rate of compensation in advance of a confer­ence, deposition, or trial appearance.

The attorney should not utilize the services of the physician for such purposes unless he discloses to the physician in what capacity the physician is serving and the arrangements that have been made for payment of these services if payment is to be made. The attorney requesting time and activity on the part of the physician should make adequate financial arrangements with his client for the ser­vices he specifically requests of the physician, such as court or deposition testimony, requests for med­ical reports, and pre-trial conferences. Ethically, an attorney may advance or guarantee the expenses of litigation, including the expenses of medical exami­nations and the cost of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.

Although rare, on occasion physicians refuse to . honor repeated requests for medical reports. If this is the case, the attorney is authorized by Virginia law to obtain the medical record by subpoena duces tecum. Virginia law also allows the court to require physicians to appear for deposition and to testify in court as to the medical facts regarding the patient.

When requested to furnish current medical reports, physicians should not respond by merely copying previous reports. The physician should prepare a current and appropriate report and also send to the attorney copies of previous reports which would be of benefit to the attorney. Physicians are entitled to charge a reasonable fee for the preparation of detailed new reports or for the duplication of other reports. Attorneys should specify if they are requesting a detailed new report from the physician.

Whenever there is any question with regard to reports, direct communication between physician and lawyer is essential and is therefore strongly encouraged.

Principles o/Cooperation - cont'd on page 18

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Principles of Cooperation contJd from page 17

Distribution of Settlement/ Judgment Funds In disbursing any recovery, an attorney has a good faith obligation to see that the charges of the attending physician are paid by the client.

Physician's Records The original of all records of the physician made in connection with the treatment and evaluation of the patient and maintained by the physician are the

. property of the physician. Similarly, original hospital medical records are the property of the hospital.

Virginia law provides that upon the written request of the patient or his attorney, copies ofmed­ical records shall be furnished within fifteen (15) days of the request to the patient or his attorney; provided, however, that copies shall be furnished only to the patient's attorney if the physician has included in the patient's records a written statement that in his opinion the review by the patient of such records would be injurious to the patient's health or well-being.

The original medical records should not be released except upon court order or pursuant to a subpoena. Generally, copies of existing records may be provided instead of the original in response to a proper request.

If medical records are subpoenaed, copies may be mailed to the clerk of the court issuing the sub­poena or to the perSon specified in the subpoena. Reasonable charges should be billed to the person who requested the subpoena pursuant to Virginia Code, Section 8.01-413 (see paragraph 10 below [Charges for Copying]).

Independent Medical Examinations _ Upon the order of the court where the action is pending, or by informal arrangement by the attor­neys, the party whose medical condition is at issue may be required to' submit to examination by one or more doctors chosen by the other party's lawyer,. agreed upon between counsel, qr ordered by the court. The examining physician shall send the origi­nal of his report to the clerk of the court with copies

to the counsel for each party. The report shall be detailed, setting out the findingsbf the physician, including the results of all tests made, diagnoses, and conclusions, together with reports of all earlier examinations of the same condition.

The Responsibility of the Physician To Prepare Requested Medical Reports Physicians should promptly furnish medical reports to attorneys requesting them on behalf of clients. In the absence of unusual circumstances, a physi­cian should respond to a request for a medical report within fifteen (15) days of receipt. When the physician has any question about what is need­ed or what should be included, it is his obligation to write or telephone the requesting lawyer.

When a report is requested by an attorney, he should make clear in a written request for the report the specific condition about which he seeks information and should likewise indicate whether he is asking for a prognosis, a diagnosis or a report on the extent of any disability. The request for the report should also indicate to the physician whether the attorney or the client should be billed for the report, and should indicate the arrangements that have been made for payment of the report.

Charges for Copying Physicians and other health care providers are enti­tled to reasonable charges for duplicating and mail­ing records, whether the copies are furnj~hed pursuant to a subpoena or pursuant to a request fr0111 a pa~entoran au:()rney~ Curr~npy, Virginja law allows f()r,a. reasonab,lecl).arge, not toe?Cceed :6.furc~I1ts for; each page upto 50, pages and t\Ve11;t;y~ five cents- for e~ch pag~ thC!reaftet;,.and a seaJ.'ch fee not to exceed ten dollars (Virginia Code Section 8.01:-413). .

. Deposition Testimony

18

Deposition testimony of physicians is sometimes necessary and is preferably arranged at a scheduled time in the physician'S office. Depositions are neces­sary for one or more reasons: for discovery, to per­petuate testimony, or to be used in lieu of the physician'S appearance at trial. A physician's appear­ance in court is usually the most effective way to

. i. ..

)

present his testimony; however, physicians cannot always be present, or their personal testimony may be of secondary value. Therefore, both professions are encouraged to consider the alternative use of depositions. Physicians should agree to videotaped depositions when requested.

Contingency Fee No member of the legal profession should suggest, and no member of the medical profession should agree to accept, a fee wholly or partially contingent upon the outcome of the matter in which testimo­ny is offered. A fee shall not be deemed contingent for the reason only that the patient's financial con­dition may render collection difficult in the event the patient does not prevail in a legal action.

Fee Adjustment If in connection with a proposed settlement or actual recovery, the attorney, on behalf of the client-patient, wishes to propose a reduction of the medical bill, the attorney should present the physi­cian with a statement of the proposal, which should include the proposed or actual gross receipt of funds and the proposed plan of settlement, includ­ing the normal or contractual attorney fee and the actual amount the attorney proposes to charge.

Canceled Testimony If scheduled expert testimony should be cancelled without sufficient time for the physician to rearrange his scheduled time productively (e.g., seeing patients, operating, consulting, etc.), the physician may charge a reasonable fee for his unproductive time. Attorneys are expected to inform physicians prompt­ly of cancellations, delays or continuances. Physicians should not set arbitrary deadlines for communication of this information. The physician has an affirmative duty to minimize the amount of unproductive time and should make <!- reasonable effort to reschedule his time in order to minimize expenses to be charged to the responsible party.

Scheduling The physician should attempt to be available at reasonable times for consultation with the attor­ney-and for purposes of court testimony. The

19

attorney should attempt to give as much notice as possible to the physician as to when the physician will be needed.

The attorney should notify the physician of the trial date promptly after it is set and that his atten­dance on that date will be required. Attorneys should make arrangements for the physician to appear at a prescribed time for his testimony. If this prescribed time is different from the time stat­ed on the subpoena, the physician may assume that the prescribed time is acceptable to the court.

Where the physician indicates that he cannot be present on the date indicated for trial or deposi­tions, after making all reasonable efforts to make the adjustment in his schedule to permit his attendance, he shall promptly notify the attorney who has requested his appearance and cooperate with the attorney to arrange a convenient alternative date. The attorney should promptly notify the physician in the event of settlements or continuances.

It is recognized that, although every reasonable effort should be made to minimize the inconve­nience to the physician witness, the dispatch of the duties of the courts cannot be governed by the con­venience of litigants, lawyers or witnesses, whomev­er they may be.

Dispute Resolution Disputes between physicians and attorneys arising within or outside of these guidelines may be directed to the chairperson of that professional's liaison committee. Absent resolution of the dispute by the joint medicaljleg:ll chairpersons, a joint committee will be convened to consider the issue; While not binding upon the parties, the joint com­mittee's proposed resolution of the dispute will offer to the parties a solution intended to foster better understanding and communication between physicians and attorneys.

Acknowledgement Special thanks are given to the Fairfax County Bar Association and the Fairfax County Medical Society, whose publication was used as a basis for this work. While many persons spent llmumerable

Principles of Cooperation -:. cont~d on page 27

LI rI(;,\ II():'\ NH\'S 'VI:,\ II R 2003

Recent Law Review Articles

by R. Lee Livingston

The following are recently published Law Review articles that may prove useful to you in your practice:

Contracts

Walden, Matthew D. Note. Could Fair Use Equal Breach of Contract? An Analysis of Informational Web Site User Agreements and Their Restrictive Copyright Provisions. 58 WASH. & LEE L. REv. 1625-1672 (2001).

Employment Practice

Cavico, Frank J. Tortious Interference with Contract in the At-Will Employment Context. 79 U. DET. MERCY L. REv. 503-569 (2002).

Lewis, John Bruce and Gregory V. Mersol. Opinion and Rhetorical Hyperbole in Workplace Defamation Actions: The Continuing Quest for Meaningful Standards. 52 DEPAUL L. REv. 19-82 (2002).

Yanko, Kenneth J. «You)re Fired! And Don)t For.get Your Non-Compete ... »: The Enforceability of Restrictive Covenants in Involuntary Dischar.!Je Cases. 1 DEPAUL Bus. & COM. L.J. 1 ~48(2002).

Evidence

Cronan, John P. Do Statements Against Interests Exist?'A Critique o[theReliabitity of Federal Rule of Evidence 804 (b) (3) and a Proposed Reformulation. 33 SETON HALL L. REv. 1-30 (2002).

Drexler, Steven G. A Guide for Submitting Questioned Documents and Handwriting Evidence. 26 AM. J. TRIAL ADvOC. 65-77 (2002).

20

Markowitz, Kenneth J. Legal Challenges and Market Rewards to the Use and Acceptance of Remote Sensing and Digital Information as Evidence. 12 DUKE ENVTL. L. & POL'y F. 219-264 (2002).

Marron, Michael. N0te. Discoverabitity of «Deleted»E-Mait: Time for a Closer Examination. 25 SEATTLE U. L. REv. 895-933 (2002).

Matula, Michael L. E-Mail) Fingerprints, wnd Personnel Files: Recurring and Emerging Discovery Issues in Employment Litigation. 38 TORT TRIAL & INS. PRAC. L.J. 69-101 (2002).

Insurance Law Houser, Douglas G. and Linda M. Bolduan. Mold: Another Four Letter Word Every Coverage Attorney Needs to Know. 38 TORT TRIAL & INS. PRAC. L.J. 15-48 (2002).

Walden, Matthew D. Note. Could Fa,irUse Eqtlal Breach of Contract? An Analysis of Jnfor'ffi:ational Web Site, User.f1greem~~Ui;tf'!ld; TheirRestrictiveCQPyright ·l'rovi$ilJn!. 5 ~ WasJI., & Lee L.Rev. 1625-1672 (2001). '

Intellectual Property Law B~~kerman-Rodau, Andrew. Trade Secrets ~<Tke New Risks to Trade Secrets' Posed by Computerization. 28 RUTGERS COMPUTEI\& TECH. L.J. 227-273 (2002)."1.'"

Brogan, Denis T. Note. Fair Use No Longer: How the Digital Millennium Copyright Act Bars Fair Use of Digitally Stored Copyrighted Works. 16 ST. JOHN'S J. Legal Comment. 691-725 (2002). ,

'j.' .....

)

)

\VI r"TEl{ 2003 LITIGATIO:'\ Nl-.\\'s

Ciolino, Dane S. and Erin A. Donelon. Questioning Strict Liability in Copyright. 54 RUTGERS L. REv. 351-421 (2002).

Medical Jurisprudence Dreher, Kevin B. Note. Enforcement of Standards of Care in the Long-Term Care Industry: How Far Have We Come and Where Do We Go From Here? 10 ELDER L.J. 119-151 (2002) ..

Meyers, Evan M. Note. Physical Restraints in Nursing Homes: An Analysis of Quality of Care and Legal Liability. 10 ELDER L.]. 217-262 (2002).

Mossman, Douglas M.D. Unbuckling the U:Chemical'Strait Jacket)): ,The Legal Significance of Recent Advances in the Pharmacological Treatment of Psychosis. 39 SAN DIEGO L. REv. 1033- 1164 (2002).

Practice and Procedure Barrett, Matthew J. Opportunities for Obtaining and Using Litigation Reserves and Disclosures. 63 OHIO ST. L.J. 1017-1106 (2002).

DeBarba, Kirsten. Note. Maintaining the Adversarial System: The Practice of Allowing Jurors to Question Witnesses During Trial. 55 VAND. L. REv; 1521-1548 (2002).

Products Liability

Ausness, Richard C. Will More Aggressive Marketing Practices Lead to Greater Tort Liability for Prescription Drug Manufacturers? 37 WAKE FOREST L. REv. 97-139 (2002).

Cupp, Richard L. Jr. and Danielle Polage. The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis. 77 N.Y.U.L. L.REv. 874~961 (2002).

Remedies Bales, Richard A. and student Ryan' A. Allison. Enjoining Nonparties. 26 AM. J. TRIAL ADvoc. 79-106 (2002).

Gross, Leonard E. Time and Tide Wait for No Man: Should Lost Personal Time be Compensable? 33 RUTGERS L.J. 683-712 (2002).

Mootz, Francis J. III. The Sounds of Silence: Waiting for Courts to Acknowledge that Public Policy Justifies Awarding Damages to Third-Party

. Claimants When Liability Insurers Deal with Them in Bad Faith. 2 NEV. L.J. 443-488 (2002).

Smith, Douglas G. Application of Patent Law Damages AnalySis to Trade Secret Misappropriation Claims: Apportionment)

'. Alternatives) and Other Common Limitations on Damages. 25 SEATTLE U. L. REv. 821~866 (2002).

Securities Law Fabella, Justin M. Note. Does Anyone Know the Required State of Mind?: The Uncertainty Created by the Vagueness of the Private Securities

. Litigation Reform Act of 1995. 7 SUFFOLK J. TRIAL & APP. ADvoc. 81-90 (2002).

Torts Henning, Stephen J. and Daniel A.Beni1~n. Mold Contamination: Liability and Coverage Issues: Essential Information you Need to Know for Successfully Handling and Resolving any CI(1,im Involving Toxic Mold. 8 HAsTINGS W.Nw. J. ENVTL. L. & POL'y73-92 (2001). . .

Swemba, Connie. Comment. u:ro Tell the Truth) the Whole Truth) and Nothing but the Truth:» Employment References and Tort Liability. 33 U. ToL. L.REv. 847-877 (2002).

Guaranty Association cont)d from page 1

a subrogated insurance company gets treated by the "insurer of last resort."

Although the named defendant in the case is the alleged tortfeasor, I will refer to its position on the issues as the Association's argument. The Defendant's Motion for Summary Judgment relies solely on the Association's interpretation of the statutes and case law, which it reads to prohibit insurance subrogation actions against an alleged tortfeasor with an insolvent

the Virginia Supreme Court that prohibit recover­ies by insurance companies frOM the Guaranty Association can be distinguished and are not deter­minative of this particular issue, and (4) considera­tion of the purpose of the Guaranty Act and the principles of subrogation weigh strongly in favor of the subrogated insurance company.

The Virginia Property and Casualty Insurance Guaranty Association Patterned after the National Association of Insurance Commissioners Insurance Guaranty

insurer. Why would a subrogated

insurer be treated differently under the Guaranty Act? It' paid to cover a loss presumably caused by a negligent tortfeasor and assuming that it could seek to obtain a judgment against that tortfeasor. Shouldn't the Guaranty Association step in as the insurer for the tortfeasor with an insolvent insurance company and consider a claim made by a subrogated insur­ance company the same as a claim by any other claimant? Apparently the Guaranty Association does not think so.

111e Guaranty Association likes to say that it is an

insurer of last resort ... It is a guardian for insured

Association Model Bill, the Virginia General Assembly enacted the Virginia Insurance Guaranty Association Act in 1970 and created what is now known as the Guaranty Association. l The Mod.el Bill

The Guaranty Association bases its argument on (1) cre­ative interpretation of Virginia's statute, (2) an attempt to extend cases involv­ingthe Guaranty Association previously decided by the

people, making sure that has been enacted throughout

wh f the country, and although the ' no person 0 pays or general purpose is uniform,

insurance will go states have enacted various

d d statutory schemes to effect that unprotede an purpose. Since 1970, Virginia's

unrepresented, and a Guaranty Act has been amend~

h I. eel ed and restated, and now campion lor injur stands as the Virginia Property

people, making sure that and Casualty Insllrance

h fl Guaranty Association Act no person w osu ers a ("Guaranty Act").2 The express

loss caused byatortfeasor ' purpose of the Guaranty Act -th - I' t - , is to establish an associ-

WI , ,lnSO venlnsurance dtiort' that' ~halfpro~de \1 ,

coverage will be hung out prompt', pay~erit of " covered claIms to

to dry. red~,ce financial los~ t<;>

Supreme Court ofVrrginia and other state courts, and (3) public policy considerations.

claImants, or pohcyc holders resulting from

the insolvency of an insurer.' This ass6ciation ' shall assist in the ,detection and prevention of insurer insolvencies and shall apportion the cost of this protection among insurers.3

The subrogated insurance company contends (1) Virginia's statute does not prohibit subroga­tion actions against an insured with insolvent insurance coverage, (2) the subrogated insurer should be able to recover a judgment against the torfeasor with insolvent coverage regardless of whether or not the Guaranty Association would indemnifY the tortfeasor, (3) previous decisions of

22

Acting under the authority granted in the statute, the Association levies assessments to each and every insurance company licensed to conduct business in the Commonwealth of Virginia to establish its fund. The Association's stance toward subrogated insurance companies is ironic consider~

\

)

)

\VI :\TER 2003 LITIGC\TIO:\ NL\\'S

ing it depends on such insurers to establish the fund. For covered claims not involving workers' compensation insurance coverage (where the Association satisfies the full amount of the claim), the Association utilizes its fund to provide up to $300,000 in coverage for insureds whose insur­ance companies have become insolvent.4

In the Motion for Summary Judgment, the Association contends it is only required to pay "covered claims," and the definition of a "covered claim" is "an unpaid claim ... submitted by a claimant, which arises out of and is within the cov­erage and is subject to the applicable limits of a policy covered by this chapter and issued by an insurer who has been declared to be an insolvent insurer. "5 The Association argues to determine whether a claim is "unpaid," the Exhaustion of Remedies Provision must be applied. The Exhaustion of Remedies prqvision provides:

Any person having a claim against an insurer under any provision in an insurance policy, other ,than a policy of an insolvent insurer under which the claim is also covered, shall be required to first seek recovery under the policy covered by the insurer which is' not insolvent. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under the insur­ance policy.6

In a nutshell, the Association argues the Exhaustion of Remedies provision requires that a person with a claim against an insured of an insol­vent insurer seek recovery from any other solvent insurance available and any amount paid by a sol­ve,Iit iriSurer ceases to be an unpaid claim. Furthermore, it maintains' smce that amount can­not be recovered from the Guaranty Association, it should hot be recoverable from an insured of an insolvent insurer protected by the AssociatiQn.

The subrogated insurer asserts the Association's argument is inconsistent with the overall purpose of the Guaranty Act and general subrogation principles. The Exhaustion of Remedies provision does not expressly indicate a claimant must look to its own inSurance coverage. Considering the logic,al application of the Exhaustion of Remedies provision to promote the purpose of the Guaranty Act, the requirement that adaimant exhaust all other insurance seems to , I '

. -" ~ " ~

23

mean a claimant cannot assert a claim against the Association unless it has exhausted recovery under all solvent insurance coverage held by tP.e insured with the insolvent insurer. If subrogation actions against insureds of insolvent insurers were prohib:" ited, first-party insurers would beburderted with losses caused by tortfeasors with insolvent insurers and statutory and contractual subrogation rights would be violated. The express purpose of the Guaranty Act is to "apportion the cost of this pro­tection among insurers. "7 Since all insurance com­panies licensed to do business in Virginia are assessed fees by the Guaranty Association to build the fund from which claimants are paid, payments from the Association truly apportion the loss among insurers.

The Guaranty Association's argument also fails to consider the statutory history of the Act in Virginia. Virginia's Guaranty Act expressly prohib­-ited subrogation actions before amendments to the Act in 1987. The pre-amended definition of "cov­ered claim" included a final sentence that read: "'Covered claim' shall not include any ,amount due any reinsurer, insurer, insurance pool, or under­writing association, as subrogation recoveries or otherwise" (emphasis added). 8 The Association attempts to read that prohibition back into the Act. The subrogated insurer maintains (1) the removal of this language opened the door for sub­rogation recoveries against the Guaranty Association, and (2) the Association cannot read theprohibiti()riback into the Guaranty Act, then

, exrel)d it to bar actions directiyagainst a tortfeasor with an insolvent insured. The equivalents of Virginia's Guaranty Act in many other states still contain an express prohibition on subrogation claims, and that prohibition has been a basis for rulings that have held a subrogated insurance COffi­

paIiycannot recover from an insured of an insol­vent insurer.

Another significant difference between Virginia's Guaranty Act and statutes in other states creating their Guaranty Associations lies in the lan­guage of the stated purposes. As previously stated, the ptirpose of Virginia's Act'is "to reduce financial loss' to claimants Qr, policyholders resulting from

Guaranty Association ---'- cont'd on page 24 ........ .;,'

LITJ(;.\IIO\: NI-.\\'s \VI\: I H. 2003

Guaranty Association contJd from page 23

tory basis. That statutory basis simply does not exist in VIrginia.

the insolvency of an insurer" (emphasis added).9 Many, if. not most, guaranty acts enacted in other states propose "to avoid financial loss to claimants or policyholders ... " (emphasis added).lO The origi­nal statutory language in Virginia similarly pro­posed to "avoid financial loss to claimants or policyholders ... " (emphasis added).ll Although . the difference in language is subtle ("reduce" opposed to "avoid"), it should not be taken light­

The Cases The Guaranty Association relies on two cases decided by the Supreme Court of Virginia, Northland Insurance Company v. Vi'1l!inia Property and Casualty Insurance Guaranty Association, 240 Va. 115, 392 S.E.2d 682 (1990) ("NorthlaniJ") and Virginia Property and Casualty Insurance Guaranty Association v. International Insurance Co., 238 Va. 702, 385 S.E.2d 614 (1989)

ly. The decisions of many courts prohibiting subrogation recoveries against insureds of insolvent insurers have been based upon the statutory direc­tion to "avoid" such losses. By utilizing the phrase "reduce financial loss to claimants or policyholders," the stated pur­pose of Virginia's Act does not indicate a prohibition on suits against insureds of insolvent insurance companies, but rather implies that it creates a structure whereby liability of these insureds is eliminated or t;educed by application of the Act. 12 Reducing financial loss to an insured of an insolvent insurer is accomplished in Virginia by the Association's responsibility for up to $300,000 of a covered claim, the amount by which the Association will reduce a claim against the insured of an insol­vent insurer.l3

The AS.sociation cites . numerous cases decided by

In a nutshell, the AssoCiation argues the Exhaustion of

Remedies provision requires that a person with a claim against an insured of an insolvent insurer seek

recovery from any . other solvent insurance available and any amount paid bya

solvent insurer ceases to be an unpaid claim.'

Furthermore, it maintains since that amount cannot be recoveredfroql thttGuar~"ty Association,· it, should not be· recoverable from .aninsu~ecI

of an insolvent insurer protected by the Association.

("International"), to support its interpretation of the Exhaustion of Remedies provi­sion. The subrogated insurer argues these cases can clearly be distinguished and do not sup­port the Guaranty Association's argument in the action at issue.

In Northland, the Court held that a subrogated insurer could not sustain a claim directly against the Guaranty Association to recover UM payments made to its insured. The distinguishing element of Northland is the uninsured motorist coverage. An insured with an insolvent insurer is essentially uninsured. Pursuant to the logical purpose of Ullin­sured motorist coverage, Northland. was reqp.ir~d to,~.a~­isfy itsiIlsm-ed'sclaini., :aQ.d. me recovery under the policy was setoff againstthedaim to~e Guaranty Association as required by the Exclusion of Remedie.sprovision. Since the uninsured motorist coverage

courts in other states in support of its proposition that a subrogated insurer cannot recover from the insured of an insolvent insurer, and all of those cases can be distinguished in the same way. Every court that has decided a subrogated insurer cannot sustain a suit against the insured of an insolvent insurer has made that decision on the same statu-

satisfied the losses of Northland's insureds, there' was no unpaid claim for Northland to ass.c;;ct against. the Association.

24

. The Northland Court also pronounced the uninsured motorist statute "grants a UM provider a right of subrogation 'against the person causing the injury, death, or damage and that person's

.~

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'VI l\ ru\ 2003 Ln IC;~\TI():\ NI->\\'S

insurer. '''14 The Court ruled that "because the Association is not [the tortfeasor's] 'insurer,' Northland had no subrogation rights against the Association under the UM statute.l5

The Court's decision in Northland is based upon the statutes and underlying policy of unin­sured motorist coverage in the context of a subro­gation lawsuit against the Guaranty Association. Now, the Association attempts to extend the rul­ing in Northland to argue that a subrogation action against a tortfeasor with insolvent insurance coverage is prohibited. Northland cannot and should not be extended and applied to a case where UM coverage is not a consideration.

The Association also asserts by extension of the reasoning in International, the Exhaustion of Remedies provision requires that any recovery from a first party insurer be set off from a claim against the Association. It argues application of that reasoning results ina: setoff for all but the deductible and since an insurer's subrogation right is derivative of the rights of its insured, the subro­gated insurance company has no claim.

However, as argued by the subrogated insurer, the basis of the decision in International was the express prohibition of subrogation recoveries in the old definition of "covered claim"16 and the then­stated purpose of the Association to "avoid financial loss to claimants or policyholders .... "17 In International, the Supreme Court of Virginia rea­soned:

The insolvency of [the tortfeasor's insurance company] created a legal relationship

. b~tween [the tortfeasor]and the Association which reflected the terms of the [tortfeasor's insolvent insurance company's] policy only to the extent they were not otherwise limited by the Act. The 'extent of the Association's liability for the $50,000 judgment must be considered in the context of the entire Act.l8 .

Because the Association was "otherwise limit­ed" by the definition of "covered claim," the Court turned to the Exhaustion of Remedies. pro­vision and, under it, required the judgment credi­tor to exhaust his' claims against his uninsured motorist carrier before the Association satisfied the remainder of the judgment for the tortfeasor. 19

However, the Court and the parties were acute­ly aware of the secondary issue, which was subroga-

25

tion liability of the insured with the insolvent insur­er to the uninsured motorist carrier. This issue, not how the Court applied the exhaustion of remedies provision, is the controlling issue in a subrogation action against a tortfeasor with an insolvent insurer. As indicated by the following excerpt, the International Court explored the issue but chose not to rule on the very issue that is a matter of first impression in the case at bar.

[The uninsured motorist carrier] and [the tortfeasor/judgment debtor] argued in the trial court and here that the purpose of the Act would be defeated if the Association is not liable for the full amount of the judg­ment. They assert that the subrogation rights arising from [the uninsured motorist carri­er's] payment under an uninsured motorist policy will expose [the tortfeasor/judgment debtor] to a liability of $25,000. Such a debt would be a direct result of the insolvency of [the tortfeasor's/judgment debtor's] insur­ance company the precise type of financial loss sought to be avoided by the Act. This argument assumes that the subrogation rights were' not affected by the enactment and subsequent amendments to the VIrginia Insurance Guaranty Act. We do not reach that issue for decision; its resolution is unnecessary to the decision in this case.20

In short, the Court ruled that the judgment creditor, with a judgment against the· tortfeasor/ insured with an insolvent insurer, after recovering half of the judgment from his uninsured motorist coverage, could recover the remaining half from the Association. However; the Court did not bar the uninsured motorist carrier from' pursuing a subrogation action against the tortfeasor to recov­er what it paid its insured. Even when the Original Act prohibited "amounts due to an insurer as sub­rogation recovery" under the definition of "cov­ered claim," the Court recognized that an action by a subrogee insurer against the individual' tort~ feasor was an entirely different matter and was not., to be decided in the same context.21

The final difference between the facts of the current case and the cases cited above is that here, the named defendant is the tortfeasor rather than the Guaranty Association. The subrogated insurer is seeking to obtain a judgment against the tortfea-

Expert Testimony - cont'd on page 26

Lrl'l(;,\llo\: Nl-.\\'S \VI\:TUZ 2003

Guaranty Association contJd from page 2S

·sor, and whether that judgment is to be satisfied by the tortfeasor or by the Guaranty Association is not of immediate concern.

The Policy The Guaranty Association argues the subrogated insur~r is trying to indirectly do what it cannot do directly. It believes Northland and International stand for the proposition that a subrogated insurer cannot recover from the Guaranty Association, and here, the subrogated insurer is trying to get around the case law by filing suit directly against the alleged tortfeasor with an insolvent insurer. It believes the purpose of the Guaranty Act is to pro­tect insureds with insolvent insurers and the protec­tion should extend to claims by subrogated insurance companies.

The subrogated insurer asserts insurance guar­anty associations are comprised of and funded by insurers licensed to do business in each state, and "the sole purpose of which is to compensate those who have claims against an insurance company which have not been paid because the company is insolvent ... [i]n this way, the burdens created by the insolvency of an insurer are spread over all member insurance companies, and through them, all policy­holders. "22 The subrogated insurer's recovery from the Guaranty Association would spread the loss cre­ated by an insolvent insurer among members of the Association, rather than requiring the subrogated ins~l!r to bear the loss caused by the tortfeasor, On the other hand, the subrogated insurer is not par­ticularly concerned who is responsible to pay the judgment, whether it be the Guaranty Association or the tortfeasor. Virginia's Guaranty Act does not prohibit tl1e~ubrogated insuer from obtaining judgment against the tortfeasor, and the subrogat­ed insurer should be left to enforce its statutory

. and contractual subrogation rights.

The Court's Ruling Recently, a Circuit Court ruled in favor of the sub­rogated insurance company on these issues and allowed it to proceed against the alleged tortfeasor insured of an insolvent insurer. The Court stated in

26

its ruling: (1) "There has been no claim made on the fund, by either party" (other than the claim for the deductible, which the Court foUnd as a covered claim and paid); (2) "There is a statutory rights sub­ordination ... under Virginia Code Section 38.2-207," and Northland "can be clearly distinguished from the facts"; (3) "There is a contractual right of subordination ... pursuant to the owner insurance agreement"; (4) Contrary to the argument of the Guaranty Association, "Virginia Statute 38.2-1600 is not ambiguous and contains no express provision . in any part that terminates or trumps the right" of the subrogated, insurance company "to proceed against the tortfeasor," because (A) Virguua Code Section 38.2-1600 "expresses a clear purpose of the fund, which is to protect the public as a result of an insolvency of an insurance company"; (B) The lan­guage in Virginia Code Section 38.2-1610 "estab­lishes the requirement of the plaintiff to seek recovery from its other insurance companies first, but it does not say that a subrogated insurance com­pany is prohibited from pursuing its claim against the tortfeasors";·and (C) The Guaranty Association claims "that this suit is· merely a back door' attempt to profit from the fund, but the Court finds that is not the case under these facts." "There is strong Virginia Code policy ... to support ... the right of the insurance company to subordinate and sue the tort­feasor" and that policy is "not somehow trumped" . by the Guaranty Act. "The loss suffered by the tort~ feasor due to the insolvent insurance company should be borne by the industry," not by the subro-gated insurer alone.23 .

The . subrogated . insurer is noW' . left, to proceed in CircUit COUrt against the alleged tortfe31ior. The issues ·in the Motion for SuriunariJudgment will likely, be presented to the Supreme, Court of Virginia on appeal from the Guaranty Association. This article is a concise summary of the issues and arguments presented by the parties and is not intended to reflect their full and final positions .

1 VA. CODE ANN. Section 38.1-756.1 et seq. (1981 Repl. Vol.).

2 VA. CODE ANN. Section 38.2-1600 et seq. (2002 Repl. Vol.).

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.-)

--)

\\'1 :\TH, 2003 LrnC;ATIO:\ NI-\\'S

3 VA. CODE ANN. Section 38.2-1600.

4 VA. CODE ANN. Section 38.2-1606.

5 VA. CODE ANN. Section 38.2-1603.

6 VA. CODE ANN. Section 38.2-1610.

7 VA. CODE ANN. Section 38.2-1600.

8 VA. CODE ANN. Section 38.1-760(4) (1981 Repl. Vol.).

9 VA. CODE ANN. Section 38.2-1600 (2002 Repl. Vol.) (Emphasis added).

10 See, e.g., ILL. ANN. STAT. ch. 73, Section 1065.82 (Smith-Hurd 1989) and MINN. STAT. Section60C.02, subd.

, 2 (1988) as applied in Reinsurance Assoc. of Minnesota 11. Dunbar Kapple, Inc., 443 N.W.2d 242 (Minn. App. 1989); 18 DEL. C., Section 4202, as applied in Witkowski 11. Brown, 576 A.2d 669 (Del. Super. 1989); N.J.S.A. 17:30A-2(a),as applied in Sandson's Bakery 11. Glo11er, 392 A.2d 640 (N.J. Super. Ct. 1978); MD. ART. 48A, Section 504(a), as applied in Birrane 11. Maryland Insurance Guaranty Association, BaIt .

. Cir. Ct., Sept. 28, 1979 (emphasis added).

11 VA. CODE ANN. Section 38.1-757 (1981 Rep!. Vol.) (emphasis added).

12VA. CODE ANN. Section 38.2-1600 (2002 Repl. Vol.).

13 See VA. CODE ANN. Section 38.2-1606(A)(1)(a)(ii).

14VA. CODE ANN. Section 38.2-2206(G); cited by Northland Insurance Co. 11. Vir,ginia Property and Casualty Insurance Guaranty Association, et al., 240 Va. ll5, ll9 (1990).

15 Northland Insurance Co., 240 Va. at ll9 (1990).

16VA. CODE ANN. Section 38.1-760(4) (1981 Repl. Vol.).

17VA. CODE~. Section 38.1-757.

18 Virginia Property and Casualty Insurance Guaranty Association 11. International Insurance Co., et al., 238 Va. 702,705 (1989).

19Id. at 706.

20 Id.at 706.

21 VA. CODE ANN. 38.1~760(4).

2230A.L.R4th 1110, 1113-14 (1984).

23 Erie Insurance Exchange 11. OSA Waste, UC and Louis Sosa, in the Circuit Court of Prince William County, Judge Richard B. Potter, September 27, 2002.

27

. Principles of Cooperation cont'dfrom page 19

hours in developing this pamphlet, we want to rec­ognize especially Drs. WilliamM. Eagles and David K. Wiecking of The Medical Society of Virginia and former committee members Messrs. Phillip C. Stone, Harry P. Anderson, and Theodore J. Markow of the Virginia State Bar. Each of these persons worked diligently in the drafting and redrafting of this publication.

Ira M. Cantin, M.D. and Bob Phelps, Esq. Chairs, Medical/Legal Committeesof

The Medical Society of Vit;!!inia and the Vir.ginia. State Bar

Joint Liaison Committee Members Virginia State Bar

The Medical Society of Virginia 1992-1993

Attorneys Thomas W. McCandlish, Esq. Bob Phelps, Esq., Chair J. Hunt Brasfield, Esq. Robert S. Brewbaker, Esq. Wayne F. Cyron, Esq. Dennis O. Laing, Esq. Thomas W. McCandlish, Esq. Marcus D. Minton, Esq. MaryY. Spencer, Esq. Edward W. Taylor, Esq. Martha E. Withrow, Esq.

Physicians IraM. Cantin, M.D., Chair George M. Nipe, M.D. C. Waldo Scott, M.D. Charles H. Townes, M~D. David K. Wiecking, M.D.

Ethics at a Glance (cont'd)

Hypothetical situation is presented on the outside back cover

has its own definition of "practicing own unauthorized practice of law

Virginia has an unusual definition of "practic­ing law" that has generated some confusion. The law provides the following definition of "practicing law."

Specifically, the relation of attorney and client exists, and one is deemed to be prac­ticing law whenever -

(1) One undertakes for compensation, direct or indirect, to advise another, not his regular employer, in any mat­ter involving the application of legal principles to facts or purposes or desires.

(2) One, other than as a regular employee acting for his employer, undertakes, with or without compensation, to pre­pare for another legal instruments of any character, other than notices or contracts incident to the regular course of conducting a licensed busi­ness.

(3) One undertakes, with or without compensation, to represent the inter­est the interest of anot:her before any tribunal - judicial, administrative, or executive - otherwise than in the presentation' of facts, figures, or factu­al condusioils,asdistinguished from legal conclusions, by al1,employ~e ,rC!~­ularly and bona fide employed on a salary basis,i or by one specially employed as, apexp~rt in respect to such facts and figures, whC!n such rep­resentation by such e~ployee or, expert doeS noiinvolve the examina­tion of witnesses or preparation of pleadings.

Rules of Supreme Court of Virginia, Pt. 6, § I(B). Interestingly, this definition might be read to

mean that in-house lawyers are not practicing law at all. One court actually used this definition to rule that the attorney-client privilege did not pro­tect communications between in-house lawyers

and their clients. Even the Virginia Bar seems to have made this mistake on one occasion. LEO 1172 (12/19/88). However, the Virginia Bar soon corrected itself. LEO 1211 (4/18/89).

Out-of-state lawyers seeking some guidance on what they can do in Virginia l11ight find a bit more helpful ~ules in the defin~tion of "non-lawyers" -those who are not entitled 1:0 practice law in Virginia. A "non-lawyer" is

Any person, firm, association or corporation not duly licensed or authorized to practice law in the Commonwealth of Virginia.

Rules of Supreme Court of Virginia, Pt. 6, § I(C). However, the term "non-lawyer" excludes

foreign attorneys who provide legal advice or services in Virginia to clients under the fol­lowing restrictions and qualifications: (1) such foreign attorney must be admitted to practice and good standing in any state in the United States; and (2) the services pro-vided must be on an occasional basis only and incidental to representation of a client whom the attorney represents elsewhere; and (3) the client must be informed that the attorney is not admitted in Vrrginia.

Id. Any lawyer who "provides services' not autho­rized under this rule must associate with an attor­ney authorized to practice in Virginia." Foreign

" lawyers who fail to comply with the requirement specified in this rule are d(!e!lled to be engaging in the unauthorized practice of law. Id.

28

Foreign lawyers who perform activities in Virginia that could be deemed to be the practice of law theoretically face' the threat of cril11inal prose­cution. Somewhat ironically," the Virginia Bar could not discipline such people because they are not acting as lawyers in Virginia - the Bar would instead refer the matter to a Commonwealth's Attorney.

Remarkably, few courts have addressed these issues with any sophisticated 'analysis, despite the high stakes.

This debate almost inevitably arises in connec­tion with a lawyer's attempts to recover fees and a

\VI \: I'Ll{ 2003 til J(;XIIO\: Nl \\':-,

client's attempts to avoid paying them. When (C') clients claim that they should not have to pay for

services amounting to the unauthorized practice of law, the battle is joined. Sometimes the lawyers win, and sometimes the clients win.

)

In other situations, lawyers engage in what amounts to the obvious practice of law in another state, essentially "hanging a shingle" in a state where they are not licensed. Other courts address the equally obvious principle that lawyers may practice before federal courts in any state, as long as the court admits them.

In just a handful of cases, courts have analyzed the type of activities that trigger an unauthorized practice of law charge against a lawyer undertaking activities in another state.

The Restatement (Third) of Law Governing Lawyers § 3 (Proposed Final Draft Number 2, (1998)) takes a very liberal ,approach. Besides the obvious rule allowing lawyers to practice within their jurisdiction or before a tribunal or agency that admits them, the Restatement also indicates that'

[a] lawyer currently admitted to practice in a jurisdiction may provide legal services to clients in a matter: ... (3) at a place within a jurisdiction in which the lawyer is not admit­ted to the extent the lawyer's activities in the matter arise out of or are otherwise reason­ably related to the lawyer's practice under Subsection (1) or (2) [allowing lawyers to practice in their jurisdictions or before courts or tribunals]. ,

, After noting that lawyers engaged in transac­tional work may not rely on a clear-cut rule such as the pro hoc vice admission of litigators, Comment ( e) indicates that

Some activities are clearly permissible. Thus, a lawyer conducting activities in the lawyer's home state may advise a client about the law of another state, a proceeding in another state, or a transaction there, including con­ducting research in the law of the other state, advising the client about the application of that law, and drafting legal documents intended to have legal effect there. While lawyers would hesitate to do so due to lack of adequate familiarity, there is no per sebar against such a laWyer giving a formal opinion based in whole or in part on the law of another jurisdiction. It is also clearly permis-

29

sible fora lawyer from a home state office to direct communications to persons and orga­nizations in other states (in which the lawyer is not separately admitted), by letter, tele­phone, telecopier, or other forms ofelec­tronic communication.

In discussing the more difficult issue of a lawyer's physical presence in another state, Comment (e) acknowledges that "proper repre­sentation of clients often requires a transactional lawyer to conduct activities while physically present in one or more other states." Comment (e) indi­cates that such activities are permissible as long as they "arise out of or otherwise reasonably relate to' the lawyer's practice in a state of admission."

The illustrations make it clear that lawyers may travel to other states to practice law for clients with whom they have a relationship somehow related to their home state. The most forgiving example is' Illustration S, which indicates that an Illinois lawyer traveling to Florida to help a client in draft­ing a will codicil may prepare a similar document for the client's friend whom the lawyer meets in Florida. This illustration indicates that the lawyer may freely research and prepare the, codicil, confer by telephone and letter with the new client in Florida and take the document to Florida forexe­cution by the new client.

Altho'ugh this hypothetical involves activities that 'some . states might define as the practice of law and therefore prohibit out-of-state lawyers from performing, it seems likely that Virginia would permit your friend to engage in the activiti~s she has mentioned -,' as long as her trips to Vll'ginia, are "occasional" and are "incidental" t6a repre-', sentation of a cli~nt she represents elsewhere.

Therefore, the best answer to this hypothetical is PROBABLY YES.

LI I I(.XI ION NU\'S 'YIN'I I-I{ 2003

Virginia State Bar Litigation Section Board of Governors

Thomas E. Albro Chair Tremblay & Smith, L.L.P. 105-109 East High Street P.O. Box 1585 Charlottesville, VA 22902-1585

434/977-4455 Fax: 434/979-1221

Paul Markham Black Vice Chair Wetherington Melchionna, et al. , 310 First Street, Suite 1100 . Roanoke, VA 24011

540/982-3800 Fax: 540/342-4480

Robert Emmett Scully, Jr. Secretary Rees, Broome & Diaz, P.C. . 8133 Leesburg Pike, Ninth Floor Vienna~ VA 22182

703/790-1911 Fax: 703/848-2530

- Frank Kenneth Friedman Immediate Past Chair Woods, Rogers & Hazlegrove, PLC 10 S. Jefferson Street, Suite 1400 P.O. Box 14125 Roanoke, VA 24038-4125

. 540/983-7692 Fax: 540/983c7711

R. Lee Livingston NeWsletter Editor

J Tremblay & Smith, L.L.P. 105-109 East. High Street· P.O. Box 1585 . Charlottesville, VA 22902 _

. 434/977-4455 Fax: 434/979-1221

Vicki Hansen.Devine Furniss, Davis, Rashkind; et al. P.O. Box 12525 Norfolk, VA 23541-0525

757/461-7100 Fax: 757/461-0083

Jacqueline G. Epps Morris and Morris, P.C. P.O. Box 30 . . Richmond, VA 23218-0030

804/344-8300 Fax: 804/344-8359

Philip G .. Gardner Gardner, Gardner & Barrow 1st Citizens Bank Building, 4th Floor 231 East Church Street Martinsville, VA 24112-2840

276/638-2455 Fax: 276/638-2458

Harry Margerum Johnson, III . Hunton & Williams

951 East Byrd Street Richmond, VA 23219-4074

804/788-8200 Fax: 804/344-7999

Samuel W. Meekins, Jr. Wolcott, Rivers, Wheary, et al. One Columbus Center, Suite 1100 Virginia Beach, VA 23462

757/497-6633 Fax: 757/497-7267

Jennifer Lee Parrish Roberts, Ashby & Parrish 701 Kenmore Avenue, Suite 100 Fredericksburg, VA 22401-5737

540/373-3500 Fax: 540/899-6394

Michael G. Phelan Cantor, Arkema & Edmonds, P.C. 823 East Main Street P.O. Box 561 Richmond, VA 23218-0561

804/644-1400 Fax: 804/644-9205

, . -

Colin James Steuart Tholll;lS,.m , Timberlake, Smith, Thomas & Moses .

P.O. Boxl08 Staunton, VA 22402-0108

. . 540/885-1517 Fax: 540/885-4537

Hon. William H.Ledbetter, Jr. Ex-Officio Judicial Spotsylvania County Circuit Court P.O. Box 1179 Spotsylvania, VA 22553~1179

540/582-7229 Fax: 540/582-7973

. 30

Hon. Lydia Calvert Taylor Ex-Officio Judicial Norfolk Circuit Court Fourth Judicial Circuit 100 St. Paul's Boulevard Norfolk, VA 23510-2721

757/664-4593 Fax: 757/664-4581

Kevin Walker Holt Co-Chair - Litigation YLC Gentry, Locke, Rakes & Moore 10 Franklin Road S.E. P.O. Box 40013 Roanoke, VA 24022-0013

540/983-9300 . Fax: 540/983-9400

Kevin Wayne· Mottley Co-Chair - Litigation YLC Troutman SandersLLP 1111 East Main Street P.O. Box 1122 Richmond, VA 23218-1122

804/697-1263 Fax: 804/697-1339

Ann Kiley Crenshaw Computer Task Force Liaison Suite 103 160 Exeter Drive Wmchester, VA 22603

540/665~0050 Fax: 540/722-4051

William H. Shewmake Chair - Appellate Practice Subcommittee SheWmake & Baroruan, P.C.

. 5413 Patterson Avenue, Suite 10l Richmond, VA 23226

, ,'804/282-8800 Fax: 804/285-4542

Patricia Sliger Liaison Vrrgirua State Bar . . 707 East Main street, Suite 1500 Richmond, VA 23219-2803

804/775-0576 Fax: 804/775-0501

William Brice Smith Liaison Fine, Fine, Legum & Fine,P.A. Pavilion Center 210l Parks Avenue, Suite 60l Vrrginia Beach, VA 23451

. 757/422-1678 Fax: 757 /422~0865

",. "";"t .• ": -.""

,- '-" )

,"~

i",)

(~) ,

, Virginia State Bar Litigation Section Young,Lawyers Committee

Kevin W. Holt Co-Chair - Litigation YLC Gentry, Locke, Rakes & Moore 10 Franklin Road S.B: P.O. Box 40013 Roanoke, VA 24022-0013

5'40/983-9421 Fax: 540/983-9400

Kevin Wayne Mottley Co-Chair - Litigation TIC Troutman Sanders LLP 1111 East Main Street P.O. Box 1122 Richmond, VA 23218-1122

804/697-1263 Fax: 804/697-1339

Sandra Chinn-Gilstrap 520 Piney Forest Road Danville, VA 24540-3352

434/797-9681 Fax: 434/797-1488

Mary Catherine H. Gibbs Hart & Calley, P.C. 307 North Washington Street Alexandria, VA 22314

703/836-5757 Fax: 703/548-5443

Christopher J. Robinette Tremblay & Smith, L.L.P. 105-109 East High Street P.O. Box 1585 Charlottesville, VA 22902-1585

434/977-4455 Fax: 434/979-1221

Calvin Spencer Harris, Matthews & Crowder P.O. BoxG Kenbridge, VA 23944

434/676-2405

Michael Alex Wasylik The Law Office of

Michael Alex Wasylik. 7918 Jones Branch Drive, Suite 600 McLean, VA 22102

703/287-8741

If you are a young trial lawyer under the age of

36 and are interested in Joining the litigation

Sectio~ Young lawyers Committee, please contact

either Kevin Wayne Mottley or Kevin W. Holt,

CO-Chairs, litigation YlC, at their respective

addresses above.

.' '~ "':; ." -- . " , ...... ,.;.

31

LI I 1(;,\1 10\: NI'\\'S WI\: n-l\ 2003

(gJ(gJ(g](gJ(gJ(g](gJ(gJ(g](gJ(gJ(gJ(gJ(gJ(g](gJ

181 Publish Your Work B (gJ Litigflfion News welcomes the sub- (gJ (gJ mission of litigation-oriented articles. If ,(gJ (gJ you have researched or argued an (gJ (gJ interesting point of Virginia law, or IQ]

, (gJ have practice tips to share, consider (gJ (gJ condensing them into an article for (gJ (gJ Utigtllion News. The contact for sub- (gJ (gJ mission of these articles is: (gJ (gJ R. Lee Livingston, Esq. (gJ (gJ Tremblay & Smith, LL.P. (gJ (gJ 105-109 East High Street (gJ (gJ PO Box 1585 (gJ (gJ Charlottesville, VA 22902 IQ] rFiI 434/977-4455 IFil .Q fax 434/979-1221 ~ lSI e-mail lee.liVingston@tremblaysmith.coml8l

o o (g](gJ(gJ(gJ(gJ(gJ(gJ(g](gJ(gJ(gJ(gJ(gJ(gJ

Ii\t":iT\LITIGATION NEWS - J.. - Virginia State Bar

Eighth & Main Building 707 E. Main Street, Suite 1500 Richmond, VA 23219-2803

.. 32

Ethics at a Glance

Ethics in the Information Age

by Thomas E. Spahn

roommate has called to see whether with a corporate' transaction her client VIrginia. When you discover that your

has a conflict, your former roommate indicates that she will simply handle the matter herseI£ She is licensed only in Pennsylvania . .The corporate trans­action will require five or six trips into Virginia, and implicate Virginia common law and statutory l~w. Your former roommate has asked whether the Virginia Bar might claim that she is committing the unauthorized practice of law in Virginia if she undertakes these activities.

May your former roommate undertake the activities she has mentioned?

(Analysis inside on page 28)

,PRST STD u.s. POSTAGE

PAID PERMIT NO. 709

RICHMOND