(~: LITIGATION NEWS '~, PUBLISHED BY THE LITIGATION SECTION OF THEVIRGINIA STATE BAR FOR ITS MEMBERS.

VOLl.1ME X NUMBER 3 SllMMER 2003

The Merits of the Boyd-Graves Proposal to Merge Law and Equity

by Robert C. Wood, III

I, n the Winter 2003 issue of Litigatio, n

News, Samuel W. Meekins, Jr. comment­ed on the proposal of the Boyd-Graves

Conference that the law and equity distinction under Virginia' civil practice be replaced by a uniform set of procedural rules. He posed a good question: "Is this a good idea?" He asked for the thoughts and input of the mem~ bers of the bar on this issue "so that this [Litigation] section can be heard as regards to the ultimate resolution of the unified proposal system."

Let me state unequivocally that a change from a dual to a unified system, or one form of action, is a good idea for many reasons, but in my opinion the overriding reason is that a uni­fied system is' in the best interests of the public - it will promote a better, more efficient, and more economical civil justice system.

I would like to give a short summary of my background. I have been practicing for over 38 years, primarily in business and commercial litigation. I am a past chairman of the Litigation Section of the Virginia State Bar. I have served as chairman of the Boyd -Graves Conference and have been a member of the Conference for over 20 years. I served as chairman of the original Boyd-Graves Committee on the merger of law and equity. I participated in several presentations to the

Robert C. Wood, III is a partner with Edmunds & Williams, P. C. in Lynchburg, Virginia.

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members of the Conference where the propos­al to merge, or unify, our civil procedural sys­tem has been debated. The Conference has always, almost unanimously, endorsed (andre­endorsed) the proposal. I have taught Virginia Law and Procedure at Washington & Lee Law School for over 23 years. Third-year students become glassy-eyed when they are introduced to our law-equity dichotomy in our procedural system. I include, in my materials, cases where the parties expended unnecessary time, money, and energy in the litigation only because, the lawyers and the court could not agree on which side of the court the case should be

Boyd-Graves Proposal - cont'd on page 7

Table of Contents ',"

The Merits of the Boyd-Graves Proposal to Merge Law and Equity ............... 1

by Robert C. Wood, III .

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

Dubious Achievements in Defamation· ... ' .. 3 by Robert E. Scully, Jr.

Recent Law ReviewArticles ............. 8 by R. Lee Livingston

View from the Bench: Remarks of the Honorable Charles E. Poston, Circuit Court of the City of . Norfolk, at the January 23,2003 Meeting of the NPBA· ................. 9

Litigation Section Board of Governors .... 14

Young Lawyers Committee ............. 15

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

by Thomas E. Spahn' '

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LITIGATION NEWS Sl'MMER 2003

. Letter from the Chair

Help Us Help You

One of the main goals this year for the Litigation Section is to get a func­tional website up and running which

will be of use to Section members. Through the great efforts of Lee Livingston and, now, Kevin Mottley as editors of Litigation News, we have a wonderful resource available to our Section members. The articles produced by Section members and other contributors to Litigation News are focused on timely and often difficult topics, many of which reoccur in our practices. I suspect that more than one of us keeps an article handy in a desk drawer for frequent reference. In a perfect world, the database would be searchable.

Putting the website together has proven easier said than done, and the only thing on the website now is a list of the Section's Board of Governors. That does have some

Litigation News is published by the Virginia State Bar Litigation Section.

Newsletter Editor Kevin W Mottley

Statements or expressions of opin­ion 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.

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use, however, because you can use those names to help us help you.

Over the years, we have worked hard to get Litigation News out to Section members, not only to present articles, but to address issues that come· before our Section through the Virginia State Bar. However, we would like to hear more from you, the Section members. What issues do you see on a larger basis that the Litigation Section might be able to address fhat would benefit the Section as a whole? Members of the Board of Governors have a broad practice back­ground, with plaintiff's lawyers, defense lawyers, and commercial litigators included among them. No one practice area domi­nates the board. We also have members of the judiciary participating, who provide a different insight and a sounding boar~ for the issues we address. Our Board meets sev­eral times a year in Richmond, and if you have a matter that you feel could use the attention of our Board, please do not hesi­tate to contact any member listed on the website.

Last, on a different note, I want to thank Tom Albro for his outstanding leadership as our past chair, and Bob Scully for his contri­bution putting together the program at the Virginia State Bar summer meeting. Sam Meekin,s, our new secretary of the Board, has also provided valuable assistance in handling our budget - no small task. We have a quali­ty Board. Don't be hesitant to contact them. We all look forward to the coming year.

Paul M. Black Chair, Litigation Section

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SL'MMER 2003 LITIGATION NEWS

Dubious Achievements in Defamation

by Robert E. Scully, Jr.

Most defamation plaintiffs are unwit­tingly suicidal. Few have the unblemished record of a Mother

Teresa that is needed to succeed in reputation­al litigation. The rest of those who sue for damage to their "good reputations" should be reminded of the fate of Oscar Wilde and Alger Hiss, among others. Both Wilde and Hiss ended up in the "big house" after losing libel actions.

Alger Hiss, a former law clerk for Justice Oliver Wendell Holmes, the secretary of the San Francisco Conference that drafted the United Nations Charter, and the president of the Carnegie Endowment, lost his infamous defamation case against Whittaker Chambers, was convicted of perjury for denying he was a Soviet spy, served 44 months in a federal peni­tentiary, and was disbarred. Allen Weinstein, Perjury: The Hiss-Chambers Case, Random House (1978).

Oscar Wilde brought a criminal libel prose­cution against the Marquess of Queensberry (author of the. eponymous rules of modern prize fighting). The Marquess was enraged by Wilde's openly homosexual infatuation with his twenty-two-year-old son, Lord Alfred "Boysie" Douglas. He threw down a gauntlet of sorts by leaving a note with the doorman of Wilde's dining club addressed: "For Oscar Wilde posing as sodomite." Wilde was badly advised by his lawyers. They made no investi­gation into whether he and young Lord Douglas shared "the love that dare not speak

Robert E. Scully, Jr. is a partner with Rees, Broome & Diaz, P.c. in Vienna, Virginia.

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its name" (as Wilde famously quipped) or committed "the sin which takes its name from one of the cities of the Plain" (as Douglas pithily rejoined). As a result, Wilde was destroyed on cross-examination at trial.

Early in his testimony, Wilde was confront­ed with a letter he had addressed to Boysie as "Dearest of all Boys" in which he gushed: "I must see you soon. You are the divine thing 1 want, the thing of grace and beauty; but 1 don't know how to do it. Shall 1 come to Salisbury?" When asked if that was an "ordi­nary" sentiment for him, he replied: "Everything 1 write is extraordinary. 1 do not pose as being ordinary. Great heavens!" Later, Wilde completely self-destructed when asked whether he had ever kissed a sixteen-year-old servant boy named Walter Grainger: "Oh, dear no. He was a perfectly plain boy. He was, unfortunately, extremely ugly. 1 pitied him for it." The next question, which of course was not a question at all, was deadly: "Was that the reason you did not kiss him?" Wilde; the bril­liant playwright, instantly knew he had hung himself. The notes of the official court reporter confirm that he came unglued: "[Here the witness began several answers almost inarticulately, and none of them he fin­ished. His efforts to collect his ideas were not aided by Mr. Carson's sharp staccato repeti­tion: Why? Why? Why did you add that?" At last the witness answered]: You sting me and insult me and try to unnerve me; and at times one says things flippantly when one ought to speak more seriously. 1 admit it." The Trials of Oscar Wilde, 150 (H. Montgomery Hyde ed., The Notable Trials Library 1989) (William Hodge & Company, Ltd., London 1948).

Defamation plaintiffs also should be advised of Jacob Stein's observation that sub-

Dubious Achievements - cont'd on page 4

LITIGATION NEWS SlIMMER 2003

Dubious Achievements contJd from page 3

stantial damages for injury to reputation are usually very hard to prove because: "The friends of the defamed person do not believe the lies, and his enemies already believe them. [It is] a proximate cause issue." Jacob A. Stein, Defamation, The Washington Lawyer, November, 2001, at 48. The thoughtful trial lawyer should avoid defamation cases for another compelling reason. The law of libel and slander is a mess. As Stein eloquently put it: "Defamation law is unsettled, and unsettled law triggers pleadings, motions and papers." Id. Unless you are a frustrated legal academic masquerading as a trial lawyer, pleadings, motions and other papers are things mostly to

injury done in Virginia to the plaintiff, the Warden of a Virginia prison, and not enough on the defendants' lack of intent to communicate with a Virginia audience. The opinion surveyed the contents of the newspapers' websites and found that they contained information about local weather, traffic and links to local Connecticut websites. The Court concluded that the newspapers maintained their websites to serve local readers in Connecticut and to expand the reach of their newspapers within that market. Since the websites were not designed to attract a Virginia audience, the newspapers could not have posted the materials on the Internet w~th the intent of targeting Virginia readers. Accordingly, they could not have reasonably anticipated being hailed into

court in Virginia to answer be avoided. Recent Virginia cases confirm Stein's wis­dom. Here is a sampling of several "unsettling" opinions that have further obscured the already incomprehensi­ble jurisprudence of defama­tion in the Commonwealth.

Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002). In this case, the Fourth Circuit weighed into the morass of personal juris­diction over defamation on the Internet. The Court

Defamation law in Virginia remains a complicated,

convoluted, mishmash of state law and constitutional

First Amendment jurisprudence. If past is prologue, the confusion

and complexity will continue to increase at an

exponential rate.

defamation charges. 315 F.3d at 263-264. The decision will make it difficult to reach small, local, out-of-state pub­lishers whose defamatory online publications can be accessed worldwide, but whose websites are otherwise of purely local interest. As for national publishers like The Washington Post, The New York Times, The Wall Street Journal and The Christian Science Monitor, the national

held that posting an allegedly defamatory arti­cle' that was originally published in an out-of­state newspaper with three Virginia subscribers, on a website that had been designed to interest only a local audience in the paper's hometown in Connecticut, could not create personal jurisdiction over the defen­dants in Virginia. The three-judge panel reversed U.S. District Judge Williams on the grounds that he had focused excessively on the

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focus and local subscriber base in Virginia prob­ably creates personal jurisdiction. The difficulty will lie, as always, in the "in-between" case. Whether the Cleveland Plain Dealer's website, for instance, has enough national content to justify personal jurisdiction over it in Virginia with respect to defamation of Virginia citizens, remains to be seen.

Cha v. Korean Presbyterian Church of Washington, 553 S.E.2d 5)1 (Va. 2001);cert.

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SLTMMER 2003 LITIGATION NEWS

denied, 535 U.S. 1035 (2002). In this case, the Virginia Supreme Court held that the trial court had no subject matter jurisdiction over a defamation claim made by an assistant pastor against church elders who accused him of mis­appropriating between $100,000.00 and $165,000.00 from members of the congrega­tion and then fired him. The Court concluded that civil courts are simply not constitutionally­permissible forums for review of ecclesiastical disputes. The Court held that it could not con­sider the allegations of defamation against the individual defendants in isolation, apart from the church's decision to terminate the pastor's employment. The Court observed that most courts that have considered the issue have held that the free exercise clause of the First Amendment to the United States Constitution divests civil courts of subject matter jurisdiction to consider a pastor's defamation claims against a church and its officials. Unfortunately, the opinion failed to explain why church officials who accuse a pastor of stealing money are not liable in their individual capacities for the false statements. The Court correctly decided that whether the individuals were acting within the scope of their church duties and in conformity with church doctrine, and, thus, whether the church was vicariously liable for their conduct, would require inappropriate consideration of the church's doctrine and beliefs., as well as its ecclesiastical structure. However, the Court's conclusion that a trial court would have to con­sider church doctrine and beliefs in adjudicat­ing claims against the individuals because such matters would "undoubtedly affect the plain­tiff's fitness to perform pastoral duties and whether the plaintiff had been prejudiced in his profession," 553 S.E.2d at 615, rings hollow. Any priest, rabbi, minister or imam accused of stealing money from individuals he is supposed to serve would be "prejudiced in his profes-

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sion." That is not a matter over which the world's great religions have any dispute.

Perhaps the best explanation for the Court's decision on this issue can be found in Section D of the opinion. There, the Court tersely chided Cha for contending, on appeal, that the actions of the individual defendants were outside their agency relationship with the church and, therefore were not entitled to First Amendment protection. The Court observed that Cha's Motion for Judgment claimed the opposite - that the defendants were acting as church officials - and, there­fore, that the church should be liable for their actions. It condemned his cynical appellate about-face. Whether defamation actions still can be maintained against such individual defendants who are not alleged to have been acting as church officials when they made the false statements remains to be seen.

Larimore v. Blaylock, 528 S.E.2d 119 (Va. 2000). In this case the Virginia Supreme Court demolished the intra-corporate immuni­ty doctrine in defamation cases ~ For many years, it had beeri popular wisdom among defense counsel that there was no publication of a libel if the defamatory communication occurred solely among persons within a corpo­rate entity who had a duty and interest in the subject matter of the communication. As recently as February 2000, U.S. District Judge Moon surveyed the legal landscape and con­cluded that " ... [N]o publication occurs when the communication, which regards a matter of corporate interest, remains entirely within a corporate entity. Childress v. Clement, 44 Va. Cir. 169, 175 (Richmond Cir. Ct. 1997)." Cobb v. The Rector and Visitors of the University ojVir;ginia, 84 F.Supp. 2d 740, 750 (W.D. Va. 2000). In Larimore, the Court rejected that idea: "We find nothing in these

Dubious Achievements - contJd on page 6

LITIGATION NEWS SLIMMER 2003

Dubious Achievements contJd from page 5

cases to suggest, as the defendants contend , that all transmissions of defamatory statements between members of a corporate entity are entitled to absolute immunity." 528 S.E.2d at 123. The Court held, instead, that tenure rec­ommendations from professors in the College of Business and Economics at Radford University to the Board of Visitors were enti­tled to a qualified privilege that shielded the defendants from liability unless they acted with malice, proven by clear and convincing evi­dence. Id. A favorite shibboleth of the defense bar is gone and, as a result, the murky half­light of "qualified privilege" now illuminates the netherworld of internal corporate defama-tion cases. .

America Online, Inc. v. Nam Tai Electronics, Inc., 571 S.E.2d 128 (Va. 2002). In this Uniform Foreign Depositions Act case the Court ruminated, somewhat inconclusive­ly, on the application of the First Amendment to a claim that unfair business practices were accomplished through false and defamatory messages posted on an Internet message board devoted to discussion of a publicly-traded stock. In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56, 99 L.Ed. 2d 41, 108 S.Ct. 876 (1988), the United States Supreme Court held that First Amendment protections apply to a suit by a public figure alleging that an obvious parody subjected him to intentional infliction of emotional distress. The Court· noted that since Falwell was a public figure, he had to demonstrate falsity and "constitutional malice" before he could recover. In America Online, Inc., the Virginia Supreme Court nod­ded in deference to the U.S. Supreme Court's opinion in Hustler Magazine, Inc., but con­cluded that Maximus, Inc. v. Lockheed

6

Information Management Systems Co., 254 Va. 408, 412, 493 S.E.2d 375, 377 (1997), which was decided after Hustler Magazine, Inc., had declined to extend First Amendment principles to a tortious interference with contract cause of action. Justice Kontz, applying an abuse of discretion standard of review as appropriate in a Uniform Foreign Deposition Act proceed­ing, concluded that the trial judge did not abuse his discretion in finding the California statute that allowed recovery for statutory unfair business practices without proof of actu­al malice, was both comparable to the law of Virginia ·and not repugnant to Virginia's public

. policy. Whether in a future direct appeal from a final judgment in a tortious interference with contract case, applying a less deferential stan­dard of review, the Court will hold that an interference with contract claim made by a public company or public figure, based entirely on defamatory statements, is subject to First Amendment "constitutional malice" standards is an open question.

Fuste, M.D. v. Riverside Healthcare Association, Inc., 2003 Va. Lexis 13 (Va. 2003); WJLA-TV v. Levin, 564 S.E.2d 383 (Va. 2002); and American Communications Network, Inc. v. Williams, 568 S.E.2d 686 (Va. 2002). In this trilogy of cases the Virginia Supreme Court reaffirmed the continuing validity of the fact versus opinion distinction in Virginia defamation law. Virginia recognizes a separate state constitutional protection for pure statements of opinion. Chavez v. Johnson, 230 Va. 112, 119,335 S.E.2d 97, 101-102 (1985). However, the distinction between fact and opinion in the law of defamation" ... has proved to be a most unsatisfactory and unreli­able one, difficult to draw in practice." Goldwater v. Ginzbur.g, 261 F.Supp. 784, 786

Dubious Achievements - contJd on page 12

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SUMMER 2003 LITIGATION NEWS

Boyd-Graves Proposal contJd from page 1

tried. In one case the parties litigated for over five years, only to have the Supreme Court reverse the trial court, because the case had been triedon the wrong side of the court. The parties, who could not have been very pleased with this outcome, had to start all over again. See Stanardsville Volunteer Fire Co. v. Berry, 229 Va. 578, 331 S.E.2d 466 (1985). This debacle would not have happened under a uni­fied procedural system. I have litigated cases where counsel for the parties, as well as the

in Virginia, arising from common law and from statutory rights .... [T]he research staff of the Supreme Court developed a list of causes of action for which there was no clear indica­tion of the correct side of the court .... Lawyers guessing wrong can inadvertently lose a case." This is a minefield over which lawyers, judges and clients should not have to traverse.

I have read Judge Kelsey'S article that appeared in the Boyd -Graves materials for the 2002 conference. See Law & Equity in Vir.ginia, 28 VBA News Journal No.8 at 6-10 (Dec. 2002) (http://vba.orgldec02.htm). I support and subscribe to his analysis and con­

court, struggled with the issue on which side of the court the case should be tried. See, e.g., Love v. Hammersley Motor Co., 263 Va. 45, 556 S.E.2d 769 (2002). Cases brought on the right side of the court have been dismissed, causing our Supreme Court to reverse. See., e.g., Wright v. Castles, 232 Va. 218, 349 S.E.2d 125 (1986); Packett v. Herbert, 237 Va. 422, 377

clusions. There is no ques­tion in my mind that the citizens of Virginia will have a "better system," where their disputes would be pre­sented to the court and resolved without either the lawyers or the judge having to fret whether the case was on "the right side of the court."

These cases are prime examples of the

inefficiencies of our civil procedural system, causing

the expenditure of unnecessary attomeys' fees and costs, a waste of judicial

time and resources, and certainly client frustration.

Mr. Meekins seems to question whether we wilt have a better system if we

unifY law and equity. He states that there are clearly some advantages to the current system, one of which is the necessity to focus on and appreciate the equity practice, as strategies are developed and pleadings prepared based on the initial determination regarding the reme­dies the parties seek. I am not aware of any evidence that lawyers practicing in our federal courts or other state courts with "unified" sys­tems are unable to seek and, where appropri­ate, obtain those remedies their clients desire. Rather than a benefit of our current system, I see the division of law and equity as an unnec­essary impediment to parties who come to court to get their legal problems resolved as promptly and inexpensively as possible. The

S.E.2d 438 (1989). These cases are prime examples of the inefficiencies of our civil pro­cedural system, causing the expenditure of unnecessary attorneys' fees and costs, a waste of judicial time and resources, and certainly client frustration.

Many model acts passed by oUf General Assembly, such as the Uniform Commercial Code, do not contemplate a divided system of law and equity, and have not been altered to reflect a divided system. Professor Kent Sinclair has recently observed, in an article printed in the June 16, 2003 edition of Lawyers Weekly: "[P]ractitioners generally know on which side of the court to file com­mon claims .... But there are dozens of less [known] common causes of action recognized

Boyd-Graves Proposal- contJd on page 11

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LITIGATION NEWS Sl.'MMER 2003

Recent ~aw Review Articles .

by R. Lee Livingston

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

Courts Crist, Maria Perez. The E-Brief Legal Writing for an Online World. 33 N.M. L. REv. 49-93 (2003).

Employment Practice Bass, Robert. Casenote. Tort Law -Employment Law - Rights of the EEOC. (EEOC v. Waffle House) Inc. 122 S.Ct. 754, 2002.) 33 CUMBo L. REv. 727-737 (2002-2003). .

McCandless, Kristin. Comment. The Debate Over Arbitration Agreements in the Employment Context Rages On. (Circuit City Stores) Inc. v. Adams, 532 V.S. 105,2001.) 80 DENV. V.L. REv. 225-240 (2002).

Meuti, Michael D. Note. Disabling Legislation: The Judicial Erosion of the ADA}s Protection for Employees with Psychiatric Disorders. 14 STAN. L. & POL'y REv. 445-464 (2003).

Weber, Mark C. Workplace Harassment Claims Under the Americans with Disabilities Act: A New Interpretation. 14 STAN. L. & POL'y REv. 241-265 (2003).

Evidence Cassidy, R. Michael. Sharing Sacred Secrets: Is it (Past) Time for a Dangerous Person Exception to the Cle1'lJY-Penitent Privilege? 44 WM. & MARy L. REv. 1627-1723 (2003).

Edwards, Desire D. Recent Development. Mortal Clients) Immortal Privilege? In re Death of Miller and the Future of the Posthumous Attorney-Client Privilege in North Carolina. (In re Death of Miller, N.C. Sept. 30, 2002, No. 303PA02, available at http://www.ncappel­latecourts.org.) 81 N.C. L. REv. 2095-2114 (2003) ..

.' Imwinkelried, Edward J. Expert Testimony by Ethicists: What Should be the Norm? 76 TEMP. L. REv. 91-128 (2003).

Nicolas, Peter. ((They Say He)s Gay)}: The Admissibility of Evidence of Sexual Orientation. 37 GA. L. REv. 793-892 (2003).

Short, Reginald. Comment. The Kyllo Conundrum: A New Standard to Address Technology that Represents a Step Backward for Fourth Amendment protection. (Kyllo v. United States, 533 U.S. 27, 2001.) 80 DENV. U. L. REv. 462-485 (2002).

Insurance Law Whipple, Sarah L. Note. Piercing ERISA)s Shield of Immunity: The First Step-Saving External Review Laws from ERISA Preemption - Rush Prudential HMO, Inc. v. Moran and the Massachusetts Act Relative to Managed Care Practices in the Insurance Industry. (Rush Prudential HMO) Inc. v.

(): .. ' . ,

Dixon, Andrew F. Note. Remedying Judicial Foot-in-Mouth Disease: Nevada}s Prohibitions Against Judicial Commentary on Evidence and the ,Rule of Harmless Error. 3 NEV. L. J. 572-591 (2003).

Moran, 122 S.Ct. 2151, 2002.) 36 SUFFOLK .f.l.i U. L. REv. 863-897 (2003). '=i

Law Review Articles - contJd on page 11

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SUMMER 2003 LITIGATION NEWS

. View 'rom ·the Bench .

Remarl{s of the Honorable Charles E. Poston, Circuit Court of the City of Norfolk, at the January 23, 2003 Meeting of the NPBA

T his morning I want us to think a bit about some foundations of our democ­racy - principles that you and I hope­

fully learned in the early years of our education - principles teaching.

• That government was created to serve very important purposes - to provide

(0 for security, education, health needs and transportation, to name a few.

()

• That government exists to protect our freedoms - those personal freedoms that we cherish.

• That our government's effectiveness and strength rest largely on the idea of sepa­ration of powers - of three separate, independent branches of government.

For me - and probably you -" these ideals were basic to our education, and we first tasted their importance by studying our nation's his­tory. We gained an understanding of our most important political doctrines, one of which is en~hrined in Virginia's constitution - the con­viction, in the words of the constitution, "That the legislative, executive, and judicial depart-

Hon. Charles E. Poston is a presiding judge of the City of Norfolk Circuit Court.

9

ments of the Commonwealth should be separate and distinct."

A corollary of that doctrine of separation of powers is the idea that the judiciary must be impartial - that every person appearing before a court should be treated equally, regardless of position or family - that the judiciary should be independent.

A former Virginia governor and our third president emphasized the importance of an independent judiciary in the Declaration of Independence:

The King, he wrote, "has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. "

Those who have read Mr. Jefferson know that he did hold judges in high regard, yet he understood the necessity for judicial indepen­dence in a democracy.

So, how does theldea of judicial indepen­dence affect each of us? A few simple questions might illustrate the point:

• Would you have any concern if your opposing counsel were a member of the General Assembly?

• Would you feel that your high profile, controversial case would have a fairer hearing if the presiding judge had recently retired?

• If you were trying a case before a popu­lady-elected judge, would it be impor­tant to know the major contributors to his last campaign?

Unfortunately, these questions - perhaps unspoken, but nonetheless considered - are not rare. In some situations they may be con­crete concerns,

View from the Bench - contJd on page 10

LITIGATION NEWS SCM MER 2003

View from the Bench contJd from page 9

Obviously, judicial independence - true independence - means that judges will not be influenced by elections, the appointive process or those influential leaders in the community.

The problem, though, is how do we achieve the optimum level of independence?

Many commentators see the selection process as a key to judicial independence. I suggest that the selection process is the least

. important consideration. Instead, it is the reap­pointment process or the terms of tenure that is vital. In this realm, there are justifiable con­cerns. Again we might focus our consideration by some questions:

• Is it appropriate to question judges dur­ing the reappointment process about their specific decisions? Normally the court speaks through its opinions alone.; Should a judge be expected to say more?

• When newspapers editorially endorse the notion of pressuring judges through publicity campaigns, should we fear that judicial independence and impartiality will be eroded?

• When a judge's application of the law protects an unpopular group, should the judge be penalized?

Often our society supports the idea that the justice system should be impartial only when that impartiality strengthens the majority'S view. John Adams, our second president and one of our nation's greatest lawyers, endured criticism for the better part of his professional life for accepting some really unpopular clients.

In a case very similar to a current contro­versy involving a man being held in a Norfolk brig without access to a lawyer, J oho Adams presumed to accept the defense of the British

soldiers prosecuted for killing colonists in the ~

Boston Massacre. Indeed, Adams did not hesi­tate. When learning that no other attorneys would touch the case, he accepted the repre­sentation, later explaining:

I had no hesitation in answering ... coun­sel ought to be the very last thing that an accused person should want in a free country.

Read a bit of history from the mid-20th century, and you will find judges·- both state and federal _. who were ostracized by their communities for enforcing racial equality. Some of you may even remember Judge Hoffman's unpopularity after he ordered the reopening of Norfolk's public schools -schools that had been closed to avoid racial integration. Well, how does all this affect us here today? And what is the responsibility of

_.!he organized bar?

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We need to educate our students at every ~

level of education. Those of us who labor in the law have entered one of the "learned" pro­fessions and, I submit, we cannot abdicate decisions about instruction in government and the obligations of citizenship to professional educators alone. We who are members of the bar are, in a real sense, the protectors of liberty. This role alone demands that we encourage the education of all the citizenry regarding the basic concepts of democracy.

And if we think that we're doing enough, consider this question asked last May in a nationwide survey conducted by Columbia Law School:

Does the Constitution include the fol­lowing statement about the proper role of government: "From each according to his ability, to each according to his needs. "

Sl'MMER 2003 . LITIGATION NEWS

Law Review Articles contJd from page 8

Practice and Procedure Korb, Elaine M. and Richard A. Bales. A Permanent Stop Sign: Why Courts Should Yield to the Temptation to Impose Heightened Pleading Standards in § 1983 Cases. 41 BRANDEIS L. J. 267- 295 (2002).

Stevens, Susan L. Note. Commanding International Judicial Respect: Reciprocity and the Recognition and Enforcement of Foreign Judgments. 26 HASTINGS INT'L & COMPo L. REv. 115- 158 (2002).

Remedies Anderson, Lloyd C. Equitable Power to Award Attorney1s Fees: The Seductive Appeal of ((Benefit.)) 48 S.D. L. REv. 217-246 (2003).

Torts Goldring, Orit and Antonia L. Hamblin. Note. Think Before You Click: Online Anonymity Does Not Make Defamation Legal. 20 HOFSTRA LAB. & EMP. L. J. 383-418 (2003).

Hans, Valerie P. and Juliet Dee. Whiplash: Who)s To Blame? 68 BROOK L. REv. 1093-1120 (2003). '

Sammon, Colin. Comment. Insurance Agent and Broker Liability: Crossing the Two Way Street. 29 OHIO N.U.L. REv. 237-255 (2002).

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Boyd-Graves Proposal contJd from page 7

cases mentioned herein patently illustrate my

point of view that our current system "needs

fixing."

If we adopt a unified system, a party may

ask for equitable relief and legal relief, arising

out of a common and connected set of facts, without having to elect to file on one side of

the court or the other. It does not make any

sense in today's commercial business world for

a party that seeks an injunction, together with

money damages, to have to file first in equity

for an injunction, then file a second suit at law

for money damages if the injured party desire a

jury trial. See, e.g., Worrie V. Boze, 198 Va. 533,95 S.E.2d 192 (1956).

Nearly all of the states have merged law

and equity .into one procedural system. The

proposal to do the same in Virginia certainly is

not a novel or new idea. Nearly all attorneys

study the Federal Rules of Civil Procedure in law school, and a merger would not require

any great shifting of trial preparation and prac­tice. In sum, I believe the merger of law and

equity would promote efficiency and decrease the transactional cost of litigation. I have yet

to hear a single objection to merger that is

anything more than a worrisome speculation,

one easily dismissed by a survey of the success

of merger in the majority of the states and in

the federal courts.

For these reasons, I strongly recommend

that the Litigation Section of the Virginia

State Bar endorse the Boyd-Graves proposal.

LITIGATION NEWS SLIMMER 2003

Dubious Achievements contJdjrom page 6

(S.D.N.Y. 1966) ajfJd, 414 F.2d 324 (2nd Cir. 1969, cert. denied, 396 U.S. 1049 (1970)) (quoting Prosser on Torts, 3d ed. 1964).

American Communications Network is the most difficult of the three cases.· The plaintiff, Williams, had been hired as president of ACN Energy, a start-up energy trading company. Admittedly, his internally-developed client billing system failed to bill several major clients promptly and accurately during his tenure. Not surprisingly, those clients failed to pay, and the company suffered dramatic cash flow problems. As a result, Williams was ousted by American Communications Network, the par­ent company of ACN Energy. The investment bankers hired to raise forty million dollars to

recapitalize the subsidiary wrote a private placement memorandum, in which they blamed specific mistakes of "prior manage­ment" for ACN Energy's lack of success alld need for additional funds. Williams sued every­one involved for defamation, claiming the defendants knew the billing problem did not create the need to recapitalize the company and "scapegoated" him. The jury agreed and awarded him a five hundred thousand dollar verdict at trial· against ACN Energy and American Communications Network.

On appeal, the Virginia Supreme Court reversed, because it concluded the challenged statements were either opinions or were true. The result was probably correct. However, the opinion for the court made several question­able, sweeping, statements about the fact ver­sus opinion dichotomy. For example, it is hard to see why the Court held that a statement in a private placement memorandum that a com­pany "failed to establish effective operations" is a matter of opinion that cannot form the

12

basis of a defamation action, American C Communications Network, 568 S.E.2d at 686;' Just six month earlier it had decided that the statement that a doctor's "treatment modality was not medically appropriate" is a potentially defamatory statement of fact, WJLA -Tv, 564 S.E.2d at 393. The Court also held that a statement that "the defendant company lacked appropriate infrastructure necessary to support its marketing efforts" was a matter of opinion, not a claim based on demonstrable fact. The Court further concluded that the statements that "basic processes were not established by the company prior to entering new markets" and that the company "was aggressively enter-ing markets without adequate organizational infrastructure" were also statements of opinion that could not be proven true or false. Perhaps the opinion reflects a judicial concern that the science of business administration as taught in 0 the modern graduate business school is less reliable as a source of accepted (or "appropri­ate") practice standards than the age-old art of medicine.

The opinion in American Communications Network is most convincing in its conclusion that Williams admitted so many of the key fac­tual statements in the prospectus were accurate that he could not have been the victim of defamation. In so holding, the Court seemed to have adopted a sort of "incremental harm doctrine" sub silentio. Under'the "incremental harm doctrine," if a communication contains enough admittedly true, derogatory state­ments about the plaintiff, and the additional challenged defamatory statements do not add to the overall negative impression created, the publication as a whole is not actionable. See, generally, Daly, The Incremental Harm

Dubious Achievements - contJd on page 13

Sl1MMER 2003 . LITIGATION NEWS

Ethics at a Glance (cont'd) ..

Hypothetical situation is presented on the outside back cover

reasons.

participation in electronic "chat . se difficult issues for a number of

This hypothetical deals with problems caused by the lawyers' inability to easily deter­mine if "chat room" participants are represent­ed by another lawyer. A number of bars recognize that "chat room" conversations can result in the creation of an attorney-client rela­tionship for confidentiality and conflicts pur­poses. For all of these reasons, one bar has warned that lawyers should not answer specific questions during "chat room" discussions.

First, if the participants in the "chat room" are unrepresented, you are bound by Rule 4.3(a).

In dealing on behalf of a client with a person who is not represented by coun­sel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunder­stands the lawyer;s role in the matter, the lawyer shall make reasonable efforts to correct the. misunderstanding.

If there is any possible adversity between your client and, the unrepresente'd party with which you are communicating, you must com­ply with Rule 4.3(b).

A lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interest of the client.

Rule 4.3(b). It would be best to repeatedly remind par­

ticipants of your role in the plant expansion,

13

and the fact that you represent the company. It might be wise to determine if there is a way to put a permanent message of this sort on the participants' screen.

Second, if you "know" that participants in the "chat room" discussion are represented by a lawyer, you must deal with their lawyers. Rule 4.3(a). Given this rule, it probably makes sense to remind participants in the "chat room" that you must deal with their lawyers if they are represented- in this matter.

Therefore, the best answer to this hypo­thetical is REPEATEDLY DESCRIBE WHO YOU ARE AND REMIND PARTICI­PANTS THAT YOU MUST DEAL WITH THEIR LAWYERS IF THEY ARE REPRE­SENTED IN THIS MATTER.

Dubious Achievements contJd from page 12

Doctrine: Is There Life After Masson?, 46 Ark. L. Rev. 371 (1993).

Defamation law in Virginia remains a com­plicated, convoluted, mishmash of state law and constitutional First Amendment jurispru­dence. If past is prologue, the confusion and complexity will continue to increase at an exponential rate. If so, there should be plenty of new examples of unfortunate plaintiffs and lots of future Dubious Achievements in Defamation.

LITIGATION NEWS SllMMER 2003

Virginia State Bar Litigation Section Board of Governors

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

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

Robert Emmett Scully, Jr. Vice Chair Rees, Broome & Diaz, P.e. 8133 Leesburg Pike, Ninth Floor Vienna, VA 22182

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

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

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

Thomas E. Albro Immediate Past 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

Kevin W. Mottley Newsletter Editor Troutman Sanders LLP 1111 East Main Street P.O. Box 1122 Richmond, VA 23218-1122

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

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 al).d 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

R. Lee Livingston Tremblay & Smith, L.L.P. 105-109 East High Street P.O. Box 1585 Charlottesville, VA 22902

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

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, P.C. 823 East Main Street P.o. Box 561 Richmond, VA 23218-0561

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

Colin James Steuart Thomas, III Timberlake, Smith, Thomas & Moses P.o. Box 108 Staunton, VA 22402-0108

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

Michael Francis Urbanski Woods, Rogers & Hazlegrove, PLC 10 S. Jefferson Street, Suite 1400 P.O. Box 14125 Roanoke, VA 24038-4125

540/983-7678 Fax: 540/983-7711

14

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

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 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

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

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

William H. Shewmake Chair - Appellate Practice Subcommittee Shewmake & Baronian, P.C. 5413 Patterson Avenue, Suite 101 Richmond, VA 23226

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

Patricia Sliger Liaison Virginia State Bar 707 East Main Street, Suite 1500 Richmond, VA 23219-2803

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

William T. Wilson Liaison Wilson, Updike & Nicely P.O. 'Box 590 Covington, VA 24426

540/962-4986 Fax:: 540/962-8423

I) .. ~L

()

SllMMER 2003 LITIGATION NEWS

Virginia State Bar Litigation Section Young Lawyers Committee

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

540/983-9421 Fax: 540/983-9400

Kevin Wayne Mottley Co-Chair - Litigation YLC 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 Section Young

lawyers Committee, please contact

Kevin W. Holt, Chair - l'itigation YlC,

at his address above.

15

LITIGATION NEWS SLIMMER 2003

nJlQ]lQ]~lQ]lQllQllQlnJlQllQllQllQ]lQllQllQl IQ] IQl IQl Publish Your Work IQl nJ Litigation News welcomes the sub- ~ IQl mission of litigation-oriented articles. If a.b!J IQl you have researched or argued an IQl IQl interesting point of Virginia law, or IQl IQl have practice tips to share, consider IQl (Q] condensing them into an article for IQl JOl Litigation News. The contact for sub- IQl ~ mission of these articles is: IQl IQl Kevin W. Mottley, Esq. IQl JOl Troutman Sanders LLP. IQl ~O 1111 East Main Street JOl I!.o!J PO Box 1122 I!.o!J IQ] Richmond, VA 23218-1122 IQl IQl 804/697-1263 IQl JOl fax 804/697-1339 JOl I!.o!J e-mail I!.o!J IQl kevin.mottley@troutmansanders.com IQl nJ IQl nJlQ]lQ](Q]IQ](Q](Q]IQ](Q](Q](Q]IQ](Q]1Q]1Ql1Q]

~LITIGATION NEWS Virginia State Bar Eighth & Main Building 707 E. Main Street, Suite 1500 Ri~hmond, VA 23219-2803

Ethics at a Glance

Ethics in the Information Age

by Thomas E. Spahn

Y is planning to expand its plant, been placed in charge of working

in answering the public's questions about the expansion project. You set up a "chat room" every Friday evening to answer the public's questions and to address their concerns. Some of those who participate in the "chat room" are obviously opposed to the project, and you want to make sure that they understand that you are a lawyer representing thdr potential adversary.

What steps should you take?

(Analysis inside on page 13)

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