Huzzah! The codified Rules of Evidence has passed the Virginia’s legislature after some late opposition from four Senators. The Sands Anderson Risk Manager blog first reported on the proposed rules back in October. In a comment to that article, attorney and then-President of Sands Anderson Pierce Rucker noted, “We certainly have [Sands Anderson's] own Bunky Miller to thank, and many of his colleagues [...]

An interesting article by Sarah Warren Beverly, a Sands Anderson litigation attorney, analyzing a recent federal court decision from Judge Jones that addresses a minor’s ability to claim loss of earning capacity as a component of damages: The plaintiff bears the burden to prove his or her damages with “reasonable certainty.” Gwaltney v. Reed, 196 Va. 505, 507, 84 [...]

This encouraging news certainly brightened my day as a practicing Virginia litigator:  Virginia Lawyer’s Weekly has posted an article indicating movement to codify Virginia Rules of Evidence.  Virginia has long considered codification of its rules of evidence, but previously, the proposed rules never made it past Virginia’s Supreme Court. As discussed in the Virginia Lawyer’s [...]

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 [...]

Should we turn up the heat on school administrators to protect younger students from bullying by imposing civil liability for suicides that result from a student’s harassment at school or is this the wrong vehicle for finding ways to increase protections to students harassed by other students in ways that are outside the protections of Title IX? Do school officials have a duty to keep kids physically safe from bullies, but leave kids like Clementi unprotected from cyber bullies?

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.

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.

[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 [...]