Pre-trial mediation has enjoyed such success and popularity that increasingly Virginia circuit courts are requiring litigants to submit to it shortly before trial. In Newport News, Hampton, York County and other venues in Hampton Roads, parties must mediate vehicle accidents, medical malpractice, and many other cases. The...
Mediation is a dispute resolution process as an alternative to trial. It is similar to arbitration, but significantly is voluntary and non-binding. Over the past decade in Virginia, mediation has gained in popularity. Competing private companies comprised principally by many retired judges and secondarily by some...
In 1986, Virginia codified the Uniform Arbitration Act. Va. Code Ann. §8.01-581.01, et seq. The 16-section Act presumptively governs arbitration agreements in Virginia absent clear contractual provisions to the contrary. Arbitration is a binding dispute resolution procedure whereby a “judge” agreed upon by the parties decides a...
Lawsuits for wrongful death, brain injury, and other personal injuries contain an ad damnum, i.e., the dollar amount of damages sought by the plaintiff victim. Unlike some other states, Virginia allows a plaintiff’s lawyer to mention the ad damnum to jurors during trial. By statute, a plaintiff’s lawyer in state...
Virginia Supreme Court Rules 4:8 and 4:9 specify time deadlines – usually 21 but sometimes 28 days – for a party to object or to answer and produce. Thus, a failure to object on time maybe deemed a waiver of the objection, particularly in medical malpractice cases where counsel...
Principles of equitable estoppel apply to all areas of Virginia law. Virginia’s Premarital Agreement Act (“Act”), Va. Code Ann. § 20-147, et. seq., is no exception. Under the Act, a spouse need not sign the agreement at the same time as the other spouse, or even before...
Today begins the annual convention of the Virginia Trial Lawyer’s Association (“VTLA”) in Williamsburg, Virginia. Avery T. “Sandy” Waterman, Jr., Esq. is one of its Williamsburg Society members and will be attending. VTLA is an association of trial lawyers from throughout Virginia, many of whom practice vehicle accident,...
Defendants routinely oppose motions for leave to amend in wrongful death, brain injury and other cases against them. But Virginia courts routinely grant leave, consistent with the liberal mandate of Virginia Supreme Court Rule 1:8. “Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va....
Virginia defendants may cite Pulte Home, Inc. v. Parex, 265 Va. 518 (2003) for allegedly impermissible conclusory pleading, in hopes of a quick summary dismissal without addressing the merits of a suit. But Pulte Home usually is readily distinguishable on its extreme facts. In Pulte Home, the plaintiff’s “allegation merely...
This is the last of three posts covering duties of care for protection under Virginia law against criminal conduct of third-parties causing wrongful death, brain injury, and other personal injuries. Virginia recognizes (gratuitously) assumed duties of care. The Virginia Supreme Court recently reaffirmed that one can assume...
This is the second in a three-post series covering Virginia legal duties of care to protect against third-party criminal acts resulting in wrongful death, brain injury, and other personal injuries. In Taboada v. Daly Seven, Inc., 271 Va. 313, 327-328 (2006) on reh. 273 Va. 269 (2007), the...
Generally, under Virginia law one does not owe another a duty to protect against the criminal acts of another. However, there are special relationships between parties that create duties and consequent liability for wrongful death, brain injury and other personal injuries; as this three-post series explains. “The...
This concludes the five-part series on Virginia sovereign immunity pleaded in the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It covers the gross negligence exception, which the victim Plaintiff also was alleged. In a 2003...
his is the fourth in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It concludes the ministerial act exception to Virginia sovereign immunity. There are four additional sovereign immunity cases evincing that...
his is the third in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It continues the ministerial act exception to Virginia sovereign immunity. Heider and Friday-Spivey have articulated and promoted the ministerial act exception...
In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, the brain injury victim is contesting the Assistant Principal’s Plea of Sovereign Immunity. One ground for opposition is that the Defendant’s alleged wrongful act is simply ministerial, which continues...
In Virginia, the Commonwealth, counties, cities, towns, school boards, agencies, and sometimes even their employees enjoy sovereign immunity from the wrongful deaths, brain injuries and other personal injuries they cause. Currently an Assistant Principal is claiming sovereign immunity for brain injuries suffered by a student who was...
Plaintiffs in Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, are the family of a student who suffered brain injuries. Defendant Assistant Principal additionally seeks to interpose Va Code Ann. §8.01-47. §8.01-47 immunizes a “principal…who, in good faith...
Defendant Assistant Principal also seeks to interpose Va. Code Ann. §15.2-248 in Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. But that statute’s "presentment requirement likewise is inapplicable to that brain injury suit on a few independent grounds. The analysis of §15.2-1248 is analogous...
In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, inter alia Defendant Assistant Principal seeks to interpose Va. Code Ann. §15.2-209. But the statute’s “notice” requirement is inapplicable to this brain injury case on several independent grounds. §15.2-209 was passed in the...
Sometimes an unscrupulous adversary lulls another into a false sense of security and inaction, and then seeks to capitalize on technicalities implicated thereby, such as time deadlines missed by the unsuspecting victim. Fortunately Virginia courts are empowered to resolve such injustices based on equity instead...
The General Assembly enacted the Statute of Frauds, making certain oral contracts unenforceable. It explicitly required a contract be “in writing and signed by the party to be charged” in enumerated cases. Va. Code Ann. § 11-2. For well over a century however, the Commonwealth’s Courts have...
The purposes of the Statute of Frauds simply are to provide reliable evidence of the existence and terms of certain covered contracts and to reduce the likelihood that they can be created or altered by perjury or fraud. E.g., Lindsay v. McEnearney Assocs., 260 Va. 48...
On February 23, 2009, Gloucester Circuit Court ruled that a Plaintiff brain injury victim was entitled to all school records concerning his attack, despite Gloucester High School keeping them solely in the files of his attacker, another student named Co-Defendant with its Assistant Principal. The case is Gregory...
Newport News Circuit Court ruled on discovery matters in a patient fall suit, Shakshober v. Riverside Hospital, Inc., alleging medical malpractice and resulting brain injury. That was at contradictory hearing on February 9, 2009. The primary sweep of the impending Discovery Order was disgorging from Riverside materials and...
Virginia defense counsel can file a Motion to Strike various aspects of a lawsuit in vehicle accident, sexual abuse, product liability, premises liability, and all other personal injury cases. Such Motions may strike at particular claims, exhibits, etc. A Motion to Strike “requires the trial court to...
Virginia defense lawyers can demur that a lawsuit fails to state a legally cognizable claim in vehicle accident, wrongful death, brain injury, and all other personal injury cases. Although a Demurrer does not admit purely legal conclusions, it does admit all pleaded facts, and inferences therefrom;...
Virginia defense attorneys can interpose a wide variety of potentially dispositive issues on Special Plea in Bar in vehicle accident, brain injury, wrongful death, and all other personal injury cases. On Plea, the asserting party bears the burden of proof on the issue raised. E.g., Geographic Network...
Virginia jurisprudence holds that an owner may be liable for “negligent entrustment” by permitting an unfit driver to use his vehicle if it causes a vehicle accident. “The correct test of liability is whether the owner knew, or had reasonable cause to know, that he was...
Some parents and others allow underage children to drive the family car. But by Virginia statute, that exposes them to personal liability for vehicle accidents. Va. Code Ann. §8.01-64 reaches any owner who allows and any other person who furnishes a minor who is under 16 years old...