Virginia Lawyers Weekly

STAUNTON—Signals from the Supreme Court of Virginia indicate that a two-decade effort to establish official rules of evidence for Virginia courts may be nearing fruition, according to a lawyer who has advanced the cause since the mid-1980s.

John M. Oakey Jr. of Richmond is encouraged by signs that Chief Justice Leroy Rountree Hassell Sr. is laying groundwork for adoption of a set of evidence rules.

Oakey made his remarks to the Boyd-Graves Conference, an assembly of prominent attorneys, academics and judges that makes recommendations for changes in the Virginia civil justice system, that held its annual gathering in Staunton Oct. 24-25.

He reported to the Boyd-Graves participants that Hassell appears to be forming a committee to study adoption of official evidence rules. According to Oakey, Hassell recently requested suggestions from law school deans for faculty members to serve on the committee.

Hassell also arranged for copies of the unofficial “Guide to Evidence in Virginia” to be distributed to all Virginia judges this summer, according to Prof. Kent Sinclair. Like Oakey, the U.Va. law professor has long been involved in the effort to establish an official evidence rule book.

Oakey said that in his most recent meeting with the chief justice, Hassell continued to support the idea that evidence rules be officially adopted.

Oakey said that Hassell has two main concerns. He wants to be sure that the rules accurately reflect current Virginia law and he wants to make sure that they are not subjected to line-by-line editing by the General Assembly.

Distribution of the evidence guide to state judges is “recognition from on high that these ‘non-rules’ are beneficial and helpful in many respects,” according to Prof. Kent Sinclair of the U.Va. law school.

“For the first time, I’m optimistic” about getting official evidence rules, Oakey said. He said that he hopes that the rules might be presented to the 2010 Virginia General Assembly, since it’s too late to get a proposal to the 2009 legislature.

Oakey explained that evidence rules promulgated by the Supreme Court would have to be considered by the General Assembly since they would supplant many existing statutes dealing with admissibility of evidence.

Momentum for official evidence rules has been building this year. In March, the Judicial Council of Virginia unanimously recommended adoption of a set of draft rules. The council’s report noted that, during the three-year development process, no comment was received opposing the plan to adopt official rules.

At that time, Hassell blessed the project, calling it “much needed.”

Safe harbor?

In other action at Boyd-Graves, participants failed to reach consensus on whether Virginia should adopt the “safe harbor” provision of the federal sanctions rule. The conferees split down the middle on providing an opportunity in Virginia civil procedure for an accused abuser to withdraw an offending pleading, such as that provided by Rule 11 of the Federal Rules of Civil Procedure.

Boyd-Graves participants did, however, vote to recommend an effort to educate judges and lawyers about the already existing provisions of Virginia Rule 4:15 (b) which requires a good faith effort to resolve disputes without court action. That provision is often ignored in Virginia practice, according to comments from the conferees.

The Boyd-Graves conferees renewed a call for a legislative study of claims paid under the Virginia Tort Claims Act.

At issue is Virginia’s patchwork pattern of governmental immunity that allows some liability claims against local government employees but blocks other claims. Recommending a uniform standard was one of the goals of a Boyd-Graves study committee.

The question arose whether local government should be under the VTCA, which now allows claims against state employees only. Former Sen. Wiley Mitchell told other Boyd-Graves members that there is no central repository of information on paid claims under the VTCA. “No one has that information,” Mitchell said.

Boyd-Graves members want to know what costs are incurred in paying state tort claims and the cost of increasing the state’s liability limits. Claims are currently capped at $100,000.

Other recommendations from the Boyd-Graves Conference:

• Allowing use of depositions in juvenile court proceedings

• Affirming that the filing of a demurrer does not justify a stay of discovery.

• Changing Virginia’s privilege law to establish that the privilege of non-disclosure belongs to the person who has communicated private information.

• Providing a “savings” clause for pleadings filed by attorneys not authorized to practice in Virginia.

• Providing for attorney’s fees in all cases of fraudulent conveyance, even if judgment was obtained prior to instituting suit.

• Changes to streamline the process of foreign depositions and discovery.

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