Virginia Lawyers Weekly

It’s time to take a look at the year ahead and opine on the trends we’ll be watching and reporting in this newspaper. That’s always a dicey exercise.

As for 2009, good luck, you say.

The mantra of the moment is “Let’s see where we are in six months.”

Wait and see.

Indeed, the economic uncertainty of the times and the change of administration in Washington makes it very hard to figure out which way 2009 will go. There will be some kind of economic stimulus package passed by Congress and signed by President Obama, but who knows what it will bring and how it will be paid for.

Virginia is looking at a deficit of billions; the governor and legislature are spending a lot of this short General Assembly session trying to figure out what to do.

The just-released, somewhat anemic, figures on end-of-year consumer spending indicate that Americans are holding on to their dollars for the time being, too.

Law firms, which probably are better positioned than many businesses, feel the pinch. Purchasing decisions are on hold. New lawyer pay has flatlined; law firms aren’t hiring anyone at the moment. Rumors of layoffs at big Richmond firms so far have been only unconfirmable rumors.

Several firms founded “economic rescue” practice sections for clients. Bankruptcy practice is doing well, despite the recent changes to the law making it harder to file.

Government offices may cut back on hours or services. Businesses may close. Everyone is looking for a way to trim costs and hold the line on spending.

Enough. You get the idea. So, what really are the trends to watch in 2009? Ask again in six months.

Who are those guys?

It’s happened twice so far, with another instance we’ll have a certified trend. The topic is judicial endorsements. And Butch Cassidy’s famous line, above, could apply to some of the recent applicants for judgeships.

Generally when there is an open federal judgeship or seat on one of the state appellate courts, Virginia’s bar groups will announce a screening process that leads to endorsements for the General Assembly, the governor or our U.S. Senators.

And generally there is a group of potential candidates that includes long-time judges or more senior members of the bar. There are some candidates who have been considered and participated in the endorsement process more than once.

When the pending vacancy on the Court of Appeals opened up, some previous candidates asked to be considered. But the list of bar group interviewees included several first-time candidates who had not been judges at a lower level, and some who had not been through the statewide process before. They generally were younger and their backgrounds were more varied – government service or in-house experience.

Same story for those seeking a seat on the 4th U.S. Circuit Court of Appeals or the open federal judgeship in Richmond. A few candidates who have been on the bench or in practice for some time and some newcomers who are trying to take a less traditional path to a judgeship.

In the case of the federal seats, the switch in the political party controlling the White House usually has prompted a different set of candidates to come forward, and that may be in play.

For the appeals court seat, bar groups for the most part declined to endorse the newer group of candidates. But those who offered themselves can take solace that their names are now out there. Established candidates have to start somewhere.

Go narrow

Lawyers and law firms have been steadily building a presence in the blogosphere.

With the growing popularity of Web 2.0 and social networking, more and more lawyers have been establishing legal blogs as vehicles to spread news and voice opinions, and also as marketing tools to build firm reputation.

Blogging isn’t new. The trend lies in the emergence of special interest and expertise blogs that concentrate on specific practice areas.

E-commerce, business conspiracy, appellate news, noncompetes — these are among the diverse topics covered in blogs authored by lawyers here in the commonwealth.

It makes more sense that a blog focusing on the general practice of law would cast a wider net and potentially attract a larger audience. But the opposite appears to be true: Blogs that have a narrower focus are more likely to be the definitive source on a subject and less likely to compete with numerous other blogs on the same topic.

When we ran our Web 2.0 series last month, we highlighted a handful of “blawgs” we were aware of and asked lawyers to inform us of any we might have missed. The response was overwhelming.

We have since built a new section of the Virginia Lawyers Weekly Web site that summarizes and links to these blogs (www.valawyersweekly.com/virginia-legal-blogs/).

We anticipate the list will grow as the year progresses.

Paying attention to procedure

Rules of procedure are an operator’s manual for lawyers. So they pay close attention to the nuances when, say, various panels of the Court of Appeals apply Rule 5A:18, the contemporaneous objection rule.

There seems to be a developing dialogue within and between Virginia’s two appellate courts on just how persnickety to be in applying gate-keeping rules of procedure.

Judges on the Court of Appeals are not necessarily dissenting any more than usual on whether lawyers are properly preserving their appellate claims under Rule 5A:18, but the judges may be talking about it more, perhaps for the benefit of the practicing bar.

A good case study is what happened in the panel and en banc opinions in Scialdone v. Commonwealth (VLW 008-7-199, VLW 009-7-002). Although the en banc Court of Appeals upheld contempt findings against two Virginia lawyers and a law clerk, the court fractured on application of Rule 5A:18.

The Supreme Court of Virginia said last April in Jay v. Commonwealth (VLW 008-6-040) that the Court of Appeals had been too quick to dismiss two criminal appeals for defects under Rule 5A:20, which covers “Questions Presented.” Lawyers translated the high court’s message to mean that a weak brief is not always jurisdictional error.

In a series of unpublished opinions, the intermediate appellate court stated its reasons for its application of the rule, twice citing the Jay standard that a party’s failure to strictly adhere to Rule 5A:20 had to be “significant.” Judge D. Arthur Kelsey carried the banner for strict enforcement of procedural rules to a group of Roanoke-area lawyers at a bar program reported in May.

In November, several members of the Court of Appeals appeared willing to engage the high court on a procedural matter close to lawyers’ hearts: who gets to award attorney’s fees. In a published order in Lynchburg DSS v. Cook (VLW 008-7-482), the judges predicted “far reaching consequences” for the Supreme Court’s remand of a grandparent custody case with an order for the circuit court — not the Court of Appeals — to determine attorney’s fees for appellate expenses.

Not only are there differences in standards of application for the rules, the rules themselves differ for the two appellate courts.
Look for more help later this year. An appellate rules advisory committee chaired by Supreme Court Justice Donald W. Lemons has worked for several years to harmonize the two courts’ rules. In August, the committee completed its recommendations for changes to Part 5, on Supreme Court practice, and Part 5A, which covers the Court of Appeals.

In addition to possible approval of the advisory committee’s Parts 5 and 5A recommendations, lawyers also may see action on Part 9, Draft Rules on Privacy and Access to Court Records, and on the proposed Rules of Evidence.

Quick hits

Other topics we’ll be following in 2009:

• Fewer trials, bigger settlements? The number of million-dollar verdicts from 2008 was down and the number of million-dollar settlements was way up.

• The green movement. Arlington is leading the way in Virginia on adopting and applying LEED standards to building.

• Med-mal damages cap. The economy and dealing with a state budget deficit pushed this issue to the margins in 2009. Leaders at the Virginia Trial Lawyers Association haven’t given up…they’re just holding their powder.

• Law firm layoffs in Virginia, noted above. Our editors continue to hear rumors on the bar-group circuit, but no one will confirm it has happened to them. But they do want to know about the other guys.

• Change in Washington. President Obama may remake the 4th Circuit with appointments to the four openings on the 15-judge court.

— Paul Fletcher, Deborah Elkins and Sarah Rodriguez

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