the virginia bar association officers and ...€™s page edmund l. walton, jr. 2 from button to...

President’s Page .................................... Edmund L. Walton, Jr. 2

From Button to Bates--Road to the Marketplace? ..... William B. Spong, Jr. 5

Coping With Vocational Expert Testimony .............. Paul R. Lees-Haley 9

Choosing and Using a General Purpose Computer for Word Processing ...................................... Bernard Sternin 13

Medical Malpractice Cases:

Things Are Not Always What They Seem .............. Gary L. Bengston 16

19

23

THE VIRGINIA BAR ASSOCIATION OFFICERS AND EXECUTIVE COMMITTEE

President

Edmund L. Walton, Jr. 1301 Vincent Place.

McLean, Virginia 22101

Past President

~vans B. Bra~field P.O. Box 1535 "

Richmond, Virginia 23212

President-Elect

R. Gordon Smith One James Center

Suite 800 Richmond, Virginia 23219

Secretary- Treasurer

James R. McKenry

1060 Laskin Road Suite 12-B

Virginia Beach, Virginia 23451

Chairman, Young Lawyers Section

Charles M. Lollar 700 Newtown Road

Norfolk, Virginia 23502

Chairman-Elect, Young Lawyers Section

Thomas F. Farrell, II P.O. Box 1101

Alexandria, Virginia 22313

"Executive Committee

John M. Ryan, Chairman 500 World Trade Center Norfolk, Virginia 23510

J. Robert McAllister, IIr P.O. Box 549

Arlington, Virginia 22216

John E. Donaldson School of Law

College of William and Mary Williamsburg, Virginia 23185

Frank L. Summers, Jr. P.O. Box 1287

Staunton, Virginia 24401

Andrew P. Miller 2101 L Street, N.W. Eighth Floor

Washihgton, D.C. 20037

F. Claiborne Johnston, Jr. P.O. Box 1122

Richmond, Virginia 23208

Thomas T. Lawson P.O. Box 720

Roanoke, Virginia 24004

Robert C. Wood, III P.O. Box 958

Lynchburg, Virginia 24505

Executive Director

Joan S. Mahan Suite 708, 7th & Franklin Building

701 E. Franklin Street Richmond, Virginia 23219

Director, Committee Activities Emerson G. Spies

School of Law University of Virginia

Charlottesville, Virginia 22901

Note to Contributors The Virginia Bar Association Journal is published quarterly.,All inquiries con-

cerning topics and guidelines for publication, and all articles and notices offered for publication, should be directed to:

Charles E. Friend, Editor The Virginia Bar Association Journal

P.O. Box H F Williamsburg, VA 23187

rgini Bar sso eiatio our tal

Volume XII Fall 1986 Number 4

EDITORIAL BOARD

Appointed Members

David W. Parrish, Jr. Chairman

Charlottesville

Vernon M. Geddy, Jr. Williamsburg

John L. Walker, Jr. Roanoke

John F. Kay, Jr. Richmond

Ex-Officio Members

Edmund L. Walton, Jr. President McLean

R. Gordon Smith President-Elect

Richmond

Joan S. Mahan Executive Director

Richmond

Charles M. Lollar Chairman, Young

Lawyers Section

Norfolk

Editorial Staff

Charles E. Friend Editor

Bess Castle Wendell Associate Editor

Theodore L. Chandler, Jr. Editor, Young

Lawyers Contributions

CONTENTS

President’s Page ........................ .~ ...........

Edmund L. Walton, Jr.

From Button to Bates--Road to the M~rketplace? ... William B. Spong, Jr.

Coping ~With Vocational Expert Testimony ...........

Paul R. Lees-Haley

Choosing and Using a General Purpose Computer

for Word °Processing ............... : ............. 13~

Bernard Sternin

Medical Malpractice Cases:

’~ Things Are Not Always What They Seem ......... 16 Gary L. Bengston

Book Reviews ..................................... 1~9

Bar Association Proceedings ....................... 23

The Summer Meeting ..................... 24

Tournament Results .............................. 27

Announcements .................................. 28

Sponsors ........................................ 30

Patrons. .............. : ......................... 31

YLS Chairman’s Report ..... ° .................... 33

Memorials ...................................... 37

The Virginia Bar Association Journal is published quarterly by The Virginia

Bar Association as a service to the profession. Contributions are welcome, but the

right is reserved to select material to be published. Publication of any article or

statement is not to be deemed an endorsement of the views expressed therein by the

Association. The office of publication is located at 3849 W. Weyburn Road, Rich-

mond, Virginia 23235.

Membership dues include the Cost of one subscription to each member of the

Association. Subscription price to others, $20.00 per year; single copies $5.00.

Second-class postage paid at Richmond, Virginia 23232.

@1986 The Virginia Bar Association (ISSN 0360-3857) (USPS 093-110)

residentS Pagei

EDMUND L. WALTON, JR.

/-kS we pass the mid-point in my term as your Presi-

dent, there are several matters which I would like to touch upon. The first relates to the loss of a valued

member of the Association who was associated with this Journal from its inception. I would then like to address several issues which are facing the Associ-

ation, as well as the legal profession as a whole. Everyone who knew E. Waller Dudley was sad-

dened by his untimely death this summer. Waller was

a former President of this Association and contributed greatly to its work. Less known but equally important, Waller was the first Chairman of the Edi- torial Board of this publication. We in the Association are

exceptionally proud of our Journal and owe a great debt to Waller Dudley for the style and format of the

publication. Thus, I will use President’s license to

speak briefly about Waller and his contributions, although traditionally we do not present memorials

in the Journal. Waller Dudley was a gentleman in the finest sense

of the word. I had the great honor of practicing at the Trial Bar in Northern Virginia with Waller and, not only was he one of the finest advocates at that Bar,

but I can never recall him raising his voice or saying

an unkind word, no matter how tense the conflict in which he was involved.

Some might say that Waller Dudley was "of the old school." I would hope that Waller Dudley serve as a model for the "new school." Those who enter the prac-

tice of law could do far worse than to use Waller Dud- ley’s approach to the practice of law as their standard. The Association, the profession and especially those of us who considered Waller Dudley a friend, have suffered a great loss.. This is tempered by the enduring legacy left to us by this fine gentleman.

It seems most appropriate to ~o’~e from an appre-

ciation of Waller Dudley into the area of professional-

ism. Waller Dudley was a consummateprofessional. The troublesome area of professionalism has con-

cerned the Bar for quite a number of years. I don’t

believe concerns in this area commenced with Bates

v. Arizona, but I do think that the aftermath of the Bates case brought home to many of us concerns

about our image with the public in a way that individual episodes of running, capping and other pre- Bates practices never did. The reason for this is the

general presentation to the public at large through the medium of advertising, solicitation which often is presented in a most unprofessional manner.

While advertising is now clearly a protected right under the Constitution by virtue of the Bates case and

its progeny, it was very easy for the legal profession

prior to Bates to ignore the incidental acts of "bad lawyers," whose acts were known to a very few. Now, with the wide audience for advertising, the reach of such acts has been extended dramatically. The law as it now stands requires the application of a standard of whether or. not the advertising is false or misleading

before disciplinary action is merited. This.standard is an application of the minimum ethical precepts of the

profession. As I open the yellow pages of my phone book and look through the designations of specialties in the law, I’m amazed to find lawyers who are spe-

cialized in virtually every known area of practice. I

also see advertisements which are at least in bad taste, if not misleading. I think we have all seen tel~

vision advertisements which have made us uncom- fortable as professionals. While in the main the organized profession can do little other than to disci- pline those who hold themselves out in false or mis-

leading presentations, perhaps it is time to consider some approaches which may allow us to better pre-

2

sent ourselves to the public in a positive manner and allow the public to make judgments based on more objective criteria.

The Virginia State Bar, by an exceptionally close vote, certified to our Supreme Court a well thought-out specialization plan. This plan was the subject of intense debate in the State Bar with the principal concerns being that the generalist, small firm lawyers

could well suffer a competitive disadvantage with those highly specialized individuals in larger firms who are able to devote a substantial portion of their time to a very specialized area. I suggest this concern is an over-reaction. The medical profession has used a specialization system for years. I don’t believe that

many of the general (family) practitioners of medicine are especially upset because they lose brain surgery opportunities to the neurosurgeons. Usually, the gen-

eral practitioner of law is not (hopefully) likely to undertake the registration of an issue of publicly

traded securities or arcane tax advice in regard to

international transactions. The law has become complex and will become more complex and specialized. I suggest to you that as a service to the public and the profession, designation of specialities by some objec-

tive criteria is an idea whose time has come. The State Bar has suggested a general practice category of which, much as the family medicine specialty, is a

field wide open to generalists. Certification by a body with expertise in a field

applying objective criteria will permit the public to make a reasonable judgment as to whether a lawyer

is sufficiently specialized in an area and is able to

handle a complex matter or is a generalist with a broad scope of practice. Even more important it will allow us as members of the Bar to locate those spe-

cialists in areas who have met the criteria for specialization and can better serve our clients by referring them to persons who have background and experience in those areas. I cannot conceive of anything

but benefit to the profession as a whole. I also. believe that professional certification may well have some

positive effect upon those of little competence who hold themselves out as specialists in a multitude of areas with little, if any, expertise in any.

Your Past President, current President, and your

President-Elect met with Chief Justice Carrico to present the position of the Association’s Executive Committee on the question of specialization. It is my hope that the Virginia Supreme Court will adopt the

specialization proposal presented to it by the State

Bar Council. If it does not, I think that we at The Virginia Bar Association should search for alterna- tives to accomplish the dual goals of service to the

public and the profession in establishing an objective criteria for those holding themselves out as specialists in various areas of practice.

A final matter which I would like to mention in this column is the question of "tort reform." The newspa- pers and magazines have been filled to the bursting point with articles on the question of tort reform. A

number of state legislatures have acted and a special committee of the Virginia General Assembly is now meeting to determine what, if any, legislation should

be presented in Virginia in this area. At the National Conference of Bar Presidents, I had an opportunity to discuss the subject with presidents of a number of other bars throughout the country. Without exception,

the issue of tort reform was high on their agenda. In a number of states, legislation had been passed either

over the objection of the organized bar or with little, if any, participation on the part of lawyers.

There are many who believe that as we enter into a

new business cycle in the insurance industry, many of the problems which are now perceived will disappear.

They tell us that a substantial amount of the pressure for reform will disappear as insurance companies become more competitive after having recaptured the profits which they lost as a result of over-extension in the insurance boom days of the late 1970’s and early

1980’s. While I believe that to some extent this is correct, statistics indicate substantial increases in pro-

3

fessional liability and product liability litigation. Our Supreme Court advises us that there has been no explosionin tort cases overall and, in fact, Virginia’s experience mirrors that of other states presented in a

study by the National Center for State Courts, finding that over the past 4 or 5 years there has been an over-

all decline in tort actions, with only a slight increase appearing last year.

There is, however, a strong public perception of a

crisis in the tort area. Indubitably, this has been fanned by a strong advertising campaign on the

insurance industry’s part, but I believe at least in several areas--those of p~ofessional liability and pro-

ducts liability litigation--there has been a surge of

cases. I also believe that unless we approach the problem now, we will be facing Federal legislation within

the next year or two which will preempt action on the part of the states.

Governor Baliles, at our summer meeting at the Homestead, presented an interesting and philosophi- cally challenging approach in the area of punitive"

damages. He suggested that if punitive damages were awarded as punishment rather than as reward to the

injured party, then perhaps we should look at the question of punitive damages as a penalty to be paid to all of the people, rather than to the injured party.

His suggestion was that we might consider having all punitive damages paid into the state literary fund as opposed to having them paid over to plaintiffs as an

additional bonus for unconscionable actions on the part of defendants. While the Governor’s plan would

present a number of mechanical problems, it is hard

to argue with it as a philosophical proposition and one which should be given serious study.

While I do not feel that Virginia with its able judges

and bar have encountered the width and depth of

problems in the tort area seen in other states, the per-

ception is certainly a national one and Virginia should take a long, hard look at its current system to determine whether it can be improved upon. In keep-

ing with this and in acceptance of Governor Baliles

challenge, I have appointed Dean Tim Sullivan of the Marshall Wythe School of Law of the College of Wil- liam and Mary as Chairman of a special committee to review Virginia tort law and to make any recommendations which the Committee feels would be appropriate with regard to the overall system. I have asked them specifically to lo0k at proposals which have

been presented to the Virginia General Assembly and Governor BaRles’ proposal in regard to punitive damages. I have’also asked them to take a broader and deeper look at the whole question of tort liability. On

this committee will serve a number of outstanding trial attorneys and others who I believe can contrib-

ute to the dialogue. They include a Past President of the Virginia Trial Lawyers Association, a Past Presi- dent of the Virginia State Bar, two Past Presidents of The Virginia Bar Association, the Chief Deputy Attorney General of Virginia and a sitting judge. In addition, I have asked Jeffery O’Connell, one of the most brilliant scholars in the negligence field and the

father of "no fault," to consult with the committee. Those who have heard Professor O’Connell may not always agree with him, but they will agree that he is

knowledgable, articulate and challenging in his points-

of-view. It is my hope that the Committee will make a sub-

stantial contribution to the dialogue with regard to the need for tort reform and that the organized Bar in Virginia" will not be left wringing its hands as

changes ~n this vital area of the law are brought about without any input from the organized bar.

4

WII,I,IAM B. SPONG, JR.

From Button to Bates-- Road to the Marketplace?

AN unfavorable and perhaps growing perception of

the legal profession has prompted a myriad of self

study by practitioners during recent years. The under- lying theme of much of the concern is that the prac-

tice of law is becoming less of a profession .and more of a business--a commercial enterprise where charac- teristics traditionally associated with a profession are

increasingly at peril. Rather than theorize at length about pressures

upon the legal profession that have resulted in great

change, we will identify generally those developments that compel bar leaders to examine the profes-

sional status of their calling. Such identification

requires an understanding of the consumer oriented society in which we live, the explosion of state and federal laws we have experienced over the past half century, the astronomical increase in the number ~)f licensed attorneys, the litigious nature of the Ameri- can people, and the fierce competition for fees that

has resulted. Ironically, concurrent with the explosion in numbers of laws and lawyers, serious questions are

now being raised about the availability of sufficient

independent, competent and zealous counsel to main- tain an effective adversary system, or the capacity of

the legal community to provide such counsel for those not able to pay well. One must also be mindful of the questioning nature of consumers who appear as anx-

ious to have protection from large fees, as from incompetent counsel.

The more drastic changes in the practice of law have resulted from court interpretations of rules, laws

or standards governing lawyers when measured against the guarantees of the First Amendment or the purposes of the Sherman Antitrust Act. This review will emphasize Virginia decisions, not because of

parochial pride, but to heighten the awareness of Vir- ginia lawyers of the impact of such decision upon the legal profession. These decisions have had national

effect. An understanding of recent Virginia legal his-

tory is essential when weighing the changes in the standards that govern lawyers and the effect of such changes upon the status of lawyers as professionals.

A retrospective view of those decisions having max- imum impact upon the way law is to be practiced,

along ~with a review of bar activities as initiatives or responses to court decisions, leads one to conclude that concerns involve one or more of the following questions:

1. Does the practice, regulation or proposal make it easier to find a lawyer and gain access to the

Courts?

2. Will the practice, regulation or proposal result in lower fees for legal services?

3. Will the practice, regulation or proposal lift the level of competency among legal practition-

ers?

4. Does the rule, law or proposal protect the public, or does it protect the licensed monopoly of the legal profession from competition?

Until the civil rights movement, federal constitu-

tional principles were seldom, if at all, considered in regulation of the practice of law. However, in 1963, in NAACP v. Button, 371 U.S. 415, the Supreme Court

overturned Virginia laws and rules prohibiting the soliciting of plaintiffs to institute school desegrega- tion suits and the supplying of lawyers to represent

such plaintiffs. The Button decision preceded by a year another

landmark Virginia case, Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1 (1964). The

Supreme Court expanded the holding of Button

beyond civil and political rights to uphold union activity that referred injured union members to selected lawyers, citing First Amendment rights of speech, assembly and petition.

The groups legal service ramifications of the BRT

case were extended in United Mine Workers v. Illinois

State Bar Ass’n, 389 U.S. 217 (1967) where the union employed a lawyer on a salaried basis to handle the

compensation claims of members. The Supreme Court

upheld such activity, citing the First Amendment principles that were controllin$ in the BRT case.

5

William B. Spong, Jr. is Dudley Warner Wood-

bridge Professor of Law, Emeritus of the College of William and Mary. Following his retirement as Dean of the Marshall-Wythe School of Law at William and Mary in 1985, Dean Spong was a senior visitor at the Center for Advanced Legal Studies of the University of London. This fall he is a visiting professor at Washington and Lee University, teaching legal ethics as part of that

university’s program in applied ethics for pre- professional students. In the spring, Dean Spong will be John A. Ewald, Jr. Distinguished Visit- ing Professor of Law at his alma mater, the University of Virginia. He is a past president of The Virginia Bar Association.

In 1971, the Supreme Court in United Transporta- tion Unions v. State Bar of Michigan, 401 U.S. 576

struck down an injunction against group legal service activity, the opinion stating that, "collective activity undertaken to obtain meaningful access to the Courts is a fundamental right within the protection of the

First Amendment." The opinions in these four cases cut sweepingly

across traditional professional positions regarding freely chosen counsel, solicitation by third parties,

independence of counsel, contact with clients, and

assembly-line handling of cases. The nature of the lawyer-client relationship was altered, and the foundation laid for group legal services and pre-paid legal

insurance.

In reaction to these decisions against bar groups,

the American Bar Association in 1974 amended the Cannon 2 Section of its Code of Professional Respon- sibility to salvage the traditional view of the right to freely chosen, independent counsel. This action prompted lawyers in the Antitrust Division of the Justice

Department to question if the amendments were violative of antitrust laws. Presumably, in order to avoid

a test of its new restrictions, the American Bar Asso- ciation further amended its Code to allow closed pan- els in group legal services programs.

A different set of circumstances, involving the establishment and publishing of minimum fee schedules by bar groups, prompted the Supreme Court to examine bar practices through an antitrust lens. In Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975),

minimum fee schedules were held to be price fixing. Bar arguments that lawyers were exempt from antitrust laws as "a learned profession," or that minimum

fee activities constituted "state action" within the meaning of Parker v. Brown 317 U.S. 341 (1943) were not accepted. The Supreme Court professed "no di-

minution of the authority of the State to regulate its professions," but Goldfarb appeared to many as the precursor of a view that lawyers were economic actors and the public would be better served if there were

true competition for clients.

Two Virginia cases that were heard in federal

courts following Goldfarb are significant as reflective of the activities of a consumer oriented society to set aside regulations and procedures of the Virginia State Bar and the Supreme Court of Virginia. One case was

brought by Consumers Union, claiming that the Vir- ginia State Bar and the Supreme Court of Virginia had violated its First Amendment right to collect and distribute information in directory form about Virgin- ia lawyers. The second case, Surety Title Ins. Agency

v. Virginia State Bar, 431 F. Supp. 298 (E.D. Va. 1977) concerned advisory opinions by the Virginia State Bar, stating that the examination and certification of

real estate rifles by Surety Title constituted the unauthorized practice of law. The trial judge in Surety

held that a Parker v. Brown exemption did not protect

the State bar, even though the advisory opinions were required by rule of the Supreme Court of Virginia. The entire mechanism for issuing advisory opinions pur- porting to define the practice of law was set aside, the judge holding that the opinions and the procedures under which they were rendered did not reflect a clear

articulation of state policy, nor did they serve the purpose for which the state bar was established, not being sufficiently related to the state’s interest to justify the anticompetitive effects.

After the United States Supreme Court ruled that a

6

general prohibition against advertising by lawyers

under certain conditions was violative of the First

Amendment in Bates and O’Steen v. State Bar of

Arizona, 433 U.S. 350 (1977), both Consumer Union and Surety Title were resolved. ~k permanent injunction was entered against use of advertising prohibitions in Virginia. See Supreme Court of Virginia v.

Consumers Union 446 U.S. 719 (1980). The Court of Appeals for the Fourth Circuit vacated the trial

judge’s decision in Surety to allow a state proceeding, brought by the Attorney General of Virginia charging Surety with unauthorized practice to be decided, 571 F. 2d 205 (4th Cir. 1978). The Supreme Court

denied certiorari. The Supreme Court of Virginia, on motion of the Virginia State Bar, issued new rules with regard to advisory opinions. The new rules

brought the At.torney General’s office into the process and made all advisory opinions that found activity to constitute the unauthorized practice of law subject to final review of the Virginia Supreme Court. These modifications brought Virginia bar procedures con-

cerning unauthorized practice firmly within the "state action" exemption to antitrust law under~ Parker v.

Brown. The Surety case was settled. The decision with perhaps the most sweeping

impact upon the practice.0f law is Bates, heretofore mentioned. An Arizona case, the precedent for giving

First Amendment protection to commercial speech

had been determined in two Virginia cases: Bigelow v.

Virginia, 421 U.S. 809 (1975), holding a Virginia s.tat- ute unconstitutional that had been applied to advertising by a New York abortion referral service; and Virginia Pharmacy Board v. Virginia Consumer

Council 425 U.S. 748 (1976) rendering a Virginia statute invalid that declared a pharmacist who adver-

tised prescription drug prices to be guilty of "unpro-

fessional conduct." The majority holding of Bates is that truthful

advertising of fees for routine legal services may not

be restrained, and that restrictions prohibiting such advertising are violative of the First Amendment.

During the years just after the Bates decision,

many states that struggled to delineate and define "routine legal services" by statute or rule encountered

much difficulty because "routine" depended upon the eye of the beholder. In the case of In re R. M. J., 455

U.S. 191 (1982), the Supreme Court reversed a disciplinary holding against a Missouri lawyer that, among other things, found the lawyer had advertised

fields of specialty that did not comply with descrip- tions prescribed by the Missouri bar, and, also, had advertised his qualification to practice in other courts. The Court found the lawyers speech to be neither false or misleading, and nothing to justify a state

interest that would sustain an absolute prohibition.

Subsequently, Virginia amended its rules to prohibit only advertising by a lawyer that "contains a false, fraudulent, misleading, or deceptive statement or

claim." The significance of Bates goes far beyond its

limited holding. If some advertising by lawyers was to have First Amendment protection, then new looks

would be taken at solicitation and specialization in a First Amendment context. Shortly after Bates, the

Supreme Court, on the same day, handed down opin-

ions in Ohralik v. Ohio State Bar Association 436 U.S.

447 (1978) and In re Primus 436 U.S. 412 (1978). Ohralik held that in person solicitation for pecuniary gain, where there is a potential for overreaching, does

not have First Amendment protection, and the State has a legitimate interest in protecting the public by a prohibition.

Primus stated that "the State is free to fashion reasonable restrictions with respect to time, place and manner of solicitation by members of its Bar... but

held that an unsolicited letter by an ACLU lawyer,

(Primus) advising the recipient of her legal rights and asking to file a lawsuit on her behalf had First

Amendment protection under the doctrine of NAACP

v. Button, supra, the Court further observing that the

elements of pecuniary gain, misrepresentation, overreaching or invasion of privacy were not present.

The revised Virginia Rules of Professional Respon-

sibility now prohibit in-person solicitation that: 1) is false, fraudulent, misleading or deceptive; or 2) has a substantial potential or involves the use of coercion, duress, compulsion, intimidation, threats, unwarranted promises of benefits, overpersuasion, overreaching, or vexatious or harassing conduct, taking into account

certain subjective factors. In-person communication

is defined to mean face-to-face communication and telephonic communication. The new rule is silent regarding letters of solicitation.

Wherever state bar groups have adopted rules and procedures under which a lawyer may qualify to hold

himself or herself out as a specialist in a particular area of practice, rules will be required to prescribe the limitations to be placed upon publication of that fact. Protection of the public is balanced with the interest of the state in helping the public identify and locate lawyers with a special competency.

In addition to decisions involving commercial speech,

lawyers have challenged prohibitions of their own rights of free speech, particularly the right of counsel to comment publicly upon pending cases. The right of an attorney to speak out concerning pending litigation involves more than his or her right of free speech.

The Sixth and Fourteenth Amendments, mandating

a fair trial, must also be considered. Moreover, with the advent of television, new opportunities for adver-

tising and self aggrandizement are available for the lawyer interviewed during a trial.

In Chicago Council of Lawyers v. Bauer, 522 F 2d

242 (7th Cir 1975) cert. denied, 427 U.S. 912 (1976), the Seventh Circuit set aside, as unconsitutional, sections of the Code of Professional Responsibility that imposed general restrictions on the speech of lawyers about

their cases during litigation. The Fourth Circuit in Hirschkof v. Snead, 594 F 2d 356 (1979), a Virginia case, reached the same result, imposing a "reasonable likelihood" test of impairing a fair trial in criminal cases before a jury. The Seventh Circuit had developed a "serious and imminent threat" test in the Bauer case. Both circuit opinions held it unconstitu-

tional to prohibit comment by counsel during civil

trials. Subsequent to the Hirschkof decision, the rule in

Virginia was changed to only prohibit extra-judicial

statements during a criminal matter that may be tried by a jury. The new rule requires a "clear and

present danger" test for a reasonable person to expect an extra-judicial statement to interfere with a criminal jury tTial. Presumably, extra-judicial statements

by counsel during civil trials and criminal bench trials are .now allowed in Virginia.

Conclusion

The past quarter century is a period during which sweeping modifications have been made in the rules that govern how lawyers practice. The changes have mostly resulted from court decisions, many originat- ing in Virginia, where either the First Amendment or

the Sherman antitrust laws were invoked. These decisions set aside standards of behavior codified in court rules and backed by years of custom and usage. These

changes cut across traditional concepts of the lawyer- client relationships, as judges have invoked constitutional principles to provide access to the courts, to locate lawyers, and, under certain conditions, to permit lawyers to advertise, solicit clients, and comment

publicly while cases are pending. The antitrust statutes have been employed by consumer groups, often

with tacit government support, to reduce legal fees. It is difficult to ignore the public pressures that

have motivated movements for change in the way law is to be practiced. Lawyers should be aware that

the cumulative effect of recent rule changes is to open

widely the practice of law to commerci.al competition, and to create gray areas where the traditional view of law as a profession may be further imperiled. The

new standards raise new questions~ For instance, to

what extent are letters of solicitation, written for pecuniary gain, to be protected? To what extent are time, place and manner regulations.to be allowed and

enforced to restrict in person solicitation of clients? To

what extent will First Amendment pr.otection be given to statements regarding quality of service in lawyer advertising? To what extent will First Amend- ment protection be given to untruthful false or misleading extra-judicial public statements by counsel during civil litigation? How will lawyers behave, be

educated to behave and required to behave? At the risk of over generalization, one could con-

clude that changes resulting from the decisions we

have discussed have been at the expense of traditional concepts of professionalism. On the other hand, one might also conclude that the obdurate positions of organized bars have been inspired by protection of a licensed monopoly rather than protection of

the public. It is late to argue either thesis. The problem now is how does the legal profession remain a

profession? How does it do so in an increasingly competitive and commercial environment?

EDITOR’S NOTE: The foregoing article was originally prepared by Dean Spong as a background paper for The Virginia Bar Association Committee on Lawyer Profes-.. sionalism, Hugh Patterson, Chairman. Other materials developed in connection with this project will be appearing in subsequent issues of the Journal.

8

PAUL R. LEES-HALEY

Coping With Vocati snal Expert Testimony

A /-kTrORNEYS handling personal injury and workers’ compensation cases are confronted with a growing body of slipshod testimony by vocational experts. Professional groups (such as the American Board of

Vocational Experts, headquartered in Nashville) are making excellent efforts to improve standards in this field, but until they are successful in doing so, attorneys need instruction on how to cope with vocational

testimony. Use of a rebuttal witness is not the only

solution. One alternative is to have the records examined by a sophisticated expert, to learn of errors and omissions and to obtain an outline for your deposition. Another is to become more knowledgable about vocational evaluations and the ways attorneys are

overlooking opportunities to assure just decisions. This article will briefly outline the correct procedure

for performing vocational evaluations involving lost earnings. It will then identify common errors made

by attorneys for each step in the vocational evaluation procedure.

Who Performs Vocational Impairment Ratings,

and a Comment on Their Strengths and Limits

Most vocational expert opinions are rendered either

by psychologists or by graduates of vocational rehabilitation and counseling programs. A few are rendered by physicians, especially physiatrists. As a general rule of thumb, the vocational rehabilitation counselors have less education and more job place- ment experience than physicians and p~ychologists.

Psychologists have more in-depth awareness of rele-

vant testing procedures, and they have more scientific training. Physicians offer the most widely used expertise on physical impairment, and no useful

knowledge of scientific vocational testing or job

markets. In some uneducated communities, testimony by a physician still carries a feudal aura of

correctness regardless of its merits.

How Loss of Earning Capacity Should Be Calculated, and Where Attorneys

Ignore the Facts

In order to answer the fundamental question, "What is the life-time earnings loss of this individ-

ual?" certain data must be collected and correct procedures followed. These steps are: Step one--measuring the physical or mental injury. Step two--defining pre- and post-injury employ-

ablility. Step three--computing earnings impairment. Step four--calculating lifetime earnings loss.

Each of these steps poses unique prob.lems for attorneys, as outlined below.

Step one--measuring the mental or physical injury. The foundation of the earnings impairment evaluation is the opinion of either a physician or a licensed psychologist (or psychiatrist), depending on whether the injury is physical or psychological. The physician

or psychologist should state as clearly as possible what the plaintiff can no longer do, as a result of the

injury, that he could do before the injury, and how long the plaintiff will not be able to do these things.

Physicians are by far the most common source of

opinions about a person’s impairment. This article devotes equal space to psychological claims, which are less familiar to most attorneys, and which are a

more rapidly growing field of litigation. Examples of such psychological claims include post-traumatic

stress disorder, neuropsychological deficits, psycho-

logical injury, psychic trauma, anxiety reactions, phobias; and depression.

A psychologist’s impairment opinions are usually first encountered in a report which discusses psycho-

logical testing, interviews, the medical history, and a work history. A physician’s opinion may appear in the form of a letter expressing a general disability opinion or a checklist of opinions about lifting, bend- ing, etc. (a physicial capacities evaluation). A vocational rehabilitation counselor’s report typically re- fers tothe physician’s or psychologist’s opinion,

relates that opinion to the plaintiff’s viability in the

labor market, and concludes with a statement of the percentage of vocational impairment.

Cautions: A careful reading of their reports and their statements in depositions will reveal that many

of these experts (especially M.D.s) consistently gather only meager evidence about the plaintiffs prior func- tioning and prior disabilities. They rarely obtain out-

9

Paul Lees-Haley is a Board-certified vocational expert and a Licensed Psychologist with offices in Huntsville, Alabama. Dr. Lees-Haley has provided consulting services for IBM, AT&T, DEC, GE, the New York Times, Teledyne, Rock- well, the San Francisco Examiner, Kodak, Honey- well, Intergraph, S.C.I. Systems, the National Security Agency, the U.S. Army, municipal governments in several states, and 50 other

organizations and government agencies. He has served as an expert witness and litigation con-

sultant from coast to coast. He is the author of numerous articles for psychological journals and legal publications, the latter including For

the Defense, Trial Diplomacy Journal, Trial,

Case and Comment, New York State Bar Jour- nal, Colorado Lawyer, Alabama Lawyer, Wis-

consin Bar Bulletin, Workers" Compensation

Monthly, Belli Law Journal, Texas Bar Journal, Tennessee Bar Journal, Mississippi Lawyer, Res

Gestae, and other bar association journals.

side corroboration of the plaintiff’s self-report, and when they do, it is from interested parties--usually the immediate family. It is a rare expert who realistically assesses cause-and-effect issues in litigation; the norm is to make a thinly disguised assumption that

the litigated event did or did not cause the injuries, and not to probe further. On deposition, attorneys rou- tinely ask, "Doctor, could that injury have been caused by X?" But they seldom pursue in detail ques-

tions such as

10

¯ "What percentage of patients of the same age, race, and sex already have similiar conditions any- way?"

¯ "How many symptoms unrelated to this type injury did you ask about, to see if the plaintiff was

just endorsing most of the symptoms you mentioned, without regard to reality?"

¯ "How certain are you that this accident caused

this injury?"

¯ "What other causes would be equally valid alternative explanations for the origin of such an injury or

illness?" ¯ "Tell us in detail the evidence you used as the

basis for concluding that this accident caused this injury."

¯ "What training or continuing education have you had on detecting malingering?"

The blanket statement frequently seen in reports by physicians, vocational experts, and psychologists, that the "patient is totally disabled," is usually incor- rect and irrelevant. Surprisingly few vocational experts and psychologists, and almost no physicians, have studied the earnings impairment literature in detail-- not that this inhibits the expression of such opinions.

Their testimony quickly crumbles under a cross- examination prepared with the assistance of an expert who actually knows how these procedures

work. On deposition, if expert opinions are to be used to

establish earnings loss, they must be translated or phrased in relevant terms. The extent of medical and

psychological impairment associated with an injury does not accurately reflect the extent of loss of earn-

ings capacity. In fact, the extent of psychological and

physical-impairment and the earnings impairment may be radically different. For example, in one recent case a physician said the plaintiff had a 25% medical

impairment, and a vocational expert said he had 65% vocational impairment. On analyzing the data, we

discovered (and were able to demonstrate to the court) that his percent earnings impairment was at most 5%,

and very possibly 0%, depending on how one construed the plaintiffs evidence. In another case, the plaintiff

had a serious loss of earning capacity even though he

was currently making as much as he had prior to his injury.

Usual and customary practice in the context of litigation is to include an evaluation for malingering.

However, a review of vocational expert reports will demonstrate that the vast majority of efforts to detect

malingering are conducted superficially. Most experts fail to use the available technology and some do not

even address the issue. There is no research evidence whatsoever demonstrating that vocational counse-

lors and psychiatrists can reliably detect malingering. The only group with demonstrated scientific

techniques for detecting malingering is psychologists, and a study of their reports confirms that in general they too do a clearly inadequate job, primarily because most do not even bother to try. They appear at depositions with no more to offer than remarks like, "I did not think the plaintiff was malingering," "In my opinion, he was not exaggerat-

ing," or "The plaintiff seemed like a sincere person to me." Detailed examination of the procedures behind

such statements will quickly reveal that most experts do not even know how to evaluate for malingering. Medical malingering, psychological malingering, and vocational malingering all can be detected and proved.

Step two--Defining pre- and post-injury (residual)

employability. Using the findings from step one, the evaluator analyzes the relationship between the indi-

vidual’s residual capacities for work and the demands of the jobs available. After considering the work his-

tory of the individual, the psychological or medical

impairment opinions, and the results of ~sting, one determines the jobs for which the individual con-

tinues to be qualified. Cautions: (1) There are numerous jobs in the U.S.

economy, and most local economies, which can be

performed by individuals with serious impairments. Many require little or no training, no skills, and aver-

age or low average intelligence. It is rarer than most people suppose to meet someone who is genuinely totally and permanently disabled. The majority of disabled people go back to work after settlement. Experts often use the phrase "totally disabled" when

they mean that the plaintiff cannot work at a specific previous job or cannot do customary heavy work. (2) Disability is a relative condition, having to do with the individual’s ability to compete in the current labor market in a defined area. Usually a vocational expert will use the state, county, or a fifty mile radius of the

plaintiff’s locale as the relevant labor market. A fact no one ever mentions is that if the economy changes,

the disability changes. For example, if the job market tightens, the individual is more disabled. If a local industry arises with numerous sedentary positions (for example), the disability is lessened. If the plaintiff has a history of moving around the country to seek

work or for life style reasons, it is reasonable to use the national economy as the labor market--almost

invariably meaning that more jobs are available, and lowering the earnings impairment! (3) Most vocational experts treat older persons as inflexible, and rapidly assign total disability ratings on the grounds that (a) old dogs don’t learn new tricks and (b) employers don’t want them. Historically, this perhaps

was reasonable. In the modern economy, conditions

have changed drastically. The number of older people is greater than at any time in history. They are influencing who-is-hired and they want to continue working beyond traditional retirement ages (ages which, incidentally, were defined by Bismarck a century ago, when hardly anyone lived to retire). Now

companies are sponsoring programs to attract senior citizens to work. Help-wanted ads specifically solicit retired or older employees.

The testimony of a nonpsychologist vocational expert is almost invariably based upon a review of

medical records and an interview, with minimal, inadequately performed testing. Psychologists, as a result of their scientific training, do a far superior job

of testing (in comparison to psychiatrists, who do almost none, and nonpsychologist vocational experts,

who do simpler tests with inadequate training in the rationale of the tests they administer.) However, a

remarkable number of psychological vocational re ports contain errors in test administration and inter- pretation. Testing errors are so frequent that you

should never accept a report without having it reviewed by an independent expert.

Step three--Calculating earnings impairment. This is the moment one computes the answer to the ques-

tion, "How much was the earning power of this individual reduced?" Looking at the jobs the individual could perform pre- and post-injury, the earnings im-

pairment rating is developed. In essence, it is a ratio of the average wages of the jobs available to the individual after the injury and before.

Cautions: This procedure is not as simple as it sounds. Using the latest and best methods, surprising outcomes result. Sometimes an individual’s earning capacity appears to be greater after an injury than

before, because the injury reduces capacity to perform low paying jobs without affecting higher paying per- formance. Many judgment calls enter into these cal- culations. On the surface, this procedure sounds like mere arithmetic; in fact, conclusions are colored by

semantic issues. Real earnings loss is never purely the product of the

accident; it is also what the plaintiff makes of it. For example, a person’s motivation to work can control a surprising percentage of the loss. One day we evalu-

ated a man who said he couldn’t work at all because he hurt all the time, even at home when trying to rest. Later the same day we tested a woman with the same

injury, who was working. When we discussed her case

with her she said, "I hurt all the time, whether I’m at home or at work, so I might as well work."

Using current medical terminology and procedures,

as defined in the American Medical Association’s

11

Guides to the Evaluation of Permanent Impairment,

2nd Edition, a large percentage of the U.S. working population could sustain a substantial medical impairment rating without affecting their capacity to earn money. This fact is not widely known, but it is

easy to demonstrate and it directly addresses a key issue in litigation where earnings loss is important.

A common error is being buffaloed by "vocational

impairment" percentages as if they were percentages of reduction of earning power, which ’they most certainly are not. Vocational experts are blithely testify- ing about 70%, 80%, and 90% vocational impairment ratings and residual employability figures, without being challenged, despite the fact that these figures

are close to meaningless as a measurement of dollar damages.

Step four--calculating lifetime earnings loss. At this point, and not before, an economist’s opinion becomes meaningful. The economist can extrapolate the pre- and post-injury earnings capacity and the

difference between the two, build in various assump- tions, calculate the lifetime earnings loss, and calculate the net present value of that loss.

Cautions: Lazy or uninformed economists will ren- der opinions on flimsy data, such as W-2s. Many legal magazines contain ads which will give you good examples of economists offering budget rent-opinions on lifetime earnings loss, based on earnings history alone, without considering psychological and vocao tional factors. My favorite for 1986 is the Ph.D. econ-

omist who used W-2s as the basis for asserting that the boss’s non compos son had a lifetime earnings loss (net present value!) of four million dollars. Every

economist’s report is different. They use different dis- count rates, including zero. They make different as- sumptions about future growth in real earnings. They don’t all use the same life expectancy or worklife

expectancy tables. They make different claims about historical interest rates and inflation rates. They use

computer programs containing formulas they cannot explain. Not uncommonly they make programming and computation errors.

The bottom line is that the correct approach to evaluating earnings impairment is a scientific one which can be explained clearly to the court. Instead of meet-

ing this standard, attorneys are permitting serious

technical errors. These occur most often in one of two forms: (1) admitting the testimony of self-styled vocational experts who are using procedures which do not

pass the Frye test (Frye v. United States, 1923) of general acceptance in the field, or which are simply erroneous howlers from a technical point of view, and

(2) failing to solicit the appropriate testimony to con- firm or disconfirm the alleged loss. These errors are so

easily avoidable that they will be considered laugh- able mistakes, if not malpractice, as soon as they

become more generally recognized. The solutions are

to (1) become aware of these errors, (2) have vocational expert reports critiqued by an independent

expert, (3) obtain suggested deposition guidelines from an experienced witness, and (4) when necessary

and reasonable, use a rebuttal witness:

Terms to Know

Earnings impairment (also called reduced earnings

capacity, impaired earnings capacity, loss of earning capacity): An earnings impairment evaluation determines the loss of earning capacity resulting from an injury or illness. This rating must be calculated in order to obtain a valid lifetime earnings loss, including those offered by economists.

Medical impairment: A medical impairment rating is a percentage produced in accordance with proc~

dures outlined in references such as the Guides to the Evaluation of Permanent Impairment (published by

the American Medical Association Committee on Rating of Mental and Physical Impairment), or the Manual for Orthopaedic Surgeons in Evaluating Permanent Physical Impairment, published by the

American Academy of Orthopaedic Surgeons. This type of rating is the source of phrases like "15% to the body as a whole."

Vocational impairment (employability, residual employability): The number of jobs a person can perform after an injury or illness divided by the number he could p~rform before, times one hundred. Expressed

as a perdentage. Disability: A general term, in this context most

commonly applied to work activities which previously could be performed, but can no longer be handled as a result of an injury or illness. "Disability" is a word

with many faces, often confused with the terms above. It ranges from inability to perform a specific

profession (in certain insurance cases) to inability to perform any gainful employment at all (statutory use in social security cases).

REFERENCES

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Lees-Haley, P. (1985a) Detecting psychological malingerers.

Trial, 21(1), 68-69.

Lees-Haley, P. (1985b) Psychological personal injuries and

earnings loss. Case and Comment, July-August, 34-37.

12

BERNARD STERNIN

Choosing and Using a General Purpose Computer for Word Processing

WORD processing equipment has been in use now

for a good many years. Many law firms have one or more of these machines. Those who do, often report that they do not see how they could ever get along

without them. In the past most of these machines have been the so

called "dedicated" word processors: these were ma-

chines that were designed to do only word processing, and they did it well. Their keyboards were engraved with word processing terms, and the printed mate-

rials that came with them told the user in some detail how to do word processing on them.

Even though these "dedicated" word processors didn’t look like computers most users were aware of the fact that these machines were based on computer technology. Most users realized that the machines’ capacity to manipulate text was in some way an application of that technology, and that these machines were simply specialpurpose computers designed to do

word processing and word processing only. Within the last few years the cost of general pur-

pose microcomputers, like the now well known IBM- PC, has come down sharply. Consequently, many people are beginning to think about using them as word processors. What many have in mind is that

they will be able to use one of these machines not only for word processing but also for many of the other applications for which programs are being made

available. If you are one of the people thinking about using a

general purpose computer to do word processing, and if you have had little or no experience with computers this article should give you some idea of what you can

expect to find ahead of you. To make things more concrete some parts of the article are in terms of the IBM-PC. But what’s said here will apply to many

general purpose computers.

Computers are pieces of electronic equipment that work by carrying out various encoded instructions

called programs. If you were to buy one of the dedi-

cated special purpose computers mentioned above, the kind designed to do only word processing, it would come pre-programmed accordingly; consequently there

~ would not be too much you would have to do to get it

up and running as a word processor. In contrast, a general purpose computer is not pre-

programmed to do anything in particular. In fact, the only program that is built into the IBM-PC is a pro-

gram called "Cassette Basic." Without anything else, you can use the IBM-PC to enter and run programs in that particular version of Basic, and you can store those programs on cassettes. Most law offices will not

be interested in doing either. Since the IBM-PC and machines like it are general

purpose computers the instruction book that comes with it will be written accordingly, and will tell you about the PC as a general purpose computer. There will be a book called "Guide to Operations" that will

tell you about the machine as a piece of hardware. It

will describe how to install the machine, it will give you some general information about the machine’s keyboard, and it will tell you how to connect the machine to other optional pieces of equipment. Also, since the machine does have a version of the compu-

ter language called Basic built into it there will also be a book that covers that subject. These two books

are about all you can expect to get with any general purpose computer. Realistically, since you are buying a general purpose computer the vendor does not know

what purposes you are going to use it for. Hence, any further books will have to relate to specific applica-

tions. Most word processing application programs, like

many other kinds of application programs that microcomputers use, are currently supplied encoded on 5-~ inch disks. Similarly, these programs are designed to store their output on other 5-~A inch disks.

Consequently, most general purpose computers are currently being sold with disk drives built into them. However, the IBM-PC and most other general purpose computers do not come pre-programmed to work with disks, even though they may have one or more disk

drives built into them. To have one of these general purpose computers

work with disks you must load ina "disk operating

system." The disk operating system IBM uses is

called "MS-DOS" or, in the alternative, "PC-DOS" or just "DOS." The DOS disk operating system itself

13

Bernard Sternin is a graduate of Harvard

Law School and a member of the New York State Bar. Formerly the managing partner in a New York law firm, he now serves as a systems analyst and consultant in the fields of word processing and automated typing, particularly as related to law office practice. Mr. Sternin has

been a consultant and workshop leader on the subject of word processing for numerous companies and associations. He served in the Amer-

ican Bar Association as Chairman of the Com- mittee on Word Processing and Automated Draft- ing in the section on Economics of Law Practice and has lectured on the subject of word process-

ing and office management for many bar asso-

ciations.

comes on a disk. You have to buy that separately, in part because there are disk operating systems sold by other vendors that you could choose to load into the

computer, instead of MS-DOS. CP/M-86 is another disk operating system. So is Unix.

No matter which disk operating system you elect to

use, you must choose and learn to use some disk operating system. The disk operating system will control how you will work with disks: how you will format the

recording surface of new disks; how you will name, store and index the files you will put onto disks; how you will copy, rename and delete those files, and so on. In fact, the disk operating system will control just about every aspect of how your computer will work

both with the disks you buy and also with the disks

you will necessarily create for storage. When you buy a disk operating system you get a

disk operating system. A disk operating system is needed to support many different applications that

come on disks and that use disks, word processing

applications among them. But although the disk operating system will support many disk based applications, it does not do them. Further, when you buy

the disk that will have your disk operating system encoded on it you will get a book and perhaps some supplemental booklets with that disk. Those printed materials will tell you all that you will need to know

about your disk operating system. But these materials will tell you nothing about the various applications, like word processing, that you will want to have your

computer do.

In order to have the computer do any of the various applications that are available you’ll have to choose from among the various applications programs that are on the market, and buy its disks and supportive books. Since you are interested in having your com-

puter do word processing you will have to select from

among the dozens of word processing programs that are for sale. In making your selection you will have to be sure that the program you buy is one that will work

on the particular machine you own and with the particular disk operating system you have chosen.

All of these steps may seem to be a very roundabout way of doing word processing. Maybe so. But if you

choose a general purpose computer its manufacturer has to supply a machine that you will be able to use in a general way. You get a machine that is suitable for use as a word processor, but a machine that, by itself, is not a word processor. Similarly, your disk operating system will give you the versatility to enable you to deal with any number of different programs, word

processing and otherwise. You get a disk operating system that is suitable for use with word processing programs that use disks, and which will also support other programs you may obtain from a variety of

sources which will be furnished to you on disks. Further, the disk operating system will enable you to use other disks to store the materials that these programs will generate.

At this point you are probably wondering whether it’s worth-while trying to use a general purpose computer to do word processing. Why not just buy a dedicated, stand-alone word processor?

Well, perhaps you should. Certainly if you plan to

use the equipment entirely for word processing you ought to consider that possibility.

But a general purpose computer can do so much

more than just word processing. Hence, many of us

14

will want one. Every new application package that comes onto the market offers the owner of a general

purpose computer a whole new set of potential advan- tages. And these new application packages are being developed fast and furiously. Many of them will be ideally suited for much of your work, and if you own

and have learned to use a general purpose computer you will have the option of choosing from among

them. Using a general purpose computer for word process-

ing may be one of the best ways in which to get started learning how to use computers in general. If

you are ever going to use computers at all, you and your staff will have to get started by applying them to some application. In a law office it’s hard to see what

better one than word processing. Once you have suc- cessfully installed a computer-based word processing application your staff should find it much easier to go

on to the next computer application. One thing is sure: you can never have a second application if you

don’t have a first. Let’s assume that you have taken the plunge, and

that the office now owns: 1. a general purpose comput-

er, such as the IBM-PC, 2. a copy of a disk bperating system, like MS-DOS, and, 3, a word processing pro-

- gram chosen from among the many that are currently

on the market. Back at the office, your staff people will next have

the job of learning how to use these items. They are understandably likely to experience some rough sled- ding. They will have to learn something about the

machine as a piece of hardware. They will next have to learn the basics of using a disk operating system. Finally, they will have to tackle the job of learning the

word processing program itself. There are several steps you can undertake to help

make the installation easier. First on the list: have some one key person in your

office take some training in the use of computer-based word processing equipment before the machine arrives.

The use of a computer to do word processing is a new bag of tricks. As I’ve tried to point out here, the user has to know a little something about computers as machines, and also something about the computer’s disk operating system, such as MS-DOS, in order to tackle the word processing application itself. In the courses I offer I find that most of the people who

attend do so on their own initiative. Many more ought to be sent by the firms at which they are employed.

Second on the list.’, plan for blocks of time during which office personnel will be able to become familiar

with the books that the vendors have supplied. There

will be a minimum of three books: one for the

machine, a second for the disk operating system, a third for the word processing application. Much of

what these books contain will have been written

primarily as refe_.re._nce material, and not as training material. Hence, the text will contain everything

about whatever the book relates to, and much of the content will be arranged in alphabetical order. To

expect the staff to learn these materials is expectation

enough. But to exp.ect them to do so during office hours and while simultaneously producing all their regular work is unrealistic.

Third on the list: plan on having some key person

take some training in the use of equipment of the kind you have chosen after it’s been is use for a while. After

your key support staffer has acquired the understanding of the machine that can come only from using it,

additional training can really pay off. The bottom line is this: In all probability there will

have to be a computer in your office’s future. There is just too much that these machines can be made to do.

We’ve got to face up to that. Both professionals and office support personnel alike have got to become familiar with the technology.

The way I’d suggest you begin is by calling your local colleges and asking about their courses in com-

puter applications in general and in word processing in particular. Ask them specifically what equipment the training is given on, and look for courses that use general purpose computers as the machines on which

the word processing training is offered. Ask to be placed on the mailing list of those schools that offer appropriate courses. Then, plan on having one of

your key people attend on a regular, ongoing basis.

Continuing education in the ever growing area of computer technology will inevitably play an increas-

ingly important role in keeping the office productive and competitive. The person you select to obtain the training can then become the in-office trainer of oth-

ers and the nucleus for the office’s acquiring an ongoing understanding of computers and computer appli-

cations.

EDITOR’S NOTE: The foregoing article is also scheduled to appear in The Practical Lawyer this fall; it is offered here by mutual agreement between The Prac- tical Lawyer and The Journal. Mr. Sternin advises us that, upon request, he will provide readers with a list of the materials which he uses in his courses on computer applications, which may be helpful in any in- house training programs which Virginia firms may wish to undertake. Send a self-addressed, stamped envelope marked "Courses’: to Bernard Sternin, List 380, 5 Hawke Lane, Rockville Centre, NY 11570.

15

GARY L. BENGSTON

Medical Malpractice Cases: Things Are Not Always What They Seem

LAWYER Goodfellow was sitting in his office look-

ing at the files gathering dust on his desk wondering

when his "Big Case" would come along. In walked Mr. and Mrs. Frank Friendly who related the following:

"Dr. Clean put our 15-year-old son in the hospital for a routine appendectomy. Our boy was the star quarterback on the State Championship football team, a straight A student, and now he is dead."

"M " y, mused Lawyer Goodfellow. "Tell me more." "Our boy had a stomach ache for a week or so.

Finally it got so bad we took him to the emergency

room. Dr. Clean took out his appendix and told us it had ruptured. He said there was a whole lot of infection in there and he hoped he got it all. He operated on our son three more times. The boy just seemed to get

worse. After four weeks our son was almost dead when they transferred him to U. Va. He died two days

later. The doctor at U. Va. told us that Dr. Clean’s surgery was the worst job of butchery he had ever

seen." "The doctors at U. Va. told you what?" asked Good-

fellow, thinking to himself "I’ve heard it’s hard to get a doctor to testify against another."

"That’s right" continued Friendly, "Dr. Knife told me that the surgery here was the worst he had ever

seen." "Will he testify to that?"

"Well, he sure better, that’s what he told me." "Tell me more" said Goodfellow, trying to mask his

excitement. "I went by the hospital here in town and got my

boy’s records" said Friendly, producing a three-inch thick package of papers. "Cost me $75.00. We ought to

sue them too, charging like that." Goodfellow was computing 1/3 of one million dol-

lars to himself and said "I’ll take your case on a 1/3

contingent fee basis. We will see that justice is done."

Goodfellow immediately wrote Dr. Clean of his

representation and told Dr. Clean_t.h_at his negligence caused the death of Friendly’s son. The insurance

carrier told Goodfellow they needed more informa-

tion, so.Goodfellow sent them his medical records. He also told the adjustor that Dr. Knife was going to testify that Clean was the worst butcher he had ever

seen, and that he would settle for $1,000,000. The insurance company did not answer his letter.

Months later Goodfellow’s secretary came in. "Friendly called again. He seemed upset that you have not returned his phone calls. He said he thinks

the statute of limitations has run." Panic gripped Goodfellow. After five minutes of

frantic searching, they found the Friendly papers on top of the file cabinet, under four divorce files.

"No problem," said Goodfellow. "Call Friendly

back and tell him we have everything well in hand.

The statute of limitations doesn’t run until next week." Two days later Goodfellow filed suit.

At this point I think it is safe to say there is a

clearer case of professional negligence against Law- yer Goodfellow than there is against Dr. Clean.

We do great injustice to our profession by not being prepared,-or by filing suit in a case which is not meri-

torious. Not being prepared or filing suit on a case without merit occurs in medical negligence cases at an alarming rate. Even more frequently, Healthcare providers are accused of negligence before the attorney has all the facts.

What should Goodfellow or any lawyer have done

before filing notice of claim to determine whether the claim against Dr. Clean was meritorious? There are

three steps that should be taken in every case. They

are:

I. Get the complete medical records from both hospitals and all doctors.

2. Read and understand every word in every record.

3. Discuss the matter with a physician to get a medical point of view.

The third point is self-explanatory, but the first two items need some elaboration.

16

1. Get Complete Medical Records

A resident at a teaching hospital once told me

"That butcher is the worst excuse for a surgeon I have ever seen," yet at about two feet six inches into my

reading of the four feet of teaching hospital records, I

found a letter from the chief of surgery to my defend-

ant congratulating him on his "heroic efforts" and stating that "nothing more could have been done" to

help my client. Obviously, the lawyer must be willing to spend the time it takes to read every document in a

stack of records four feet thick. Not only the hospital records, but also any other

available medical records should be examined. I once reviewed the records of a woman with a nonunion broken leg, necrosis, gangrene and amputation. This should not occur with her type of fracture, and the

hospital records strongly suggested negligence on the part of the treating physician. The physician’s office notes, however, indicated that a few days after release

from the hospital the woman came into his office without the full leg cast. She had removed it two days

earlier so she could "itch my leg down there." Based on the hospital records, a good case of liability; yet the

doctor’s office records showed this claim to be without merit.

Obviously, the lawyer needs to know whether he or she has all the records which apply to the client.

Often, there are additional records maintained in a different part of the hospital which will not be sent to you without a specific request. You must know what

to look for. The Joint Commission on Accreditation of Hospitals explains what records must be kept.

Gary L. Bengston was awarded his B.A. degree from Southern Illinois University and received his J.D. degree from the University of

Chicago Law School. A substantial portion of Mr. Bengston’s practice consists of prosecuting medical negligence claims. He has received post graduate training in medical negligence law at Harvard and Yale Universities. Mr. Bengston is principal of the Gary L. Bengston P.C. Law

Firm in Danville, Virginia.

2. Read and Understand the Records

Medical records are often highly technical. This

places a great burden on the lawyer. For example, the attorney who reviews the records in a ruptured appendix case must know or be willing to find out what a lab report means when it mentions "anaerobic beta type," and must not be scared off by words such

as "Escherichia coli." Furthermore, the attorney must know or be willing to find out that tetracycline or cephalosporins are not the antibiotic of choice for

treatment of Escherichia coli and search the records for the reason the physician is treating with those antibiotics, e.g., the patient is allergic to penicillin.

When the doctor notes a "sepsis" in his progress

notes, the attorney has to know what this means, check the orders for blood work and sensitivity tests,

and know what "PLT 536" means when he sees it in the lab report. (Approximately 50% of patients with "unexpected" increase of platelet count are found to

have a malignancy. These lab values also exist in

acute infection.) The lawyer needs to understand why certain cul-

tures were ordered, and understand the results of sensitivity tests. Were the proper cultures ordered? What were the results? What do the results mean? It may be

that the lab does not have the capability to run an anaerobic beta type sensitivity test for cephalosporin.

It may be that the physician failed to order the sensitivity test. The lawyer must know this.

The lawyer needs to know or find out what is an

appropriate dosage for this antibiotic for this patient. The proper dose for a 25-year-old 200-pound man may

kill a five-year-old girl. The proper dose for a five-year-

old girl may be completely ineffective for a 25-year-old 200-pound man.

The lawyer needs to know or be willing to take the

time to learn that a ruptured appendix frequently

17

results in peritonitis, and it carries a high mortality rate. Regardless of the best efforts of the physician, people do die from a ruptured appendix. Yet, unless the lawyer is also negligent, he can not advise his client to forget his claim merely because of the high mortality rate until the lawyer has carefully reviewed what the physician has and should have done.

I am not suggesting that a lawyer should obtain a medical degree before undertaking medical malpractice cases. But the lawyer must be prepared to read and understand the medical records in the case.

Therefore unless the lawyer has in fact graduated from medical school, he needs to obtain a good medical dictionary and some basic medical textbooks, and he needs to read them carefully.

According to my time sheets, I spent 160.5 hours

reviewing the records of the last ten prospective medical negligence clients. Of the ten files I reviewed, I declined to represent nine. I spent seventeen hours reviewing the records before making the decision to take the one client I chose to represent. Time-

consuming, yes; but it is time well-spent when it ena- bles you to weed out unfounded cases.

When an attorney decides not to take a case, some care must be taken in conveying this to the client. When I decline to represent people, I write them and tell them to have another lawyer look at the records; that I am not a doctor and may have missed some-

thing; and that they have a specific time in which to make their claim or it will be lost. This is necessary for the protection of both the claimant and the attor-

ney. We as a profession have been historically suspect.

With the current "insurance crisis" our profession

and the entire tort system is under attack. We must

press the point that the only issue is who should bear the risk of loss? The innocent victim? The wrongdoer? Should the wrongdoer spread the risk throughout his industry by purchasing insurance? If so, is he willing to pay the cost? Should the risk be spread to society at large by having the government compensate the

victim? Our present tort system has worked well for over

one hundred years. There are those who wish to change the system because they no longer want to bear the risk of loss. We as individual practitioners fuel these accusations when we are not competent.

Finally, it is well to remember that we too are sub-

ject to being sued. On August 13, 1985, a jury in San Francisco returned a verdict against the Belli law firm for $5.11 million. The claim of negligence was

that the attorney failed to obtain and read pertinent medical records and missed a clear medical malprac-

tice claim. (Giesick v. Belli, Ashe, et. al., San Fran- cisco Superior Court #766-225).

The message is clear.

18

CBook CReview, i

Virginia Lawyers Practice Handbook: Appellate Prac-

tice: Virginia and Federal Courts. Committee on Continuing Legal Education of the Virginia Law Foundation (1986). 254 pages.

Appellate Practice: Virginia and Federal Courts

(1986) which is published by the Committee on Con- tinuing Legal Education of the Virginia Law Founda- tion should be carefully studied by every trial lawyer

in Virginia and should remain readily accessible to him or her for reference purposes. Although this loose- leaf handbook does not cover appeals frown district

courts and administrative agencies to circdit courts, all other types of judicial appeals are dealt with in detail. Chapter One by Professor Clark Williams is a

careful and concise survey of the statute law that has erected and d~fined the jurisdictions of the various

courts of the Commonwealth. Chapter Two deals with the perfecting of appeals to

the Court of Appeals of Virginia and to the Supreme Court of Virginia. In the first part of this chapter,

Lewis Booker and Jerry Slonaker discuss in detail the general principles of appellate practice discussing

among other things the necessity of making objec- tions, "protecting the record," and recognizing ap- pealable cases. The second part of this chapter goes

into the mechanics of appeals in the two levels of appellate courts. These distinguished practitioners

give numerous specific examples and helpful hints. Every point made in this chapter is supported by appropriate citations to statutes, rules of court, and

case authority, and the chapter concludes with an appendix that is a table of steps to be followed. This table gives the mechanical information and deadlines

for the various papers and briefs necessary for an appeal. In Chapter Three, Terrence Ney discusses appeals to the United States Court of Appeals for the

Fourth Circuit. The appendix to this chapter reprints the Local Rules and the Internal Operating Proce-

dures of the Fourth Circuit. Chapter Four by Daniel Hartnett of Accomack cov-

ers the original jurisdiction of the appellate courts of Virginia, the extraordinary writ of mandamus to

lower court judges to exercise their jurisdiction, and the writ of prohibition not to exceed their jurisdiction. These procedures are described in detail. (The discussion of interlocutory orders in equity is somewhat

duplicative of that in Chapter Two.) Federal practices as to mandamus and prohibition are also discussed with many helpful comments, but writs of habeas corpus are only briefly mentioned here being beyond the scope of this publication.

The first four chapters of this book discuss primarily the rules of law while the last three focus upon tactics and the strategies of appeals. William Poff

gives some excellent advice on the writing of appellate briefs. Chapter Six by Henry Fitzgerald is a leis-

urely and discursive piece on oral argument. In addi-

tion to being enjoyable reading, it is full of insight and sound advice. This chapter and the last one,

which is by Mr. Justice George M. Cochran and Judge Harrison L. Winter, urge upon the reader the impor- tance of the oral argument. The trend, which these

three gentlemen regret, is for more and more poor oral arguments to lead the judges to determine appeals more and more on the briefs alone. Judge Winter

points out that only 17% of the appeals in his court

that are fully briefed are followed by any oral argument. Part of the problem may be frivolous appeals of right by indigent criminals, but clearly a part is the uselessness of a poorly prepared oral presentation of

the points in issue. This book gives the specific reme- dies to anyone willing to apply them.

One readily agrees with the opinion of Mr. Poff on page 5-28: "If you cannot take the time to summarize the testimony in your own words, either associate counsel or abandon the appeal." ’ The thrust of this

entire book is that one should not cut corners in the practice of law; thus Mr. Poff’s words dould easily be

enlarged to include more. In another and broader context Mr. Poff might have said: "If you cannot take the

time to prepare something or anything, either asso-

ciate counsel or abandon it." A lot of time, effort, and experience has gone into

the compilation of this handbook. The citations to authority will aid considerably in research, and the

19

points of advice will protect the innocent practitioner from many a fatal trap. Here is a book that is well worth the time spent studying it, and its price will be quickly repaid.

--W. Hamilton Bryson

Virginia Administrative Law and Practice, 1986

Edition; Virginia Law Foundation, 1985.

For the lawyer practicing before any of Virginia’s governmental boards or agencies, the most impor-

tant tool in the arsenal is a road map. The attorney must know where to go, know how to find informa-

tion, and learn the relationship between the sub-

stantive and procedural law. The 1986 Edition of the Virginia Lawyers Practice Handbook, Virginia Ad-

ministrative Law and Practice (Virginia Law Foun- dation, 1985) provides an excellent road map for

practice before seventeen Virginia boards, agencies and commissions. As such, it is a necessary addition

to the library of the Virginia lawyer who practices before administrative bodies. Editors Amy R. Tem- pleton of Washington, D.C. and David F. Peters of Richmond have compiled the only treatise on the practice of Virginia Administrative Law. But the Handbook goes further. It provides the practitioner

with invaluable insight as to the rulemaking and

adjudicative processes of state agencies, as well as the theoretical and philosophical underpinnings of regulation.

This is the second edition of the Handbook. The first edition was published in December 1980 and supplemented in March 1983. The publishing of the second edition came at a perfect time. First, it coincided with the successful Continuing Legal Educa- tion program held in December 1985 entitled "Vir-

ginia Administrative Process Act: Making It Work for Your Clients." Second, it coincided with the pas-

sage of legislation by the 1986 session of the General Assembly amending the Virginia Administrative Process Act, pursuant to recommendations from the Regulatory Reform Board chaired by Delegate Ralph

(Bill) Axselle (Henrico). The Handbook is divided into nine chapters,

including an informative overview of Administra-

tive practice written by Richmond attorney Robert T. Adams. The chapters are compiled by attorneys who regularly practice before the following agencies: State Corporation Commission, Industrial Commission, Alcoholic Beverage Control Board,

20

State Air Pollution Control Board, State Water Con: trol Board, State Board for Contractors, State Department of Health (regulation of hazardous and solid waste), and Department of Health Regulatory

Boards. The final chapter includes information related to practice before the boards of Dentistry, Funeral Directors and Embalmers, Nursing, Op- tometry, Pharmacy, Veterinary Medicine, Behav-

ioral Science Professions (Professional Counselors, Psychology and Social Work) and Medicine.

For each chapter, authors provide the bases for regulation, the duties and powers of the agencies, and the regulatory scheme of the agencies. The latter observations are invaluable for the attorney who

must attack the promulgation of a regulation or the manner in which an agency applies a regulation. Rules for practice before the State Corporation

Commission~ Industrial Commission, Alcoholic Bev- erage Control Board and State Board for Contrac- tors are published as appendices. Of particular value to the young attorney is the step by step approach to

conducting a Worker’s Compensation claim in the Industrial Commission provided by Lawrence J.

Pascal of Alexandria. Forms and case and Code citations are provided to allow the practitioner easy

access to more detailed analysis of the law. Larry E. Gilman of Richmond provides practical advice to

attorneys who, for example, must tailor restrictions for an Alcoholic Beverage Control licensee to locate near schools or churches. Among other things, Richard D. Gary,. Donald G. Owens and William F.

Schutt, of Richmond, and H. Allen Glover of Roa- noke provide invaluable insights into the most important aspect of practicing before the State Cor- poration Commission, where to locate assistance and information: In their chapter discussing the

State Air Pollution Control Board, authors James M. Rinaca of Richmond and Amy R. Templeton provide valuable forms for obtaining publications, press releases, proposed and final regulations, and notices of hearings or meetings.

The authors of the Handbook direct ~he practicing

attorney to be alert to changes that are inevitable in

this evolving and dynamic area of the law. This admonishment became important immediately, for

as soon as the Handbook was published, the Virgin- ia Alcoholic Beverage Control Board promulgated

Order No. A-246, effective December 12, 1985, drastically altering the Board’s Rules of Practice. In view of the continuous evolution of the body of Adminis-

trative Law, it is hoped that the publishers of Virgin-

ia Administrative Law and Practice, 2nd Edition (1986) provide yearly updates to the Handbook. Even without these supplements, the Handbook is

an invaluable addition to the bookshelf of the attorney who practices in any area of administrative law.

--Eric M. Page

Virginia Domestic Relations Handbook, Margaret

F. Brinig and David Meade White, The Michie

Co., 1985.

The Michie Company has recently published a new entry in its long line of publications in the field

of Virginia domestic relations law. Those who have

relied upon the works of Prof. Arthur Phelps and others in the past will find this new volume to be of

great interest.

Authored by Professor Margaret Brinig of George Mason University School of Law and Judge David Meade White, the Virginia Domestic Relations

Handbook is noteworthy for two reasons. First of

all, it brings the domestic relations practitio.ner up to date with recent cases and statutory changes affecting the tradtional areas of concern in domestic cases. In addition, the book provides the user with coverage of problems which have arisen, or at least

become more apparent, only recently. The introduc-

tion states:

Since the last edition of Phelps’ treatise,

domestic relations practice has changed dramatically. No-fault divorce is no longer newsworthy, and the most difficult legal problems frequently lie in the area of the financial dissolution of the marriage... with equitable distribution of property now

available in Virginia, many factors that

would not have been ~relevant where no

alimony or custody~ was sought are now

subject to discovery. Increasing emphasis is being placed upon alternative methods of dispute resolution, and more and more family matters ara being resolved in advance by carefully drafted agreements between

the parties...Virginia has abolished

interspousal immunity, and has engrafted

many exceptions onto the rule prohibiting suits between parent and child. Although there are no longer... "heartbalm actions,"

a cause of action is available for parents

who have emotional distress as the result of being deprived of...custddy or visitation

with their children. Increasingly...parent and child [and] husband and wife are being granted court recognition of their individual rights.

With these developments in mind, Professor Brinig and Judge White have joined forces to produce a

work which will help the practitioner in dealing with these new, or newly-emphasized, problems. The book includes chapters on such familiar subjects as ante-

nuptial contracts, divorce, annulment, separate

maintenance, child custody, spousal and child support, and property distribution. Other chapters deal with spousal torts and crimes, torts involving parent

and child, adoption, and parental duties. The changes in the marital habits and mores of Virgi- nia’s citizens are also reflected in the chapters dealing with contracts between unmarried cohabitants, and matters affecting unmarried parents and their

children. The book includes an appendix which sets forth

twenty-one forms of the type most commonly used in domestic relations cases today, a feature which will

be particularly helpful to newer practitioners, and of great interest to experienced attorneys as well.

--C.E.F.

21

Portraits of Judges of the Court of Appeals of Virginia Presented During Summer Meeting

Chief Judge Lawrence L. Koontz, Jr., on behalf of the Court, accepts the formal presentation of his portrait

from Edmund L. Walton, Jr., President of The Virginia Bar Association. Portraits of Judges Joseph E. Baker,

Bernard G. Barrow, James W. Benton, Jr., S. W. Coleman, III, Charles H. Duff, William H. Hodges, Barbara M.

Keenan, Norman K. Moon and Marvin F. Cole were presented to the Court, all of whom were present.

22

a ~ls,so¢~atlo~

~roceedings

The Summer Meeting .................... 24

Tournament Results ’ 27

Announcements ......................... 28

Sponsors ........ : ...................... 30

Patrons ................................. 31

YLS Chairman’s Report ................. 33

Memorials .............................. 37

The Summer Meeting

The Homestead in Hot Springs, Virginia, was the

scene of the 96th Summer Meeting of The Virginia Bar Association, July 17-20. Black-tie social events, lively tournament competition and considerable free time complimented the resort’s relaxed atmosphere.

But it wasn’t all play and no work. Two panel presentations on "Racketeers, RICO and Lawyers" and

"The Liability Crisis: Real or Contrived?" sparked friendly, informative discussion among panel mem-

bers to the delight of the association members attending the sessions¯

The Friday morning "RICO" panel focused on organized crime in Virginia and the nation. The Honorable Claude M. Hilton, Judge, United States District Court for the Eastern District of Virginia,

moderated. Panel members included: G. Robert Bla- key, Professor of Law at the University of Notre

Dame School of Law; David Margolis, Esquire, Chief of the. Organized Crime and Racketeering Section of the U.S. Department of Justice; Eugene H. Methvin,

member of the President’s Commission on Organized Crime; and Colonel Robert L. Suthard, Superintend- ent of the Virginia State Police.

Cocaine trafficking and the movement of drugs by organized crime are growing threats in the state, according to Colonel Suthard. He stressed that Virgin- ia is in better shape than most states but organized crime and narcotics cannot be overlooked by law enforcement officials or the judicial system. Suthard said that traditional organized crime groups have

been active in Virginia for over 20 years. Methvin, a senior editor for Reader’s Digest maga-

zine, told the audience that a bill now before Congress

would eliminate a powerful weapon against mob corruption in businesses and unions. Mr. Methvin noted

that the bill would requir~e that a criminal conviction precede any civil suit/filed under the chief federal

anti-racketeering.law. RICO (the Racketeer-Influenced and Corrupt Organizations Act) provides criminal and civil sanctions against mob corruption.

A highlight of Friday night’s banquet was the key- note address by Governor Gerald L. Baliles. He chal-

lenged Association members to take the lead in help-

ing reform the nation’s tort laws. The Governor proposed that punitive damages be paid into the

state’s Literary Fund to help educate Virginia’s citi-

zens. In addition, he focused attention on the trans- portation needs of the Commonwealth. A special ses-

24

sion of the General Assembly will meet in September to act on a major highway construction and transpor- tation improvement program. Governor Baliles be-

lieves it is the state’s most vital issue because it is crucial to the continued growth of Virginia’s econ-

omy.

For many years the Association has presented portraits of the justices of the Supreme Court of Virginia. This year, during the banquet, The Virginia Bar Association presented portraits to the judges of the new Virginia Court of Appeals. These photographic portraits will hang in the court’s facilities in the Supreme Court Building in Richmond. All the judges of the Court of Appeals of Virginia were present at the banquet: Chief Judge Lawrence L. Koontz, Jr., and

Judges Joseph E. Baker, Bernard G. Barrow, James

W. Benton, Jr., S. W. Coleman, III, Charles H. Duff, William H. Hodges, Barbara M. Keenan, Norman K.

Moon and Marvin F. Cole. Supreme Court Justices attending the dinner were George H. Cochran,. Roscoe

B. Stephenson, Jr., Charles S. Russell and Thomas C.

Gordon, Jr.. Saturday morning’s panel on the American tort

system included: The Honorable Jim R. Carrigan, Judge of the U.S. District Court for the District of

Colorado, serving as moderator; Ernest B. Lageson,

Preside.nt, Defense Research Institute, Inc.; Jeffrey O’Connell, Professor of Law at the University of Vir- ginia School of Law; Alan A. Parker, Director of Pub~

lic Affairs, American Trial Lawyers Association; and

Douglas A. Riggs, General Counsel, U.S. Department of Commerce. Panel members participated in a lively, thought-provoking debate on the controversy sur- rounding tort reform in the United States.

The panel members reached no consensus after the three-hour discussion, but raised numerous questions

for the Association to consider. Four comments from panel members point out the extent of diverse opinions on this complex topic: "The jury system is now out of balance. It has become too easy for too many to

recover too much." "No system is perfect. But this lawsuit ’crisis’ is phony but the insurance crisis is real." "There is no such thing as a risk-free society.

Someone has to pay." And finally, "Tinkering with the present system could result in over-reform."

Other program events included the Executive Com- mittee meeting, the YLS Executive Council meeting,

Association committee meetings and the traditional

Past Presidents’ Breakfast. Rdceptions each evening were sponsored by Lawyers Title Insurance Com-

pany, CSX Corporation; Norfolk Southern Corpora-

tion; Richmond, Fredericksburg and Potomac Railroad Company; and the Michie Company. The Young Lawyers Section Reception was courtesy of Johnson and Higgins of Virginia. Music for the dance on Sat- urday night was by Motown Review, a lively 1960’s and 70’s revival. The dance was sponsored by Pan-

dick, Inc. The annual tournaments in tennis, golf,

skeet and bridge were sponsored by LOPC Joyce, Inc. Tournament results follow this report.

In short, the correct ingredients were blended together for a su~-c~sful Summer Meeting. The An-

nual Meeting, January 9-11, 1987, in Williamsburg will spotlight the beginning of the 200th anniversary

of the U.S. Constitution and Virginia’s crucial role in the birth of a nation. Mark your calendars!

--Tedde Thompson

VBA TOURNAMENT RESULTS

Summer Meeting July 17-20, 1986

THE HOMESTEAD

TENNIS Men’s Championship

Winners: William G. Hancock and George P. Whitley Finalists: Waller H. Horsley and Randolph B. Chiches-

ter

Senior Men’s Winners: A. Hugo Blankingship, Jr. and John S.

Shannon Finalists: Fred C. Alexander and Urchie B. Ellis

Men’s "A" Winners: J. Robet McAllister, III and John V. Little Finalists: Robe~ D. Seabolt and Edward E. Scher

Men’s "B" Winners: D. French Slaughter, III and Blake Hurt Finalists: David W. Pratt and John J. Beardsworth, Jr.

Women’s Championship Winners: Sallie Blankingship and Barbara Walton Finalists: Libba Lemons and Betty Shannon

Women’s "A" Winners: Sallie Sims and Jeannie Baliles Finalists: Joyce Ellis and Susan Goode

Women’s "S" Winners: Joanne Palmore and Connie Moore Finalists: Marcie Sims and Winship Tower

¯ Mixed Championship

Winners: Debbie and James G. Steiger Finalists: William G. Hancock and Susan C. Arm-

strong

Mixed "A" Winners: Libba and Philip H. Lemons Finalists: Barbara and Edmund L. Walton, Jr.

Mixed "B" Winners: Tessa and Grant E. Moi-ris Finalists: Beth and Claud v. S. Eley

GOLF

Men

St. Men’s 18-Hole Low Net: Alexander W. Neal, Jr. Sr. Men’s 18-Hole Low Gross: John S. Battle, Jr.

36-Hole Low Net: 1st Place: Wyatt W. Wall, Jr. 2nd Place: David H. Ibbeken

36-Hole Low Gross: 1st Place: 2nd Place:

18-Hole Low Net: 18-Hole Low Gross:

18-Hole Low Net: 18-Hole Low Gross:

Closest to the Hole: Longest Drive:

John L. Gregory, III M. Kevin McCusty

Lawrence E. Marshall, II Henry C. Wolf

Ladies

Lou Suthard Bridget Keeney

W. Gibson Harris l~rank L. Summers, Jr.

SKEET

Men

Championship Flight Winner: Courtland L. T~aver Championship Flight Runner-Up: David W. Pratt

Class A. Winner: Albert M. Orgain, IV Class A. Runner-Up: William P. Stallsmith

Ladies Championship Flight Winner: Judy Anderson Class A Winner: Jane Cutchins

TRAP

Men

Championship Flight Winner: R. Reid Young, III Championship Flight Runner-Up: Lewis M. Costello

Class A. Winner: Temple W. Cabell Class A. Runner-Up: George M. Foote, Jr.

Ladies Championship Flight Winner: Jan Orgain Class A Winner: Cindy Gill

BRIDGE Winner: Joy Costello Runner-Up: Linda Swift

ROAD RACE

Fastest Time: Fastest Adjusted Time:

Fastest Time: ~ Fastest Adjusted Time:

Men

Russell V. Palmore (18.50) Dr. Andy Thomson

Ladies Sally Abreu (19.40) Sue Chapman

27

Announcements

Edward S. Hirschler Appointed Chairman of Conference

of Lawyers and Realtors Edward S. Hirschler, of counsel to the Richmond

law firm of Hirschler, Fleischler, Weinberg, Cox & Allen, and a Life Member and Patron of The Virginia

Bar Association, has been appointed American Bar

Association co-chairman of the National Conference of Lawyers and Realtors.

The conference, co-sponsored by the National

Association of Realtors, is one of nine ABA conference groups designed to provide a forum for discussion of issues of mutual concern and interest among members of different professions.

Hirschler was appointed by incoming AB~ Presi-

dent Eugene C. Thomas of Boise, Idaho, effective at

the close of the 1986 ABA Annual Meeting in New York City.

Hirschler served as chairman of the ABA Section of Real Property, Probate and Trust Law in 1979-80, and prior to that chaired several section committees.

He was president of the American College of Real

Estate Lawyers in 1982-83 and chairman of the Anglo

American Real Property Institute in 1984-85. Addi- tionally, Hirschler was a Regent of the American Col- lege of Probate Counsel from 1980 to 1983.

In May, 1985, the Jewish Community Federation of Richmond gave Hirschler its Distinguished Service

Award. Hirschler earned his undergraduate and law degrees

from the University of Virginia in Charlottesville in 1935 and 1938, respectively.

VTLA Elects New Officers The Virginia Trial Lawyers Association recently

elected officers and members of its Board of Gover- nors for the 1986-1987 term. Elected were the following:

President: Robert T. Hall, Hall, Surovell, Jackson & Coalten, Fairfax.

President-Elect: Robert W. Mar~n;~Young, Haskins, Mann, Gregory & Young, Ma~tinsville.

Vice-President: Roger W. Mullins, Mullins & Hender-

son, Tazewell.

Vice-President: Michael J. Blachman, Bangel, Ban- gel & Bangel, Portsmouth

Vice-President: Walter H. Emroch, Emroch & Assoc., Richmond.

Vice-President: Thomas W. Albro, Smith, Taggart,

Gibson & Albro, Charlottesville.

Parliamentarian: Paul Whitehead, Sr., Paul White- head & Assoc., Lynchburg.

YTLS Section Chairman: C. Randall Lowe, Yeary, Tate & Lowe, Abingdon.

At-Large Members: Edward W. Taylor, Taylor &

Schockemoehl, Richmond; William A. Julias, Ju- lias, Blatt & Blatt, Harrisonburg; Morris H. Fine, Fine, Fine, Legum & Fine, Virginia Beach; John P.

Ellis, Schwartz & Ellis, Arlington; Joseph R. John- son, Johnson & Cunningham, Lynchburg; Tho-

mas W. Williamson, Emroch & Williamson, Rich- mond; Jeffrey A. Breit, Breit, Rutter & Montagna, Norfolk; Mary Lyn Tate, Yeary, Tate & Lowe,

Abingdon; George E. Allen, III, Allen, Allen, Allen

& Allen, Richmond; David R. Rosenfeld, Rosenfeld

& Wohltman, Alexandria.

District Governors

One: Robert R. Hatten, Patten, Wornom & Watkins, Newport News.

Two: Barry Kantor, Christie, Held, Kantor, Spanoulis

& Christie, Virginia Beach.

Three: Alfred S. Bryant, Obenshain, Hinnant, Elly- son, Runkle & Bryant, Richmond.

Four: Richard E. Railey, Jr., Railey & Railey, Court-

land.

Five: Fred D. Smith, Hartley & Smith, PC, Martins-

ville.

Six: P. Brent Brown,.Roanoke.

Seven: Bruce R. Williamson, Jr., White & Williamson, PC, Charlottesville.

Eight: Bernard DiMuro, Hirschkop & Grad, PC,

Alexandria.

Nine: Gerald L. Gray, Clintwood.

Ten: Joanne F. Alper, Cohen, Gettings, Alper & Dun- ham, Arlington.

28

American Board of Trial Advocates Charters Virginia Chapter

A Virginia Chapter of the American Board of Trial

Advocates was chartered on October 1, 1985. Charter Members of the new chapter include the following attorneys:

James A. Baber, III, Cary L. Branch, William R. Cogar, Frank N. Cowan, R. Harvey Chappell, Jr., Emanuel Emroch, Henry H. McVey, III, G. Kenneth

Miller, James W. Morris, III, Philip B. Morris, Ros~ well Page, III, James C. Roberts, Joseph M. Spivey,

III. The following officers were elected: President,

Emanuel Emroch; Vice-President, G. Kenneth Miller; Secretary/Treasurer, Cary L. Branch; National Exec- utive Representative, Joseph M. Spivey, III.

A.B.O.T.A. is an organization whose membership is by invitation only and is limited to top trial lawyers from the plaintiff and defense bar who are actually engaged in jury litigation and who can meet the qualification requirements. The general purposes of A.B.O.T.A. are to foster improvement in thd ethical

and technical standards of practice in the field of

advocacy to the end that individual litigants may receive more effective representation and the general

public be benefitted by more efficient administration of justice.

In order to be elected an Associate, an attorney

must have tried twenty jury cases.to a conclusion. In order to be elected an Advocate, an attorney must have tried fifty jury cases to a conclusion. To be advanced to Diplomate, an attorney must have tried one hundred jury cases to a conclusion.

A.B.O.T.A. has 2,100 members with chapters and/or

members-at-large in 49 states.

Chappell Installed as President of American College of Trial Lawyers

R. Harvey Chappell, Jr., of Richmond, long-time

Association member and Patron, has been installed as President of the American College of Trial Law- yers. Chappell assumed his office as the 36th Presi-

dent of the 4,000 member group at its Annual Meeting in New York City on August 9, 1986.

Mr. Chappell is a Partner in the Richmond, Virgin- ia law firm of Christian, Barton, Epps, Brent &

Chappell. He received his B.A. Degree from the Col- lege of.William aKd Mary where he was a Phi Beta

Kappa and his Bachelor of Civil Law from the Col- lege of William and Mary where he was also Editor of

the Law Review. The new President has served as a member of the

American College of Trial Lawyers Board of Regents

and has held the offices of Secretary, Treasurer and President-Elect. The American College of Trial Lawy- ers was founded in 1950 as a national .honorary

organization, open, by invitation, to outstanding trial lawyers with more than 15 years of trial experience.

Membership is limited to 1% of the practicing attorneys in each state or in Canada, each province.

Mr. Chappell has served as Chairman of the Stand-

ing Committee on the Judiciary of the ABA and has

also been President of the Bar Association of the Vir- ginia State Bar. He also served as a member of the

Board of Governors of the American Bar Association. His wife Ann and their son Robert reside in Rich-

mond, Virginia.

Association to Have Monthly Page in New Lawyer’s Publication

The Virginia Bar Association has reached an

agreement with the Virginia Lawyers Weekly, a legal newspaper which has recently .begun publication in the Commonwealth, whereby the Association will have a full page each month in the newspaper. The

page will feature news articles, announcements, pic-

tures, and othe~ material about the Association, and will appear in the first week of each succeeding

month. The Association’s Executive Director, Joan S. Mahan, hopes by this means to publicize the work of Association committees and enhance the public image

of the Association. Further information may be ob- tained through the Association office or from the Vir- ginia Lawyers Weekly, 1205 E. Main St. Richmond, Virginia 23219, 804-783~)770 or toll free, 800-523-1112.

29

The Executive Committee and the Membership Committee thank

these firms for their strong support of the Association.

Adams, Porter & Radigan ........ Arlington

Bagwell, Bagwell & Bagwell ....... Halifax

Bank of Virginia ................ Richmond

Beale, Eichner, Wright, Denton and Balfour, P.C ................ Richmond

Bersch & Rhodes, P.C ........ ~ ..... Roanoke

Blankingship & Keith .............. Faiffax

Boothe, Prichard & Dudley ......... McLean

Breit, Rutter & Montagna .......... Norfolk

Browder, Russell, Morris & Butcher . ............. Richmond

Christian, Barton, Epps, Brent & Chappell .................... Richmond

Clement & Wheatley .............. Danville

Dodson, Pence, Viar, Young & Woodrum .............. Roanoke

Florance, Gordon and Brown ..... Richmond

Gentry, Locke, Rakes & Moore ..... Roanoke

Glenn, Flippin, Feldmann & Darby .............. Roanoke

Hall, Monahan, Engle, Mahan & Mitchell ............ Winchester

Heilig, McKenry, Frairn and Lollar ....................... Norfolk

Hirschler, Fleischer, Weinberg, Cox & Allen ................... Richmond

Hunton & Williams .............. Richmond

Kaufman & Canoles ............... Norfolk

Mackall, Mackall, Walker & Silver ......................... Fairfax

MacKinlay & ~hlbert, P.C ........... Norfolk

Maloney, Yeatts & Barr, P.C ....... Richmond

Mays & Valentine ............... Richmond

McGuire, Woods & Battle ......... Richmond

Mezzullo, McCandlish & Framme .................... Richmond

Nelson, McPherson, Summers & Santos ............. Staunton

Norfolk Southern Corporation ...... Norfolk

Obenshain, Hinnant, Ellyson, Runkle & Bryant .............. Richmond

Outland, Gray, O’Keefe & Hubbard .......... Chesapeake

Outten, Barrett, Burr & Stanley ... Emporia

Penn, Stuart, Eskridge, & Jones .. Abingdon

Plunkett & Logan ................. Roanoke

Press, Fenderson, Culler, Jones, Waechter & Stoneburner, P.C .... Richmond

Richmond, Fredericl~sburg & Potomac Railroad Company ............ Richmond

Roberts & Ashby ........... Fredericksburg

Ryland and Davis, P.C ............. Warsaw

Timberlake, Smith, Thomas & Moses, P.C ........... Staunton

Vandev’enter, Black, Meredith & Martin ............... Norfolk

Walton & Adams .................. McLean

Wetherington & Melchionna ....... Roanoke

Wharton, Aldhizer & Weaver .. Harrisonburg

White, Elliot & Bundy ............ Abingdon

Willcox & Savage, P.C .............. Norfolk

Williams, Mullen & Christian, P.C ............... Richmond

Williams, Worrell, Kelly & Greer, P.C ........................ Norfolk

Woods, Rogers & Hazlegrove ...... Roanoke

Wornom and Sharrett ............. Emporia

Young, Haskins, Mann, Gregory & Young ............ Martinsville

30

1986 Patrons- Harold W. Adams ......... i ...... Richmond

Philip J; Bagley, III .............. Richmond

John W. Bates, III ............... Richmond

John S. Battle, Jr. ................ Richmond

A. Hugo Blankingship, Jr. .......... Fairfax

F. O. Blechman ............. Newport News

Marvin C. Bowling, Jr. ........... Richmond

Evans B. Brasfield ............... Richmond

A. J. Brent ..................... :Richmond

Thomas C. Brown, Jr. .............. McLean

Robert L. Burrus, Jr. ............. Richmond

M. Caldwell Butler ................ Roanoke

Royal E. Cabell, Jr. .............. Richmond

Archibald A. Campbell .......... Wytheville

Daniel A. Carrell ................ Richmond

Joseph C. Carter, Jr. ............. Richmond

R. H. Catlett, Jr. ................. Richmond

R. Harvey Chappell, Jr. .......... Richmond

John M. Cloud ...................... Norfolk

George M. Cochran ............... Staunton

Michael McHale Collins ......... Covington

C. Lacey Compton, Jr. .......... Woodbridge

Robert A. Cox, Jr. ................ Richmond

James S. Cremins ............... Richmond

Francis N. Crenshaw .............. Norfolk

Clifford A. Cutchins, IV .......... Richmond

John N. Dalton ................ ’.. Richmond Arthur Beverly Davies, III ...... Lynchburg

Collins Denny, III ............... Richmond

Mark Stanley Dray .............. Richmond

E. Waller Dudley ................ Alexandria

Kathleen DuVal ................. Richmond

Horace H. Edwards .............. Richmond

A. C. Epps ....................... Richmond

¯ William W. Eskridge ............. Abingdon

Bernard M. Fagelson ........... Alexandria

George M. Foote, Jr. ................ Fairfax

William A. Forrest, Jr. ........... Richmond

Calvin W. Fowler ................. Danville

Paul D. Fraim ..................... Norfolk Harry Frazier, III ................ Richmond

Martin A. Gannon .............. Alexandria Richard D. Gary ................. Richmond Vernon M. Geddy, J~ ......... Williamsburg Allen C. Goolsby, III ............. Richmond George G. Grattan, IV ...... Charlottesville Frederick T. Gray .................. Chester

Jack E. Greet ...................... Norfolk Kossen Gregory .................. Roanoke George H. Gromel, Jr. ............. Richmond Virginia H. Hackney ............. Richmond

Franklin P. Hall ................. Richmond

William Glenn Hancock .......... Richmond Grayson P. Hanes ................. Fairfax

William B. Hanes ................. Leesburg

James A. Harper, Jr. ............. Richmond

W. Gibson Harris ................ Richmond

Luther A. Harthun ............... Richmond

John T. Hazel, Jr. .................. Fairfax George H. Heilig, Jr. ............... Norfolk

Edward S. Hirschler ............. Richmond Waller H. Horsley ................ Richmond Joseph A. Howell, Jr. ............. Richmond

F. Claiborne Johnston, Jr. ........ Richmond

James P. Jones ..................... Bristol L. Anthony Joseph, Jr. ........... Richmond John F. Kay, Jr. .................. Richmond Douglas W. Kielkopf .............. Roanoke

Michael E. Kris ........... Washington, D.C.

J. Sloan Kuykendall ............ Winchester

Thomas T. Lawson ........... ̄ .... Roanoke

William J. Lemon ................. Roanoke

J. Dean Lewis ..................... Stafford

Richard H. Lewis .................. Fairfax

George B.Little .................. Richmond

Charles M. Lollar .................. Norfolk

Robert W. Mann ............... Martinsville

Michael W. Maupin .............. Richmond

31

1986 Patrons Daniel J. Meador ........... Charlottesville J. Robert McAllister, III .......... Arlington Burke F. McCahill ................ Leesburg Howard C. McElroy .............. Abingdon James R. McKenry ......... Virginia Beach Henry H. McVey, Ill .............. Richmond Leigh B. Middleditch, Jr. .... Charlottesville Andrew P. Miller .......... Washington, D.C. S. D. Roberts Moore ............... Roanoke T. Justin Moore, Jr. .............. Richmond Thurston R. Moore ............... Richmond G. Marshall Mundy ............... Roanoke Edwin P. Munson ................ Richmond Robert Terrence Ney ............... McLean Eugene L. Nuckols ................. Pulaski Robert C. Nusbaum ................ Norfolk Aubrey J. Owen ................ Winchester Rosewell Page, III ......... ; ..... Richmond Arthur I. Palmer, Jr. .............. Richmond Robert S. Parker, Jr. .............. Richmond Lawrence J. Pascal ............. Alexandria Hugh L. Patterson ................. Norfolk Robert H. Patterson, Jr. .......... Richmond John Morrill Peterson .............. Norfolk C. Cotesworth Pinckney .......... Richmond Don R. Pippin ...................... Norton Fred G. Pollard .................. Richmond Robert Dean Pope ............... Richmond Richard C. Rakes ................. Roanoke William R. Rakes ................. Roanoke James C. Roberts ................ Richmond Frank W. Rogers, Jr. .............. Roanoke William L. Rosbe ................ Richmond John M. Ryan ..................... Norfolk Philip M. Sadler ................... Pulaski Toy D. Savage, Jr. ................. Norfolk Patricia Schwarzschild ........... Richmond Robert E. Sevila .................. Leesburg Russell E. Sherman ............. Annandale

Thomas G. Slater, Jr. ............. Richmond Alexander Hoke Slaughter ... .... Richmond Norman F. Slenker .............. Arlington Edward M. Smith ................ Arlington R. Gordon Smith ................. Richmond Richard W. Smith ................. Staunton Turner T. Smith .................. Manassas John W. Snow ................... Baltimore Emerson G. Spies ........... Charlottesville William B. Spong, Jr‘ ........ Williamsburg Harold E. Starke, Jr. ............. Richmond Gregory N. Stillman ............... Norfolk Bruce C. Stockburger ............. Roanoke Hiram A. Street .................... Grundy Robert E. Stroud ............ Charlottesville George R. C. Stuart .............. Abingdon John S. Stamp ..................... Fairfax Frank L. Summers, Jr. ............ Staunton James T. Tilton .................. Richmond Randolph F. Totten .............. Richmond Anthony F. Troy ................. Richmond Charles F. Tucker .................. Norfolk Abram William Vandermee~; Jr_ ... Richmond

Braden .Vandeventer, Jr. ............ Norfolk

John L..Walker, Jr. ................ Roanoke

Archibald Wallace, HI ........... Richmond

Martin D. Walsh ................. Arlington

Edmund L. Walton, Jr. ............. McLean

Thomas R..Watkins ......... Newport News

Hill B. Wellford, Jr. ............... Richmond Hugh V. White, Jr. ............... Richmond Kenneth Spencer White ......... Lynchburg

Anne Marie Whittemore .......... Richmond Henry T. Wickham ............... Richmond

Jesse B. Wilson, III ................ Fairfax

William T. Wilson ............... Covington

Arthur J. Winder ............ Virginia Beach

John Clinton Wood ................ Fairfax

Thomas S. Word, Jr. .............. Richmond R. Reid Young, Jr. .............. Martinsville

32

CHARLES M. LOLLAR

HAVING completed the first half of our year, the

Young Lawyers Section remains in high gear, resist-

ing the temptation to rely upon the momentum

generated from many of our recent activities to glide us through the remainder of the year. Our Special projects Committee, chaired by Steve Busch, continues to provide the Section with the initiative to embark upon

new projects which are worthy of our attention, as our other committees continue toward their goals to complete projects they have undertaken. Our success thus far can clearly be credited to committee members who

have so willingly given their valuable time to the work of the Section. The leadership of the committee

chairs, members of our Executive Committee, and Chair-Elect Farrell and Secretary/Treasurer Haines must also be recognized and given considerable

credit. I continue to be impressed with the caliber of people assisting me when working on Association

activities.

Summer Meeting

I regret having been unable to attend the recent Summer Meeting of the Association at The Home- stead. My family had other plans for me that week-

end, however, and we were blessed with the birth of a son, "Chip," on the afternoon of July 18th. Both

Vivian and Chip are doing well, and we all look for- ward to more sleep in the months to come.

Tom Farrell had no problem taking over the Sec- tion’s reigns in my absence, assisted by Peggy O’Neal Haines. I felt quite comfortable knowing they would be covering for me at the meeting, and almost equally comfortable knowing former chairman Paul Fraim was covering for me in my law office.

A hat’s tip goes to Lex Eley’s Meetings Committee for once again planning and conducting excellent programs at the Summer Meeting. Friday morning’s program on the fight against organized crime and

Saturday’s program on the liability crisis were well attended and received good reviews. Tom Farrell pre- sided at the Executive Council breakfast meeting on

Charles M. Lollar is a partner in the Norfolk law firm of Heilig, McKenry, Fraim and Lollar,

P.C. He received his B.A. Degree in 1972 from the University of North Carolina at Chapel Hill, and J.D. in 1977 from Washington & Lee University School of Law. He was Chairman of the Young Lawyers Section of the Norfolk and

Portsmouth Bar Association in 1985. Mr. Lollar is also a member of the North Carolina Bar Association, and is active in the Corporation, Banking and Business Law Section of the

American Bar Association.

Saturday morning, which many committee chairs

attended. As always, the social side of the meeting was

enjoyed by all, and was capped by the annual YLS

dance on Saturday night, with entertainment by the "Motown Review." The show was sponsored by Pan-

dick, Inc., and we are very grateful to the host, David W. Pratt, its Vice President. Thanks also go to Hobie

Claiborne and Sam Brown for an excellent choice of entertainment.

Committee Activities

Many of our committees have been active this

summer. Carol Hurt and Kurt Krueger worked ex- tremely hard in compiling this year’s submissions in the ABA Young Lawyers Division Award of Achieve-

33

ment Competition. We can be proud of the fact that we

received a second place award for our Comprehensive Program at the ABA Annual Meeting recently held in New York City. This is a tribute to the hard work of all

our committees. In addition, Jack Coffey’s Model Judiciary Com-

mittee prepared an application for the Best Single

Project/Service to the Public category. The Section won a second place award in this category, and I

recently received a letter from one of the judges stating that, in his opinion, ours was the best organized, best run and most successful high school mock trial competition in the country. Model Judiciary

requires more attorneys than any of our other pro-

grams, and involves an even greater amount of students as pa~icipants. The program will shortly get u~der way this fall with students prepa~-~g a civil or

criminal trial to be presented to a Virginia district or circuit court judge during the latter part of this year,

prior to the appellate round of competition early next spring. The program also provides our Association and the attorneys participating with positive expo- sure in the eyes of the public, and in addition, has

received excellent reviews from the bench. Bruce Thomas and Elizabeth Edwards are also to

be congratulated for the third place award that the

National Moot Court Committee received for the submission they prepared in the Best Single Project/- Service to the Bar category. Since preparing their

ABA Award of Achievement submission, this committee has been hard at work preparing for the 1986

National Moot Court Competition to be held this year

at the College of William & Mary in Williamsburg, Virginia, on November 22-24. The committee has

already secured a panel of final round judges, including two Supreme Court justices and a U.S. Court of Appeals justice. In addition to all the hard work that

goes into planning this competition, the committee has begun this year’s fund raising activities, and hopes to exceed last year’s efforts, which more than covered expenses. Elizabeth and Bruce have been

able to improve on an already exceptional program with this additional funding. Members of the Associ-

ation who might have the opportunity to be in Wil-

liamsburg during the competition should take the opportunity to view first hand the impressive results that are achieved through such careful planning. Fel- lows of the American College of T~ial Lawyers are

being recruited to serve as quarter-final and semi- final round judges. Anyone interested should contact

Joe Rapisarda in Richmond’(747-4342). Being honored with these three ABA awards has

set a new precedent for the most awards ever received by the Section in one year. Having achieved this, the

Section already has its eyes on new projects for next year that could very likely continue our string of Award of Achievement honors over the past several years. Bill Nexsen’s Law & Citizenship Studies Committee has been hard at work planning the pro-

duction of videotaped public service announcements during the Bicentennial Celebration of the U.S. Con- stitution. The Section received a $10,000.00 grant

from the Virginia Law Foundation to be used to fund the production of these videotapes~ and the committee

is currently making plans for implementation of this undertaking. In addition, the committee is assisting the Virginia Institute for Law & Citizenship Studies in producing a booklet on a mock constitutional con- vention for the Bicentennial, as well as the prepara-

tion of a second edition to our Resource Attorney Directory. This remains to be one of our most active committees throughout the year, and all its members are due many thanks for their untiring efforts. ~

The Bridge-The-Gap Committee, chaired by Nan Coleman, recently conducted a seminar entitled "Law- yers’ Guide to Residential Real Estate T~ansactions," in conjunction with the Committee on Continuing Legal Education of the Virginia Law Foundation. This seminar was offered in seven locations through-

out the state, and had over 750 in attendance. In addition, the committee is currently working on the annual Bridge-The-Gap seminars. They have been scheduled in seven locations thoughout the state, and will run from October 23 through the end of the month. This seminar series continues to receive good

reviews from new practitioners who are looking for "nuts and bolts" tips on the practice of law in a

number’of basic areas.

Pat Gdttschalk, co-chair of the Town Hall Commit- tee, has planned a forum on abortion on October 21,

1986, at the John Marshall Hotel in Richmond. We expect to receive a considerable amount of publicity at

this meeting, and anyone interested is encouraged to attend. Co-chair Rich Maxwell has planned a similar

public forum on employee drug testing in Roanoke this winter. These programs have been professionally planned and conducted in the past, and no doubt this year’s programs will be a resounding success.

The Section’s Speakers Bureau Committee, chaired by Joe Rapisarda, has been asked to recruit speakers to address insurance carriers with regard to the many

claims and lawsuits that have contributed to the liability insurance crisis. Joe’s committee continues to

respond to the need of various professional and civic

groups throughout the state for speakers on a wide range of legal topics.

French Slaughter and Alison McKee continue to

concentrate on the recruitment of new members into

34

the Association from small firms, solo practitioners, or medium and large firms that have not in the past had a large percentage of membership in the Associa- tion. The work of this committee is ongoing, and is certainly vital to our organization.

The Virginia Tax Committee, chaired by Mike

deLeeuw, continues its work of expanding the scope of its publication, The Virginia Retail and Use Tax

Manual, to include a comprehensive digest of pre-

viously unreported Circuit Court opinions and rulings

on sales and use tax issues. This committee’s work was recently highlighted in Mernbernet, a nationally disseminated publication of the ABA/YLD Member- ship Support Network. Both Mike and the commit-

tee’s former ~hairman, Ted Chandler, are to be congratulated for drafting this article, which provided excellent publicity for our Section.

John Beardsworth organized a delegation of repre- sentatives from the Section to the ABA Young Law- yers Division General Assembly at the Annual Meet- ing in New York City in August. John reports that we

continue to receive good marks as an affiliate of the ABA. Peggy O’Neal Haines and Carol Hurt traveled to New York early to act as judges in the/(BA/YLD

Award of Achievement Competition, and chair-elect

Tom Farrell also attended the meeting as an affiliate delegate.

Report of the Nominating Committee

The Nominating Committee of the Section, chaired

by John Beardsworth, met in Richmond on August 18th. Peggy O’Neal Haines, of the Bristol law firm of

Penn, Stuart, Eskridge & Jones, and our current

Secretary/Treasurer, was nominated for Chair-Elect

for 1987. David Shuford, of the Richmond law firm of Mays, Valentine, Davenport & Moore, current Execu-

tive Committee member and chairman of our Alter- native Dispute Resolution Committee, was nominated for Secretary/Treasurer of the Section. Pursuant

to Section l(a) of Article V of our bylaws, any other

nominations for these offices may be made by any member of the Section by letter to the Chairman of the Nominating Committee, prior to the Fall Meeting of the Executive-Council, or during that meeting.

John Beardsworth’s address is as follows: John J.

Beardsworth, Jr., Hunton & Williams, Post Office Box 1535, Richmond, Virginia 23212, (804) 788-8637.

Fall Meeting in Charlottesville

Bill VanBuren, chairman of the Executive Council Meetings Committee, has arranged for our Fall Meet- ing to be held at the Charlottesville Omni Hotel at 9:30 a.m. on Saturday, October 4, 1986. All Members of the Young Lawyers Section are invited and encour-

aged to attend this meeting. Food and refreshments will follow the meeting, and activities for Saturday

afternoon and Friday and Saturday evenings are currently being planned. Those wishing to stay over- night should contact the Charlottesville Omni Hotel for reservations as soon as possible.

Chair-Elect Farrell is in the process of organizing

his committees for 1986. In addition, after our Fall Meeting, the Nominating Committee will c~nsider

nominations for next year’s Executive Committee.

Anyone interested in chairing a committee or serving

on the Executive Committee should contact Tom Far- tell. His address is: Thomas F. Farrell, II, Post Office Box 1101, Alexandria, Virginia 22313 (703) 549-5900.

In closing, although the year appears to be passing by quickly, the accomplishments of the many lawyers that actively participate in our Section continue to

make a lasting impression upon the many people involved. I for one can certainly attest to the high level of energy and enthudiasm that makes this pro-

gram so successful. I continue to make many new friends during my term as Chairman, and although the demand upon my time is not insignificant, it is one of the most pleasurable tasks I have ever under-

taken.

35

To become Sponsors, firms must certify that at least 80% of their lawyers are members of the Association in

good standing, If your firm qualifies, please submit the application below with a list of the lawyers who are members. In computing the 80% requirement, you may include lawyers whose membership applications and dues

payments are submitted with the Sponsors application..

Mail to:

1986 SPONSORS PROGRAM The Virginia Bar Association

701 E. Franklin Street, Suite 708

Richmo.nd, Virginia 23219

Firm Name:

Address:

City. State Zip

Office Phone No.:

Number of ISawyers in Firm Who Are Licensed in Virginia:

Number of Lawyers Who Are Members of the Association:

Names of Members: (attach list)

Our firm wants to be a Sponsor of The Virginia Bar Association. I

hereby certify that our firm has __ Virginia lawyers, 80% or more of which are members in good standing of the Association.

Name (Please print or type)

Date Signature

Position.

36

The Association notes with deepest regrets

the passing of the following members:

John A. Blakemore ............................... Life Member

R. Garnett Bledsoe, Jr. ............................ Life Member

Gordon E. Campbell .............................. Life Member

Benjamin E. Chapman ............................ Life Member

John Nichols Dalton ...............................

Charles L. Kaufman .............................. Life Member

Robert John Moye ................................

Joseph W. Richmond, Sr. .......................... Life Member

John W. Riely .....................................

Vincent L. Sexton, Jr. ............................. Judicial Member

E. P. Tatum Smith, Jr. .............................

Erwin S. Solomon .................................

Charles S. Valentine, Sr. ........................... Life Member

F. Thompson Wheeler, II .......................... Judicial Member

John T. Wingo Life Member

1894-1986

1903-1986

1905-1986

1905-1985

1931-1986

1896-1986

1942-1986

1916-1986

1917-1986

1902-1986

1922-1986

1919-1986

1901-1986

1930-1986

1887-1986

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