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‘Kiss my sanctions’ may not be enough

Once again, when trial judges and lawyers convene, the talk turns to Benitez, the Virginia Supreme Court sanctions case. The venue this time? A panel of circuit court judges at the Virginia Trial Lawyers Association annual meeting on March 28, moderated by Arlington Circuit Court Judge Joanne Alper.

The subject is irresistibly personal.

“Sanctions motions are different and more difficult because they’re personal,” said Albemarle County Circuit Judge Cheryl Higgins. Basically, “you want a finding that the other attorney is a jerk.” You’ve got to use “e-mail, faxes, voice-mail, letters,” all kinds of lawyer-to-lawyer communications to prove your point.

Higgins is seeing more sanctions motions, but she cautions against filing just because you think you’ve got grounds.

Some lawyers see a flimsy claim or defense and fire off a “kiss my sanctions” motion, without any cite to authority. Higgins, who took the bench in Albemarle County in 2007, said “you would not believe what I’ve read in the last year.”

Higgins said it’s important to “think strategically before you file a motion for sanctions. What is it you’re trying to accomplish for your client,” given the time and expense of pursuing a sanctions motion.

“When you bring a sanctions motion, you’re putting your credibility on the line,” Alper said.

What about giving opposing counsel a chance to back down? The consensus among this group, which also included Richmond Circuit Judge Brad Cavedo, seemed to be it’s not necessary under the current statute, but it might be as a matter of professional courtesy.

In practice, “you try to work it out,” said Hampton Circuit Judge Wilford Taylor Jr. “We don’t want to sanction lawyers.”

Word is, a Boyd-Graves committee is looking at drafting a “safe harbor” provision for Va. Code § 8.01-271.1, similar to the one in Fed. R. Civ. P. 11, that requires a warning shot over the bow before a sanctions motion is filed.

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