Contract Law in Virginia

Contract Law in Virginia
Publication Date: December 2019 (2020 Edition)
Electronic Forms: 32
Available Formats: Print (1,221 pages, softcover, 2 volumes)
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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
  • The Uniform Commercial Code
  • Special Types of Contracts
  • General Drafting Principles
  • Remedies for Breach of Contract
  • Resolving Contract Disputes Through Alternative Dispute Resolution
  • Litigating a Contract Case

Contract Law in Virginia is a practice-oriented handbook for both the novice and seasoned Virginia practitioner, combining coverage of Virginia contract law, drafting techniques, and practical guidance as to handling contract disputes through alternative dispute resolution and litigation. This handbook also includes numerous forms, many of which contain commentary on their use in Virginia.” - Peter Roane, Virginia CLE Editor in Chief

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 contract law to different types of contracts. Special case law rules and statutes are highlighted that affect different types of contracts.

This 2020 edition provides essential updates to Virginia and federal statutory and case law, including the following, to name just a few: new decisions in the areas of election of remedies and specific performance, activities of the Consumer Financial Protection Bureau, discovery of electronically stored information in contract litigation, and inadvertent transmission of a document containing electronically stored information that is privileged.


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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. The Uniform Commercial Code

11. Special Types of Contracts

12. General Drafting Principles

13. Remedies for Breach of Contract

14. Resolving Contract Disputes Through Alternative Dispute Resolution

15. 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 the Debt, Default, or Misdoings of Another
        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 ADDITIONAL 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 DISCUSSING 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 8.1A-308

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 Eligibility of Class Members 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 Distinguished

7.3 PAROL EVIDENCE RULE
        7.301 In General
        7.302 Applicability of the Parol 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/Estates/Wills
        7.504 Banking
        7.505 Bankruptcy
        7.506 Corporate Directors
        7.507 Disability Benefits/Individuals with Disabilities Education Act Contracts
        7.508 Family Law—Marital Agreements
        7.509 Health Care
        7.510 Insurance
        7.511 Labor and Employment Contracts
        7.512 Materialmen Under a Contractor’s Bond
        7.513 Owner-Architect Contracts
        7.514 Product Liability
        7.515 Product Warranties
        7.516 Public Finance
        7.517 Real Estate
        7.518 Releases
        7.519 Shipping Contracts
        7.520 Stock Purchase Agreement

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—NOTE

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: THE UNIFORM COMMERCIAL CODE

10.1 INTRODUCTION
        10.101 Commercial Contracts
        10.102 UCC Definitions

10.2 CREATING THE CONTRACT
        10.201 In General
        10.202 Offer and Acceptance
        10.203 The Statute of Frauds

10.3 THE PAROL EVIDENCE RULE.
        10.301 In General
        10.302 Explanation or Supplementation of Terms

10.4 PERFORMANCE
        10.401 Seller’s Obligation to Deliver
        10.402 Buyer’s Obligation to Pay and Right to Inspect
        10.403 Buyer’s Rejection, Acceptance, and Revocation of Acceptance
        10.404 Impracticability

10.5 WARRANTIES
        10.501 In General
        10.502 Warranty of Title and Warranty Against Infringement
        10.503 Implied Warranty of Merchantability
        10.504 Implied Warranty of Fitness for a Particular Purpose
        10.505 Express Warranties
        10.506 Disclaimer of Warranties
        10.507 Limitation of Damages for Breach of Warranty

CHAPTER 11: SPECIAL TYPES OF CONTRACTS

11.1 CONSTRUCTION CONTRACTS
        11.101 Introduction
        11.102 American Institute of Architects Form Contracts
        11.103 Provisions Common in Owner-Contractor Contracts
        11.104 Subcontractor Provisions
        11.105 Delay in Performance
        11.106 Conclusion

11.2 CONSUMER CONTRACTS
        11.201 Introduction
        11.202 Common Law
        11.203 Statutes Affecting Consumer Contracts
        11.204 Virginia Recovery Funds
        11.205 Consumer-Related Business Promotions
        11.206 Contractual Merger and Disclaimer
        11.207 Misrepresentations and Other Offenses
        11.208 Collections
        11.209 Residential Leases
        11.210 Residential Real Estate Contracts
        11.211 Real Estate Settlement Procedures Act
        11.212 Mortgage Lending Contracts
        11.213 Real Estate Foreclosure

11.3 ELECTRONIC CONTRACTS
        11.301 Introduction
        11.302 “Writing” and “Record” Defined
        11.303 Uniform Electronic Transactions Act (UETA)
        11.304 The Statute of Frauds
        11.305 Clickwrap Contracts
        11.306 Browsewrap Contracts
        11.307 Uniform Computer Information Transactions Act
        11.308 Electronic Signatures in Global and National Commerce Act

11.4 EMPLOYMENT CONTRACTS
        11.401 At-Will Doctrine
        11.402 Exceptions to the At-Will Doctrine
        11.403 Employment Agreement Drafting Tips

11.5 GOVERNMENT CONTRACTS
        11.501 Introduction
        11.502 Federal Government Contracting
        11.503 Virginia Public Contracts

11.6 INTELLECTUAL PROPERTY CONTRACTS: A BRIEF OVERVIEW
        11.601 Introduction
        11.602 License Agreements—Common Elements
        11.603 Evaluation Agreements
        11.604 Employee Invention and Nondisclosure Agreements
        11.605 Uniform Computer Information Transactions Act
        11.606 Patentability and Protection of Business Method     Processes

11.7 LENDING AGREEMENTS
        11.701 Introduction
        11.702 Interest and Usury
        11.703 Lending Agreements as Negotiable Instruments
        11.704 Security Interests
        11.705 Guarantors and Co-Obligors
        11.706 Seals

11.8 REAL ESTATE CONTRACTS
        11.801 Introduction
        11.802 Formation and Validity of the Contract
        11.803 Consideration
        11.804 Description of Real Property
        11.805 Description of Personal Property
        11.806 Contract Conditions

APPENDIX 11-1: EXCLUSIVE PATENT LICENSE AGREEMENT

APPENDIX 11-2: LICENSE AGREEMENT

APPENDIX 11-3: SOFTWARE LICENSE AGREEMENT

APPENDIX 11-4: TECHNOLOGY DEVELOPMENT AGREEMENT

APPENDIX 11-5: CONFIDENTIALITY AGREEMENT FOR PRODUCT EVALUATION

APPENDIX 11-6: PROPRIETARY INFORMATION, INVENTIONS, AND NON-SOLICITATION AGREEMENT

CHAPTER 12: GENERAL DRAFTING PRINCIPLES

12.1 GOALS AND STRATEGIES
        12.101 Environmental Conditions
        12.102 Zoning
        12.103 Foundation
        12.104 Local Design Approval
        12.105 Choice of Building Materials
        12.106 Form
        12.107 Function

12.2 FUNCTION
        12.201 Identification of the Parties
        12.202 Clearly Stated Mutual Obligations
        12.203 Allocation of Risk

12.3 TOP TEN DRAFTING TECHNIQUES
        12.301 Active Voice
        12.302 Remedies Other Than Termination
        12.303 Inconsistencies
        12.304 Whether Multiple Parties’ Responsibilities Are Joint or Several
        12.305 Exhibits When Client Input Is Needed
        12.306 Successors and Assigns
        12.307 Notice, Notice, Notice
        12.308 Choice of Law and Choice of Forum Provisions, Especially in International     Contracts
        12.309 Written Amendments
        12.310 Defined Terms

APPENDIX 12-1: SAMPLE INTERNATIONAL DISTRIBUTION AGREEMENT WITH COMMENTARY

APPENDIX 12-2: STOCK PURCHASE AGREEMENT

APPENDIX 12-3: REAL ESTATE PURCHASE AGREEMENT

APPENDIX 12-4: PURCHASE AND SALE AGREEMENT

APPENDIX 12-5: SAMPLE OPERATING AGREEMENT WITH COMMENTARY FOR A LIMITED LIABILITY COMPANY

APPENDIX 12-6: EMPLOYMENT AGREEMENT

APPENDIX 12-7: SAMPLE SHAREHOLDERS’ AGREEMENT WITH COMMENTARY

APPENDIX 12-8: PROMISSORY NOTE

APPENDIX 12-9: GUARANTY

APPENDIX 12-10: SECURITY AGREEMENT

APPENDIX 12-11: STOCK PLEDGE AGREEMENT

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

APPENDIX 12-13: LIMITATION OF THIRD-PARTY BENEFIT PROVISION

APPENDIX 12-14: SEVERABILITY PROVISION

APPENDIX 12-15: MERGER PROVISION

APPENDIX 12-16: SURVIVAL PROVISION

CHAPTER 13: REMEDIES FOR BREACH OF CONTRACT

13.1 INTRODUCTION

13.2 ELECTION OF REMEDIES
        13.201 Tort Versus Contract.
        13.202 Law Versus Equity
        13.203 Cases Decided Under Former Bifurcated System of Law and Equity
        13.204 Irreconcilable Claims and Double Recovery

13.3 DAMAGES
        13.301 In General
        13.302 Direct Damages
        13.303 Consequential Damages
        13.304 Damages Under the Virginia Uniform Commercial Code
        13.305 Lost Profits
        13.306 Nominal Damages
        13.307 Contractual Modification, Limitation, or Exclusion of Damages and     Remedies
        13.308 Liquidated Damages Clauses
        13.309 Mitigation of Damages and the Doctrine of Avoidable Consequences.
        13.310 Punitive Damages
        13.311 Purely Economic Losses and the “Economic Loss Rule”
        13.312 Contract Provisions Permitting Recovery of Attorney Fees and Litigation     Expenses
        13.313 The “First in Fault Rule” as a Bar to Recovery of Damages for Breach

13.4 SPECIFIC PERFORMANCE
        13.401 In General
        13.402 Specific Performance Under the UCC
        13.403 Specific Performance of Real Estate Contracts
        13.404 Specific Performance of Other Types of Contracts
        13.405 Establishing the Right to Specific Performance
        13.406 Effect of Agreement That Specific Performance Is Appropriate Remedy
        13.407 Effect of Liquidated Damages Clauses on Right to Demand Specific     Performance
    
13.5 INJUNCTIONS
        13.501 In General
        13.502 Statutory Authority to Award Injunctions
        13.503 Temporary and Permanent Injunctions
        13.504 Standards for Granting Injunctive Relief
        13.505 Procedural Issues in Obtaining Injunctive Relief
        13.506 Injunctions Under Specific Statutes
        13.507 Injunctions to Enforce Non-Competition Agreements in Employment     Contracts

13.6 RESCISSION
        13.601 In General
        13.602 Rescission Versus Specific Performance
        13.603 Grounds for Rescission
        13.604 Rescission of Sales Contracts Under the UCC
        13.605 Rescission as a Remedy for Creditors
        13.606 Rescission of Settlement Agreements
        13.607 Rescission as a Remedy for Breach of Contract
        13.608 Relief Awarded When Rescission Is Granted
        13.609 Waiver of Right to Seek Rescission

13.7 RESTITUTION
        13.701 In General
        13.702 Return of Specific Property or Money Held by the Defendant
        13.703 Payment of Money Damages as Compensation to the Plaintiff.
        13.704 Return of the Full Value of the Unjust Benefit Gained by the Defendant
        13.705 Amount of Restitution Limited to Benefit Received
        13.706 Imposition of a Constructive Trust

13.8 REFORMATION
        13.801 In General
        13.802 Standard of Proof
        13.803 Ambiguity and the Parol Evidence Rule
        13.804 Pleading
        13.805 Parties
        13.806 The Doctrine of Laches
    
13.9 DECLARATORY JUDGMENTS
        13.901 In General
        13.902 Right to Seek Additional Relief
        13.903 Right to a Jury Trial

13.10 INDEMNITY

13.11 ARBITRATION AGREEMENTS

13.12 DAMAGES FOR TORTIOUS INTERFERENCE WITH A CONTRACT

13.13 ACTUAL AND CONSTRUCTIVE FRAUD IN THE INDUCEMENT
        13.1301 In General
        13.1302 Elements of a Claim for Actual Fraud
        13.1303 Elements of a Claim for Constructive Fraud
        13.1304 Damages
        13.1305 Conditions Precedent to Initiating Legal Action

CHAPTER 14: RESOLVING CONTRACT DISPUTES THROUGH ALTERNATIVE DISPUTE RESOLUTION

14.1 OVERVIEW OF ALTERNATIVE DISPUTE RESOLUTION
        14.101 In General
        14.102 The Problem With Litigation
        14.103 The Case for ADR

14.2 ADR PROCESSES
        14.201 Primary, Hybrid, and Other ADR Processes
        14.202 Primary ADR Processes
        14.203 Comparison of Litigation to the Primary ADR Processes
        14.204 Hybrid ADR Processes
        14.205 Other ADR Processes

14.3 REASONS TO INCLUDE A PREDISPUTE ADR CLAUSE
        14.301 More Effective Dispute Resolution Processes
        14.302 The Fear Factor
        14.303 The Inevitability of Conflict
    
14.4 CHECKLIST FOR DRAFTING AN ADR CLAUSE
        14.401 Is the ADR Clause Enforceable?
        14.402 Should a Standard Boilerplate ADR Clause Be Used?
        14.403 Should a Multi-Step ADR Process Be Used?
        14.404 What Are the Key Issues in Drafting an ADR Clause?
    
CHAPTER 15: LITIGATING A CONTRACT CASE

15.1 INTRODUCTION

15.2 ESTABLISHING A LITIGATION FILING SYSTEM

15.3 DRAFTING INITIAL PLEADINGS
        15.301 In General
        15.302 The Plaintiff’s Initial Pleadings
        15.303 Causes of Action
        15.304 The Defendant’s Responsive Pleadings
        15.305 Pretrial Motions

15.4 THE DISCOVERY PROCESS
        15.401 In General
        15.402 Rule 4:1: General Provisions Involving Discovery
        15.403 Requests for Admissions
        15.404 Requests for Stipulations
        15.405 Rule Revisions Relating to Discovery

15.5 NECESSARY OR INDISPENSABLE PARTIES

15.6 TRIAL PREPARATION
        15.601 Creating a Working Narrative
        15.602 Applying the Evidence to the Narrative
        15.603 Using Enlargements
        15.604 Creating Trial Preparation Checklists
        15.605 Compiling Bench Books

15.7 TRIAL
        15.701 In General
        15.702 Opening Statement
        15.703 Witnesses
        15.704 Introduction of Documents
        15.705 Objections
        15.706 Closing Argument
    
APPENDIX 15-1: FILE MANAGEMENT

APPENDIX 15-2: TRIAL CHECKLIST

APPENDIX 15-3: SECOND CHAIR TRIAL CHECKLIST

APPENDIX 15-4: COMPLAINT—NOTE AND GUARANTY

APPENDIX 15-5: COMPLAINT—SPECIFIC PERFORMANCE AND DAMAGES

APPENDIX 15-6: COMPLEX CONTRACT ACTION

TABLE OF AUTHORITIES

INDEX


Authors

Editors

John V. Little, MichieHamlett, PLLC / Charlottesville (Expand/Collapse Bio)

John V. Little, editor of this handbook and author of Chapters 1, 9, and 11.3, was a principal with MichieHamlett, where he practiced 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 was listed in Best Lawyers in America under the categories of corporate law and real estate law.

Authors

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

Nicholas V. Albu, author of Chapter 6, is a partner in the Global Commercial Disputes Group in Reed Smith’s Tysons, Virginia office. Mr. Albu represents businesses of all sizes in arbitrations and courts across the country, particularly in Virginia’s state and federal courts. His experience includes litigating matters involving breach of contract, fraud, conspiracy, tortious interference, conversion, defamation, misappropriation of intellectual prop¬erty, defective products and real property damage. Mr. Albu also represents individuals and developers in zoning and land use disputes from commencement at the local level to the Supreme Court of Virginia. Mr. Albu’s experience before administrative boards and trial and appellate courts includes matters involving zoning ordinance amendments, zoning inter¬pretations and determinations, special exception permits, rezonings, site plan disapprovals, proffers and conditions, regulatory takings, piecemeal down¬zonings, building and zoning permits, and zoning moratoriums. In addition to prosecuting and defending commercial and real estate disputes, Mr. Albu represents high net worth individuals in contentious fiduciary litigation, including breach of fiduciary duty claims, trust and estate disputes, and shareholder actions. Mr. Albu is a 2009 graduate of Washington and Lee University School of Law.

Ambika J. Biggs, Hirschler Fleisher, P.C./ Tysons (Expand/Collapse Bio)

Ambika J. Biggs, author of Chapter 11.5, is a partner in the Tysons office of Hirschler. She focuses her practice on representing clients in government contracting matters such as bid protests, size and status protests, False Claims Act investigations, claims, and general counseling issues. She also is an experienced commercial litigator.

Elizabeth Boison, Department of Justice (Expand/Collapse Bio)

Elizabeth (“Liz”) Boison, co-author of Chapter 11.2, is a Trial Attorney at the Department of Justice who previously held various senior roles at the Con¬sumer Financial Protection Bureau. As a member of the initial team of at¬torneys hired to stand up the Bureau’s Office of Enforcement in 2011, Liz brought some of the Bureau’s first district court litigation before becoming Senior Counsel to the Deputy Director and Acting Associate Director for Supervision, Enforcement, and Fair Lending. Prior to joining the Bureau, Liz worked as an Associate at Willkie, Farr & Gallagher in Washington, DC investigating and litigating complex securities, antitrust, and accounting cases at both the trial and appellate level. Liz comes from a background in financial services prior to her legal career.

Kelly J. Bundy, Hirschler Fleisher, P.C./ Richmond (Expand/Collapse Bio)

Kelly J. Bundy, author of chapter 8, focuses her practice on construction, commercial and product liability law, with an emphasis on dispute reso-lution—including mediation, arbitration, and jury and bench trials in state and federal court. She counsels clients on a wide array of commercial and business matters and disputes, including: claims and disputes arising from delay and inefficiency, defection work, payment disputes, performance and payment bonds, mechanic’s liens, design and construction and other project-related matters; product liability claims and disputes related to industrial and consumer products; OSHA compliance, investigations, and citations; business torts and contract claims; and the negotiation and drafting of contracts.

In 2017, Kelly was named an ABA Construction Law Forum Diversity Fellow, for which she is serving a three-year term. She is an active member of Hirschler’s Diversity and Inclusion Committee, co-chair of the Women’s Ini¬tiatives Network, and an editor for the Construction Law Blog.

Kelly earned her undergraduate degree cum laude from Washington & Lee University and her law degree cum laude from the University of Richmond School of Law.

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 Exam¬iners 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.

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

Peter L. Henderer, 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.

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

John A. C. Keith, author of Chapter 14, 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.

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

Thomas A. Leggette, co-author of Chapter 11.2, is a solo practitioner in Falls Church with 42 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 favorable decisions in civil RICO cases. He no longer accepts any cases for a fee, limiting his practice to pro bono work. 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 Federation of Defense and Corporate Counsel’s Update. He is a member of the American Bar Association and McLean Estate Planning Council.

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

Mark D. Loftis, author of Chapter 13, 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 has been named a Virginia Super Lawyer in the area of product liability defense and is listed in Best Lawyers in America, which has also recognized him as a 2020 Lawyer of the Year for Roanoke. In addition, Mr. Loftis is 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.

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

Charles V. (“Chuck”) McPhillips, author of Chapter 12 and Appendices 12-1, 12-5, and 12-7, is a partner in the commercial law section of Kaufman & Canoles, P.C., and concentrates his practice in corporate and business law, mergers and acquisitions, public-private partnerships, and international transactions. Mr. McPhillips is a fellow of the Virginia Law Foundation and is perennially listed in Best Lawyers in America and Virginia Business magazine’s “Legal Elite.” He is AV rated by Martindale Hubbell. Mr. McPhillips graduated magna cum laude from Hampden-Sydney College in 1982, where he was elected to Phi Beta Kappa and Omicron Delta Kappa National Leadership Society. Mr. McPhillips attended the University of Virginia School of Law, where he was elected to the Order of the Coif upon his graduation in 1985. He is president of Greater Norfolk Corporation, chairman of the James Barry-Robinson Home for Boys Trust, chairman of the Barry Robinson Center, chairman of The Elizabeth River Trail Foundation; a member of the board of directors of the Catholic Community Foundation; and a former trustee of Hampden-Sydney College. Mr. McPhillips served as founding chairman of Saint Patrick Catholic School and continues to serve on its board of directors. He is the immediate past chairman of the McMahon-Parater Foundation, past chairman of the Virginia Stage Company, and a past chairman of the International Practice Section of the Virginia State Bar. He lectures frequently to lawyer and nonlawyer audiences on various business and international law topics.

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

Carrie Hallberg O’Malley, author of Chapters 2, 3, 11.1, and 11.8 and co-author of Appendices 12-3 and 12-4, is a shareholder with Hirschler Fleischer. Carrie 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 eighteen month sabbatical during which she served as counsel and vice president of the Richmond Na¬tional Title Services Division of Fidelity National Title Insurance Company, Carrie returned to Hirschler Fleischer to practice in the firm’s Fredericks¬burg office in 2004. With over 20 years of legal and business experience in commercial real estate transactions, Carrie concentrates her practice on complex real estate acquisitions, sales, financings and securitizations; loan portfolio acquisitions, sales and servicing transactions; commercial leasing matters, § 1031 like-kind exchanges; loan workouts; defeasances and tele¬ communications law.

Carrie 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, Carrie received her law degree from the T.C. Williams School of Law and her Masters in Business Administration from the Richard S. Reynolds Graduate School of Business at the University of Richmond (a four-year joint degree program), which Carrie completed after only three years of study.

Carrie has been recognized among the “Legal Elite” by Virginia Business magazine (2006-2011, 2013-2014) and has been named a “Legal Rising Star” by Law & Politics (2007 and 2009). In 2009, she received the Women of Distinction Award in Law from the Girl Scout Commonwealth Council of Virginia, and in 2010 Carrie 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, Chapter 11.4, and Appendix 12-6. 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 a variety of industries, ranging from real estate, professional services, information technology, restaurants, youth sports, and senior care to professional wrestling. Mr. Perkins is a frequent author and speaker on a variety of business and nonprofit law topics. He serves on the national Sportsmanship Committee for the United States Tennis Association and is a member of the ABA Forum on Franchising, Virginia Franchise Forum, Goochland 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 Chapters 4 and 11.7 and co-author of Ap-pendices 12-8 through 12-11, is a partner in the Securities Department of McGuireWoods LLP. She has substantial experience in working with public and private companies and their boards on corporate finance matters, securities issues, mergers and acquisitions, corporate governance, and executive compensation. She has represented issuers, underwriters, and lenders in numerous financing transactions ranging from traditional loan agreements to public and private offerings (including Rule 144A offerings) of debt and equity securities, including hybrid securities such as trust preferred securities. Ms. Sellers’ mergers and acquisitions experience includes private stock and asset acquisitions and divestitures as well as multibillion dollar public company mergers. She has been regularly involved in public company periodic reporting and annual meeting matters, including shareholder proposals.

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 Caro¬lina. Ms. Sellers is admitted to practice before Virginia and North Carolina courts, the Fourth Circuit Court of Appeals, and the United States District Courts for the Eastern and Western Districts of Virginia.

David W. Thomas, MichieHamlett, PLLC/ Charlottesville (Expand/Collapse Bio)

David W. Thomas, author of Chapters 15 and 11.6, 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. A 1998 graduate of Thomas Jefferson High School for Science and Technology in Alexandria, he earned a B.A., magna cum laude, in 2002 from Swarthmore College and a J.D. in 2005 from the University of Virginia School of Law, where he was Chancellor of the Lile Moot Court. After clerking in federal court and practicing antitrust and securities law for a multinational law firm, Mr. Thomas joined MichieHamlett in 2008. Mr. Thomas has been an adjunct professor of trial advocacy at the University of Virginia School of Law since 2009, is the editor of Virginia Forms, Volume 3A (UCC), and currently serves as a member of the Virginia State Bar’s 7th District Disciplinary Committee and on the board of the Ronald McDonald House of Charlottesville. A regular lecturer, Mr. Thomas teaches the Commercial Law portion of Virginia CLE’s Recent Developments in the Law program as well as courses on the ethics of technology.

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