Tuesday, May 7th, 2024
The Department of Justice (DOJ) Criminal Division recently unveiled its Whistleblower Pilot Program, signaling a pivotal shift in the landscape of corporate enforcement and accountability. The program is slated to take effect “later this year.”
Here’s why you should take notice:
1. A New Era of Incentives
The DOJ recognizes that people and corporations respond to incentives. The carrot-and-stick approach, previously seen in the DOJ’s Voluntary Self-Disclosure Program for corporations, now extends to individual whistleblowers.
In this spirit, the Whistleblower Pilot Program aims to reward individuals who come forward with significant corporate or financial misconduct that the government is not yet aware of.
2. Financial Rewards for Whistleblowers
Under the pilot program, individuals who provide credible information about “significant corporate or financial misconduct” can receive financial rewards. These rewards will be carved out of forfeiture funds obtained through successful prosecutions.
Importantly, payments will be made only after victims have been properly compensated.
3. Expanding the Regulatory Regime
Unlike many existing whistleblower programs (such as those run by the SEC and CFTC), the DOJ’s program reaches beyond heavily-regulated entities. It targets privately held companies that have, in the past, skillfully navigated safe harbor provisions.
This means that even companies not directly overseen by regulatory agencies like the SEC or CFTC must now pay closer attention to their compliance practices.
4. Four Key Criteria for Rewards
For the DOJ to pay a financial reward to a whistleblower under the pilot program, four specific criteria must be met.
First, the information provided must not already be known to the government. The DOJ has indicated that it is “especially interested” in information about financial crimes and both domestic and foreign corruption, including Foreign Corrupt Practices Act violations.
Second, the whistleblower must not be involved in the criminal activity.
Third, there must be no existing financial disclosure incentives (such as qui tam litigation under the False Claims Act) for the whistleblower.
And fourth, all victims must be compensated first.
5. Action Steps
The DOJ has indicated that the Whistleblower Pilot Program will formally start “later this year.” In the meantime, corporations will want to take the following action steps to prepare.
Review Internal Reporting Mechanisms: Ensure robust internal channels for reporting misconduct. Encourage employees to speak up internally without fear of retaliation.
Strengthen Compliance Programs: Regularly assess and enhance compliance policies, training, and monitoring.
Seek Legal Guidance: Consult with legal counsel to navigate the complexities of the program and protect your organization.
In summary, the DOJ’s Whistleblower Pilot Program demands vigilance. By proactively addressing compliance and fostering a culture of transparency, you can mitigate risk by ensuring that you find and report misconduct before the DOJ learns about it from a whistleblower.
Wednesday, April 24th, 2024
On April 23, 2024, the Federal Trade Commission (“FTC”) issued a Final Rule which provides that it is an “unfair method of competition” for employers to enter into non-compete clauses with their workers after August 21, 2024—or 120 days after the Final Rule is published in the Federal Register. The Final Rule is available here. The Final Rule was issued after the FTC received more than 26,000 public comments in response to its Notice of Proposed Rulemaking issued in January 2023.
While the ban is scheduled to take effect 120 days after the Final Rule is published in the Federal Register, there will be attempts to prevent the new rule from becoming effective. Notably, the U.S. Chamber of Commerce (a business advocacy group that is not affiliated with the Federal government), has already announced plans to file a lawsuit challenging the Constitutionality of the ban. Thus, it is foreseeable that the ban could be enjoined from taking effect, even if it is ultimately upheld (or struck down).
Nonetheless, it is worth highlighting some of the key aspects of the Final Rule.
The Final Rule defines “non-compete clause” as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from (1) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (2) operating a business in the United States after the conclusion of the employment that includes the term or condition.” 16 CFR § 910.1. The final rule further provides that, for purposes of the final rule, “term or condition of employment” includes, but is not limited to, a contractual term or workplace policy, whether written or oral. Id. The Final Rule further defines “employment” as “work for a person.” Id.
The Final Rule defines “worker” as “a natural person who works or who previously worked, whether paid or unpaid, without regard to the worker’s title or the worker’s status under any other State or Federal laws, including, but not limited to, whether the worker is an employee, independent contractor, extern, intern, volunteer, apprentice, or a sole proprietor who provides a service to a person.” Id. The definition further states that the term “worker” includes a natural person who works for a franchisee or franchisor, but does not include a franchisee in the context of a franchisee-franchisor relationship. Id.
The Final Rule does not apply to non-competes entered into by a person pursuant to a bona fide sale of a business entity. 16 C.F.R. § 910.3(a). In addition, as an important distinction, the Final Rule does not apply to business-to-business non-compete clauses (for example, a non-compete that restricts two companies from selling goods within overlapping territories). Instead, the Final Rule only bans the use of non-competes by an employer to restrict competition by its employees.
The broad ban contained in the Final Rule would supersede Virginia’s ban on non-compete for “low wage employees” which voids non-competes between an employer and any employee making less than $73,320. See this previous Gentry Locke article to learn more on non-competes for “low wage employees.” In addition, the Final Rule could bar the use of non-disclosure agreements that are so overbroad as to function to prevent a worker from seeking or accepting employment or operating a business, as well as agreements for deferred compensation and other structured payments that fall within the definition of non-compete clause in § 910.1.
This story is developing, and for those interested, you may want to check out our firm’s initial reports on this new noncompete ban and enforcement actions that occurred last year. Read more on these topics below.
Wednesday, April 17th, 2024
Republished with permission of the Virginia State Bar.
Relatively few civil cases are tried to verdict these days, so jury instructions may almost be an afterthought in the minds of many litigators. Of the cases that are tried, many are repetitive type cases in which an experienced litigator likely knows the instructions by heart, and can recite them – so jury instruction issues are almost incidental. But for cases that veer from that track, and for newer lawyers, jury instructions should be a very significant factor throughout the entire case from start to finish. Knowing your ultimate desired instructions is critical to case strategy, case valuation, and framing discovery and evidence for trial. They are the blueprint for the development and presentation of evidence that will hopefully lead to the desired verdict. So, this is a reminder to think about jury instructions early, craft them carefully, and know how to properly challenge the trial court’s decisions in charging the jury if those determinations do not go your way.
Frame the Case.
The pleadings in a case by no means fully shape the issues. Virginia notice pleading standards are generous, and even the stricter federal standards do not require a plaintiff to allege every fact and facet of his or her case at the outset. So too, a defendant need not assert every aspect of its defense in an answer. As a result, these mechanisms do not necessarily encourage lawyers to think fully and critically about the case at its inception, or how best to frame it under the law. That is where drafting jury instructions early-on can serve a valuable purpose. Engaging in the exercise of preparing the framework of your case in the jury instructions requires formulating both structure and strategy, each of which will impact the case as it moves forward. Early formation allows you to structure discovery around the central points in your anticipated instructions. Even if the case does not go to trial, boxing-in the opponent regarding the ultimate issues relevant to the legal instructions will often lead to a better settlement. And even if you are not focused on jury instructions, the odds are that your opponent is, even as he or she plans a Motion to Strike or Motion for Judgment as a Matter of Law.
In some cases, the Virginia Model Jury Instructions may suffice. In more complicated cases, you may be able to unearth instructions given in prior cases involving similar issues or claims reflecting how others framed the same issues (with or without success). That prior art may or may not be good or helpful. However, the temptation to seize on something that has already been used in a prior case is substantial – particularly if it’s a last minute item as you are otherwise swamped with trial and or preparation. Be mindful.
Bear in mind that this process is fluid. Issues in the case will likely develop and evolve as the matter progresses. Some may die on the vine, or the court may issue rulings that clarify what theories are viable. Cases where your opponent frequently shifts positions/theories or the court declines to define the legal boundaries are the most challenging, and make your framing the case for the jury even more critical to your chances of success at trial or settlement.
Take the Time. Instructions Can Win or Lose Your Case.
First and foremost, jury instructions should accurately state the law and have adequate legal support. However, seasoned litigators know that there are multiple ways to express the same “law.” We have all read proposed jury instructions that are either pro-plaintiff or pro-defendant. Obviously, you will frame your proposed instructions based on the desired outcome – but be aware that your opponent will do the same. It is remarkable how the same “law” can be stated with bias towards or against each side.
The Virginia Model Jury Instructions serve as ready references and guides; they may be used as templates for many instructions – particularly common instructions necessary in most cases. Trial judges are also generally more comfortable with adopting an instruction taken from the Model Instructions. However, the Model Instructions are by no means the answer in every instance. Do not be afraid to propose an instruction that differs from one taken from the Model Instructions.[1]
Judges in both state and federal courts have the discretion to issue tailored instructions that fit the precise issues and theories in a case.[2] Compare the following:
A. “There is a legal presumption that directors are shielded from liability in the performance of their duties if they were informed and acting in good faith”
B. “The law requires you to presume that the directors made “X” decision based on the information that they had available in good faith, and with the honest belief that their decision was in the best interests of the company.”
Instruction (A) and Instruction (B) are each accurate statements of law, but which helps your client’s position? Instruction (A) is phrased more in the abstract, uses legal jargon, is somewhat passive, and is not particularly understandable by a modern juror. Instruction (B) provides a directive that the jury is oath-bound to follow and keeps the focus on the transaction at issue. The lawyer proposing Instruction B can also use the directives of the instruction to inspire the questions to key witnesses during trial. That lawyer can then remind the jury of that precise and targeted line of questioning during closing – which also highlights the terms of the court’s instruction.
There will often be circumstances in which there is no Model Instruction, or where the law is unsettled or under-developed. In these instances, you will need to locate the prevailing authority (statutory and case law) and perhaps law from other jurisdictions. Do not be reluctant to blend and distill the mix of authorities into a clear explanation of the critical legal point. And while it is sometimes tempting to “guild the lily” when creating instructions from scratch, bear in mind that state appellate courts review instructions carefully, and improper instructions are often a basis for reversal. Make every effort to state the law clearly and correctly.
In complex cases, particularly those involving burden shifting, presumptions, or significant affirmative defenses, tailored finding instructions and special interrogatories/verdict forms can be useful. They offer the chance to “bookend” the trial with a recitation of the issues as your side sees them, taking a juror through every step of the analysis that he/she must undertake. In this respect, a finding instruction or verdict form pushes the jury to be more precise in their thinking – and not simply base their decision on general assessments or impressions. For both parties, these ultimate instructions provide a significant chance to reiterate the opposing party’s burdens of proof on the particular issue. Trial courts have ample discretion to craft instructions to the facts and issue in the case.[3]
Special verdict forms can also have important implications on appeal because they reveal the actual thought process of the jurors. In Virginia courts, jurors are presumed to have followed all of their instructions unless the record plainly shows otherwise.[4] And where the record does not demonstrate whether the jury relied on an erroneous instruction in reaching its verdict, the error is presumed harmful to the appellant.[5] Depending on which side you are on, you may prefer a general verdict form, which provides no indication of the precise grounds on which the jury reached its decision, and offers limited insight into the jury’s deliberation. But that comes with costs as well. When there is no way to discern whether the jury decided the case relying on a bad instruction, Virginia appellate courts will presume so unless the contrary is clear from the record.
Finally, remember that the entire jury charge matters, particularly on appeal in Virginia state courts. A reviewing appellate court will read and consider the jury instructions together, as a whole.[6] Accordingly, each instruction that you prepare warrants some discernment regarding both the wording of the individual instruction and how it fits within the other instructions.
Know Your Audience; Strike the Right Balance.
Drafting jury instructions is not a natural talent for lawyers. We are trained in legal writing – that is, to create a written advocacy product that other lawyers or judges with similar training will read and understand. Jury instructions are for a completely different audience that likely has no base knowledge and no real understanding of the terminology. This reality requires use of plain language that someone without any legal training can understand — without losing the core legal directive. And, the lawyer also must do it in a way that the trial judge finds acceptable. Serving these two masters is not always easy.
The trial judge has ample discretion to determine the form and content of its instructions.[7] The fundamental aim of an instruction should be to inform the jury fully and fairly about the law applicable to the particular facts of a case.[8] That base purpose should guide the tone, tenor, and approach of any proposed instruction. Think of an instruction as the architecture for advocacy, but not an advocacy document. If you are successful, you will use the instruction as a springboard to explain to the jury precisely why it must return a verdict in favor of your client. But a zealous or aggressive approach within the instruction will undoubtedly provoke an objection, engender close scrutiny from the court, and may result in the court’s refusal of the instruction. Instructions should not attempt to assume facts, make factual findings, or blatantly lead the jury to a particular conclusion.[9]
Basic phrasing within the instruction can matter as well. For example, a proposed instruction that tells the jury that “you must first consider ‘x.’ If you find ‘x,’ then you may consider ‘y’” is not likely to draw criticism. By contrast, an instruction with the same upshot, but phrased more prohibitively – “you cannot consider ‘y’ unless you have found ‘x.’ Only after you have found ‘x’ can you consider ‘y’” – is more likely to prompt scrutiny from the court or the other side. The more aggressive approach also renders the instruction somewhat confusing by starting with a reference to “y” before even discussing “x.” While the other side may have proffered an even more argumentative (or slanted) instruction on the matter and there might be little to lose and more to gain by proposing a more aggressive instruction, do not sacrifice clarity in the process.
Clarity and conciseness are key when it comes to the jury. For example, in a corporate case involving claims for breach of fiduciary duty, the business judgment rule doesn’t do the defense any good if the jury instruction doesn’t explain, in simple, clear language, what the rule is, what it does, and why it matters. So too, the volume and length of the instructions can matter. Burying a juror under reams of lengthy instructions can be counterproductive and create more confusion than clarity, and may also be viewed as prejudicial.[10]
Be Flexible.
In civil cases, Virginia law requires “the parties to furnish the trial court with proper and appropriate instructions that address their respective theories of the case.”[11] Always ensure that the case scheduling order contains a provision requiring the parties to exchange initial proposed jury instructions at a point before the last pre-trial conference. That said, it is impossible to foresee every issue that may arise at trial and submit an instruction on each point. In fact, it is often the case that, at the close of the evidence, you will find that you will want to submit additional instructions on particular issues or theories. The Federal Rules expressly authorize a party to propose instructions “on issues that could not reasonably have been anticipated by an earlier time the court set” or otherwise “with the court’s permission[.]”[12] Both matters are left to the discretion of the district court, but be aware that the court may bar the submission of an instruction on an issue that was foreseeable but not raised in the instructions previously submitted.[13]
While a Virginia court can only instruct the jury only on principles that find sufficient support in the evidence,[14] that is a relatively generous standard. The evidence presented in support of a particular instruction need only surpass a scintilla.[15] Moreover, in reviewing a trial court’s refusal to grant a proffered jury instruction, an appellate court will examine the evidence in the light most favorable to the proponent of the instruction.[16] And if a proffered instruction finds any support in credible evidence, its refusal is reversible error.[17] The upshot: plan to propose additional instructions to the court after the close of the evidence, and be aggressive in covering any additional matters that could warrant instruction. By the same token, you should object (on the record) to instructions offered by your opponent when the instructions are not warranted by the evidence.
Preserve Error.
The waiver doctrine is alive and well in the appellate courts when it comes to appeals of jury instructions.[18] In Virginia courts, “instructions given without objection become the law of the case and thereby bind the parties in the trial court and [the appellate court] on review.”[19] Similarly, the failure to request an instruction or the failure to proffer an instruction alternative to the instruction adopted by the trial court precludes assigning error on such grounds on appeal.[20]
Jury instruction issues typically find less traction in Federal appeals. Even so, an appellant may assign error to an instruction or the court’s refusal to give a requested instruction only if an objection was properly lodged.[21] The limited exception to the preservation rule is a “plain error” in the instruction that “affects substantial rights.”[22] Such instances are few and far between, however, because the error must have been clear and obvious, and affected the outcome of the trial court proceeding to the detriment of the appellant.[23] Accordingly, take every precaution to ensure that objections are timely made and the error is well-preserved at the appropriate time before the jury is charged.
Under the Federal Rules, the trial judge must allow parties the opportunity to object to the instructions it intends to give,[24] but the objecting party “must do so on the record, stating distinctly the matter objected to and the grounds for the objection.”[25] Similarly, Virginia appellate courts apply the contemporaneous objection rule, which requires an objection be stated with reasonable certainty at the time of the ruling.[26] In all events, the circuit court must have the opportunity to “rule intelligently” on a party’s objections.”[27]
The problem is, the circumstances in which the trial court considers proposed instructions and hears related argument/objections can vary. Always include a provision in the case scheduling order requiring the parties to serve objections to the initial jury instructions that have been proposed. Then, ensure that the proposed instructions and objections are made a part of the record at the hearing when instructions and associated objections are argued. The use of written objections allows a party to stake out its position on a particular instruction for the trial court’s consideration, and provides the groundwork and reminder to ensure that objections to the trial court’s jury instruction determinations are preserved.
Frequently, argument over instructions can occur in the evening after a full day of trial, and perhaps not even in the courtroom or with a court reporter present. Additionally, the court may not fully or clearly explain precisely what instructions it intends to give. These are avenues to waiver.[28] Accordingly, ensure that (1) the court reporter is not excused for the day until jury instruction argument concludes; (2) the court articulates its rulings on objections and the instructions that it intends to give; and (3) objections to those rulings and instructions are made and preserved on the record. Mark any rejected instructions as proposed and rejected. They should become part of the record.
Know the Standards of Review on Appeal.
Appellate courts are typically loathe to overturn a jury’s decision, and many avenues of appeal involving civil jury trials are curtailed by deferential standards of review. Appeals of jury instruction issues are no different. In both Virginia and the Fourth Circuit, a trial court’s decisions in giving or refusing proposed instructions are reviewed for an abuse of discretion.[29] However, whether an instruction accurately states applicable law is subject to de novo review.[30] Accordingly, how the instruction issue is framed on appeal may make all the difference in the level of scrutiny that it receives. Does the error in the instruction lie in the trial court’s use of certain words or phrases in the instruction [abuse of discretion standard]? Or, is the legal principle stated in the instruction wrong [de novo review]? These issues may go hand-in-hand, but not always. On appeal, think carefully in describing where the error lies with regard to a particular instruction.
In Virginia, the issue of whether an instruction finds support in more than a scintilla of evidence is also reviewed de novo.[31] While seemingly a low threshold, Virginia appellate courts have declined to establish a precise definition of “scintilla,” choosing instead to resolve the issue case-by-case, viewing the evidence at trial in the light most favorable to the proponent of the instruction.[32] There have been cases in which this standard was not met,[33] but on balance, it seems more likely that error may lie the trial court’s refusal to give an instruction – rather than in its decision to give an instruction – so long as the instruction is not duplicative or cumulative.[34]
Conclusion.
Presenting your case to the jury comes with seemingly endless potential risks. That is as evident in the jury instruction process as any other part of trial. But you can use the instructions to your advantage when you know and use those jury instructions early-on to then structure and shape the case through trial. And at trial, never assume that the jury will understand the instructions. Get them out and argue the most important ones as part of your closing. Explain what the terms and concepts mean and why your client must win. And in appropriate circumstances (e.g., where the jury may be biased in favor of the opposing party), you may need to remind the jury of its oath to faithfully apply the law as instructed. Most jurors will not blatantly fail to do so – even if they don’t like the result.
[1] See Va. Code § 8.01-379.2 (“[a] proposed jury instruction submitted by a party, which constitutes an accurate statement of the law applicable to the case, shall not be withheld from the jury solely for its nonconformance with the model jury instructions”); Harman v. Honeywell Int’l, Inc., 288 Va. 84, 104, 758 S.E.2d 515, 527 (2014) (“an instruction may not be withheld from the jury solely because it varies from the model instruction”).
[2] Commonwealth v. Barney, 884 S.E.2d 81, 86-87 (Va. Ct. App. 2023) (“a trial court has the discretion to give tailored instructions to focus a jury on specific contested issues”); United States v. Bosket, 356 F. App’x 648, 651 (4th Cir. 2009) ([j]ury instructions should be drawn with reference to the particular facts of the case on trial, because abstract instructions that are not adjusted to the facts of a particular case may confuse the jury . . . Different factual situations obviously call for different degrees of particularity . . . and the choice of generality versus specificity in the charge is a matter left to the sound discretion of the trial courts.”) (internal quotations omitted).
[3] Benjamin v. Sparks, 986 F.3d 332, 346 (4th Cir. 2021); Prieto v. Commonwealth, 278 Va. 366, 407, 682 S.E.2d 910, 932 (2009) (noting “the circuit court’s discretion in tailoring verdict forms to the issues presented in a particular case”).
[4] Gillam v. Immel, 293 Va. 18, 26, 795 S.E.2d 458, 463 (2017); Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 537, 636 S.E.2d 416, 426 (2006); Gravitt v. Ward, 258 Va. 330, 337, 518 S.E.2d 631, 635 (1999).
[5] Johnson v. Raviotta, 264 Va. 27, 39, 563 S.E.2d 727, 735 (2002); see also Cain v. Lee, 290 Va. 129, 136, 772 S.E.2d 894, 897 (2015); Clohessy v. Weiler, 250 Va. 249, 254, 462 S.E.2d 94, 97 (1995).
[6] United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 382 (4th Cir. 2015); Hawthorne v. VanMarter, 279 Va. 566, 586, 692 S.E.2d 226, 238 (2010).
[7] Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 233 (4th Cir. 2016) (“a trial court has broad discretion in framing its instructions to a jury”) (quotation omitted); Shaikh v. Johnson, 276 Va. 537, 546, 666 S.E.2d 325, 329 (2008) (“[t]he burden is on the proponent of a jury instruction to satisfy the trial court that the proposed language is a correct statement of the law, applicable to the facts of the case on trial, and expressed in appropriate language”).
[8] See Hawthorne, 279 Va. at 586, 692 S.E.2d at 238.
[9] See H.W. Miller Trucking Co. v. Flood, 203 Va. 934, 937, 128 S.E.2d 437, 440 (1962) (“[a]n instruction which is confusing, argumentative, long, and merely an attempt on plaintiff’s part to have the court apparently agree with his theory of the case should be refused”); Hardin v. Ski Venture, 50 F.3d 1291, 1294 (4th Cir. 1995) (jury instructions may not “effectively direct a verdict for one side or the other”).
[10] H.W. Miller Trucking, 203 Va. at 937, 128 S.E.2d at 440 (“[t]he piling of instruction upon instruction does not help a jury, and treads close upon the heels of invited error”); Holmes v. Commonwealth, 76 Va. App. 34, 53, 880 S.E.2d 37, 46 (2022) (rejecting a duplicative instruction that “would inappropriately single out for emphasis a part of the evidence tending to establish a particular fact . . . and would be confusing or misleading to the jury”) (internal quotations omitted).
[11] Honsigner v. Egan, 266 Va. 269, 275, 585 S.E.2d 597, 601 (2003).
[12] Fed. R. Civ. P. 51(a)(2)(A)-(B).
[13] See, e.g., Potthast v. Metro-North R.R., 400 F.3d 143, 153-54 (2d Cir. 2005).
[14] Pollins v. Jones, 263 Va. 25, 28, 557 S.E.2d 713, 714 (2002); Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 55, 710 S.E.2d 736, 740 (2011); see also Rosen v. Greifenberger, 257 Va, 373, 380, 513 S.E.2d 861, 864-65 (1999) (a “trial court should give a jury an instruction that, while a correct statement of the law as an abstract proposition, is inapplicable to the facts of the case”).
[15] Dorman v. State Indus., 292 Va. 111, 125, 787 S.E.2d 132, 141 (2016); Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78, 597 S.E.2d 43, 45 (2004).
[16] Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185 (2009); Honsinger, 266 Va. at 274, 585 S.E.2d at 597 (citation omitted).
[17] Holmes v. Levine, 273 Va. 150, 159, 639 S.E.2d 235, 239 (2007).
[18] Va. Sup. Ct. R. 5:25; Va. Sup. Ct. R. 5A:18; Belk, Inc. v. Meyer Corp., 679 F.3d 146, 153 n.6 (4th Cir. 2012) (appellant waived challenge to jury instruction by “neglecting to make timely and sufficient objections to the court’s charge below”).
[19] Wintergreen Partners v. McGuireWoods, 280 Va. 374, 379, 698 S.E.2d 913, 916 (2010) (quotation omitted); Ulloa v. QSP, Inc., 271 Va. 72, 80, 624 S.E.2d 43, 48 (2006) (stating that the appellant “is bound by his agreement to the jury instructions given to the jury as the law of this case”).
[20] Dorman, 292 Va. at 125, 787 S.E.2d at 141; Holles v. Sunrise Terrace, Inc., 257 Va. 131, 138, 509 S.E.2d 494, 498 (1999).
[21] Fed. R. Civ. P. 51(d)(1)(A)-(B) (a party may assign error to an instruction actually given, if that party properly objected, or to the refusal to give an instruction if the party properly requested it and – unless the court rejected the request in a definitive ruling on the record – also properly objected); see United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 912 F.3d 731, 737 (4th Cir. 2019).
[22] Fed. R. Civ. P. 51(d)(2); Gregg v. Ham, 678 F.3d 333, 338 (4th Cir. 2012) (to obtain reversal on plain error review, a defendant must show that (1) an error was made; (2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings).
[23] United States v. Said, 26 F.4th 653, 660 (4th Cir. 2022); United States v. Walker, 934 F.3d 375, 378 (4th Cir. 2019) (quotation marks omitted).
[24] Fed. R. Civ. P. 51(b)(1)-(2).
[25] Fed. R. Civ. P. 51(c)(1) (objections to the jury instructions must state “distinctly the matter objected to and the grounds for the objection”); Mattison v. Dallas Carrier Corp., 947 F.2d 95, 112 (4th Cir. 1991) (“to preserve an objection to the instructions to the jury, a party is required to point out specifically the nature of the objection”) see also Pogue v. Retail Credit Co., 453 F.2d 336, 338 (4th Cir. 1972) (“under Rule 51 of the Federal Rules of Civil Procedure, a party may not object to instructions given or not given to the jury unless the party objects before the jury retires”).
[26] Nusbaum v. Berlin, 273 Va. 385, 402, 641 S.E.2d 494, 503 (2007) (“Under Rule 5:25, we will not sustain error to a ruling of a trial court ‘unless the objection was stated with reasonable certainty at the time of the ruling’”) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)).
[27] Johnson, 264 Va. at 33, 563 S.E.2d at 731.
[28] See Bunn v. Oldenforff Carries GMBH & Co. v. KG, 723 F.3d 454, 468 (4th Cir 2013) (appellee failed to preserve a challenge to the jury instructions” because it “provided no record of an objection to the district court”); Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999) (appellant’s “fail[ure] to supply a transcript of the Rule 51 sidebar conference” gave rise to a “presumption that none of his challenges to the jury instructions were properly preserved”); Maltby v. Winston, 36 F.3d 548, 560 (7th Cir. 1994) (finding that the appellant had failed to preserve his challenge to jury instructions because “the instruction conference in the district court was not memorialized in the record,” and the appellant had not otherwise “ma[d]e a sufficient record”).
[29] Holmes v. Commonwealth, 76 Va. App. 34, 53, 880 S.E.2d 37, 46 (2022); Gentry, 816 F.3d at 233.
[30] Gentry, 816 F.3d at 233; Harman v. Honeywell Int’l, Inc., 288 Va. 84, 103, 758 S.E.2d 515, 526 (2014); Smith v. Kim, 277 Va. 486, 491, 675 S.E.2d 193, 196 (2009); Hancock-Underwood v. Knight, 277 Va. 127, 131, 670 S.E.2d 720, 722 (2009).
[31] Harman, 288 Va. at 103, 758 S.E.2d at 526.
[32] See, e.g., Witherow v. Commonwealth, 65 Va. App. 557, 565, 779 S.E.2d 223, 227-28 (2015); Holmes, 273 Va. at 159, 639 S.E.2d at 239.
[33] See, e.g., Sullivan v. Robertson Drug Co., 273 Va. 84, 93-94, 639 S.E.2d 256-57 (2007) (circuit court erred in giving instruction on the reasonableness of settlement); Monahan v. Obici Med. Mgmt. Servs., 271 Va. 621, 635-37, 628 S.E.2d 330, 338-39 (2006) (trial court erred in giving unsupported mitigation of damages instruction).
[34] See, e.g., Dorman v. State Indus., 292 Va. 111, 125-26, 787 S.E.2d 132, 140-41 (2016) (affirming trial court’s decision to give superseding cause instruction); Burns v. Gagnon, 283 Va. 657, 677-78, 727 S.E.2d 634, 646-47 (2012) (circuit court erred in refusing to instruct the jury on gross negligence); Holmes, 273 Va. at 158-160, 639 S.E.2d at 239-40 (circuit court erred in refusing to give proffered proximate cause instruction); Schlimmer, 268 Va. at 78-80, 597 S.E.2d at 45-46 (trial court erred “in refusing to instruct the jury on the doctrine of negligence per se”); Price v. Taylor, 251 Va. 82, 86, 466 S.E.2d 87, 89 (1996) (trial court erred in refusing to instruct the jury on fraud theory that was supported by the evidence); Bowers v. May, 233 Va. 411, 413-14, 357 S.E.2d 29, 30 (1987) (rejecting challenge of trial court’s decision to instruct the jury on contributory negligence because the theory was supported by the evidence); Honsigner, 266 Va. at 274, 585 S.E.2d at 600 (2003) (“we will approve a trial court’s decision not to give an instruction that is duplicative of instructions already given”).
Tuesday, April 9th, 2024
Staying calm and keeping your wits about you during and after an auto accident in Virginia is no easy task. Accidents happen fast, and the events that unfold afterwards can happen just as fast. The situation can also be complicated by any number of additional factors: injuries, anxiety, and answering questions from numerous individuals.
There is no one-size-fits-all response that is appropriate in every auto accident. This is why it is vital to consult an experienced Virginia personal injury attorney as soon as possible, so you can get specific and tailored advice that takes into account the specific details of your circumstances.
There are some generalizations, however, that are true. Below are some tips and advice to aid you in confronting your accident and responding in the days and weeks that follow.
1. Control Your Vehicle
Proper response to an accident begins before the wheels stop spinning. Your first priority, greater than any consideration of liability or fault, is to survive the accident and minimize the chance you suffer significant injuries. When a collision occurs or is imminent, it is often the case that individuals simply freeze and stop driving the car. Never relinquish control of your vehicle. Do what you reasonably can to avoid the worst of the collision: take emergency action, and, if possible, navigate to safety entirely.
2. Assess the Situation
After the collision, monitor your surroundings and take appropriate action to prevent further accidents or injury. Can you safely move to the side of the road? Do you need to evacuate the passengers from the car and safely behind a guardrail? Can you place road flares or reflective triangles to warn oncoming motorists of the upcoming danger?
Further, you should assess your medical condition and that of your passengers or other individuals involved in the accident.
3. Call 911 or Appropriate Emergency Services
When safe to do so, call appropriate emergency services. Even if you feel that there are no injuries that warrant a trip to the emergency room, it still may a good idea to get checked out. It is better to be safe than sorry.
Responding police officers can help direct traffic in the area and ensure that you, your passengers, and other motorists on the road remain safe. Additionally, and especially if you aren’t at fault for the accident, having a neutral assessment of the manner and cause of the accident can help with later litigation. The responding officers may seek statements from the parties as well take photographs of the scene.
4. Carefully Consider Statements
When making statements, either to the police or to anyone else at the scene, carefully consider your words. While an accident and its immediate aftermath can be an extremely stressful time, it is important to try to calm yourself, get your wits about you, and avoid speaking from a place of hysteria or emotion.
It is extremely easy to make a statement that can be used against you later, especially when caught up in the emotion of the moment. Comments like “That guy came out of nowhere!” and “I didn’t even see her!” can be used to demonstrate that you failed to keep proper lookout. Also be careful with expressions of sympathy or apologies. While these statements on their own may not be an admission of guilt, these statements often accompany other statements that can be. For example, consider the statement “I am so sorry! I thought the way was clear!” The statement of sympathy may not be admissible against you, but your statement that you thought the way was clear likely would be.
5. Document the Scene
While responding officers may document the scene, it is not a good idea to completely rely on them. If you are medically able and it is safe to do so, it is a good idea to document the scene. This could include taking pictures of the vehicles and the damage caused by the collision. It can also including taking video (but pay careful consideration to what you say on the video, that audio lasts forever).
It is also important to remember that the “scene” is more than just the location of the accident. Proving your medical condition and your injuries associated with the accident will be vital during future litigation. Remember to record your condition, via video, pictures, and written recordings of your condition and experiences. It is easy to forget important things, especially when they are unpleasant and you wish you had never experienced them in the first place.
6. Seek Medical Attention
Don’t be a hero. You are not a medical expert. If you feel pain, you have no clue what the source of that pain is. You do not know the severity of the injury that is precipitating that pain. You do not know if you will recover, given enough time, or if this is just the start of a lifetime of pain and discomfort.
Seek medical attention. Lots of people have “toughed it out” only to discover much later that they were more injured than they thought they were. First and foremost, this would mean that you have suffered more than you had too. You have experienced pain and discomfort that a trained professional might have alleviated. More than that, you may have prejudiced your personal injury case. If there is a large gap between the accident and your medical treatment, you can bet that this will be use against you later.
7. Notify Your Insurance
As soon as you are able after an accident, you should notify your insurance company. Many insurance contracts require you to notify the company of an incident within a reasonable time. If you fail to do so, you can waive your coverage for the accident. You should also make sure that you are given the other driver’s insurance information.
8. Seek a Qualified Personal Injury Attorney
Finally, seek the tailored advice of a qualified personal injury attorney. While it is never too soon to seek competent legal counsel, sometimes it can be too late. Virginia has a two year statute of limitations that is nearly absolute. If you miss this deadline, your case is dead. It doesn’t matter how good your case is. It doesn’t matter how injured you were. If you miss this statutory deadline, you may miss your opportunity to seek compensation for your losses.
Again, while this is not intended to be an exhaustive checklist of how to respond to an auto accident in Virginia (no such checklist could ever be exhaustive), following these tips can help you respond to what will, in all likelihood, be a difficult situation. Those injured in an auto accident in Virginia would be wise to consult with a Virginia personal injury attorney who is familiar with all of the pitfalls associated with litigating this type of case. Plaintiffs in Southwest Virginia would do well to hire a personal injury lawyer in Roanoke, Virginia. There is no need to go through this alone.
Monday, April 8th, 2024
I admit it. I am an appellate argument junkie. This has been a long-standing problem, but one that took on new dimensions when the Supreme Court of Virginia began releasing audio recordings of oral arguments about ten years ago. I then began listening to the Court’s arguments in earnest. Now, of course, the availability of audio recordings of appellate arguments is ubiquitous. This means that anyone can hear an appellate argument without their leaving the house, car, or office. I don’t know about anyone else, but I’m hooked.
So is this a good habit or a bad one? Because I am an appellate lawyer, I think I can claim this habit as a good one. Supreme Court of Virginia recordings provide a look at the Court as a whole, how each of the seven justices approach the decision-making process, and how the justices interact with each other. Perhaps the same is true of appellate courts that sit in panels of three for argument, but a study of those courts as a whole are limited to the infrequent times when those courts sit en banc.
My habitual listening to appellate arguments for a decade has reinforced some suspicions I have had about the Supreme Court of Virginia, and about appellate arguments in general. And, they provide some valuable insight for appellate lawyers.
First, the justices are often talking to each other when they ask questions.
This is something that is hard to follow during the heat of oral argument. After listening to the argument after the fact, though, it is clear that many questions are not really for the advocate, but are directed towards another justice, or the entire Court. The justices are really discussing the case with each other and trying to convince their colleagues on the bench of their position. This provides a view into what an individual justice is thinking or how she might approach or decide the case.
So does this mean that the advocate’s answers don’t matter? Are we just pawns on the Court’s chess board? Not at all. Our answers to those questions can influence the judicial discussion that is playing out during the argument. And, equally important, those answers could affect the outcome of the case by showing why our position is right.
Second, some questions are not what they sounded like when asked.
During the argument, it can be difficult to really listen to the Court’s questions when you are focused on delivering a prepared argument and fielding a barrage of questions. Things become clearer with the luxury of hearing the argument again without the stress of being in the middle of it. In a post-hoc review, I have noticed that some questions were not exactly what I thought they were at the time; rather, the Court was asking something slightly different.
Good listening at oral argument is hard. It requires us to focus on the Court first, and our prepared argument second. Because the Court is the decision-maker, though, we must understand its concerns and questions so we can respond meaningfully. If we haven’t answered the Court’s questions, then we have not done our jobs as advocates. So, be flexible during oral argument. Weave the important points of the argument into your answers, but make sure you are addressing the issues the Court wants to discuss. Responding effectively and fully to the Court’s questions is a necessary step on the path to victory.
Third, the Court genuinely wants to understand the argument and its ramifications.
This is why the justices ask hypothetical questions. They want to test the boundaries and effect of a ruling in your favor in future cases involving different facts. And this is why a justice may press the advocate to define the scope of the ruling that is sought and to explain the effect of that ruling. Concisely explaining the scope and limiting principles of your position will greatly assist the Court in understanding the effect of adopting your position and becoming comfortable with it.
Embrace the opportunity to help the Court do its job well. Before you arrive at the courthouse steps, know the rule you are asking the Court to adopt, the limiting principles of that rule, and how it would apply in future cases involving different facts.
Finally, audio recordings only tell you half the story.
Listening to an audio recording of an argument I heard – or delivered – is a different experience than being there live. The visual, relational, and intangible aspects of a live argument cannot be captured in a recording. Many essential ingredients to an effective oral argument, such as genuineness, credibility, enthusiasm, engagement, and rapport with the Court are not fully experienced in an audio recording. Therefore, being there in person is the only way to fully appreciate an argument, although that won’t stop me from listening to recordings.
Because an effective argument needs the intangibles that are only possible with live engagement with the Court, you should not agree to argue your case by phone unless you have to. A live appearance is better.
You may access audio recordings of the Supreme Court of Virginia’s merits arguments since January 7, 2014, at http://courts.state.va.us/courts/scv/oral_arguments/home.html. Audio recordings of the Court of Appeals of Virginia’s arguments since May 20, 2014, are available at Court of Appeals Oral Arguments (vacourts.gov). To listen to audio recordings for arguments before the United States Court of Appeals for the Fourth Circuit since May 2011, click on this link: Listen to Oral Arguments (uscourts.gov).
Contact us today if you have any questions.
Wednesday, March 27th, 2024
Article co-written by Matthew Broughton, Jared Tuck, and intern Nicholas Beck
In Virginia, a minor’s personal injury case typically has a statute of limitations of two years from the child’s 18th birthday. However, that deadline does not apply when the injury was caused by a medical provider’s negligence. If your child’s claim does not get filed before the expiration of the two-year statute of limitations, then his or her claim may be forever barred.
The statute of limitations for a minor’s medical malpractice case can often be confusing, but with the help of experienced Virginia medical malpractice attorneys, your child can hopefully receive the compensation he or she deserves.
The Rule
Virginia Code § 8.01-243.1 requires that medical malpractice lawsuits involving minors be brought “within two years of the date of the last act or omission giving rise to the cause of action except that if the minor was less than eight years of age at the time of the occurrence of the malpractice, he shall have until his tenth birthday to commence an action.” Unlike most personal injury cases involving children, lawsuits against negligent doctors, physicians, and other medical providers generally must be filed within 2 years or by the child’s 10th birthday, whichever is longer.
For example, when a 10-year-old child is injured in a car accident, the clock does not begin ticking until his 18th birthday. He then has 2 years from the start of the clock to file a claim in Virginia general district or circuit court.
In contrast, if your 10-year-old suffers an injury from the alleged negligence of a doctor or other healthcare provider, he has 2 years from the date of injury to file the claim, with limited exceptions. These exceptions include but are not limited to, failure to diagnose cases and injuries involving medical devices. For a full overview of personal injury statutes of limitations, including the limited exceptions to the general rules regarding statutes of limitations in personal injury actions, see here.
What You Can Do
You may be asking yourself, “How is my child supposed to sue his doctor before he can vote?” That’s a great question, and we’re here to help.
Be present for all doctor appointments, ask questions, and take notes.
For a child to file a lawsuit, it must be filed by his or her “next friend,” who is usually the child’s parent or guardian. Being in the room with your child and his or her doctor helps in preventing miscommunications and misunderstandings. Medical terminology can be confusing for adults, let alone children. If you or another responsible adult aren’t in the room to get the full picture and to ask questions, then it is harder to identify if something goes wrong.
If you don’t understand the provider’s medical terminology, then ASK!
This is especially important before your child receives a new medicine or undergoes a medical procedure. Medical providers are required by law to obtain informed consent, and minors cannot legally consent on their own. When you have a better understanding of the risks of a medicine or procedure, you can more easily identify if and when an unknown risk occurs.
Consult an experienced Virginia medical malpractice attorney.
As mentioned, medicine and medical terminology can be confusing all on its own. When you throw in the legal aspects of medical malpractice, an entirely new layer of confusion gets added. Only a team of experienced and knowledgeable medical negligence lawyers with the resources to take on hospitals, health systems, and other practices can appropriately handle the complex nature of medical malpractice cases.
Unlike many personal injury cases, medical malpractice lawsuits require an in-depth review of your child’s medical records. Our team of Virginia medical malpractice attorneys has in-house medical specialists who can promptly and effectively evaluate your child’s case. Once your child’s case is evaluated by the medical specialists and Virginia medical malpractice attorneys, an expert medical provider will need to certify your claim before it can be filed in court, see here.
All of this takes time and money. Fortunately, Gentry Locke is an experienced medical malpractice law firm that has the resources to help your child receive the relief he or she deserves.
Conclusion
In sum, when you and your family are dealing with the trauma of medical malpractice to your child, it is understandably emotional and confusing. There is a lot to do within the two-year timeframe before your child’s case expires, and only a team of experienced Virginia medical malpractice attorneys with the appropriate resources can handle such a complex case. If you or your child have suffered from what may be medical malpractice, do not hesitate to contact us today!
Thursday, March 14th, 2024
In October 2021, the United States Department of Justice (DOJ) announced its Civil Cyber-Fraud Initiative. The purpose of this initiative is to combat cybersecurity vulnerabilities and cyber threats by ensuring federal contractors and grantees implement required cybersecurity standards. Whistleblowers play a critical role in the initiative. Cybersecurity fraud is often difficult for the government to detect, so the DOJ relies on insiders to report violations under the federal False Claims Act (FCA).
The FCA allows whistleblowers, known as “relators,” to bring a lawsuit regarding an entity’s false claims to the United States for payment. This is known as a qui tam lawsuit, because it is brought in the name the government. The lawsuit is filed and initially kept under seal to allow the government to investigate.
A FCA cause of action generally has four elements: (1) falsity; (2) knowledge; (3) materiality; and (4) damages. In the cybersecurity context, the falsity element requires a false or fraudulent statement concerning the entity’s cybersecurity practices or compliance, made in connection with a federal contract or grant. This false or fraudulent statement must be made knowingly, which encompasses actual knowledge, deliberate ignorance, and reckless disregard of the truth or falsity of the information. Materiality focuses on the significance of the false or fraudulent statement—it must, at minimum, have a natural tendency to influence, or be capable of influencing, the government’s payment decision. Finally, damages focus on the harm to the government. If successful, government’s actual damages may be tripled, and a court may award civil penalties. The whistleblower will receive a “relator’s share” between 15% and 30% of the government’s recovery.
Two years in, the DOJ continues to make cybersecurity enforcement a top priority, and has a string of successful recoveries, including:
Most recently, on September 1, 2023, the United States District Court for the Eastern District of Pennsylvania unsealed a FCA lawsuit brought by a qui tam relator alleging Penn State University falsely certified its compliance with various cybersecurity controls in a DOD contract.[1] While the DOJ declined to intervene—at least for now—it continues to actively investigate the case.
Cybersecurity requirements may exist in any federal contract or grant; however, they are most prevalent in the defense, health care, and research sectors. These requirements could include:
- The Federal Information Security Modernization Act of 2014 (FISMA) contains the most broadly applicable cybersecurity provisions. FISMA requires federal agencies and contractors that operate federal information systems to implement the required minimum protections and practices—termed “controls”—in the National Institute of Standards and Technology (NIST) Special Publication 800-53, “Recommended Security Controls for Federal Information Systems” (SP 800-53).
- As for Department of Defense (DoD) contracts, these include specific provisions under Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012, “Safeguarding Covered Defense Information and Cyber Incident Reporting.” This regulation requires defense contractors to implement NIST Special Publication 800-171 (SP 800-171) to protect controlled unclassified information (CUI).
Both FISMA and DFARS require federal contractors to demonstrate compliance with the applicable cybersecurity controls in a number of ways, including submission of documentation (for example, a System Security Plan or “SSP”), audits (such as a third-party independent assessment), and annual security reviews. An FCA violation can occur when federal contractors make false or misleading statements concerning the status or implementation of the applicable cybersecurity requirements.
If you are concerned about cybersecurity compliance efforts, or are interested in learning more about the FCA, please contact a member of Gentry Locke’s Whistleblower Claims & Qui Tam Team.
[1] United States of America, ex rel. Decker v. Pennsylvania State University, Case No. 2:22-cv-3895 (E.D. Pa.)
Friday, March 8th, 2024
On January 10, 2024, Virginia returned to fully divided government, with the General Assembly entirely controlled by one party and the Executive Mansion controlled by the other party. While hope springs eternal for bipartisanship and compromise, this era of political brinksmanship will make the Virginia Budget the legislative tool through which the General Assembly will attempt to force its will. How far that can go implicates thorny and unanswered constitutional questions—questions that the Supreme Court of Virginia may soon be called upon to answer.
A Brief Virginia Government Lesson
First, a recap on the basics. The legislative process requires both the Virginia House of Delegates and Virginia Senate to pass the same, identical bill. The Governor may veto legislation he or she disapproves. Only if 2/3 of both houses vote to override does the bill become law notwithstanding the Governor’s veto. Otherwise, the veto stands and the bill does not become law.
With most legislation, a closely divided General Assembly means that the Governor’s veto will often be the last word, particularly on party-line issues. That’s because there is unlikely to be a 2/3 majority in both houses to override the veto. So divided government often means, in Virginia at least, that party-line bills do not become law.
The Budget is a Law, Not Just a Spending Plan
But these typical rules do not apply to the state’s budget (the “Budget”). That’s because, by constitutional requirement, there has to be a law passed to authorize state spending, and that law cannot do so for longer than 2.5 years. See Va. Const. Art. X, § 7 (“no such appropriation shall be made which is payable more than two years and six months after the end of the session of the General Assembly at which the law is enacted authorizing the same”). That means that the Governor—and all of state government—needs a Budget bill to re-authorize government spending. And therein lies the General Assembly’s ultimate leverage: it can “legislate” through the Budget. And when the policy issue is tied up with the ability to operate state government, that puts the Governor in a potentially tough spot to exercise any veto authority.
Before joining the Governor’s Office as inhouse counsel, I had no idea just how expansive the budget was in enacting law and policy. But it reaches in directions far and wide. It directs state regulatory agencies to enact (or not enact) certain rules and regulations across the entire array of regulated entities—or even to approve or not approve particular projects or initiatives. Indeed, the Budget bill generally contains language saying that it applies “[n]otwithstanding any other provision of law,” and so is supreme over any conflicting law (aside from the Virginia Constitution or controlling federal law). HB 30 (Current Budget bill), § 4-13.00 Conflict with Other Laws. More recently, the Budget has legislated on topics seemingly distant from any appropriation: criminal penalties for marijuana possession, casino referenda, and skilled gaming regulation, among other topics.
Now that the Democrats control both houses of the General Assembly, the Budget bill can (and already is) being used to push policy initiatives that the Governor opposes. Indeed, based on the just-released conference report of the Budget bill, the General Assembly seems likely to require—through language in the Budget—Virginia to rejoin the Regional Greenhouse Gas Initiative (“RGGI”).[1] Withdrawing from RGGI was a signature policy goal of the Governor.[2]
So what happens? Is there any limit to using the Budget for this purpose? Two Virginia constitutional provisions come into play: (1) the single-object rule, and (2) the Governor’s item veto.
Single-Object Rule
Article IV, § 12 of the Virginia Constitution provides that “[n]o law shall embrace more than one object, which shall be expressed in its title.” This provision, which has been part of the Virginia Constitution since 1851, is designed to address two primary issues: to prevent “log-rolling, whereby two or more blocs (which might separately be minorities in the legislative body) combine forces on a bill containing several unrelated features” to pass it, and to ensure fair notice to legislators and the public regarding the content of bills before the General Assembly.[3] Thus, there is a substantive rationale for the provision (anti-log-rolling) and, procedural (fair notice).
In practice, however, the Supreme Court of Virginia has generally focused on the procedural element as dispositive, i.e. that the object of the legislation be expressed in the bill’s title. In Commonwealth v. Brown, the Supreme Court of Virginia stated that the single-object rule is satisfied if the contents of an act “are congruous, and have a natural connection with, or are germane to, the subject expressed in the title.”[4] There, the legislation related to oysters. And the legislation included numerous diverse provisions regulating the oyster industry, including taxes and fines for failing to comply and which the defendant (Brown) had been charged with violating.
Key for the Court in upholding the law was that the notice interest was satisfied. It held that the purpose of the single-object rule was preventing “the use of deceptive titles as a cover for vicious legislation, to prevent the practice of bringing together into one bill for corrupt purposes subjects diverse and dissimilar in their nature, and having no necessary connection with each other; and to prevent surprise or fraud” in legislation.[5]
Modern cases have generally blessed broad uses of single acts to address multiple topics. For instance, in Commonwealth v. Dodson, the Supreme Court of Virginia blessed certain provisions of the Budget bill that changed the structure of government, forcing more legislative control over the Governor’s budgetary process. The Court found the provisions passed muster, even though they effected a change in statutory law, finding the nothing about them “which should have misled the Legislature or the people, and certainly there is nothing about them surreptitious,” again relying on the procedural purpose of the single-object rule.[6]
And, in 2007, the Supreme Court of Virginia found a comprehensive bill addressing transportation issues to comply with the single object rule. There, the legislation “relating to transportation,” 2007 Va. Acts, Ch. 896, addressed 12 titles of the Code of Virginia, had 23 separate enactment clauses, and multiple provisions seemingly unrelated to transportation (at least not directly). But the Supreme Court of Virginia found no issue under the single-object rule, finding that the topics, while diverse, all “are congruous and have a natural connection with the subject of transportation expressed in the title.”[7]
Thus, where the issue has been litigated, the Supreme Court of Virginia has generally been extremely deferential to the General Assembly. But, it is not hard to imagine that an emboldened General Assembly might push things too far, even for the deference given to legislative acts. And if the Governor believes he is unfairly (and unconstitutionally) being asked to choose between funding the government and acceding to provisions he would veto if in a standalone bill, there very well could be a constitutional conflict.
Similar standoffs occurred during the McAuliffe Administration, regarding Medicaid expansion and environmental regulation; however, they were never litigated. Given the even stronger partisan divide today, I would bet on a case asking the Supreme Court of Virginia to revisit whether there is, substantively, any limit on what legislative topics can be included in the Budget bill.
Governor’s Item Veto Authority
The second Virginia constitutional provision that speaks to this conflict is under Va. Const. Art. V, § 6(d), creating authority for the Governor to “veto any particular item or items of an appropriation bill.” Under this authority, could the Governor simply strike out the offensive part of the Budget bill and veto that? Likely no, but the answer is unclear.
We return to Commonwealth v. Dodson, which addresses the item-veto authority. There, the case defined what is an “item” under the Virginia Constitution, and whether the item-veto authority included the ability to strike conditions or restrictions imposed by the General Assembly in appropriating funds. In short, the Court held that an item is an “indivisible sum of money dedicated to a stated purpose,” citing as an example funding for a library building and explaining that the library was an item while the various components of constructing a library were not.[8] Thus, under the Court’s example, the Governor could veto funding for the library, but could not veto the components of constructing a library.
The Court also stated that the Governor may not veto particular conditions or restrictions on appropriated funds in the Budget, as that would violate separation of powers principles to allow the Governor to excise provisions the Legislature attached to its appropriations.[9] Thus, if, as the General Assembly is now proposing, the Budget is conditioned on rejoining the Regional Greenhouse Gas Initiative, the Governor cannot simply item-veto that condition.
But here is where the item-veto authority and the single-object rule may come together. In Dodson, the Supreme Court of Virginia stated that the Governor “undoubtedly” has the power to “veto[] items or unconstitutional provisions . . . in proper cases.”[10] And this was not mere dicta. The Court upheld certain “item” vetoes of provisions that, for instance, provided funding for the Virginia Military Institute for an indefinite period, which would violate the above-cited constitutional limit on the duration of state appropriations.[11]
Thus, armed with the item-veto authority, the Governor might decide to strike certain offensive provisions, if he or she determines that they violate constitutional provisions, perhaps such as the single-object rule.
Conclusion
These issues are, at this point, academic. And, it remains the case that the new majorities in the General Assembly and the Governor likely both share a strong desire not to push past the breaking point and to ensure that a budget is enacted without disruption to the operation of state government.
But, for now, things are moving in the direction of conflict. The General Assembly is using its budget power to push initiatives the Governor opposes. No signs yet of any grand bargains. And if the Governor acquiesces, what real relevance will the Governor have in the legislative process?
It’s all a recipe for a constitutional conflict that ultimately will need to be decided by the Supreme Court of Virginia. Hopefully, before the lights go out.
Noah, and this article, were quoted in a recent VPM news article by Jahd Khalil about the Virginia Budget debate and how it could touch on constitutional issues. Read more on that article here.
[1] See Joint Conference Committee Report on House Bill 30 (Mar. 7, 2024) (inserting Item 366 #1c, “[t]his amendment requires the Commonwealth to rejoin [RGGI] and directs the appropriate agencies to take the necessary actions to rejoin RGGI”), available at budget.lis.virginia.gov/get/amendmentpdf/4915/
[2] See Executive Order Number Nine (2022), Protecting Ratepayers from the Rising Cost of Living Due to the Regional Greenhouse Gas Initiative, available at EO 9- RGGI.docx (virginia.gov)
[3] 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 528 (1974) (citing 1 Thomas M. Cooley, Constitutional Limitations 296 (8th ed.; Boston, 1927) and Millard H. Ruud, “No Law Shall Embrace More Than One Subject,” 42 Minn. L. Rev. 389 (1958)).
[4] Commonwealth v. Brown, 21 S.E. 357, 360 (Va. 1895).
[5] Id.
[6] Commonwealth v. Dodson, 11 S.E. 2d 120, 133 (Va. 1940).
[7] Marshall v. N. Va. Transp. Auth., 657 S.E. 2d 71, 78 (Va. 2008). The Court ultimately found another, unrelated constitutional infirmity in the law related to taxation provisions.
[8] Dodson, 11 S.E.2d at 124, 127.
[9] Id. at 127.
[10] Id. at 133.
[11] Id. at 134.
Tuesday, March 5th, 2024
Having now had the privilege (or pain) of practicing criminal law in three different states, I can safely say that not all criminal discovery rules and practices are even remotely equal.
In law school, we all read Brady and Giglio and know well that a criminal defendant is entitled to certain information, namely exculpatory and impeachment evidence. However, I am sure more than one state criminal practitioner has had a state court judge or prosecuting attorney look at them as if they are speaking Greek whenever either Brady or Giglio is mentioned, and unfortunately, more than once in this last year, I have seen Virginia prosecutors hesitate or even refuse to turn over exculpatory or impeachment evidence without direct court involvement.
Virginia’s Discovery History
Virginia’s discovery rules are historically limited and have prevented justice for citizens of the Commonwealth, and discovery reform has been a contentious topic for Virginia. Access to discovery is essential to ensure defendants receive their right to due process. By 2021, the Virginia Supreme Court expanded criminal defendant’s access to police reports, witness statements, and witness lists. Despite being years late on this reform and still behind many states on the expanse of criminal law discovery rules, it was a welcome change in Virginia.
Virginia amended Rule 3A:11, the protocol for producing discovery in criminal matters for both the defense and the Commonwealth. The Supreme Court of Virginia states the “constitutional and statutory duties of the Commonwealth’s attorney to provide exculpatory and/or impeachment evidence to an accused supersede any limitation or restriction on discovery provided pursuant to this Rule.” While Rule 3A:11 mirrors some of the ideals of Brady and Giglio, such as the requirement to disclose exculpatory evidence to the criminal defense attorneys and the extension to include impeachment material for any prosecution witness, it can be read to allow the Commonwealth’s Attorney too much discretion, which was the hallmark of the prior discovery rules.
Often criminal defense counsel is left arguing constitutional case law in a motion to compel the production of information that clearly falls within the definitions of exculpatory or impeachment material in Brady and Giglio jurisprudence, while the prosecutor remains hyper-focused on Rule 3A:11. At other times, criminal defense counsel face a prosecutor arguing they do not have to turn over any information unless it is “exculpatory.” “Proving” exculpatory or impeachment material exists in records the defendant has never seen is nearly impossible, and I have encountered many prosecutors who insist such a threshold showing is necessary to require the government to disclose their records.
Virginia Discovery Compared to Other States
In the federal system and for states like Colorado and Maryland (where I have also practiced), criminal discovery rules are much more expansive, and the failure to provide discovery can result in sanctions or even the outright dismissal of a case. In Virginia, however, there is little recourse for criminal defendants who find themselves on the wrong side of a prosecutor with a very narrow view of their discovery obligations.
Our neighbor Maryland’s hearty criminal discovery rules not only require the prosecuting attorney to produce more, but Maryland’s rules require the prosecutor to affirmatively provide discovery without a request from the defense. “Without the necessity of request, the State’s Attorney shall provide to the defense: statements, criminal records, state’s witnesses, prior conduct, exculpatory information, impeachment information, including any relationship the witness has with the prosecutor, prior convictions, medical or psychiatric conditions of the witness, etc.” (paraphrasing Md. Crim. Rule 4-263). In Virginia, a criminal defendant must move the court to order the Commonwealth to produce discovery, and even then, Rule 3A:11 does not even require the Commonwealth to turn over police reports or witness statements. The Commonwealth can satisfy its burden by allowing “inspection and review,” leaving the defendant’s right to access discovery entirely dependent on the responsiveness and personal schedule of the individual prosecutor assigned to the case. In my experience, some Virginia prosecutors simply refuse to return the calls and emails of defense counsel, making such scheduling nearly impossible.
Thousands of miles away, Colorado adopted criminal procedure rules that more closely mirror the federal rules. On more than one occasion, I watched the Court strongly chastise a District Attorney (DA) if there was even a hint of a discovery violation, and on the first day of one of my trials, a DA dismissed an entire case when we all discovered that law enforcement failed to provide dash camera footage to the DA. Colorado Rule of Criminal Procedure 16, like Maryland’s Rule 4-263, is more expansive than Virginia’s Rule 3A:11. It requires that the prosecuting attorney ensures a flow of information between investigative personnel and disclose any information and material relevant to the charges against the accused, and it requires shorter timeframes for when discovery must be turned over to the defense.
While certainly these rules are not followed perfectly in every county in Maryland and Colorado by every practitioner, the mere fact that the rules recognize these disclosure obligations to a criminal defendant puts those defendants in a very different place compared to those in Virginia.
Conclusion
While updates to Rule 3A:11 improved on its predecessor and attempted to promote justice, it fell short of doing just that. Virginia needs to either adopt by rule or in practice more explicit discovery policies and disclosure obligations, which would require the exchange of all evidence possessed by the government to the defense, an obligation for prosecutors to seek out that information from law enforcement agencies, and an obligation to produce copies to the defense. This change would remove the burden from the prosecutor to decide which evidence is exculpatory or has impeachment value, a heavy burden that they are in a poor position to determine without insight into trial strategy from the defense. Fair access to all evidence is crucial to a fair trial in the case and is the bare minimum of what is needed to promote justice in Virginia’s criminal system.
The criminal justice system should be about due process, justice, and even public safety.
Liberal pre-trial and pre-plea discovery also does not impose undue logistical burdens on prosecutors. Trial by surprise has never been a tenet of the American justice system. If a prosecutor is confident about their case, there should be no issue with handing over all discovery, whether that is in the pre-indictment or post-indictment phase. Failure to provide discovery and sometimes a straight refusal to provide discovery does not express the values enshrined in Giglio or Brady. Without full, open discovery, more criminal defendants, including white-collar investigation defendants, will feel unjustly targeted, railroaded by the process, and victimized by their prosecution. Nothing poses a greater risk to the public trust in our justice system.
If you are in need of a white collar law firm and experienced white collar defense attorneys, please don’t hesitate to Contact Us at Gentry Locke today! Even for clients or individuals not yet suspected or accused of misconduct, we provide compliance advice and proactively identify issues for corporate and individual clients to avoid violating the law, especially newly enacted legislation or regulations.
Tuesday, March 5th, 2024
A doctor’s negligence can have devastating and life-altering effects on a patient. A slip of the knife, a missed diagnosis, an unreasonable delay in treatment: All of these can lead to catastrophe. Many times, a patient’s only recourse after an encounter with a negligent healthcare provider is the Civil Justice system and a lawsuit to recover those damages caused by that provider with experienced medical malpractice attorneys.
Although a suit for medical malpractice is just a more specific and specialized claim of negligence, Virginia law places a number of guardians at the gates of the courthouse, in an attempt to weed-out all meritless claims against the Commonwealth’s providers of health care. These guardians take the form of statutory and procedural requirements with which a plaintiff must comply, in order to hold attempt to a health care provider liable for negligent actions. Should a litigant make a mistake, the consequences for their case can be dire. This is why you need a medical malpractice law firm that has knowledge in the subject and experienced lawyers for doctor negligence. One such statutory and procedural requirement is the requirement for a certifying expert.
The Requirement for a Certifying Expert in a Medical Malpractice Case
Section 8.01-20.1 of the Code of Virginia applies to personal injury claims based upon a theory of health care malpractice and provides:
Every motion for judgment, counterclaim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.
(emphasis added).
Similarly, Section § 8.01-50.1 of the Code of Virginia applies to wrongful death claims based upon a theory of health care malpractice and provides:
Every motion for judgment, counterclaim, or third party claim in any action pursuant to § 8.01-50 for wrongful death against a health care provider, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.
(emphasis added).
In other words, if a plaintiff asserts a claim for medical negligence against a health care provider, whether that claim is a claim for personal injury or a claim for wrongful death, that plaintiff must have a qualified expert review the case in advance, and that expert must conclude that the defendant’s health care provider did something wrong which caused the injuries or death at issue. Furthermore, the plaintiff must have obtained a positive review from a qualified expert before serving the lawsuit on the target health care provider. This raises the important question: What is required for a witness to “qualify” as an “expert witness?” The Code of Virginia has a lot to say about this, as well.
The Expert’s Qualifications
Both of these statutes—personal injury and wrongful death malpractice—require the Plaintiff to receive certification from an expert he or she “reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20.” Va. Code §§ 8.01-20.1, 50.1.
Va. Code §8.01-581.20(A) states:
A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
(emphasis added).
In sum, two things are required:
- The certifying expert must have knowledge of the standards applicable to the defendant’s health care area of practice. The various areas of practice in the health care industry are nearly infinite: nursing, in all its various forms; surgery, from orthopedic to neuro; family medicine; OB/GYN. The list is nearly endless. The plaintiff must, however, find the right expert for the case.
- The certifying expert must have had an active clinical practice in the defendant’s specialty or a related field within one year of the defendant’s negligent act or omission.
These two prerequisites for qualification require a potential medical malpractice plaintiff to evaluate their potential expert witnesses. Do they know what they claim to know? Have they had the right education and training? Do they practice the right area of medicine? Is their experience recent enough to qualify under the statute? If the answer is “no” to any of these questions, then the plaintiff must keep looking for the right fit.
The consequences of having no expert witness, or even having the wrong kind of expert witness, can be dire. If the plaintiff fails to have a qualified certifying expert before serving the lawsuit on the defendant, or if the expert that they have certified the case is deficient in some way, it could cost the plaintiff the case. The stakes couldn’t be higher.
Consequences for Failing to Get Proper Certification
Both Va. Code § 8.01-20.1 and § 8.01-50.1 carry with them significant penalties for failing to comply with this expert certification requirement:
If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.
(emphasis added).
The plaintiff’s case truly is on the line. If the plaintiff did not obtain the necessary certification prior to service on the defendant, the court is required (“shall”) to impose sanctions. Pursuant to Va. Code § 8.01-271.1, cross-referenced in the statutes, these sanctions run the gamut from simply reimbursing the defendant for the expenses—including legal fees—incurred in responding to the un-certified Complaint all the way to the dismissal of the case, without permission to refile and re-serve the case, after complying with these statutes. This is truly a worst-case scenario: The injured plaintiff who seeks compensation for healthcare-related injuries loses his or her opportunity to take legal action against the negligent healthcare provider.
Talk to An Attorney
If you have been wrongfully injured by a healthcare provider, this is not a process that you should be expected to deal with alone. The stakes are just too high to attempt to navigate this process by yourself. The requirement of expert certification is just one of many traps for the unwary that lie hidden in Virginia’s medical malpractice law. Experienced medical negligence lawyers who specialize in medical malpractice litigation can walk you through the process and guide you past these guardians of the courthouse gates.
Please contact us or call 866.983.0866. Our initial consultation is always free and confidential. We have a team of experienced Virginia medical malpractice attorneys who would be more than happy to assist you.
