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Issue: Nov. 28 2022

Briefly: Line dancing for lawyers

We have written about the importance of not switching line spacing or typeface settings in an attempt to squeeze more words into a brief — especially after the court has rejected your request for additional pages. (See “In briefs, what a difference a font can make,” Virginia Lawyers Weekly (Aug. 29, 2022).)

Parties doing so may face a variety of sanctions — from having the court give their opponents unsolicited page or word enlargements in subsequent briefing, to having their non-conforming briefs stricken in part or altogether.

For the lawyers involved, the impression of dishonesty and gamesmanship they make on the court may be even more damaging. When you find yourself needing more room for your arguments, and your request for an enlargement has been denied, don’t experiment with line spacing or typeface options — focus on making better editing choices instead.

‘Doubleday Acquisitions’

The issue of switching line spacing settings mid-case was addressed by the Northern District of Georgia in Doubleday Acquisitions LLC v. Envirotainer AB (N.D. Ga. July 1, 2022). The case serves as a good example of what not to do and provides a compelling and thorough analysis of why following the rules is the right way to go.

During the course of the proceedings, defendants moved for a stay. They formatted their motion and supporting brief with the default double-spacing option provided for in Microsoft Word. Plaintiff later moved for a preliminary injunction. Its supporting brief used the same default double-spacing option provided by Word.

Before responding to plaintiff’s motion, defendants requested a 15-page enlargement of the page limit from 25 pages to 40. Defendants’ motion requesting the additional pages also used Word’s default double-spacing option. Plaintiff opposed the motion, but the court granted it in part, allowing defendants an extra 10 pages for their opposition, instead of the 15 pages they had requested.

Defendants filed a 35-page opposition to plaintiff’s motion for a preliminary injunction, but instead of using Word’s default double-spacing option, they used Word’s exact spacing option. Because their brief was in 14-point font, they set the exact spacing option to 28 points.

For those of you not skilled in the details of Word, this is done by modifying the style of your text (select Style – Modify – Format – Paragraph – Line Spacing), changing it from Double to Exactly and specifying 28 points.

Judges have long memories. Impressions of dishonesty and gamesmanship linger long after a case has ended. If the court has denied your request for more pages, don’t get creative with line spacing or typeface options, or the overuse of footnotes and block quotes, which will only make your brief harder to read.

Plaintiff moved the court to disregard defendants’ opposition on the grounds that it violated the local rules and was an improper attempt to circumvent the court’s partial rejection of defendants’ request for an extra 15 pages. Plaintiff showed that if defendants had used the default double-spacing option, their opposition brief would have been 44 pages — even longer than the 40 pages they had requested.

Defendants countered that they complied with the local rules by using “precise 28 point double-spacing” in the brief, and argued that because they used a 14-point font, “double spacing is therefore 28 points.” They also argued that Word’s default double spacing is an obsolete relic of the typewriter era that increases the space between lines beyond “true,” “precise” or “exact” double spacing. They asked the court to deny plaintiff’s motion to disregard their opposition and argued that they should be allowed to use exact spacing in their briefs.

In response, plaintiff pointed out that defendants had previously used the default double-spacing option and had only switched to exact spacing when the court partially denied their request for extra pages.

During the hearing on plaintiff’s motion for a preliminary injunction, the court questioned defendants’ counsel about the line spacing issue. The drafting attorney stated that he had previously used exact spacing in other cases before the court, without reprimand. But when the court noted that defendants used exact spacing only after the court had not given them the entire page extension they had requested, counsel for defendants apologized. The court took the line spacing issue under advisement and said it would address it after ruling on the pending motions to stay and for a preliminary injunction.

Having decided those motions, the court turned back to the question of whether defendants violated the local rules and the court’s order partially denying defendants’ requested extension, by using Word’s exact spacing option instead of the default double-spacing option.

The court began its analysis by noting that the local rules provide that “motions[] and other documents presented to the Court for filing must … be double-spaced between lines.” (N.D. Ga. LR 5.1(C)(2).) The court acknowledged that the local rules did not specify whether the district’s double-spacing requirement is limited to Word’s default double spacing, or whether it may encompass exact spacing.

The court also found no orders from the district discussing whether the Local Rules allow for exact spacing, but it did find an order by another judge in the district admonishing a party for using a narrower line spacing option than Word’s default double-spacing without prior leave of court. (Thornton v. Jackson, 998 F. Supp. 2d 1365, 1367 (N.D. Ga. 2014) (noting that “the improperly spaced brief is twenty-nine pages long, and if properly spaced, the brief would be closer to forty pages”).) As a sanction, the Thornton court deemed two of plaintiffs’ claims — those discussed at the end of their brief — abandoned.

The court then turned to an analysis of the authorities cited by the parties for and against the use of exact spacing. The court found defendants’ cited authorities unpersuasive. For one thing, they did nothing to help the court interpret the double-spacing requirement under the local rules; they merely provided normative opinions offering typographic advice. (As a caveat, typographers pretty much all agree that spacing lines closer than the Word default actually makes text easier to read.) In addition, the court noted that two of defendants’ sources “appear to recommend using exact spacing as a means to squeeze more lines into a brief.”

The court found plaintiff’s cited authorities much more helpful, and found “especially instructive” a recent order issued by Judge Kenneth D. Bell of the Western District of North Carolina in Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC (W.D.N.C. Apr. 11, 2022). Judge Bell’s case management order provided that parties’ briefs were to “be double spaced,” in at least 12 point proportional type, and that all principal briefs were to be 25 pages.

The plaintiff in Duke Energy had used Word’s standard double-spacing option in its many pretrial briefs until it filed its summary judgment brief. Before moving for summary judgment, the plaintiff sought an enlargement of the page limits for summary judgment briefs from 25 to 60 pages. The court denied the request in part, giving the parties an extra 10 pages only.

Plaintiff then filed a 35-page summary judgment brief that used exact 24 point spacing. It was the first time in the proceedings that the plaintiff had departed from Word’s default double-spacing option. (The plaintiff also made other changes from its former practice, like moving long string citations from the body to footnotes, to fit more words into its allotted 35 pages.)

The North Carolina court called plaintiff’s tactics “a deliberate attempt to at least skirt if not evade the page limits set by the Court.” It observed that “Plaintiff had to deliberately change the typical ‘double’ spaced setting in WORD to a special different setting, and the only reason to do so was for Duke to fit more lines on each of its allotted pages after the Court refused its request to file a sixty-page brief.”

The censure was harsh. The court said it would “not countenance Duke’s behavior, which not only reflects poorly on counsel, but undermines the Court’s authority to fairly set the parameters of arguments to the Court.”

The Doubleday court went on to review several other cases that plaintiff had cited in support of its motion to disregard defendants’ opposition to their motion for a preliminary injunction — all of them holding that the common understanding of “double spaced” refers to Word’s default double spacing option.

As the court explained, at heart, the issue is one of fairness: “This District provides formatting requirements in its Local Rules to establish uniformity, which begets fairness. In other words, requiring uniform formatting ensures that parties get a relatively equal opportunity to present their arguments to the court. … Because most litigants seem to have interpreted the Local Rules to require default double spacing, the Court believes that departing from such formatting — especially if doing so allows a litigant to fit more lines into a brief—does not serve fairness.”

In the end, the court in Doubleday expressed a common-sense conclusion: “[S]harper editing is the better path to complying with a court’s page-limit requirements.” We couldn’t agree more. We have never met a judge who said, after putting down a brief that went to the limits of page length or word count, “Gosh, I wish they had made that a few pages longer.” Conciseness and clarity are far more persuasive than density and length. Persuasive arguments can and should be made succinctly.

And there is another lesson here. Judges have long memories. Impressions of dishonesty and gamesmanship linger long after a case has ended. If the court has denied your request for more pages, don’t get creative with line spacing or typeface options, or the overuse of footnotes and block quotes, which will only make your brief harder to read. Find a way of saying what you have to say in fewer words. Or ask a colleague not involved in the briefing to identify places to cut. Submitting a shorter brief that conforms to the common understanding of the formatting rules will not only save you from a public reprimand, but will likely make your brief more readable and, ultimately, more persuasive.

Eric J. Magnuson is a partner at Robins Kaplan LLP and served as Chief Justice of the Minnesota Supreme Court from 2008 to 2010. He has more than 40 years of experience practicing law and he focuses his practice almost exclusively in appellate courts.

Sandra J. Badin is a counsel in Robins Kaplan’s Boston office, where she practices insurance and appellate litigation.

Calming canines: Virginia’s facility dogs aid witness testimony

A unique Fairfax County Department of Family Services’ employee has some quirks.

She loves broccoli and green beans. She won’t get into a car unless she’s picked up. And she wants nothing more than cuddles and belly rubs.

Rylynn, a 3-year-old Labrador Golden Retriever mix, is the department’s certified facility dog. As part of her role with the department, Rylynn supports children who are testifying in court by joining them in the witness box or providing support before and after testimony.

Samantha “Sam” Carrico is Rylynn’s handler and supervisor of the department’s Volunteer & Partner Services Program. She told Virginia Lawyers Weekly that her presence in the courtroom has a grounding effect during what can be a stressful time.

“Testifying for anyone can be very anxiety-inducing, and just having a dog in a courtroom lets everyone sort of take a breath, especially if your experience with a dog is positive,” Carrico said.

She added that law enforcement and victim services will reach out if a “difficult case” is coming to provide support for children or families with upcoming testimony.

Born and raised by Canine Companions, a nonprofit that raises and trains facility dogs, Rylynn spent much of her early life in the Northeast before being paired with Carrico and joining the department in May 2021.

Carrico became interested in working with a facility dog after interacting with one during a forensic interview training.

“That really sparked my interest in wanting us to have one because it really goes so well,” she said. “The children within child welfare have done so well having Rylynn and she really has made such a difference.”

Carrico said the most common comment she hears on Rylynn is that she is “very calm” and that she is perceptive of people’s emotions.

“It’s like she can sense if someone is having a bad day or feels stressed. That tends to be the person she goes to whenever we’re meeting new people,” Carrico said.

Per the DFS website, Rylynn made 20 court appearances and assisted in two forensic interviews in her first year with the department.

This clever canine’s role with the department extends beyond the courthouse. Rylynn also takes part in body safety classes put on by the department at area elementary schools to help teach children body safety rules and how to recognize child abuse.

Virginia law

The use of facility dogs for courthouse testimony is a relatively new concept in the legal community.

Virginia enacted the commonwealth’s first law on the use of facility dogs in court in 2018, with the bipartisan passage of two identical bills in the chambers of the Virginia General Assembly.

The law, Va. Code § 18.2-67.9:1, permits the use of a “certified facility dog” for testimony in criminal proceedings. Caveats include that the dog is qualified and will aid the witness in providing testimony, and that the party applies for the order “at least 14 days before the preliminary hearing, trial date, or other hearing to which the order is to apply.”

As the use of facility dogs rises nationally, the number of court opinions on their usage also grows.

Rylynn herself was the subject of an opinion issued by Fairfax County Circuit Judge Robert J. Smith over the summer in Commonwealth v. Vargas (VLW 022-8-061), granting a motion by the assistant commonwealth’s attorney to use Rylynn at trial.

“Cases from across the country overwhelmingly conclude that the use of a facility dog does not deprive the defendant of the Constitutional right to confront the witness against him, that the use of a facility dog does not unduly influence the jurors, and the use of a facility dog falls within the inherent authority of a trial court of manage the proceedings before it,” Smith wrote.

Smith said Virginia is one of 19 states with laws that “grant these remarkable creatures a special place in the courtrooms of the land.” The judge added that Va. Code § 18.2-67.9:1 “is one of the most generous of all the facility dog statutes across the country,” as it does not require the witness to be of a certain age, have a disability, or “show a need for the dog.”

In the Vargas case, Smith denied a procedural objection by the defendant after finding the 14-day window had been followed by the commonwealth. The judge further addressed the defendant’s concerns about the behavior of facility dogs at trial, explaining that the court can craft jury instructions to address the issue.

“The Court also has the power, in its discretion, to limit Rylynn’s presence in front of the jury,” Smith wrote. “[M]any jurisdictions have limited the dog’s visibility to jurors, as well as emphasizing to jurors that the facility dog is a trained animal performing its job instead of the witness’s personal pet.”

Virginia’s facility dogs

According to the Courthouse Dogs Foundation, 11 facility dogs are working in Virginia today and can be found in all regions. Carrico believes Rylynn is the only facility dog placed with a department of family services in Virginia.

Per the Courthouse Dogs Foundation’s website, there are at least 295 facility dogs working in 41 states, a number that has risen by 23 in the last year.

The list is exclusive to dogs who graduated from an accredited organization like Canine Companions and is handled by “a professional working in the legal field.” That means some “therapy” dogs that may work in legal settings are excluded from the list.

Among the additional dogs not included in the count is Seamus.

The rescue poodle adopted by Botetourt County Deputy Commonwealth’s Attorney Gillian Deegan is training to become a courthouse facility dog.

Deegan said she had been looking for a shelter dog to train for the task of becoming a courthouse facility dog when she saw Seamus online.

“I scheduled a meeting with him in his foster home and quickly determined if ever a dog was appropriate for such a task, it was Seamus,” Deegan said in an email to Virginia Lawyers Weekly. “He clearly loved people and lots of attention and exhibited a calm demeanor.”

Deegan’s inspiration for taking on the task comes from her passion for victim rights and advocacy. When she was 20, Deegan was the victim of a violent crime.

“I experienced first-hand how frustrating, intimidating and scary the criminal justice system can be for victims and witnesses,” she said

As a private practice attorney, Deegan often brought her Great Pyrenees to work when talking with children she was representing, which she said made it “much easier” for the children to tell what happened to them.

“When the Virginia legislators decided to recognize the use of dogs in the courtroom, I started thinking about getting a dog to utilize in Botetourt,” Deegan said. She knew she wanted it to be a shelter dog.

Seamus is not yet certified to sit on the stand like Rylynn, but judges have allowed Seamus to come into their courtrooms as he trains.

Outside of the courtroom, Seamus has met with victims and witnesses to become acclimated with the court.

“Our child victims are particularly fond of him. It is amazing to watch the change in their body language as they pet him and begin to open up,” Deegan said.

Seamus has also become popular around the Botetourt legal community, which Deegan said has “truly embraced” him.

“He has been a big hit in our General District Court when he arrives in the waiting room and visits with everyone as they wait for their cases to be heard,” Deegan said.

In Fairfax, Carrico said Rylynn’s presence with the department has been “life changing,” both for having Rylynn as a companion and for changing the department’s public outreach.

“It’s really opened a lot of doors in terms of partnerships with the community and has helped build a lot of relationships with our community partners,” Carrico said. “I think it’s going to change the way that we are able to navigate child welfare cases.”

Car went airborne after striking dislodged manhole cover — $3,850,000 settlement

Type of action: Personal injury

Injuries alleged: Traumatic brain injury, multiple orthopedic and internal injuries

Date resolved: 5/2/2022

Verdict or settlement: Settlement

Amount: $3,850,000

Attorney for plaintiff (and city): Julie H. Heiden and Peter C. DePaolis, Fairfax

Description of case: The plaintiff was a 46-year-old married woman with two children who was seriously injured when her vehicle struck a dislodged manhole cover in a traffic lane of a major interstate, went airborne and struck another vehicle upon landing on the shoulder of the roadway. She suffered a traumatic brain injury, a bicondylar Schatzker type VI tibial plateau fracture that required immediate ORIF surgery, multiple internal injuries including a lacerated liver, grade II lacerated kidney and a grade II lacerated spleen, significant facial lacerations and multiple rib fractures. Medical bills totaled more than $550,000 after four years of treatment with future care approximated as an additional $1.2 million including surgery. The plaintiff has a 32% permanent partial impairment of the left leg. Plaintiff’s experts were Dr. Ruben Cintron (neurology), Dr. David Hebda (neuropsychology), Dr. Norman Stone (orthopedic surgery), Dr. Carlos Kennedy (orthopedic surgery), Dr. Merhad Malek (orthopedic and impairment evaluation), Dr. Anu Patel (internal medicine), Dr. John Dresely (neuro-ophthalmology), Dr. Bruce Freedman (plastic surgery), Dr. Ranjit Pullarkat, (abdominal surgery), Dr. Rajesh Bhojwani (neuroradiology), Dr. Thomas Borzilleri, (economist), Dr. Marianne Talbot (life care planner), Ted Kalriess (liability) and John Nawn (liability). Discovery revealed multiple prior incidents at the same location and little effort made to fix a repetitive problem despite proper notice. An early mediation was held in 2020 and failed. A focus group assisted in identifying both medical and liability issues to consider. The plaintiff agreed to a settlement three weeks before trial for a total of $3,850,000.

Plaintiff’s attorneys provided case information.

[022-T-147]

Class of 2022 Unsung Legal Heroes named

Virginia Lawyers Weekly is pleased to present the Unsung Legal Heroes for 2022.

This program recognizes the Old Dominion’s most talented and dedicated legal support professionals.

The honorees consistently go above and beyond the call of duty. This year’s class includes accounting and finance professionals, law firm administrators and office managers, paralegals and legal assistants, legal secretaries, librarians, docket administrators and receptionists.

Attorneys will tell you they are only as good as the team behind them. Some of these honorees cast the first impression for clients, while others work behind the scenes. All are vital to the success of the firm or legal department through their commitment and dedication.

A special section featuring profiles of this year’s honorees will be published in December.

Please join us in congratulating the Class of 2022 Unsung Legal Heroes.

  • Cheryl Abrigo, Housing Litigation Paralegal, Virginia Legal Aid Society
  • Kaitlyn Colón, Litigation Paralegal, Sands Anderson
  • Cheryl George, Office Manager, Fredericksburg Public Defender
  • Patricia Gitlin, Paralegal, Woods Rogers Vandeventer Black
  • Pam Harris, Front Desk Coordinator / Front Office Administrator, Carrell Blanton Ferris & Associates
  • Lynn Heller, Administrator and LRS Coordinator, Prince William County Bar Association
  • Michelle Ingram, Receptionist, Allen, Allen, Allen & Allen
  • Faith Jenkins, Marketing Director, Rawls Law Group
  • Tamara Langston, Paralegal, The Cooper Law Firm
  • Jeremy Leinen, Administrative Officer, Office of the Federal Public Defender, Eastern District of Virginia
  • Karen Longworth, Legal Practice Assistant, Troutman Pepper
  • Christina May, Legal Administrative Assistant III, Dominion Energy
  • Sharon McCaffrey, Senior Paralegal, The Geller Law Group
  • Dede Minter, Investigator/Paralegal, Charlottesville Public Defender Office
  • Madelaine Notaro, Receptionist, Glasser and Glasser
  • Patrick Ramos, Law Library Assistant, Loudoun County Law Library
  • Kenny Rickerson, Accounting and Office Services Manager, Gentry Locke
  • Alexis Sadural, Legal Assistant, Pesner Altmiller Melnick DeMers & Steele
  • Kevin Smith, Director – ELCS and Legal Operation, Dominion Energy
  • Abigail Southern-Kline, Paralegal, Commander Law
  • Wendy Spivey, Judicial Docket Administrator, City of Norfolk Circuit Court Judges’ Office
  • Eduardo Valle, Legal Assistant, Airington Law
  • Jennifer Webb, Administrative Assistant/Secretary, PennStuart
  • Tammy Weeks, Legal Assistant, TimberlakeSmith
  • Lakelyn Wiley, Legal Assistant / Paralegal, Gentry Locke
  • Irina Winder, Paralegal and Office Manager, Phelan Petty PLC
  • Jackie Young, Paralegal, Spotts Fain

2021 honorees

The Class of 2021 included:

  • MaryAnn Abate, O’Hara Law Firm
  • Jennifer Akers, Slominski Law
  • Misty Brooks, Golightly Mulligan & Morgan
  • Dominika Bui, Alexandria Juvenile and Domestic Relations District Court
  • Michael Byser, Hampton Circuit Court
  • Danna Chavez Calvi, Legal Aid Justice Center
  • Tedilee Chiara, Rutter Mills
  • Margaret Collard, Harman Claytor Corrigan & Wellman
  • Kara Crane, Geoff McDonald & Associates
  • Stacy Cuskelly, Bean Kinney and Korman
  • Leigh Dunnagan, Glenn Robinson Cathey Memmer & Skaff
  • Melissa Elliott, Vandeventer Black
  • Clifton Fuller, Hunton Andrews Kurth
  • Debra Gellert, Blankingship & Keith
  • Debra Kiggins, Vandeventer Black
  • Grace Knighton, Goodman Allen Donnelly
  • Wendy Lough, Farrell & Croft
  • Anita Mattox, Gentry Locke
  • Selma Modeste, DiMuroGinsberg
  • Tricia Muller, Chesterfield Circuit Court
  • Kerry O’Neill, Vandeventer Black
  • Megan Pfeifle, Cook Craig & Francuzenko
  • Lynne Rhoades, Venable
  • Melissa Ross, Farrell & Croft
  • Angela Shiflett, MartinWren
  • Katie Sistek, MercerTrigiani
  • Mandy Truman, Pathfinder Injury Law
  • Quinton Washington, Hunton Andrews Kurth
  • Stephanie Washington, Hook Law Center
  • Anne Whitt, Roger W. Mullins
  • Gretchen Williams, Office of the Norfolk Commonwealth’s Attorney
  • Donna Winters, Consumer Litigation Associates

Demystifying legal transformation and its role in helping the enterprise

Companies, more than ever, are striving for an edge in today’s uncertain business environment.

As organizations brace for the possibility of a recession, calls from the C-suite to cut costs and improve profit margins are mounting pressure on legal departments.

To rise to these demands, general counsel and their colleagues must provide more than sound counsel on pressing or emerging issues. They have to show they can furnish high-quality service with contract lifecycle management, NDA reviews and other essential but routine and redundant tasks with streamlined resources and headcount.

The solution to this predicament lies within the bones of the business. Legal departments must delve into their processes and tools and assess ways to deliver more with less. GCs looking to maximize their capabilities should turn to legal transformation, an area replete with possibilities but filled with misunderstanding.

With better clarity on legal transformation, legal departments can demonstrate their value and help their organizations become more cost-efficient and profit-minded.

Patrice Asimakis
Patrice Asimakis

Legal transformation defined

Legal transformation is often associated with or viewed as strategic technology adoption. True, technology process innovation and new delivery models can be key change agents for streamlining and simplifying the drudgery and costs involved with in-house tasks.

However, it would be a mistake to conflate legal transformation with just onboarding new technologies. Technology and vendor management form part of the picture; people management and process-based enhancements make up the rest.

It’s better to view legal transformation as a physical process and a technology-driven journey where client centricity is your North Star. The most successful organizations approach this path in two stages. The first is a whole-body examination of the entire business — including its tech-driven and labor-driven parts — for assessing cost-cutting and profit-generating opportunities. The second is implementing the strategies and tools required for the company to deliver on its potential.

As the legal function is often the costliest department in any enterprise, GCs and legal-compliance ops teams can make a substantial impact by modernizing the department’s capabilities and processes. Even incremental changes, be it using dashboards to streamline project management or reorganizing a routine contract review workflow to reduce hands-on involvement from associate counsel, can go a long way toward closing more deals while cutting costs.

At the same time, they can reduce costly haggles, decrease time spent on low-value tasks, and minimize the likelihood of mistakes, oversights and inconsistently drafted agreements.

Using legal transformation to improve operations

When a company starts its legal transformation journey, it has to identify and work through the kinks of its processes and how it interacts with customers.

To do this effectively, organizations should determine their objectives and the questions they want answered from their legal transformation process, which will help guide important process improvement and vendor decisions.

From there, they must examine to their data sources, pulling key information from standardized forms the company stores or organizing unstructured narratives and observational information into data points the legal department can leverage.

Once legal departments have identified important data and stripped away redundant or extraneous information, they should find a strategic legal technology vendor or partner to organize it for them. Most legal tech providers will offer this bundled with the quote process for their service and software packages.

Tariq Hafeez
Tariq Hafeez

After completing these steps, legal departments and other enterprise stakeholders can start enjoying the fruits of their exploration and bring the legal transformation journey to its apex by fostering and furthering change — and, of course, profits.

While plentiful benefits accrue from legal transformation, many organizations will see notable differences in the following areas:

Visualizing and identifying cost-cutting opportunities: Through dashboards and process mapping, GCs can assign key projects, monitor turnaround times and maximize the value of their blue-chip associate counsel talent. Simultaneously, GCs can quickly identify and fix bottlenecks in their review workflows, which helps with important decisions regarding outsourcing research and review tasks to outside counsel or other providers.

Legal departments can also present visual-based business intelligence reports to stakeholders covering the revenue loss and profit opportunities they ferret out, helping the company’s C-Suite members and decisionmakers better visualize the legal function’s value.

Using CLMs to facilitate workflow improvements: An advanced contract lifecycle management, or CLM, system and robust reporting tools can help stakeholders monitor key contracts and make strategic changes with the C-Suite’s input.

With the proper reporting settings enabled, teams can see at a glance all executed agreements the legal department worked on, the value of those contracts, deal turnaround and review times and associated contract costs and values. With this type of reporting, CFOs and GCs can collaborate on ways to optimize the value of the enterprise’s agreements, plan out quarterly budgets and use performance metrics to determine whether to invest in appropriate legal technology tools based on the legal department’s performance.

Dashboards, alert systems and other CLM features can also help GCs better respond to due diligence inquiries, regulatory updates and the like based on how these programs corral and summarize key agreements, liabilities and obligations.

Augmenting the legal function: While lawyers bring experienced perspectives to any corporate transaction, they can enhance their capabilities and strengths with artificial intelligence.

Lawgeex, in fact, pitted its AI software against a group of lawyers with decades of experience to spot legal issues in five standardized NDAs. The result? The lawyers posted an 85% accuracy rate in identifying contract flaws, while the AI program had a 94% accuracy rate.

With AI, an in-house legal team can review and redline agreements more effectively without increasing headcount. Legal teams, therefore, can use AI to assess whether clients violated their agreements, auto-negotiate terms from preapproved playbooks, summarize key liabilities in lengthier agreements and more in less time.

While the solutions companies unearth will not replace the lawyers on their payroll, the aims of these are the same: achieving improved results at reduced cost and greater efficiency.

With a complete understanding of legal transformation, organizations can weather through today’s uncertain business environment — and emerge more robust and profitable than before.

Patrice Asimakis, director of legal services at LegalEase Solutions, is a licensed attorney at the forefront of “NewLaw,” the global transformation redefining how legal services are delivered.

Tariq Hafeez is president and co-founder of LegalEase Solutions, which guides in-house legal departments on finding and implementing the best mix of processes, systems and technology to improve efficiency and drive value.

How to make calling your firm a positive experience for clients

I believe the telephone and the way it is handled is one of the most important aspects of running a successful law office. Here are some easy and free ways to improve the experience for all callers to your firm.

The greeting. The telephone greeting is really, really important. Instead of the cold and off-putting “Law office,” try: “Good afternoon, welcome to Smith Law. This is Henry. How may I best help you?”

This is low-hanging fruit that, when implemented into every call greeting, radically and swiftly tells the caller they have not called an average law firm. Instead, they have called a law firm that sounds warm and inviting. That can be really disarming to people who may feel nervous and uneasy about calling a lawyer.

If your telephone greeting is not right, change it immediately.

Empathy. People call lawyers because they have a problem that needs to be solved. That is why demonstrating empathy on the phone with potential and existing clients is so very important. Empathy creates a connection and tells the caller they are being heard.

I always teach my team members to speak with clients and potential clients the same way they would speak with their grandmother.

Hold times. Many times we unknowingly keep people on hold for much too long. Placing someone on hold for just two minutes feels like four minutes to the person holding.

Also, make sure that all callers, before being placed on hold, are asked for permission to be put on hold.

Forwarding the caller. If a caller is going to be forwarded to someone else, the caller should first be asked for permission to be forwarded and should be told the name and title of the person they are being transferred to. These are minor telephone details that really stand out to callers to your firm.

Scripts. The more you can script the call experience for people who call your firm, the better. Scripts can help guide team members to provide all callers with a truly memorable experience.

Of course, we don’t want team members to sound like robots. But the better the phone process can be scripted, the better the telephone process will be handled.

Afterhours calls from potential clients. When new clients call afterhours and on weekends, are they reaching a human being or voicemail? Imagine your toilet is overflowing and you need a plumber immediately. Are you going to call a few plumbers and leave voicemails and hope to get a call back? Probably not. You are going to keep calling plumbers until you reach a live person who can offer immediate assistance.

Potential clients calling your practice are no different. Ignore the need to have someone answer your phones afterhours for potential clients at your own peril.

Properly handling all phone calls at your firm is a small hinge that opens big doors. Always seek to identify ways the phones can be improved at your firm, and you will reap the rewards.

Christopher F. Earley is an attorney and author who concentrates his practice on the representation of the seriously injured and their families.

No treble damages under Overtime Wage Act

A demand for treble damages under the Virginia Overtime Wage Act was rejected after a federal judge found that recent amendments applied retroactively.

Judge Raymond A. Jackson of the Eastern District of Virginia limited the claimant’s relief to damages available under the Fair Labor Standards Act, or FLSA.

“The court finds that the changes to VOWA are procedural in nature and foreclose plaintiff’s ability to seek treble damages,” the judge wrote.

The decision is Meharg v. York Operations LLC (VLW 022-3-493).

Overtime complaint

Gwendolyn Meharg worked in the sales and marketing office of York Operations, which operates nursing homes and assisted living facilities. According to Meharg, she worked several overtime hours in 2020 which York failed to pay her for.

Meharg filed a complaint in April 2022, seeking multiple damages under the Virginia Overtime Wage Act, or VOWA, and FLSA.

York moved to dismiss the claim for triple damages under the VOWA. It argued that the act, as amended, only allows a plaintiff to recover damages available under the FLSA, which doesn’t permit triple damages, and that the amendments were procedural in nature and therefore retroactive.

Wage Act damages

Prior to July 2022, the VOWA allowed for an award of triple the amount of wages due if the court found that the employer knowingly failed to pay wages.

However, the 2022 amendment limited overtime damages to those offered under the FLSA.

Jackson explained that, in Virginia, a statutory change “is generally considered prospective, unless the statute contains explicit terms demonstrating its retroactive effect, or the statute’s amended terms affect remedial or procedural rights rather than substantive or vested rights.”

The judge pointed to a Supreme Court of Virginia case which “articulated the distinction between substantive provisions of law, which cannot be applied retroactively, and procedural or remedial statutes, which may be applied retroactively.”

While “substantive rights encompass statutes which create duties, rights, or obligations … ‘procedural or remedial’ statutes set for the methods of obtaining redress or enforcement of rights,” he wrote.

Jackson noted that courts in Virginia have applied procedural amendments to statutes retroactively “when amended language in the statute does not ‘confine[] its operations to either past or future awards [under the statute], but both are included.’”

“The use of broad, ‘all-inclusive’ language shows a retrospective intent for the retroactive application of procedural and remedial changes that do not impede on substantive rights,” the judge added.

“The current version of VOWA incorporates the procedural and remedial aspects of FLSA and does not alter the substantive right to bring a claim for unpaid overtime in state court. Further, the amendments to VOWA consist of all-inclusive language evidenced of retrospective intent as it [provides that] ‘[a]ny employer that violates the overtime pay requirements’ of FLSA shall be liable to the employee for the applicable remedies available under FLSA.”

— U.S. District Court Judge Raymond A. Jackson

Here, Jackson found that “the current version of VOWA incorporates the procedural and remedial aspects of FLSA and does not alter the substantive right to bring a claim for unpaid overtime in state court.”

“Further, the amendments to VOWA consist of all-inclusive language evidenced of retrospective intent as it [provides that] ‘[a]ny employer that violates the overtime pay requirements’ of FLSA shall be liable to the employee for the applicable remedies available under FLSA.” As a result, Jackson dismissed the plaintiff’s claim for treble damages.

‘Much-needed clarity’

Nick Johnson, a partner at Berenzweig Leonard in McLean, said there was uncertainty after the wage act was amended.

“This decision brought some much-needed clarity to Virginia employers in terms of potential exposure and available damages,” he told Virginia Lawyers Weekly.

Johnson also noted the amendment “clarified that the three-year look back is only for willful violations and further reflects on the legislative realignment to have this statute be in line with the FLSA, at least with respect to remedies.”

Fairfax employment litigator Broderick Dunn, a partner at Cook Craig & Francuzenko, disagreed with the decision and believes that claims under the VOWA shouldn’t be limited to FLSA damages.

He said some jurisdictions, such as the District of Columbia, “have minimum wage acts that go above and beyond the FLSA.”

In Dunn’s view, the legislature’s intent in enacting the 2020 amendments “was to encourage good employer behavior, because they are now facing treble damages and attorneys’ fees.”

Plaintiff struck, injured by falling scaffolding — $580,000 settlement

Type of action: Maritime personal injury

Injuries alleged: Severe laceration requiring debridements and subsequent tendon lengthening surgery

Court: Norfolk Circuit Court

Tried before: Mediation

Name of judge or mediator: Judge Thomas Shadrick (Ret.)

Date resolved: 6/21/2022

Special damages: $135,000 in medical bills and lost wages

Verdict or settlement: Settlement

Amount: $580,000

Attorneys for plaintiff (and city): W. Randolph Robins Jr. and Justin M. Sheldon, Richmond

Description of case: Plaintiff was on a break from working fire watch at a Tidewater shipyard when a piece of scaffolding fell from approximately 90 feet above him, striking him in the leg. Plaintiff contended that the scaffolding contractor failed to properly inspect and tag the scaffolding structure. Plaintiff stated that the employee of a mechanical contractor negligently failed to keep his footing while working on the scaffold, causing him to trip and fall into the scaffold that was not secured to the superstructure, which led to the piece of scaffold falling. Plaintiff sued the scaffolding contractor and the mechanical contractor, alleging maritime personal injury under the Admiralty Extension Act to file suit after two years had passed since the injury. The defendants filed crossclaims against one another. The case was resolved at mediation.

Plaintiff’s attorney W. Randolph Robins Jr. provided case information.

[022-T-142]

Trademark infringer still liable years later

Even though a cybersecurity company stopped selling goods online using an unregistered mark years before a competitor registered a similar mark, its continued use of the mark online subjected it to liability for trademark infringement.

Judge Claude M. Hilton of the Eastern District of Virginia rejected the defendant’s argument that it couldn’t be held liable for infringement if its use of the mark didn’t result in actual sales.

“[T]he plaintiff need only show that consumers are likely to be confused as to whether the defendant offers the same goods or services as the plaintiff. … Defendant has not offered any evidence to rebut the presumption of a likelihood of consumer confusion,” the judge wrote.

Hilton also rejected the defendant’s priority, laches, and acquiescence defenses.

However, he found that the defendant wasn’t liable for his overseas use of the mark, and that the evidence didn’t support a finding of willful infringement or false registration of a domain.

The opinion is GoSecure Inc. v. Bhandari (VLW 022-3-483).

Contested domain

Billy Bhandari registered the domain name <gosecure.com> in September 1999 and used it in 2002 to establish a website providing cybersecurity products and services.

In 2009, he created a cybersecurity blog at gosecure.wordpress.com, and a Twitter account with the handle @goSecure that linked to the website.

Although Bhandari stopped website sales and Twitter posts after 2011, his blog remained an active source of information regarding his company’s cybersecurity activities.

Bhandari later registered other companies in Delaware and the United Arab Emirates that used the mark in connection with the domain name.

While Bhandari used the domain name for email purposes until 2021, it didn’t appear that he used it to sell goods or services.

In 2004, a cybersecurity company named GoSecure was registered in Delaware. The company unsuccessfully tried to purchase the <gosecure.com> domain from Bhandari in 2003 and 2007.

GoSecure applied to register the trademark GOSECURE for cybersecurity goods and services in 2014. Having secured the trademark in 2016, GoSecure again tried to buy the domain name, but Bhandari refused to sell.

The parties engaged in arbitration in 2021, where GoSecure argued that it should be granted domain rights because it registered a mark identical to the one that Bhandari abandoned when his website ceased being active.

But the arbitration panel rejected that argument after Bhandari showed his recent use of the domain for his email, Twitter, blog and foreign ventures.

The panel even accused GoSecure of “reverse domain name hijacking, where a party uses the [arbitration] process in bad faith to force a registered domain holder to give up a domain name.”

According to the record, GoSecure first became aware of Bhandari’s other uses of the mark outside of the website during arbitration, when Bhandari introduced them as evidence.

In November 2021, GoSecure sued Bhandari for trademark infringement. Bhandari countersued for malicious prosecution based on the arbitration action.

Both parties moved for summary judgment.

Likelihood of confusion

Hilton explained that a Lanham Act trademark infringement claim requires a plaintiff to demonstrate that it owns a valid and protectable mark and that the defendant’s use of a similar mark creates a likelihood of confusion.

“A court may presume the existence of a likelihood of confusion under certain circumstances, including when there is no dispute that the defendant has used an identical mark in connection with similar goods or services offered by the plaintiff,” the judge wrote.

Here, “it is undisputed that Defendant used an identical mark to GOSECURE in several contexts, [and] that at one point in time, his website sold cybersecurity goods and services, the same market covered by plaintiff’s trademark registration.”

Hilton also noted that Bhandari’s blog and Twitter profile linked to his website and offered information about cybersecurity developments, services, and goods after GoSecure obtained trademark rights in 2016.

“Therefore, the Court finds that web users encountering defendant’s website, blog, or Twitter profile would be confused as to their affiliation with Plaintiff’s products, which is sufficient to demonstrate a likelihood of confusion,” he said.

The judge was not persuaded by Bhandari’s argument that he stopped selling goods on his website years before GoSecure registered the trademark.

“[A] defendant can still be held liable for trademark infringement even if the defendant’s use of the mark does not result in actual sales, so long as the use would cause a likelihood of confusion in connection with the plaintiff’s sale of such goods,” Hilton wrote.

The judge said that Bhandari’s liability stemmed “from a combination of his website’s history of cybersecurity sales coupled with the fact that his website, affiliated blog, and affiliated Twitter account, all remained accessible with the same content post-registration.”

Hilton found insufficient evidence that Bhandari used the mark in emails for commerce or for website operation, or that his overseas ventures were covered by the Lanham Act.

Further, the judge held the evidence didn’t prove that Bhandari had willfully infringed, crediting the assertion that he stopped selling goods or updating his blog and Twitter page in 2011.

Having found that Bhandari was liable for trademark infringement, the judge permanently enjoined him from any further use of the mark.

Finally, the judge dismissed Bhandari’s malicious prosecution counterclaim. GoSecure’s arbitration action wasn’t objectively baseless.

A ‘common mistake’

Lucy Wheatley, a partner at McGuireWoods, litigates high stakes intellectual property cases for some of the world’s top companies. She thought the defendant here made a common mistake.

“The standard for establishing use of a trademark is not the same as the standard for infringement, and infringing conduct may not be enough to establish trademark rights,” she said, adding that she was “impressed that the court understood that distinction.”

Wheatley noted “it’s not uncommon that you will get one ruling in arbitration and the federal court goes the opposite direction. They’re different animals, arbitration is unbinding and a lot less robust.”

Describing it as a “hot issue,” Wheatley pointed out that the U.S. Supreme Court just granted certiorari on a case — Abitron Austri GmbH v. Hetronic International — about the overseas reach of the Lanham Act.

“Trademark law is tricky because there are a lot of cross-border issues and it’s challenging to define impact on U.S. commerce in the age of the internet,” she told Virginia Lawyers Weekly. “I’m not surprised the judge didn’t want to wade into that here.”

VSB Disciplinary Actions: Nov. 28 issue

On Nov. 16, 2022, the Virginia State Bar Disciplinary Board administratively suspended Patrick Lynn Edwards of Arlington’s license to practice law for failing to comply with a subpoena duces tecum issued by the bar.

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By order entered Nov. 3, 2022, and effective Nov. 20, 2022, the Prince William County Circuit Court suspended James McMurray Johnson of Woodbridge’s license to practice law in the commonwealth of Virginia for a period of 90 days with terms for violating the professional rules governing diligence and communication.

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Effective Nov. 18, 2022, the Fifth District Subcommittee, Section I of the Virginia State Bar issued a public reprimand with terms to Jon Franklin Mains of Fairfax for violating the professional rules governing communication, fees, safekeeping property and bar admission and disciplinary matters. This was an agreed disposition of misconduct charges.

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Ordered and effective on Nov. 18, 2022, the Virginia State Bar Disciplinary Board suspended Denis Charles Englisby of Chesterfield’s license to practice law in the commonwealth of Virginia for two years for violating rules that govern competence, scope of representation, diligence, communication, conflict of interest: general rule, truthfulness in statements to order and bar
admission and disciplinary matters.