The Virginia State Bar’s Standing Committee in Legal Ethics recently issued a legal ethics opinion declaring it unethical for plaintiff’s lawyers to agree to indemnify a defendant and/or his insurer for any third party lien claim against settlement proceeds received by the plaintiff. The Standing Committee has opined that it is likewise unethical for the [...]

We’re very proud that our own Jayne A. Pemberton was named an Influential Woman of Virginia by Lawyers Media on Thursday, May 19. She’s in a class of many remarkable women this year, the third of this recognition coordinated by Virginia Lawyers Weekly. Jayne was recognized for, among other things, her work in the Metropolitan [...]

THE INFORMATION CONTAINED IN OUR WEB SITE DESCRIBES LEGAL MATTERS HANDLED IN THE PAST BY OUR ATTORNEYS. OF COURSE, THE RESULTS WE HAVE ACHIEVED DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH MATTER. BECAUSE EACH MATTER IS DIFFERENT, OUR PAST RESULTS CANNOT PREDICT OR GUARANTEE A SIMILAR RESULT IN THE FUTURE. As we move [...]

On June 10, 2010, the Supreme Court of Virginia issued two rulings that could have important impacts on Risk Management clients.

Under Virginia statute, an ex-felon is competent to testify as a witness, but his credibility can be impeached on cross-examination with the fact of his conviction. Virginia’s statute differs from the Federal Rules of Evidence in this regard, because there is no time limitation on when a felony can be used to impeach a witness’s credibility.

What is offered here are highlights of some of Judge Scheindlin’s comments in this decision. This is neither offered as a complete analysis of the opinion, nor is it postured to be a legal analysis of the opinion with respect to the rules of discovery or other case law.

During the 2010 session of the Virginia General Assembly, House Bill 93 (“HB 93″) was passed to amend Virginia’s existing underinsured motorist insurance statute, Virginia Code Section 38.2-2206 (“UIM Statute”), in an attempt to address concerns that UIM carriers could force protracted litigation because no incentives or penalties existed to encourage them to sit in good faith at the negotiating table during litigation.

Virginia civil law can be odd in a number of ways, not the least of which is the intent and effect of Virginia Code Ann. § 8.01-404 concerning prior written or recorded statements by witnesses. This statute, which contradicts the majority evidence rule that permit a defense attorney to use a prior written statement to cross-examine a witness, states that “(I)n an action to recover for personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing, other than a deposition, of a witness and no extrajudicial recording made at any time other than simultaneously with the wrongful act or negligence at issue….shall be used to contradict him as a witness in the case.” Thus, if an adjuster, attorney, or investigator obtains a statement from a plaintiff or other witness, if written or recorded on tape, that statement cannot be used at trial to contradict that witness when he inevitably changes his story two years later.

. . . Cummins proposed solution is for claims reps to give defense counsel a more accurate understanding of their expectations, but I think defense counsel are aware that claims reps want accurate and timely information. Instead, should defense counsel communicate areas of uncertainty more accurately? . . .

[Editor's note: This article is the work of Andrew H. Wilson of our Risk Management team] On November 5, 2009 , Kellermann v. McDonough, Record No. 081718 (Va. filed November 5, 2009), the Supreme Court of Virginia expressly held for the first time that “when a parent relinquishes the supervision and care of a child [...]