Contract Law in Virginia

Contract Law in Virginia
Publication Date: 2016
Electronic Forms: 32
Available Formats: Print (1,011 pages, softcover, 2 volumes)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
Product #: 863

Information

Content Highlights:

  • Formation of Contracts
  • Statute of Frauds
  • Determining Contractual Obligations
  • Policing the Bargain
  • Performance and Nonperformance
  • Third-Party Beneficiary Law
  • Assignment and Delegation
  • Joint and Several Contracts
  • Special Types of Contracts
  • General Drafting Principles
  • Remedies for Breach of Contract
  • Resolving Contract Disputes Through Alternative Dispute Resolution
  • Litigating a Contract Case

“We wrote this book to provide a practical guide for Virginia attorneys to analyze and resolve contract law issues. In addition to its overview of Virginia contract law, contract drafting techniques are discussed and numerous forms are included with comments on their use in Virginia. For both the novice and seasoned practitioner, Contract Law in Virginia also explores in a practical way the resolution of contract disputes through alternative dispute resolution and litigation.”
- John V. Little, editor

Contract Law in Virginia takes the practitioner from contract formation to performance, as well as nonperformance issues. It distinguishes itself from other contract law books by examining how Virginia contract law interacts with other areas of the law. It also applies general legal principles of Virginia conrtact law to different types of contracts – from commercial contracts to real estate contracts. Special case law rules and statutes are highlighted that affect different types of contracts.

This 2016 edition provides essential updates to Virginia statutory and case law in select areas of contract law through 2015. A number of new decisions add clarity to what constitutes an initial material breach and excuses performance by a party under a contract, and when a liquidated damages provision may be enforced. Additionally, in the area of electronic contracts, more recent cases rely upon traditional contract principles such as notice of terms and assent to establish the enforceability of an electronic contract.


New Multi-Book Discount. Buy ANY 2 books and save 20%, 3 books and save 30%, 4 or more and save 40%. Use coupon code BUYMORE.
Government Attorney? Receive a 30% discount on publications, and a 50% discount on most seminars.
New Virginia Lawyer? (less than three years) Receive a 25% discount on publications and most seminars.


You may also be interested in:


Choosing a Virginia Business Entity

Corporations and Partnerships in Virginia

Limited Liability Companies in Virginia

Virginia Business Torts

Virginia Civil Practice Forms

Virginia Law and Practice: A Handbook for Attorneys

 

Table of Contents

CHAPTER LIST

1. Introduction

2. Formation of Contracts

3. Statute of Frauds

4. Determining Contractual Obligations

5. Policing the Bargain

6. Performance and Nonperformance

7. Third-Party Beneficiary Law

8. Assignment and Delegation

9. Joint and Several Contracts

10. Special Types of Contracts

11. General Drafting Principles

12. Remedies for Breach of Contract

13. Resolving Contract Disputes Through Alternative Dispute Resolution

14. Litigating a Contract Case


CHAPTER 1: INTRODUCTION

1.1 SOURCES AND ORGANIZATION OF CONTRACT LAW
    1.101 Overview
    1.102 Case Law
    1.103 Virginia Statutes
    1.104 Federal Statutes
    1.105 United Nations Convention on Contracts for the International
    Sale of Goods

1.2 DEFINITIONS OF TERMS
    1.201 Definition of a Contract
    1.202 Glossary of Common Contract Terms

1.3 TYPES OF CONTRACTS
    1.301 Voidable and Void Contracts
    1.302 Express and Implied Contracts
    1.303 Unilateral and Bilateral Contracts
    1.304 Executory and Executed Contracts
    1.305 Unenforceable Contracts
    1.306 Entire and Severable Contracts
    1.307 Oral and Written Contracts
    1.308 Electronic Contracts

CHAPTER 2: FORMATION OF CONTRACTS

2.1 INTRODUCTION

2.2 THEORY OF MUTUAL ASSENT

2.3 MECHANICS OF ASSENT: OFFER AND ACCEPTANCE
    2.301 Offer
    2.302 Acceptance
    2.303 Other Elements of Contract Formation
    2.304 Termination of Offer

2.4 CONSIDERATION
    2.401 In General
    2.402 Adequacy of Consideration
    2.403 Bargained-For Exchange
    2.404 Requirement of Mutuality
    2.405 Lack of Consideration
    2.406 Types of Consideration

2.5 CONTRACTS WITHOUT CONSIDERATION
    2.501 In General
    2.502 Equitable Estoppel
    2.503 Promissory Estoppel
    2.504 Quasi-Contract

2.6 SEAL AND OTHER VIRGINIA FORMALITIES
    2.601 Promises Under Seal
    2.602 Notary Requirement
    2.603 Witness Requirement

CHAPTER 3: STATUTE OF FRAUDS

3.1 INTRODUCTION

3.2 SCOPE OF THE STATUTE
    3.201 In General
    3.202 Representations as to Credit
    3.203 Ratification of Contracts by Infants After Coming of Age
    3.204 Promises by Executors or Administrators
    3.205 Promises to Answer for Debt, Default
    3.206 Agreements in Consideration of Marriage
    3.207 Contracts Relating to the Sale of Land
    3.208 Agreements Not to Be Performed Within One Year
    3.209 Contracts in the Aggregate of $25,000 or More

3.3 SATISFACTION OF THE STATUTE
    3.301 Form of Writing
    3.302 Essential Terms
    3.303 Signatures

3.4 EXCEPTIONS
    3.401 In General
    3.402 Parol Evidence
    3.403 Full Performance
    3.404 Part Performance

3.5 EFFECT OF NONCOMPLIANCE

3.6 VIRGINIA STATUTES REQUIRING AGREEMENTS
TO BE IN WRITING
    3.601 In General
    3.602 Uniform Commercial Code
    3.603 Promise After Bankruptcy

CHAPTER 4: DETERMINING CONTRACTUAL OBLIGATIONS

4.1 OVERVIEW

4.2 CONSTRUCTION AND INTERPRETATION
    4.201 In General
    4.202 Intent
    4.203 Governing Law
    4.204 Plain Meaning
    4.205 Unambiguous Contracts
    4.206 Ambiguous Contracts
    4.207 Conclusion

4.3 THE PAROL EVIDENCE RULE
    4.301 In General
    4.302 Parties to Which the Rule Applies
    4.303 Exceptions to the Parol Evidence Rule
    4.304 Section 8.2-202 of the Virginia Code

4.4 SUPPLYING OMITTED TERMS
    4.401 In General
    4.402 Partial Integration Doctrine
    4.403 Common Terms
    4.404 Scrivener’s Error

4.5 CUSTOM AND TRADE USAGE
    4.501 Common Law
    4.502 Knowledge
    4.503 Common Trade
    4.504 Effect on Contract Terms
    4.505 Ambiguity
    4.506 UCC Implications

4.6 CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS
    4.601 In General
    4.602 Parol Evidence Under the CISG
    4.603 Course of Dealing, Custom, and Trade Usage
    4.604 Merger Clauses and Exclusion of CISG Provisions

APPENDIX 4-1: CASES ON STATUTORY CONSTRUCTION

CHAPTER 5: POLICING THE BARGAIN

5.1 MENTAL COMPETENCE
    5.101 In General
    5.102 Rebutting the Presumption of Competence

5.2 CONTRACTS OF MINORS
    5.201 In General
    5.202 Ratification and Disaffirmance

5.3 MISTAKE
    5.301 In General
    5.302 Mutual Mistake
    5.303 Unilateral Mistake
    5.304 Misunderstanding
    5.305 Mistake in Transcription
    5.306 Mistake in Transmission by Intermediary

5.4 FRAUD AND MISREPRESENTATION
    5.401 In General
    5.402 Elements of Actual Fraud
    5.403 The Doctrine of Caveat Emptor
    5.404 Constructive Fraud
    5.405 Duty of Prompt Disaffirmance
    5.406 Statutory Protections

5.5 DURESS AND UNDUE INFLUENCE

5.6 MODIFICATION OF CONTRACTS
    5.601 In General
    5.602 Effect of Modification
    5.603 Applicability of the Statute of Frauds
    5.604 No Oral Modification Clauses

5.7 WARRANTIES AND DISCLAIMERS
    5.701 In General
    5.702 Warranties, Representations, and Covenants Distinguished
    5.703 Warranties under the UCC
    5.704 Implied Duty to Indemnify
    5.705 Disclaimers and Modifications of Warranties
    5.706 Modification or Limitation of Remedies

5.8 PUBLIC POLICY AND ILLEGALITY

5.9 UNCONSCIONABILITY
    5.901 In General
    5.902 Proof of Unconscionability
    5.903 Unconscionability Under the UCC
    5.904 Duty of Good Faith

5.10 ACCORD AND SATISFACTION
    5.1001 In General
    5.1002 Joint Tortfeasors
    5.1003 Use of Instrument
    5.1004 Burden of Proof
    5.1005 Effect of UCC Section 1-207

CHAPTER 6: PERFORMANCE AND NONPERFORMANCE

6.1 OVERVIEW
    6.101 Importance of Performance Issues
    6.102 Scope of this Chapter

6.2 CONDITIONS
    6.201 Overview
    6.202 Conditions Based Upon Time
    6.203 Implied Conditions

6.3 ORDER OF PERFORMANCE

6.4 ANTICIPATORY BREACH
    6.401 In General
    6.402 What Constitutes Repudiation
    6.403 The Right to Demand Assurances
    6.404 Repudiation Must Be Clear, Unequivocal, and Material

6.5 BREACH: TYPES AND EFFECTS
    6.501 Overview
    6.502 Making Performance Impossible
    6.503 Failure of Performance

6.6 SUBSTANTIAL PERFORMANCE
    6.601 Overview
    6.602 The UCC and Substantial Performance

6.7 RESPONSES TO BREACH
    6.701 Overview
    6.702 Permissible Actions
    6.703 Waiver
    6.704 Tips for the Practitioner

6.8 EXCUSE FOR NONPERFORMANCE: IMPOSSIBILITY
AND FRUSTRATION
    6.801 Overview
    6.802 Impossibility
    6.803 Frustration of Purpose
    6.804 Tips for the Practitioner

CHAPTER 7: THIRD-PARTY BENEFICIARY LAW

7.1 INTRODUCTION

7.2 DISTINGUISHING BETWEEN INTENDED AND INCIDENTAL
BENEFICIARIES
    7.201 The “Clearly and Definitely Intended” Standard
    7.202 The Federal “One Overriding Intent” Standard
    7.203 Class Members Eligible to be Third-Party Beneficiaries
    7.204 Requirement That Parties Contemplate a Third-Party
    Benefit at the Time of Contracting
    7.205 Mere Receipt of Benefit or Harm Under Contract

7.3 PAROL EVIDENCE RULE
    7.301 In General
    7.302 Applicability of the Parole Evidence Rule
    7.303 Application in Various Contexts

7.4 DEFENSES TO THIRD-PARTY BENEFICIARY CLAIMS

7.5 CASES BY SUBJECT MATTER AREA
    7.501 Accounting and Auditing Services
    7.502 Arbitration Provisions
    7.503 Attorney-Client Contracts
    7.504 Banking
    7.505 Bankruptcy
    7.506 Disability Benefits/IDEA Contracts
    7.507 Health Care
    7.508 Insurance
    7.509 Labor and Employment Contracts
    7.510 Materialmen Under a Contractor’s Bond
    7.511 Owner-Architect Contracts
    7.512 Product Liability
    7.513 Product Warranties
    7.514 Public Finance
    7.515 Real Estate
    7.516 Releases
    7.517 Shipping Contracts
    7.518 Stock Purchase Agreement
    7.519 Wills

CHAPTER 8: ASSIGNMENT AND DELEGATION

8.1 TERMINOLOGY
    8.101 Definitions
    8.102 Illustrations

8.2 ASSIGNMENT OF RIGHTS
    8.201 Assignable Rights
    8.202 Requirements for Effective Assignment
    8.203 Effect of Assignment

8.3 DELEGATION OF DUTIES
    8.301 Duties that May Be Delegated
    8.302 Requirements for Effective Delegation
    8.303 Effect of Delegation

8.4 LIMITATIONS ON ASSIGNMENT AND DELEGATION

8.5 EFFECTS OF MODIFICATION OR DISCHARGE

8.6 PRIORITIES BETWEEN CLAIMANTS
    8.601 General Rule
    8.602 Exceptions to the Rule

APPENDIX 8-1: ASSIGNMENT CLAUSE

CHAPTER 9: JOINT AND SEVERAL CONTRACTS

9.1 OVERVIEW

9.2 MULTIPLE OBLIGORS
    9.201 In General
    9.202 Several Liability
    9.203 Joint Liability
    9.204 Joint and Several Liability
    9.205 Liability of Unnamed Signer
    9.206 Promises of the Same Performance
    9.207 Partnership Obligations
    9.208 Negotiable Instruments
    9.209 Form Provisions

9.3 MULTIPLE OBLIGEES

9.4 EFFECTS OF PERFORMANCE, BREACH, AND DISCHARGE
    9.401 Effects of Performance
    9.402 Effects of Breach
    9.403 Effects of Discharge

9.5 SURVIVAL OF RIGHTS OR DUTIES

APPENDIX 9-1: JOINT AND SEVERAL LIABILITY PROVISION

APPENDIX 9-2: JOINT AND SEVERAL LIABILITY PROVISION—
GUARANTY

APPENDIX 9-3: JOINT AND SEVERAL LIABILITY PROVISION—
LEASE

APPENDIX 9-4: JOINT AND SEVERAL LIABILITY PROVISION—
LEASE (ANOTHER FORM)

APPENDIX 9-5: SEVERAL LIABILITY PROVISION—LOAN AGREEMENT

APPENDIX 9-6: SEVERAL LIABILITY PROVISION—
STOCK PURCHASE AGREEMENT

CHAPTER 10: SPECIAL TYPES OF CONTRACTS

10.1 COMMERCIAL CONTRACTS
    10.101 Introduction
    10.102 Creating the Contract
    10.103 The Parol Evidence Rule
    10.104 Performance
    10.105 Warranties
    
10.2 CONSTRUCTION CONTRACTS
    10.201 Introduction
    10.202 American Institute of Architects Form Contracts
    10.203 Provisions Common in Owner-Contractor Contracts
    10.204 Subcontractor Provisions
    10.205 Delay in Performance
    10.206 Conclusion

10.3 CONSUMER CONTRACTS
    10.301 Introduction
    10.302 Common Law
    10.303 Statutes Affecting Consumer Contracts
    10.304 Virginia Recovery Funds
    10.305 Consumer-Related Business Promotions
    10.306 Contractual Merger and Disclaimer
    10.307 Misrepresentations and Other Offenses
    10.308 Collections
    10.309 Residential Leases
    10.310 Residential Real Estate Contracts
    10.311 Real Estate Settlement Procedures Act
    10.312 Mortgage Lending Contracts
    10.313 Real Estate Foreclosure

10.4 ELECTRONIC CONTRACTS
    10.401 Introduction
    10.402 “Writing” and “Record” Defined
    10.403 Uniform Electronic Transactions Act (UETA)
    10.404 The Statute of Frauds
    10.405 Clickwrap Contracts
    10.406 Browsewrap Contracts
    10.407 Uniform Computer Information Transactions Act
    10.408 Electronic Signatures in GNC Act

10.5 EMPLOYMENT CONTRACTS
    10.501 At-Will Doctrine
    10.502 Exceptions to the At-Will Doctrine
    10.503 Employment Agreement Drafting Tips

10.6 GOVERNMENT CONTRACTS
    10.601 Introduction
    10.602 Federal Government Contracting
    10.603 Virginia Public Contracts

10.7 INTELLECTUAL PROPERTY CONTRACTS
    10.701 Introduction
    10.702 License Agreements—Common Elements
    10.703 Evaluation Agreements
    10.704 Employee Invention and Nondisclosure Agreements
    10.705 Uniform Computer Information Transactions Act
    10.706 Patentability and Protection of Business
    Method Processes

10.8 LENDING AGREEMENTS
    10.801 Introduction
    10.802 Interest and Usury
    10.803 Lending Agreements as Negotiable Instruments
    10.804 Security Interests
    10.805 Guarantors and Co-Obligors
    10.806 Seals

10.9 REAL ESTATE CONTRACTS
    10.901 Introduction
    10.902 Formation and Validity of the Contract
    10.903 Consideration
    10.904 Description of Real Property
    10.905 Description of Personal Property
    10.906 Contract Conditions

APPENDIX 10-1: EXCLUSIVE PATENT LICENSE AGREEMENT

APPENDIX 10-2: LICENSE AGREEMENT

APPENDIX 10-3: SOFTWARE LICENSE AGREEMENT

APPENDIX 10-4: TECHNOLOGY DEVELOPMENT AGREEMENT

APPENDIX 10-5: CONFIDENTIALITY AGREEMENT

APPENDIX 10-6: PROPRIETARY INFORMATION, INVENTIONS,
AND NON-SOLICITATION AGREEMENT

CHAPTER 11: GENERAL DRAFTING PRINCIPLES

11.1 GOALS AND STRATEGIES
    11.101 Environmental Conditions
    11.102 Zoning
    11.103 Foundation
    11.104 Local Design Approval
    11.105 Choice of Building Materials
    11.106 Form
    11.107 Function

11.2 FUNCTION
    11.201 Identification of the Parties
    11.202 Clearly Stated Mutual Obligations
    11.203 Allocation of Risk

11.3 TOP TEN DRAFTING TECHNIQUES
    11.301 Active Voice
    11.302 Remedies Other than Termination
    11.303 Inconsistencies
    11.304 Multiple Parties’ Responsibilities Joint or Several?
    11.305 Exhibits When Client Input Is Needed
    11.306 Successors and Assigns
    11.307 Notice, Notice, Notice
    11.308 Choice of Law and Choice of Forum Provisions, Especially
    in International Contracts
    11.309 Written Amendments
    11.310 Defined Terms
    
APPENDIX 11-1: SAMPLE INTERNATIONAL DISTRIBUTION
AGREEMENT WITH COMMENTARY

APPENDIX 11-2: STOCK PURCHASE AGREEMENT

APPENDIX 11-3: REAL ESTATE PURCHASE AGREEMENT

APPENDIX 11-4: PURCHASE AND SALE AGREEMENT

APPENDIX 11-5: SAMPLE OPERATING AGREEMENT WITH
COMMENTARY FOR A LIMITED LIABILITY
COMPANY

APPENDIX 11-6: EMPLOYMENT AGREEMENT

APPENDIX 11-7: SAMPLE SHAREHOLDERS’ AGREEMENT
WITH COMMENTARY

APPENDIX 11-8: PROMISSORY NOTE

APPENDIX 11-9: GUARANTY

APPENDIX 11-10: SECURITY AGREEMENT

APPENDIX 11-11: STOCK PLEDGE AGREEMENT

APPENDIX 11-12: LIQUIDATED DAMAGES PROVISION
(CONSTRUCTION CONTRACT)

APPENDIX 11-13: LIMITATION OF THIRD-PARTY BENEFIT PROVISION

APPENDIX 11-14: SEVERABILITY PROVISION

APPENDIX 11-15: MERGER PROVISION

APPENDIX 11-16: SURVIVAL PROVISION

CHAPTER 12: REMEDIES FOR BREACH OF CONTRACT

12.1 INTRODUCTION

12.2 ELECTION OF REMEDIES
    12.201 Tort Versus Contract
    12.202 Law Versus Equity
    12.203 Cases Decided Under Former Bifurcated System
    of Law and Equity
    12.204 Irreconcilable Claims and Double Recovery

12.3 DAMAGES
    12.301 In General
    12.302 Direct Damages
    12.303 Consequential Damages
    12.304 Damages Under the Virginia Uniform Commercial Code
    12.305 Lost Profits
    12.306 Nominal Damages
    12.307 Contractual Modification, Limitation, or Exclusion
    of Damages and Remedies
    12.308 Liquidated Damages Clauses
    12.309 Mitigation of Damages and the Doctrine of Avoidable
    Consequences
    12.310 Punitive Damages
    12.311 Purely Economic Losses and the “Economic Loss Rule”
    12.312 Contract Provisions Permitting Recovery of Attorney
    Fees and Litigation Expenses
    12.313 The “First in Fault Rule” as a Bar to Recovery of
    Damages for Breach

12.4 SPECIFIC PERFORMANCE
    12.401 In General
    12.402 Specific Performance Under the UCC
    12.403 Specific Performance of Real Estate Contracts
    12.404 Specific Performance of Other Types of Contracts
    12.405 Establishing the Right to Specific Performance
    12.406 Effect of Agreement That Specific Performance Is
    Appropriate Remedy
    12.407 Effect of Liquidated Damages Clauses on Right to
    Demand Specific Performance

12.5 INJUNCTIONS
    12.501 In General
    12.502 Statutory Authority to Award Injunctions
    12.503 Temporary and Permanent Injunctions
    12.504 Standards for Granting Injunctive Relief
    12.505 Procedural Issues in Obtaining Injunctive Relief
    12.506 Injunctions Under Specific Statutes
    12.507 Injunctions to Enforce Non-Competition Agreements
    in Employment Contracts

12.6 RESCISSION
    12.601 In General
    12.602 Rescission Versus Specific Performance
    12.603 Grounds for Rescission
    12.604 Rescission of Sales Contracts Under the UCC
    12.605 Rescission as a Remedy for Creditors
    12.606 Rescission of Settlement Agreements
    12.607 Rescission as a Remedy for Breach of Contract
    12.608 Relief Awarded When Rescission Is Granted
    12.609 Waiver of Right to Seek Rescission

12.7 RESTITUTION
    12.701 In General
    12.702 Return of Property or Money Held by the Defendant
    12.703 Money Damages as Compensation to the Plaintiff
    12.704 Return of the Full Value of the Unjust Benefit Gained
    by the Defendant
    12.705 Imposition of a Constructive Trust

12.8 REFORMATION
    12.801 In General
    12.802 Standard of Proof
    12.803 Ambiguity and the Parol Evidence Rule
    12.804 Pleading
    12.805 Parties
    12.806 The Doctrine of Laches

12.9 DECLARATORY JUDGMENTS
    12.901 In General
    12.902 Right to Seek Additional Relief
    12.903 Right to a Jury Trial

12.10 INDEMNITY

12.11 ARBITRATION AGREEMENTS

12.12 DAMAGES FOR TORTIOUS INTERFERENCE

12.13 ACTUAL AND CONSTRUCTIVE FRAUD IN INDUCEMENT
    12.1301 In General
    12.1302 Elements of a Claim for Actual Fraud
    12.1303 Elements of a Claim for Constructive Fraud
    12.1304 Damages

CHAPTER 13: RESOLVING CONTRACT DISPUTES THROUGH
ALTERNATIVE DISPUTE RESOLUTION


13.1 OVERVIEW OF ALTERNATIVE DISPUTE RESOLUTION
    13.101 In General
    13.102 The Problem With Litigation
    13.103 The Case for ADR

13.2 ADR PROCESSES
    13.201 Primary, Hybrid, and Other ADR Processes
    13.202 Primary ADR Processes
    13.203 Comparison of Litigation to the Primary ADR Processes
    13.204 Hybrid ADR Processes
    13.205 Other ADR Processes

13.3 REASONS TO INCLUDE A PREDISPUTE ADR CLAUSE
    13.301 More Effective Dispute Resolution Processes
    13.302 The Fear Factor
    13.303 The Inevitability of Conflict

13.4 CHECKLIST FOR DRAFTING AN ADR CLAUSE
    13.401 Is the ADR Clause Enforceable?
    13.402 Should a Standard Boilerplate ADR Clause Be Used?
    13.403 Should a Multi-Step ADR Process Be Used?
    13.404 What Are the Key Issues in Drafting an ADR Clause?
    
CHAPTER 14: LITIGATING A CONTRACT CASE

14.1 INTRODUCTION

14.2 ESTABLISHING A LITIGATION FILING SYSTEM

14.3 DRAFTING INITIAL PLEADINGS
    14.301 In General
    14.302 The Plaintiff’s Initial Pleadings
    14.303 Causes of Action
    14.304 The Defendant’s Responsive Pleadings
    14.305 Pretrial Motions

14.4 THE DISCOVERY PROCESS
    14.401 In General
    14.402 Rule 4:1 General Provisions Involving Discovery
    14.403 Requests for Admissions
    14.404 Requests for Stipulations
    14.405 Rule Revisions Relating to Discovery

14.5 NECESSARY OR INDISPENSABLE PARTIES

14.6 TRIAL PREPARATION
    14.601 Creating a Working Narrative
    14.602 Applying the Evidence to the Narrative
    14.603 Using Enlargements
    14.604 Creating Trial Preparation Checklists
    14.605 Compiling Bench Books

14.7 TRIAL
    14.701 In General
    14.702 Opening Statement
    14.703 Witnesses
    14.704 Introduction of Documents
    14.705 Objections
    14.706 Closing Argument

APPENDIX 14-1: FILE MANAGEMENT

APPENDIX 14-2: TRIAL CHECKLIST

APPENDIX 14-3: SECOND CHAIR TRIAL CHECKLIST

APPENDIX 14-4: COMPLAINT—NOTE AND GUARANTY

APPENDIX 14-5: COMPLAINT—SPECIFIC PERFORMANCE AND
DAMAGES

APPENDIX 14-6: COMPLEX CONTRACT ACTION

TABLE OF AUTHORITIES

INDEX


Authors

Editors

John V. Little, Michie Hamlett Lowry Rasmussen & Tweel PLLC / Charlottesville (Expand/Collapse Bio)

John V. Little, editor of this handbook and author of Chapters 1 and 9 and co-author of Chapter 10, is a principal with Michie Hamlett Lowry Rasmussen & Tweel PLLC, where he practices primarily in the areas of business and real estate law. Mr. Little earned a B.A. (magna cum laude, Phi Beta Kappa) from Washington & Lee University in 1973 and a J.D. from the University of Virginia School of Law in 1976. Mr. Little is listed in Best Lawyers in America under the categories of corporate law and real estate law.

Authors

Nicholas V. Albu, Reed Smith LLP / Northern Virginia (Expand/Collapse Bio)

Nicholas V. Albu, co-author of Chapter 6, is an associate in the Commercial Litigation and Disputes practice group in Reed Smith’s Northern Virginia office. He has prosecuted and defended commercial cases in federal district courts and domestic and international arbitrations. Mr. Albu’s litigation experience includes matters involving contentious breach of contract actions, joint development disagreements, construction claims, consumer protection acts, intellectual property disputes and breaches of confidentiality. Mr. Albu has also assisted in appellate matters before the Virginia Supreme Court and has handled real estate and land use cases before local bodies and state courts in Virginia. Mr. Albu is a 2009 graduate of Washington and Lee University School of Law. He was selected by his peers and the publishers of Virginia Business Magazine’s Legal Elite as one of Virginia’s best attorneys under 40 in 2013.

Francis H. Casola, Woods Rogers PLC / Roanoke (Expand/Collapse Bio)

Francis H. "Chip" Casola, author of Chapter 7, is a principal with Woods Rogers PLC, where he practices general and commercial litigation, including breach of contract, business tort, intellectual property and antitrust actions, in both federal and state courts. Before joining Woods Rogers PLC, Mr. Casola earned a B.A., magna cum laude, from Virginia Tech in 1983, worked as a law clerk to Hearing Examiners for the United States Merit Systems Protection Board for two years, and earned a J.D. from the University of Virginia School of Law in 1988, where he was named a Dillard Fellow. He is a past Chair of the Virginia State Bar's Antitrust, Franchising, and Trade Regulation Section and past member of the governing body of The Virginia Bar Association's Health Law Section. Mr. Casola is a member of the Antitrust and Litigation Sections of the American Bar Association and is a member of The Virginia Bar Association, Virginia State Bar, Roanoke Bar Association, and Virginia Association of Defense Attorneys. He is also a past President of the Roanoke Bar Association.

Thomas R. Folk, Reed Smith LLP / Falls Church (Expand/Collapse Bio)

Thomas R. Folk, co-author of Chapters 6 and 10, is a partner with Reed Smith LLP with many years of experience with difficult and complex litigation and with public-private partnerships. His practice focuses on construction, public procurement, and general litigation. He has provided legal services to a number of Virginia public entities on public procurement and construction matters, including the Counties of Arlington, Spotsylvania, and Roanoke, the City of Falls Church, the Town of Leesburg, the Alexandria City Public Schools, Stafford County Public Schools, Loudoun County Public Schools, Chesterfield County Public Schools, Warren County Public Schools and City of Manassas Public Schools.

Mr. Folk has assisted a number of Virginia jurisdictions with the Public-Private Education Facilities and Infrastructure Act of 2002 (“PPEA”), including one of the first large PPEA procurements undertaken in the Commonwealth, that by Stafford County and the Stafford County Public Schools, the Alexandria City Public Schools’ T.C. Williams Replacement Project, and projects for the Warren County Public Schools, the Chesterfield County Public Schools, the Frederick County Public Schools, the Northumberland County Public Schools, the Patrick County Public Schools, the County of Roanoke, the County of Spotsylvania, and The Winchester Parking Authority.

Before joining the firm, Mr. Folk was with the United States Army, and his assignments included Assistant to the Army General Counsel, Litigation Counsel, Officer-in-Charge of Giessen Legal Center, and Military Trial Counsel (prosecutor). He is a colonel in the United States Army Reserve. He is a former member of the Board of Governors of the Construction Law and Public Contract Section of the Virginia State Bar and has written and lectured on a number of legal topics, including government contract law. Mr. Folk graduated as a distinguished cadet from the United States Military Academy at West Point with a B.S. and earned a J.D. from the University of Virginia School of Law, where he was awarded the Law Alumni Award for graduating first in his class. Mr. Folk served on the editorial and managing boards of the Virginia Law Review.

Leigh T. Hansson, Reed Smith LLP / Washington, D.C. (Expand/Collapse Bio)

Leigh T. Hansson, co-author of Chapter 10.6, is a partner in the Washington office of Reed Smith LLP. She has experience prosecuting and defending bid protests before the Court of Federal Claims, the Court of Appeals for the Federal Circuit, the Government Accountability Office, and various state procurement entities. She also handles matters before the Small Business Administration, claims against the government before both the Boards of Contract Appeal, and defends qui tam actions. She has counseled clients on teaming, consulting, and subcontracting agreements as well as compliance and ethics programs for government contractors. She also represents a number of corporations with export control and export compliance matters.

Ms. Hansson earned a J.D. in 1995 from Pennsylvania State University, Dickinson School of Law, where she was a 1995 recipient of the Comparative Law Award and a member of the Woolsack Honor Society. In addition, she spent time studying law at the University of Oslo in Norway. Ms. Hansson earned a B.A. in history and political science in 1992 from Hollins College.

Peter L. Henderer, McCandlish Holton, P.C. / Richmond (Expand/Collapse Bio)

Peter L. Henderer, co-author of Chapter 10, is a director with McCandlish Holton, P.C. in Richmond. He earned an A.B. in 1993 from Bowdoin College and a J.D. in 1996 from the George Washington University Law School. Mr. Henderer’s practice focuses on commercial real estate development and finance.

Lynn Morris Kachel, Sole Practitioner / Rockville (Expand/Collapse Bio)

Lynn Kachel, author of Chapter 8 and Appendix 11-2, is a sole practitioner in the greater Richmond area. Before starting her own practice, she assisted clients with general corporate matters, mergers and acquisitions, securities law, and capital formation as an Associate with Williams, Mullen (Richmond); and then with Mezzullo & McCandlish (Richmond). She currently focuses on a limited number of small business clients. In addition to her law practice, Ms. Kachel is a registered representative (Series 7) and a partner in Wealth Management Strategies, LLP (securities and advisory services offered through Commonwealth Financial Network, Member NASD, SIPC). Ms. Kachel graduated from the University of Richmond School of Law, where she served as Managing Editor of the University of Richmond Law Review and was inducted into the McNeill Law Honor Society. Ms. Kachel has been a member of the Virginia State Bar since 1994.

John A. C. Keith, Blankingship & Keith, P.C. / Fairfax (Expand/Collapse Bio)

John A. C. Keith, author of Chapter 13, is a principal with Blankingship & Keith in Fairfax. He is a member of the McCammon Group and a certified mediator, and practices in the areas of civil litigation, business law, and wills, trusts, and estates. Mr. Keith earned a B.A. in 1968 and a J.D. in 1974 from the University of Virginia. Mr. Keith is listed in Best Lawyers in America and among the “Legal Elite” by Virginia Business magazine. He served as President of the Virginia State Bar from 1998 to 1999 and is a Fellow of the Virginia Law Foundation where he has also served on the board of directors.

Elizabeth G. Leavy, Reed Smith LLP / Washington, D.C. (Expand/Collapse Bio)

Elizabeth G. Leavy, co-author of Chapter 10.6, is an associate in Reed Smith’s Global Regulatory Enforcement Practice Group. In her government contracts practices, Ms. Leavy assists federal contractors and subcontractors in bid protests before the GAO and federal and state agencies. She represents clients on Contract Disputes Act (CDA) claims before the boards of contract appeals, including the ASBCA and the PSBCA. Ms. Leavy also regularly counsels clients on regulatory compliance issues and alleged violations of the FAR, HIPAA, Truth in Negotiations Act (“TINA”), Service Contract Act (“SCA”), Davis-Bacon Act, and the False Claims Act (“FCA”). Shee received her law degree from Cornell Law School and a B.A. from George Washington University. She is admitted to practice in the District of Columbia, New Jersey, and New York.

Thomas A. Leggette, Leggette Law Firm, PLC / Falls Church (Expand/Collapse Bio)

Thomas A. Leggette, co-author of Chapter 10, is a solo practitioner in Falls Church with 39 years of experience. He is a former principal at Woods Rogers PLC, where he served as chair of the firm’s litigation section and was primarily involved in handling commercial litigation and insurance defense. Since going solo Mr. Leggette has received just under 10 verdicts in civil RICO cases. He also is now involved in Trust, Wills, Estates, Elder Law, and Consumer Law. He is a graduate of Virginia Polytechnic Institute and the University of Virginia School of Law. Mr. Leggette has been a frequent speaker and author for Virginia CLE, Nonprofit Governance Center, and numerous other organizations on attorney-client privilege, legal ethics, and civil litigation. He served for seven years as editor of the Federal Defense and Corporate Counsel’s Update. He is a member of the American Bar Association, National Academy of Elder Law Attorneys, McLean Estate Planning Council, and the Northern Virginia Estate Plaining Council.

Mark D. Loftis, Woods Rogers PLC / Roanoke (Expand/Collapse Bio)

Mark D. Loftis, author of Chapter 12, is a principal in the Roanoke office of Woods Rogers PLC and the chair of the firm’s litigation section. Mr. Loftis practices primarily in the areas of product liability, commercial litigation, and insurance coverage litigation. He has extensive experience representing product manufacturers, product retailers, and utility companies in litigation matters in both state and federal courts. Mr. Loftis is a past president of the Virginia Association of Defense Attorneys (2005 to 2006), and continues to be active in that organization. He is also a member of the American Bar Association, the Virginia Bar Association, the Virginia State Bar, and the Defense Research Institute. Mr. Loftis frequently writes and lectures on warranty, contract, and technology law issues. He is listed in Best Lawyers in America and has been named a Virginia Super Lawyer in the area of product liability defense. He is also a fellow of the Virginia Law Foundation and a fellow of the American Bar Foundation. His pro bono work includes serving as the chancellor of the Episcopal Diocese of Southwestern Virginia. Mr. Loftis received his undergraduate degree from Georgetown University, with honors, and received his law degree from the University of Virginia School of Law.

Edward B. Lowry, Michie Hamlett Lowry Rasmussen & Tweel PLLC / Charlottesville (Expand/Collapse Bio)

Edward B. Lowry, author of Chapter 14 and co-author of Chapter 10, practices in the area of business litigation, including contracts, securities arbitration, antitrust and other forms of unfair competition, intellectual property disputes, business torts, employment law, and business transaction negotiations. He earned a B.A. in 1968 from the University of Virginia and a J.D. in 1971 from the University of Virginia School of Law, where he was a member of the editorial board of the Virginia Law Review. Mr. Lowry is a member of the Virginia State Bar and has served as President, Member of the Council, Member of the Executive Committee, Member of the Affiliated Professions Committee, and Chair of the Judicial Nominations Committee. He is a Fellow of the International Academy of Trial Lawyers, the American College of Trial Lawyers, the American Bar Foundation, and the Virginia Law Foundation. He also served as a member of the Judicial Council of the Virginia Advisory Committee on Rules of Court. Mr. Lowry has served as an adjunct faculty member of the University of Virginia School of Law and a faculty member of the Virginia State Bar Course on Professionalism.

Charles V. McPhillips, Kaufman & Canoles, P.C. / Norfolk (Expand/Collapse Bio)

Charles V. McPhillips, author of Chapter 11 and Appendices 11-1, 11-5, and 11-7, is the executive vice president of Practice Management at Kaufman & Canoles, P.C., where his practice emphasizes commercial transactions, business organizations, public-private partnerships and international business law. Mr. McPhillips is a trustee of Hampden-Sydney College, chairman of the McMahon-Parater Foundation and the Investing in Our Children campaign of the Diocese of Richmond, chairman of the Barry Robinson Center, vice president of Greater Norfolk Corporation, second vice president of the Norfolk Forum, a past chairman of the Board of Governors of the International Practice Section of the Virginia State Bar, past chairman of the International Business Council of the Hampton Roads Chamber of Commerce, past president of the Board of Trustees of the Virginia Stage Company, founding chairman of Saint Patrick Catholic School, chairman of the James Barry-Robinson Home for Boys Trust, former vice president of the World Affairs Council of Hampton Roads, and board member of various civic organizations. He was also president of the Virginia Club at the time that historic organization (founded 1873) moved to its present quarters. Mr. McPhillips earned a B.A. in political science from Hampden-Sydney College in 1982, where he was elected to Phi Beta Kappa and to Omicron Delta Kappa National Leadership Society. He then attended the University of Virginia School of Law, where he was elected to the Order of the Coif upon his graduation in 1985.

Christopher A. Olcott, McCandlish Holton, P.C. / Richmond (Expand/Collapse Bio)

Christopher A. Olcott, co-author of Chapter 10, is an Associate with McCandlish Holton, P.C. in Richmond. His practice is concentrated in commercial real estate development and health care. He received a B.S. in 2011 from the University of Virginia and a J.D. in 2014 from William & Mary Law School.

Carrie Hallberg O’Malley, Hirschler Fleischer, P.C. / Fredericksburg (Expand/Collapse Bio)

Carrie Hallberg O’Malley, co-author of Chapters 2 and 10 and Appendices 11-3 and 11-4, is a partner in the commercial real estate and finance practice at Hirschler Fleischer with more than 15 years of legal and business experience in commercial real estate transactions. Ms. O’Malley joined Hirschler Fleischer’s Richmond office as a summer clerk and began her practice in the firm’s Commercial Real Estate and Finance Section in the fall of 1996. After an 18-month sabbatical during which she served as counsel and vice president of the Richmond National Title Services Division of Fidelity National Title Insurance Company, she returned to Hirschler Fleischer in 2004 to practice in the firm’s Fredericksburg office. Ms. O’Malley concentrates her practice on complex real estate acquisitions, sales, financings and securitizations; loan portfolio acquisitions, sales and servicing transactions; commercial leasing matters; section 1031 like-kind exchanges; workouts; defeasances; and telecommunications law.

Ms. O’Malley received her B.S.B.A. with concentrations in finance and marketing from the E. Claiborne Robins School of Business at the University of Richmond in 1991. In 1996, she received her law degree from the T.C. Williams School of Law and her Master of Business Administration from the Richard S. Reynolds Graduate School of Business at the University of Richmond, in a four-year joint degree program which she completed after only three years of study.

Ms. O’Malley has been recognized among the “Legal Elite” by Virginia Business magazine and has been named a “Legal Rising Star” by Law & Politics. In 2009, she received the Women of Distinction Award in Law from the Girl Scout Commonwealth Council of Virginia, and in 2010 she was selected by Virginia Lawyers Media as one of the “Influential Women of Virginia.”

Eric C. Perkins, Perkins Law PLLC / Richmond (Expand/Collapse Bio)

Eric C. Perkins, Esq., is the author of Chapter 5 and Appendix 11-6 and a co-author of Chapter 10. He is the founding owner of Perkins Law PLLC, a small business, franchising, and nonprofit law firm. Mr. Perkins’ practice focuses on business contracts, transactions and compliance matters for small businesses and nonprofit organizations. He serves clients in variety of industries, ranging from real estate, professional services, information technology, restaurants, youth sports, senior care, transportation, to professional wrestling. Mr. Perkins is a frequent author and speaker on a variety of business and nonprofit law topics. He chairs the national Tennis Rules and Regulations Committee for the United States Tennis Association and is a member of the ABA Forum on Franchising, Virginia Franchise Forum, Henrico Business Leaders, Greater Richmond Chamber of Commerce, Center for Nonprofit Excellence, ConnectVA, Richmond Tennis Association, and Short Pump Rotary Club.

Jane Whitt Sellers, McGuireWoods LLP / Richmond (Expand/Collapse Bio)

Jane Whitt Sellers, author of Chapter 4, co-author of Chapter 10, and Appendices 11-9 through 11-12, is a partner in the Corporate Services department of McGuireWoods LLP. She has substantial experience in working with public and private companies and their boards on corporate finance matters, securities compliance, mergers and acquisitions, and corporate governance. She has represented issuers in a wide range of financing transactions including syndicated loan agreements and public and private offerings (including Rule 144A offerings) of debt and equity securities as well as hybrid securities such as equity units, convertible notes, junior subordinated notes, and trust preferred securities. Her experience also includes equity self-tenders and other repurchases as well as liability management transactions such as tender and exchange offers and consent solicitations for outstanding debt securities.

Ms. Sellers advises on 1934 Act reporting and proxy statements, shareholder proposals, proxy contests, and executive compensation disclosures. She is on the firm’s climate change team, advising on SEC disclosures and due diligence matters. Corporate governance issues in which she has been involved include majority vote for director elections, shareholder-called special meetings, proxy access and majority written consents. Her mergers and acquisitions experience includes stock and asset acquisitions and divestitures, including spin-offs, as well as corporate level mergers.

Ms. Sellers earned a B.A., cum laude, from Hollins College in 1975, an M.S. from Virginia Polytechnic Institute in 1977, and a J.D. from the University of Virginia School of Law in 1980, where she was elected to the Order of the Coif. She is a member of the Virginia State Bar, the North Carolina State Bar, and various state and local bar associations in Virginia and North Carolina. Ms. Sellers is admitted to practice before Virginia and North Carolina courts, the Fourth Circuit Court of Appeals, the United States District Courts for the Eastern and Western Districts of Virginia, and the United States Bankruptcy Courts for the Eastern and Western Districts of Virginia.

Michael H. Terry, Hirschler Fleischer, P.C. / Richmond (Expand/Collapse Bio)

Michael H. Terry, co-author of Chapters 2, 3, and 10, and Appendices 11-3 and 11-4, is a partner, member of the Board of Directors, the Executive Committee, and Past Chairman of the Commercial Real Estate and Finance Section of Hirschler Fleischer, P.C., where he practices in the areas of commercial real estate and workouts and reorganizations. Mr. Terry represents several lending institutions and investors in connection with their loans and investments in Virginia and throughout the southeast. He also represents developers, property owners and tenants in connection with the acquisition, development, financing and leasing of income producing property and raw land for office complexes, corporate headquarters, planned unit developments and retail projects.

Mr. Terry earned a B.A. (magna cum laude, Phi Beta Kappa) from the University of Richmond in 1978 and a J.D. from the Marshall-Wythe School of Law at the College of William and Mary in 1982. Mr. Terry is a frequent lecturer on various real estate law topics and is listed in Best Lawyers in America under the category of real estate law, and as leading Individual (Real Estate) in Chambers & Partners, America’s Leading Lawyers for Business (since 2004). Mr. Terry is also a member of the Richmond Real Estate Group and the American College of Real Estate Lawyers.

Anne M. Vaughan, Hirschler Fleischer, P.C. / Richmond (Expand/Collapse Bio)

Anne M. Vaughan, co-author of Chapters 3 and 10, and Appendices 11-3 and 11-4, is an of-counsel attorney with Hirschler Fleischer, P.C. She practices in the Commercial Real Estate and Finance Section, with a focus in the areas of commercial real estate acquisitions, sales, negotiations, property assemblages, leasing agreements, financings and planned unit developments. Ms. Vaughan earned a B.A., cum laude, from Georgetown University in 1992 and a J.D., with honors, from the George Washington University Law School in 1997. Ms. Vaughan is a member of the American Bar Association, the Virginia Bar Association, the Richmond Bar Association, the Washington State Bar Association, and the District of Columbia Bar Association.

Prices

Print - $195
Download - $195
CD-ROM - $195
USB Flash Drive - $195
Both Print and Download - $220
Both Print and CD-ROM - $220
Both Print and USB Flash Drive - $220
Purchase Options
  • Add to Cart
Related Products

CONTACT US

Our Address

  • 105 Whitewood Road
    Charlottesville, VA 22901

JOIN OUR MAILING LIST:

  • Virginia CLE® is the non-profit educational division of the Virginia Law Foundation.

© 2016 Virginia Law Foundation