Virginia: Brain Injury – a Lawyer’s Replacement

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In the brain injury appeal of Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767, the Defendant claims that the prior action deposition should not be admissible because it was defended by an associate instead of a partner. However, Virginia and Federal cases hold that the party’s choice or change of lawyers is an irrelevant consideration.

“The fact that counsel in the present case may have approached the pursuit of this motive from a different angle is not the test.” Green v. Doe, 1 Va. Cir. 118, 119-121 (Richmond May 10, 1972). “It may well be that [counsel in the current action] may have subjected [the witness] to perhaps a more rigorous cross-examination than did Plaintiff’s counsel in the prior case,” id.; but that should not make any difference in the Burns/Gagnon crime victim action.

Likewise, whether the prior action deposition was taken “by a different attorney is immaterial” under analogous forerunner Federal rules. Copeland v. Petroleum Transit Co., Inc., 32 F.R.D. 445, 447-448 (E.D.S.C. 1963). Consistent with the brain injury victim’s position in Burns/Gagnon out of Circuit Court for Gloucester County, Virginia, is the Federal holding that the “purpose of using prior depositions and testimony is to save time, effort and money of litigants and to expedite trials, with a view to achieving substantial justice”; that “whether prior depositions can now be offered into evidence rests within sound discretion of the Court”; and that the “test [of admissibility] is not whether [particular] attorney had opportunity to cross-examine the witness, but whether the party-opponent had the opportunity and the same interest and motive in his cross-examination [by a different attorney]”). Hertz v. Graham, 23 F.R.D. 17, 20, 23 (S.D.N.Y. 1958).