Advanced Expert Witness Workshop Webinar August 7, Court Updates,  Pandemic Depos, and more. .

VADA Defense Line July 2020

President's Welcome
The Voice of the VADA

Did you know that membership in the VADA also affords you an opportunity to have a voice in the operation of our legal system? Here are two examples. First, since COVID-19 has brought our civil jury trials to a virtual standstill, the VADA initiated contact, through our Regional Directors, with the Chief Judges in all jurisdictions offering VADA’s assistance in the development of their local plans to resume jury trials. Several judges have responded favorably as assembling jury trials in these challenging times is no easy task. Second, VADA’s input has been requested on the issue of whether our appellate system should be re-organized so that there is an appeal of right from the trial court in every civil case. During its 2020 session, the General Assembly passed Senate Joint Resolution 47 which requests the Judicial Council of Virginia to study the jurisdiction and organization of the Court of Appeals of Virginia and to make recommendations of implementing an appeal of right in all cases decided by and appealed from the circuit courts to the Court of Appeals with further review by the Supreme Court on a writ of appeal basis. As a result, the Judicial Council of Virginia contacted VADA, among other local specialty bars, seeking comment on these issues. See the attachments for more information. Please share your opinions on these very important issues by emailing smather@vada.org, as each one of us is part of the voice of VADA. We want to hear from you.

Melissa H. Katz
VADA President, 2019-20  

RESCHEDULED

Advanced Expert Witness Workshop

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

Via Webinar

 REGISTER HERE

ADVANCED EXPERT WITNESS WORKSHOP

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

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

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

Resuming Court Operations

Taylor D. Brewer
Moran Reeves & Conn 

James A. Cales III
Furniss, Davis, Rashkind and Saunders

 Madelaine Kramer
Sands Anderson

In late April, representatives from the Virginia Bar Association approached the VADA about joining several other state-wide, civil litigation bar associations to offer collective assistance to Chief Justice Donald W. Lemons on resuming court operations during the COVID-19 pandemic. On May 5, 2020, VADA President Melissa Katz joined representatives from the Virginia Bar Association, the Virginia Trial Lawyers Association, the Old Dominion Bar Association, the American Academy of Matrimonial Lawyers, and the Virginia Family Law Coalition, in a written letter to Chief Justice Lemons. On behalf of the VADA, and along with the other associations, Melissa offered suggestions on how to handle discovery, hearings, scheduling, and endorsements during the judicial emergency. Subsequent Orders from the Supreme Court have incorporated several of these suggestions.

Since then, the VADA has continued working with the other bar associations on additional joint communications to the Chief Justice. The latest of these letters was sent in late June and offered the collective talents of the six organizations to assist in any way possible with the resumption of jury trials. The Chief Justice accepted the group’s offer of assistance and asked the associations to communicate directly with the chief judges of each circuit court. In response, the VADA Regional Directors sent letters to the chief judges, offering to provide whatever assistance the courts needed in developing their plans for the resumption of jury trials. You can view the letters here. What that assistance might entail for each circuit has been and will continue to be dictated by the needs of the circuit.

As an organization, the VADA has taken this opportunity to demonstrate the role we play in the orderly administration of civil trials. Critically, the cooperation among the state-wide bar associations has been inspiring. While the members of these organizations often argue against each other as adversaries in the courtroom, they are united in a commitment to the administration of justice during unprecedented and challenging times. This collective voice will serve both the courts and the public and will promote justice throughout the Commonwealth of Virginia.

Court Updates

The Supreme Court of Virginia has extended through August 30, 2020, its current declaration of judicial emergency in response to COVID-19. Per the Supreme Court's Order, which was entered July 29, the provisions of the Supreme Court's Seventh Order Extending Declaration Of Judicial Emergency In Response To Covid-19 Emergency, which was entered July 8, 2020, shall continue to apply.  Thus, jury trials remain suspended. Statutes of limitation, however, and other "case-related" deadlines, which resumed running on July 20, 2020, are not affected. For the full text of the Supreme Court's most recent Order, click here.

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

Our Annual Meeting Committee, chaired by Secretary Julie Palmer, has been hard at work for months developing an excellent Annual Meeting program October 14-16. With the COVID-19 situation rapidly evolving, the Committee is exploring all options. Our goal is to safely continue our longstanding tradition of gathering together, as a collegial community, to learn from one another, network, and enhance our legal knowledge and practice.

Please watch your email for further information on the Annual Meeting.

Calculating the Expiration of the Statute of Limitations and other “Case-Related” Deadlines under the Supreme Court of Virginia’s Declaration of Judicial Emergency in Response to COVID-19

Jason G. Moyers
Frankl Miller Webb & Moyers

By Order of the Supreme Court of Virginia, the Commonwealth has been under a Declaration of Judicial Emergency in response to COVID-19 since March 16, 2020. On July 8, the Supreme Court extended the Declaration through its current expiration on August 9.

Among the provisions of the Supreme Court’s Declaration has been, with some modification, a tolling and extension of “all deadlines” in district and circuit courts “pursuant to Va. Code § 17.1-330(D).” Per § 17.1-330(D), deadlines subject to this tolling or extension include “deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders in any court processes and proceedings, including all appellate court time limitations.” Va. Code Ann. § 17.1-330(D) (Michie 2020).

To continue reading, see the full article here.

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

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

Watch your email for updates on all upcoming events.

August 7
Advanced Expert Witness Workshop
Via Webinar

October 14-16
Annual Meeting
The Homestead (Tentative)

December 4
Young Lawyers Boot Camp
Richmond

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

This Hopewell, Virginia, native and UVA Law alum is celebrating this year her 30th year of membership in VADA! When she is not in her office in Fredericksburg, she enjoys travel, weekends at the river, and crafting a winning closing argument with the aid of a good legal thriller. To learn more about this month’s VADA Spotlighted Member, click here.

The VADA continues to encourage members, if unsure of their membership status, to reach out to Executive Director Sherma Mather (smather@vada.org) or Membership Chair Sam Bernier (sbernier@faplawfirm.com) for more information. It’s not too late!

Samuel T. Bernier
Membership 

We are so pleased to welcome our new VADA members.

Warren Britt
Britt & Byrne

Randolph Critzer
McCandlish Holton

Kathryn Slaughter
Shuman McCuskey & Slicer

Pandemic Depos: Working Remotely Means
Taking Depositions Remotely

By: Martin Schubert, Esquire

In these difficult times, cases continue being filed, deadlines continue to approach, and the Supreme Court of Virginia has allowed discovery to proceed. In order to keep the cases, clients, and adjusters on track with their cases, many defense attorneys are using platforms such as Zoom and Webex on a near daily basis to conduct depositions. It is critical to prepare for remote events in order to attain best results. This includes developing processes for presenting exhibits to witnesses, policies to ensure the best practices for taking the depositions, preparation to avoid unfair or improper conduct by deponents and/or their counsel, and specially tailoring the deposition notices to ensure a fair, reasonable, and effective process.

While many of us are prepared to proceed, not all practitioners are embracing the remote deposition to the same level. The Rules of Court expressly allow for remote video depositions, but the application and implication of such depositions are varied. Most practitioners have not had to deal with the considerations presented, at least not in a large scale fashion, at any point in their career. Some still oppose or outright refuse to participate in remote depositions, which depending on your case’s timing, may require a motion to compel it remotely.

One thing is clear, it is an ever evolving landscape. Initially matters were shortly postponed in hopes of the pandemic lightening. Then the majority flocked to Zoom, only to learn of security issues. Those seem to be resolved and lawyers are getting used to the idea of taking depositions from their homes or offices, without being physically present. New considerations may be that the depositions can occur, but the trial will be a year away. Perhaps the deposition will be stale by that point. Strategy may dictate waiting if discovery is likely to change, such as where medical treatment continues.

Once it is agreed to proceed, there are various issues and considerations. First, where will the witness be and how should the subpoena be phrased. Compel them to appear at a website, an empty office, or your office with an explanatory letter? There is no right answer, but it is a best practice to put the party at ease and ensure maximum likelihood of success by giving as much information as possible with regard to how the remote deposition will proceed. Advise the witness to stay in a comfortable private space. Advise it may be taped and to act and dress appropriately.

One continuing issue in remote video depositions is the videotaping itself. There can be confusion by noting a remote video deposition. Does that mean it is also videotaped for later use or not? Then, further confusion is created when it is videotaped for reporter backup purposes, as opposed to de bene esse purposes. In the end, the best thing to do is to ask and get an agreement of all counsel in the deposition before starting. Stipulations as to the process are critical and you may want to include those in your notices of deposition to eliminate subsequent confusion.

During the deposition, examining counsel should request the deponent identify what materials are present in front of them. Counsel should instruct the witness not to communicate with anyone. Counsel should confirm at the end that no chat function was used with anyone. Pay attention to what the witness does. Are they looking around or appearing to read something on a device? That is probably a red flag. Confirm with counsel that they have not communicated with the witness during the deposition. Know how to share your screen so you can use pre-prepared exhibits with the witness. Ask the witness to confirm they can see the document and walk them through the parts they should focus on by pointing, clicking, or highlighting. In the end, make sure to email the exhibits to the reporter to include with the transcript. In the alternative, the court reporter company may have a technical specialist who can put the exhibits on the screen for you.

With a little patience and practice, remote depositions can be as useful and certainly safer, under these present circumstances, than the traditional deposition in person. If you have any questions about best practices for remote deposition and/or an example of a specially tailored notice of deposition please contact me at mschubert@bmhjlaw.com.

VADA’S Mission

The mission of the Virginia Association of Defense Attorneys is to assist Virginia attorneys in the professional and ethical representation of their clients in civil litigation through education, communication and fellowship.