| Publication Date: | 2022 |
| Electronic Forms: | 150+ |
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Summary of Contents:
“Whether you’re meeting with a new client or with an old client who’s bringing you a new issue, preparation is key to building relationships that last. Turn to The Virginia Lawyer for the quick answers to help you to confidently answer your client’s questions.” -Christine M. Reilly, Senior Publications Attorney
The Virginia Lawyer provides concise analysis, practical advice, and electronic forms from experienced practitioners across a broad spectrum of practice areas. Published in cooperation with The Virginia Bar Association, this two-volume set covers the substance and procedure of the most significant areas of Virginia practice and will quickly focus your research on issues and pitfalls for any new case.
It includes over 150 ready-to-use electronic forms for an array of pleadings, agreements, and transactional documents.
Volume 1
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 Software
1.206 Backing Up Data
1.207 Practicing Law Without a Physical Office
1.3 PROFESSIONAL LIABILITY AND OTHER INSURANCE
1.301 In General
1.302 Types of Malpractice Carriers
1.303 Considerations When Buying Malpractice Coverage
1.304 Other 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
1.701 Determining Deadlines
1.702 Calendar Solutions
1.8 FEES
1.801 Reasonableness
1.802 Contingent Fees
1.803 Fiduciary Compensation
1.804 Hourly Fees
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 TRUST ACCOUNTS
1.1001 Duty to Safeguard Client’s Funds and Property
1.1002 Rule 1.15 Generally
1.1003 Scope of Rule 1.15
1.1004 Other Property
1.1005 Types of Trust Accounts
1.1006 Interest and Other Investments
1.1007 Record-Keeping and Accounting
1.1008 Deposits into Trust Accounts
1.1009 Withdrawals from Trust Accounts
1.1010 Liability for Violations
1.11 PLANNING FOR THE SUCCESSION OF A LAW PRACTICE
1.1101 Notifying Clients
1.1102 Expert Advice
1.1103 Sale of Practice
APPENDIX 1-1: NONENGAGEMENT LETTER
APPENDIX 1-2: FILL-IN-THE-BLANKS REPRESENTATION
AGREEMENT
APPENDIX 1-3: ENGAGEMENT LETTER 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
2.101 In General
2.102 Resources
2.2 ADVERTISING AND SOLICITATION
2.201 Basic Rule
2.202 Mail and Email
2.203 Direct Contact with Potential Clients
2.204 Lawyer Referral Services
2.3 CREATING THE ATTORNEY-CLIENT RELATIONSHIP AND
DETERMINING REASONABLE FEE AGREEMENTS
2.301 Avoiding 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 AND LOYALTY TO
CLIENTS: AVOIDING CONFLICTS OF INTEREST
2.501 Basic Rule
2.502 Potential Conflicts of Interest
2.503 Per Se Conflicts
2.504 Concurrent Representation of Adverse Clients in
Unrelated Matters
2.505 Representing Clients Adverse to Former Clients
2.506 Representing Multiple Clients in a Single Matter
2.507 Representing Entities and Organizations
2.508 Successive Government and Private Employment
2.509 Providing Limited Pro Bono Services
2.510 Conflicts Between Insurer and Insured
2.511 Petitioning for Guardianship for Impaired Client
2.512 Conflicts Involving Governmental Entities, Public
Officials, and Government Lawyers
2.513 Joint Representation of Husband and Wife in an
Uncontested Divorce or Property Settlement
2.514 Client Referred from Mediation to Legal Representation
2.515 Prospective Clients
2.6 CONFIDENTIALITY: PROTECTING CLIENT CONFIDENCES
AND SECRETS
2.601 In General
2.602 Disclosures Permitted by Rule 1.6(b)
2.603 Mandatory Disclosures Under Rule 1.6(c)
2.604 Disclosure Obligations for Attorneys Appearing Before
the Securities and Exchange Commission
2.605 Protection of Client Information
2.606 Attorney-Client Privilege Waived by Inadvertent
Disclosure
2.7 SAFEKEEPING PROPERTY AND TRUST ACCOUNTING
2.701 Rules Governing Trust Accounts and Interest on
Lawyers Trust Accounts
2.702 IOLTA Accounts
2.703 Non-IOLTA Accounts
2.704 Approved Financial Institutions
2.705 Funds Deposited in the Trust Account
2.706 Notification of Receipt of Funds
2.707 Accounting
2.708 Prompt Payment or Delivery of Funds
2.709 Recordkeeping Requirements
2.710 Required Accounting Procedures
2.711 Disbursement on Uncollected Funds Improper
2.712 Lawyer’s Responsibility for Nonlawyer Support Staff
2.713 Risk Management and Good Practices
2.8 FAIRNESS IN DEALING WITH OPPOSING AND THIRD
PARTIES
2.801 Receiving Inadvertently Transmitted Confidential
Information
2.802 Using Surreptitious Means to Acquire Information
During Investigations
2.803 Communicating with Persons Represented by Counsel
2.804 Communicating with Adversary’s Expert
2.805 Communicating with Adversary’s Health Care Provider
2.806 Dealing with Unrepresented Persons
2.9 SUMMARY AND REVIEW: AVOIDING BAR COMPLAINTS
2.901 Common Complaints Against Lawyers
2.902 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 Commencement 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 Appellate Practice Rules
3.219 Settlement of Cases
3.220 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
3.5 ALTERNATIVE DISPUTE RESOLUTION
3.501 Introduction
3.502 Continuum of Dispute Resolution Options
3.503 Mediation
3.504 Arbitration
APPENDIX 3-1: NOTICE OF PRESENTATION OF ORDER
APPENDIX 3-2: LIST OF STANDARD GENERAL DISTRICT COURT
FORMS
APPENDIX 3-3: COMPLAINT—VEHICLE ACCIDENT
APPENDIX 3-4: COMPLAINT—BODILY INJURY
APPENDIX 3-5: ORDER APPOINTING DEFENDANT’S ATTORNEY
AS GUARDIAN AD LITEM
APPENDIX 3-6: ORDER EXTENDING TIME TO FILE
RESPONSIVE PLEADINGS
APPENDIX 3-7: RESPONSIVE PLEADING
APPENDIX 3-8: DEMURRER
APPENDIX 3-9: MOTION OF DEFENDANT FOR A BILL OF
PARTICULARS
APPENDIX 3-10: SPECIAL PLEA OF THE STATUTE OF
LIMITATIONS
APPENDIX 3-11: ANSWER
APPENDIX 3-12: MOTION FOR SUMMARY JUDGMENT
APPENDIX 3-13: PRAECIPE
APPENDIX 3-14: REQUEST TO CLERK TO ISSUE
SUBPOENAS
APPENDIX 3-15: JUDGMENT ORDER—BENCH TRIAL
APPENDIX 3-16: JUDGMENT ORDER—JURY VERDICT FOR
PLAINTIFF
APPENDIX 3-17: JUDGMENT ORDER—JURY VERDICT FOR
DEFENDANT
APPENDIX 3-18: DISMISSAL ORDER
APPENDIX 3-19: RELEASE OF ALL CLAIMS
APPENDIX 3-20: MOTION TO APPROVE COMPROMISE
SETTLEMENT—MINOR PLAINTIFF
APPENDIX 3-21: ANSWER OF DEFENDANT OFFERING
COMPROMISE
APPENDIX 3-22: ANSWER OF THE GUARDIAN AD LITEM
APPENDIX 3-23: ORDER APPROVING SETTLEMENT
APPENDIX 3-24: RECEIPTS
APPENDIX 3-25: JUDGMENT ORDER—WRONGFUL DEATH
SETTLEMENT
APPENDIX 3-26: DETENTION ASSESSMENT INSTRUMENT
CHAPTER 4: EMPLOYMENT LAW: EMPLOYEE RIGHTS
ANDEMPLOYER RESPONSIBILITIES
4.1 INTRODUCTION
4.101 In General
4.102 History of Employment at Will in Virginia
4.2 FEDERAL CIVIL RIGHTS STATUTES
4.201 In General
4.202 42 U.S.C. § 1981
4.203 42 U.S.C. § 1983
4.204 Attorney Fees
4.205 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”
4.504 Duty of Reasonable Accommodation
4.505 Undue Hardship
4.506 Remedies
4.507 Business Necessity Defense
4.508 Rehabilitation Act
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
4.705 Exemptions from Minimum Wage and Overtime
4.706 Job Requirements Cannot Reduce Pay
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 (EPA)
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 Benefits Continuation
4.912 Other Benefits Required to Be Continued
4.913 Medical Certifications
4.914 Employer Records
4.915 Other Employee Rights
4.916 Interaction with the Americans with Disabilities Act
4.10 UNIFORMED SERVICES EMPLOYMENT AND
REEMPLOYMENT RIGHTS ACT (USERRA)
4.1001 In General
4.1002 Coverage
4.1003 Notice to Employer
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 Reinstatement of Health Benefits
4.1016 Retention Rights
4.11 OCCUPATIONAL SAFETY AND HEALTH ACTS,
FEDERAL AND STATE (OSHA)
4.1101 In General
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 Penalties and Remedies
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 Occupational Disease
4.14 SOCIAL MEDIA POLICIES
4.1401 Potential Risks Related to Social Media Use
4.1402 Employees’ Use
4.1403 Supervisors’ Use
4.1404 Potential Risks Relating to Social Media Regulation
4.1405 Employment Law Statutes
4.1406 Key Social Media Policy Provisions
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 Benefit Corporations
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
5.5 CONTRACT DRAFTING PRINCIPLES
5.501 Goals and Strategies
5.502 Function of the 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 INCORPORATION WITH
INDEMNITY PROVISIONS
APPENDIX 5-2: SUBSCRIPTION LETTER
APPENDIX 5-3: UNANIMOUS WRITTEN CONSENT IN LIEU
OF ORGANIZATIONAL MEETING
APPENDIX 5-4: CORPORATION BYLAWS
APPENDIX 5-5: PARTNERSHIP AGREEMENT
APPENDIX 5-6: OPERATING AGREEMENT WITH BUY-SELL
PROVISION AND OPTIONAL MANAGER-MANAGEMENT
PROVISIONS
APPENDIX 5-7: ARTICLES OF ORGANIZATION OF A LIMITED
LIABILITY COMPANY
APPENDIX 5-8: IDENTIFICATION OF PARTIES
APPENDIX 5-9: COVENANT NOT TO COMPETE
APPENDIX 5-10: DISTRIBUTOR’S ASSURANCES TO
SUPPLIER
APPENDIX 5-11: STATED OBLIGATIONS
APPENDIX 5-12: LIMITATION OF LIABILITY;
INDEMNIFICATION
APPENDIX 5-13: INDEMNIFICATION
APPENDIX 5-14: INSURANCE
APPENDIX 5-15: REPRESENTATIONS AND WARRANTIES
APPENDIX 5-16: SURVIVAL PROVISION
APPENDIX 5-17: COVENANTS
APPENDIX 5-18: CONDITIONS
APPENDIX 5-19: DISPUTE RESOLUTION
6.1 OVERVIEW
6.101 Scope of Practice of Domestic Relations Law
6.102 Jurisdiction
6.103 Initial Consultation with Client
6.2 GROUNDS OF DIVORCE
6.201 In General
6.202 Grounds of Divorce—Separation of the Parties
6.203 Grounds of Divorce—Fault Based
6.204 Defenses to Divorce Actions
6.205 Obtaining a Divorce
6.206 Obtaining Jurisdiction and Service of Process
6.207 Pre-Trial Motions
6.208 Formal Discovery Methods
6.209 Evidentiary Issues
6.210 Property Settlement Agreements
6.211 Corroboration of Grounds for Divorce
6.212 Final Decree of Divorce (a vinculo matrimonii)
6.213 Legal Effects of Divorce
6.214 Transfer of Divorce Case
6.215 Legal Concerns After the Entry of Final Decree
of Divorce
6.216 Division of Military Pensions after National Defense
Authorization Act of 2017
6.217 Enforcement of Final Decree of Divorce
6.218 Other Types of Relief in Domestic Relations Cases
6.219 Actions to Affirm Marriage
6.220 Actions to Annul Marriage
6.221 Actions for Separate Maintenance
6.3 DIVISION OF PROPERTY—EQUITABLE DISTRIBUTION
6.301 Division of Military Retirement Benefits
6.302 General Principles of Equitable Distribution
6.303 Foreign Divorces
6.304 Exceptions to the Equitable Distribution Statute
6.305 Identification of the Assets
6.306 Legal Title and Ownership of Assets
6.307 Valuation of the Assets
6.308 Classification of Property
6.309 Identification and Classification of Debt
6.310 Statutory Factors of Equitable Distribution
6.311 Division of Property
6.312 Enforcement of Equitable Distribution Award
6.4 DIVISION OF RETIREMENT BENEFITS—FEDERAL LAW
CONTROLS
6.401 Know the Provisions of Federal Retirement Plans
6.402 Division of Retirement Benefits—Property Settlement
Agreements
6.403 Role of Virginia Law in Division of Deferred
Compensation
6.5 NATIONAL DEFENSE AUTHORIZATION ACT OF 2017
6.501 Enactment of the National Defense Authorization
Act of 2017
6.502 Applies to Active Duty Servicemembers
6.503 Definition of Disposable Retired Pay
6.504 Enforcement of Support Orders
6.505 Use of Sample Forms
6.506 Resources
6.6 LIFE INSURANCE AWARDED BY THE COURT
6.7 COURT MAY DECREE MAINTENANCE AND SUPPORT
FOR SPOUSES
6.701 Entitlement to Spousal Support
6.702 Statutory Basis for Spousal Support
6.703 Statutory Factors for Spousal Support
6.704 Pleadings
6.705 Types of Spousal Support
6.706 Duration of Spousal Support
6.707 Burden of Proof
6.708 Reservation of Spousal Support
6.709 Modification of Spousal Support
6.710 Imputation of Income
6.711 Bars to Spousal Support
6.712 Spousal Support Awarded Where There Is
Manifest Injustice
6.713 Written Findings
6.714 Taxation of Spousal Support
6.715 Planning for the Spousal Support Case
6.716 Enforcement of Spousal Support Awards
6.8 CHILD CUSTODY AND VISITATION/PARENTING TIME
6.801 In General
6.802 Jurisdiction
6.803 Pleadings
6.804 Statutory Factors for the Best Interests of the Child
6.805 What Does “Best Interests of a Child” Mean?
6.806 Types of Custody Arrangements
6.807 Guardian Ad Litem
6.808 Virginia Military Parents Equal Protection Act
6.809 Court’s Findings and Order
6.810 Notice of Relocation
6.811 Enforcement of Custody and Visitation Cases
6.812 Modification of Custody and Visitation Orders
6.813 Post-Decree Issues
6.814 Resources
6.9 CHILD SUPPORT
6.901 In General
6.902 Pleadings
6.903 Persons Who Must Pay Child Support
6.904 Duration of Child Support Obligation
6.905 Child Support Guidelines
6.906 Determining Amount of Child Support
6.907 Unreimbursed Medical or Dental Expenses
6.908 Life Insurance
6.909 Income Tax Child Dependency Exemption
6.910 Effective Date of Child Support Orders
6.911 Required Notices
6.912 Qualified Medical Child Support Orders
6.913 Enforcement of Child Support Orders
6.10 SAME-SEX MARRIAGE
6.11 ATTORNEY FEES AND COSTS
6.12 ADOPTION
6.1201 Introduction
6.1202 Legal Basis for Adoption
6.1203 Jurisdiction
6.1204 Venue
6.1205 Proceedings in Juvenile and Domestic Relations
District Court
6.1206 Proceedings in the Circuit Court
6.1207 Agency Placement Adoption
6.1208 Parental Placement Adoption
6.1209 Stepparent Adoption
6.1210 Close Relative Adoption
6.1211 Adult Adoption
6.1212 Foster Care Placement Adoption
6.1213 Special Needs Adoption
6.1214 Interstate Adoption
6.1215 Intercountry Adoption
6.1216 Final Order of Adoption
6.1217 Legal Effects of Adoption
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
SUPPORT (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
APPENDIX 6-14: SAMPLE TERMS AND PROVISIONS FOR A
RAILROAD RETIREMENT ORDER
CHAPTER 7: THE LAW OF DEFAMATION
7.1 INTRODUCTION
7.2 NATURE OF THE COMMUNICATION
7.201 In General
7.202 “Communication” Requirement
7.203 Civil Versus Criminal Defamation
7.204 Libel Versus Slander
7.205 Liability for Third Party’s Defamation
7.206 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 Ironic Nature of the Opinion Doctrine
7.508 Virginia Supreme Court Cases
7.509 Examples of Actionable Statements of Fact
7.510 Examples of Nonactionable Opinion
7.511 Workplace Defamation
7.512 Rhetorical Hyperbole
7.513 Role of Court and Jury
7.6 DEFAMATORY MEANING
7.601 In General
7.602 Per Se Versus Per Quod Defamation
7.603 Elements (Including the “Sting”)
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 Examples of Statements Not Carrying Defamatory
Implication
7.805 Intent
7.806 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 OSHA Preemption
7.1005 Workers’ Compensation Law
7.1006 Arbitration Agreements
7.1007 Compulsory Counterclaims
7.1008 Other Issues
7.11 RELATIONSHIP TO OTHER CLAIMS
7.1101 In General
7.1102 Constitutional Torts
7.1103 Insulting Words
7.1104 Misappropriation of Name or Likeness for
Commercial Purposes
7.1105 Other Common Law Tort Claims by Public Plaintiffs
7.1106 Intentional Infliction of Emotional Distress
7.1107 Intentional Interference with Contract
7.1108 Torts Focusing on the Newsgathering Process
7.1109 Statutory Conspiracy
7.1110 Contracts
7.1111 RICO Claims
7.1112 Other Statutes
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 Relation Back
7.1211 Choice of Law
7.1212 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 Charitable Immunity
7.1408 Judicial Proceedings
7.1409 Quasi-Judicial Proceedings
7.1410 Context of the Statements: Peripheral
Communications
7.1411 Legislative Proceedings
7.1412 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
7.1907 Role of Court and Jury
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 Exhaustion of Remedies
7.2104 Standing
7.2105 Suing the Right Defendant
7.2106 Subject Matter Jurisdiction: Federal Courts
7.2107 Subject Matter Jurisdiction: State Courts
7.2108 Personal Jurisdiction
7.2109 Long-Arm Jurisdiction: Traditional Rules
7.2110 Long-Arm Jurisdiction: Internet Defamation
7.2111 Venue
7.2112 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 New Federal Standard for Motion to Dismiss
7.2208 Preserving Defenses After Unsuccessful Demurrer
7.2209 Repleading
7.2210 Nonsuits
7.2211 Motions to Strike
7.2212 Amendments
7.2213 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 Sanctions
7.2311 Jury Instructions
7.2312 Offset
7.2313 Rule 50 Motions
7.2314 Remittitur
7.2315 New Trials
7.2316 Avoiding Constitutional Issues
7.2317 Other Issues
7.24 LITIGATION: APPEALS
7.2401 In General
7.2402 Standard of Review
7.2403 Damages
7.2404 Remittitur
7.2405 Other Issues
7.25 PRACTICAL CONSIDERATIONS
7.2501 In General
7.2502 Seeking Non-Litigation Relief
7.2503 Mirage of Substantial Damages
7.2504 “Skeletons in the Closet”
7.2505 Media Defendants’ Ability to Declare a Victory
7.2506 Conclusion
INDEX
Volume 2
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 Duration of Trade Secret Protection
8.110 Trade Secrets Versus Other Forms of Intellectual
Property
8.2 COPYRIGHTS
8.201 Introduction
8.202 What Is a Copyright?
8.203 Creation and Ownership of Copyrighted Works
8.204 When Copyright Protection Begins
8.205 Copyright Notice
8.206 Moral Rights
8.207 Copyright Registration
8.208 Copyright Preregistration
8.209 Copyright Registration Procedures
8.210 Benefits of Copyright Registration
8.211 Registration of Compilations
8.212 Term of Copyright
8.213 Copyright Searching
8.214 Copyright Licenses, Transfers, and Assignments
8.215 Uniform Computer Information Transactions Act
8.216 Security Interests in Copyrights
8.217 Copyright Infringement
8.218 Digital Millennium Copyright Act
8.219 Defenses to Copyright Infringement
8.220 Remedies for Copyright Infringement
8.221 Copyright Versus Other Forms of Intellectual Property
Protection
8.222 Foreign Copyright Protection
8.223 Company Logos
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 Trial and Appeals Board
8.325 Trademark Infringement in the Fourth Circuit
8.326 Trademark Infringement in Virginia
8.327 Defenses to Trademark Infringement
8.328 Anticybersquatting Consumer Protection Act
8.329 Remedies for Trademark Infringement
8.330 Alternative Dispute Resolution
8.331 Trademark Dilution
8.332 Remedies for Trademark Dilution
8.333 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 Security Interests in Patents
8.415 Intellectual Property Valuation
8.416 Patent Infringement
8.417 Test for Infringement
8.418 Remedies for 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: COPYRIGHT REGISTRATION APPLICATION
FOR A NONDRAMATIC LITERARY WORK (FORM TX)
APPENDIX 8-6: CLICKWRAP LICENSE AGREEMENT FOR
INTERNET ACCESSIBLE SOFTWARE
APPENDIX 8-7: COPYRIGHT ASSIGNMENT AGREEMENT
(PLAY)
APPENDIX 8-8: SOFTWARE DEVELOPMENT AND
CONSULTING AGREEMENT
APPENDIX 8-9: TRADEMARK CERTIFICATE OF
REGISTRATION
APPENDIX 8-10: TRADEMARK CEASE AND DESIST LETTER
APPENDIX 8-11: TRADEMARK ASSIGNMENT AGREEMENT
APPENDIX 8-12: REGISTERED UTILITY PATENT
APPENDIX 8-13: 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 Manner of Disputing the Debt
9.105 Time Limits
9.106 Restrictions on Communications
9.107 Harassment or Abuse
9.108 False or Misleading Representations
9.109 Application of Payments
9.110 Venue
9.111 Enforcement
9.112 Bankruptcy Cases
9.2 FILING AN ACTION 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 Action 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 Mortgages
9.506 Judicial Foreclosure
9.507 Miscellaneous Terms
9.508 Right of Redemption
9.509 The Decision to Foreclose
9.510 Gathering Documentation
9.511 Notice of Sale
9.512 Substitute Trustee
9.513 Review of Liens and Other Matters
9.514 Filed Mechanics’ Liens
9.515 Unfiled Mechanics’ Liens
9.516 Title Company’s Liability for Title Reports
9.517 Federal Tax Lien
9.518 Advertisement of Sale
9.519 Conduct of Sale
9.520 Settlement
9.521 Account and Accounting
9.522 Deed in Lieu of Foreclosure
9.523 Recent Virginia Legislation
9.524 Recent Federal Efforts
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
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
APPENDIX 9-50: FORECLOSURE CHECKLIST
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 Chapter 15 of Title 6.2,
“Consumer Finance Companies”
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 Act
10.203 Equal Credit Opportunity Act
10.204 Fair Credit Reporting Act
10.205 Real Estate Settlement Procedures Act
10.206 Fair Debt Collection Practices Act
10.207 Electronic Fund Transfer Act
10.208 Interstate Land Sales Act
10.209 Flood Disaster Protection
10.210 Privacy
10.211 Magnuson-Moss Warranty Federal Trade
Commission Improvement Act
10.212 SAFE Act
10.213 Truth in Savings Act
10.214 FTC Rules
10.215 Miscellaneous
CHAPTER 11: REAL ESTATE PRACTICE
11.1 RESIDENTIAL REAL ESTATE SETTLEMENTS
11.101 Legislation Affecting Real Estate Settlements
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 or the Virginia Rental Housing 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: PURCHASER’S REPRESENTATION
INFORMATION AND CHECKLIST
APPENDIX 11-2: DEPARTMENT OF PROFESSIONAL AND
OCCUPATIONAL REGULATION RESIDENTAL PROPERTY
DISCLOSURE STATEMENT
APPENDIX 11-3: SAMPLE OWNERS’ AFFIDAVIT AS TO
MECHANICS’ LIENS AND POSSESSION
APPENDIX 11-4: VIRGINIA REALTORS® RESIDENTIAL
CONTRACT OF PURCHASE
APPENDIX 11-5: AFFIDAVIT THAT TRANSFEROR IS NOT
FOREIGN NONINDIVIDUAL FOR PURPOSE OF
WITHHOLDING OF TAX
APPENDIX 11-6: AFFIDAVIT THAT TRANSFEROR IS NOT
FOREIGN INDIVIDUAL FOR PURPOSE OF
WITHHOLDING OF TAX
APPENDIX 11-7: CERTIFICATE OF RESIDENCY
APPENDIX 11-8: SELLER’S REPRESENTATION INFORMATION
AND CHECKLIST
APPENDIX 11-9: RESIDENTIAL LEASE AGREEMENT—
VIRGINIA REALTORS® FORM
APPENDIX 11-10: GENERAL WARRANTY DEED: VBA FORM
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 Appointment of Commissioners
12.421 Exceptions to Jurors’ Report
12.422 Judgment and Postjudgment Procedures
12.423 Distribution of Money Paid into Court
12.424 Interest on the Award of Just Compensation
12.425 Recovery of Costs and Fees
12.426 Real Property Acquisition Policies
12.427 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 Lost Profits
12.818 Temporary Takings
12.819 Damages Without Comparable Sales
12.820 Contractor Negligence
12.821 Standards of Compensability
12.822 Cost to Cure
12.823 Compensability of Specific Elements of Damage
or Loss
12.824 Access to and from the Property
12.825 Inconvenience
12.826 Evidence
12.827 Owner’s Testimony
12.828 The Appraiser
12.829 Predicate Witnesses
12.830 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 Housing
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 33.2-1023
OF THE VIRGINIA CODE (BEFORE SUIT FILED)
APPENDIX 12-6: ORDER PURSUANT TO SECTION 33.2-1023
OF THE VIRGINIA CODE (BEFORE SUIT FILED)
APPENDIX 12-7: PETITION PURSUANT TO SECTION 33.2-1023
OF THE VIRGINIA CODE (AFTER SUIT FILED)
APPENDIX 12-8: ORDER PURSUANT TO SECTION 33.2-1023
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
13.708 TOD Ownership of Securities
13.709 TOD Ownership of Real Estate
13.8 ELECTIVE SHARE FOR ESTATES OF DECEDENTS DYING
BEFORE JANUARY 1, 2017
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 “Property”
13.806 How the Augmented Estate Is Satisfied
13.9 ELECTIVE SHARE FOR ESTATES OF DECEDENTS DYING
ON OR AFTER JANUARY 1, 2017
13.901 In General
13.902 Amount of Elective Share and Timing of Election
13.903 Property Included in the Augmented Estate and
Marital Property Portion
13.904 Property Excluded From the Augmented Estate
13.905 How the Elective Share Amount Is Satisfied
13.10 OTHER STATUTORY ALLOWANCES
13.1001 Family Allowance
13.1002 Exempt Property
13.1003 Homestead Allowance
13.11 REASONS FOR HAVING A WILL
13.1101 Control Over Disposition of Property
13.1102 Reduction of Estate Taxes
13.1103 Control over Naming Fiduciaries
13.12 TYPES OF TRUSTS
13.1201 In General
13.1202 Revocable and Irrevocable Trusts Compared
13.1203 Inter Vivos and Testamentary Trusts Compared
13.1204 Probate Fees and Administration Expenses
13.1205 Federal Income Taxes: Grantor Versus
Nongrantor Trusts
13.13 USES OF TRUSTS
13.1301 Avoiding Probate
13.1302 Managing Assets
13.1303 Tax Savings
13.1304 Providing for Minors and Other Persons
Under a Disability
13.1305 Providing for Spendthrifts
13.14 ALTERNATIVES TO TRUSTS
13.1401 Uniform Transfers to Minors Act
13.1402 Uniform Custodial Trust Act
13.1403 POD Bank Accounts, Savings Accounts and
United States Savings Bonds; TOD
Investments; Real Property
13.1404 Survivorship
13.15 PLANNING FOR MARRIED COUPLES
13.1501 Marital Agreements
13.1502 Providing for a Spouse While Controlling the
Disposition of the Remainder
13.16 DRAFTING WILLS AND TRUSTS
13.1601 Will Statutes
13.1602 Will Forms
13.1603 Living Trusts
13.1604 Revocable Trust Form
13.17 POWERS OF ATTORNEY
13.1701 In General
13.1702 Types of Powers of Attorney
13.1703 Construction of Powers of Attorney
13.1704 “Durable” Powers of Attorney
13.1705 Contingent Powers of Attorney Versus
Delivery in Escrow
13.1706 Ending the Power of Attorney
13.1707 Relationship Between Guardian and Agent
Under Durable Power of Attorney or
Advance Directive
13.1708 Final Directives: Health Care Powers of
Attorney, Advance Directives, and Do Not
Resuscitate Orders
13.18 CHOOSING FIDUCIARIES
13.1801 In General
13.1802 Executors
13.1803 Administrators and Administrators With
Will Annexed
13.1804 Trustees, Guardians, and Attorneys-in-Fact
13.1805 Co-Fiduciaries
13.1806 Other Considerations
13.19 EXECUTING AND SAFEKEEPING DOCUMENTS
13.1901 Reviewing Documents
13.1902 Execution of Wills
13.1903 Execution of Other Estate Planning Documents
13.1904 Safekeeping of the Documents
13.1905 Terminating the Representation
13.20 INITIATING THE ESTATE ADMINISTRATION PROCESS
13.2001 Introduction and Definitions
13.2002 Ethical Considerations
13.2003 Personal Decisions After Death
13.21 PROBATE AND QUALIFICATION
13.2101 Jurisdiction
13.2102 Who May Qualify as Personal Representative
13.2103 Requirements for Probate of a Will
13.2104 Methods of Probate
13.2105 Probate of Lost or Destroyed Will
13.2106 Probate of Later Will
13.2107 Probate of Foreign Will
13.2108 Compelling Production of Will
13.2109 Destroying or Concealing Will
13.2110 Practical Aspects of Ex Parte Probate and
Qualification Before Clerk
13.2111 Probate and Qualification Order
13.22 ADMINISTRATION AFTER PROBATE
13.2201 In General
13.2202 Powers and Duties of Personal Representatives
13.2203 Notice of Probate
13.2204 Collection of Assets
13.2205 Filing the Inventory
13.2206 Managing and Administering Assets
13.2207 Filing Tax Returns
13.2208 Commissioner of Accounts
13.23 WINDING UP AND SETTLEMENT OF THE ESTATE
13.2301 Debts and Demands
13.2302 Distribution of Assets
13.2303 Filing the Accounting
13.2304 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, AUTHORIZATION FOR
RELEASE OF CONFIDENTIAL AND PROTECTED
HEALTH INFORMATION
APPENDIX 13-10: ADVANCE MEDICAL DIRECTIVE;
APPOINTMENT OF AGENT FOR HEALTH CARE
DECISIONS; APPOINTMENT OF PERSONAL
REPRESENTATIVE TO OBTAIN HEALTH CARE
INFORMATION; APPOINTMENT OF AGENT TO MAKE
ANATOMICAL GIFTS
APPENDIX 13-11: DURABLE GENERAL 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
14.204 Notice Requirements
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
14.11 VIRGINIA UNIFORM ADULT GUARDIANSHIP
AND PROTECTIVE PROCEEDINGS ACT
14.1101 In General
14.1102 Jurisdictional Rules
14.1103 Transfer of Authority
14.1104 Status of Orders from Other States
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 Agencies Generally
15.102 Agency Authorizing Statutes (Basic Law)
15.103 Virginia Administrative Process Act
15.104 Exemptions
15.105 Case Law
15.106 Federal Law
15.2 AGENCY RULEMAKING
15.201 In General
15.202 Notice of Intended Regulatory Action
15.203 Proposed Regulations
15.204 Fast-Track Rulemaking
15.205 Evidentiary Hearings
15.206 Emergency Regulations
15.207 Formal Adoption and Filing of Regulations
15.208 Executive Review
15.209 Legislative Review
15.3 AGENCY PERMITTING AND ENFORCEMENT ACTIONS
15.301 In General
15.302 Exemptions
15.303 Informal Fact Finding
15.304 Formal Evidentiary Hearings
15.305 Summary Case Decision Proceedings
15.306 Time Limits for Issuance of Decisions
15.307 Final Orders
15.308 Petition for Reconsideration
15.4 JUDICIAL REVIEW
15.401 In General
15.402 Exemptions
15.403 Circuit Court Review
15.404 Scope of Judicial Review
15.405 Court Judgments and Intermediate Relief
15.406 Appellate Review of the Circuit Courts’ Decisions
15.5 SPECIFIC AGENCIES
15.501 In General
15.502 Starting Point for Analysis
15.503 Virginia Department of Alcoholic Beverage
Control (Alcoholic Beverage Control Board)
15.504 Environmental Regulation
15.505 Occupational Health and Safety
15.506 Professional and Occupational Licensing
15.507 Transportation
15.6 STATE CORPORATION COMMISSION (SCC)
15.601 Introduction
15.602 Exemption from the Administrative Process Act
15.603 Sources of SCC Law
15.604 Administrative Procedure Generally
15.605 Forms of SCC Proceedings
15.606 SCC Rulemaking
15.607 SCC Adjudications
15.608 SCC Hearing Examiners
15.609 Judicial Review of SCC Decisions
15.610 Subject-Matter Jurisdiction of the SCC
APPENDIX 15-1: AGENCY RULEMAKING PROCESS
APPENDIX 15-2: AGENCY ADJUDICATIONS PROCESS
TABLE OF AUTHORITIES
INDEX
EDITORS:
AUTHORS:
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