Publisher's Notebook

Here’s an item in honor of Veterans Day tomorrow.

It’s Veteran Legal Services Month, and the Virginia Bar Association is once again at work recruiting pro bono volunteers to help veterans with legal issues and raising money for projects that help them.

Volunteer response was strong last November, during the bar group’s first push for help for veterans. But pro bono lawyers are still needed, particularly to take domestic relations cases, said Robert Barrett, co-chair of the VBA Veterans Issues Task Force.

America has been at war for 10 years now, he said, and if a servicemember has been in the service during all that time, he or she likely has had more than one deployment. The situation puts great strains on families. The task force needs volunteers who can help with divorce, custody and no-fault separation.

In terms of geography, Hampton Roads is a particular area in need. Norfolk has the world’s largest naval base, and Ft. Monroe, the Joint Forces Command and other outposts are in the area at large.

Barrett said domestic cases make up 60 percent of the cases the VBA task force takes in, but the needs don’t end there. Attorneys can assist with issues involving landlord/tenant disputes and employment law.

The other task force initiative this month is fundraising. Barrett said that Matt Kapinos, the other task force co-chair, last year thought up a fundraising drive for the Veterans Benefits Clinic at the William and Mary law school.

The drive got under way without as much time as the two men would have liked, but they still raised more than $25,000, mostly from Central Virginia law firms, Barrett said.

This year, the task force hopes to double that figure, and the beneficiary will be Helping Military Veterans through Higher Education (HMVHE), a consortium of colleges and universities that are coordinating their schools’ resources to assist veterans and military servicemembers with legal, medical and benefits needs.

Schools supporting HMVHE so far include: Eastern Virginia Medical School, James Madison University, Lynchburg College, Old Dominion University, Radford University, Shenandoah University, the University of Virginia, the College of William & Mary and Virginia Commonwealth University.

Barrett said that the organizers are including law firms again, but they hope to tap government offices, the Attorney General’s office and private companies. Barrett said that he went in-house about a year ago, and he has been working with WMACCA, the group of in-house lawyes based in Washington.

Anyone who is interested in volunteering their time or donating to the cause can do so at the VBA website – www.vba.org/veterans.

The task force hosted a kick-off last Friday in Richmond, with Gov. Bob McDonnell as keynote speaker. McDonnell, a former lieutenant colonel in the U.S. Army with a daughter who served in Iraq, called the VBA’s work “a critically important initiative.”

Veterans are “American heroes,” McDonnell said, who risk life and limb for the nation. “We need to treat veterans well.”

WILLIAMSBURG–Virginia Beach lawyer Steve Emmert knows a thing or two about taking a case up on appeal.

He’s one of the lawyers who has built appellate law into a recognized and well-respected area of practice in Virginia.

He’s served as chair of the appellate practice sections of both the Virginia State Bar and the Virginia Bar Association.

Emmert was asked to speak to the Virginia Association of Defense Attorneys’ annual meeting in Williamsburg Oct. 28. He told me before his talk that he had to dig deep into the past to the time he regularly tried cases; he knew his crowd was more interested in the courtroom than the appellate chamber.

For a guy who is a member of the Virginia Trial Lawyers Association’s board of governors, his talk to the VADA was a trip to or from the dark side, depending upon your perspective.

Instead of droning on through 45 minutes of “how to preserve this point,” Emmert did a reverse flip and presented the “Top Ten Ways to Sabotage Your Appeal.” In other words, be sure to do these things if you want to guarantee your appeal is a failure. As for his format, Emmert joked that “people told me I looked like David Letterman before I grew a beard.”

Herewith, Emmert’s list:

10. Make nice fuzzy, vague objections. Don’t give any reasons for objections, just say, “I object.” This “speeds up” the trial, Emmert said.

9. Rely on the “plain error” doctrine. This catch-all rationale lets an appellate panel fix a problem that is just plain wrong. It also allows the appellate lawyer you hire to “ride to the rescue,” he said. The only problem here is that “plain error” is defined narrowly in the Rules of Court.

8. Accept the judge’s ruling and just move along. You might risk the judge’s wrath, but there are times when you need to insist on a line of questioning. Also, there are times to insist on proffering evidence, even in the face of an adverse ruling, Emmert said. If the proffer isn’t part of your record, the appellate judges can’t see what you were trying to do and whether you were right.

7. Get the trial over with, already! As jury instructions are being read, don’t follow along to see if there is a mistake.

6. File a motion in limine, then relax. Some questions need to be taken care before you start swearing in witnesses, and pre-trial motions will help you, the other side and the judge to sort things out. If you don’t push these and wait until all those issues come up in trial while the jury is sitting in the box, you don’t have to worry about victory.

5. Let sleeping judges lie. Judges take issues under advisement during a trial, then forget about them. If you don’t bring them back up or press for a ruling, the issues stay forgotten and lost as potential points of appeal. There might be a time to go for the nuclear option: “Your honor, I object to your failure to rule on my objection.” The judge may not like it, but the Supreme Court of Virginia has said “it’s what you have to do,” Emmert noted.

4. Test your memory. You can save space in your trial notebook if you just plan to remember everything. If you don’t bother with writing down a list of unresolved motions or objections, or you don’t list exhibits that need to be included, you won’t have to deal with them later, he said.

3. Renew your motion to strike. This once-clear practice has turned into a tricky appellate trap, thanks to a pair of cases from last year – Murillo-Rodriguez v. Commonwealth, 279 Va. 74 (VLW 010-6-008), and United Leasing v. The Lehner Family Business Trust, 279 Va. 570 (VLW 010-6-031). The bottom line – if you don’t restate your reasons behind the motion to strike when you renew the motion, you’re cooked. A mere renewal isn’t enough, Emmert said.

2. Go placidly off the record. If you approach the bench at the judge’s invitation or go back to chambers to resolve issues out of the presence of the court reporter, you have forfeited them as appeal points because you “make sure nothing happened.” One alternative – once you’re back on the record, you make a statement reiterating the pertinent issue, including what was ruled and even why.

1. Be relentlessly polite. You’re taught as a child never to interrupt anyone, but impeccable manners in a trial might insure your loss. You need to be ready to jump in and object, even if the judge “takes the wheel” and starts asking questions of a witness.

“Your honor, I object to what you’re doing” is a statement that might require some guts, but ultimately, your client – either the plaintiff or the defendant – didn’t hire you to be milquetoast.

WILLIAMSBURG—Richmond lawyer Lisa Frisina Clement became president of the Virginia Association of Defense Attorneys today at the group’s annual meeting at the Kingsmill Resort.

The VADA was founded in 1968; Clement is the first woman to lead the defense bar.

The group came close in the early 2000s, noted outgoing president Dennis Quinn. Pamela Baskervill of Petersburg was one of the officers when she was elected to the circuit bench in 2003.

Quinn quipped in passing the gavel to Clement, “I am proud to be the last in a long line of male presidents.”

If the VADA waited 43 years for its first female president, it won’t be long until the second takes office. Elizabeth Perrow of Roanoke is right behind Clement as president-elect.

Following Perrow will be John Owen of Richmond.

However, the group will have a third female president in four years: Richmond’s Kathleen McCauley was elected secretary at today’s meeting.

With the General Assembly session starting in a month, the leaders of several state bar groups are seeking war stories about how the judicial hiring freeze is affecting the administration of justice in the commonwealth.

A quick recap: Last year, for budgetary reasons, the legislature decided to stop filling open judgeships for two years. According to the Virginia State Bar, 19 judgeships are currently vacant due to the freeze. The state budget anticipates that the number will rise to 32 by the end of the budget period in 2012, due to retirements.

When he took over the VSB presidency last June, Irv Blank promised he would make the judicial freeze an issue. With an e-mail sent to all bar members last week, Blank stirred the pot and made good on his promise. Blank said that due to the freeze, “Signs of crisis are emerging in pockets across the state.”

But apparently no one is squawking. He said, “I have been told by members of the General Assembly that they have not been hearing from constituents on this issue.”

Blank wants to change that. “We need your stories of the effects of the freeze on your clients — individual and corporate — as well as on the senior and substitute judges who are taking up the slack where full-time judges are not available. I encourage you to submit those stories to me and to contact your legislators with your concerns,” Blank said.

He asked that any observations be sent to breeden@vsb.org or to Irving M. Blank, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219.

Blank’s request comes on the heels of a similar e-mail missive from Virginia Trial Lawyers Association Executive Director Jack Harris.

Harris noted that the VTLA wants to focus first on those circuits and districts where the freeze is being felt most acutely and to do that the group needs more than statistics from the Supreme Court’s executive secretary. He asked that members “tell us directly what problems this freeze is causing you in terms of delays in getting trials scheduled, having motions heard, etc.”

Harris asked that stories be sent to him (jharris@vtla.com) or the association’s director of government relations, Mandy Burnett (mburnett@vtla.com).

VBA President Steve Busch and VBA Executive Director Guy Tower recently advised members of that association that the VBA had formed a special committee on the issue, with representatives from all VBA sections. But like Blank and Harris, they want the local scoop.

“The Supreme Court’s statistical information demonstrates the overall scope of the problem, but we also want to share more real world stories about how the freeze is being felt most acutely by you—the practicing lawyers of Virginia” they wrote.

They acknowledged that continuing budget concerns probably will prevent a restoration of all the scheduled positions. But they expressed hope that information from lawyers might contribute to a working on solutions for particularly hard-hit jurisdictions.

“Thus, we ask that you supply us with stories of justice delayed or endangered in particular Circuits and Districts,” the two leaders said. They asked that information be sent to lawyersforfillingjudgeships@vba.org.

Time to speak up.

The Virginia Association of Defense Attorneys held its annual meeting late last week and the organization marked several significant firsts:

· It was the first time the VADA held its annual do at The Homestead. Both the Virginia Bar Association and the Virginia Trial Lawyers Association have been meeting there for some time. The VADA typically has moved its confab around the state. Attendance was good and the crowd was happy.

· It was the first time that the group ever has had two women officers. Elizabeth Perrow of Roanoke was elected secretary, joining President-Elect Lisa Clement of Richmond in the leadership loop.

· The Roanoke firm of Frankl, Miller & Webb had 100 percent attendance – all five of the firm’s lawyers made the trip up to Hot Springs. It’s doubtful that’s a first. But three of five won a door prize, marking no doubt the first time the majority of a firm went home a winner.

HOT SPRINGS–Hey buddy, want to get your hands on a “dirty transcript”?

Attendees at the annual meeting of the Virginia Association of Defense Attorneys perked up when Bill Archambault mentioned a “dirty transcript” in a seminar about using technology for courtroom presentations.

Seems most people weren’t familiar with the term. Was that something that came in a plain brown envelope? Was it something one might send over the cell phone to Jenn Sterger?

Nothing that spicy. A “dirty transcript” is one that the court reporter hasn’t edited and formatted just yet. It’s the raw data at the end of a day of trial. Archambault said he once used a dirty transcript to create part of a PowerPoint for closing.

So give Archambault credit for introducing a new term into the legal lexicon. But retired Richmond Circuit Judge Ted Markow, who was also on the panel, got the last word. He said he had never seen a “dirty transcript.” He added, “I don’t think I want to.”

WILLIAMSBURG–Walmart sometimes takes a beating. How many items have you read where a local preservationist group has banded together to keep a Walmart from being built on some site?

The company, on the other hand, has become a national leader in promoting diversity in the legal profession and at law firms.

Jeff Gearhart, the general counsel for the Arkansas-based retail giant, was the luncheon speaker May 21 at the southeast regional conference of the National Asian Pacific American Bar Association held in Williamsburg. The commonwealth’s local chapter, APABA-VA, hosted the affair, which drew about 80 lawyers from Maryland to Florida.

Diversity is important to Walmart, Gearhart said. It’s “not only the right thing to do,” he said, but it makes business sense. The company applies a diversity credo to its own legal hiring, and it has attracted top-flight talent as a result, he noted.

The company also believes in putting its financial clout as a client to work. Gearhart said that a few years ago, Walmart officials reviewed the firms across the country it was using to do its various legal tasks. They looked at firm rosters and who was staffing their cases in their 100 most frequently used firms. Then they fired 40 of them and went looking for firms that practiced what Walmart preached.

Next on Walmart’s radar: Flex time for attorneys, particularly women lawyers. Gearhart said that Walmart believes in providing adjustable hours to employees to allow them to juggle work and family. A comparable review is coming to see how the firms they use treat flex time. Any firm that handles Walmart’s work might want to listen hard to the company’s views on same.

More news from the VBA meeting in Williamsburg: The association changed the guard at its winter meeting, with new officers taking over last Saturday.

Richmond lawyer John Epps of Hunton & Williams moved into the highly coveted “past president” slot. Taking over the presidency is Epps’ law school classmate at UR, Steve Busch of the Richmond office of McGuireWoods.

Pia Trigiani of MercerTrigiani in Alexandria became president-elect and Hugh Fain of Spotts Fain in Richmond is the new chair the VBA board of governors.

New members of the board include Jim Hingeley, of the PD’s office in Charlottesville, Leighton Houck of Caskie & Frost in Lynchburg, Loc Pfeiffer of Kutak Rock in Richmond and John Walker of Williams Mullen in Richmond. William & Mary Law Dean Dave Douglas will be the law school representative; Judge Jane Roush of Fairfax will be the judicial representative. Michael Quinan of Richmond’s Christin & Barton will chair the VBA Law Practice Management Division.

The Young Lawyers Division also tapped new leadership. Henry Willett of Christian & Barton will be chair; Webb King of the Roanoke office of Woods Rogers is chair-elect.

Richmond lawyer Andy Nea will be honored later this month by the Richmond Bar Association when he picks up the RBA’s John C. Kenny Pro Bono Award for 2009-2010.

The association gives the Kenny award annually to an individual or law firm that shows dedication in furthering the delivery of pro bono legal services to the poor and underserved in the metro Richmond area.

Nea, who is the pro bono partner at Williams Mullen, has given thousands of hours of his own time on pro bono work and he coordinates the activities of more than 300 lawyers in Virginia, North Carolina and DC.

Among the groups for whom he has worked or given his time and leadership: Habitat for Humanity, the Boy Scouts of America, the Legal Information Network for Cancer, Lawyers for Warriors, the Virginia Hispanic Chamber of Commerce, the Central Virginia Legal Aid Society and the United Way.

Also, he is a member of the board of directors of the Greater Richmond Bar Foundation.

One nomination noted that Nea was instrumental in creating the “Firms for Service” organization, which was started with the purpose of encouraging pro bono work from all of Richmond’s law firms.

And another nomination perhaps said it best: Andy “does not see his service to the community as a requirement of his profession – rather, he views his service as a duty of the heart. He embodies the spirit of service, and opens the doors for others to serve – and receive services – like no other.”

The award will be presented at the RBA’s Jan. 21 luncheon at the Omni. John Luke, the chairman and CEO of MeadWestvaco, will be the featured speaker that day.

The justice greets Richmond lawyer Gen Dybing, while MRWBA President-Elect Jayne Pemberton looks on.

Retired U.S. Supreme Court Justice Sandra Day O’Connor was in Richmond Sunday, at a reception held by the Metro Richmond Women’s Bar Association.

The MRWBA is celebrating its 35th anniversary this year and the group was able to get O’Connor to appear as she was making a southern swing. The justice was in Charleston, S.C., at the end of last week and she appeared at William and Mary, where she serves as chancellor, on Saturday.

In Williamsburg, O’Connor spoke at the Supreme Court Preview, an annual gathering hosted by the W&M law school. Among the items noted in the report in Sunday’s Richmond Times-Dispatch: She thinks new Justice Sonia Sotomayor is settling into her position just fine, but “two women [on the high court] is not enough.” And she is a strong advocate for eliminating the popular election of judges, citing the power of money in those elections.

At the MRWBA reception held at The Jefferson, O’Connor, the first woman to sit on the U.S. Supreme Court, fittingly was introduced by the first woman to sit on the Supreme Court of Virginia, Justice Elizabeth Lacy.

But O’Connor set a ground rule for her MRWBA appearance: Her talk would be off the record, with no press coverage of her remarks. That’s a requirement I’ll respect, but allow me an observation.

In 1985, while seated at the same table at some D.C. banquet, Washington Redskins running back John Riggins famously (and drunkenly) told O’Connor “to loosen up, Sandy baby!”

Memo to Riggo: Head back to the banquet-room floor, John, you’ve got it all wrong. O’Connor was funny, feisty, down to earth and direct. Rather what you’d expect from a self-described “cowgirl from Arizona.”

O’Connor’s name has cropped up on a number of the 4th Circuit decisions we’ve digested in the past few years, as she has been sitting from time to time on appellate panels since leaving the high court in 2006.

I don’t think the justice will mind if I bend her ground rule and mention one of her other activities in retirement (especially since there was a Washington Post article about the project yesterday).

Deeply concerned over the lack of civics education, O’Connor said she has been promoting a new Web site, www.ourcourts.org, that aims to teach middle-schoolers about government in a guerrilla fashion – by making education fun. The site has several games for kids. In one called “You’ve Got a Right!” you play a lawyer researching clients’ issues. In “Supreme Decision,” you’re a clerk helping a Supreme Court justice decide cases.

One hopes this project will have some impact on a country where only one in 70 people can identify one Supreme Court justice but where 80 percent can name one judge on “American Idol.” One hopes.