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Trendspotting 2011

Virginia Lawyers Weekly is pleased to present our annual exercise in crystal-balling and tea-leaf parsing, our Trendspotting issue.

We identified five different areas of interest – The Marketplace, Law Practice, The Courts, Technology and Case Law. Each day last week, one of our editors took a topic and, in a piece published on our website, flagged significant developments that are on our radar for this coming year.

The VLW Rule on Trends is as well established as the Rule in Shelley’s Case or the Rule Against Perpetuities: If a trend fizzles or fails to pan out, those things happen. If a trend does come to pass, remember you read it here first.

THE MARKETPLACE

Leaner. Meaner?

Law firms, especially the bigger ones, aren’t staffing cases the way they used to. Formerly, there might be four or three lawyers listed as counsel on a case – the line-up might be a senior partner, a junior partner, a senior associate and a briefcase toter. Not so much anymore. We heard about this anecdotally at first, then we started watching the counsel lists at the different courts and the cases we get. Yep, it’s definitely becoming a pro-sumer arrangement, with some more senior lawyers becoming do-it-yourselfers.

It’s Getting Better All the Time
No one wants to say it too directly or too loudly, lest they jinx things, but the economy is improving. Talk to lawyers at bar meetings, and you’ll hear it: Yeah, we had a pretty good year last year. Whether that comes from tighter money management or just plain working harder (and we’ve heard both explanations), many law firms seem to be weathering the recession and moving into the recovery in decent shape. Before you know it, things will be back to where they were in about 2007.

Relief for New Lawyers, Maybe
It remains a pretty crummy job market for new lawyers. We’ve heard of newly minted attorneys taking part-time or contract positions, just to pay the bills. And those are the ones actually working in the legal field. There are people with a law degree and student loans to pay working non-law jobs for the time being. There is some glimmer of change: We’re starting to see more help-wanted legal ads in our classified pages. The good news for law firms there: they will have their pick of good, qualified candidates.

Lawyers in the News
That’s not the title of the people-on-the-move column we publish periodically. That’s a general description in the 2011 General Assembly session. This session has had more lawyer-related developments than we’ve seen in years, and it’s a short session. From the judicial freeze and its impact to the proposed judicial redistricting to the Virginia State Bar’s $5 million reserve to the seat on the Supreme Court to the developing relationship of the new Chief Justice to the legislature, we’ve had a full rack of stories to follow. And with the exception of the high court vacancy, these stories will continue to take new newsworthy twists and turns.

Lawyers Behaving Badly (Errant Associate Edition)
We follow the disciplinary notices from the VSB and we saw two examples of lawyer behavior that provide a cautionary tale for law firms. In each instance, an associate received payments made out in his or her name, rather than the firm’s name. Our general rule on trends is that is something happens once, it’s news; if it happens twice, it’s something to watch; if it happens a third time, we indeed may have a trend. Memo to managing partners: Watch those payments closely and tip the firm’s financial team to do the same. For whatever reason, in two instances the temptation for an associate to pocket cash or to take advantage of lax bookkeeping practices proved too great. Govern yourself accordingly.

LAW PRACTICE

The Angry Lawyer
Every lawyer has read the essays and heard the admonitions urging lawyers to act professionally, but lately judges seem to get called on more frequently to serve as boxing referees. When a fee collection suit by Northern Virginia divorce lawyer Glenn Lewis morphed into a legal malpractice battle, Lewis was hit by at least five sanctions orders before he settled the case. A recent $10-million verdict in a Charlottesville wrongful death case was followed by acidic allegations of deception, cheating, and evidence destruction. In July, a Northern Virginia judge ordered $272,000 in sanctions for what he called “vindictive” litigation. Can’t we all just get along?

Crackdown on UPL
Are prosecutors getting tougher on those who try to practice law without the requisite credentials? In a recent two-month period, charges were brought against three alleged offenders: A commissioner of revenue was accused of drawing up a legal document for a citizen, a patent lawyer was charged with practicing without a Virginia license, and a former Virginia Beach lawyer was charged with representing a client in court just days after the Virginia State Bar revoked his license. Then there’s the UPL charge levied last year against a Washington lawyer who tried to represent special education clients in Virginia without a VSB license. Maybe the VSB won’t get felony status for UPL, but violators clearly risk prosecution.

Hush Money
Judges have struggled with efforts by settling civil defendants to keep their settlements secret. It’s an understandable impulse. The defendant wants to silence any breath of scandal from payments based on accusations of wrongdoing. The defendant also wants to keep other potential plaintiffs in the dark about what similar claims might be worth. Federal courts recently split on requests to seal settlements in Dollar General overtime pay cases, but in September a Northern Virginia federal judge refused to seal a $600,000 deal in an eating disorder case, even though no one opposed the motion to bury the settlement terms.

Criminal Law Power Struggle
Tension abides between prosecutors and the defense bar over any number of issues, including discovery, accusations of impropriety, and post-conviction relief for immigrants. Nothing, however, seems to pose a greater potential for ongoing debate than the Virginia Supreme Court’s recent pronouncement that judges possess the automatic authority to allow a “slow acquittal” for defendants, even when the evidence points to guilt. Lawmakers may be considering legislation to overturn the decision in Hernandez v. Commonwealth, but count on prolonged angst over just how much “mojo” a judge has to fashion the outcome in criminal cases.

The Disappearing Civil Jury….
Perhaps everyone knows what a case is worth nowadays, or maybe trial costs have become unpalatable for insurance companies. In any event, it’s a comment we hear again and again from litigation attorneys – no one tries cases anymore. A Virginia Supreme Court report from 2009 noticed a slight uptick in both civil and criminal jury trials, but the fact remains the rate of cases decided by juries is at a long-time low. Another boost in the numbers in the 2010 report might be enough to signal a trend, however weak, in the opposite direction.

THE COURTS

Moving Forward
New Virginia Chief Justice Cynthia D. Kinser was trying to mend fences between the judiciary and the legislature even before she formally took the job, and the sometimes prickly relationship between the two branches of government clearly could stand some work. The legislature dropped a bombshell last year by placing a freeze on filling judicial vacancies. This year legislation was introduced to realign judicial circuits and districts and reduce the number of judges in the state by 20 – without even a hint to court officials that it the proposal was in the works. As of this writing, the Senate wants to thaw the freeze, while the House wants to keep it rock hard. Look for a few critical judgeships to be filled and for the legislature to ask the Supreme Court to help on the redistricting rather than pass legislation making it a fait accompli. And look for some interesting sessions between court administrators, and perhaps even a justice or two, and a legislative committee in the fall.

More Changes at the High Court
The death of former Chief Justice Leroy Rountree Hassell Sr. last week will extend the period of substantial turnover on the Supreme Court of Virginia. His replacement will be the fifth new justice in little more than four years. The other departing justices have left for a variety of reasons – a voluntary retirement to senior justice status, reaching the man-datory retirement age of 70 and appointments to the 4th U.S. Circuit Court of Appeals. Although he was the senior justice in terms of service, Justice Hassell was younger than three of his colleagues, the oldest of whom is at least seven years away from the mandatory retirement age for judges. Until his death, it appeared that the court would have a period of stability once a successor for now-retired Justice Lawrence L. Koontz Jr. was selected.

The South(west) Shall Rise Again

Far Southwest Virginia is coming to the fore in providing legal leadership for the state. And in the case of Chief Justice Kinser, we do mean far, since her home and chambers in Pennington Gap are barely 10 miles from the Kentucky line. Judith Williams Jagdmann, a Jonesville native, will take a turn this year as chairman of the State Corporation Commission. Pia Trigiani, who grew up in Big Stone Gap, was installed last month as president of the Virginia Bar Association. And Dave Harless is in line to become Virginia State Bar president in 2012. He practices law in Richmond, but his mom and his heart are still in Lee County.

Getting Down to Business in GDC

Expect more relatively serious cases to be tried in general district court. Bills increasing the jurisdiction of the courts from $15,000 to $25,000 have passed unanimously in both houses, and the measure follows the recent elimination of the automatic right of removal for defendants. The Virginia Trial Lawyers Association likes it. The Virginia Association of Defense Attorneys doesn’t. The VADA might have been trying to restrict the effect of the inevitable by arguing for limited discovery in general district when the amount in controversy exceeds $25,000, but it failed in the Boyd-Graves Conference, and the concept has gotten no traction in the legislature. Most judges and GDC practitioners countered that any type of discovery beyond a bill of particulars changes the fundamental nature of the court. Perhaps its strongest argument of the opponents was that the proposal will be a false economy because far more cases will be tried to a plaintiff’s verdict in general district court and then tried again de novo on appeal to the circuit court.

‘ObamaCare’ – Been There, Done That

Already sick of the discussion about the Obama health care plan? It’s going to get worse before it gets better – if it ever does. The major constitutional argument, the challenge to the requirement that individuals buy health insurance, already has been well articulated and is only awaiting the final word from the U.S. Supreme Court. Two highly regarded Virginia federal judges came down on opposite sides of the question, which will help maintain interest on the issue in the state, as will the comments and strategy of peripatetic Attorney General Ken Cuccinelli. It’s unlikely, but the Supreme Court could save lots of trees and electrons – and allow the country to move onto a topic with some novelty to it – by granting Cuccinelli’s request for an expedited hearing to decide the issue. It might also short-circuit the somewhat disturbing trend of having judges appointed by Democrats uphold the law and those appointed by Republicans find it wanting.

TECHNOLOGY

Virtual Law Firms
Meeting with a client in a chat room instead of a conference room may sound a bit impersonal, if not impractical. But according to a recent survey by the American Bar Association, 14 percent of lawyers claimed to work for a “virtual law firm.” Under this model, lawyers still hold regular meetings with clients, exchange documents and take care of billing matters – only it’s all done online. Going virtual gives attorneys the flexibility to work from anywhere with an Internet connection and the capacity to reach beyond their local communities. The virtual firm doesn’t work well for all areas of law practice, though, and it certainly doesn’t appeal to everyone. But with the marketplace still recovering and traditional firms slow to hire, it may be the ideal route for a new attorney with limited resources. This one may just catch on.

Jurors and Social Media

The general public’s laissez-faire approach to social media seems to stir up frequent trouble in the courts system. Last year, a series of Twitter-related defamation suits made the rounds. More recently, reports have zeroed in on how jurors’ use of social media is wreaking havoc on courtroom proceedings. In different parts of the country, jurors have found themselves in hot water for leaking case details prior to a trial’s conclusion. In one case, a juror tweeted his intentions of finding a defendant guilty. In other instances, a blogger was called into question after expressing her opinions of the lawyers, and a group of jurors were found to have “friended” each other on Facebook. This sort of misconduct could potentially lead to mistrials and overturned convictions. In response, some courts have begun adapting rules that restrict access to the Internet during an ongoing case. Could a bigger crackdown on jurors’ use of social media in the works for 2011?

The iPad Lawyer
Apple’s iPad has been on the market for about a year, and the legal community has been receptive to the new technology. For lawyers on the go, the iPad’s connection speed, processing power, ease of use, portability and long battery life give it an advantage over the laptop. But even with the ongoing development of lawyer-geared apps, the iPad has its downsides. Currently, the iPad can’t operate more than one application at a time, it doesn’t support third-party software and it also lacks a keyboard. And while it has Internet capabilities, many websites are still not compatible with mobile devices. Meanwhile, as the iPad gains its foothold, other tablet devices are emerging on the scene. Samsung has released the Android-powered Galaxy tab and the Blackberry PlayBook is in the works.

New Tech, New Discovery
As new electronic gadgets continue to flood market, e-discovery specialists are busy keeping up with ever-changing technology. Laptops, smart phones, GPS systems, digital copiers and even Smart Tags are potential gold mines for data detectives. Electronically stored information leaves behind a digital footprint, even after it’s deleted, and this type of evidence will play a bigger role during case discovery. Lawyers should advise their clients accordingly, but must be cautious themselves. Hackers and data thieves are also becoming savvier about tapping in to digital devices, so it’s important to keep up to date with the latest digital security measures and properly dispose of outdated electronics.

Twitter Lives On
In April 2009, when Twitter was just starting to take off in the legal community, law firm consultant Larry Bodine compared the social media site to the Macarena: hot today, gone tomorrow. The buzz over Twitter certainly has died down over the past two years, but is Twitter really going the way of the 1996 dance craze? When Virginia Lawyers Weekly jumped on the bandwagon in November 2008, only a handful of Virginia lawyers were using the site. As Twitter’s popularity grew, a new crop of legal tweeters emerged. Some lawyers lost steam quickly, while others are still going strong today. The number of lawyers joining Twitter has slowed down, but by our account, it continues to grow at a slow but steady rate. While Twitter may no longer be such a novel concept, many lawyers still make it part of their daily routine. We’ll continue to keep an eye on its momentum over the next 12 months.

THE CASE LAW

Government going for the big bucks

Look for more lawsuits under the False Claims Act, some of which can rake in the big bucks.

There’s no shortage of people who think they have an inside track on their employers’ wrongdoing, and who want to make a federal case out of their complaints.

And the government is standing by to swoop in when the employee, or “relator,” in FCA parlance, demonstrates that he knows what he’s talking about. That’s the model for the FCA, in which the relator, often a former employee, files suit under seal alleging fraud on behalf of the government. The Justice Department reviews the case and pursues the action if it believes it has merit. If the government rejects the case, it is unsealed and the relator can attempt to make the case on his own. Getting the government in on the suit is crucial, lawyers say, since it has the resources to develop the case.

One of the biggest FCA wins of last year started just outside Richmond, and led to Virginia lawyer Phil Marstiller ultimately winning a $313 million settlement for a pharmaceutical kickback scheme.

The Justice Department reported that it collected $2.3 billion from FCA suits during the fiscal year that ended Sept. 30, largely on claims brought against companies that allegedly defrauded the government. When the government wins its case, the relator who initiated the suit – and the lawyer – win a cut, too.

Lawyers looking for whistleblowers advertise online, and business likely will continue to pick up in the coming year.

Mo’ hours, mo’ money

When a prominent personal injury law firm starts to advertise for overtime-pay claims, you know it’s onto something.

The current labor market provides fertile ground for overtime-pay cases under the federal Fair Labor Standards Act. News reports say employers are reluctant to make new hires, and instead continue to press current staff for greater productivity.

There’s still a lot of grey territory where employers and employees can fight over issues such as who qualifies as a manager not eligible for overtime pay. Dollar General Store has been waging that fight in Virginia and elsewhere around the country.

Late last year, an editorial in the Wall Street Journal railed at the plaintiff’s bar for turning confusion over who’s covered by the FLSA into a “legal gold mine.” The number of FLSA lawsuits has quadrupled to more than 6,000 in 2009 from about 1,500 a year in the early 1990s, the WSJ reported.

Look for companies to recalculate the cost-benefit of current practices in the coming year. Instead of paying the reported median cost of $7.4 million to settle a case, in the kind of class-action complaint plaintiff’s lawyers love, businesses may just decide to bring on more employees.

Foreclosure fight inching forward

Homeowners trying to avoid foreclosure didn’t have much luck last year, but expect them to keep coming to court.

Virginia courts, state and federal, have turned away a variety of claims under statutes such as the Truth in Lending Act, the Fair Debt Collection Practices Act, the Virginia Consumer Protection Act, and under common law theories.

But lately, borrowers have gotten a little traction, as a Charlottesville U.S. District Court ruled that a woman who alleged predatory lending practices could sue under the Virginia Mortgage Lender Act and the Virginia Consumer Protection Act, and for breach of contract. Her case is set for mediation Feb. 11.

And a state court judge recently said a borrower could pursue his claim that a defendant bank could not foreclose on his home because the note was missing and the bank did not show that it had an interest in the borrower’s debt obligation on his home.

Legal fees are a hot topic

Court scrutiny of legal fees will continue to draw lots of attention.

There may be plenty of talk about alternative billing schemes, but lots of litigators still charge by the hour.

And when they have a chance to shift those fees to their opponents, the reviewing judges pull out their magnifying glasses.

Lawyers seeking fees use several sources to justify their hourly rates: commercial surveys, court-sanctioned scales and affidavits from other lawyers. Judges in NoVa have refused to rubber-stamp fees based on the “Laffey Matrix” used in D.C. courts, but recently an Abingdon federal magistrate judge recommended approval of market rates within the Laffey range in a suit under ERISA and the Labor Management Relations Act.

In addition to squabbles over the Laffey Matrix, courts likely will continue to look at how cases are staffed. Do you really need that extra senior associate sitting there during a deposition? And should a senior partner charge top dollar to draft pleadings?

Not your father’s (or your mother’s) 4th Circuit

The Richmond-based 4th U.S. Circuit Court of Appeals has been called the most conservative court in the country. But it’s been mixing it up lately.

Five new judges – one-third of the current roster – have joined the court since 2008, including two from Virginia. If you’re keeping score, the balance now stands at eight judges tapped by Democratic presidents, and seven, including one senior judge, who got the nod from Republican presidents.

Two areas to watch: employment discrimination cases and civil rights cases that arise from police-citizen clashes.

In the former, it appears the court is not as quick to pull the trigger on employees suing for discrimination. It has, for instance, said a jury should decide whether a trucking company discriminated against a female driver with its use of a physical ability test; whether a maintenance supply company adequately responded to an African-American female’s hostile environment claim; whether a male doctor who owned a medical clinic subjected his female employee to a hostile environment; and whether a female air traffic controller could show whether her male coworkers’ conduct was merely boorish, or truly hostile.

Likewise, the court seems a little more likely to let cases go to a jury, rather than routinely hold that the defendants are protected by qualified immunity.

Recently, the court has rejected qualified immunity for a special-ops team’s no-knock entry into the home of a man who had nude photos processed at the local Walmart; a police officer who allegedly used excessive force when he fired at the plaintiff during pursuit on a stolen car report; and a prison nurse who allegedly tore up a slip that prescribed medical treatment for an inmate’s infected foot.

Although the court upheld qualified immunity in other cases, in two of those, involving a deputy who accidentally mistook his Glock for his Taser when he was serving a warrant on a child-support related charge; and an officer who used a “find and bite” dog to search for an intoxicated 13-year-old boy, the majority decisions drew vigorous dissents.

— Compiled by Paul Fletcher, Deborah Elkins, Alan Cooper, Peter Vieth and Sarah Rodriguez

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