New Lunch & Learns, Amicus Brief Filed, Deposition Workshop Updates, Virtual Scavenger Hunt, and more... |
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VADA Defense Line January 2021
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President's Welcome
Happy New Year! I hope everyone had a happy and healthy holiday season.
Looking back at the end of 2020, our fully-virtual Young Lawyers Boot Camp was a great success and welcomed 15 new attorneys. Thank you to all our speakers and our sponsors: Exponent, Metadata, and Planet Depos.
We also filed an amicus brief in the matter of Jane Doe v. Michael L. Baker, et al., pending before the Supreme Court of Virginia. A huge round of thanks to Missy York of Harman Claytor Corrigan & Wellman for her time and her expertise in preparing our brief in this case.
We look forward to the new year and more events designed to sharpen your litigation skills. We launched a new monthly program: our Lunch & Learn series, wherein we will offer quick lunchtime topics via Zoom. We kicked off the series on January 13 with VADA Past President Stan Wellman who offered tips to better capture billable hours that are being worked, but, for various reasons, are not making it onto your timesheets.
Our popular Deposition Workshop will be fully virtual on March 12-13. This two-day workshop will teach you important deposition skills and includes remote mock-deposition breakouts.
I desire for the VADA to continue to be a leader in the re-opening of our judicial system, including the resumption of civil jury trials. I continue to communicate with leaders of the VTLA regarding how we can cooperate on this issue.
As our members start to have jury trials again, I want to make sure we share tips and best practices. I am asking any VADA member who has had a post-COVID jury trial to contact me directly (tlove@timberlakesmith.com) and let me know how it went and what you learned.
A return to normal still seems very far off. Yet, as we wait, I know the amazing attorneys in this organization will not stop working to see themselves, their firms, and their clients through these trying times. We need each other’s assistance and friendship now more than ever. I thank you for your efforts.
Tate C. Love
VADA President, 2020-21 |
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REGISTRATION IS OPEN!
Via Webcast Our Deposition Workshop is a two-day workshop to learn the skills needed to: (1) face down a bullying senior plaintiffs’ attorney; (2) handle a lying deponent; (3) pull the information you need out of a reticent deponent; (4) ensure that what you discover in depositions is admissible in court; (5) use the latest in technology to build an air-tight case; (6) depose experts effectively; (7) handle sympathetic or minor deponents; and more!
The second day will be spent in breakouts in which each new attorney will play the parts of deponent, defense attorney, plaintiffs’ attorney, and observer. At each stage of the depositions, senior coach-attorneys will critique performances and suggest approaches to use. The program will be offered via webcast with participants, coaches and speakers joining remotely. |
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FEBRUARY 10
VOIR DIRE
(.50 CLE Hours Requested)
Carlyle R. “Randy” Wimbish, III
Wimbish Gentile McCray & Roeber PLLC
Voir dire is more than just the mechanism by which a jury is selected. It is an opportunity to introduce yourself, your client, and your theory of the case to the people who will decide the outcome, while at the same time identifying those individuals who should be excluded from future deliberations. This interactive session will include tips and tactics from an experienced trial attorney that will help you make the most of this frequently overlooked component of trial preparation.
The registration fee is $25 and you can register here.
MARCH 17
How to be a Valuable Asset to Your Firm
Melissa H. Katz
Bancroft, McGavin, Horvath & Judkins, P.C.
Raise your game! Learn from VADA Immediate Past President Melissa Katz how to optimize your performance as an attorney, maximize job satisfaction, develop relationships that are more successful with clients, colleagues, judges, and adversaries, and set long-term goals to enrich your own practice.
The event is fully virtual, via Zoom, and free to current and potential VADA members. Register here.
APRIL 14
THROUGH THE EYES OF THE INSURED
Jason G. Moyers
Frankl Miller Webb & Moyers
A mainstay of an insurance defense practice is the tripartite relationship between attorney, insurer, and insured. While defense counsel goes to great lengths to zealously represent his or her client—the insured—and to comply with billing and other insurance company guidelines, all too often, the insureds themselves can get lost in the shuffle. More often than not, a particular lawsuit is an insured’s first and only experience with the judicial system. Things such as pleadings, written discovery, depositions, and trial, while common to us, are, to them, foreign. In addition, the stress and uncertainty associated with being sued can often be overlooked. Join VADA President-Elect, Jason Moyers, who will present the course of a civil lawsuit through the eyes of the insureds themselves. We hope to provide those in attendance with a better understanding and appreciation of what a lawsuit is like for an insured. At the end of the day, we hope, too, those in attendance will be better equipped to address the concerns, fears, anxieties, and questions their clients have through the course of the representation.
The event is fully virtual, via Zoom, and free to current and potential VADA members. Register here.
JUNE 23
Balancing the Billable and the Non-Billable
Tate C. Love
TimberlakeSmith
There are a number of activities – bar associations, non-profit boards, firm governance – that are both worthwhile, and can add to your marketability and profitability. Join VADA President Tate Love, who will discuss how you balance your participation in these laudable pursuits, while still meeting your billable goals.
The event is fully virtual, via Zoom, and free to current and potential VADA members. Register here.
PAST LUNCH & LEARN
The Learning Continues
HOW TO EFFECTIVELY BILL YOUR TIME
Stanley P. Wellman
Harman Claytor Corrigan & Wellman
A tip of the hat to VADA Past President Stan Wellman for kicking off in impressive fashion our first VADA Lunch and Learn of the new year! A capacity crowd heard Stan share with us his insights and best practices for "How to Effectively Bill Your Time." A few of Stan's suggestions included:
o Note your time concurrently with each billable activity.
o Enter your time daily.
o Work hard to decrease distractions.
o Delegate non-billable work as much as possible.
o Bill what you can (and what’s permitted) while traveling.
o Take advantage of your time entry software and apps.
Thank you, Stan, for presenting! Thank you, too, to all for attending!
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If you missed Stan's Lunch & Learn, you can see all of his tips here. You can watch a recording of his presentation here. |
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February 16 at 7:00 PM
Via Zoom
VADA members, it's time for our first ever VADA Virtual Scavenger Hunt! Connect with fellow VADA members via Zoom while searching your home or office for the items on our list. Points will be awarded to those who return to their computer screen in the time allotted with the item requested. The more items you find, and the quicker you find them, the greater your score. At the end of the game, the participant with the most points will be crowned the winner! Prizes for the winner and other top players courtesy of our sponsor Planet Depos! This event is FREE to all current VADA members -- register here. |
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The 2021 General Assembly session began on
Wednesday, January 13th, and will run for only 30 days through February
11th. While we are in a “short” session year, which is
required by the state constitution to be 30 days, most short sessions are often
extended to 46 days by a vote of the legislature. However, because the Republican
caucus would not vote for the typical extension, the session has been limited
to 30 days with the assumption that Governor Northam will call a special
session at the conclusion of the 30 day regular session to conclude any unfinished
business. Given this limited time period, bills are working through the
subcommittee and committee level quickly. Currently, VADA is actively
monitoring 32 bills. |
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It’s the first of the year and renewals are under way at the VADA! We have had 224 members renew already! If you have questions about your membership status or need assistance updating your profile, please reach out to Executive Director Sherma Mather at smather@vada.org or Membership Chair Sam Bernier at sbernier@faplawfirm.com.
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Emily Albis – Britt, Byrne
& Warren
Craig Brodsky – Goodell
DeVries
Benjamin Dill – Sinnott
Nuckols & Logan
Robert Donovan – Law Offices of William Shanahan (GEICO)
Madison Guidry – Glenn
Robinson Cathey
Lauren Martin – Protogyrou
Law
James Taylor – KPM Law
Hunter Weikel – Glenn
Robinson Cathey
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Does Changing Weather Affect the Six-Foot Rule?
How Humidity and Air Exchange Rates Can Affect COVID-19 Transmission in Public Spaces
During the winter months, it is important to continue to practice the 3 W’s (washing hands frequently, watching your distance, and wearing your mask) to reduce the spread of the COVID-19 virus. The World Health Organization (WHO) has confirmed that COVID-19 virus transmission can occur through respiratory droplets generated by expiratory events, such as coughing, sneezing, laughing, talking, or breathing. Larger respiratory droplets typically fall to the ground or onto nearby surfaces, whereas liquid droplets smaller than 100 μm often evaporate. As the water from smaller droplets evaporates, the biological residue becomes concentrated in the form of a bioaerosol. These aerosols can remain suspended in the air for minutes to hours and can travel far from the source on air currents, spreading disease. This transmission pathway may be more prevalent in colder winter months, when drier air helps promote aerosol formation and dispersion.
For months, owners and operators of public facilities and workspaces here in the United States have followed Centers for Disease Control and Prevention recommendations focused on maintaining a six-foot distance between patrons/employees and disinfecting common surfaces. While these efforts remain critical, those responsible for public facilities can consider additional safety measures, such as improvement of humidity levels and air exchange rates, that could reduce the formation and dispersion of aerosols and reduce the likelihood of potential exposure to COVID-19. To continue reading, please visit the Exponent website. |
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We are pleased to introduce you to our Directors At-Large for 2020-21! Beginning in the top row, from L-R, they are: Michael Beverly of the Norfolk City Attorney’s Office; Taylor Brewer of Moran Reeves Conn; Audra Dickens of McCandlish Holton; Laura May Hooe of Moran Reeves Conn; Chris Dadak of Guynn, Waddell, Carroll & Lockaby, P.C.; Ally Sipes of Wilson Elser Moskowitz Edelman & Dicker LLP; and Anna Zick of Bancroft McGavin Horvath & Judkins. Thank you, all, for your leadership and your service to VADA! |
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AMICUS UPDATE
The VADA has filed an amicus brief in the matter of Jane Doe, by and through her Father and Next Friend, Jack Doe v. Michael L. Baker, et al., Record No. 200386, pending before the Supreme Court of Virginia. Originally filed in the Circuit Court for the City of Waynesboro, this case arises out of alleged sexual abuse the plaintiff experienced at the hand of King, a credentialed pastor in the Virginia Church of God who retired in 2011 from his role as pastor of the Celebration Church of God in Waynesboro, five years before the alleged abuse occurred. Named as defendants in this action, in addition to King, are the Virginia Church of God, the Church of God, and various individuals who were either state overseers/bishops or pastors and served in a voluntary position of district overseers in the church (“the Church of God defendants”).
In her Amended Complaint, the plaintiff alleged a total of ten claims against the Church of God defendants: (1) negligent hiring; (2) negligent retention; (3) negligent failure to warn; (4) negligent failure to protect; (5) willful and wanton negligence; (6) negligent infliction of emotional distress; (7) IIED; (8) fraud by omission or concealment; (9) vicarious liability; and (10) vicarious liability via apparent authority. In response, these defendants filed a Demurrer. The thrust of the Demurrer rested on a lack of proximate causation, namely that the alleged abuse the plaintiff suffered occurred: (1) five years after King retired; (2) in King’s home, as opposed to on church property; and (3) during the course of a purely personal social call as opposed to a church function or activity. These defendants also argued that the individual Church of God defendants could not be liable for negligent hiring or retention. These defendants also moved for summary judgment on the plaintiff’s claims of vicarious liability and apparent authority.
Following an evidentiary hearing, the trial court sustained the Demurrer. In the trial court’s letter opinion, it wrote that the claims against the Church of God defendants were “primarily based on negligent hiring, retention, and failure to warn.” Because the alleged assault “occurred more than five (5) years after [King] retired,” and further because it “occurred at King’s home … on a social visit,” with “no allegation that the visit occurred in connection with any duties, activities, or spiritual counseling” by King, as well as the fact that King was not a Virginia Church of God employee at the time of the alleged assault, the trial court sustained the Demurrer and dismissed, in its entirety, as to these defendants, without leave to amend, the plaintiff’s Amended Complaint.
Before the Supreme Court on appeal are five assignments of error:
1. The trial court erred in finding as a matter of law on demurrer that King was not an agent or employee of the Virginia Church of God or the Church of God at the time he allegedly assaulted the plaintiff.
2. The trial court erred in dismissing the plaintiff’s vicarious liability and apparent authority claims, as: (a) the grounds supporting such dismissal were not stated in the demurrer; and (b) the Amended Complaint adequately pled those claims. To the extent the trial court’s dismissal of these claims rests on a grant of summary judgment, a genuine issue of material fact continues to exist relative to King’s agency or employment and the scope of such agency or employment, thereby rendering summary judgment inappropriate.
3. The trial court erred in finding as a matter of law that the alleged acts and omissions of the Church of God defendants were not a proximate cause of the plaintiff’s alleged injuries.
4.The trial court erred in dismissing for failure to state a claim the plaintiff’s claims against the Church of God defendants.
5. The trial court erred in denying the plaintiff leave to amend.
The VADA’s amicus brief was authored by Missy York of Harman Claytor Corrigan & Wellman. A copy of the brief, which is excellent, can be viewed here. The VTLA also has weighed in with an amicus brief. The parties to this action currently are awaiting a date for oral argument. The expectation is the case will be scheduled for argument on the Supreme Court’s March docket. We will keep you posted.
Our sincere thanks to Missy for her time and her expertise in this matter! We are a better association because of your efforts!
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YOUNG LAWYERS CORNERBy: Melissa KatzSEARCHING FOR THE RIGHT EXPERT WITNESS
Your supervising attorney has just assigned you the unenviable task of finding an expert witness in a case pending in an unfamiliar jurisdiction. Time is critical. What do you do? The following are some tips and resources to assist you in successfully completing your mission:
1. Knowledge and Understanding. Make sure you understand the issues that your expert needs to address. If you aren’t sure, then verify through discussion with the assigning attorney, review of the Complaint, plaintiff’s discovery responses, and/or plaintiff’s expert witness designation (if available). 2. Survey Your Firm. Send an email to your firm’s attorneys identifying the type of expert witness you seek and ask for recommendations. 3. Widen your Search Through VADA a. Search the VADA website ( www.vada.org) for past inquiries regarding experts - https://forum.vada.org/sections.php b. Use VADA Listserv and email members for recommendations – www.vada.org/Member c. Target regional VADA members. Our members are listed by region and section. Reach out to your Regional Board member ( https://www.vada.org/directors) or a VADA Section Chair for assistance. ( https://www.vada.org/sections). 4. Review VADA’s Sponsors for Expert Selection assistance a. VADA has an array of sponsors who offer quality expert services - www.vada.org/sponsors-and-support. b. Our sponsors are wonderful! The sponsor liaison will help you identify what expert matches your needs and facilitate an opportunity for you to vet the available expert(s). If you have a question about any of our sponsors, ask Amy Gilbody, Director of Meetings, agilbody@vada.org. 5. Research Other VADA Resources a. Our Journal of Civil Litigation has search capabilities. - https://docs.vada.org/journals/
b. Our prior CLE programming has available written materials with search capabilities. – https://docs.vada.org/meeting_materials/6. Beyond VADA a. Go to VADA website to explore “Helpful Links” – www.vada.org/links i. There is a link to the ABA ii. There is a link to the National Library of Medicine iii. There is a link to DRI (Defense Research Institute) b. If you need an expert in a different state, explore DRI (see below) and seek help from that state’s civil defense attorneys association (every state has one!) Email Sherma Mather, Executive Director, for more information at smather@vada.org7. Searching DRI (Defense Research Institute) a. What is DRI? DRI is the leading organization of civil defense attorneys and in-house counsel. It is like VADA but on a national level. If you are not a member, you should consider joining for many reasons, to include its website resources and educational opportunities. www.dri.org b. DRI has a large database of expert witnesses. https://dri.org/legal-resources/expert-witness-services. (You need to be a member to use). c. DRI has an “Expert Witness Profiler” to research opposing counsel’s experts as well as to vet your own expert. d. DRI also has a List Serve to allow you to seek recommendations from other DRI members. 8. Internet Search and Cold Calling a. Search the internet for experts in the specialty and region you need. b. Medical Schools, hospitals, and medical practices usually have qualifications, specialty and subspecialties available on its websites. If you see an expert who fits your criteria, reach out to him/her by telephone, email and/or correspondence to discuss the possibility of a review of the case. c. Reach out to the expert authors of textbooks and/or medical literature in the subject you seek. 9. Lexis and Westlaw a. Both have extensive expert databases. b. If the expert database is not part of your subscription, contact your Lexis or Westlaw representative to see if you can use the expert resources on a trial basis. You may find its worth it and pitch it to firm management. 10. Jury Verdicts and Settlements. There are multiple publications with this information, which includes expert witnesses. Lexis, Metro Verdicts, and Virginia Lawyers Weekly.
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This New York native
and VADA trailblazer loves travel and spending time with family and
friends. Her favorite travel spot? A certain cenote near Chichen
Itza! To learn more about this month’s VADA Spotlighted Member, click here.
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Spread the word! VADA is now on Instagram! Follow us today and stay connected at vadadefense!
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Join our social media sites where we post current court updates, relevant legal developments, and much, much more!
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VADA’S Mission
The mission of the Virginia Association of Defense Attorneys is to assist Virginia attorneys in the professional and ethical representation of their clients in civil litigation through education, communication and fellowship. |
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