Advanced Expert Witness Workshop Rescheduled to August 7, New Supreme Court of Virginia Order, Summer Journal of Civil Litigation, and more. .

VADA Defense Line June 2020

President's Welcome 

As we enter Phase 3 in Virginia, many of us are planning and/or executing the re-opening of our offices while continuing to adjust to the new normal of arguing motions remotely and/or appearing in court in masks. While courts have resumed adjudicating motions in some fashion, the question of when jury trials will start up again remains enigmatic. The VADA, along with a few other specialty bars, has reached out to Chief Justice Lemons and encouraged him to let us know how we can be of assistance to the Jury Task Force, which was created to address reinstatement of jury trials throughout the Commonwealth. This will be a very challenging endeavor, and our subcommittee, consisting of Board members Jim Cales, Madelaine Kramer, and Taylor Brewer, are ready to be involved in this conversation.

As we enter Phase 3, we are also ready to shake off our Zoom fatigue! During Phases 1 and 2, the VADA adjusted its traditional programming and presented 13 Covid-19 related webinars, zoom wellness sessions, and/or remote social hours as well as a very successful Spring Series, by webinar. Amy Gilbody, our Director of Meetings, was instrumental in coordinating these efforts. We will transition one more meeting to webinar with our rescheduled Advanced Expert Witness Workshop, which will be held Friday, August 7. The agenda is focused on effective cross examination of a variety of experts, preparing your experts for cross examination, and practical tips to combat some vexing expert discovery issues. See the full details and register now on the meeting website

While we will continue to offer educational programming through webinars, as necessary and in light of the positive feedback from our recent Spring Series, we are cautiously optimistic that we can actually gather together in person at our Annual Meeting, scheduled at The Homestead, on October 14-16. The Homestead is open and hosting events. The Virginia Bar Association is having its meeting there at the end of July and representatives from VADA will be in attendance and assessing this live event implemented with adherence to COVID-19 guidelines.

Our Annual Meeting, which is literally jam-packed with incredible speakers and content relevant to all VADA members, is something to look forward to. Our Annual Meeting Committee, chaired by Secretary Julie Palmer, has been hard at work. See the article below for specifics on the meeting and the robust agenda. COVID-19 is rapidly evolving. At the present time, Bath County, where The Homestead is located has reported few, if any, cases and we hope that doesn't change as Virginia begins to re-open. 

COVID-19 guidelines will be implemented so that we can safely continue our longstanding tradition of gathering together, as a collegial community, to learn from one another, network, and enhance our legal knowledge and practice. In addition to a robust agenda and wonderful guest speakers, there will also be multiple optional outdoor activities offered. Please mark your calendars as we continue to prepare for this live event.

Melissa H. Katz
VADA President, 2019-20


Advanced Expert Witness Workshop

Friday, August 7
12:00 PM - 5:00 PM

Via Webinar


Join us online for this rescheduled program. While designed for the more experienced practitioner, new lawyers will also find the program rewarding as the workshop tackles issues involving multiple types of experts which surface in personal injury and property damage cases. 

We have an excellent panel of speakers and experts lined up to share valuable knowledge, insight, trial practice pointers and personal experience regarding handling some difficult issues involving expert witnesses. Registration is open and we encourage you to register today.

Those who had previously registered for the Workshop in March will be automatically registered for the rescheduled event -- you do not need to re-register for the new date. Please contact Director of Meetings, Amy Gilbody, at if you have any questions. 

Supreme Court of Virginia Order

UPDATE: On June 22, 2020, the Supreme Court of Virginia entered its Sixth Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency. Highlights of the Supreme Court's Order include:

  • An extension of the Declaration of Judicial Emergency from June 29 through July 19, 2020.
  • For all cases in district and circuit courts, the statutes of limitation and, except as otherwise provided in this Order, all other case-related deadlines, excluding discovery deadlines, shall continue to be tolled.
  • In all civil cases, including jury trial cases that are currently suspended, deadlines and obligations arising out of Part Four of the Rules of Supreme Court of Virginia are not tolled and, upon notice to the parties or their counsel, courts may impose and enforce case related pre-trial deadlines.
  • With limited exceptions, and in addition to recommended social and physical distancing, all persons age 10 or over entering the courthouse must wear a face covering that covers the nose and mouth.
  • Without regard to when any scheduling order was entered, all civil and criminal jury trials are suspended and shall be continued, and no jury trials shall occur in the Commonwealth for the duration of this Order.
  • Continuances and excuses for failure to appear shall be liberally granted for any cause resulting from the impact of the ongoing COVID-19 crisis.

In addition, Chief Justice Lemons has created a Jury Task Force to address the reinstatement of jury trials throughout the Commonwealth. Notwithstanding the current suspension of civil and criminal jury trials, each chief circuit court judge shall develop a plan for their circuit that describes how and when they will be able to safely conduct jury trials, either in their existing courtrooms or in alternate space that may be made available.

For the full text of the Supreme Court's Order, visit their website.

Somerville Achieves Amicus Victory for VADA

Last year the VADA filed an amicus curiae brief with the Virginia Supreme Court in the case of Byrne v. City of Alexandria. On May 28, 2020, the Virginia Supreme Court released its opinion adopting the position advocated by the VADA.

Byrne was an appeal of a land-use decision by the City of Alexandria. The VADA’s interest in the case was its larger impact on the use of motions to crave oyer. The City had been granted a motion craving oyer of the legislative record in the case, and then used that record to file a demurrer which was granted by the trial court.

On appeal, the plaintiff alleged the trial court had erred in granting the motion to crave oyer. Relying on the 1895 case of Langhorne v. Richmond Ry. Co., 91 Va. 369, the plaintiff argued that motions to crave oyer were limited “only to deeds and letters of probate and administration.” The VADA argued, and the Supreme Court agreed, that this language was mere dictum, acknowledging that cases before and after Langhorne applied oyer to a much wider range of documents.

As the VADA argued in its amicus brief, this issue was important because the motion craving oyer is “an ancient common law procedure with significant modern utility” as it “allows courts to decide cases controlled by the documents … at the demurrer stage.”

George Somerville, a member of Harman Claytor Corrigan & Wellman’s Richmond office, drafted the VADA’s amicus curiae brief in this case. George’s practice focuses on appellate litigation in state and federal courts. The VADA thanks George for successfully articulating its position in this important case.

    VADA Announces its Annual Award Winners

    The VADA recently announced the 2020 recipients of two of its most prestigious awards.This year’s Award for Excellence in Civil Litigation will be presented to the Hon. R. Edwin Burnette, Jr. (Ret.). After receiving his J.D. from the College of William and Mary in 1978, Judge Burnette practiced law with Edmunds & Williams in Lynchburg, Virginia. In 2001, Judge Burnette was appointed to the General District Court and in 2015 was appointed to the Circuit Court bench, sitting primarily in Lynchburg.

    Judge Burnette served as President of the Virginia State Bar from 1993-94. At the age of 39 he was the youngest person to hold that position. The Virginia State Bar’s Young Lawyer of the Year Award, which Judge Burnette presents each year, is named after him. One of Judge Burnette’s nominators said he “embodies the qualities and characteristics of an excellent trial lawyer and an outstanding trial court judge.”

    Judge Burnette retired from the bench at the end of 2019. He has been named as the first Jurist in Residence at the Liberty University School of Law.

    This year marks the fifth year of the joint VADA-VTLA Civility and Professionalism Award, which is given by each association to a member of the other who exhibits the highest degree of civility and professionalism in dealing with litigation opponents. At its March 2020 Annual Meeting the VTLA presented its Civility Award to Kathleen M. McCauley of the VADA.

    The VADA will present its 2020 Civility Award to Irving M. Blank, Esq., a named partner with Blank & Marcus in Richmond, Virginia. Now a successful plaintiff’s attorney, Irv was also a former member of the VADA. The person nominating Irv described him as the “consummate professional and a pleasure to work with through the years.”

    These awards will be formally presented to the recipients at the Awards Luncheon held on October 15, 2020, at the Homestead as a part of the VADA’s Annual Meeting.

    VADA Annual Meeting 2020:
    Sharpen your Litigation Focus
    October 14-16, 2020
    The Homestead

    Our Annual Meeting Committee, chaired by Secretary Julie Palmer, has been hard at work. The agenda is jam-packed with incredible speakers and content relevant to all VADA members. Virginia Supreme Court Justices, federal and state court judges, and some of our top litigators are lined up to present informative tips ranging from writing a winning brief, live streaming testimony, perfect persuasion and the art of oral advocacy, to the power of empathy from the defense perspective in catastrophic cases, just to name a few topics. We will also offer our popular Breakfast with the Judiciary.

    While COVID-19 is rapidly evolving, please be assured that COVID-19 guidelines will be implemented so that we can safely continue our longstanding tradition of gathering together, as a collegial community, to learn from one another, network, and enhance our legal knowledge and practice. We will also offer many optional outdoor activities – all in the spirit of social distancing – to include a Waterfall Wellness Hike, Trail Ride, Zipline, and Golf.

    See full meeting details on the meeting website. Registration will open soon so watch your email for meeting updates.

    Hon. R. Edwin Burnette, Jr. (Ret.)

    2020 Award for Excellence in Civil Litigation


    Irving M. Blank, Esq.

    2020 VADA-VTLA Civility and Professionalism  Award


    We are pleased to share an article from Anna Mallon, an attorney who sits on the Board of Directors of the Defense Trial Counsel of Indiana, who aptly articulates the gratitude for the distraction and mental stimulation of legal work during these challenging time. Read the article here

    Join our social media sites where we post current court updates and relevant legal developments.  

    Mark your calendar now for these upcoming VADA events.  Be sure to bookmark VADA Upcoming Events so you don't miss out.

    Watch your email for updates on all upcoming events.

    Paralegal Seminar

    August 7
    Advanced Expert Witness Workshop
    Via Webinar

    October 14-16
    Annual Meeting
    The Homestead

    December 4
    Young Lawyers Boot Camp

    May 5-7
    Spring Sections Seminar 
    Boar's Head Inn, Charlottesville

    This Staunton member and avid duck hunter has been doubly blessed with a wife and two daughters and a career he absolutely loves. Among his other passions are fly fishing and spending time with his family at Wrightsville Beach. To learn more about this month’s Spotlighted Member, visit here.

    Responding to Discovery Requests When Filing a Demurrer

    The situation often arises where defense counsel has demurred to a complaint, but must also decide how to respond to discovery requests from the plaintiff prior to the demurrer being heard and decided. Most defense attorneys will not want to substantively respond to discovery when they believe the underlying complaint fails to state a cause of action.

    What is the best course of action? Here are some suggestions:

    1. File the demurrer.

    2. File a motion to stay discovery based on the grounds of the pending demurrer.

    3. File written objections to all the discovery individually on the grounds of the pending motion to stay discovery.

    Rule 4:1(d)(2) provides that “[d]iscovery shall continue after a demurrer, plea or dispositive motion addressing one or more claims … has been filed and while such motion is pending decision,” but it gives the trial court authority to order that “discovery on some or all issues in the action should be suspended” while a demurrer is pending. The Supreme Court of Virginia has previously held that the trial court did not err in exercising this discretion. Murayama 1997 Trust v. NISC Holdings, LLC, 284 Va. 234, 250 (2012).

    While this probably does the trick for interrogatories and document requests, many attorneys are understandably more nervous about not responding to requests for admissions. In this case, in addition to objections to the requests for admissions, counsel may want to add language that “to the extent it is determined that a response is required at this time, then the request for admission is denied.”

    Of course, attorneys must use their independent judgment and tailor this strategy to the circumstances of their individual case. But we hope this provides a general outline of strategies to deal with this situation.

    The Latest Edition of the Journal is Now Available!

    The Summer 2020 edition of the Journal of Civil Litigation is hot off the presses. It includes three feature articles:

    • Lauren S. Kadish of Kaufman & Canoles explains a health care provider’s liability for privacy breaches of personal health information under state, federal and the common law of torts.
    • Mary Grace Miller of O’Hagan Meyer discusses how the Supreme Court of Virginia’s recent decision in Corriveau v. State Farm marked a significant change in whether an incident will be deemed to have arisen “out of the use” of a vehicle for purpose of coverage under an automobile liability insurance policy.
    • C. Walker Terry and Karrisa T. Kasseorg of McClandish Holton educate us on the split in authority in Virginia over whether regional jails should be considered municipalities and thus extended sovereign immunity.

    In addition, the Journal includes an additional 17 opinions from courts around the Commonwealth.

    Remember that the Journal is always available in the “Members Only” section of the VADA’s webpage. Once there, members can also search all previous editions of the Journal by keyword.

    Fellow VADA Members – Regardless of whether we are able to meet in person over the next few months, the VADA continues to offer CLE programing and other valuable resources and information. Please encourage your colleagues – especially those who were members last year or in 2018 who have not renewed in 2020 – to join or renew their memberships so that they can take advantage of the information and camaraderie VADA provides. Your help in this effort is invaluable. Thank you!

    Samuel T. Bernier

    Henry Moore
    Kalbaugh Pfund & Messersmith

    Uzoamaka Onwuchekwa
    Two Rivers Law Group

    Chuck Seyfarth
    O'Hagan Meyer

    Richard Souther
    The Law Offices of
    Christopher R. Costabile

    Call for Webinar Content

    We are always seeking new topic ideas for future webinars. Do you have a good idea? If so, please email your thoughts to Amy Gilbody at 

    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.

    Virginia Association of Defense Attorneys
    1915 Huguenot Road, Ste 301
    Richmond, VA  23235