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This substantial two-volume book is an essential resource for beginning attorneys as well as
general practitioners. Including contributions of dozens of Virginia attorneys, the book is the
result of a cooperative effort between Virginia CLE and the Young Lawyers Division of The
Virginia Bar Association. It covers numerous subject areas including setting up a law office,
litigation, family law, real estate, professional responsibility, eminent domain, and much more.
This book was updated in 2010. Over 150 forms on disc are also included. The book is available
in both print and CD-ROM formats, and the entire book and many individual chapters are
also available for immediate download. Please see the information
on electronic books before selecting the CD-ROM or download option.
Copyright © 2010 Virginia Law Foundation. All rights reserved.
Editor: Thomas G. Voekler
Authors:
| Robert G. Boyle, Jr. | Dewey B. Morris |
| R. Mark Dare | Hon. Robert A Pustilnik |
| Anthony Gambardella | Rhonda Quagliana |
| Brian L. Hager | Kimberly A. Skiba |
| Danielle C. Hall-McIvor | Thomas E. Spahn |
| Robert P. Henley | Paul B. Terpak |
| Henry E. Howell, III | Kelly A. Thompson |
| W. Brian McCann | Mark E. Warmbier |
| James M. McCauley | Lindsey A. Waters |
TABLE OF CONTENTS
Contributing Authors
About the Editor and Authors
Forms on Disc: Instructions and Table
Volume I
CHAPTER 1: MANAGING YOUR LAW OFFICE
1.1 STARTING A LAW PRACTICE
1.101 Introduction
1.102 Business Plan
1.103 Advisors and Mentors
1.104 Selection of Practice Entity
1.105 Office Space
1.106 Office Equipment
1.107 Office Staff
1.108 Communications with Clients and
Nonclients
1.109 Developing the Practice
1.110 Advertising
1.111 Year-End Review
1.2 LAW OFFICE TECHNOLOGY
1.201 In General
1.202 Shielding Against Malpractice
1.203 Improving Office Efficiencies
1.204 Market Forces for Efficiencies
1.205 The Nuts and Bolts of Bits and Bytes
1.206 Buying Options
1.207 Operating Systems
1.208 Networks
1.209 Software
1.3 PROFESSIONAL LIABILITY AND OTHER INSURANCE
1.301 Malpractice Claims
1.302 Types of Malpractice Carriers
1.303 Considerations When Buying Malpractice
Coverage
1.304 Other Necessary Insurance
1.4 CASE MANAGEMENT
1.401 Interviewing Prospective Clients
1.402 Conflicts Checks
1.403 Retainer Agreements
1.404 Declination Letters
1.5 CLIENT COMMUNICATIONS
1.6 DOCKET CONTROL
1.601 Monitoring Workload
1.602 Organizing Case Files
1.603 Tracking Case Files
1.604 Closing Case Files
1.7 TICKLER SYSTEMS
1.8 FEES
1.801 Reasonableness
1.802 Contingent Fees
1.803 Percentage Fees
1.804 Hourly Rates
1.805 Hybrid and Other Fees
1.806 Fee Agreements
1.807 Collecting Fees
1.808 Termination of Employment
1.809 Disposition of Client Files
1.9 BILLING PRACTICES AND PROCEDURES
1.901 Timekeeping
1.902 Billing and Collecting Fees
1.10 ESCROW ACCOUNTS
1.1001 Duty to Safeguard
1.1002 Rule 1.15 Generally
1.1003 Scope of Rule 1.15
1.1004 Other Property
1.1005 Types of Escrow Accounts
1.1006 Interest and Other Investments
1.1007 Record-Keeping and Accounting
1.1008 Deposits into Escrow Accounts
1.1009 Withdrawals from Escrow Accounts
1.1010 Liability for Violations
1.11 PLANNING FOR THE SUCCESSION OF A LAW PRACTICE
APPENDIX 1-1: NONENGAGEMENT LETTER
APPENDIX 1-2: FILL-IN-THE-BLANKS REPRESENTATION
AGREEMENT
APPENDIX 1-3: ENGAGEMENT AGREEMENT IN SHORT LETTER
FORMAT
APPENDIX 1-4: PERSONAL INJURY PLAINTIFF--LONG FORM
(CONTINGENCY FEE)
APPENDIX 1-5: CLOSING LETTER
APPENDIX 1-6: ESCROW ACCOUNT RECORD-KEEPING AND ACCOUNTING
FORMS
CHAPTER 2: PROFESSIONAL RESPONSIBILITY
2.1 OVERVIEW: RESOURCES FOR LEGAL ETHICS ISSUES
2.2 ADVERTISING AND SOLICITATION
2.201 In General
2.202 Mail and Email
2.203 In-Person Solicitation
2.204 Specialization
2.205 Law Firm Names and Trade Names
2.206 Lawyer Referral Services
2.207 Summary of Advisory Opinions Issued by
the
Standing Committee on Lawyer Advertising and Solicitation
2.3 CREATING THE ATTORNEY-CLIENT RELATIONSHIP; FEE
AGREEMENTS
2.301 Avoiding the Creation of Unintended
Professional
Relationships
2.302 Fee Agreements and Arrangements
2.4 MAINTAINING THE RELATIONSHIP WITH THE CLIENT
2.401 The Duty to Communicate
2.402 The Duty to Abide by the Client's
Decisions
2.403 The Duty to Attend to Client Matters
Promptly
2.5 PROFESSIONAL INDEPENDENCE, LOYALTY TO CLIENTS, AND
AVOIDING CONFLICTS OF INTEREST
2.501 Conflicts of Interest Generally
2.502 Examples of Conflicts of Interest
2.503 Conflict of Interest List
2.504 Business Transactions with Clients
2.505 Acquiring a Proprietary Interest in the
Subject
Matter of Litigation
2.506 Accepting Gifts from Clients
2.507 Concurrent Representation of Adverse
Clients in
Unrelated Matters
2.508 Undertaking Representation Adverse to
Another
Criminal Defense Client
2.509 Former Clients
2.510 Representing Multiple Clients in a
Single
Matter
2.511 Representing Entities and
Organizations
2.512 Representing Corporate Affiliates
2.513 Successive Government and Private
Employment
2.514 Providing Limited Pro Bono Services
2.515 Conflicts Between Insurer and
Insured
2.516 Petitioning for Guardianship for
Impaired Client
2.517 Conflicts Involving Governmental
Entities, Public
Officials, and Government Lawyers
2.518 Lawyer Serving as Lobbyist
2.519 Lawyer Serving on Corporate Board
2.520 Joint Representation of Husband and Wife
in an
Uncontested Divorce or Property Settlement
2.521 Client Referred from Mediation to Legal
Representation
2.522 Prospective Clients
2.523 Gifts or Financial Assistance to
Clients
2.6 CONFIDENTIALITY: PROTECTING CLIENT CONFIDENCES AND
SECRETS
2.601 Confidences and Secrets
2.602 Basic Rule of Confidentiality
2.603 Prospective Clients
2.604 Termination of Attorney-Client
Relationship or Death
of Client
2.605 Disclosures Permitted by Rule 1.6(b)
2.606 Mandatory Disclosures Under Rule
1.6(c)
2.607 Disclosure Obligations for Attorneys
Appearing Before
the Securities and Exchange Commission
2.7 FAIRNESS IN DEALING WITH OPPOSING AND THIRD PARTIES
2.701 Receiving Inadvertently Transmitted
Confidential
Information
2.702 Using Surreptitious Means to Acquire
Information
During Investigations
2.703 Communicating with Persons Represented
by
Counsel
2.704 Communicating with Adversary's
Expert
2.705 Communicating with Adversary's Health
Care
Provider
2.706 Dealing with Unrepresented Persons
2.8 SUMMARY AND REVIEW: AVOIDING BAR COMPLAINTS
2.801 Common Complaints Against Lawyers
2.802 Avoiding Complaints.
CHAPTER 3: LITIGATION: CIVIL AND CRIMINAL
3.1 CIVIL PRACTICE IN THE GENERAL DISTRICT COURTS
3.101 Jurisdiction
3.102 Venue and Service of Process
3.103 Institution of an Action
3.104 Specific Actions
3.105 Procedure in the General District
Court
3.106 Finality of Judgment
3.107 Satisfaction of Judgment
3.108 Substitution of Counsel
3.109 Withdrawal as Counsel
3.2 CIVIL PRACTICE--COURTS OF RECORD
3.201 Introduction
3.202 Proper Venue
3.203 Complaint
3.204 Service of Process
3.205 Defensive Pleadings
3.206 Discovery
3.207 Pretrial Motions
3.208 Scheduling Cases for Trial
3.209 Witnesses
3.210 Court Reporter
3.211 Initial Stage of Trial
3.212 Evidence
3.213 Motions During Trial
3.214 Nonsuit
3.215 Instructions and Argument
3.216 Verdicts and Motions After Verdict
3.217 Final Disposition of the Case
3.218 Settlement of Cases
3.219 Financial Settlement with Client
3.3 CRIMINAL DEFENSE
3.301 Introduction to the Criminal Process
3.302 Pretrial Proceedings
3.303 The Trial
3.4 JUVENILE LAW
3.401 Introduction
3.402 Pretrial Proceedings
3.403 Adjudicatory Hearing
3.404 Disposition Hearing
3.5 ALTERNATIVE DISPUTE RESOLUTION
3.501 Dispute Resolution Options
3.502 Primary ADR Processes
3.503 Comparison of Litigation and the Primary
ADR
Processes
3.504 Hybrid ADR Processes
3.505 Other ADR Processes
3.506 Benefits of Using ADR
3.507 The Lawyer's Role in ADR
3.508 Advising the Client About ADR
3.509 Explaining the Processes
3.510 Case Selection for ADR
3.511 Preparing the Client for Mediation
3.512 Persuading the Opposing Party to
Mediate
3.513 Timing of ADR
3.514 Selecting a Mediator
3.515 Participation in ADR
3.516 Reviewing the Agreement
APPENDIX 3-1: LIST OF STANDARD GENERAL DISTRICT COURT
FORMS
APPENDIX 3-2: COMPLAINT--VEHICLE ACCIDENT
APPENDIX 3-3: COMPLAINT--BODILY INJURY
APPENDIX 3-4: ORDER APPOINTING DEFENDANT'S ATTORNEY AS
GUARDIAN AD LITEM
APPENDIX 3-5: ORDER EXTENDING TIME TO FILE RESPONSIVE
PLEADINGS
APPENDIX 3-6: RESPONSIVE PLEADING
APPENDIX 3-7: DEMURRER
APPENDIX 3-8: MOTION OF DEFENDANT FOR A BILL OF
PARTICULARS
APPENDIX 3-9: SPECIAL PLEA OF THE STATUTE OF
LIMITATIONS
APPENDIX 3-10: ANSWER
APPENDIX 3-11: MOTION FOR SUMMARY JUDGMENT
APPENDIX 3-12: PRAECIPE
APPENDIX 3-13: REQUEST TO CLERK TO ISSUE SUBPOENAS
APPENDIX 3-14: JUDGMENT ORDER--BENCH TRIAL
APPENDIX 3-15: JUDGMENT ORDER--JURY VERDICT FOR
PLAINTIFF
APPENDIX 3-16: JUDGMENT ORDER--JURY VERDICT FOR
DEFENDANT
APPENDIX 3-17: DISMISSAL ORDER
APPENDIX 3-18: RELEASE OF ALL CLAIMS
APPENDIX 3-19: MOTION TO APPROVE COMPROMISE
SETTLEMENT--MINOR PLAINTIFF
APPENDIX 3-20: ANSWER OF DEFENDANT OFFERING
COMPROMISE
APPENDIX 3-21: ANSWER OF THE GUARDIAN AD LITEM
APPENDIX 3-22: ORDER APPROVING SETTLEMENT
APPENDIX 3-23: RECEIPTS
APPENDIX 3-24: JUDGMENT ORDER--WRONGFUL DEATH
SETTLEMENT
CHAPTER 4: EMPLOYMENT LAW: EMPLOYEE RIGHTS AND
EMPLOYER RESPONSIBILITIES
4.1 INTRODUCTION
4.2 FEDERAL CIVIL RIGHTS STATUTES
4.201 In General
4.202 42 U.S.C. sec. 1981
4.203 Title VII of the Civil Rights Act of
1964
4.3 THE VIRGINIA HUMAN RIGHTS ACT
4.4 AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)
4.5 AMERICANS WITH DISABILITIES ACT (ADA)
4.501 Scope
4.502 Aspects of Employment Covered
4.503 Qualified Individuals with
Disabilities
4.504 Duty of Reasonable Accommodation
4.505 Undue Hardship
4.506 Remedies Available
4.507 Business Necessity Defense
4.6 VIRGINIANS WITH DISABILITIES ACT (VDA)
4.7 FAIR LABOR STANDARDS ACT (FLSA)
4.701 In General
4.702 Wage and Hour Law
4.703 Coverage
4.704 Exceptions to Coverage
4.705 Exemptions from Minimum Wage and
Overtime
4.706 Effect of Job Requirements
4.707 Overtime Compensation
4.708 Time Worked
4.709 Workweek
4.710 Record-Keeping and Posting
4.711 Retaliation
4.712 Audits; Actions Against State
Employers
4.713 State Wage and Hour Law
4.714 State Wage Payment Laws
4.715 Child Labor
4.8 THE FEDERAL EQUAL PAY ACT
4.801 Sex-Based Wage Disparities
4.802 Employers and Employees Covered
4.803 Definition of Equal Work
4.804 Components of Equal Work
4.805 Retaliation
4.806 Employers' Defenses
4.9 THE FAMILY AND MEDICAL LEAVE ACT (FMLA)
4.901 In General
4.902 Coverage
4.903 Eligible Employees
4.904 Events That Trigger Entitlement to FMLA
Leave
4.905 Notice from Employee
4.906 Length and Timing of FMLA Leave
4.907 Paid or Unpaid Leave
4.908 Employee's Right to Return to Work
4.909 Returning Employee's Rights
4.910 Notice to Employees
4.911 Health Benefit Continuation
4.912 Other Benefits Required to Be
Continued
4.913 Medical Certifications
4.914 Employer Records
4.915 Other Employee Rights
4.10 UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS
ACT (USERRA)
4.1001 Military Leave
4.1002 Coverage
4.1003 Notice
4.1004 Cost of Benefits
4.1005 Waiver of Benefits
4.1006 Health Benefits
4.1007 Use of Paid Leave
4.1008 Reemployment
4.1009 Dishonorable Discharge
4.1010 Documentation
4.1011 Time Limits for Reporting or
Application
4.1012 Effect of Untimely Reporting or
Application
4.1013 Reemployment Position
4.1014 Reemployment Benefits
4.1015 Compliance Problems
4.1016 Reinstatement of Health Benefits
4.1017 Retention Rights
4.11 OCCUPATIONAL SAFETY AND HEALTH ACTS, FEDERAL AND STATE
(OSHA)
4.1101 Regulatory Framework
4.1102 State Enforcement
4.1103 Employer Coverage
4.1104 Employers' Primary Obligations
4.1105 Other Rights, Responsibilities, and
Duties
4.1106 Elements of an OSHA Violation
4.1107 Defenses
4.1108 Warrants
4.1109 Citations
4.1110 Contesting Citations
4.1111 Employee Coverage and Nondiscrimination
Rules
4.1112 Work Refusals
4.1113 Procedure for Discrimination Cases
4.1114 Remedies and Damages
4.12 UNIONS
4.1201 In General
4.1202 Protected Concerted Activity and Union
Organizing
4.1203 Preelection Campaigning
4.1204 Access to Employer's Property
4.1205 Duty to Bargain
4.1206 Purchases, Acquisitions, and the
Obligation to
Recognize the Union
4.1207 Unfair Labor Practice Charges
4.13 WORKERS' COMPENSATION
4.1301 Exclusive Remedy
4.1302 Respondeat Superior
CHAPTER 5: BUSINESS LAW
5.1 COMPARISON OF BUSINESS ENTITIES
5.101 Introduction
5.102 Sole Proprietorships
5.103 Corporations
5.104 General Partnerships
5.105 Limited Partnerships
5.106 Registered Limited Liability
Partnerships
5.107 Limited Liability Companies
5.108 Business Trusts
5.2 CORPORATIONS
5.201 The Virginia Stock Corporation Act
5.202 Articles of Incorporation
5.203 Capitalization; Shares of Stock
5.204 Directors, Officers, and Agents
5.205 Filing and Fees
5.206 Post-Incorporation Organization
5.207 Annual Reports and Fees
5.208 Domestication and Conversion
5.209 2005 Amendments
5.210 2006 Amendments
5.3 PARTNERSHIPS
5.301 Nature of Partnerships
5.302 Relations of Partners to Third
Parties
5.303 Relationship of Partners to Each Other
and to the
Partnership
5.304 Limited Liability Partnerships
5.305 Professional Service Limited Liability
Partnerships
5.4 LIMITED LIABILITY COMPANIES
5.401 In General
5.402 Nature of the LLC
5.403 Terminology
5.404 Structuring Issues
5.405 Nontax Issues
5.406 Tax Issues
5.407 Default Rules
5.408 Articles of Organization
5.409 Annual Registration Fee and Report
5.410 Ownership and Members
5.411 Operating Agreement
5.412 Management Structure
5.413 Financial Arrangements
5.414 Assignments of Membership Interests
5.415 2006 Amendments
5.5 CONTRACT DRAFTING PRINCIPLES
5.501 Goals and Strategies
5.502 Function of Contract
5.503 Top Ten Drafting Techniques
5.6 ANTITRUST CONSIDERATIONS
5.601 Overview
5.602 Competition During the Pendency of a
Transaction
5.603 Document Creation
5.604 Information Sharing
5.605 Drafting Considerations
APPENDIX 5-1: ARTICLES OF TRUST OF A DOMESTIC BUSINESS
TRUST
APPENDIX 5-2: ARTICLES OF INCORPORATION WITH INDEMNITY
PROVISIONS
APPENDIX 5-3: SCC FORM 619--ARTICLES OF INCORPORATION
APPENDIX 5-4: SCC FORM 631/830--APPLICATION FOR RESERVATION OR
FOR RENEWAL OF RESERVATION OF CORPORATE NAME
APPENDIX 5-5: SUBSCRIPTION LETTER
APPENDIX 5-6: SCC FORM 636/835--STATEMENT OF RESIGNATION OF
REGISTERED AGENT
APPENDIX 5-7: UNANIMOUS WRITTEN CONSENT IN LIEU OF
ORGANIZATIONAL MEETING
APPENDIX 5-8: CORPORATION BYLAWS
APPENDIX 5-9: PARTNERSHIP AGREEMENT
APPENDIX 5-10: SCC FORM UPA-132--STATEMENT OF REGISTRATION AS A
DOMESTIC REGISTERED LIMITED LIABILITY PARTNERSHIP
APPENDIX 5-11: SCC FORM UPA-136--STATEMENT OF AMENDMENT OF A
STATEMENT OF REGISTRATION OF A DOMESTIC OR FOREIGN
REGISTERED LIMITED LIABILITY PARTNERSHIP
APPENDIX 5-12: SCC FORM UPA-137--STATEMENT OF CANCELLATION OF
A STATEMENT OF REGISTRATION OF A DOMESTIC REGISTERED LIMITED
LIABILITY PARTNERSHIP
APPENDIX 5-13: OPERATING AGREEMENT WITH BUY-SELL PROVISION
AND OPTIONAL MANAGER-MANAGEMENT PROVISIONS
APPENDIX 5-14: ARTICLES OF ORGANIZATION
APPENDIX 5-15: SCC FORM LLC-1010.1--ARTICLES OF ORGANIZATION FOR
CONVERSION OF A DOMESTIC OR FOREIGN PARTNERSHIP OR LIMITED
PARTNERSHIP TO A LIMITED LIABILITY COMPANY
APPENDIX 5-16: IDENTIFICATION OF PARTIES
APPENDIX 5-17: COVENANT NOT TO COMPETE
APPENDIX 5-18: DISTRIBUTOR'S ASSURANCES TO SUPPLIER
APPENDIX 5-19: STATED OBLIGATIONS
APPENDIX 5-20: LIMITATION OF LIABILITY; INDEMNIFICATION
APPENDIX 5-21: INDEMNIFICATION
APPENDIX 5-22: INSURANCE
APPENDIX 5-23: REPRESENTATIONS AND WARRANTIES
APPENDIX 5-24: SURVIVAL PROVISION
APPENDIX 5-25: COVENANTS
APPENDIX 5-26: CONDITIONS
APPENDIX 5-27: DISPUTE RESOLUTION
CHAPTER 6: FAMILY LAW
6.1 DIVORCE
6.101 Jurisdiction
6.102 Venue
6.103 Special Parties
6.104 Pro Bono Legal Assistance
6.105 Divorce from Bed and Board (a mensa et
thoro)
6.106 Pendente Lite Relief
6.107 Divorce--Final
6.108 Motions
6.109 Information-Gathering and Discovery
6.110 Presenting Evidence
6.111 Merger of Divorce from Bed and Board
into Final
Divorce
6.112 Divorce Decree--Final (a vinculo
matrimonii)
6.2 CHILD CUSTODY AND VISITATION
6.201 Introduction
6.202 Jurisdiction
6.203 Venue
6.204 Types of Custody
6.205 Factors for Court to Consider
6.206 Parties and Standards
6.207 Gathering Information
6.208 Pleading
6.209 Service of Process and Notice
6.210 Guardian Ad Litem
6.211 Standby Guardianship
6.212 Court-Appointed Special Advocate
6.213 Pendente Lite Relief
6.214 Discovery
6.215 Adjudication
6.216 Orders and Decrees
6.217 Post-Decree Issues
6.218 Virginia Military Parents Equal
Protection Act
6.3 SPOUSAL AND CHILD SUPPORT
6.301 Introduction
6.302 Jurisdiction
6.303 Venue
6.304 Pleading
6.305 Service of Process and Notice
6.306 Information-Gathering and Discovery
6.307 Spousal Support and Maintenance
6.308 Child Support
6.309 Pendente Lite Relief
6.310 Orders and Decrees
6.311 Appeal from the Juvenile and Domestic
Relations
District Court
6.312 Uniform Interstate Family Support
Act
6.4 ADOPTION
6.401 Introduction
6.402 Placement for Adoption
6.403 Jurisdiction and Venue
6.404 Agency Placement Adoptions
6.405 Stepparent Adoptions
6.406 "Close Relative" Adoptions
6.407 Parental Placement Adoptions
6.408 Adult Adoptions
6.409 Interstate Adoptions
6.410 International Adoptions
6.411 Foster Care Placement Adoptions
6.412 Special Needs Adoptions
APPENDIX 6-1: ACCEPTANCE OF SERVICE OF PROCESS AND WAIVER OF
FUTURE SERVICE OF PROCESS AND NOTICE
APPENDIX 6-2: COMPLAINT FOR DIVORCE A MENSA ET THORO
APPENDIX 6-3: COMPLAINT--ONE YEAR SEPARATION--INCORPORATING
AGREEMENT
APPENDIX 6-4: COMPLAINT--ONE YEAR SEPARATION--NO AGREEMENT--
COLLATERAL ISSUES PLEADED
APPENDIX 6-5: DECREE--SEPARATION OF ONE YEAR
APPENDIX 6-6: PRIVATE ADDENDUM TO FINAL DECREE OF
DIVORCE
APPENDIX 6-7: CLAUSE GRANTING SOLE CUSTODY--SPECIFIED
VISITATION
APPENDIX 6-8: ORDER OF SUPPORT--CHILD AND SPOUSAL (COMPUTER
GENERATED)
APPENDIX 6-9: PETITION FOR ADOPTION
APPENDIX 6-10: INTERLOCUTORY ORDER
APPENDIX 6-11: ORDER OF REFERENCE
APPENDIX 6-12: FINAL ORDER OF ADOPTION
APPENDIX 6-13: FINAL ORDER OF ADOPTION AFTER INTERLOCUTORY
ORDER
CHAPTER 7: THE LAW OF DEFAMATION
7.1 INTRODUCTION
7.2 NATURE OF THE COMMUNICATION
7.201 In General
7.202 Civil Versus Criminal Defamation
7.203 Libel Versus Slander
7.204 Liability for Third Party's
Defamation
7.205 United Kingdom Law
7.3 PUBLICATION OF THE COMMUNICATION
7.301 In General
7.302 Intra-Corporate Communication
7.303 Other Publication Issues
7.304 Repetition by the Alleged Defamer
7.305 Republication by Others
7.306 Failure to Act as Actionable
"Publication"
7.307 Role of Court and Jury
7.4 INTERPRETING THE COMMUNICATION
7.401 Basic Rules
7.402 Print Media
7.403 Role of Court and Jury
7.5 FACT VERSUS OPINION
7.501 In General
7.502 Federal Constitutional Protection
7.503 Virginia Constitutional Protection
7.504 Four-Part Test
7.505 Difficulty of Drawing the Line
7.506 Relationship Between Opinion and
Facts
7.507 New Virginia Supreme Court Cases
7.508 Examples of Actionable Statements of
Fact
7.509 Examples of Nonactionable Opinion.
7.510 Workplace Defamation
7.511 Rhetorical Hyperbole
7.512 Role of Court and Jury
7.6 DEFAMATORY MEANING
7.601 In General
7.602 Per Se Versus Per Quod Defamation
7.603 Elements
7.604 Difficulty of Drawing the Line
7.605 Examples of Communications Capable of
Defamatory
Meaning
7.606 Examples of Communications Not Capable
of
Defamatory Meaning
7.607 Job Evaluations and Terminations
7.608 Role of Court and Jury
7.7 TRUTH VERSUS FALSITY
7.701 In General
7.702 Burden of Proof
7.703 "Substantial Truth"
7.704 Examples of Technically False but
"Substantially
True" Statements
7.705 True Statements With Defamatory
Implications
7.706 Truthful Transmission of a Third Party's
Defamation
Without Endorsement
7.707 True Statements Believed to Be False
7.708 Binding Nature of Plaintiff's Admission
of Truth
7.709 Role of Court and Jury
7.8 DEFAMATION BY IMPLICATION
7.801 In General
7.802 Virginia Approach
7.803 Examples of Statements Carrying
Defamatory
Implication
7.804 Intent
7.805 Role of Court and Jury
7.9 DEFAMATION PER SE
7.901 In General
7.902 Categories
7.903 Special Damages.
7.904 Examples of Communications Constituting
Defamation Per Se
7.905 Examples of Communications Not
Constituting
Defamation Per Se
7.906 Confusion About the Per Se Doctrine
7.907 Workplace Defamation
7.908 Defamation of Corporations
7.909 Continuing Importance of the
Doctrine
7.910 Role of Court and Jury
7.10 WORK-RELATED DEFAMATION
7.1001 In General
7.1002 Federal Labor Law Preemption
7.1003 Federal ERISA Preemption
7.1004 Workers' Compensation Law
7.1005 Arbitration Agreements
7.1006 Compulsory Counterclaims
7.1007 Other Issues
7.11 RELATIONSHIP TO OTHER CLAIMS
7.1101 In General
7.1102 Constitutional Torts
7.1103 Insulting Words
7.1104 Right to Privacy and "False Light"
7.1105 Misappropriation of Name or Likeness
for
Commercial Purposes
7.1106 Other Common Law Tort Claims by Public
Plaintiffs
7.1107 Intentional Infliction of Emotional
Distress
7.1108 Intentional Interference with
Contract
7.1109 Torts Focusing on the Newsgathering
Process
7.1110 Statutory Conspiracy
7.1111 Contracts
7.1112 RICO Claims
7.12 STATUTE OF LIMITATIONS
7.1201 In General
7.1202 Publication
7.1203 "Single Publication" Rule
7.1204 Accrual Based on Extrinsic Events
7.1205 Republication
7.1206 Actions Based on Third Party's
Communication
7.1207 Pleading Exact Words as Creating a New
Cause of
Action
7.1208 Tolling of the Statute of
Limitations
7.1209 Simultaneous Criminal and Civil
Cases
7.1210 Choice of Law
7.1211 Role of Court and Jury
7.13 SUBJECT OF THE COMMUNICATION
7.1301 Introduction
7.1302 "Of and Concerning" Test
7.1303 Categories of Subjects
7.1304 Public Versus Private
7.1305 Corporate Plaintiffs
7.1306 "Libel-Proof" Doctrine and Related
Concepts
7.1307 Product Disparagement
7.1308 Slander of Title
7.1309 Food Disparagement
7.1310 Role of Court and Jury
7.14 ABSOLUTE PRIVILEGE
7.1401 In General
7.1402 Governments and Their Employees
7.1403 Statutory Absolute Privilege
7.1404 Church Matters
7.1405 Legislators
7.1406 Mandated Statements
7.1407 Judicial Proceedings
7.1408 Quasi-Judicial Proceedings
7.1409 Context of the Statements: Peripheral
Communications
7.1410 Role of Court and Jury
7.15 QUALIFIED PRIVILEGE
7.1501 In General
7.1502 Statutory Qualified Privilege
7.1503 Common Law Qualified Privilege
Generally
7.1504 Abuse of the Privilege
7.1505 Fair Reports of Public Records
7.1506 Comment on Matters of Public
Concern
7.1507 Role of Court and Jury
7.16 FAULT: DEFINING THE STANDARDS
7.1601 Introduction
7.1602 Constitutional Malice
7.1603 Negligence
7.17 FAULT: PUBLIC PLAINTIFFS
7.1701 In General
7.1702 History
7.1703 New York Times Doctrine
7.1704 Defamatory Implication
7.1705 Defendants Who Deny Making the Alleged
Statements
7.1706 Burden of Proof
7.1707 Role of Court and Jury
7.18 FAULT: PRIVATE PLAINTIFFS
7.1801 In General
7.1802 The Virginia Standard Generally
7.1803 Applying the Standard
7.1804 Role of Court and Jury
7.19 IMPUTED LIABILITY
7.1901 In General
7.1902 Corporations
7.1903 Agent's Individual Liability
7.1904 Principal's Primary Liability for Third
Party's
Defamation
7.1905 Compensatory Damages
7.1906 Punitive Damages
7.20 DAMAGES
7.2001 In General
7.2002 Presumed Damages
7.2003 Compensatory Damages
7.2004 Punitive Damages
7.2005 Statutory Mitigation
7.21 LITIGATION: PRELIMINARY ISSUES
7.2101 In General
7.2102 Arbitration
7.2103 Standing
7.2104 Suing the Right Defendant
7.2105 Subject Matter Jurisdiction: Federal
Courts
7.2106 Subject Matter Jurisdiction: State
Courts
7.2107 Personal Jurisdiction
7.2108 Long-Arm Jurisdiction: Traditional
Rules
7.2109 Long-Arm Jurisdiction: Internet
Defamation
7.2110 Venue
7.2111 Choice of Laws
7.22 LITIGATION: INITIAL PLEADINGS AND SUMMARY DISPOSITIONS
7.2201 In General
7.2202 Initial Pleading: Identifying the Exact
Defamatory
Statement
7.2203 Initial Pleading: Other Specificity
Requirements
7.2204 Statutory Provisions
7.2205 Court as Gatekeeper
7.2206 Demurrers
7.2207 Repleading
7.2208 Nonsuits
7.2209 Motions to Strike
7.2210 Summary Judgment
7.23 LITIGATION: OTHER ISSUES
7.2301 In General
7.2302 Discovery
7.2303 Dilemma Facing Defendants Who Deny
Making the
Defamatory Statements
7.2304 Reporter's Privilege
7.2305 Judicial Estoppel
7.2306 Collateral Estoppel
7.2307 Injunctions
7.2308 Consent
7.2309 Evidentiary Issues
7.2310 Jury Instructions
7.2311 Avoiding Constitutional Issues
7.24 LITIGATION: APPEALS
7.2401 In General
7.2402 Standard of Review
7.2403 Damages
7.2404 Remittitur
7.25 PRACTICAL CONSIDERATIONS
7.2501 In General
7.2502 Mirage of Substantial Damages
7.2503 "Skeletons in the Closet"
7.2504 Media Defendants' Ability to Declare a
Victory
7.2505 Conclusion
INDEX
Volume II
CHAPTER 8: INTELLECTUAL PROPERTY
8.1 TRADE SECRETS
8.101 Introduction
8.102 What Is a Trade Secret?
8.103 Protecting and Maintaining Trade
Secrets
8.104 Limiting Disclosure of Trade Secrets
8.105 Nondisclosure Agreements
8.106 Misappropriation of Trade Secrets
8.107 Remedies for Misappropriation of Trade
Secrets
8.108 Defenses to Misappropriation of Trade
Secrets
8.109 Term of Trade Secret Protection
8.110 Trade Secret Versus Other Forms of
Intellectual
Property Protection
8.2 COPYRIGHTS
8.201 Introduction
8.202 What Is a Copyright?
8.203 Creation and Ownership of Copyrighted
Works
8.204 Copyright Protection Begins upon
Creation of Work in
Fixed Form
8.205 Copyright Notice
8.206 Moral Rights
8.207 Copyright Registration
8.208 Copyright Registration Procedures
8.209 Benefits of Copyright Registration
8.210 Term of Copyright
8.211 Copyright Searching
8.212 Copyright Licenses, Transfers, and
Assignments
8.213 Uniform Computer Information
Transactions
Act
8.214 Security Interests in Copyrights
8.215 Copyright Infringement
8.216 Digital Millennium Copyright Act
8.217 Defenses to Copyright Infringement
8.218 Remedies for Copyright Infringement
8.219 Copyright Versus Other Forms of
Intellectual
Property Protection
8.3 TRADEMARKS
8.301 Introduction
8.302 What Is a Trademark?
8.303 Types of Marks
8.304 Selecting a Trademark
8.305 Spectrum of Distinctiveness
8.306 Ownership and Use of Trademarks
8.307 Converging Use of Trademarks
8.308 Registration of Trademarks
8.309 Federal Trademark Examination
Process
8.310 Publication Period for Federal
Trademarks
8.311 Issuance of Federal Registration
8.312 Issuance of Federal Notice of
Allowance
8.313 Federal Trademark Registration
Symbol
8.314 Benefits of Federal Trademark
Registration
8.315 Federal Trademark Maintenance and
Renewal
Filings
8.316 International Trademark Registration:
The Madrid
Protocol
8.317 Virginia Trademark Registration
Process
8.318 Benefits of State Trademark
Registration
8.319 Virginia Trademark Renewal Filings
8.320 Maintaining Trademark Rights
8.321 Term of Trademark Rights
8.322 Transfer, Assignment, and Licensing of
Trademarks
8.323 Trademark Infringement Generally
8.324 Trademark Infringement in the Fourth
Circuit
8.325 Trademark Infringement in Virginia
8.326 Defenses to Trademark Infringement
8.327 Anticybersquatting Consumer Protection
Act
8.328 Remedies for Trademark Infringement
8.329 Alternative Dispute Resolution
8.330 Trademark Dilution
8.331 Remedies for Trademark Dilution
8.332 Trademark Versus Other Forms of
Intellectual
Property Protection
8.4 PATENTS
8.401 Introduction
8.402 What Is a Patent?
8.403 Invention Creation and Patent
Ownership
8.404 Preservation of Patent Rights
8.405 Who May File a Patent Application?
8.406 Patent Examination Process
8.407 Benefits of Patenting
8.408 Categories of United States Patents
8.409 Types of Patent Applications
8.410 Patentability of Inventions
8.411 Patent Term
8.412 Patent Marking
8.413 Patent Licensing
8.414 Creating and Evaluating a Security
Interest in
Patents
8.415 Intellectual Property Valuation
8.416 Patent Infringement
8.417 Test for Infringement
8.418 Remedies for Patent Infringement
8.419 Defenses to Patent Infringement
8.420 Patent Versus Other Forms of
Intellectual Property
Protection
APPENDIX 8-1: INTELLECTUAL PROPERTY ASSIGNMENT
AGREEMENT FOR NEWLY HIRED EMPLOYEES
APPENDIX 8-2: MUTUAL NONDISCLOSURE AGREEMENT
(TRANSACTIONAL)
APPENDIX 8-3: NONDISCLOSURE AGREEMENT
(DEVELOPMENT OF INTELLECTUAL PROPERTY)
APPENDIX 8-4: COPYRIGHT ASSIGNMENT AGREEMENT
(SOFTWARE)
APPENDIX 8-5/6: COPYRIGHT REGISTRATION APPLICATION FOR A
NONDRAMATIC LITERARY WORK (FORM TX)
APPENDIX 8-7: CLICKWRAP LICENSE AGREEMENT FOR
INTERNET ACCESSIBLE SOFTWARE
APPENDIX 8-8: COPYRIGHT ASSIGNMENT AGREEMENT (PLAY)
APPENDIX 8-9: SOFTWARE DEVELOPMENT AND CONSULTING
AGREEMENT
APPENDIX 8-10: TRADEMARK CERTIFICATE OF REGISTRATION
APPENDIX 8-11: TRADEMARK CEASE AND DESIST LETTER
APPENDIX 8-12: TRADEMARK ASSIGNMENT AGREEMENT
APPENDIX 8-13: REGISTERED UTILITY PATENT
APPENDIX 8-14: SIMPLE INVENTION RIGHTS ASSIGNMENT
BY EMPLOYEE TO EMPLOYER
CHAPTER 9: REPRESENTING DEBTORS AND CREDITORS
9.1 FAIR DEBT COLLECTION PRACTICES ACT
9.101 In General
9.102 Applicability
9.103 Required Disclosures
9.104 Time Limits
9.105 Restrictions on Communications
9.106 Harassment or Abuse
9.107 False or Misleading Representations
9.108 Unfair Practices
9.109 Application of Payments
9.110 Venue
9.111 Enforcement.
9.112 Civil Liability
9.113 Bankruptcy Cases
9.2 BRINGING SUIT TO COLLECT A DEBT
9.201 Introduction
9.202 Choice of State or Federal Court
9.203 Choice of Circuit or General District
Court
9.204 Venue
9.205 Identifying the Parties
9.206 Service of Process
9.207 Civil Warrant or Motion for Judgment
Under Section
8.01-28
9.208 Confession of Judgment
9.209 Suit for Money Judgment in General
District
Court
9.210 Courtroom Proceedings in General
District
Court
9.211 Actions in Circuit Court
9.3 ENFORCEMENT OF JUDGMENT LIENS
9.301 Introduction
9.302 Enforcing an Equitable Decree
9.303 Perfecting a Judgment Lien on Real
Estate
9.304 Execution Against Tangible Personal
Property
9.305 Execution Against Intangible Personal
Property
9.306 Garnishment
9.307 Interrogatories to a Debtor
9.308 Creditor's Suit to Enforce a Judgment
Lien
9.309 Suspension of Driving Privileges
9.4 ENFORCEMENT OF SECURITY INTERESTS
9.401 In General
9.402 Importance of the Security Agreement
9.403 Possession
9.404 Bankruptcy
9.405 Duties of a Secured Party in
Possession
9.406 Sale or Other Disposition
9.407 Private Sale
9.408 Public Sale
9.409 Acceptance of Collateral in Full or
Partial Satisfaction
of Obligation
9.410 Disposition of Consumer Goods and
Investment
Securities
9.411 Application of Proceeds of Sale or Other
Disposition
9.412 Right of Redemption
9.413 Debtor's Remedies for Improper
Disposition
9.414 "Lender Liability" Issues
9.5 REAL PROPERTY FORECLOSURES
9.501 Deed of Trust
9.502 Trustee
9.503 How the Lien Is Established
9.504 Priorities
9.505 Right of Redemption
9.506 The Decision to Foreclose
9.507 Gathering Documentation
9.508 Notice of Sale
9.509 Substitute Trustee
9.510 Review of Liens and Other Matters
9.511 Mechanics' Liens
9.512 Title Company's Liability for Title
Reports
9.513 Federal Tax Lien
9.514 Advertisement of Sale
9.515 Conduct of Sale
9.516 Settlement
9.517 Accounting
9.518 Deed in Lieu of Foreclosure
9.519 Recent Legislation
9.520 Conclusion
APPENDIX 9-1: COVER LETTER
APPENDIX 9-2: FAIR DEBT COLLECTION PRACTICES ACT
(FDCPA) NOTICE
APPENDIX 9-3: AFFIDAVIT OF SERVICE BY SPECIAL PROCESS
SERVER
APPENDIX 9-4: NOTICE AND MOTION FOR JUDGMENT
APPENDIX 9-5: BILLS OF PARTICULARS
APPENDIX 9-6: NOTICE OF LIEN
APPENDIX 9-7: COMPLAINT
APPENDIX 9-8: NOTICE--MOTION FOR APPOINTMENT OF COMMISSIONER
IN CHANCERY
APPENDIX 9-9: DECREE OF REFERENCE APPOINTING A COMMISSIONER
IN CHANCERY
APPENDIX 9-10: NOTICE THAT COMMISSIONER IN CHANCERY
WILL FILE REPORT
APPENDIX 9-11: REPORT OF COMMISSIONER IN CHANCERY
APPENDIX 9-12: DECREE FOLLOWING COMMISSIONER'S
REPORT (APPROVING THE REPORT, APPOINTING A
SPECIAL COMMISSIONER, AND ORDERING SALE OF
THE PROPERTY)
APPENDIX 9-13: ADVERTISEMENT OF SALE
APPENDIX 9-14: NOTICE--MOTION TO CONFIRM SALE
APPENDIX 9-15: DECREE CONFIRMING SALE
APPENDIX 9-16: SUPPLEMENTAL REPORT OF COMMISSIONER
IN CHANCERY
APPENDIX 9-17: NOTICE--MOTION TO CONFIRM REPORT OF SPECIAL
COMMISSIONER
APPENDIX 9-18: REPORT OF SPECIAL COMMISSIONER
APPENDIX 9-19: SPECIAL WARRANTY DEED
APPENDIX 9-20: SECOND REPORT OF SPECIAL
COMMISSIONER
APPENDIX 9-21: DECREE CONFIRMING REPORT AND
DISCHARGING SPECIAL COMMISSIONER
APPENDIX 9-22: "DEFAULT" PROVISION FOR SECURITY
AGREEMENT
APPENDIX 9-23: PROVISION FOR SECURITY AGREEMENT
COVERING ACCOUNTS, CHATTEL PAPER, OR
INSTRUMENTS
APPENDIX 9-24: PROVISION FOR AGREEMENT REQUIRING
THE COLLATERAL TO BE ASSEMBLED AT A GIVEN
LOCATION
APPENDIX 9-25: ACKNOWLEDGMENT OF DEFAULT AND
WAIVER OF RIGHTS OF REDEMPTION AND
NOTIFICATION OF SALE
APPENDIX 9-26: PROVISION FOR AGREEMENT ALLOWING THE SECURED
PARTY TO ENTER THE DEBTOR'S PREMISES
APPENDIX 9-27: VERIFIED PETITION FOR ENTRY OF AN ORDER
OF SEIZURE IN DETINUE
APPENDIX 9-28: ORDER OF SEIZURE IN DETINUE
APPENDIX 9-29: NOTICE OF SALE OR OTHER DISPOSITION
APPENDIX 9-30: ACCELERATION LETTER WITH 30-DAY FDCPA
(FIRST COMMUNICATION) LANGUAGE
APPENDIX 9-31: AFFIDAVIT OF NONMILITARY STATUS
APPENDIX 9-32: LOST NOTE AFFIDAVIT
APPENDIX 9-33: LOST NOTE LETTER
APPENDIX 9-34: ENGAGEMENT LETTER
APPENDIX 9-35: NOTICE OF SALE LETTER
APPENDIX 9-36: NOTICE TO CONDOMINIUM OWNERS'
ASSOCIATION
APPENDIX 9-37: TRUSTEES' APPOINTMENT DEED
APPENDIX 9-38: PETITION FOR AID AND DIRECTION
APPENDIX 9-39: REQUEST FOR TITLE REPORT (AND
COMMITMENT)
APPENDIX 9-40: NOTICE TO INTERNAL REVENUE SERVICE
APPENDIX 9-41: INTERNAL REVENUE SERVICE RIGHT OF
REDEMPTION
APPENDIX 9-42: NOTICE OF TRUSTEES' SALE--RESIDENTIAL
APPENDIX 9-43: SUBJECT TO PROVISION (CONDOMINIUM)
APPENDIX 9-44: AS IS DISCLAIMER
APPENDIX 9-45: FORFEITURE AND NEXT HIGHEST BIDDER
PROVISION
APPENDIX 9-46: CLOSING PROVISIONS
APPENDIX 9-47: MEMORANDUM OF SALE
APPENDIX 9-48: TRUSTEE'S DEED
APPENDIX 9-49: LETTER TO COMMISSIONER OF ACCOUNTS
CHAPTER 10: CONSUMER LAW
10.1 VIRGINIA LAW
10.101 Introduction
10.102 Regulation of Interest Rates and Other
Charges
10.103 Virginia Laws Relating to Mortgage
Loans
10.104 Requirements of the Consumer Finance
Act
10.105 Miscellaneous Laws Relating to Consumer
Credit
Transactions and Consumer Protection
10.106 Privacy
10.107 Electronic Commerce
10.2 FEDERAL LAW
10.201 Introduction
10.202 Truth in Lending
10.203 Equal Credit Opportunity Act
10.204 Fair Credit Reporting Act
10.205 Fair Debt Collection Practices Act
10.206 Real Estate Settlement Procedures
Act
10.207 Electronic Fund Transfer Act
10.208 Magnuson-Moss Warranty: Federal Trade
Commission Improvement Act
10.209 Interstate Land Sales Full Disclosure
Act
10.210 Flood Disaster Protection
10.211 The Gramm-Leach-Bliley Act: A Federal
Law
Protecting the Privacy of Consumer Financial Information
10.212 Right to Financial Privacy Act
10.213 Preservation of Consumers' Claims and
Defenses
10.214 Credit Practices Rule
10.215 Cooling-Off Period for Door-To-Door
Sales
10.216 Miscellaneous
CHAPTER 11: REAL ESTATE PRACTICE
11.1 RESIDENTIAL REAL ESTATE CLOSINGS
11.101 Legislation Affecting Real Estate
Closings
11.102 Representing the Purchaser
11.103 The Closing
11.104 Post-Closing
11.105 Representing the Seller
11.2 RESIDENTIAL LEASES
11.201 Common Law Principles
11.202 Exceptions to Common Law Principles
11.203 The Virginia Residential Landlord and
Tenant
Act
11.204 Rental Agreements
11.205 Landlord Obligations Under VRLTA
11.206 Tenant Obligations
11.207 Tenant Remedies
11.208 Landlord Remedies
11.209 Retaliatory Action
11.210 Manufactured Home Lot Rental Act
11.211 Residential Lead-Based Paint
Regulations
APPENDIX 11-1: SETTLEMENT STATEMENT--HUD-1
APPENDIX 11-2: RESIDENTIAL PROPERTY DISCLOSURE STATEMENT
APPENDIX 11-3: PURCHASER'S REPRESENTATION INFORMATION
AND CHECKLIST
APPENDIX 11-4: RESIDENTIAL CONTRACT OF PURCHASE--
VBA FORM
APPENDIX 11-5: SAMPLE OWNERS' AFFIDAVIT AS TO MECHANICS' LIENS
AND POSSESSION
APPENDIX 11-6: AFFIDAVIT THAT TRANSFEROR IS NOT
FOREIGN NONINDIVIDUAL FOR PURPOSE OF
WITHHOLDING OF TAX
APPENDIX 11-7: AFFIDAVIT THAT TRANSFEROR IS NOT
FOREIGN INDIVIDUAL FOR PURPOSE OF
WITHHOLDING OF TAX
APPENDIX 11-8: FORM R-5
APPENDIX 11-9: FORM R-5E
APPENDIX 11-10: CERTIFICATE OF RESIDENCY
APPENDIX 11-11: FORM 1099-S
APPENDIX 11-12: SELLER'S REPRESENTATION INFORMATION
AND CHECKLIST
APPENDIX 11-13: RESIDENTIAL LEASE AGREEMENT--
VRLTA FORM
APPENDIX 11-14: GENERAL WARRANTY DEED: VBA FORM
APPENDIX 11-15: SUMMONS FOR UNLAWFUL DETAINER
APPENDIX 11-16: REQUEST FOR WRIT OF POSSESSION IN UNLAWFUL
DETAINER PROCEEDINGS
APPENDIX 11-17: DISTRESS PETITION
APPENDIX 11-18: COVER SHEET FOR FILING CIVIL ACTIONS
CHAPTER 12: EMINENT DOMAIN
12.1 SCOPE OF CHAPTER
12.2 OVERVIEW
12.201 History
12.202 Fundamental Principles of Government
Takings
12.203 United States Constitution
12.204 Virginia Constitution
12.3 LIMITATIONS ON POWER
12.301 Limitations on Public Use
12.302 Limitations on Delegation of Power
12.4 PROCEDURE
12.401 In General
12.402 Right of Entry for Preliminary Site
Inspections
12.403 Disputes Regarding Entry
12.404 Jurisdictional Prerequisites for
Condemnation
Petitions
12.405 Quick-Take
12.406 Commencement of Quick-Take
Proceedings
12.407 Jurisdiction of Condemnation
Proceedings
12.408 Petition for Condemnation
12.409 Answer and Defenses to the Take
12.410 Failure to File an Answer
12.411 Owner Under Legal Disability
12.412 Amendments to Pleadings
12.413 Intervention of Interested Parties
12.414 Participation of Tenants in Proceedings
to Determine
Just Compensation
12.415 Pretrial Settlement Conference
12.416 Jurisdictional Hearing
12.417 Disputes over Ownership
12.418 Right of Entry After Filing a Petition
for
Condemnation
12.419 Selection of Jury
12.420 Exceptions to Jurors' Report
12.421 Judgment and Post-Judgment
Procedures
12.422 Distribution of Money Paid into
Court
12.423 Interest on the Award of Just
Compensation
12.424 Recovery of Costs and Fees
12.425 Real Property Acquisition Policies
12.426 Reimbursement of Attorney Fees in
Special Cases:
Condemnation, Abandonment, Dismissal, and Inverse Condemnation
12.5 COUNTIES, CITIES, AND TOWNS
12.501 In General
12.502 Condemnation Resolutions
12.503 County's Use of Quick-Take
Procedures
12.504 Special Procedures for Establishing or
Altering
Roads and Bridges
12.6 VIRGINIA DEPARTMENT OF TRANSPORTATION
12.601 In General
12.602 Negotiations Before Condemnation
12.603 Valuation Criteria for Enhancement or
Damage to
the Residue
12.604 Draw Down of Funds on Deposit
12.605 Remedy for VDOT's Failure to Initiate
Condemnation Proceedings
12.606 Interest on Awards or Draw Downs
12.607 Owner Reacquisition of Property
12.7 REDEVELOPMENT AND HOUSING AUTHORITIES
12.701 In General
12.702 Conservation Plans
12.703 Industrial Development
12.704 Time Limitations on Redevelopment
Plans
12.8 VALUATION
12.801 Introduction
12.802 Fair Market Value
12.803 Alternate Valuations
12.804 Valuation Formula
12.805 Highest and Best Use
12.806 Use and Marketability
12.807 Enhancement Benefits
12.808 Project Influence on Appreciation and
Depreciation
12.809 Unity of Parcels
12.810 Probability of Rezoning
12.811 Raw, Unimproved, or Undeveloped
Land
12.812 Valuation of Property as a Whole
12.813 Special Purpose Properties
12.814 Fixtures and Improvements
12.815 Timber, Crops, and Minerals
12.816 Business Losses
12.817 Temporary Takings
12.818 Damages Without Comparable Sales
12.819 Contractor Negligence
12.820 Standards of Compensability
12.821 Cost to Cure
12.822 Compensability of Specific Elements of
Damage or
Loss
12.823 Access to and from the Property
12.824 Inconvenience
12.825 Evidence
12.826 Owner's Testimony
12.827 The Appraiser
12.828 Predicate Witnesses
12.829 Speculative or Remote Valuation
12.9 INVERSE CONDEMNATION
12.901 Traditional Inverse Condemnation
12.902 Statute of Limitations
12.903 Kitchen v. City of Newport News
12.10 REGULATORY TAKINGS
12.1001 In General
12.1002 Substantive Due Process
12.11 TAX ASPECTS OF CONDEMNATION PROCEEDS
12.12 PRECONDEMNATION ADVICE FOR OWNERS
12.13 RELOCATION ASSISTANCE
12.1301 In General
12.1302 Reimbursement for Moving Residential
Personal
Property
12.1303 Supplement for Purchase of Comparable
Home or
Site of Business
12.1304 Supplemental Payment for Replacement
Rental
Housing
12.1305 Lump-Sum Payment to Business for
Moving
Expenses
12.1306 Business Reestablishment Expenses
12.1307 Payment to Businesses for Loss of
Tangible
Personal Property
12.1308 Last Resort Housing
APPENDIX 12-1: GOVERNMENT AGENCIES AND PUBLIC UTILITIES WITH
POWER OF EMINENT DOMAIN AND THEIR AUTHORIZING LEGISLATIVE
ACTS
APPENDIX 12-2: CERTIFICATE OF PARTIAL SATISFACTION
APPENDIX 12-3: TRUSTEE(S) AND BENEFICIARY CONSENT
APPENDIX 12-4: SUBORDINATION AGREEMENT
APPENDIX 12-5: PETITION PURSUANT TO SECTION 33.1-124 OF THE
VIRGINIA CODE (BEFORE SUIT FILED)
APPENDIX 12-6: ORDER ENTERED PURSUANT TO SECTION 33.1-124 OF
THE VIRGINIA CODE (BEFORE SUIT FILED)
APPENDIX 12-7: PETITION PURSUANT TO SECTION 33.1-124 OF THE
VIRGINIA CODE (AFTER SUIT FILED)
APPENDIX 12-8: ORDER ENTERED PURSUANT TO SECTION 33.1-124 OF
THE VIRGINIA CODE (AFTER SUIT FILED)
CHAPTER 13: ESTATE PLANNING AND ADMINISTRATION
13.1 INTRODUCTION TO ESTATE PLANNING
13.2 STARTING THE PROCESS
13.201 Initial Contact
13.202 Scheduling the Interview
13.3 COLLECTING INFORMATION
13.301 What Information to Ask For
13.302 How to Ask for Information
13.4 RECOGNIZING ETHICAL DILEMMAS
13.5 CONDUCTING THE INTERVIEW
13.6 MAPPING THE PLAN
13.7 FORMS OF OWNERSHIP
13.701 Fee Simple
13.702 Tenants in Common
13.703 Joint Tenants with Right of
Survivorship
13.704 Tenants by the Entirety
13.705 Community Property
13.706 Payable on Death Accounts
13.707 Transfer on Death Accounts
13.8 SPOUSE'S ELECTIVE SHARE
13.801 In General
13.802 Description and Timing
13.803 Property Included in the Augmented
Estate
13.804 Excluded Property
13.805 Meaning of "Estate" and "Property"
13.806 How the Augmented Estate Is
Satisfied
13.9 OTHER STATUTORY ALLOWANCES
13.901 Family Allowance
13.902 Exempt Property
13.903 Homestead Allowance
13.10 REASONS FOR HAVING A WILL
13.1001 Disposing of Property
13.1002 Reducing Estate Taxes
13.1003 Naming Fiduciaries
13.11 TYPES OF TRUSTS
13.12 USES OF TRUSTS
13.1201 Avoiding Probate
13.1202 Managing Assets
13.1203 Tax Savings
13.1204 Providing for Minors and Other Persons
Under a
Disability
13.1205 Providing for Spendthrifts
13.13 ALTERNATIVES TO TRUSTS
13.1301 Uniform Transfers to Minors Act
13.1302 Uniform Custodial Trust Act
13.1303 POD Bank Accounts, Savings Accounts
and United
States Savings Bonds; TOD Investments
13.1304 Survivorship
13.14 PLANNING FOR MARRIED COUPLES
13.1401 Marital Agreements
13.1402 Providing for a Spouse While
Controlling the
Disposition of the Remainder
13.15 DRAFTING WILLS AND TRUSTS
13.1501 Will Statutes
13.1502 Will Forms
13.1503 Living Trusts
13.1504 Revocable Trust Form
13.16 POWERS OF ATTORNEY
13.1601 In General
13.1602 Types of Powers of Attorney
13.1603 Construction of Powers of Attorney
13.1604 "Durable" Powers of Attorney
13.1605 Contingent Powers of Attorney Versus
Delivery in
Escrow
13.1606 Ending the Power of Attorney
13.1607 Relationship Between Guardian and
Agent Under
Durable Power of Attorney or Advance Directive
13.1608 Health Care Power of Attorney, Advance
Directive,
and Do Not Resuscitate Order
13.17 CHOOSING FIDUCIARIES
13.1701 In General
13.1702 Executors
13.1703 Trustees, Guardians, and
Attorneys-in-Fact
13.1704 Co-Fiduciaries
13.1705 Other Considerations
13.18 EXECUTING AND SAFEKEEPING DOCUMENTS
13.1801 Reviewing Documents
13.1802 Execution of Wills
13.1803 Execution of Other Estate Planning
Documents
13.1804 Safekeeping of the Documents
13.1805 Terminating the Representation
13.19 INITIATING THE ESTATE ADMINISTRATION PROCESS
13.1901 Introduction and Definitions
13.1902 Ethical Considerations
13.1903 Personal Decisions After Death
13.20 PROBATE AND QUALIFICATION
13.2001 Jurisdiction
13.2002 Who May Qualify as Personal
Representative
13.2003 Requirements for Probate of a Will
13.2004 Methods of Probate
13.2005 Probate of Lost or Destroyed Will
13.2006 Probate of Later Will
13.2007 Probate of Foreign Will
13.2008 Compelling Production of Will
13.2009 Destroying or Concealing Will
13.2010 Practical Aspects of Ex Parte Probate
and
Qualification Before Cler
13.2011 Probate and Qualification Order
13.21 ADMINISTRATION AFTER PROBATE
13.2101 In General
13.2102 Powers and Duties of Personal
Representatives
13.2103 Notice of Probate
13.2104 Collection of Assets
13.2105 Filing the Inventory
13.2106 Managing and Administering Assets
13.2107 Filing Tax Returns
13.2108 Commissioner of Accounts
13.22 WINDING UP AND SETTLEMENT OF THE ESTATE
13.2201 Debts and Demands
13.2202 Distribution of Assets
13.2203 Filing the Accounting
13.2204 Distribution of Final Assets
APPENDIX 13-1: INITIAL LETTER TO CLIENT
APPENDIX 13-2: ENGAGEMENT LETTER
APPENDIX 13-3: SHORT-FORM QUESTIONNAIRE
APPENDIX 13-4: NON-TAX WILL FOR SINGLE PERSON WITH
TRUST FOR YOUNG BENEFICIARIES
APPENDIX 13-5: NON-TAX WILL WITH TRUST FOR CHILDREN
APPENDIX 13-6: POUR-OVER WILL
APPENDIX 13-7: NON-TAX TRUST WITH TRUST FOR CHILDREN
APPENDIX 13-8: MEMORANDUM OF UNDERSTANDING ACCOMPANYING
POWER OF ATTORNEY
APPENDIX 13-9: MEMORANDUM OF ESCROW DELIVERY OF
POWER OF ATTORNEY
APPENDIX 13-10: ADVANCE MEDICAL DIRECTIVE AND AUTHORIZATION
TO MAKE ANATOMICAL GIFTS
APPENDIX 13-11: GENERAL DURABLE POWER OF ATTORNEY
CHAPTER 14: INCAPACITATED ADULTS: GUARDIANSHIP AND
CONSERVATORSHIP
14.1 INTRODUCTION
14.2 PETITION FOR APPOINTMENT
14.201 Definitions
14.202 Filing the Petition
14.203 Contents of the Petition
14.3 GUARDIAN AD LITEM
14.301 Certification
14.302 Role
14.303 Respondent's Right to Counsel and
Trial
14.304 Statutory Duties in General
14.305 Investigation
14.306 Personal Appearance
14.307 Report
14.308 Fees
14.4 EVALUATION REPORT
14.401 In General
14.402 Contents
14.403 Obtaining the Evaluation
14.5 HEARING
14.6 QUALIFICATION OF GUARDIAN OR CONSERVATOR
14.7 POWERS AND DUTIES OF GUARDIAN
14.701 Powers in General
14.702 Effect of Prior Advance Medical
Directive or Power
of Attorney
14.703 Contact with Incapacitated Person
14.704 Mandated Reporter
14.705 Fiduciary Capacity
14.706 Limitations on Authority
14.707 Annual Reports
14.708 Fees
14.709 Short-Term Psychiatric
Hospitalization
14.8 POWERS AND DUTIES OF CONSERVATOR
14.801 Powers in General
14.802 Sale of Real Estate
14.803 Estate Planning
14.804 Mandated Reporter
14.805 Inventory and Accountings
14.806 Fees
14.9 RESTORATION, MODIFICATION, OR TERMINATION
14.901 Petition
14.902 Relief
14.903 Procedure
14.904 Findings
14.905 Termination
14.10 STANDBY GUARDIAN
APPENDIX 14-1: PETITION FOR APPOINTMENT OF GUARDIAN
AND CONSERVATOR
APPENDIX 14-2: EVALUATION FORM
APPENDIX 14-3: ORDER APPOINTING GUARDIAN AD LITEM
APPENDIX 14-4: NOTICE
APPENDIX 14-5: REPORT OF GUARDIAN AD LITEM
APPENDIX 14-6: ORDER APPOINTING CONSERVATOR AND
GUARDIAN
CHAPTER 15: ADMINISTRATIVE LAW
15.1 SOURCES OF VIRGINIA ADMINISTRATIVE LAW
15.101 Virginia Administrative Process Act
15.102 Basic Law
15.103 Administrative Process Act
Exemptions
15.104 Case Law
15.105 Federal Law
15.2 VIRGINIA ADMINISTRATIVE PROCESS ACT
15.201 Applicability
15.202 Rulemaking Process
15.203 Adjudication
15.204 Judicial Review
15.3 AGENCY-SPECIFIC PROVISIONS OF LAW
15.301 Introduction
15.302 Virginia Department of Alcoholic
Beverage Control
(Alcoholic Beverage Control Board)
15.303 Environmental Regulation
15.304 Occupational Health and Safety
15.305 Professional and Occupational
Licensing
15.306 Transportation
15.307 Starting Point for Analysis
15.4 STATE CORPORATION COMMISSION (SCC)
15.401 Introduction
15.402 Exemption from the Administrative
Process
Act
15.403 Sources of SCC Law
15.404 Administrative Procedure Generally
15.405 Forms of SCC Proceedings
15.406 SCC Rulemaking
15.408 SCC Hearing Examiners
15.409 Judicial Review of SCC Decisions
15.410 Subject-Matter Jurisdiction of the
SCC
TABLE OF AUTHORITIES
INDEX
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