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News Journal4 • President’s Page

Regaining Our Moral CompassWilliam R. Van Buren III

5 • Come to the 117th VBA Annual Meeting!

Legal Focus/Civil Litigation:6 • Effective E-Mail Discovery: Be Proactive and Combine

Practical, Technical and Legal StrategiesJon M. Talotta

9 • Tortious Interference with Contract or BusinessExpectancy: An Overview of Virginia LawDavid N. Anthony

15 • The Constitutionality of Irrebuttable PresumptionsProfessor James J. Duane

18 • Young Lawyers DivisionThe YLD 50th Anniversary:A Celebration of a Noble ProfessionLori D. Thompson

22 • Classified Ads22 • Professional Announcements24 • Calendar

VBA• •

VBA NEWS JOURNAL, the official publication of The Virginia Bar Association (ISSN 1522-0974, USPS 093-110), is published six times per year (December/January, February/March,April/May, June/July, August/September and October/November). Membership duesinclude the cost of one subscription to each member of the Association. Subscription priceto others, $30 per year. Statements or expressions of opinion appearing herein are thoseof the authors and not necessarily those of the Association, and likewise the publicationof any advertisement is not to be construed as an endorsement of the product or serviceunless specifically stated in the advertisement that there is such approval or endorsement.Periodicals postage paid at Richmond, VA 23232. POSTMASTER: Send address changes toThe Virginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219.

701 East Franklin Street, Suite 1120Richmond, VA 23219

(804) 644-0041FAX (804) 644-0052

E-mail: [email protected]: www.vba.org

OUR MISSIONThe Virginia Bar Association is a voluntaryorganization of Virginia lawyerscommitted to serving the public and thelegal profession by promoting the higheststandards of integrity, professionalism,and excellence in the legal profession;working to improve the law and theadministration of justice; and advancingcollegial relations among lawyers.

On the Cover: The Clifton Forge City Hall (1911). One hundred forty photographsof Virginia courthouses are contained in Virginia’s Historic Courthouses, writtenby John O. and Margaret T. Peters with a foreword by the late Justice Lewis F.Powell Jr.; photographs by John O. Peters; published by University Press ofCharlottesville; and sponsored by The Virginia Bar Association. To order thebook, call the VBA at (804) 644-0041 or 1-800-644-0987.

PresidentWilliam R. Van Buren III, Norfolk

President -electGlenn C. Lewis, Washington, D.C.

Chair, Board of GovernorsG. Michael Pace Jr., Roanoke

Immediate Past PresidentJames V. Meath, Richmond

Law Practice Management Division ChairDavid H. Sump, Norfolk

Young Lawyers Division ChairLori D. Thompson, Roanoke

Young Lawyers Division Chair-electMatthew E. Cheek, Richmond

Board of GovernorsThe Officers andProf. Margaret I. Bacigal, RichmondStephen D. Busch, RichmondJohn D. Epps, RichmondCheshire I. Eveleigh, Virginia BeachWilliam E. Franczek, NorfolkKaren Turner McWilliams, RestonSteven R. Minor, BristolJ. Lee E. Osborne, RoanokeStephen C. Price, LeesburgGlenn W. Pulley, DanvilleNancy N. Rogers, RichmondHon. Pamela Meade Sargent, AbingdonRichard C. Sullivan Jr., Falls Church

Member of ABA House of DelegatesE. Tazewell Ellett, Alexandria

Legislative CounselHon. Anthony F. Troy, RichmondHon. Robert B. Jones Jr., RichmondAnne Leigh Kerr, Richmond

Executive DirectorGuy K. Tower

Assistant Executive DirectorBrenda J. Dillard

VBA News Journal EditorCaroline B. Cardwell

THE VIRGINIA BAR ASSOCIATIONVOLUME XXXII, ISSUE 5

OCTOBER/NOVEMBER 2006

4/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2006

Regaining Our Moral CompassBY WILLIAM R. VAN BUREN III

We urge the Supreme Court of Virginia toconsider the adoption of . . . principles to bepublished with the Rules of Professional Conductand to serve as a basis for a continuum ofprofessionalism training . . . These principles canbe a guiding light to young lawyers, advancingthe traditions of professionalism to the nextgeneration, and reminding us all of the standardsthat set us apart from mere hired guns.

PRESIDENT’S PAGE

Tyco. Enron. Hewlett-Packard. Alllegendary corporate names nowassociated in the media with tales ofcorporate scandal. Unfortunately forour profession, too often suchscandals trace their alleged origins tocorporate lawyers said to be thearchitects of the schemes underlyingthe ensuing tragedy.

Do the ends of our clients alwaysjustify the means? Clearly, lawyers whoadvise their clients to engage in conductthat is illegal have crossed an improperline. But what of immoral conduct? Willour reputations survive a strategywhere the only boundary to our adviceis that which is legally possible?

Discussing the proliferation ofreports of backdating of stock options,a commentator on the NewsHour withJim Lehrer remarked that lawyers whoimproperly advise their clientsregarding such conduct should betargeted in enforcement actions. Dohis predictions need to become realitybefore our profession cleans its ownhouse?

On the heels of the most recentscandal at Hewlett-Packard, whereits corporate executives have beenaccused of violating state privacylaws in seeking the source ofinformation leaks emanating fromtheir board room, Warren Buffett,chairman of investment giantBerkshire-Hathaway, wrote a memoto his corporate executives that urgedeach of them to resist the temptationto engage in improper behavior.

His directive to managementbegan with the admonition that “thefive most dangerous words inbusiness may be “Everybody else isdoing it.” His memo elaborates furtherwith telling comments about theshallow nature of this approach:

“You would have been happyto have as an executor of yourwill or your son-in-law most

of the people who engaged inthese ill-conceived activities.But somewhere along the linethey picked up the notion –perhaps suggested to them bytheir auditor or consultant –that a number of well-respected managers wereengaging in such practices andtherefore it must be OK to doso. It’s a seductive argument.“But it couldn’t be more wrong.In fact, every time you hear thephrase ‘Everybody else is doingit,’ it should raise a huge red flag.Why would somebody offersuch a rationale for an act if therewere a good reason available?Clearly the advocate harbors atleast a small doubt about the actif he utilizes this verbal crutch.“So, at Berkshire, let’s start withwhat is legal, but always go onto what we would feelcomfortable about being printedon the front page of our localpaper, and never proceedforward simply on the basis ofthe fact that other people aredoing it.”

In closing, Warren Buffettadmonishes his managers that“Berkshire’s reputation is in yourhands.”

Speaking to the Forum forCorporate Conscience, Buffettreinforced the same message aboutthe importance of ethical behavior:“You can lose a reputation that took37 years to build in 37 seconds… Andit might take more than 37 years tobuild it back.”

Borrowing a page from WarrenBuffett’s playbook, I submit to each ofyou that the reputation of ourprofession is similarly in your hands.Hidden behind the cloak of attorney-client privilege, the bold advice wegive our clients is shielded from publicview. Yet the actions those clientsultimately take at our direction andurging may not play quite as well inthe light of day. If the advice feelswrong in private, it may well bereason to pause. Slick lawyers, tooclever in the pursuit of their ownclient’s aims and devoid of their ownmoral compass, are damaging to thehealth of our collective reputation.Perhaps a pause to reflect on WarrenBuffett’s advice will not only enhanceour investment portfolios but enlargeour reputations as well.

The leadership of The Virginia BarAssociation believes the time is rightto reinforce to the public and thelawyers of Virginia that professionalismand integrity are cornerstones of thepractice of law.

OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/5

Over a dozen states have adoptedformal Principles of Professionalismto serve as aspirational standards ofcivility, integrity and professionalism.We urged the Supreme Court ofVirginia to consider the adoption ofsimilar principles to be publishedwith the Rules of Professional Conductand to serve as a basis for a continuumof professionalism training, beginningin the law schools and reinforcedthroughout each lawyer’s career.

I am pleased to report that ChiefJustice Hassell recently advised thatthe Justices of the Court are of theopinion that a study of the Principlesof Professionalism concept would bea worthwhile endeavor.

These principles can be a guidinglight to young lawyers, advancing thetraditions of professionalism to thenext generation, and reminding us allof the standards that set us apart frommere hired guns. This effort is animportant building block to thereputation of the profession, but therest will be up to each of you. Onescandal can hurt us all. VBA

The following VBA members, listedalphabetically by community, have beenadded to the previously published roster ofVBA Community Service Programparticipants by certifying service hours for2005:VBA Community Servants(50 or more hours of certified nonlegalcommunity service)C. Edward Russell Jr., Kaufman &Canoles, PC, NorfolkJeffrey M. Stedfast, Kaufman & Canoles,PC, NorfolkMatthew E. Cheek, Williams Mullen,RichmondLori D. Thompson, LeClair Ryan,Roanoke

VBA Pro Bono Servants(50 or more hours of certified pro bonopublico legal service)John M. Holloway III, Hunton & WilliamsLLP, Richmond

As 2006 draws to a close, please completethe online certification form and submit itto the VBA office, or call (804) 644-0041for more information. The VBA CommunityService Program encourages all Virginialawyers who serve their communities tocertify their service hours! Watch for detailsof a special service project at the VBAAnnual Meeting in January.

Additional VBA/CSPServants announced

Dear Friends:

Our 2007 Annual Meetingfeatures a homecoming for the VBAin a great many respects. We notonly return to the newly renovatedand upgraded WilliamsburgLodge, we will welcome backmany of the leaders of the VBAYoung Lawyers Division who builtthe foundation for the greatreputation the YLD enjoys today.

On January 18-21, 2007, we will celebrate the 50th Anniversary of ouraward-winning Young Lawyers Division. In addition to the specialprogramming we have arranged to provide career development for ourcurrent young lawyers, our Friday night black-tie banquet has beentransformed into a delightful dinner dance featuring a short trip down theYLD memory lane and a long night of dancing to the music of “TheEntertainers,” a terrific show band from Charlotte, North Carolina.

We will be offering a wide range of substantive programming, with amix of 15 concurrent sessions and three general sessions appealing toboth lawyers and their guests. Our showcase general session will bepresented by the Committee on Special Issues of National and StateImportance and the Miller Center and will focus on the immigrationdebate. Improvement of Virginia’s jury system will be the focus of anothergeneral session sponsored by the Judiciary Committee and JudicialSection. The Law Practice Management Division will present a thirdgeneral session program entitled, “Marketing by Associates: Increasingthe Bottom Line While Training Future Leaders.”

Other presentations by our Law Practice Management Division willinclude a concurrent session specifically geared towards young lawyers,“Taking Control: Strategies for Your Career and Your Life”; and, for theannual Managing Partner’s Roundtable Luncheon on Saturday, the topicwill be “Developing the Next Generation of Great Virginia Lawyers” – apresentation certain to be of interest to managing partners in firms of allsizes. The topic of Friday’s installment of the always popular LegacySeries Luncheon will be the 400th anniversary of Jamestown. On behalf ofthe Committee on Special Issues of National and State Importance, Dr.James C. Kelly of the Virginia Historical Society will present “Jamestown1607, Quebec 1608, Santa Fe 1609: Three North American Beginnings.”

This meeting is sure to appeal to young and young-at-heart lawyersalike. But for those of you who have long since “aged out” of the YLD, Ihope you’ll remember it’s never too late to pretend you’re young. Makereservations today – we promise to make you feel young again! Watch forthe meeting brochure and for e-mails with program updates. To reserveyour room, either use the reservation form (to be included in thebrochure) or call 1-800-HISTORY and mention the VBA Annual Meeting.

I look forward to seeing you in Williamsburg!

Sincerely,

William R. Van Buren III President

yldyldyldyldyldVBA. .

1957-2007


Effective E-Mail Discovery:Be Proactive and Combine Practical,Technical and Legal StrategiesBY JON M. TALOTTA

LEGAL FOCUSCivil Litigation

As we all know, e-mail is often thekey source of evidence in litigation.E-mail is probably the most commonform of written communication in theworkplace and at home. Moreimportantly, an e-mail may form acontract, contain statementsconcerning important facts,knowledge or intent and, in someinstances, be actionable in and of itself(e.g., defamation, phishing). Inaddition, although they are creatinga writing that can be easilyforwarded and potentially lastsforever, people are remarkablyunguarded in their use of e-mail ascompared to other writtencommunication. Thus, e-mail isusually the most revealing (and oftenthe only) contemporaneous record ofa party’s thoughts and intentions asevents or transactions unfold.

As we also know, discovery isdriven by two fundamental goals:protect your client’s information; andobtain information from others thatyou may need for your case. E-maildiscovery, however, can be veryexpensive for both the requestingparty and the producing party, andproducing e-mail always involvesthe risk of inadvertently disclosingprivileged information, particularlyin large productions. As a result,lawyers must be proactive from theoutset, combining practical, technicaland legal strategies in order to protectclient information and maximize thereturn on a client’s investment ine-mail discovery.

To a large extent, the keys to effectivee-mail discovery apply generally toelectronically stored information (ESI)in all aspects of electronic discovery(e-discovery). This article focuses on

e-mail in order to frame the discussionin a context likely to be familiar to allreaders.

I. Client E-Mail: From the Outset,Preserve and Investigate

In terms of protecting your client’se-mail and other information, youcannot “hide the ball,” but you canpreserve and investigate your client’srecords and systems to safeguardagainst spoliation and manage costs.

Preservation. Upon notice ofimpending litigation, take steps topreserve your client’s potentiallyrelevant e-mail. Your client mayalready have an ESI policy in placecovering e-mail and litigation “hold”procedures. If so, get a copy, determinewhether it has been followed in thepast, and ensure that any litigationhold procedures are followed goingforward. If not, establish litigationhold procedures as soon aspracticable. Sanctions for spoliationcan be severe.

Investigation. At the same time,meet with your client’s informationtechnology (IT) personnel, whetheryour client’s information system is asingle computer or a multi-serverinfrastructure. Meeting withmanagement is not enough, but it canbe helpful to give both IT personneland management a writtenquestionnaire to complete before yourmeetings.1 The responses will helpyou ask informed questions and canbe useful later.

Technical issues. In order to plan aneffective e-mail discovery strategy,you have to consider more than theissues likely to be relevant in thelitigation – you must understand thebasics of how your client’s e-mail is

managed (e.g., system structure,storage and disaster recoveryprocedures). If you do not educateyourself, it will be difficult to establishan efficient litigation hold (which canbe unduly burdensome if too broadand dangerous if too narrow).Moreover, you will not understandwhether certain e-mail is inaccessibleor overly expensive to collect and, asa result, miss opportunities to discussthese issues with opposing counselearly in the case. In addition, you maynot be able to assess whether use ofan e-discovery vendor would behelpful or necessary.

II. Opposing Party E-Mail: BroadRequests May Be Counter-Productive

Conducting e-mail discovery on anopposing party involves choices.Broad requests are likely to cover theavailable information you need, butcan result in massive productionsthat are costly to review. As a result,attempt to gather information aboutan opposing party’s e-mail andsystems early on, in order to makeinformed decisions about the natureand scope of your discovery requests.

Preservation. Consider sending alitigation hold letter to the opposingparty to provide clear notice ofpreservation obligations. This will setup a framework for resolving disputesover incomplete productions orspoliation that may arise later.

Investigation. Courts now expect,if not require, counsel to cooperate one-discovery issues.2 Pre-discoveryconferences are an opportunity toexplore preservation, scope,accessibility and cost issues prior todiscovery. If your client wants to limitthe scope of e-mail discovery, you

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ABOUT THE AUTHORJon Talotta is a senior litigation associate in Hogan & Hartson LLP’s Northern Virginiaoffice. He is a graduate of the University of Virginia School of Law, served as a law clerkto the Honorable James C. Cacheris (E.D.Va.) after law school, and focuses his lawpractice on complex litigation and counseling clients on a range of commercialmatters, including intellectual property, the Internet, and insurance coverage.

may want to explore whether theopposing party will produce or acceptproduction of e-mail limited to specificindividuals or agreed-upon topics orsearch terms.3 In addition, if anopposing party has lots of e-mail orcomplex systems, you may want todepose its IT personnel and/or servetargeted interrogatories prior toserving the bulk of your meritsdiscovery requests.

Technical issues. Here, as well,understanding technical issuesrelating to the opposing party’s e-mailand systems may eliminate thereflexive urge to serve broad requeststhat are easy to draft but can result inmassive productions.4 Moreimportantly, you will be in a betterposition to anticipate potentialobjections to your discovery requests,including whether an opposing partymay assert that certain e-mail isinaccessible or too expensive tocollect, and thereby reduce the chancethat the opposing party will be ableto shift some of its costs onto yourclient.

III. Third Party E-Mail:Can Be Very Helpful to Your Case

Do not overlook. There usually islittle downside to serving requests onthird party individuals or entities,and the return on your investmentcan be significant. Of course, a thirdparty may have relevant e-mail orother information that neither yourclient nor an opposing party has inits possession. A less obvious reasonfor requesting third party e-mail is toobtain metadata from e-mail sent bythe third party that would not beavailable in your client’s or anotherparty’s copy, such as the blind copy(bcc) recipients of an e-mail.

Usually not difficult to obtain.Assuming the third party resides inthe United States, it is relatively easyto request e-mail or relatedinformation in federal or state courtproceedings. In some instances, yourclient may not be able to identify thethird party, because the discovery istriggered by an e-mail received fromanonymous e-mail address. Forexample, a defamatory e-mail sent toyour client and others from ananonymous e-mail address is notvery useful until the true identity ofthe author is known. This type of thirdparty discovery is often directed atInternet service providers (ISPs).5

Once you have determined a thirdparty may have relevant e-mail, youshould consider sending a litigationhold letter, particularly if it is unlikelythat the third party, such as an ISP, isaware that it may be subject todiscovery in your dispute.

IV. Preparing Client E-MailProductions: Combine Practical,Technical and Legal Strategies

The process of producing e-mails(as with all documents) can be brokendown into four phases: identification;collection; final review; and production.

Identification. The initial investigationof your client’s information systemswill help you identify the sources ofpotentially responsive e-mail morequickly. Identify all sources, includinglive files, archives and disasterrecovery files, whether on internal orout-sourced systems or servers,computers, laptops, or mobile devices.Do not forget about employee homecomputers.

Collection. You do not have tocollect all potentially responsivee-mail, but you need to identify it andbe able to articulate a reasonablejustification for what is not collectedbased on inaccessibility and/or cost.6In other words, as the “marginalutility” of collecting certain e-maildecreases, your client may be able toforego collecting the e-mail or shift thecost of collection onto the requestingparty.7 Document managementsoftware can be used to eliminate somenon-responsive e-mail and identifyduplicates prior to the final review tosave costs. In addition, you need toensure that your client’s IT personnelremain informed throughout thisprocess, because they may have toprovide affidavits or testimony later,to authenticate and/or establish afoundation for e-mail you areattempting to introduce into evidence.Do not assume that your client’s e-mailor other ESI will simply fly into evidence.Your records custodian should bewell-versed in the maintenance andstorage of your client’s ESI.8

Final review. The most critical – andexpensive – aspect of an e-mailproduction is usually the final reviewfor responsiveness and privilege. It isdifficult to completely automate thisprocess, but search technologyusually can identify a largepercentage of potentially privilegede-mail. There always is a risk thatprivileged information will beinadvertently produced, particularlyin very large productions. Because therules on waiver of privilege varyacross jurisdictions,9 it is worthattempting to work out “quick peek”or “claw back” arrangements withthe requesting party, to avoid waiverand reduce review costs.10

Agreements to forego the preparationof privilege logs, or at least limit whatmust be logged (e.g., documentsrelating to key people or issues), canreduce costs as well. Finally,e-discovery vendors can be a valuableasset at this stage, but you too muststay on top of the technical details.11

Production. E-mail can be producedin a variety of formats: native files(e.g., PST); exported files (e.g., for usewith database software); images (e.g.,TIFF, PDF); and hard copy. The amountof information included with eache-mail (e.g., metadata, attachments),the level of searchability, and theability to protect privilegedinformation, vary with each format.For example, requesting parties oftenwant native files, which containmetadata and attachments, ratherthan TIFF and PDF files, which mightnot. E-mail in native files, however,can be more difficult to Bates stampand redact than in TIFF or PDF files. Inthe past, producing parties oftenattempted to limit the informationprovided in, and the searchability of,an e-mail production by producingthe least functional format possible.Today, however, amended Rule 34(b)of the Federal Rules of Civil Procedure(effective December 1, 2006), gives therequesting party the ability to specifythe format of the production. Thischange will no doubt influence the


states to make changes as well. As aresult, the safest approach is usuallyto produce e-mail in the same formatthat you intend to use during thelitigation, unless you can articulate areasonable basis for producing it in adifferent format.12

V. Reviewing and Managing Opposing/Third Party E-Mail Productions: IdentifyPotential Disputes Early, Stay Organized

Once you receive an e-mailproduction, you need to determinewhether it is complete and, if not,whether e-mail is missing as a resultof a disagreement over the scope ofyour requests, the routine deletion ofe-mail, or spoliation. In addition, youneed to organize and manage thee-mail production along with the restof your case.

Production Disputes. Reviewinganother party’s e-mail production isalmost expensive as the final reviewof your own productions (the formerdoes not include privilege review).Your short-term objective is to assessthe production’s completeness as itrelates to your discovery requests.Software usually is not enough.Human review, depositions, and/ordiscovery responses often arenecessary as well. Occasionally,disputes over completeness arise thatmay require a computer forensicsexpert to resolve. Forensic experts caninspect systems, devices and files, andmay be able to recover deleted recordsor, in extreme cases, detect intentionalspoliation.13

Document Management. Yourlong-term objective is to organize andintegrate the e-mail production intothe rest of your case. Here, inparticular, document managementtechnology and software can resultin significant time and expensesavings. This technology can enhancesearchability and preserveannotations/notes and other relatedinformation in one centralizedlocation, thereby reducing theduplication or repetition of yourefforts.VI. Conclusion

This roadmap merely scratches thesurface of e-mail discovery. There aremany details and nuances underlyingeach of the issues discussed above.The precise path to effective e-maildiscovery (as with all discovery,ESI-related or otherwise) will depend

on the circumstances of each case,including the information systems ofyour client and the other partiesinvolved. Nevertheless, if you areproactive from the outset, and cancombine practical, technical and legalstrategies, you will increase thelikelihood of protecting your client’se-mail and other information, and ofmaximizing the return on yourclient’s investment in e-maildiscovery. VBA

NOTES1. An ESI questionnaire can cover: computer,server, and system structure and procedures;ESI storage and procedures; disasterrecovery and business interruptionprocedures; and litigation hold procedures.ESI questionnaires can be tailored to addressthe specific issues relevant to a particularcase. For example, in an employment case,the questionnaire might include questionsabout employee termination, departure, ortransfer procedures.2. For example, in federal court cases,counsel are required to address ESI-relateddiscovery issues during the pre-discoveryconference, pursuant to amended Rule 26(f)of the Federal Rules of Civil Procedure(“Federal Rule”), effective December 1, 2006.3. See, e.g., J.C. Assocs. v. Fidelity & Guar.Ins. Co., 2006 U.S. Dist. LEXIS 32919 (D.D.C.May 25, 2006) (court approved collection ofresponsive documents based on searchterms used to limit production of 1.4 millionpotentially responsive insurance claim filesdown to 454 files).4. Similarly, if your client does not want, orcannot afford, to respond to broad requests,you may not want to serve them on anopposing party (i.e., you want to avoid havingthe well-known axiom “sauce for the gooseis sauce for the gander” directed at yourclient as a result of your own requests).5. Virginia and many other jurisdictions havestatutory and/or common law rules thatpermit so-called “John Doe” discovery. See,e.g., Va. Code Ann. § 8.01-407.1 (providingfor discovery of identity of “personscommunicating anonymously over theInternet”); America Online, Inc. v. Nam TaiElectronics, Inc., 264 Va. 583 (2002)(permitting “John Doe” discovery inCommonwealth).6. For example, amended Federal Rule26(b)(2)(B), effective December 1, 2006,requires a party to identify in its discoveryresponses ESI that exists but is deemed“inaccessible” due to the infeasibility or costof collection. The rule sets up a frameworkfor a producing party to object to ane-discovery request and thereby seek to shiftthe costs onto the requesting party if thecollection is actually performed.7. A leading common law analysis oncost-shifting is set forth in Judge Scheindlin’sseries of opinions in the now-famousZubulake case. See, e.g., Zubulake v. UBSWarburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003).8. See, e.g., In re Vinhnee, 336 B.R. 437(B.A.P. 9th Cir. 2005) (affirming bankruptcycourt exclusion of electronic recordssubmitted by American Express to establish

creditor status in debtor’s proceeding,because American Express’ custodian ofrecords lacked sufficient knowledge of thecompany’s ESI management and storageprocedures).9. The ABA has proposed new Federal Ruleof Evidence 502, which is intended to promoteuniformity across jurisdictions with respectto the rules on waiver of privilege. Amongthe provisions, subject matter waiver islimited to “unusual” situations; inadvertentdisclosures do not result in waiver ifreasonable steps were taken prior to andafter the disclosure; intentional disclosureof privileged information to the governmentduring an investigation will not result in awaiver as to third parties; and federal courtorders regarding waiver will be enforceableagainst non-parties in other federal and stateproceedings.10. These arrangements allow the requestingparty to conduct an initial (“quick peek”)review of the collected e-mail and to requestselected e-mails to be produced. Theproducing party then conducts a privilegereview of just the selected e-mail and retainsany privileged e-mail (“claw back”) prior tothe actual production. See Fed. R. Civ. P.26(f)(3) (as amended, effective December 1,2006).11. Recent headlines confirm the need toremain informed on technical issues. Inconnection with the ongoing Enron litigations,an e-discovery vendor preparedproductions that included numerous e-mailcontaining no text. At first, it was suspectedthat the e-mail might have been erased,but ultimately was determined that no e-mailhad been erased and that the problem wassoftware-related. See Software Glitch MayHave Erased E-Mail Text in Enron Suits(August 10, 2006) (available at http://b i z . y a h o o . c o m / l a w / 0 6 0 8 1 0 /fc7314b1eaf35588924f84e05fcc9b81.html?.v=1).Nonetheless, the story is a cautionary tale –even your e-discovery expert can havetechnical problems.12. See, e.g., CP Solutions PTE, Ltd. v. GeneralElectric Co., 2006 U.S. Dist. LEXIS 27053 (D.Conn. Feb. 6, 2006) (producing party orderedto produce native files with attachmentsincluded; TIFF files without attachments notreasonable); Williams v. Sprint/United Mgmt.Co., 2005 U.S. Dist. LEXIS 21966 (D. Kan.Sept. 29, 2005) (producing party ordered toproduce metadata previously “scrubbed”from Excel spreadsheets in production,because metadata was relevant to issues inlitigation).13. Sanctions for spoliation can includedefault judgments. See, e.g., Krumwiede v.Brighton Assoc. LLC, 2006 WL 1308629 (N.D.Ill. May 8, 2006) (default judgment enteredfor willful deletion of files). Significantsanctions have been imposed in severalprominent cases over the past two years fordiscovery abuses relating to e-mail. See,e.g., Zubulake v. UBS Warburg LLC, 2004WL 1620866 (S.D.N.Y. July 20, 2004) (adversejury instruction against defendant and costsimposed for willful destruction of e-mail);Coleman (Parent) Holdings, Inc. v. MorganStanley & Co., 2005 WL 679071 (Fl. Cir. Ct.March 1, 2005) (adverse jury instructionagainst defendant for willful destruction ofe-mail; counsel disqualified; burden shiftedto defendant to prove it did not commit fraud).


Tortious interference with contractor business expectancy occurs whena person intentionally damages theplaintiff’s contractual or otherbusiness relationship with a thirdperson. This common law tort strikesa delicate balance between two ideals:the promotion of healthy economiccompetition and the protection ofexisting or reasonably certainprospective contractual relations.American contract law encourageslawful, free market competition, yetalso recognizes that vital interests,rights and obligations worthy ofprotection arise once a contract existsbetween parties. If contracts are notgiven protection from intentionalinterference by others, then thecertainty of their duration is at riskthereby jeopardizing the incentive todo business by contract. Given thesecompeting interests, Virginia courtsroutinely address disputes thatstraddle the fine line betweenvigorous, hardnosed competition andintentional interference withcontracts or business expectancies.

BackgroundTortious interference claims

originated in early Roman law, wherethe head of a household could bringan action against some third partywho injured a member of hishousehold.1 The modern history ofthe claim for tortious interferencewith contractual relations claimstraces to 19th century England.2 Inthe seminal case of Lumley v. Gye, anEnglish court recognized a claimbrought by a theater owner against arival theater owner’s interferencewith his contract with a well-knownsinger.3

Subsequent decisions expanded the

tort beyond personal servicecontracts to contracts of virtually anytype or character.4 After significantdisagreement, most American courtseventually recognized the tort.5 InWorrie v. Boze, the Supreme Court ofVirginia first acknowledged that “theright to performance of a contract andthe right to reap profits therefrom areproperty rights which are entitled toprotection from the courts.”6 SinceWorrie, Virginia courts have continuedto develop the nuances of the claim,occasionally by drawing fromanalogous claims.7

Stating a Claim for TortiousInterference with Existing ContractUnder Virginia Law

Under Virginia law, a claimantmust prove at least four elements tomaintain a viable claim for tortiousinterference. The elements for a claimdiffer slightly depending on whetherthe basis for the claim for interferenceis an existing contract or prospectivebusiness expectancy, businessrelationship or economic advantage.

Basic ElementsA plaintiff must establish four

elements in order to state a prima faciecause of action for tortiousinterference with an existing contract:

1. Existence of a valid contractualrelationship or business expectancy;

2. Knowledge of the contractualrelationship or expectancy by thedefendant;

3. Intentional interference inducingor causing a breach or termination ofthe contractual relationship orexpectancy; and

4. Resultant damage to the partywhose contractual relationship orexpectancy has been disrupted.8

Tortious Interferencewith Contract or Business Expectancy:An Overview of Virginia LawBY DAVID N. ANTHONY

LEGAL FOCUSCivil Litigation

Actual Malice is notan Essential Element of the Claim

A key component of a tortiousinterference with contract claim is thethird party’s intent as summarizedby a noted treatise as follows: “[i]t isclear that liability is to be imposedonly if the defendant intends tointerfere with the plaintiff’scontractual relations, at least in thesense that he acts with knowledgethat interference will result, and if, inaddition, he acts for an improperpurpose.”9 This emphasis on intentoccasionally misleads counsel intobelieving that that a plaintiff mustprove malice in the traditional senseof ill-will or spite. However, theSupreme Court of Virginia has madeclear that actual malice is not anessential element to prove a claim fortortious interference with acontract.10 All that is required is thatthe plaintiff demonstrate that thedefendant intentionally engaged inthe conduct with the primarypurpose of interfering with theplaintiff’s existing contractual orbusiness relationship with the thirdparty.Additional Element if the ExistingContract is Terminable at Will

Counsel are cautioned that, if thecontract at issue is terminable “atwill,” a plaintiff also must establishthat the defendant interfered throughthe use of “improper methods.”11 Asthe Supreme Court of Virginia hasheld:

Unlike a party to a contract for adefinite term, however, anindividual’s interest in a contractterminable at will is essentially onlyan expectancy of future economicgain, and he has no legalassurance that he will realize the


expected gain. See Restatement(Second) of Torts § 766 comment g(1979). Thus, the cause of actionfor interference with contractualrights provides no protection fromthe mere intentional interferencewith a contract terminable at will.12

This distinction makes logical andpractical sense, as a contractterminable at will may be ended atany time by the parties; however, “thefact that a contract is terminable atthe will of the parties does not make itterminable at the will of others.”13

Given the more tenuous nature of acontract terminable at will,theSupreme Court of Virginia requires aplaintiff to prove more than mereintentional interference with the atwill contract by a third party.14 Seeinfra for a fuller discussion of the meaning of“improper means or methods.”

Stating a Claim for TortiousInterference with ContractExpectancy, Prospective BusinessRelationship or Economic AdvantageBasic Elements

Under Virginia law, the basicelements for a claim for tortiousinterference with a contractexpectancy, prospective businessrelationship or economic advantagediffer slightly from those required fora claim for tortious interference withexisting contract. The elements are:

1. The existence of a contractexpectancy, prospective businessrelationship or economic advantage;

2. Knowledge of the contractexpectancy, prospective businessrelationship or economic advantageby the defendant;

3. A reasonable certainty that,absent defendant’s intentionalmisconduct, plaintiff would havecontinued in the relationship orrealized the expectancy;

4. The defendant used impropermeans or methods to intentionallyinterfere with the contract expectancy,prospective business relationships andeconomic advantage; and

5. Resultant damage to the plaintiff.15

Proving a Claimfor Tortious Interference

Regardless of whether a claim isone for tortious interference with anexisting contract or tortious interferencewith business expectancy, many of theelements and necessary proof aresubstantially the same.

Existence of an Enforceable ContractIn the context of a claim for tortious

interference with an existing contract,counsel may overlook the requirementthat a plaintiff must allege16 and provethat it was a party to a valid existingcontract.17 While the existence of avalid contract is not at issue in manycases, courts have identified a numberof circumstances where the allegedunderlying contract is not enforceable,such that the plaintiff cannot satisfythis element of a tortious interferenceclaim. Examples include:

· a contract violating a rule of law;18

·a contract against the public policyof Virginia;19

· a lawfully terminated lease;20

· a contract to which the defendanthimself is a party;21

· an employee’s ERISA benefitspreempted by federal law;22

· an unenforceable covenant not tocompete;23

· a contract providing easementrights;24

· an assignee of a contract not aparty to the contract at issue;25 and

· a non-binding letter of intent tonegotiate in good faith.26

Courts outside of Virginia haveconsidered the enforceability of theunderlying contract within thecontext of a tortious interferenceclaim, including violations of federallaw, restraint of trade, usury laws,the statute of frauds, invalidagreements, want of consideration,mutuality or certainty.27

Existence of a Business Expectancywith a Reasonable Certaintyof Being Realized

Where the claim involves ananticipated business relationship, aplaintiff must establish a specificopportunity that is reasonablycertain to be realized in order to provethe existence of a valid businessexpectancy.28 Courts routinely havedismissed claims for tortiousinterference with business expectancywhere the plaintiff merely alleges, ingeneral terms, that a defendant hasinterfered with potential or hoped-for29 business opportunities ratherthan a particular business expectancyor relationship.30 Instead, a plaintiffmust prove the existence of the allegedbusiness expectancy “based uponsomething that is a concrete move inthat direction”31 or “at least areasonable probability rather than

merely one of several equallysurmisable possibilities.”32 As Prosserhas stated, “[i]n such cases there is abackground of business experience onthe basis of which it is possible toestimate with some fair amount ofsuccess both the value of what hasbeen lost and the likelihood that theplaintiff would have received it if thedefendant had not interfered.”33

Virginia courts have held that avariety of asserted businessexpectancies do not satisfy therequisite standard of reasonablecertainty, including:

· continuing to do or remaining inbusiness;34

· retroactive promotions;35

·real estate sale purchase contracts;36

·sales to unidentified, andunidentifiable, “potential” buyers37

and· consulting contracts with nothing

more than a hope that the businessrelationship would continue in thefuture.38

Knowledge of the Contractor Business Expectancy

Virginia law also requires a plaintiffto establish that the defendant hadknowledge of either the contract orthe expectancy and of the fact that hewas interfering with the performanceof the contract.39 Indeed, a court willdismiss a tortious interference claimwhere the defendant does not haveknowledge of the alleged contract.40

In many circumstances, a defendanthas actual knowledge of theexistence of a contract or businessexpectancy, and a plaintiff easily cansatisfy this element. Further, at leastone Virginia trial court has set a morerelaxed standard than requiringactual knowledge of the potentialbusiness relationship, by allowing aplaintiff to satisfy the knowledgeelement by proving that thedefendant had “knowledge of factthat, upon reasonable inquiry,should lead to disclosure of theexistence of the contract or potentialbusiness relationship.”41 However,the knowledge requirement does notmean that the defendant mustappreciate fully the legal significanceof the facts giving rise to thecontractual relationship.42

Intentional Interferenceby the Defendant

The plaintiff also must show the


ABOUT THE AUTHORDavid N. Anthony is a partner in the law firm of Kaufman & Canoles, P.C., in Richmond. Heearned his law degree from Washington & Lee University School of Law in 1990. Upongraduation, he clerked for the Hon. William T. Prince, Magistrate Judge, U.S. District Courtfor the Eastern District of Virginia, Norfolk Division. In 2001, he served as Chair of the VBAYoung Lawyers Division, and Mr. Anthony currently chairs the VBA Civil Litigation Section .His civil litigation practice concentrates on commercial, consumer and constructiondisputes in federal and state courts.

defendant, through his conduct,intended to interfere with theplaintiff’s contract or expectancy.Case law in Virginia has not provideda thorough analysis of whatconstitutes “interference.” Generally,a plaintiff simply must show sometype of intentional43 act or conductby the defendant,44 as not everyinterference is actionable.45 TheRestatement (Second) of Torts has notedthat:

There is no technical requirementas to the kind of conduct that mayresult in interference with the thirdparty’s performance of thecontract. The interference is oftenby inducement. The inducementmay be any conduct conveying tothe third person the actor’s desireto influence him not to deal withthe other. Thus it may be a simplerequest or persuasion exertingonly moral pressure. Or it may bea statement unaccompanied byany specific request but having thesame effect as if the request werespecifically made. Or it may be athreat by the actor of physical oreconomic harm to the third personor to persons in whose welfare heis interested. Or it may be thepromise of a benefit to the thirdperson if he will refrain fromdealing with the other.46

Examples of interference includethreats, economic coercion, persuasionbased on mutual interests, a moreattractive contract, false statements,defamation, physical violence, unfaircompetition, intimidation, unfaircompetition, bribery and constitutionalviolations.47 However, Virginia lawdoes not require that the conductconstituting interference rise to thelevel of an independent tort.48

CausationAs with any other tort, a plaintiff

must prove proximate causation inorder to recover for a claim fortortious interference.49 Virginia lawdefines “proximate cause” as “thatact or omission which, in natural andcontinuous sequence, unbroken by anefficient intervening cause, producesthe event, and without which thatevent would not have occurred.”50

The Supreme Court of Virginia hasclarified that “[b]efore the issue ofproximate cause may be properlysubmitted to the jury, however, theevidence proving a causal connectionmust be ‘sufficient to take the questionout of the realm of mere conjecture, or

speculation, and into the realm oflegitimate inference.’”51 Significantly,the improper conduct must have beenintended to cause the interferencewith the plaintiff’s contractexpectancy.52

Improper Means or MethodsWhen dealing with an “at will” or

expectancy case, the Supreme Courtof Virginia requires a plaintiff also toprove the additional element that theinterference occurred through“improper means or methods.”53

Indeed, intentional interferenceclaims commonly hinge on thequestion of whether the defendantused “improper means or methods”while interfering with the contractor expectancy at issue.“Improper Means or Methods”Discussed in the Restatement(Second) of Torts

The Restatement (Second) of Torts setsforth a helpful list of certain factors toconsider in determining whether theconduct of a defendant who interfereswith a contract or prospectivecontractual relation is “improper.”These factors include: “(a) the natureof the actor’s conduct, (b) the actor’smotive, (c) the interests of the otherwith which the actor’s conductinterferes, (d) the interests sought tobe advanced by the actor, (e) the socialinterests in protecting the freedom ofaction of the actor and contractualinterests of the other, (f) the proximityor remoteness of the actor’s conductto the interference and (g) the relationsbetween the parties.”54

What Are and Are Not“Improper Means or Methods”Under Virginia Law

In describing generally what doesand does not constitute “impropermeans or methods,” the SupremeCourt of Virginia has stated that:

While we have identified actionsas improper which were alsoindependently tortious or illegal,

. . . we have also identified actionsas improper which are notthemselves tortious or illegal,such as unfair competition orunethical conduct. . . . Nor doesthe name given the cause ofaction impart a requirement ofindependently tortious acts.‘Tortious interference’ meansonly that the interference wasintentional and improper underthe circumstances, not that the‘improper methods’ used wereinherently illegal or tortious.55

Given this broad standard, Virginiacourts have identified a number ofexamples of what conduct may or maynot constitute “improper means ormethods.”

DefamationEvidence of defamation that might

not rise to the level of an actionabletort is sufficient to create a jury issuewith respect to improper methods.56

Similarly, specific allegations ofdefamatory statements are sufficientto withstand a demurrer.57 Impropermethods, however, do not includestating true facts regarding acompetitor or competing markets tocustomers.58

Misuse of Insideor Confidential Information

Improper methods may includemisappropriation of client informationor trade secrets.59 However, where thereis no non-compete or confidentialitycovenant between a company and itsformer employees, the Court has heldthat former employees are not usingimproper methods when theycompile from memory a list of thecompany’s clients and solicit theirbusiness.60

Violations of Established Standardof a Trade or Profession

Improper methods also may beestablished by a showing that thedefendant’s actions “violate anestablished standard of a trade orprofession.”61 The investigation andreview of a debtor’s credit and loan


information by a purchaser of creditis a “lawful acquisition of informationnecessary for sound businessdecisions” and not considered atortious act.62

Unethical ConductThe Supreme Court of Virginia has

stated that methods may also beimproper because they involve“unethical conduct,” although theCourt has not provided detailedguidance as to what types of unethicalconduct will rise to the level of beingdeemed “improper” in this context.63

Litigation Initiatedfor the Wrong Reasons

Evidence of conduct otherwisepermitted by statute – such as theinitiation of litigation – may still beconsidered improper for purposes ofa tortious interference claim.64

However, when a defendant acts inaccordance with published courtdecisions and engages in conduct thatis encouraged by federal law, suchactions cannot establish the basis forimproper methods of interference.65

Other Examplesof “Improper Methods or Means”

In Duggin v. Adams,66 the SupremeCourt of Virginia delineatednumerous other examples of conductby a defendant that may constituteimproper methods, including:

·Means that are illegal orindependently tortious, such asviolations of statutes, regulations orrecognized common law rules;67

·Violence, threats or intimidation;·Bribery;·Unfounded litigation;·Fraud,68 misrepresentation69 or

deceit;· Duress or undue influence;·Breach of a fiduciary relationship;70

·Sharp dealing and overreaching;and

· Unfair competition.71

Examples of Methods or MeansThat Are Not “Improper”

Virginia courts also havedetermined that some methods ormeans are not “improper” as a matterof law, and thereby fail to satisfy thiselement, including:

· Interference occurring aftertermination of the contract;72

· Utilizing one’s memory to compilea list of the names of the plaintiff’scustomers and soliciting business

from those customers;73 and· Exercise of a lawful right such as a

bank’s foreclosure on its UCC lien on adebtor’s property after the debtor hadarranged a sale to a third party74 ortermination of agreement as providedfor by its plain terms.75

Resultant Damage to the PlaintiffCompensatory Damages

As with any other claim, theplaintiff must prove that it sustaineddamages from the alleged interference.76

Since tortious interference is aneconomic tort, a plaintiff potentiallymay recover monetary damages inthe form of: (1) the plaintiff’s directexpenses;77 (2) lost profits;78 (3)damages for partially completedprojects; (4) contracts that had beenawarded but no work performed; (5)future contracts that had beenpromised but not awarded; (6)permanent destruction of thebusiness relationship; and (7) damageto the plaintiff’s business reputation.79

While a plaintiff must providesufficient facts and circumstancesconcerning his damages, a plaintiffneed not prove his compensatorydamages to an exact amount.80

However, a plaintiff must demonstratewith reasonable certainty that thedefendant was the proximate causeof each claimed damage.81

Punitive DamagesAs with other torts, punitive

damages are an available remedyprovided the plaintiff can prove thatthe defendant willfully interferedwith or destroyed the businessrelationship.82 However, the defendant’sconduct must be particularly“egregious.”83 The plaintiff must showthat the defendant acted with actualmalice or such recklessness ornegligence to evince a consciousdisregard of the rights of others.84 Thestandard to recover punitivedamages is a high one, and plaintiffsshould not assume that a court willview defendant’s actions as beingsufficiently egregious to justify anaward of punitive damages merelybecause they were intentional.85

Defenses to TortiousInterference Claims

In acknowledgment of the tensionbetween the protection of contractualrelations or business expectancieswith the defendant’s freedom of fairand lawful competition, the Supreme

Court of Virginia has recognizedjustification or privilege as anaffirmative defense to tortiousinterference claims.86 In Chaves v.Johnson, the Court provided fivegrounds for this affirmative defense:

· Legitimate business competition;· Financial interest;· Responsibility for the welfare of

another;· Directing business policy; and· The giving or requested advice.87

Generally, however, the SupremeCourt of Virginia has not providedits own extensive, independentanalysis of the type of conduct thatwould qualify as “justified” or“privileged” activity in the context ofthis affirmative defense, instead citinggenerally to the discussion of thisdefense set forth in the Restatement. Aswith any affirmative defense, theburden of proof rests on the defendantto prove that its interference wasjustified or privileged under thecircumstances.88

ConclusionOrdinarily, disputes involving

commercial transactions do not giverise to any type of tort claim underVirginia law. However, Virginiacourts have demonstrated awillingness to protect the sanctity ofcontracts, in part, through thedoctrine of tortious interference withcontracts. This willingness does notmean that a Virginia court will allowevery commercial dispute betweenbusiness competitors to be turnedinto a business tort. Thus, Virginiacourts afford existing contracts thatare not terminable at will a greaterdegree of protection than terminableat will contracts or prospectivecontractual relationships that areonly tentative. Further, the SupremeCourt of Virginia in Duggin andMaximus made clear that, where theclaim involves interference with acontract that is terminable at will, ora future business expectancy, theplaintiff must demonstrate that thedefendant used “improper means ormethods.” This element may be themost difficult for a plaintiff toestablish, and Virginia case law hasdemonstrated that cases involving aterminable at will contract orinterference with a prospectivecontractual relationship will surviveor fail based upon whether thedefendant used “improper methods”


to interfere. Since what conductactually constitutes “improper meansor methods” is fact driven andconstantly evolving, lawyers canexpect to see many more cases reachthe Supreme Court of Virginia onprecisely this issue. VBA

NOTES1. See W. Page Keeton, Prosser & Keaton On TheLaw Of Torts § 129, at 970-80 (5th ed. 1984)(observing that the status or relation in which theparties stood toward one another and with which thedefendant interfered was the focus, rather than theexistence of a contract, as the theory was that thehead of the household’s wife, children, slaves orother members of his establishment were soassociated with him as to constitute a wrong againstthe head of the household) (hereinafter, “Prosser”).2. Restatement (Second) of Torts § 766, at 8-9(1979).3. 2 El. & Bl. 216, 118 Eng. Rep. 749 (Q.B. 1853);see generally Tortious Interference With ContractualRelations In The Nineteenth Century: TheTransformation of Property, Contract, And Tort, 93Harv. L. Rev. 1510 (1980).4. Restatement (Second) of Torts § 766 at 9;Prosser § 129, at 980-81.5. Prosser § 129, at 980-81.6. 198 Va. 533, 536, 95 S.E.2d 192, 196 (1956)(holding that “under these allegations, the wrongdone and damage done are directed to the estate orproperty of the plaintiffs and not to them personally”)(citations omitted).7. See Watson v. Lee Bank & Trust Co., 22 Va. Cir.495, 505 (County of Lee May 7, 1982) (noting that“Virginia does not appear to have developed a well-defined body of law for tortious interference withcontractual or business relations, the most analogouscases being conspiracy to induce breach of contractor misrepresentations or fraud or deceit or libel orslander which results in breaches of contract or tendto injure others in their trade or business.”) (citingWorrie and M. Rosenberg & Sons v. Craft, 182 Va.512, 29 S.E.2d 375 (1944)).8. Chaves v. Johnson, 230 Va. 112, 120, 335S.E.2d 97, 102 (1985); see also Instruction 40.150,II Va. Model Jury Instructions (setting forth theelements a verdict must be based upon to recover fortortious interference with a contract that is notterminable at will).9. Prosser § 129, at 982.10. Chaves, 230 Va. at 121, 335 S.E.2d at 102-03;see also Maximus, Inc. v. Lockheed Info. Mgmt. Sys.Co., 254 Va. 408, 414, 493 S.E.2d 375, 378(1997) (holding that plaintiff was not required toprove malice or other egregious conduct in order toprove its tortious interference claim); Simbeck, Inc. v.Dodd-Sisk Whitlock Corp., 44 Va. Cir. 54, 65 (City ofWinchester 1997) (stating that “proof of actual maliceor ill will is not necessary in order to recover fortortious interference with an existing contract that isnot terminable at will”), aff’d, 257 Va. 53, 508S.E.2d 601 (1999); Prosser § 129, at 982-89(discussing intent requirement).11. Duggin v. Adams, 234 Va. 221, 227-28, 360S.E.2d 832, 836 (1987);12. Id. at 226, 360 S.E.2d at 836 (citing HechlerChevrolet v. Gen. Motors Corp., 230 Va. 396, 402,337 S.E.2d 744, 748 (1985)); accord RappahannockPistol & Rifle Club, Inc. v. Bennett, 262 Va. 5, 546S.E.2d 440 (2001); see also George K. DegnonAssocs. v. Acad. for Eating Disorders, Law No.227768, 2005 Va. Cir. LEXIS 202 (County of FairfaxCircuit Ct. Nov. 29, 2005) (holding that three yearcontract was not terminable at will because defendantdid not give notice to terminate the contract as

required by its terms); Prof’l Heating & Cooling, Inc. v.Smith, 64 Va. Cir. 313 (City of Norfolk 2004) (rulingthat plaintiff had to demonstrate improper methodsbecause preventive maintenance contracts wereterminable at will); Instruction 40.150, II Va. ModelJury Instructions (setting forth the elements a verdictmust be based upon to recover for tortious interferencewith a contract terminable at will).13. Duggin, 234 Va. at 226, 360 S.E.2d at 836(citing Truax v. Raich, 239 U.S. 33, 38 (1915)).14. Duggin, 234 Va. at 226-27, 360 S.E.2d at 836;see also Maximus, 254 Va. at 414, 493 S.E.2d at378 (noting that “not all business relationships areentitled to the same level of protection and . . . that acontract not terminable at will was entitled to moreprotection than a contract terminable at will”) (citingDuggin).15. Maximus, 254 Va. at 414, 493 S.E.2d at 378;accord Williams v. Dominion Tech. Partners, L.L.C.,265 Va. 280, 289-90, 576 S.E.2d 752, 757 (2003)(quoting Glass v. Glass, 228 Va. 39, 51-52, 321S.E.2d 69, 76-77 (1984)).16. See Masco Contractor Servs. E., Inc. v. Beals,279 F. Supp. 2d 699, 710 (E.D. Va. 2003) (dismissingtortious interference counterclaim in ruling that “[t]hecounterclaim makes absolutely no mention of anyparticular contract” or existing business relationship);accord Commerce Funding Corp. v. Worldwide Sec.Servs. Corp., 249 F.3d 204, 213 (4th Cir. 2001);see also Cranor v. Homebuyers Inspections, Inc., 69Va. Cir. 10, 11 (City of Richmond 2005) (ruling thatplaintiff sufficiently alleged the elements of a tortiousinterference claim).17. Sunsport, Inc. v. Barclay Ltd., 984 F. Supp. 418,423 (E.D. Va. 1997).18. Marina Shores, Ltd. v. Cohn-Phillips, Ltd., 246Va. 222, 226, 435 S.E.2d 136, 138 (1993) (citingWinn v. Aleda Constr. Co., 227 Va. 304, 307, 315S.E.2d 193, 194 (1984).19. Marina Shores, Ltd., 246 Va. at 226, 435S.E.2d at 138 (citation omitted).20. Id.21. Fox v. Deese, 234 Va. 412, 427, 362 S.E.2d699, 708 (1987); see also Hatten v. Campbell, No.CL06-259, 2006 Va. Cir. LEXIS 118, at *10 (Countyof Chesterfield Circuit Ct. June 5, 2006) (holding that“a person cannot intentionally interfere with his owncontract”); Britt Constr., Inc. v. Magazzine Clean,L.L.C., 69 Va. Cir. 478, 480 (County of Loudoun2006) (holding that the general contractor’s allegationssufficiently stated an action for tortious interferencedespite the architect’s agency relationship with theowner based upon the contractually expressedlimitation upon the nature of the architect company’srelationship with the owner).22. Smith v. Logan, 363 F.Supp.2d 804, 813 (E.D.Va. 2004).23. Power Distrib. v. Emergency Power Eng’g, 569F. Supp. 54, 56 (E.D. Va. 1983).24. Ortiz v. Flattery, 63 Va. Cir. 309, 312 (County ofFairfax 2003).25. Sunsport, Inc., 984 F. Supp. at 423.26. Marketplace Holdings, Inc. v. Camellia FoodStores, Inc., At Law No. L03-2601 (City of NorfolkCircuit Ct. Feb. 27, 2004).27. See James D. Pearson, Annot., Liability forInterference with Invalid or Unenforceable Contract,96 A.L.R.3d 1294 (1979) (discussing examples in awide variety of states throughout the United States);see also Restatement (Second) of Torts § 766comment f (stating that a third party is not free tointerfere with the performance of a contract even theif the third party may have a technical defense toavoid liability, such as “the statute of frauds, formaldefects, lack of mutuality, infancy, unconscionableprovisions, conditions precedent to the obligation oreven uncertainty of particular terms”).28. See Am. Tel. & Tel. Co. v. E. Pay Phones, Inc.,

767 F. Supp. 1335, 1340 (E.D. Va. 1991) (citingGlass v. Glass); Levine v. McLesky, 881 F. Supp.1030, 1057 (E.D. Va. 1995) (concluding that “theexpectancy of remaining in business is too general tosupport a tortious interference claim”), aff’d in part,rev’d in part, 164 F.3d 210 (4th Cir. 1998).29. Commercial Bus. Sys., Inc. v. Halifax Corp., 253Va. 292, 301, 484 S.E.2d 892, 897 (1997) (rulingthat “mere proof of a plaintiff’s belief and hope that abusiness relationship will continue is inadequate tosustain the cause of action”).30. See RFE Indus., Inc. v. SPM Corp., 105 F.3d923, 927 (4th Cir. 1997) (concluding that plaintiff’sselling products on an as-needed basis to itscustomers with no firm commitment for futurepurchases only provided plaintiff with an expectationthat it “would retain its customers only so long as itmet their demand for a quality product at a competitiveprice”); Eurotech, Inc. v. Cosmos European TravelsAktiengesellschaft, 189 F. Supp. 2d 385, 391 (E.D.Va. 2002) (holding that “[b]ecause plaintiffs do notidentify the specific business relationships with whichdefendant has interfered, plaintiffs’ tortious interferenceclaim fails”); see also Levine, 881 F. Supp. at 1057-58 (finding insufficient plaintiff’s contention that itsmembers expects to renew their memberships wasspecific enough); McDonald’s Corp. v. Turner-James,No. 05-804, 2005 U.S. Dist. LEXIS 42755, at *13(E.D. Va. Nov. 29, 2005) (ruling that “merely identifyingthe parties with whom Defendants had discussions in‘several telephone calls’ about ‘various aspect of therestaurant and its operations’ . . . would still fall farshort of what they must allege to proceed with theirclaims”); Williams, 265 Va. at 292, 576 S.E.2d at758 (quoting Commercial Bus. Sys., Inc., 253 Va. at303, 484 S.E.2d at 898).31. Moore v. United Int’l Investigative Servs., Inc.,209 F. Supp. 2d 611, 619-20 (E.D. Va. 2002).32. Charleston Area Med. Ctr., Inc. v. Blue Cross &Blue Shield Mut. of Ohio, Inc., 6 F.3d 243, 247 (4thCir. 1993); Levine, 881 F. Supp. at 1058.33. Prosser § 130, at 1006.34. Levine, 881 F. Supp. at 1058; Am. Tel. & Tel.Co., 767 F. Supp. at 1340.35. Morris v. Massingill, 64 Va. Cir. 202, 203 (City ofNorfolk 2004).36. French v. Garraghty, Case No. CH05-1285,2006 Va. Cir. LEXIS 125, at *3 (City of RichmondCircuit Ct. June 1, 2006).37. McDonalds Corp. v. Turner-James, No. 05-804,2005 U.S. Dist. LEXIS 42755, at **12-14.38. Williams, 265 Va. 292, 576 S.E.2d at 758; seealso Simbeck, 44 Va. Cir. at 62 (observing that “thebusiness expectancy of a renewal insurance policywas on the outer reaches of the concept of a cognizablebusiness expectancy”).39. Glass, 228 Va. at 51-52, 321 S.E.2d at 77.40. Meadow Ltd. P’ship v. Heritage Sav. & LoanAss’n., 639 F. Supp. 643, 651 (E.D. Va. 1986).41. Simbeck, Inc., 44 Va. Cir. at 62 (citingRestatement (Second) of Torts § 766, comment i).42. Restatement (Second) of Torts § 766 commenti.43. See John L. Costello, Virginia Remedies §17A.02[5][a], at 17A-20 (3d ed. 2005) (noting thatno independent tort exists in Virginia for the negligentinterference with contract).44. Duggin, 234 Va. at 226, 360 S.E.2d at 835.45. Nida v. Bus. Advisory Sys., Inc., 44 Va. Cir. 487,501 (City of Winchester 1998) (holding that “the factthat defendant’s activity has injured plaintiff’s businessdoes not mean that plaintiff necessarily is entitled toa remedy” as “[a]n injury may be of the kind which, ina relatively free economy, a citizen is obliged to suffer,an injury resulting from lawful competition of which hecannot complain.”).46. Restatement (Second) of Torts § 766, commentk.

47. Prosser § 129, at 90-94 (citations omitted).48. See Maximus, 254 Va. at 414-15 n.7, 493S.E.2d at 378-79; accord Prosser § 129, at 993;see also Virginia Remedies § 17A.02[5], at 17A-20 (stating that "[t]he methods of interferenceneed not be tortious themselves").49. Chaves, 230 Va. at 120, 335 S.E.2d at 102.50. Beale v. Jones, 210 Va. 519, 522, 171S.E.2d 851, 853 (1970); Instruction 5.000, I Va.Model Jury Instructions.51. Cohn v. Knowledge Connections, Inc., 266Va. 362, 369, 585 S.E.2d 578, 582 (2003)(quoting Beale, 210 Va. at 522, 171 S.E.2d at853 and Hawkins v. Beecham, 168 Va. 553,561, 191 S.E. 640, 643 (1937)).52. Magnuson v. Peak Tech. Servs., Inc., 808 F.Supp. 500, 516-17 (E.D. Va. 1992); see alsoRestatement (Second) of Torts § 766, commenth (stating that "[t]he essential thing is the intentto cause the result. If the actor does not havethis intent, his conduct does not subject him toliability under this rule even if it has theunintended effect of deterring the third personfrom dealing with the other.").53. Duggin, 234 Va. at 227-28, 360 S.E.2d at836.54. Restatement (Second) of Torts § 767, at 26-39; see also Belena v. Air Line Pilots' Assn., 31Va. Cir. 413, 415-16 (County of Fairfax Sept. 1,1993) (citing Restatement (Second) of Torts §167).55. Maximus, Inc., 254 Va. at 414, 493 S.E.2dat 378 (citing Duggin, 234 Va. at 227-28, 360S.E.2d at 836-37) (footnote omitted).56. Stamathis v. Flying J., Inc., No. 7:01cv00838,2002 U.S. Dist. LEXIS 12398 (W.D. Va. July 9,2002); see also Douty v. Irwin Mortgage Corp.,70 F. Supp. 2d 626, 634 (E.D. Va. 1999) (holdingthat plaintiff's allegations, while extremely vague,were sufficient to satisfy the "improper means"requirement).57. Eslami v. Global One Commc'ns, Inc., 48 Va.Cir. 17, 24 (County of Fairfax 1999).58. See Hechler Chevrolet, 230 Va. at 402, 337S.E.2d at 748 ("If a competitor is in fact about tocease marketing a competing product, it is notunlawful to state that fact truthfully tocustomers"); see also Bridge Tech. Corp. v. KenjyaGroup, Inc., 65 Va. Cir. 23, 28 (County of Fairfax2004) (holding that contractor's allegeddefamatory remarks to the N.S.A. could not bethe basis of a civil conspiracy claim because theyare privileged).59. See McGladrey & Pullen, L.L.P. v. Shrader,62 Va. Cir. 401, 412 (County of Rockingham2003) (given the confidentiality and non-solicitation agreement signed by defendant, hisemployer "had a reasonable expectancy" thatdefendant would not "purloin[] confidential clientinformation . . . and us[e] it . . . to solicit [theemployer's] clients"); Int'l Paper Co. v. Gilliam, 63Va. Cir. 485, 492 (City of Roanoke 2003)(involving an alleged violation of a confidentialityagreement and misappropriation of a trade secret);Stone Castle Fin. v. Friedman, Billings, Ramsey& Co., 191 F. Supp. 2d 652, 660 (E.D. Va. 2002)(alleged breach of confidentiality agreement).60. See Check 'n Go of Va. Inc. v. Laserre, No.6:04-CV-00050, 2005 U.S. Dist. LEXIS 16591(W.D. Va. Aug. 9, 2005) (plaintiff was able toprove a misappropriation of trade secrets by aformer employee who took plaintiff's policy andprocedure manual for development of a similarmanual for a competitor); Peace v. Conway, 246Va. 278, 282, 435 S.E.2d 133, 135 (1993) (rulingthat plaintiff had to demonstrate defendant usedimproper methods to interfere with a terminable


at will sales contract and plaintiff was entitled touse general information, including customernames to begin a new business so long asinformation was not acquired in violation of theirduties as agents); Deepwood Veterinary Clinic,Inc. v. Sabo, 45 Va. Cir. 508, 509 (County ofFairfax 1998) (holding that solicitation ofcustomers through use of list compiled by memorywas not actionable absent a covenant notcompete or improper methods).61. Duggin, 234 Va. at 228, 360 S.E.2d at 837;see Simbeck, 257 Va. at 57, 508 S.E.2d at 603(holding that defendant's attempt to recoupmoney owed by plaintiff by refusing to release aninsurance quote unless plaintiff executed a notewas a deviation of established custom andpractice in the trucking insurance industry and"totally improper").62. Peterson v. Cooley, 142 F.3d 181, 187 (4thCir. 1998).63. Duggin, 234 Va. at 228, 360 S.E.2d at 836;Wuchenich v. Shenandoah Mem'l Hosp., No. 99-1273, 2000 U.S. App. LEXIS 11557 (4th Cir. May22, 2000) (suspending plaintiff's medical staffprivileges without just cause and reporting two ofplaintiff's cases to peer review without just causeconstitute unethical conduct and impropermethods); Commerce Funding Corp. v. WorldwideSec. Servs., 249 F.3d 204, 214 (4th Cir. 2001)(holding that the conduct of a party who, basedon good faith belief, asserted claims to funds inan interpleader action in which it had no legalinterest was not considered unethical or on thelevel of improper conduct).64. See Maximus, 254 Va. at 414-15, 493 S.E.2dat 378-79 (evidence that defendant filed a protestto a government agency's Notice of Intent toAward a contract to the plaintiff in whichdefendant alleged that two members of theagency's proposal evaluation panel hadundisclosed conflicts of interest — allegationswhich caused the agency to withdraw the NIA forfear of a delay in proceedings and public criticism,and which proved to be false — was sufficient topresent a prima facie case that defendant'sactions were improper, despite the fact thatdefendant had a statutory right to file a protest).65. See Am. Online v. GreatDeals.net, 49 F.Supp. 2d 851, 863-64 (E.D. Va. 1999) (holdingthat AOL had a right to prevent trespass to chattelsby blocking plaintiff's transmission of unsolicitedbulk e-mail, which is encouraged by federal law,to its subscribers).66. Duggin, 234 Va. at 227, 360 S.E.2d at 835(citations omitted).67. See Multi-Channel TV Cable Co. v. CharlottesvilleQuality Cable Corp, 31 Va. Cir. 551, 552-53 (Cityof Charlottesville 1992) (plaintiff claimed thatAdelphia's violation of statute was impropermethods).68. See Williams v. Omana, 18 Va. Cir. 165, 167(County of Fairfax 1989) (holding that a fraudulentconveyance is an improper method). While fraudmay serve as an "improper method," the SupremeCourt of Virginia has refused to address fraudwithin the context of a Pastor's tortiousinterference claim against officials of his churchfor termination of his employment. See Cha v.Korean Presbyterian Church of Washington, 262Va. 604, 613-14, 553 S.E.2d 511, 515-16(2001). The Court reasoned that "the court couldnot adjudicate such claim without consideringissues regarding the church's governance, faithand doctrine." Id. at 613 n.1, 553 S.E.2d at 515.69. See Magnuson, 808 F. Supp. at 516-17(concluding that false statements regarding work

performance constituted improper conduct).70. See Hilb, Rogal & Hamilton Co. v. DePew,247 Va. 240, 249, 440 S.E.2d 918, 923 (1994)(holding that breach of a fiduciary relationship isevidence of the required improper methods. Thecourt, however found that post-terminationactivities were not a violation of a fiduciary dutysaid to have been owed by a former employee toa former employer); Appleton v. Bondurant &Appleton, P.C., 68 Va. Cir. 208 (City of Portsmouth2005) (holding that breach of a fiduciary dutywould be the basis for improper methods,however, the former employees did not commita breach of their fiduciary duties).71. Duggin, 234 Va. at 227-28, 360 S.E.2d at836 (citations omitted).72. Perk v. Vector Res. Group, 253 Va. 310,313, 485 S.E.2d 140, 143 (1997).73. Peace, 246 Va. at 282, 435 Va. at 135.74. Charles E. Brauer Co. v. NationsBank of Va.,N.A., 251 Va. 28, 36, 466 S.E.2d 382, 387(1996).75. R&D 2001, L.L.C. v. Collins, No. Cl-2005-7021 2006 Va. Cir. LEXIS 131 (County of FairfaxCircuit Ct. July 12, 2006).76. Masco Contractor Servs. E., 279 F. Supp. 2dat 709.77. Simbeck, 44 Va. Cir. at 63 (citing Bettius &Sanderson, P.C. v. Nat'l Fire Ins. Co., 839 F.2d1009, 1012 (4th Cir. 1988)).78. See Hop-In Food Stores, Inc. v. Serv-N-Save,Inc., 247 Va. 187, 190-91, 440 S.E.2d 606, 608(1994) (holding that a plaintiff may recover lostprofits proximately caused by the defendant'swrongful conduct "provided the lost profits arecapable of reasonable ascertainment and arenot uncertain, speculative, or remote") (citingUnited Constr. Workers v. Laburnum Constr.Corp., 194 Va. 872, 887, 75 S.E.2d 694, 704(1953), aff'd, 347 U.S. 656 (1954); see alsoBoggs v. Duncan, 202 Va. 877, 883, 121 S.E.2d359, 363 (1961) (requiring a plaintiff to providesufficient evidence to estimate lost profits withreasonable certainty); Va. Code Ann. § 8.01-221.1(allowing new or unestablished businesses torecover lost profits upon proper proof).79. United Constr. Workers, 194 Va. at 887-93,75 S.E.2d at 704-08.80. Murray v. Hadid, 238 Va. 722, 731, 385S.E.2d 898, 904 (1989); see also Worrie, 198Va. at 542, 95 S.E.2d at 200 (stating that aplaintiff does not to prove the quantum of itsdamages with absolute certainty).81. See MicroStrategy, Inc. v. Bus. Objects, S.A.,429 F.3d 1344, 1361 (Fed. Cir. 2005) (findingthat plaintiff "MicroStrategy did not account forother potential causes for its loss of businessand [defendant] Business Objects' gain inbusiness over the same period").82. United Constr. Workers, 194 Va. at 894, 75S.E.2d at 708.83. Ross v. Sigley, No. 96-00129-H, 1998 U.S.Dist. LEXIS 3300, at *4 (E.D. Va. Jan. 30, 1998).84. Puent v. Dickens, 245 Va. 217, 219, 427S.E.2d 340, 342 (1993).85. See Simbeck, 44 Va. Cir. at 65 (nothing the"lesser scienter requirement for proof of the tortis not to be confused with the concepts of 'malice'and 'wanton' conduct which are the underlyingjustification for an award of punitive damages").86. Chaves, 230 Va. at 121, 335 S.E.2d at 103.87. Id. (citing Restatement (Second) of Torts §§768-72 and Calbom v. Knudtzon, 396 P.2d 148,151 (Wash. 1964)).88. Commerce Funding Corp., 249 F.3d at 210(citing Chaves, 230 Va. at 121, 335 S.E.2d at103)).

LEGAL FOCUSCivil & Criminal Litigation


The Constitutionalityof Irrebuttable PresumptionsBY PROFESSOR JAMES J. DUANE

Twenty-five years ago, in Fairfax County Fire and RescueServices v. Newman,1 the Supreme Court of Virginiaannounced the standard for assessing the constitutionalityof a statutory presumption — that is, a law which “makesthe proof of one particular fact presumptive evidence ofanother fact.”2 The court unanimously concluded that, forany presumption to be constitutional under the dueprocess clause, even in a civil case, “the presumption mustbe rebuttable.”3 This necessarily implies, as the Court ofAppeals of Virginia has recently reasoned, that allirrebuttable presumptions must be unconstitutional.4 Tokeep things simple, I shall refer to this rule as the holdingin Newman, even though that case also established otherpoints that are of no concern to us here.

The supreme court thought this holding was dictatedby both state and federal law, for it announced that it wasinterpreting the requirements of “due process of law underthe Fourteenth Amendment of the United StatesConstitution and Article I, § 11 of the 1971 VirginiaConstitution.”5 In support of this conclusion, however,the court cited no federal cases, and no authority but itsown holdings in a line of criminal cases dating back almost30 years.6

That holding has never been overruled or qualified bythe Supreme Court of Virginia, and obviously remainsthe law of Virginia. To this day, the Virginia Court ofAppeals, citing Newman, routinely upholds a statutorypresumption as constitutional only after first checking toensure, among other things, that it is rebuttable.7 So far asI am aware, nobody in Virginia until today has everpublicly questioned the Supreme Court’s holding inNewman that all irrebuttable presumptions areunconstitutional. But that statement is simply not true.Indeed, it cannot be true, because it would wreak havocwith the law of this state.

For starters, the United States Congress obviously doesnot think that irrebuttable presumptions areunconstitutional, because it enacts them all the time.8 TheVirginia General Assembly obviously thinks the samething. Out of the dozens of Virginia statutes that declarethat certain facts “shall be presumed,” many add anexplicit provision that the presumption “may berebutted”9 – which would be a strange thing to spell out ifall constitutionally valid presumptions, by definition,were rebuttable. Moreover, dozens of statutes scatteredthroughout the Virginia Code explicitly create anirrebuttable presumption by specifying the circumstancesunder which certain facts will be “conclusively presumed.”10

Every one of these statutes creates an irrebuttable

presumption; both in ordinary usage and as a legal termof art, it is undisputed that a conclusive presumption andan irrebuttable presumption are the exact same thing.11

But the strangest irony of all is the fact that even theSupreme Court of Virginia regularly makes up thefunctional equivalent of irrebuttable presumptions itself.Here are three obvious examples: (1) the rule that “a childunder 7 years of age is conclusively presumed to beincapable of contributory negligence”12 ; (2) the rule thatcertain weapons may be declared by the courts to be “perse ... deadly” and “as a matter of law a ‘deadly weapon’”13 ;and (3) the doctrine of negligence per se, which identifiescertain kinds of conduct that are conclusively presumedto constitute negligence as a matter of law.14 It boggles themind to imagine how these three conclusive presumptions,among many others, were made up by the same courtthat has more recently declared that all irrebuttablestatutory presumptions are unconstitutional.

Moreover, even before Newman was decided, theSupreme Court of the United States explicitly rejected thesuggestion that all irrebuttable presumptions areunconstitutional. In Weinberger v. Salfi,15 the Supreme Courtconsidered a due process challenge to the Social SecurityAct’s presumption which denied all benefits to certainwidows whose husbands died less than nine monthsafter they were married. The presumption was, of course,“conclusive, because applicants were not afforded anopportunity to disprove the [presumed] presence of [an]illicit purpose” behind the marriage.16 Nevertheless, theCourt held even a conclusive presumption dealing with thenoncontractual distribution of public benefits is normallyconstitutional, provided only that it is “rationally relatedto a legitimate legislative objective.”17

There is no question, therefore, that Newman was wrongthe very day it was decided, at least in its construction ofwhat is required by the due process clause of the federalconstitution, and the Supreme Court has reaffirmed thatpoint since Newman was decided.18 But technically Newmanremains good law in Virginia, because that ruling wasalso based on the court’s interpretation of the due processrequirements of the state constitution, and Virginia, likeany state, enjoys the “sovereign right to adopt in its ownConstitution individual liberties more expansive thanthose conferred by the Federal Constitution.”19 Thus, theSupreme Court of Virginia is theoretically free, if it wishes,to adhere to its ruling in Newman that all irrebuttablepresumptions are illegal under the state constitution. Butthat is out of the question as a practical matter. As it turnsout, the holding in Newman is simply incoherent. There is


nothing unconstitutional, illegal, or even un-Americanabout irrebuttable presumptions.

Due Process and Irrebuttable Presumptions:What Does the Constitution Require?

When courts or legislatures refer to something as aconclusive or irrebuttable presumption, they invariablymean “[a] presumption that cannot be overcome by anyadditional evidence or argument.”20 But even though wecan intelligibly describe such rules as presumptions, thefact remains that they do not have much in common withthe operation of an ordinary presumption, which isusually rebuttable. A conclusive presumption does notshift any burden of proof or any burden of production tothe opposing party. It simply ends the discussion entirelyby establishing a legal equivalence between two facts anddictating that proof of one automatically requires a findingthat the other is also true as a matter of law. As JusticeScalia has pointed out, however, “the same can be said ofany legal rule that establishes general classifications,whether framed in terms of a presumption or not.”21 Thisis why courts and legal scholars universally agree thatany so-called “irrebuttable presumption” (regardless ofwhether one chooses as a matter of semantics to call it atrue presumption) is not really a rule of evidence at all,but is actually a rule of substantive law masquerading inthe traditional language of a presumption.22 As oneleading writer has observed, “a conclusive or irrebuttablepresumption is really an awkwardly expressed rule oflaw.”23 And this is why the United States Supreme Courtwas correct to reject any suggestion that the due processclause categorically forbids an irrebuttable presumption.Any ordinary rule of substantive law can be easily recastinto the language of an irrebuttable presumption, andvice versa, with no change in its meaning or operation.

Of course, the constitutional requirement of due processdoes impose some limits on the use of evidentiarypresumptions in civil and criminal litigation.24 In acriminal case it forbids the use of a presumption toestablish an essential element of the prosecution’s case orto shift the burden of proof to the defense on the centralissue of intent, but that is true even if the presumption isrebuttable.25 The constitution also requires that apresumption have at least some rational basis, but thatrequirement also applies to rebuttable presumptions. 26

Indeed, none of those constitutional limits require a law tobe struck down merely because it is worded or operateslike an irrebuttable presumption.

The inherent absurdity of the ruling in Newman can beeasily demonstrated. Consider its application to thefollowing statutes, which are obviously just four differentways of saying the exact same thing:

1. “It shall be unlawful to possess a loaded firearm inany school.”

2. “It shall be unlawful to possess a deadly weapon inany school. For the purposes of this statute, a deadlyweapon shall be defined to include any loaded firearm.”

3. “It shall be unlawful to possess a deadly weapon inany school. For the purposes of this statute, any loadedfirearm shall be deemed a deadly weapon as a matter oflaw.”

4. “It shall be unlawful to possess a deadly weapon inany school. For the purposes of this statute, any loaded

firearm shall be irrebuttably presumed to be a deadly weapon.”All of these statutes are absolutely identical in

substance, meaning, and operation; all that distinguishesthem is a meaningless variation in semantics. But whichof them would be unconstitutional under Newman? It isnot obvious, because there are two different ways to readthat ruling. One reading makes the rule absurd, and theother makes it practically meaningless. Either way it isdead wrong.

On the one hand, it is possible that Newman requires theinvalidation of any law, no matter how it is worded, thatoperates precisely like an irrebuttable presumption andis therefore the functional equivalent of such apresumption. Under that reading, the due process clauseof the Virginia Constitution would require the courts tostrike down all four of the statutes outlined above, alongwith almost every other substantive legal rule on thebooks. That would of course be ludicrous. As the SupremeCourt of the United States correctly prophesied — sixyears before Newman made that very mistake — anycategorical ban on irrebuttable presumptions in the nameof the due process clause, if consistently applied, would be“a virtual engine of destruction for countless legislativejudgments which have heretofore been thought whollyconsistent with the Fifth and Fourteenth Amendments tothe Constitution.”27 And it would not stop there, forNewman would also require the state supreme court tooverrule all of the irrebuttable presumptions it has madeup itself — including its ruling that the judicial branchhas the power to declare that a loaded firearm constitutesa deadly weapon as a matter of law.

To avoid that extreme result, one could plausibly readNewman as forbidding only rules of law that explicitly usethe language of an irrebuttable presumption. In that case,only the fourth statute above would be unconstitutional,but not the others, even though all four are absolutelyidentical in both their meaning and how they would operateat any trial. That bizarre conclusion would flagrantlyviolate the axiom that “[c]onstitutional distinctions shouldnot be based on technicalities in draftsmanship that donot affect the merits.”28 It would also render the rule inNewman utterly trivial, for it could then always becircumvented by the General Assembly with ridiculousease by simply rewriting any statute so that it says thesame thing without the three forbidden words“irrebuttable,” “conclusive,” or “presumption.” In thenext section of this paper I will show how easily this canbe done with a number of Virginia’s statutory irrebuttablepresumptions.

So the ruling in Newman is either absurd or virtuallymeaningless. And either way it is surely wrong, becauseit would require (if nothing else) the invalidation of thefourth statute listed above – and that statute is plainlyconstitutional. When a statute makes some act a crime,the jurors may not be instructed that a man’s commissionof that act, or his intent to do so, is “presumed” from otheractions or facts, including some event taking place at alater date.29 This is why, for example, Virginia Code §18.2-183 is plainly unconstitutional in creating arebuttable presumption of fraudulent intent in bad checkcases when the defendant later fails to make payment onthe check within five days after learning that his check

Professor James J. Duane has taught and written about evidencelaw at Regent Law School for 15 years. He is the co-author ofWeissenberger’s Federal Evidence (5th ed. 2006), and the author ofover 20 articles on evidence law. He is a member of the New YorkState bar, The Virginia Bar Association, the Boyd-Graves Conference,and the faculty of the National Trial Advocacy College at the Universityof Virginia School of Law. He is a graduate of Harvard College magnacum laude (1981) and Harvard Law School cum laude (1984), andhas significant practice experience in civil litigation and criminaldefense. This article is a truncated version of a more substantialdiscussion that will appear in the fall 2006 issue of the Regent LawReview; see that journal for a more extended presentation of theseand a few related points.


ABOUT THE AUTHORhas been dishonored by the bank for insufficient funds.30

That is quite different, however, from any presumption,rebuttable or otherwise, that is used by the legislature asan awkward way of defining the essential terms of acriminal statute. Just as surely as a legislature may forbidpossession of a loaded firearm in a school, it may do thesame thing indirectly and clumsily, if it wishes, byforbidding the possession of a deadly weapon — and thenproviding that a loaded firearm shall be irrebuttablypresumed to be a deadly weapon. As one notedcommentator has aptly observed: “Oddly enough, themost powerful way in which a jurisdiction can ease theprosecution’s burden is also the one least vulnerable toconstitutional attack: It may simply alter the definition ofthe crime.”31

Thus, even if Newman is given its narrowest possibleinterpretation and only applied to statutes that explicitlyuse the language of a conclusive presumption, it wouldrequire the invalidation of many statutes that have noconstitutional infirmity at all. We can see these pointsmore clearly by taking a look at some of the manyirrebuttable presumptions that are scattered throughoutthe Code of Virginia, and the implications that wouldfollow if they were subjected to a consistent application ofthe holding in that case.

A Look at Some of the Irrebuttable Presumptionsin the Virginia Code

A presumption has been aptly described as one of “theslipperiest member[s] of the family of legal terms.”32

Indeed, “one author has listed no less than eight senses inwhich the term has been used by the courts.”33 TheVirginia General Assembly frequently uses the languageof conclusive presumptions when drafting statutes,although it does so to mean many different things. As weshall see, however, none of them are unconstitutional forthat reason, and the consistent application of the contraryruling in Newman would lead to intolerable – andsometimes comical — results.

Usually, the General Assembly uses an irrebuttablepresumption, just as the Supreme Court of Virginiatypically does, to create a rule of substantive law. Forexample, one Virginia statute forbids a landlord from“unreasonably” refusing to rent a manufactured home,and then adds that “[a]ny refusal or restriction becauseof race, color, religion, national origin, familial status,elderliness, handicap, or sex shall be conclusively presumedto be unreasonable.34 This statute explicitly establishesan irrebuttable presumption but surely it is notunconstitutional for that reason. Clearly the GeneralAssembly had the constitutional authority, if it hadchosen, to declare that a refusal to rent to a person becauseof his race (for example) “shall be forbidden.” That isprecisely what was intentionally accomplished, howeverimperfectly, through the clumsy wording of this statute.35

In Virginia, the language of an irrebuttable presumptionis often used as a clumsy method of writing a definition. Asone leading treatise puts it, any time some statute providesthat fact A leads to an irrebuttable presumption of fact B,“[f]act B becomes another way of stating fact A.”36

Virginia’s Workers’ Compensation Law, for example,provides that “[e]xposure to the causative hazard ofpneumoconiosis for ninety work shifts shall be conclusively

presumed to constitute injurious exposure.”37 This is simplya maladroit method of defining “injurious exposure.” Thisdefinition could have been written just as precisely andeven more clearly by deleting the four redundant words Ihave italicized.38 There was no need to make any mentionof any presumption of any sort, but you can’t blame themembers of the General Assembly for wanting to soundmore like lawyers. It’s all just innocent fun, since nothingturns on the distinction between these two ways of sayingthe same thing — nothing, that is, apart from thesuggestion in Newman that one of these two equivalentformulations is plainly unconstitutional but the other isjust fine.

Although most irrebuttable presumptions are reallyjust rules of substantive law, the Virginia GeneralAssembly has gotten so swept up in the fun that itsometimes uses them to draft procedural rules as well. Whenit does so, however, the language of a presumption istypically employed in a context where it means nothingat all. For example, one Virginia statute declares that theaddress given to the police by a nonresident motorist“shall be conclusively presumed to be a valid address of suchdefendant for the purpose of the mailing provided for inthis section.”39 This “conclusive presumption” is nothingmore than a specification of the proper address for theservice required under that statute. The four otiose wordsitalicized here should have been left out of this statuteentirely; their omission would not change the meaning orthe operation of this strange statute in the slightestdegree.40

It has been observed that every statute of limitations is, forall practical purposes, a “conclusive presumption” thatactions after that deadline are barred.41 Some Virginiastatutes make that explicit, by specifying that certain actsshall be “conclusively presumed” to have been properlyand lawfully done if no lawsuit is filed within a certaintime afterwards.42 If all irrebuttable presumptions aretruly unconstitutional, then all of these statutes must beset aside on the grounds that they deny due process toanyone who claims “I am being denied the chance tocontest the regularity of this filing just because nobodyobjected to it sooner.” In fact, there was no need to use anypresumption, much less a conclusive one, in any of thesestatutes, which all could have made the same point bydeclaring that any action to challenge the legality orpropriety of some event must be filed within a certain


period after that event. That is what statutes of limitationsalways do.

Other Virginia statutes employ the language ofpresumptions for no real purpose at all.43 Virginia’sWorkers’ Compensation Law dogmatically decrees that“[e]very employer and employee, except as herein stated,shall be conclusively presumed to have accepted theprovisions of this title respectively to pay and acceptcompensation for personal injury or death by accidentarising out of and in the course of the employment andshall be bound thereby.”44 Imagine the consequences forVirginia’s tort law system if this law were struck downalong with the rest of the state’s conclusive andirrebuttable presumptions! By that logic, every injuredworker who wishes to sue his employer should be able toinsist “Well, I never agreed to accept workers’compensation benefits as my exclusive remedy, so myright to due process means that I must be given the chanceto rebut the application of that inflexible presumption todefeat my right to sue my employer.” That would benonsense, of course.45 In truth, this is another poorlydrafted statute that should not have mentioned anypresumption at all. Its point could have been made moreaccurately and succinctly by simply declaring that allemployers and employees are bound by this statutoryscheme, and that it shall furnish the employees’ exclusiveremedy. The gratuitous extra nonsense about a make-believe presumption that “we will all pretend thateveryone has agreed to accept and comply with thisstatute” is no more necessary here than it would be at thebeginning of any other law, including statutes (like thecapital murder law) that impose far more drastic penaltiesfor their violation. For a legislature to falsely anddogmatically decree with a gratuitous conclusivepresumption that all the state’s workers and employershave agreed to be bound by some law is as unnecessary,and as unhelpful, as the days when my motherunpersuasively insisted to her children “You’ll eat it, andyou’ll like it.”

SummaryWhen the Supreme Court of Virginia laid down the

rule in Newman that all presumptions “must be rebuttable”to survive constitutional scrutiny, it announced a standardthat was incoherent and indefensible. If that standardwere consistently applied to every statute that operatesexactly like an irrebuttable presumption, it would lead tolegal anarchy and would require the overturning of nearlyevery substantive rule of Virginia law. On the other hand,if the ruling in Newman is to be applied only to thosestatutes that explicitly use the words “presume” or“presumption,” it creates a trivial and absurd rule thatcan be easily circumvented by the legislature any time itpleases. Either way, that ruling – if consistently followed– would require the invalidation of many poorly draftedlaws on the books, because of our General Assembly’sunfortunate penchant for gratuitously using thetraditional language of presumptions when draftingdefinitions, substantive and procedural legal rules, andeven for no particular purpose at all. It would also requirethe rejection of the many irrebuttable and conclusivepresumptions that the Supreme Court of Virginia hascreated on its own, like the conclusive presumption that a

child under the age of seven cannot be guilty ofcontributory negligence.

The Supreme Court of Virginia must take the firstavailable opportunity to explicitly overrule its statementin several cases, most recently Newman, that presumptionsmust be rebuttable to comply with the commands of thedue process clause. That rule must be rejected entirely,and not merely watered down or qualified, because it istotally false and there was never any trace of truth orsense to it at all.

Meanwhile, the General Assembly could do us all agreat favor if it would stop writing statutes that explicitlycreate a “conclusive presumption,” and then remove thatphrase from the several dozen statutes where it nowappears. That language is never necessary in any statute,and its lamentable frequency in the Virginia Code canonly lead to a wide range of tragic and comical results aslong as the highest court of the state insists that suchpresumptions are always unconstitutional. VBA

NOTES1. 222 Va. 535, 281 S.E.2d 897 (1981). The defendants argued that theywere denied due process by the workers’ compensation law, whichprovided that certain health problems suffered by firefighters were“presumed” to be an occupational disease suffered in the line of dutythat was covered under the law.2. Id. at 540, 281 S.E.2d at 900.3. Id. at 539-40, 281 S.E.2d at 900 (emphasis added); see also id. at541, 281 S.E.2d at 901 (“The second prong of the [constitutional] testrequires the presumption to be rebuttable.”).4. “[I]rebuttable presumptions are unconstitutional…” Medlin v. Countyof Henrico Police, 34 Va.App. 396, 407 n.5, 542 S.E.2d 33, 39 n.5 (2001);see also Town of Purcellville Police v. Bromser-Kloeden, 35 Va.App.252, 262, 544 S.E.2d 381, 385-86 (2001) (citing Newman for the rule thata presumption must be rebuttable to be constitutional).5. Newman, 222 Va. at 539, 281 S.E.2d at 900.6. The only legal authority the court cited in Newman for this propositionwas its holding in Crenshaw v. Commonwealth, 219 Va. 38, 245 S.E.2d243 (1978), which in turn had cited no federal cases, and no authoritybut two other criminal cases it had decided in 1953 and 1956. See id. at42, 245 S.E.2d at 246.7. Town of Purcellville Police, 35 Va.App. at 262, 544 S.E.2d at 385-86;Medlin, 34 Va.App. at 407 n.5, 542 S.E.2d at 39 n.5; City of Hopewell v.Tirpak, 28 Va.App. 100, 122 n.24, 502 S.E.2d 161, 172 n.24 (1998),affirmed in part and vacated in part on other grounds, 258 Va. 103, 515S.E.2d 557 (1999); see also Hur v. Virginia Department of SocialServices Division of Child Support Enforcement, 13 Va.App. 54, 59, 409S.E.2d 454, 457 (1991) (not citing Newman, but likewise rejecting a dueprocess challenge to a statute after the court concluded that the lawmerely created a rebuttable presumption).8. E.g., 30 U.S.C. § 921(c)(3) (creating “an irrebuttable presumption” oftotal disability for coal miners with black lung disease); see alsoMetropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 296 (1995) (notingthat the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §922, “creates a conclusive presumption of incapacity to earn wages” forcertain injuries).9. Over a dozen Virginia statutes declare that some fact “shall bepresumed” and then explicitly recite that such presumption is“rebuttable” or “may be rebutted.” E.g., VA. CODE §§ 8.01-46.1, 8.01-413.01, 15.2-2314, 19.2-159, 33.1-346, 33.1-373, 38.2-1322, 38.2-1603, 38.2-4230, 46.2-1209, 58.1-2224, 62.1-194, 63.2-1202, 63.2-1233, and 64.1-76. Others achieve the same result more indirectly byproviding that some fact “shall be presumed … unless the contrary beshown” by competent evidence. E.g., VA. CODE §§ 15.2-1511, 27-40.1,and 51.1-813. Still others explicitly create a “rebuttable presumption,”in those exact words. E.g., VA. CODE §§ 18.2-61, 46.2-341.27.10. E.g., VA. CODE § 2.2-4372(D), 8.01-313(A)(2), 13.1-643(E), 15.2-2627,15.2-5126, 15.2-5431.15(A), 15.2-6302, 15.2-6409(J), 17.1-258.5, 20-163(D), 24.2-43426-40, 26-40.1(B), 33.1-184, 33.1-431(D), 38.2-2807(D),38.2-2906(D), 38.2-5009(A)(2), 46.2-2080, 55-58.1(3), 55-79.77(C), 55-106.2, 55-131, 55-248, 456-480. 57-15(B), 58.1-2282(B), 58.1-3832(3),65.2-300(A), 65.2-404(B), 65.2-504(C), and 65.2-515(A). But you cannot


blame the General Assembly for supposing that it has the lawfulauthority to draft irrebuttable presumptions. Only one year after theVirginia Court of Appeals recently declared open season on conclusivepresumptions with its statement that “irrebuttable presumptions areunconstitutional,” Medlin, 34 Va.App. at 407 n.5, 542 S.E.2d at 39 n.5;another panel of that same court paradoxically announced that theGeneral Assembly is ordinarily free to enact conclusive statutorypresumptions if it wishes to do so! Henrico County Div. of Fire v. Woody,39 Va.App. 322, 329, 572 S.E.2d 526, 529 (2002) (“Had the GeneralAssembly wished to write a conclusive presumption into Code § 65.2-402, it could have done so.”) Apparently the message to the GeneralAssembly is: “You may enact conclusive presumptions if you’d like,although we will be obligated to strike down every one asunconstitutional.”11. BLACK’S LAW DICTIONARY 1223 (8th ed. 2004). This point is made in everyleading treatise on evidence law. E.g., JACK B. WEINSTEIN & MARGARET A.BERGER, WEINSTEIN’S EVIDENCE MANUAL § 5.02[1] (2006); GLEN WEISSENBERGER &JAMES J. DUANE, WEISSENBERGER’S FEDERAL EVIDENCE § 301.2 (5th ed. 2006); 2KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE 497 (6th ed. 2006); RICHARD D.FRIEDMAN, THE ELEMENTS OF EVIDENCE 553 (3d ed. 2004); ROGER C. PARK, DAVID P.LEONARD & STEVEN H. GOLDBERG, EVIDENCE LAW 109 (2d ed. 2004); CHRISTOPHER

MUELLER & LAIRD KIRKPATRICK, EVIDENCE 112 (3rd ed. 2003). That is why anypresumption, if it is not rebuttable, is conclusive by definition. Francis v.Franklin, 471 U.S. 307, 314 n.2 (1985) (“A mandatory presumption maybe either conclusive or rebuttable”); Grant v. Mays, 204 Va. 41, 44, 129S.E.2d 10, 12-13 (1963) (contrasting a “conclusive presumption” withone that may be rebutted); Henrico County Div. of Fire v. Woody, 39Va.App. 322, 328, 572 S.E.2d 526, 529 (2002) (same).12. Grant v. Mays, 204 Va. 41, 44, 129 S.E.2d 10, 12 (1963) (emphasisadded).13. Pannill v. Commonwealth, 185 Va. 244, 253-54, 38 S.E.2d 457, 462(1946) (emphasis added).14. Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78-79, 597 S.E.2d 43,46 (2004); Butler v. Frieden, 208 Va. 352, 353, 158 S.E.2d 121, 122(1967).15. 422 U.S. 749 (1975).16. Id. at 768.17. Id. at 772.18. Michael H. v. Gerald D., 491 U.S. 110, 119 (1989). Five justicesagreed that a California statute created a conclusive presumption thatwas nevertheless constitutional. See id. at 119-21 (Scalia, J.; pluralityopinion) and id. at 132-35 (Stevens, J., concurring). More recently, theCourt unanimously upheld and enforced what it called a pair of “conclusivepresumptions” adopted by the National Labor Relations Board. AucielloIron Works, Inc. v. N.L.R.B. 517 U.S. 781, 786 (1996).19. Virginia PruneYard Shopping Center v. Robins, 447 U.S. 74, 81(1980).20. BLACK’S LAW DICTIONARY 1223 (8th ed. 2004).21. Michael H., 491 U.S. at 120 (plurality opinion).22. See Allentown Mack Sales and Service, Inc. v. N.L.R.B., 522 U.S.359, 378 (1998) (NLRB’s “irrebuttable presumption of majority supportfor the union during the year following certification” is one of those“evidentiary presumptions” that “are in effect substantive rules of law”);Michael H. v. Gerald D., 491 U.S. 110, 119 (1989) (plurality opinion)(although California statute creating a “conclusive presumption” was“phrased in terms of a presumption, that rule of evidence is theimplementation of a substantive rule of law”); United States v. Chase, 18F.3d 1166, 1172 n.7 (4th Cir. 1994) (“A conclusive or irrebuttablepresumption is considered a rule of substantive law.”); WEISSENBERGER &DUANE, supra note 11, at § 301.2 (“The term ‘conclusive presumption’denotes what is more properly considered a rule of substantive law asopposed to an evidentiary, procedural device.”); WEINSTEIN & BERGER,supra note 11, § 5.02[1] (2006); PARK, LEONARD & GOLDBERG, supra note 11, at109-10; MUELLER & KIRKPATRICK, supra note 11, at 112; RICHARD EGGLESTON,EVIDENCE, PROOF, AND PROBABILITY 92 (1978); JOHN H. WIGMORE, A STUDENTS’ TEXTBOOK OF

THE LAW OF EVIDENCE 454 (1935).23. FRIEDMAN, supra note 11, at 553 (emphasis in original elided).24. For a more detailed examination of the controlling Supreme Courtprecedents, see WEINSTEIN & BERGER, supra note 11, §§ 5.04[3][a] – 5.04[5].25. It is a denial of due process to instruct a jury that a criminaldefendant’s intent is to be “presumed” from certain other facts, even ifthe jury is told “the presumption may be rebutted.” Francis v. Franklin,471 U.S. 307, 309 (1985).26. See WEINSTEIN & BERGER, supra note 11, § 5.04[3][a]. This was the pointthe Virginia Supreme Court got right in Newman when it stated that,before a presumption may be upheld as constitutional, “a natural andrational evidentiary nexus must exist between the fact proved and the

fact presumed.” Fairfax County Fire and Rescue Services v. Newman,222 Va. 535, 539-40, 281 S.E.2d 897, 900 (1981).27. Weinberger v. Salfi, 422 U.S. 749, 772 (1975).28. WEINSTEIN & BERGER, supra note 11, § 5.04[5].29. Carella v. California, 491 U.S. 263, 265-66 (1989) (it is unconstitutionalto tell jurors that the defendant’s intent to commit theft by fraud is“presumed” if he later failed to return rented vehicle within a specifiednumber of days after a request for its return).30. James J. Duane, The Virginia Presumption of Fraudulent Intent inBad Check Cases: The Statute That Dare Not Speak Its Name, THE VIRGINIA

BAR ASSOCIATION NEWS JOURNAL 10 (June/July 2005).31. FRIEDMAN, supra note 11, at 570. This was the fatal flaw in thereasoning of Crenshaw v. Commonwealth, 219 Va. 38, 245 S.E.2d 243(1978), the only case cited by Newman in support of its ban on irrebuttablepresumptions. In Crenshaw, the court erroneously reasoned that astatute criminalizing the possession of a radar detector in a motorvehicle — because the statute added that the “[t]he Commonwealthneed not prove that the device in question was in an operative conditionor being operated,” id. at 40 n.1, 245 S.E.2d at 245 n.1 — wasunconstitutional because it created an irrebuttable presumption thatwas “a purely arbitrary mandate, violative of due process.” Id. at 43, 245S.E.2d at 246-47. But the constitutional validity of such a statutedepends entirely on whether possession of an inoperable radar detectormay be lawfully forbidden as a rational exercise of the legislative policepower (an issue outside the scope of this article), and has nothing to dowith whether the legislature chose to frame that prohibition in thelanguage of an irrebuttable presumption. Assuming for the sake ofargument that a legislature could lawfully forbid possession of aninoperable radar detector, just as it can (for example) occasionallyforbid the use of an unloaded gun as a “dangerous weapon,” McLaughlinv. United States, 476 U.S. 16 (1986), there is no doubt that the legislaturewould not violate the due process clause merely because it chose todraft such a prohibition in the language of an irrebuttable presumption.32. 2 BROUN, supra note 11, at 495.33. Id. (citing Laughlin, In Support of the Thayer Theory of Presumptions,52 MICH. L. REV. 195, 196-207 (1953)).34. VA. CODE § 55-248.47 (emphasis added).35. For another example of a Virginia law which unnecessarily createsan irrebuttable presumption to define a rule of substantive law, Virginia’sInsurance Law provides: “If all moneys accruing to the fund are exhaustedin payment of retrospective premium adjustment charges, all liabilityand obligations of the association’s policyholders with respect to thepayment of retrospective premium adjustment charges shall terminateand shall be conclusively presumed to have been discharged.” VA. CODE

§ 38.2-2807(D) (emphasis added). That is just a more complicated wayof saying, as statutes routinely do, that the policyholders “shall have nofurther liability or obligations.”36. WEINSTEIN & BERGER, supra note 11, § 5.02[1] (2006).37. VA. CODE § 65.2-404(B) (emphasis added).38. For another example of a conclusive presumption used to create adefinition, one statute provides that any deceased employee’s childrenunder the age of 18 “shall be conclusively presumed to be dependentswholly dependent for support upon the deceased employee.” VA. CODE §65.2-515(A) (emphasis added). The same point could have beenaccomplished without any presumption, merely by defining any childunder the age of eighteen as a dependent entitled to relief under thatact.39. VA. CODE § 8.01-313(A)(2) (emphasis added).40. For another example, see VA. CODE § 6.1-125.3(D) (“Service on a partyto the account made at the address on record at the financial institutionshall be presumed to be proper service for the purposes of this section”)(emphasis added).41. Stogner v. California, 539 U.S. 607, 616 (2003).42. E.g., VA. CODE §§ 20-163(D), 24.2-434, 55-106.2, and 57.15.43. Here is one example: “Any failure by a public body to follow theprocedures established by this chapter shall be presumed to be aviolation of this chapter.” VA. CODE § 2.2-3713(E) (emphasis added). Wellof course it is. That goes without saying.44. VA. CODE § 65.2-300(A).45. Any plaintiff who took that position would surely be advised by thejudge: “You don’t understand; your willingness to be bound by this law issimply immaterial, because you are subject to this law whether you likeit or not.” But that is why there was no need to insert this silly andirrelevant presumption in this statute to begin with.


YOUNG LAWYERS DIVISION

The YLD 50th Anniversary:A Celebration of a Noble ProfessionBY LORI D. THOMPSON, Chair, VBA Young Lawyers Division

The truth is that the majority of the peoplethat I admire most happen to be lawyers.They generously give of their time andtalents to improve their communities anduse their legal skills to protect and assistindividuals during some of the most difficulttimes in their lives.

During a recent meeting of abusiness organization with which Iam involved, one of the memberspiped into a discussion aboutbusiness transactions with a friendlyjab in my direction about howlawyers are to blame for the generaldemise of civilization. I probablyshould have responded by explaininghow lawyers are responsible forensuring the rule of law in our societyor how lawyers facilitate everycommercial transaction in ourcountry, but all I could muster at thetime was a brief retort: “Don’t saythat. Some of my best friends happento be lawyers.”

The truth is that the majority ofthe people that I admire most happento be lawyers. They generously giveof their time and talents to improvetheir communities and use their legalskills to protect and assist individualsduring some of the most difficulttimes in their lives. I count myselffortunate to be part of such a nobleprofession.

In 2007, The Virginia Bar AssociationYoung Lawyers Division will markits 50th anniversary. While wecelebrate the accomplishments ofthis particular organization, we alsocelebrate and recognize thededication and service of its past andcurrent members and all members ofthe legal profession who believe that,with the authority granted by a lawdegree, comes the responsibility ofpublic service.

The programs of the VBA/YLDpresent an excellent opportunity toserve the public in meaningful ways.Below is a brief summary of some ofthese valuable programs:Programs that promote diversity

Choose Law: Volunteers lead on-campus discussions at Virginiacolleges and universities to educateminority undergraduate students

about the legal profession andorganize presentations at Virginia’shigh schools and middle schools toeducate students of variousbackgrounds about why they shouldconsider a career in the legal professionand to provide diverse role models.Co-Chairs: R. Lucas Hobbs and E. HopeCothran.

Diversity Recruitment: Volunteersorganize and operate an annualDiversity Job Fair to encourage lawstudents of every race, gender,ethnicity and sexual orientation topractice law in Virginia. The firstDiversity Job Fair is scheduled forAugust 18, 2007, at the EmbassySuites in Richmond. Co-Chairs: DanaA. Dews, Monica McCarroll, Nicole S.Terry and Elaina L. Blanks.

Programs that educateand assist young people

Credit Issues Project: Volunteersassist in the preparation of apublication that focuses on educatingteenagers, especially senior highschool students who are preparingto enter college or the workforce,about the importance of responsiblecredit and debt management and thefederal and Virginia laws availableto protect their rights as consumers.The publication will provideinformation on the various creditoptions available to consumers andthe pitfalls surrounding the misuseof credit. Co-Chairs: H. Malloy Evans IIIand Rudene M. Bascomb.

DMV Project: Volunteers assistmonthly during driver’s licensingceremonies, over which a Juvenile andDomestic Relations Court judgepresides, by presenting a professionallyproduced videotape regarding thelegal, financial and practicalrepercussions of failing to obey trafficlaws and discussing defensive drivingtechniques in order to curb theincreasing trend toward recklessbehavior by teens in automobiles. Co-Chairs: W. Brian McCann, ChristopherM. Grab, Bryson J. Hunter and D. CabellVest.

Mentor Program: Volunteers areassigned to either a particular childor to a fourth- or fifth-grade classroomand serve as positive role models forthe children. Through the program,volunteers provide students withinformation and skills they need toaccess positive and productive pathsand educate them about how thejudicial system operates. Activitiesmay include taking the children onfield trips to the local courthouse,bringing judges into the classroom asspeakers, or putting on mock trials.Co-Chairs: Collin Drabert, Andrew P.Sherrod, Sarah P. Bridges, MelvinWilliams and James W. (Whit) Ellerman.

Model Judiciary Program:Volunteers assist in the organizationand administration of a programwhich exposes approximately 2000high school students across theCommonwealth to our judicialsystem by encouraging their


participation in mock trials and mockappellate arguments before theVirginia Court of Appeals and theVirginia Supreme Court. Chair: DanielT. Campbell.

Youth Court Expansion Project:Together with other local and state barorganizations, volunteers facilitate theimplementation and administrationof youth courts in high schools acrossthe Commonwealth whereby studentsserve as jurors in proceedings in whichappropriate punishment for a studentwho has admittedly violated a rule ofconduct is determined. The programempowers young people to takeresponsibility for their actions andeases the burdens on schooladministrators for certain categoriesof rule violations. Chair: Patrick T.Andriano.

Programs that provide assistancein times of crisis

Disaster Legal Assistance: Togetherwith volunteers from the VSB YoungLawyers Conference Emergency LegalServices Committee, volunteers assistindividuals rendered needy byemergency situations such as naturaldisasters. Committee members workclosely with the Virginia Departmentof Emergency Management, the ABA/YLD Emergency Legal ServicesCommittee and the Federal EmergencyManagement Agency. All necessarytraining is provided during a CLE-approved meeting. Co-Chairs: Ryan W.Boggs and Richard P. Hadorn Jr.

Domestic Violence Project: Volunteersrepresent victims of domesticviolence to help the victims obtaincivil protective orders. The Projectsponsors free training programs eachyear to train volunteer attorneys,who receive four CLE hours forhelping three victims obtain civilprotective orders within 12 months.Co-Chairs: Amanda D. Newman, MarliJ.P. Kerrigan, Robyn S. Gray and AlexisMei Fishel.

Legal Food Frenzy: Together withrepresentatives from the AttorneyGeneral’s office, volunteers assist in aprogram in which law firmschallenge each other to collect themost food donations for food banksaround the state. The first statewideFood Frenzy will be in April 2007. Co-Chairs: Christopher M. Gill and Katja H.Hill.

Pro Bono Hotlines: Volunteers staffa “hotline” at Legal Aid Society officesacross the state, on a rotating basis,which usually involves providingassistance for one to two hours, three

to four times each year. Trainedvolunteers provide telephone adviceto callers meeting financial eligibilityrequirements to ease the caseload oflegal aid attorneys. In 1995, the ProBono Hotlines received the ABA’sHarrison Tweed Award, the highestnational honor given to projectsproviding legal services for the poor.Pro Bono Hotlines StatewideCoordinator: Kathleen L. Wright. Co-Chairs: Sean Beard, Richard W. Brooks,Richard J. Crouch, Ashley R. Dobbs, B.Webb King and Spencer M. Wiegard.

Programs that educate the publicabout important legal issues

Health Law Project: Together withparticipants from the VBA HealthLaw Section, volunteers assist withAdvance Medical Directivesworkshops to educate the publicabout the necessity for an AMD andto provide such a directive. Co-Chairs:Molly S. Evans and Nathan A. Kottkamp.

Town Hall Meetings: Volunteersassist in coordinating publicmeetings across the state focusing ontopical issues of interest to theparticular community. Many of theprograms are broadcast by localpublic television and radio stationsthroughout the state to serve the goalof educating the public on importantlegal issues. Such programs haveincluded sponsoring debates ofpolitical candidates, programs onregional cooperation among localities,and water conservation, amongothers. Regional Chairs: T. VadenWarren Jr., Stacy Ross Purcell, Travis G.Hill, Henry I. Willett III, Maxwell H.Wiegard and Lauren M. Ellerman.

Programs tailored to meetlegal needs of discrete populations

Immigrant Assistance: Volunteersparticipate in various projects toprovide low-cost, effective legalservices to the growing population offoreign-born citizens who come inVirginia in search of work andopportunity. The Committee iscurrently working on a pamphletcontaining information on access tobasic legal procedures and socialservices for distribution by the localand federal courthouses. Chair:

Cathryn Le Regulski.Lawyers for the Arts: Working in

partnership with local arts groups,volunteers participate in clinics andseminars to provide legal informationto artists and arts organizationsthroughout various regions of thestate. Co-Chairs: Suzanne Sones Longand Beth G. Hungate-Noland.

Legal Services for the Mentally Ill:Volunteers provide written and/ororal advice or legal representation tofamiliy and friends of personssuffering from mental illness toensure that they have access toquality legal advice in various areasof law. The National Alliance for theMentally Ill-Virginia serves as aliaison between the community’sneeds and the project volunteers.Chair: John Phelps.

Nonprofit Legal Support Program:Volunteers assist nonprofit groups ina variety of disciplines by providingpro bono assistance. The Programmaintains a database of volunteersand when a nonprofit organizationrequests assistance, a volunteerattorney is matched to its needs. Chair:Megan Starace Ben’Ary.

Wills for Heroes: Together withvolunteers from the the VSB YoungLawyers Conference, volunteersprovide wills, durable powers ofattorney, and advanced medicaldirectives to first responders inVirginia (including police officers,firemen and rescue workers) on a probono basis. Chair: Stephanie M. D.Albright.

Attorneys who wish to getinvolved with any of the VBA/YLDprograms should visit the VBAwebsite at www.vba.org/division/yldact.htm, or contact me [email protected].

These programs are only a smallreflection of the programs sponsoredby the VBA/YLD and of the valuableservices provided by lawyersthroughout the Commonwealth eachday. Therefore, as we celebrate 50years of the VBA/YLD providingservice to the bar and the public, weshould also remember and celebratethat we are indeed members of a nobleprofession. VBA

In Memoriam

Charles Armistead Blanton II1922-2006

Secretary-Treasurer of The Virginia (State) Bar Association,1961-69

The VBA News Journal offers classified advertising. Categories available are as follows: positions available, positions wanted, books andsoftware, office equipment/furnishings, office space, experts, consulting services, business services, vacation rentals, and educationalopportunities. Rates are $1 per word for VBA members and $1.50 per word for non-members, with a $35 minimum, payable at the time ofsubmission. Ad costs must be paid in advance. The VBA News Journal reserves the right to review all copy before publication and to rejectmaterial deemed unsuitable. Professional announcements may be printed; the cost per announcement is $15 and text may be edited for styleand space limitations. Deadlines are one month in advance of the date of publication. Information is available online at www.vba.org.


United States Postal Service Statement of Ownership, Management and Circulation (Requester Publications Only), PS Form 3526-R. 1.Publication Title: VBA News Journal. 2. Publication Number: USPS 093-110. 3. Filing Date: October 1, 2006. 4. Issue Frequency: Bimonthly. 5.Number of Issues Published Annually: 6. 6. Annual Subscription Price: $30. 7. Complete Mailing Address of Known Office of Publication: TheVirginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219-2503. 8. Complete Mailing Address of Headquarters or GeneralBusiness Office of Publisher: Same. 9. Full Names and Complete Mailing Addresses of Publisher, Editor and Managing Editor. Publisher, TheVirginia Bar Association, same. Editor: Caroline B. Cardwell, same. Managing Editor: N/A. 10. Owner: The Virginia Bar Association, 701 EastFranklin Street, Suite 1120, Richmond, VA 23219. 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percentor More of Total Amount of Bonds, Mortgages, or Other Securities: None. 12. The purpose, function and nonprofit status of this organization and theexempt status for federal income tax purposes has not changed during preceding 12 months. 13. Publication Title: VBA News Journal. 14. Issue Datefor Circulation Data Below: June/July 2006. 15. Extent and Nature of Circulation. Average No. Copies Each Issue During Preceding 12 Months: a.Total Number of Copies (Net press run): 6166. b. Legitimate Paid and/or Requested Distribution (By Mail and Outside the Mail). (1) Individual Paid/Requested Mail Subscriptions Stated on PS Form 3541: 5944. (2) Copies Requested by Employers for Distribution to Employees by Name or PositionStated on PS Form 3541: 0. (3) Sales Through Dealers and Carriers, Street Vendors, Counter Sales and Other Paid or Requested Distribution OutsideUSPS(R): 0. (4) Requested Copies Distributed by Other Mail Classes Through the USPS (e.g. First-Class Mail(R)): 0. c. Total Paid and/or RequestedCirculation: 5944. d. Nonrequested Distribution (By Mail and Outside the Mail): 86. e. Total Nonrequested Distribution: 86. f. Total Distribution:6030. g. Copies Not Distributed: 136. h. Total: 6166. i. Percent Paid and/or Requested Circulation: 98.6%. No. Copies of Single Issue PublishedNearest to Filing Date: a. Total Number of Copies (Net press run): 6400. b. Legitimate Paid and/or Requested Distribution (By Mail and Outside theMail). (1) Individual Paid/Requested Mail Subscriptions Stated on PS Form 3541: 6088. (2) Copies Requested by Employers for Distribution toEmployees by Name or Position Stated on PS Form 3541: 0. (3) Sales Through Dealers and Carriers, Street Vendors, Counter Sales and Other Paidor Requested Distribution Outside USPS(R): 0. (4) Requested Copies Distributed by Other Mail Classes Through the USPS (e.g. First-Class Mail(R)): 0.c. Total Paid and/or Requested Circulation: 6088. d. Nonrequested Distribution (By Mail and Outside the Mail): 92. e. Total NonrequestedDistribution: 92. f. Total Distribution: 6180. g. Copies Not Distributed: 220. h. Total: 6400. i. Percent Paid and/or Requested Circulation: 98.5%. 16.Publication of Statement of Ownership for a Requester Publication is required and will be published in the October/November 2006 issue of thispublication. 17. Signature and Title of Editor, Publisher, Business Manager, or Owner: Caroline B. Cardwell, Editor. Date: October 1, 2006.

POSITIONS AVAILABLEEMPLOYEE BENEFITS SPECIALIST -Steptoe & Johnson PLLC, one of WV’slargest firms, continues to expand itsEmployee Benefits and ExecutiveCompensation practice, with animmediate opening for a lateral attorneywith experience in ERISA and tax-relatedcompliance; executive compensation;LMRA and union benefit counseling;health, welfare and pension plan draftingand advice; and employee benefitaspects of mergers and acquisitions.Minimum 5 years’ experience; portablebusiness a plus but not required. Formore information about Steptoe &Johnson PLLC, visit our website atwww.steptoe-johnson.com. Candidatesshould send confidential resumes toJane Douglas, Recruiting Coordinator,Steptoe & Johnson PLLC, P.O. Box 1588,Charleston, WV 25326-1588, [email protected].

EXPERTS/CONSULTING SERVICESADA/DISABILITY ACCESS – Werapidly identify, analyze, and resolveADA/disability access issues. We haveextensive experience working withFederal, state and local accessibilitystandards. We work nationwide withmajor developers. Contact RobertSevigny at Hephaestus Associates LLC,919-673-3759.

CLASSIFIED ADS PROFESSIONAL ANNOUNCEMENTSLeClair Ryan has announced the opening of its New York office at 830 Third

Avenue, where the Richmond-based law firm will initially focus on expanding itsexisting services in the financial services industry and corporate bankruptcy arena.

“New York is a natural market for us,” said Gary D. LeClair, the firm’s chairman.“Our existing client base in New York has been drawing our lawyers to the city foryears. We have just been waiting for the right opportunity and the right person tolead our New York office.”

Paul A. Merolla, a former executive vice president and general counsel ofInstinet Group Incorporated and a former vice president and associate generalcounsel of Goldman Sachs & Co., Inc., will serve as the firm’s office leader in NewYork. He is also the immediate past president of the Securities Industry Association’sCompliance & Legal Division.

Also joining the New York office as partners are Michael T. Conway and AndrewJ. Frisch. Conway, who comes to LeClair Ryan from the law firm of Lazare PotterGiacovas & Kranjac in New York, will head the office’s bankruptcy practice. At thefirm, he represented creditors and debtors in a wide variety of industries. LikeMerolla, Conway will be involved in actively recruiting additional attorneys for hispractice area. Frisch, who brings 20 years experience practicing criminal law inNew York City’s federal and state courts, will lead LeClair Ryan’s white-collarcriminal defense practice, part of the Securities Litigation and Regulation PracticeGroup. He most recently worked as a federal prosecutor in the Eastern District ofNew York, successfully prosecuting the director of the Staten Island Ferry Servicefor the 2003 crash that killed 11 passengers. As senior litigation counsel in theoffice’s Business and Securities Frauds Unit, Frisch also tried senior executives of ahigh-technology company for securities and accounting fraud.

James A. Murphy, chairman of LeClair Ryan’s Securities Litigation and RegulationGroup, said, “We are excited to add Paul Merolla’s depth of knowledge of securitieslaw and wealth of experience on Wall Street to our practice group. Andy Frisch’sbackground as a federal prosecutor and Michael Conway’s background inbankruptcy and creditors’ rights will create a solid foundation for us to build on inNew York. We plan to assemble a talented group of lawyers around them toenhance our already strong teams in Virginia and Washington, D.C.” Murphy willdivide his time between LeClair Ryan’s Richmond and New York offices.

Founded in 1988, LeClair Ryan has grown to become a full-service law firm with140 lawyers and offices in Virginia, New York and Washington, D.C.

December 7-8, 2006VBA Capital Defense WorkshopRichmond Marriott

January 18-21, 2007VBA Annual MeetingWilliamsburg Lodge & Conference Center

March 30-31, 2007Lawyers Helping Lawyers Spring ConferenceThe Woodlands, Williamsburg

April 20-22, 2007VBA Bankruptcy Law Section ConferenceThe Tides Inn, Irvington (tentative)

July 19-22, 2007VBA Summer MeetingThe Homestead, Hot Springs

VBA• •

The Virginia Bar Association701 East Franklin Street, Suite 1120Richmond, Virginia 23219

For more details on specific events, visit our website atwww.vba.org or call the VBA office at (804) 644-0041. Acomplete calendar of events with links to additional informationis posted on the website.

August 18, 2007VBA/YLD Diversity Job FairEmbassy Suites, Richmond

October 26, 2007VBA Virginia Tax Practitioners’ RoundtableFarmington, Charlottesville

October 26-27, 2007Boyd-Graves ConferenceWestfields/Hyatt Regency Reston

November 16-17, 2007Region IV National Moot Court CompetitionOmni Richmond

CALENDAR OF EVENTS

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1957-2007

Celebrate the VBA Young Lawyers Division’s50 years of service at the 117th AnnualMeeting, January 18-21, 2007, as the VBAreturns to the renovated and expandedWilliamsburg Lodge & Conference Center!

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