Effective Trial Advocacy CLE

Moderator: David L. Marks, Esq.

Law Offices of David L. Marks

Speakers:

Hon. Leslie M. Alden (Ret.) Fairfax County Circuit Court

Hon. Lisa A. Mayne Fairfax County General District Court

Christie A. Leary, Esq. Law Offices of Christie A. Leary, P.C.

Edward L. Weiner, Esq. Weiner, Spivey & Miller, PLC

Kathleen O’Brien, Esq. Fite, O’Brien & Anderson, Ltd.

FAIRFAX BAR ASSOCIATION

CLE SEMINAR

Any views expressed in these materials are those of

the individual authors and do not necessarily

represent the views of any of the authors’

organizations or of the Fairfax Bar Association. The

materials are for general instructional purposes only

and are not offered for use in lieu of legal research

and analysis by an appropriately qualified attorney.

*Registrants, instructors, exhibitors and guests attending the FBA events agree they may be photographed, videotaped and/or recorded during the event. The photographic, video and recorded materials are the sole property of the FBA and the FBA reserves the right to use attendees’ names and likenesses in promotional materials or for any other legitimate purpose without providing monetary compensation.

SPEAKERS’ BIOGRAPHIES

Hon. Leslie M. Alden (Ret.)

Judge Alden is a 1978 graduate in business administration from George Mason University and a 1983

graduate from its School of Law. Before beginning her tenure as judge on the Circuit Court in Fairfax in

1996, she served as a judge on the General District Court from 1995-1996, and before that she practiced

all aspects of commercial trial work in state and federal courts in the Northern Virginia area for twelve

years. In addition, Judge Alden served as an Assistant City Attorney and City Prosecutor for the City of

Fairfax for nearly ten years and was a shareholder in the firm of Verner, Liipfert, Bernhard, McPherson

& Hand. Formerly, Judge Alden has served on the boards of directors of the Virginia Women Attorneys

Association and Legal Services of Northern Virginia. She continues to be active with the Fairfax and

other Bar Associations as well as with various judicial groups. For several years, Judge Alden has

worked with the International Association of Women Judges, and served as its President from 2008-

2010. The IAWJ has 4500 members in 100 nations and promotes judicial education, equal access to

justice, and the rule of law, in legal systems around the world. She has been a full time faculty member

at the George Mason University School of Law since 2012, and acts as a neutral evaluator at Juridical

Solutions, PLC, working in alternative dispute resolution.

Hon. Lisa A. Mayne

Judge Mayne has been a judge in the Fairfax County General District Court since 2006 and served as a

substitute judge for two years prior to that. Before joining the bench, Judge Mayne was a partner in the

firm of Kelly, Mayne & Daughtrey in Fairfax, having practiced with the firm and its predecessors for

twenty years, principally in the areas of insurance subrogation and defense, creditor’s rights and

collections. As an attorney, Judge Mayne served on several committees of the Fairfax Bar Association,

including the Public Relations and Community Outreach Committees and as Chair of its General District

Court Committee. Judge Mayne is a past President of the George Mason American Inn of Court, a past

lecturer at the Mandatory Judicial Conference for District Court Judges and the Regional Conference for

Substitute Judges, and was recently appointed by the Virginia Supreme Court to serve as a member of

the Judicial Education Committee of the Judicial Conference for District Courts. She is a graduate of

Pitzer College in Claremont, California and the George Mason University School of Law.

Christie A. Leary, Esq.

Christie Leary, a native of Northern Virginia, has litigated cases heard in the state courts of every

jurisdiction in Northern Virginia, the District of Columbia, the United States Fourth Circuit Court of

Appeals, the United States Ninth Circuit Court of Appeals and the United States Supreme

Court. Named by Super Lawyers as a Rising Star and by Richmond Magazine as a Top Young Attorney

in Virginia, Christie has tried bench and jury trials in criminal and civil matters ranging from traffic

offenses to serious criminal offenses and cases involving complex personal injury issues and medical

malpractice. Along with her former partners Peter Greenspun and Jonathan Shapiro at Greenspun,

Shapiro, Davis & Leary, P.C., Christie was a member of the defense team appointed to represent John

Allen Muhammad, the “Beltway Sniper.”

Christie’s practice focuses on criminal and traffic law, personal injury, medical malpractice and civil

litigation. An active member of the Fairfax Bar Association (FBA), Christie currently serves as a

member of the FBA Board of Directors and the Board of Directors of the Fairfax Law Foundation

(FLF). Christie currently serves as the Chair of the FLF Run for Justice 5k race committee. In

recognition of her efforts with the bar, Christie received the 2010 and 2011 FBA President’s Award.

Christie graduated with a Bachelor of Arts degree in History and Government from the College of

William and Mary; and received her Juris Doctor degree from George Mason University School of

Law. While in law school, Christie was a member of the board of editors for the Journal of International

Legal Studies and authored "The Political Offense Exception", which was published in Volume 5 of the

journal. While in law school, Christie taught legal research, writing, and analysis to first-year law

students. Christie previously served as an adjunct professor for the law school’s appellate writing class.

David L. Marks, Esq.

.

David Lyndon Marks was born in Fairfax Hospital, grew up in Annandale and currently resides in

Fairfax, Virginia. Mr. Marks attended Annandale High School before graduating from Mary

Washington College in Fredericksburg, Virginia in 1994, with a Bachelor of Arts degree in Political

Science. He then received his juris doctor in 1997 from the T.C. Williams School of Law of the

University of Richmond in Richmond, Virginia.

Following graduation from law school, Mr. Marks was first employed by the law firm of Brandt,

Jennings, Roberts, Davis & Snee, PLLC in Falls Church, Virginia, specializing in Insurance Defense

and Plaintiff's Civil Litigation. To better serve his clients and to practice the type of law that helps those

have been injured, Mr. Marks founded his own firm in 2004 concentrating solely on Plaintiff's Personal

Injury Law and Medical Malpractice.

Mr. Marks has been a member of the Virginia Bar since 1998, the District of Columbia Bar since 1999

and the Maryland Bar since 2004. He is admitted to practice in all Virginia State trial and appellate

Courts, the U.S. District Court for the Eastern District of Virginia, the U.S. Court of Appeals for the

Fourth Circuit, the Superior Court and Court of Appeals for the District of Columbia and the U.S.

District Court of Maryland.

Mr. Marks is very active in the Fairfax Bar Association, having served on the Board of the Young

Lawyers Section of the Fairfax Bar Association since 2002 and served as President of the Young

Lawyers Section and ex officio member of the Fairfax Bar Association Board of Directors for 2004 and

2005. Mr. Marks was been a member of the Pro Bono Advisory Committee of the Fairfax Bar

Association from 2000 to 2007 and served as Co-Chairperson of the Committee from 2003 to 2006. Mr.

Marks was honored to have received in 2005 the Fairfax Bar Association President's Award for

Outstanding Services. Mr. Marks has been elected a member of the Fairfax Bar Association Board of

Directors since 2007 and is currently serving as Treasurer.

Mr. Marks is a member of the Virginia State Bar, the Virginia Trial Lawyers Association, the

Association of Trial Lawyers of America, the Maryland State Bar Association and the District of

Columbia Bar Association. He has been requested as a speaker at Continuing Legal Education Seminars,

including the Personal Injury Seminar sponsored by the Fairfax Bar Association.

Mr. Marks was profiled in Virginia Lawyers Weekly as an "Up and Coming Lawyer." For the past two

years, Mr. Marks has been honored to be selected as a “Super Lawyer Rising Star.” Super Lawyers is a

rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree

of peer recognition and professional achievement. The Rising Stars represents only 2.5% of the

attorneys in the Commonwealth.

Mr. Marks enjoys spending time with his wife and trying to keep up with his three active children. He

also enjoys coaching his kids’ soccer teams.

Kathleen O’Brien, Esq.

Kathleen O'Brien has been a trial attorney for over twenty-five years, and has always concentrated her

practice in the field of Family Law. After four years of practice associated with one of Northern

Virginia's most prestigious larger law firms, she joined Ms. Fite as a partner in 1986.

Ms. O'Brien was born in Boston, Massachusetts and has been a long-time resident of Virginia. She

graduated from Suffolk University in 1976 and obtained her law degree at the Catholic University of

America in 1981. She was admitted to the Virginia Bar in 1981, and to the District of Columbia, U.S.

Court of Appeals, Fourth Circuit, and the U.S. District Court, Eastern District of Virginia, in 1982.

Ms. O'Brien was the first woman President of the Virginia State Bar (1994-1995) and she is a Fellow of

the Virginia Law Foundation. She has held many positions throughout the State Bar from Chair of the

Ethics Committee to delegate to the American Bar Association. Ms. O'Brien is also a member of the

McLean, Fairfax, and American Bar Associations, and is a member of the Family Law sections of the

American Bar Association, Virginia State Bar and the Fairfax Bar. She serves as a Commissioner in

Chancery in the Fairfax County Circuit Court and is active in the local, Fairfax Bar Association. Most

recently she served as President of the Fairfax Bar Foundation for 2003-2004.

Ms. O'Brien has extensive experience in the courtroom and has represented clients in both state trial and

appellate courts and federal district and appellate courts. She has also been trained in Collaborative Law,

another alternative available to parties who wish to settle divorce matters in a private respectful manner.

By creating an atmosphere of open communication and cooperation, the Collaborative Law process

allows both parties to preserve their dignity while they work toward a settlement that works for everyone

involved. Along with Ms. Fite and Mr. Anderson, Ms. O'Brien has embraced this new alternative. She

is a member of the International Academy of Collaborative Professionals, and she is currently a co-chair

of the Collaborative Professionals of Northern Virginia.

Edward L. Weiner, Esq.

Edward L. Weiner is founder of Weiner Spivey & Miller, PLC. He has been an active member of the

Fairfax Bar Association since 1980 and serves as its current President. He has been a member of the

Board of Directors of the Fairfax Law Foundation since January 2002 and as a past President. He

currently serves on the Virginia State Bar Council of Local Bar Leaders. He was honored in 2012 by

being appointed to serve on the Virginia Supreme Court Professionalism Faculty.

Ed has over 33 years of proven successful performance representing plaintiffs who have been seriously

injured. His achievements include numerous multi-million dollar verdicts and cases before the Virginia

Supreme Court; winning precedent-setting appellate cases; and achieving a reputation as an effective

trial attorney. He is a recipient of the FBA President’s Award for Outstanding Service in 2008 and

2013.He has been consistently named one of Washington's "Best Lawyers" for Personal Injury by the

Washingtonian and Northern Virginia Magazine, is AV-rated by Martindale-Hubble, and has been listed

in SuperLawyers Magazine since 2006.

A graduate of the State University of New York at Binghamton, Ed received his J.D. from the

University of Richmond and his LL.M in International Law from Georgetown University Law Center.

Ed is a member of the Board of Directors of the George Mason University Center for the Performing

Arts, a 5-year platinum level fundraiser for the American Cancer Society and host of an annual Law Day

celebration which benefits the Fairfax Law Foundation’s Pro Bono programs. His brainchild, Jazz 4

Justice©, is an annual concert that has raised more than $150,000 for the Fairfax Law Foundation since

2000. Recently, other universities and local bar associations have begun to foster this unique partnership

between education, music, and law. George Mason University presented Ed with the Directors Award in

2011 for his contributions to the university’s music program. Ed was honored in 2009 to receive a

Leader of Law Award and the James Keith Award for Public Service. He and his wife, Maura, have two

daughters, Maurissa and Brianna.

TRIAL ADVOCACY CLE FAIRFAX BAR CONVENTION

MONTREAL, CANADA

I. Introduction

II. “JUDICIAL REVIEW”

A. Judge Tran and Judge Azcarate’s Top Ten Most Common

Mistakes Made By Practitioners In Court.

(1) Lack of Civility (including being rude to the court and law clerks,

opposing counsel, parties and witnesses)

(2) Inability to appreciate the value of Candor (or sometimes plain Common

Sense)

(3) Lack of Focus/Simplicity

(4) Excessive Number of Proposed Witnesses/Exhibits (see Mistake 3) or

Disorganized and ineffective use of Exhibits - e.g., labeling Exhibit #1 to

cover 40 separate documents.

(5) Unfamiliarity with the Rules of Evidence or Procedure

(6) Lack of Flexibility in Argument (not responding to Court's Questions)

(7) Reliance on too many cases (especially Circuit Court opinions - even from

the same judge plus the dreaded string cites (see Rule 3) - here's the test: can

you recite the rudimentary facts in all cases you've cited?)

(8) Time Management - not building pretrial motions, voir dire, selection, jury

instructions, opening and closing into time estimates. A bench trial with 3

witnesses may take 3 hours. A jury trial with 3 witnesses may take a day.

(9) Making Statements such as: "In my ______ years of practice, I've never

seen a ruling like that _________"; and "With all due respect, ___________"

(10) Personal Vouching for the Case - "I believe . . . ; I've come to know [the

client] and I must say . . . ."; "I don't know why [fill in the blank] . . . "In my

Opinion (fill in the blank) etc. - becoming overly emotional on behalf of

client - whether through anger or tears. (See Rule #1) . . .

PLUS BONUS ROUND:

(11) Filing Discovery in Court File (Certificates of Service, Notice of

Depositions, etc.)

B. JUDGE MAYNE’S TIPS for TRIAL ADVOCACY CLE

(1). Although there is a right of de novo appeal from the General District Court to the Circuit

Court, isn’t your client better served if you only have to try the case once? Be prepared.

(2). Review the entire court file, civil or criminal

(3). Read the statute each time

(4). Va Code §13.1 – 754 was amended in 2004 removing personal liability for officers or

directors transacting business in the interim between the time a corp. is terminated and the time it

was reinstated. I still see lawyers that permit personal judgments to be entered against their

clients in these circumstances

(5). Read the governing documents, i.e., the lease or contract, and think about/anticipate

objections.

(6). If there is a provision in the contract specifying that all amendments must be in writing

signed by the parties and your case is based on an oral amendment of the contract, be prepared for

an objection to testimony about that oral amendment on the basis of the Parole Evidence Rule.

(7). Judges are not legal encyclopedias. In anticipation of the above objection, bring the cases

that permit the above testimony.

(8). Master the art of direct examination. I have seen more cases lost on a bad direct than

won on a good cross.

It should be a conversation, with your client doing most of the talking.

Leading questions can sanitize the evidence – more powerful if they tell their story than if

they merely answer “yes” or “no”.

(9). Personal Injury Cases

Maybe “hearts & flowers” witnesses don’t exist/are not appropriate for every case, but

why is it that in the last 2 – 3 years, I have only seen one such witness and that one witness

significantly increased the value of that case.

The General Assembly amended Va. Code §16.1-88.2, effective this past July 1st, to

clarify that medical bills may be introduced into evidence in the same manner as medical records

– after notice to the opposing party at least 10 days before trial and if accompanied by an

affidavit of the custodian of the records attesting that the records are true and accurate copies.

It should be noted that 16.1-88.2 distinguishes between reports of a treating or

examining health care provider and records/bills of a hospital/other medical facility. Reports

require 3 specific affirmations and must be signed by the doctor, not an employee custodian.

Records can be verified by an employee custodian who attests to the accuracy of the copies.

Often it is the records of a plaintiff’s treating physician, not reports that are introduced into

evidence. Recently I have noticed that some attorneys include in the treating physician’s affidavit

a statement that the physician is a custodian of the records which are true and accurate. This

allows the attorney to argue that the records come in under either scenario.

Do not hand up a pile of records and expect me to read them all and figure it out. Closing

argument should address the specific portions of the records that support your case.

If there is something wacky in the Chiro’s report, better that you bring it to the attention

of the Judge than your opponent.

If at first you don’t succeed, try, try again. Sometimes there is a problem with the

affidavit and so the reports/records don’t come into evidence for that reason. At that point, many

attorneys fold up shop, take their nonsuit and go home. But there is also 8.01-413.01 which

provides that the authenticity of the bills and the reasonableness of the charges shall be rebuttable

presumed upon identification by the plaintiff of the bill and the plaintiff’s testimony (1)

identifying the health care provider (2) explaining the circumstances surrounding his receipt of

the bill (3) describing the services rendered and (4) stating that the services were rendered in

connection with the event at issue. This statute plus Sumner v Smith, 220 Va. 222, may be

enough to prevail without the records. “While failure to adduce direct medical evidence,

generally relied upon to establish causal connection between injury and accident, may

significantly increase the plaintiff’s risk of nonpersuasion, such evidence is not a prerequisite to

recovery.” But remember you must provide the bills to the other side at least 21 days before

trial.

(10). Time Management - Trials that will take longer than 2 hours must be specially docketed.

On a regular trial docket, remember to account for any time you expect to spend cross examining

the other side’s witnesses. In a two hour trial, you get 1 hour to do two things - put on your

evidence and cross examine the other side.

Wakole v. Barber, 283 Va. 488,722 S.E.2d 238 (2012)

Presented by:Edward L. Weiner, Esq.

Weiner Spivey & Miller, PLC

OverviewWakole v. Barber, 283 Va. 488, 722 S.E.2d 238 (2012):

Supreme Court held that, in closing, Plaintiff ’sCounsel can argue separate amounts for each elementof damages

Each element of damages was based on Model JuryInstruction 9.000

Damages were argued using a chart which trackedModel Instruction 9.000 and requested specificamounts for each element of damages

History leading up to this case and analysis of the Decision

How to use a Damages Chart and argue separate damageamounts based on evidence

Upcoming battles

The History Leading to the Decision

Inconsistent decisions at the Circuit Court levelregarding use of a damages chart during closing

Defense bar wanted to put a stop to the practice ofspecifying dollar amounts for each element ofdamages

Wakole v. Barber was a small case consolidated withanother larger case to get the appeal heard

The History Leading to the Decision (cont’d)

Virginia is in the minority - prohibits per diemarguments

Minority states which prohibit per diem but allow lumpsum argument Kansas - Huxol v. Nickell, 473 P.2d 90 (1970)

Missouri - Ricketts v. Kan. City Stockyards,537 S.W.2d 613(1976)

Maine - Hart v. Wiggin, 379 A2d 155 (1977)

Wisconsin - Affett v. Milwaukee Trans. Corp., (1960)

Nebraska - Baylor v. Tyrrell, 131 N.W.2d 393 (1964)

Hawaii - Kometani v. Heath, 431 P.2d 931 (1969)

Underlying CaseLegally Irrelevant Facts

Plaintiff was fifty-four years old and of Azerbaijaniandescent

She was a naturalized American citizen with a heavyaccent

Plaintiff ’s only medical expert was a chiropractor witha $1,250 court appearance fee

Plaintiff did not want to go to trial

Demand $6,000; Offer $2,500

Underlying CaseLegally Relevant Facts

Plaintiff was passenger in auto accident

Soft tissue injuries, persistent neck/back pain

Past medical expenses: $4,173

Asked for $50,000; jury awarded $30,000

Defendant appealed

VA Supreme Court granted petition for appeal

VTLA filed Amicus Brief in support of Plaintiff/Appellee

Appellant/Defense Arguments

Arguing specific $ amounts violates holding of

Certified T.V. v. Harrington, 201 Va. 109, 109

S.E.2d 126 (1959) (prohibiting per diem*

arguments)

*Per diem arguments are based on $ per unit/time

Most states allow per diem arguments - Virginia does not

Certified T.V. is still the law

Sought to expand holding of Certified T.V.

Focused on “or other fixed basis” language

Use of chart is using a formula

Use of chart invades the province of the jury

Appellant/Defense Arguments (cont’d)

Plaintiff ’s Counsel gave personal opinions in closing, i.e. “Isubmit to you that this is a modest sum.”

Va. Code §8.01- 379.1 prohibits arguing componentdamages because statute only says “an amount”

“Notwithstanding any other provision of law, any party in any civilaction may inform the jury of the amount of damages sought bythe plaintiff in the opening statement or closing argument, or both.The plaintiff may request an amount which is less than the addamnum in the motion for judgment.”

Appellant/Defense Arguments (cont’d)

Appellee/Plaintiff Arguments Courts must apply the plain meaning of a statute

Virginia Code Section 8.01-379.1 is permissive, notprohibitive

Lump sum amount is not based on any mathematicalformula, therefore arguing for lump sum is not “per diem”argument

Suggesting an amount for each element of damages isdrawing an inference based on evidence

In final argument an advocate should be allowed to statewhat his or her client wants and why

The Decision

Allows Plaintiff to argue lump sum amounts for eachelement of damages, provided there is evidence to supportit

Implicitly rejects the extension of Certified T.V.

Cautions against “personal opinions”

Rejects Appellant/Defense interpretation of

Va. Code §8.01-379.1

“Updike believes the caseplayed a significant role inthe verdict, and said thejury sought to have thoseamounts repeated duringdeliberation.”

Track the language of the Jury Instruction on Damages

Elicit evidence for each element of Damages

Relate the Evidence to the money the jury will award

Track the Language of the Jury Instruction

Model Jury Instruction 9.000… in determining the damages towhich he is entitled, you shall consider any of the following which youbelieve by the greater weight of the evidence was caused by the negligenceof the defendant.

1. Any bodily Injuries he sustained and their effect on his healthaccording to their degree and probable duration;

2. Any physical pain and mental anguish he suffered in the past and anythat he may be reasonably expected to suffer in the future;

3. Any inconvenience caused in the past and any that probably will becaused in the future;

4. Any earnings he lost because he was unable to work at his calling; andany loss of earnings and lessening of earning capacity, or either, that hemay reasonably be expected to sustain in the future;

5. Any medical expenses incurred in the past and any that may bereasonably expected to occur in the future;

DAMAGES

Past Medicals

Future Medicals

Disfigurement

Past Inconvenience

Future Inconvenience

Past Pain

Future Pain

Effect on Health

TOTAL

Mr. Smith

$

$

$

$

$

$

$

$ ________

$

Instruction vs ChartModel Jury Instruction 9.000… in determining the

damages to which he is entitled, you shallconsider any of the following which you believeby the greater weight of the evidence was causedby the negligence of the defendant.

1. Any bodily Injuries he sustained and theireffect on his health according to their degreeand probable duration;

2. Any physical pain and mental anguish hesuffered in the past and any that he may bereasonably expected to suffer in the future;

3. Any inconvenience caused in the past andany that probably will be caused in thefuture;

4. Any earnings he lost because he was unableto work at his calling; and any loss ofearnings and lessening of earning capacity,or either, that he may reasonably beexpected to sustain in the future;

5. Any medical expenses incurred in the pastand any that may be reasonably expected tooccur in the future;

DAMAGES

Past Medicals $

Future Medicals $

Disfigurement $

Past Inconvenience $

Future Inconvenience $

Past Pain $

Future Pain $

Effect on Health $

TOTAL $

Elicit evidence for each element Pain & Anguish

ambulance ride uncertainty regarding future medical problems

Inconvenience number of medical appointments getting to appointments time spent waiting

Disfigurement scars (including surgical scars) limp internal abnormalities

Effect on Health impact of decreased quality of life (goes to parties but doesn’t dance) restrictions/limitations on ADLs (buys milk in smaller containers) hobbies/activities previously enjoyed (previously ran, now walks) side effects of medications (upset stomach)

1) Avoid Personal Opinion Statements

2) Avoid $ Amounts Not Based on Evidence

Warning #1:Avoid Personal Opinion Statements in Closing

Don’t say: “I believe this is a fair amount.”

Don’t say: “My client believes this amount isreasonable.”

KEEP IT SIMPLE: “ WE ARE ASKING FOR……..”

Warning #2:

Avoid $ Amounts not Based on Evidence

Opinion states:

“The plaintiff is allowed to break the lump sum into itscomponent parts and argue a fixed amount for eachelement of damages claimed as long as the amount isnot based on a per diem or other fixed basis.”

What does this mean?

Don’t make a Per Diem or Fixed Basis Argument Avoid use of mathematical formulas Avoid use of arbitrary fixed ratios or numbers

Examples:

DON’T SAY “We are asking for $1,000 per day for 100 days.”

DON’T SAY “We are asking for FIVE TIMES the Medical Bills.”

DON’T SAY “Medicals = $100,000 therefore Future Pain = $100,000”

Do make an argument CORRELATING amounts withthe evidence

Discovery

Open Questions

New Defense Attacks on the Chart:

Discovery Phase

SAMPLE INTERROGATORY: Describe and itemize thenature and amount of every claim for damages, includingpast, continuing, and future damages, that you seek torecover in this action, including, but not limited to,medical and hospital expenses, pharmaceutical expenses,lost wages and income, future inconvenience, futurephysical pain, or mental anguish and describe in detail themethod used to calculate each item of damage if suchmethod would not be self-evident from the detailsprovided.

ANSWER: OBJECTION: To the extent that this questionseeks attorney work product and seeks final amounts thatwill be requested by Plaintiff ’s counsel from the jury attrial, after all evidence has been received, it is objected to.

New Defense Attacks on the Chart:

Discovery Phase

Deposition – two parts:

1) Describe the Evidence

2) What amount?

Example Questions:

1) Tell me all facts of which you are aware which supportyour claim that this injury has had an effect on yourhealth.

2) What amount are you seeking for the effect this injuryhas had on your health?

The Future:

Open Questions on the Use of the Chart

Question: Can you break down each element into sub-parts, based on the Evidence?

Example:

Past Pain and Suffering

Hospitalization (1 week) $ 25,000

Rehabilitation (8 weeks) $ 75,000

Surgery (rods/ pins) $125,000

Total Past Pain and Suffering $225,000

Answer: Maybe, if you can show a real basis in theevidence.

Baylor v. Tyrrell, 131 N.W.2d 393 (Nebraska 1964)Supreme Court of Nebraska allowed it.

Court noted that the different categories for whichpain was assigned bore some real relation to theevidence.

Conclusion

Go forward

Try lots of cases

Win big verdict$ for your clients

1

TRIAL ADVOCACY CLE

FAIRFAX BAR CONVENTION

MONTREAL, CANADA -- OCTOBER 3-6, 2013

JUDGE ALDEN (RET.)

SUMMARY JUDGMENT

Code Section 8.01-420 -- Has been revised so that RFA for which the responses are submitted in support

of a motion for SJ may be based in whole or in part upon discovery depositions (so may include admitted

facts learned or referenced in such deposition), as long as the RFA does not reference the deposition or

require the party to admit that the deponent gave specific testimony.

Furthermore, 8.01-420(B) now permits a motion for SJ seeking dismissal of a claim for punitive damages

to be based in whole or in part on discovery depositions under Rule 4:5, except where the claim for

punitives grows out of a DWI.

The prohibition against use of deposition testimony to support a motion for SJ without agreement of the

parties, applies also to motions that are the functional equivalent of SJ, such as motions in limine

regarding expert testimony, motion to dismiss for lack of jurisdiction, SOL.

Rule 3:20 and 8.01-420 DO NOT apply to the use of depositions to oppose SJ. Lloyd v. Kime, 275 Va. 98

(2008).

RULE 3:11

If a pleading or affirmative defense sets up a new matter and contains words expressly requesting a

reply, the adverse party must admit or deny within 21 days or the matter is taken as admitted.

NoVa Real Estate v. Martins, 283 Va. 86 (2012) In a 5th affirmative defense, D asserted that “Neither P

ever had a contract with the owner of the subject property, nor did either have a reasonable business or

contractual expectancy which could supply a claim of tortious interference. A Reply is requested

pursuant to Rule 3:11 and 1:4€.” The P failed to reply and the facts were deemed admitted before trial.

SERVICE OF PROCESS

Domestic Corporation – 8.01-299: Personal service on officer, director, or registered Agent. If Plaintiff

cannot find the R/A, serve the Clerk of the State Corporation Commission (SCC).

2

Foreign Corporation -- 8.01-301: Personal service on officer, director, or registered Agent. If Plaintiff

cannot find the R/A, serve the Clerk of the State Corporation Commission (SCC).

Service on the Secretary of the Commonwealth (SOC) is appropriate only [1] if there is long-arm

jurisdiction under 8.01-328.1 (foreign corporation), or [2] the process server has been unable to

execute service on the resident defendant, and the defendant cannot be located after due diligence.

JURY TRIALS

Rule 3:21 requires that a jury be demanded in writing either in the complaint, or within 10 days of

service of the last pleading directed to the issue. A party may limit the issues on which a jury is

demanded. Failure to demand is a waiver. A party may rely on the demand of the other party. Rule

3:22.

Either party may demand a jury to resolve disputed facts on a plea of the defendant (PIB) to an

equitable claim, such as a plea of SOL. 8.01-336 (D).

MAKING/PRESERVING THE RECORD FOR APPEAL

Must make the objection known to the Court and give an opportunity to rule.

Make the record, on the record, and outside the presence of the Court if necessary, in presence of the

other side. This includes making documentary, as well as oral evidence, a part of the record. In other

words, the record must contain the substance of the counsel contends was wrongly excluded by the

Court.

Identify in the record the authorities on which counsel relies.

The assignments of error must relate to specific erroneous rulings of the Court, with a reference to the

record where the error is preserved. Rule 5:17.

SANCTIONS -- 8.01-271.1

Sentiment in Supreme Court has become more supportive of impositions by the trial court. The court

has discretion in determining whether a violation has occurred. Upon concluding that a violation has

occurred, the court SHALL impose sanctions.

Pleadings not signed by a Virginia attorney or a pro se party are a nullity and do not relate back. Shipe v.

Hunter , 280 Va. 480 (2010); Aguilera v. Christian, 280 Va. 486, 699 S.E.2d 517 (2010). Pro se

party cannot authorize someone else to sign.

3

N. Va. Real Estate v. Martins, 283 Va. 86 (2012) Objective standard of reasonableness applies in

concluding that facts of case could not support the Plaintiff’s claims. ($275K, joint and several)

Christ v. Flinthill Space Communications Trust, June 17, 2013, Fairfax Circuit Court (JCT)

Frivolous lawsuit prosecuted for vindictive and improper purposes results in violation of statute.

($878K, joint and several)