Virginia Lawyer - Virginia State Bar

Transcription

Virginia Lawyer
V O L . 6 3 / N O. 4 • D E C E M B E R 2 0 1 4
VIRGINIA LAWYER REGISTER
The Official Publication of the Virginia State Bar
Construction Law
Wind Farms and
Worker’s Comp for Pirates
Virginia Lawyer
December 2014
Volume 63/ Number 4
Features
CONSTRUCTION LAW & PUBLIC CONTRACTS
25 Construction Law in Virginia
by Michael A. Branca
26 Resolving Complex Construction Disputes
by Leslie M. Alden, Andrew W. Stephenson, and
Shannon J. Briglia
30 Searching for Substantial Similarity between
Architectural Works
in the Fourth Circuit
by Sean M. Golden and J. Brandon Sieg
38 Obtaining Green Certification for Existing
Buildings in Virginia
by Robert E. Travers IV and Kelley C. Holland
42 Answering the Questions about Job Order
Contracting
by Mathew A. Taylor
GENERAL INTEREST
12 The Battle for Wind Farm Siting in Virginia
by Daniel J. Wisniewski
16 Permanent Partial Disability Under The
Black Flag: Workers Compensation in the
Great Age of Piracy
by Wesley G. Marshall
22 Lawyers Helping Lawyers Remains
Important Resource
by Linda McElroy
Access to Legal Services
46 Why Should Attorneys Care About
Pro Bono?
by Joanna L. Suyes
47 Harrisonburg Attorneys Honored
for Pro Bono Work
47 Lewis F. Powell, Jr. Pro Bono Award
Presented
Noteworthy
VSB NEWS
48 Highlights of the October 24, 2014,
Virginia State Bar Council Meeting
48 Robinson is Choice for Presidentelect of the Virginia State Bar
49 Presentation of Chief Justice
Hassell’s Portrait
PEOPLE
49 In Memoriam
50 Virginia Law Foundation to Induct
Fellows Class of 2015
50 Local and Specialty Bar Elections
Departments
58 Nominations Sought for
2015–2016 District Committee
Vacancies
6
23
52
61
62
63
59 President-elect Weiner Seeks
Members for 2015–16 Virginia
State Bar Committees
Columns
VIRGINIA LAWYER REGISTER
54 Disciplinary Proceedings
55 Disciplinary Summaries
57 Notices to Members:
VSB Is Seeking Nominations for
Awards
VSB Seeks Volunteers for
Committees and Boards
Letters to the Editor
Law Stories
CLE Calendar
Professional Notices
Classified Ads
Infographic
8 President’s Message
51 Law Libraries
Cover: Construction is continuing on the office building in downtown Richmond that will house the office of McGuireWoods LLP. The firm’s current office
is reflected in the skin of the new building. Photo by Bill Dickinson of Sky Noir Photography. See more of his work at www.skynoirphotography.com.
Virginia Lawyer
http://www.vsb.org
Editor:
Gordon Hickey
([email protected])
Advertising:
Linda McElroy
([email protected])
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VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473)
is published six times a year by the Virginia State Bar,
1111 East Main Street, Suite 700, Richmond, Virginia
23219-3565; Telephone: (804) 775-0500. Subscription
Rates: $18.00 per year for non-members. This material
is presented with the understanding that the publisher
and the authors do not render any legal, accounting,
or other professional service. It is intended for use by
attorneys licensed to practice law in Virginia. Because of
the rapidly changing nature of the law, information
contained in this publication may become outdated. As
a result, an attorney using this material must always
research original sources of authority and update
information to ensure accuracy when dealing with a
specific client’s legal matters. In no event will the
authors, the reviewers, or the publisher be liable for
any direct, indirect, or consequential damages resulting
from the use of this material. The views expressed herein
are not necessarily those of the Virginia State Bar. The
inclusion of an advertisement herein does not include
an endorsement by the Virginia State Bar of the goods
or services of the advertiser, unless explicitly stated
otherwise. Periodical postage paid at Richmond,
Virginia, and other offices.
Virginia State Bar
2014–15 OFFICERS
Kevin E. Martingayle, Virginia Beach, President
Edward L. Weiner, Fairfax, President-elect
Sharon D. Nelson, Fairfax, Immediate
Past President
Karen A. Gould, Executive Director and Chief
Operating Officer
EXECUTIVE COMMITTEE
Kevin E. Martingayle, President
Edward L. Weiner, President-elect
Sharon D. Nelson, Immediate Past President
Alan S. Anderson, Alexandria
Doris H. Causey, Richmond
Nancy C. Dickenson, Abingdon
Tracy A. Giles, Roanoke
Leonard C. Heath, Jr., Newport News
Michael W. Robinson, Tysons Corner
Mary M. Benzinger, Washington, DC,
CLBA Chair
Eva N. Juncker, Silver Spring, MD,
Diversity Conference Chair
Renae R. Patrick, Winchester, SLC Chair
Maureen E. Danker, Fairfax, YLC President
COUNCIL
1st Circuit
Nancy G. Parr, Chesapeake
2nd Circuit
Steven G. Owen, Virginia Beach
Judith L. Rosenblatt, Virginia Beach
Daniel M. Schieble, Virginia Beach
3rd Circuit
Nicholas D. Renninger, Portsmouth
4th Circuit
Lisa A. Bertini, Norfolk
I. Lionel Hancock, III, Norfolk
Ann B. Brogan, Norfolk
5th Circuit
Carl Phillips “Phil” Ferguson, Suffolk
6th Circuit
Peter D. Eliades, Hopewell
7th Circuit
Leonard C. Heath, Jr., Newport News
8th Circuit
Lesa J. Yeatts, Hampton
9th Circuit
W. Hunter Old, Williamsburg
10th Circuit
Charles H. Crowder, Jr., South Hill
11th Circuit
Dale W. Pittman, Petersburg
POSTMASTER:
Send address changes to
VIRGINIA LAWYER
MEMBERSHIP DEPARTMENT
1111 E MAIN ST STE 700
RICHMOND VA 23219-3565
12th Circuit
Graham C. Daniels, Chester
13th Circuit
Paula S. Beran, Richmond
Brian L. Buniva, Richmond
Doris Henderson Causey, Richmond
Christy E. Kiely, Richmond
George W. Marget, III, Richmond
Eric M. Page, Richmond
O. Randolph Rollins, Richmond
14th Circuit
Thomas A. Edmonds, Richmond
Jon A. Nichols, Jr., Glen Allen
Daniel L. Rosenthal, Richmond
Virginia State Bar Staff Directory
Frequently requested bar contact
information is available online at
www.vsb.org/site/about/bar-staff.
4
VIRGINIA LAWYER | October 2014 | Vol. 63 No. 1
15th Circuit
Jennifer L. Parrish, Fredericksburg
16th Circuit
Bruce T. Clark, Culpeper
James M. Hingeley, Jr, Charlottesville
17th Circuit
Raymond B. Benzinger, Arlington
John H. Crouch, Arlington
Harry A. Dennis, III, Arlington
Adam D. Elfenbein, Arlington
David A. Oblon, Arlington
18th Circuit
Alan S. Anderson, Alexandria
Foster S. B. Friedman, Alexandria
Carolyn M. Grimes, Alexandria
19th Circuit
James F. Davis, Fairfax
Peter D. Greenspun, Fairfax
Joyce M. Henry-Schargorodski, Fairfax
Sean P. Kelly, Fairfax
Gary H. Moliken, Fairfax
Jay B. Myerson, Reston
Luis A. Perez, Falls Church
William B. Porter, Fairfax
Dennis J. Quinn, Vienna
Catherine M. Reese, Fairfax
Michael W. Robinson, Tysons Corner
Melinda L. VanLowe, Fairfax
James A. Watson, II, Fairfax
Michael M. York, Reston
20th Circuit
Christine H. Mougin-Boal, Leesburg
T. Huntley Thorpe, III, Warrenton
21st Circuit
Joan Ziglar, Martinsville
22nd Circuit
Lee H. Turpin, Chatham
23rd Circuit
Mark K. Cathey, Roanoke
Tracy A. Giles, Roanoke
24th Circuit
David B. Neumeyer, Lynchburg
25th Circuit
Roscoe B. Stephenson, III, Covington
26th Circuit
W. Andrew Harding, Harrisonburg
27th Circuit
Richard L. Chidester, Pearisburg
28th Circuit
Roy F. Evans, Jr., Marion
29th Circuit
Joseph M. Bowen, Tazewell
30th Circuit
William E. Bradshaw, Big Stone Gap
31st Circuit
Gifford R. Hampshire, Manassas
MEMBERS AT LARGE
Nancy C. Dickenson, Abingdon
William E. Glover, Fredericksburg
Michael HuYoung, Richmond
Beverly P. Leatherbury, Eastville
Darrel Tillar Mason, Manakin Sabot
Todd A. Pilot, Alexandria
Savalle C. Sims, Silver Spring, MD
Lorrie A. Sinclair, Leesburg
A. Benjamin Spencer, Charlottesville
Conference of Local Bar Associations Chair
Mary M. Benzinger, Washington, DC
Diversity Conference Chair
Eva N. Juncker, Silver Spring, MD
Senior Lawyers Conference Chair
Renae R. Patrick, Winchester
Young Lawyers Conference President
Maureen E. Danker, Fairfax
www.vsb.org
Letters
On the Burden of Being
Non-White
As the husband and father of persons
with mixed ethnic ancestry, I have to
take exception to John A. Dezio’s very
inapt reference to those who “suffer
from . . . the burden of being nonwhite.” (Letters, Virginia Lawyer Aug.
2014). Mr. Dezio apparently means no
ill will, and in fact quite the contrary,
which makes this reference, and a later
one —“even if some are non-white”—
all the more dismaying.
There is no “burden” of having an
ancestry other than Caucasian. Any
such burden is the work of other
person’s prejudices.
Walter M. Weber
Annandale
Access to Justice
I have been a lawyer since 1973. All of
my legal career has involved the representation of low income and other
marginalized people. Because of my
long and diverse experience in the
work of advocacy for the largely powerless, I was naturally interested in your
October issue and its many articles
dealing with the issue of access to justice by those who lack money or are
otherwise vulnerable.
Trying to persuade bar members
that the sole threat to the societally reverenced goal of equal justice is a decline
in funding, Mark Braley and the LSC
president have nothing to say about
their own specific contributions to a
delivery system that arbitrarily set up
two categories of programs, and arbitrarily discriminates against clients
purely according to the accident of
geography.
Prior to 2000, the legal aid programs in Virginia that received funding from the federal Legal Services
6
Corporation served catchment areas
that were mutually exclusive. Under
that arrangement, all programs serving
clients were subject to the same rules
and restrictions. In that year, then LSC
President John McKay arbitrarily
decided that he wanted to reduce the
number of programs by consolidating
service areas. Although some programs
were eliminated from LSC funding as a
result of this process (Client Centered,
Legal Aid Society of the New River
Valley — the only program headed by
a woman), others sought survival as
“unrestricted programs” totally funded
by state funding from the Legal Services
Corporation of Virginia. As a result of
this twinning process, the “unrestricted”
programs could supposedly avoid
restrictions imposed by LSC. Because
of the twinning process, instigated and
promoted by Braley in his capacity as
LSCV director, persons in certain areas
of the commonwealth such as Roanoke,
Charlottesville, Richmond, and
Petersburg are served by not just one
but two distinct programs having two
distinct managements, boards, and central offices. Although residents of the
areas in question have access to services
un-encumbered by federal restrictions
and limitations, persons who live in less
fortunate areas of the commonwealth
such as Southside and Southwest
Virginia have no such luck. Contrary
to the inferences that might be drawn
from the articles, this example of
unequal justice has nothing to do with
a decline in funding and everything to
do with conscious decisions made by
LSCV and others parading their commitment to equal justice.
Hugh F. O’Donnell
Norton
VIRGINIA LAWYER | December 2014 | Vol. 63
Correction
The Northern Virginia Pro Bono Law
Center was inaccurately described in
an October 2014 article. The center
provides civil legal assistance to lowincome and poverty clients in a number of areas including employment,
housing, consumer, and family law.
Other programs include Wills on
Wheels, Neighborhood Outreach (providing civil legal advice and referral
information), and our Nonprofit Legal
Assistance Program (assisting local
nonprofits with transactional issues).
Opportunities are available for different levels of commitment. Training,
materials and support are provided in
addition to malpractice coverage.
Letters
Send your letter to the editor to:
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or mail to:
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Virginia Lawyer Magazine
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RICHMOND VA 23219-3565
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/publications/valawyer/.
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President’s Message
by Kevin E. Martingayle
Our Role in Education
THIS EDITION OF Virginia Lawyer is
dedicated to construction law, and even
though construction litigation has long
been a part of my practice, I am taking
this opportunity to talk about building
something else, a more educated and
functional world around us.
It is no secret that governmental
funding of institutions of education at
every level is always challenging and
requires tough choices in local, state,
and federal budgets. And yet, the value
of education in our society is something so well-recognized that it is
enshrined in the Constitution of
Virginia:
That free government rests, as
does all progress, upon the broadest possible diffusion of knowledge, and that the Commonwealth
should avail itself of those talents
which nature has sown so liberally
among its people by assuring the
opportunity for their fullest development by an effective system of
education throughout the
Commonwealth.1
This statement is more than merely
aspirational or philosophical. It is a
recognition that a properly functioning
government depends on an educated
citizenry.
Only a tiny percentage of us will
ever hold a public position with direct
responsibility for education in Virginia,
but that does not mean that we should
leave the work to others or shy away
from accepting responsibility. To the
contrary, attorneys are not only among
the most highly educated and welltrained members of society, but we are
uniquely skilled in words, logic, and
problem-solving. As a parent of two
public high school students and one
middle school student, my experience
has been that educators and adminis-
8
trators appreciate parental involvement
and support, particularly that from
professionals such as attorneys.
An example of a terrific success
story is the mentoring program at
Seatack Elementary School in Virginia
Beach. Inspired by a thesis on intergenerational mentoring written by his
daughter who was then a student at
Princeton, now-retired Circuit Court
Judge Thomas Shadrick started the
program in 2000. Each third grade student in the school is assigned a mentor
who visits once per week and assists
with math, reading, and general social
development skills. Seatack was
selected for the program because the
school zone has a disproportionately
high percentage of students with financial, family, and other factors that make
them more at risk for educational failure and legal trouble. The program’s
volunteers include many lawyers, as
well as other positive role models such
as law enforcement officers and a variety of retirees with time and wisdom to
share. After more than a decade in existence, the mentor program is thriving,
and the feedback from parents, teachers, and administrators is very positive.
Another great way for attorneys to
participate in the education of our citizens is hosting paid or unpaid interns.
Although most lawyers automatically
think of law school “summer associates” when they contemplate working
with students, our firm has worked
with several high school and college
interns over the years, and it has been
mutually beneficial and a lot of fun.
One of my favorite educational
activities has been serving as a volunteer coach for middle school and high
school teams. As trained organizers,
communicators, and competitors,
lawyers have a lot to offer students participating in academic and athletic
competitions, and I have found that
coaches are grateful for the help.
There are many other ways to get
involved, including:
• volunteering with parent-teacher
associations and similar organizations,
• presenting educational videos and
participating in programs organized
by various voluntary bar associations,
• speaking on legal subjects in classes
and school assemblies,
• qualifying to serve as a hearing officer
in school discipline cases,
• providing feedback and guidance to
teachers, administrators, and public
officials when you see problems and
have suggestions for improvement.
Whatever your interest or particular talent, there are meaningful and
valuable opportunities to participate in
advancing education, thus benefitting
and improving our society.
An inscription on the wall of the
James Madison Memorial Hall at the
Library of Congress is particularly on
point:
Learned institutions ought to be
favorite objects with every free
people. They throw that light over
the public mind which is the best
security against crafty & dangerous encroachments on the public
liberty.2
These words are as true today as
they were when written nearly 200
years ago. No group of professionals is
more capable of advancing education
in so many different ways than the
members of the Virginia State Bar. Let’s
build a better tomorrow by contributing our talents to education today.
Endnotes:
1
Constitution of Virginia, Article I, §15.
2
Madison to W.T. Barry, August 4, 1822,
www.loc.gov/loc/walls/madison.html
(last viewed November 3, 2014)
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E
ach year Virginia CLE® recruits hundreds of the most
highly regarded lawyers in Virginia to share their expertise
with the Virginia legal community. Despite their own
professional responsibilities and busy schedules, these
volunteers contribute great effort and time preparing and
delivering thorough, clear, wise, and helpful exposition on
diverse topics relevant to legal practice in Virginia.
Virginia CLE
2014 Volunteers
®
Adams, Brian
Aghdami, Farhad
Alden, Hon. Leslie
Aldous, Thomas W.
Alexander, Jennifer
Allen, Charles
Altmiller, John C.
Anderson, Phillip V.
Andriano, Patrick T.
Angle, Robert A.
Anthony, David N.
Apgar, Hon. Jonathan M.
Austin, Amy L.
Babirak, Jr., Milton E.
Bacigal, Prof. Ronald J.
Bailey, David S.
Balick, Hon. Bernard T.
Ball, Jean G.
Ballou, Hon. Robert
Balnave, Prof. Richard D.
Baltz, Frank J.
Band, Ian P.
Baril, Stephen E.
Barkley, James W.
Barnes, Edward D.
Barnhill, Megan A. Gajewski
Barr, John M.
Barrett, Peter J.
Baskervill, Charles T.
Bates, Ryan M.
Battaglia, John T.
Baxter, Michael St. Patrick
Beale, J. Burkhardt
Behr, Darrin
Bell, Craig D.
Bell, Jr., Thomas G.
Beran, Paula S.
Berg, Nancy Zalusky
Bergner, John F.
Beshere, Thomas M.
Best, Judah
Best, Stephen A.
Bille, Elizabeth Owens
Bischoff, Edwin A.
Bischoff, William C.
Bittel, Beth A.
Black, Hon. Paul M.
Blain, Stuart W.
Blaine, Jr., William R.
Blake, Hanna L.
Blanch, Patrick M.
Blank, Irving M.
Boalick, Hon. Scott R.
Bobzien, David P.
Bolyard, Jr., Charles
Borden, Didi
Bozarth, Robert S.
Brady, Joshua B.
Bredehoft, Elaine Charlson
Bredehoft, John M.
Briglia, Shannon J.
Brinkema, Hon. Leonie M.
Bristow, Judy Lin
Brody, Stephen D.
Brothers, Carter R.
Broughton, Turner A.
Brown, Craig A.
Brown, Tyler P.
Bruner, Hon. Frederick M.
Buchanan, Hon. Theresa C.
Burch, Kristin B.
Burns, Robert L.
Burr, Barbara
Burtch, Jack W.
Butler, III, Harris D.
Buxton, G.P. Wakefield
Buxton, Joseph T.
Byrd, Richard
Cafferky, John F.
Campion, III, Thomas F.
Campsen, Paul K.
Capsalis, Manual A.
Cardwell, Victor O.
Carlton, Mark
Carnell, Susanne Harris
Carvajal, Ricardo
Carwile, Timothy C.
Casey, Brian N.
Casola, Francis H.
Cathey Mark, J.
Chappell, III, Robert H.
Cheng, Connie
Childress, Paul
Chiusano, Peter V.
Chucker, Hon. G. Barton
Ciolfi, Angela
Clardy, Kristin D.
Clarke, Raymond L.
Claytor, John
Cohen, I. Mark
Cole, Michael A.
Coleman, Nan L.
Colville, Hon. Carolyn J.
Connelly, Hon. Rebecca
Conrad, Jr., Hon. Robert J.
Cook, Rand
Cooper, Massie P.
Cope, Timothy A.
Cosby, M. Ann Neil
Cothran, Elizabeth Hope
Cotter, Michael P.
Cox, David
Cox, III, James P.
Cox, Robert K.
Creasman, Kay M.
Creasy, Bryan Grimes
Crigler, Hon. B. Waugh
Croshaw, Hon. Glenn R.
Cullian, Jr., John J.
Cunningham, Joseph F.
Curtin, Kevin J.
Curtis, Kenneth W.
Cushing, Patrick A.
Dahnk, Jeannie
Dalrymple, John M.
Danforth, Henry
Danforth, Robert T.
Daniel, Kathy
Dare, Mark
Davenport, Darius
Davidson, John E.
Davis, Edward L.
deLa Cruz, Sheila
Delano, Jr., Robert B.
Derdeyn, Michael E.
Devine, Hon. Michael F.
Dewing, Douglass W.
Dickinson, III, William P.
Diehl, Lawrence D.
Dietz, Robert
Dillon, Elizabeth K.
DiMuro, Benjamin
Doggett, Suzanne W.
Donahue, James M.
Donato, Brian J.
Donn, Allan G.
Dorsey, Hon. Charles N.
Downer, Jr., Hon. Robert H.
Doyle, III, Hon. John R.
Duane, Prof. James J.
Dumville, S. Miles
Dunlap, Thomas M.
Durrette, Wyatt B., Jr.
Dyer, III, William B.
Ellerman, Lauren
Ellis, Jr., L. Neal
Emmert, L. Steven
Epps, John D.
Estrada, Irene C.
Eure, John D.
Fain, Hugh
Fallon, Dana M.
Farley, Matthew M.
Farmer, John B.
Farmer, S. Brian
Farnum, John T.
Farrell, John W.
Feil, III, Otto F.
Feldmann, Mark E.
Fletcher, Lynn
Flora, John W.
Foley, Douglas M.
Fontham, Michael R.
Foster, Dr. Robin
Frankel, Kenneth M.
Freed, Robert L.
Furrow, David
Gaden, Hon. Barbara J.
Gangemi, Stephen P.
Garczynski, Eileen
Gatewood, Christopher E.
Gecker, Daniel
Geiger, Jeffrey H.
Georges, Frances Belton
Gibbs, Hon. Angela F.
Gibney, Jr., Hon. John A.
Gibson, Cullen
Giles, Malissa L.
Giordano, Stephen
Giragosian, C. Christopher
Glasgow, Ryan A.
Glickman, Amanda L.
Gluckman, David E.
Gogal, David J.
Goldstein, Charles
Goodman, Michael L.
Gordon, Alexander
Gould, Karen A.
Gray, Daniel L.
Gray, Elizabeth L.
Gray, Jr., J. William
Gray, Robyn S.
Green, Ann McGee
Grigg, Virginia H.
Grounds, Alison A.
Guare, Timothy H.
Guggenheim, Seth M.
Hager, Ron
Haley, Leslie A.T.
Hall, III, C. Wells
Ham, Jason J.
Han, John
Hansson, Leigh T.
Harbert, III, Guy M.
Harless, Warren David
Harper, M. Bruce
Harrell, Nicole J.
Harris, Charles C.
Hart, James R.
Hastings, Patricia A.
Hauser, Jonathan L.
Heishman, Anne Marie
Henderson, Sharon
Henenberg, Hon. Karen A.
Hetzel, Mindy Dickerson
Hibarger, Thomas J.
Hickman, Susan B.
Hicks, C. Thomas
Higgs, Steven L.
Hill, Carlton
Hill, Christopher G.
Hill, Travis
Hirsch, Brian M.
Hissong, Christine P.
Hite, Collin J.
Holleran, Michael J.
Holm, W. Michael
Hook, Andrew H.
Hoover, Hon. Thomas B.
Hopper, Lelia Baum
Horne, Hon. Thomas
Horsley, Elizabeth Mason
Horvath, Stephen A.
Houck, Leighton
Howard, Roscoe C, Jr.
Howard-Smith, Richard
Howsie, Elliot C
Huddleston, Jon D.
Hudgins, David D.
Hudson, Hon. Henry E.
Huennekens, Hon. Kevin R.
Hutman, Hannah W.
HuYoung, Michael
Hwang, Joon
Isler, Edward Lee
Ivey, Gerald
Jackson, J. Brian
Jackson, Linda M.
Jackson, Stephen R.
Jean, Susan
Jenkins, Lauren A.
Johnson, Jennifer
Jones, Barbara C.
Jones, Christopher A.
Jones, Robin
Kales, Amy G.
Kales, Jonathan L.
Keenan, Kim M.
Kellam, Mary
Kellas, Hon. Elizabeth
Kelleher, Jean K.
Kelly, Michael P.
Kelsey, Hon. D. Arthur
Kemler, Hon. Lisa B.
Kenney, Hon. Brian F.
King, Bradford A.
Kitts, Zachary A.
Klaiber, Nicholas R.
Konrad, Otto W.
Korroch, Robert E.
Krämer, Dr. Joachim
Kuhn, Michael P.
Kuhnel, Paul C.
Kushner, David A.
Lafave, Albert
Lain, Corinna Barrett
Lalik, Elizabeth A.
Lauck, Hon. M. Hannah
Law, Karen Stoutamyer
Leach, Stephen E.
Lee, Hon. Gerald Bruce
Leffler, James E.
Leffler, Rodney G.
Lemons, Hon. Donald W.
Lett, David R.
Levine, Rhona
Lewandowski, Dennis T.
Lhospital, Dean
Lieblich, Sharon K.
Livingston, Lee R.
Loftis, Mark D.
Lonergan, Gary W.
Loupassi, Manoli
Lowe, John
Lowenstein, Neil S.
Lowry, Edward B.
Lynch, Daniel E.
Mahan, Hon. Stephen C.
Majette, R. Shawn
Malinowski, Christopher
Marino, Robert M.
Marshall, Gary S.
Marshall, Hon. Wesley G.
Marston, Brett
Martin, Jr., Hon. Everett A.
Martingayle, Kevin
Marzouk, Tobey B.
Masterman, David
Maxwell, Richard C.
Mayer, Hon. Robert G.
Mayo, Michael C.
McCarthy, Christopher M.
McCauley, James M.
McCauley, Kathleen M.
McConville, Timothy M.
McElligott, Jr., James P.
McElroy, Howard
McElwain, Larry J.
McFarland, Robert W.
McLemore, Jennifer M.
McNamara, Margaret
McVey, Thomas B.
Meath, James V.
Mehany, Dianne C.
Memmer, C. Kailani
Mercer, David S.
Merk, Melinda
Micas, Steven L.
Michael, Karen
Midgett, John T.
Midkiff, Charles F.
Miller, Hon. Douglas E.
Mills, Christopher M.
Minor, Steven R.
Misken, Kenneth M.
Molster, III, Charles B.
Monahan, Leslie A.
Montgomery, Diane U.
Moore, Tommy L.
Morehouse, Angela
Morgan, Jr., Hon. Henry Coke
Morrison, Frank West
Murov, Kenneth B.
Murphy, Sean F.
Murphy, Thomas P.
Murray, William G.
Murtagh, Elizabeth P.
Muse, Brian G.
Mutnick, Stephen A.
Myrtetus, E. Duffy
Nabhan, Douglas M.
Nachman, Erwin B.
Nagle, David E.
Naughton, John F.
Neale, James F.
Nedell, Eric J.
Nelson, Matthew
Nelson, Sharon D.
Newman, Hon. R. Farrell
Nolan, Thomas G.
Noona, Stephen E.
Norman, John L.
Nunley, Chip
Nunley, Patricia A.L.
Nunnallee, Walter H.
Nusslock, Kathy L.
Nuzzo, Louis S.
Nyfeler, Suzanne
Oberlender, Dr. Gary H.
Oblon, David A.
O’Connor, Colleen M.
Oehlschlaeger, Deborah A.
O’Grady, Hon. Liam
O’Grady, John B.
Osborne, Caroline L.
Osborne, J. Lee E.
Pachucki, Mark A.
Palais, Douglas M.
Parks, Kellam T.
Partee, Sr., Peter S.
Pascal, Lawrence J.
Pather, Areshini
Paxton, David
Peel, Robert F.
Pesner, Susan M.
Peyton, Gordon P.
Phillips, Betsy H.
Pinchbeck, Kimberly A.
Podolny, Meghan A.
Pogoda, Kevin T.
Poltash, Nicole
Pomije, Gregory M.
Pope, Barrett E.
Powell, III, Lewis F.
Powers, Charles E.
Price, Charity M.
Quagliana, Rhonda
Quill, Kathleen Z.
Quinn, Colleen M.
Quinn, Dennis
Rack, Kevin B.
Rakes, William R.
Ramsey, Katherine E.
Ray, Steven W.
Redd, H. Carter
Reeves, Ross C.
Reichhardt, William B
Renaud, Merrell B.
Richardson, Robert K.
Ridlehoover, Bradley A.
Riopelle, Brian C.
Rizek, Christopher S.
Robb, III, John M.
Robinson, II, C. Arthur
Robinson, Stephen W.
Robson, Gigi
Roche, Brien A.
Rodriguez-Howdershell,
Brenda R.
Rogan, Christopher L.
Rogers, Hon. Gerald F.
Rohrstaff, Sandra
Rose, Neil L.
Ross, Robert Tayloe
Rothenberg, Elizabeth M.
Roush, Hon. Jane
Rowe, William L. S.
Rust, Dana L.
Rust, Jr., John H.
Rustioni, Marchella
Saltzburg, Stephen A.
Samorajczyk, Stanley J.
Sampson, Craig
Sanderson, William I.
Santoro, Hon. Frank J.
Sargent, Hon. Pamela M.
Satterwhite, Rodney A.
Sawicki, Donald S.
Sayers, Stephen M.
Schenkel, Lisa L.
Schmalz, Arthur
Schwab, Hon. Arthur J.
Schwab, John A.
Scott, IV, William C.
Selz, Bryan K.
Shansab, Yama
Shapiro, Jonathan
Sharp, Hon. Charles S.
Sheridan, Hon. Paul F
Sibley, III, George P.
Simek, John W.
Sims, Jr., Hunter W.
Sinclair, Professor Kent
Skilling, James C.
Slaughter, Alexander H.
Slaughter, M. Bryan
Smith, Adam
Smith, Adam W.
Smith, Michael W.
Smith, Ronald E.
Smith, Sandra L.
Smollar, Paul R.
Sommers, Mark
Sotelo, Hon. Thomas P.
Spahn, Thomas E.
Spain, Brett A.
Spencer, Hon. Margaret
Poles
St. John, Hon. Stephen C.
Stafford, Debra S.
Stephenson, Andrew W.
Stevens, Christopher W.
Stoecker, Erica S.
Stolle, Edward R.
Sullivan, Jr., William M.
Summerlin, III, Daniel C.
Sunderlin, Matthew C.
Swartz, Jeffrey A.
Swersky, Hon. Alfred D.
Szablewicz, Hon. James J.
Tate, Mary Lynn
Tavenner, Lynn L.
Tennant, J. Christian
Terry, Roy M.
Thomas, David W.
Thomas, III, Frank A.
Thomas, Jr., Colin J. S.
Thomson, Christine
Thorsen, James B.
Tomac, Jennifer
Tomasik, Jr., Timothy S.
Trainor, Madeline A.
Trapani, Jr., Philip R.
Trigiani, Lucia Anna
Trimbath, Leroy
Tubbs, Nancy R.
Tucker, Stefan F.
Tully, Lisa
Turner, Brett R.
Turner, Lori H.
Tyler, Robert M.
Urbanski, Hon. Michael F.
Valdivia, Carlos A.
Van E. James E.
Vann, Antonio
Vistica, David M.
Volenik, Adrienne E.
Ware, Jr., Henry N. “Harry”
Wasserman, Richard L.
Weckstein, Hon. Clifford R.
Westermann, Robert S.
White, Hon. A. Ellen
White, Ronald
Whitescarver, Jr., Furman B.
Whitt, Burt
Wiegard, Spencer M.
Wiemken, Christopher J.
Williams, Hon. Roger L.
Williams, III, C. James
Williams, J. Page
Williamson, Jr., Thomas W.
Winn, III, Thomas M.
Wise, David H.
Witmeyer, II, Carl J.
Wood, III, Robert C.
Wood, R. Craig
Wooldridge, Jr., Robert W.
Wright, Bradley C.
Yager, Michael
Yates, Thomas D.
Yoder, P. Marshall
Young, H. Kimberlie
Zaritsky, Howard M.
Zeigler, Brandon H.
Zetlin, Edward E.
Zinsner, Mary C.
Zogby, Michael C.
VIRGINIA CONTINUING LEGAL EDUCATION™
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Giant wind turbines are the backdrop for the St. Nicholas Coal Breaker Plant in Pennsylvania, a relic of America’s industrial revolution, which was at one time the largest coal
breaker in the world. Photo by Bill Dickinson
The Battle for Wind Farm
Siting in Virginia
by Daniel J. Wisniewski
The Legislative Battle
The keystone of the Virginia Energy Plan, adopted
in 2006, is the Commonwealth Energy Policy
(CEP),2 which is a list of progressive energy goals
to be followed by state agencies and local governments. Some of the CEP’s goals include promoting the use of renewable energy sources, energy
efficient systems and vehicles, biofuels, clean coal
technologies, improved energy infrastructure,
and methane and natural gas.3 The CEP does not
directly address energy facility siting, and instead
creates an oblique siting obligation for local
governments.4
As proposed by Senator Frank W. Wagner
(R-Virginia Beach), however, the original 2006 bill
would have recast the energy facility siting regulatory landscape in Virginia, eliminating local siting
authority over large-scale wind farm proposals,
liquefied natural gas facilities, and nuclear power
plants.5 A utility provider would only have to
satisfy a “one-stop permitting process” at the
state level.6
The 2006 bill made it through the Virginia
Senate with its anti-local-government siting provisions intact. But it met resistance in the House’s
Commerce and Labor Committee. The new bill
would still have taken siting control out of the
hands of local governments, but it would have
required the State Corporation Commission to
consider the “local land use plan” when scoring
VIRGINIA LAWYER | December 2014 | Vol. 63 | GENERAL INTEREST FEATURES
www.vsb.org
Some may remember a short-lived
effort in the 2013 General Assembly to
eliminate local government siting authority over large-scale wind farms.1 The
sponsor pulled the plug on the bill after
it generated a concentrated backlash by
the Virginia Association of Counties, the
Virginia Municipal League, and a number
of local governments.
But is the battle for renewable energy facility siting authority over? Not likely. Virginia’s renewable
energy policy is relatively new and unsettled.
Since 2006, the General Assembly has been chipping away at local siting authority. Local governments should consider implementing reasonable
wind facility siting regulations in order to undercut further movements by the energy industry to
reduce local power to regulate.
12
GENERAL INTEREST
potential sites for wind, nuclear, and liquefied
natural gas projects.7 Additionally, the governing
body of any locality where a site was proposed for
development would have had the opportunity,
along with property owners, to provide input at
an SCC public hearing held in the locality. The
new bill passed both houses, but Governor
Timothy M. Kaine rewrote SB262, killing the
one-stop permitting process and preserving
local siting authority.
Even without a uniform siting policy, the
regulatory landscape made it economically feasible to pursue renewable energy production in
Virginia. Dominion Power, BP Wind Energy, and
other private enterprises sought to take advantage of Virginia’s renewable energy portfolio
incentives passed in 20078 and federal production incentives extended by Congress in 2009.9
Massive wind turbines were proposed on scenic
ridgelines in a number of localities, including
Highland County (Red Oak Knob and Tamarack
Ridge), Roanoke County (Poor Mountain),
Tazewell County (East River Mountain), and
Wise County (Black Mountain).
Local concern over the proposed wind farms
caused opposition groups to sprout up along the
Blue Ridge. For the residents of rural Virginia,
their “heritage” was at stake.10 The large-scale
wind farms threatened pristine mountaintops
and various species of bats and birds, including
the American Bald Eagle. This natural beauty of
western Virginia was, and is, a major draw for
tourists. More important, it has simply been
home for generations of Virginians.
Various projects were attempted in the face
of fierce opposition. Dominion tried to develop
the East River Mountain project, only to be
thwarted by a restrictive ridgeline protection
ordinance.11 Highland New Wind Development
obtained county and SCC approval before being
stalled by an unsuccessful lawsuit filed by
Highland County residents in 2006.12 After briefly
starting construction, Highland New Wind was
again forced to stop after being threatened with
new litigation under the Endangered Species Act.13
Highland New Wind wasn’t the only renewable energy enterprise struggling at the time. The
future of federal incentives for wind energy production was uncertain in 2011 and 2012, causing
projects to stall across the country.14 For the
proponents of wind energy, the law had to be
changed.
In January 2011, Senator Wagner introduced
another bill aimed at reducing local siting authority. Senate Bill 862 threatened to override restrictive local ordinances, including Tazewell County’s
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ridgeline protection ordinance. The bill ultimately
passed into law with only a prospective, limited
effect.
The law, codified at Virginia Code § 67-103,
requires that “[i]n the development of any local
ordinance addressing the siting of renewable
energy facilities that generate electricity from
wind . . . resources,” local governments must comply with the goals of the CEP.15 More specifically,
the ordinance must include “reasonable criteria to
be addressed in” siting facilities, such as “provisions limiting noise, requiring buffer areas and
setbacks, and addressing generation facility
decommissioning.”16
The most important provision of the law was
appended at its end, stating that “[a]ny measures
required by the ordinance shall be consistent with
the locality’s existing ordinances.” Effectively, this
language grandfathered any restrictive local government ordinance already on the books, including those contrary to the goals of the CEP, like a
ridgeline protection ordinance.
This language was a win for those local governments that already had restrictive ordinances
in place, but the power companies had gained
ground. Localities with restrictive ordinances
would have to comply with the goals of the CEP if
they ever wanted to revise any ordinance pertaining to the siting of solar or wind facilities. And
localities with no such ordinance directly on
point — most of Virginia — would be obligated
to comply with the CEP if they ever decided to
adopt one.
Thus, with the 2011 law, the battle for wind
energy siting authority became a waiting game.
To date there are still no large-scale wind
farms operational in the commonwealth, making
Virginia part of a shrinking minority of states.
”
Local concern over the proposed
wind farms caused opposition groups
to sprout up along the Blue Ridge.
The East River Mountain and Highland New
Wind Development projects are on hold, facing
various obstacles. A handful of other projects
remain stalled or are in early feasibility and environmental impact phases.
But, the power companies have expressed
their intent to further pursue wind energy production in Virginia, and although new federal tax
credits are not certain to be renewed, they would
certainly reinvigorate those plans. In any event, as
GENERAL INTEREST FEATURES | Vol. 63 | December 2014 | VIRGINIA LAWYER
13
GENERAL INTEREST
Finding a “Reasonable” Siting Ordinance
Localities should consider numerous factors when
taking “discretionary action” and crafting an ordinance. They need to include adequate siting provisions in their comprehensive plans and zoning
ordinances to address wind turbines. But because
of the vague standards of the CEP, localities might
have difficulty finding the boundaries of their
Dillon Rule authority to regulate the siting of
wind turbines.
The few Virginia localities that have addressed
the siting of wind energy systems have generally
regulated them as either large- or small-scale systems. Large-scale wind farms are subject to more
stringent siting standards and go through extensive public hearings before approval, where, on
the other hand, small-scale systems are sometimes
allowed by right.
When crafting an ordinance, a locality should
obviously consider traditional siting concerns,
including structure size, aesthetics, historic and
natural preservation, compatibility with surrounding uses, economic development, and environmental protection.17 Additionally, there are a
few provisions recognized in the Virginia Code
that are particularly important — i.e., those “limiting noise, requiring buffer areas and setbacks,
and addressing generation facility decommissioning.”18 Enforcement mechanisms should be put in
place to ensure compliance, especially bonding
the decommissioning of large turbines.
These requirements all seem common
enough, but there is a vast gray area in the Dillon
Rule authority of local governments. It is unclear
how restrictive a local government’s siting ordinance can be without violating the CEP.
Obviously, an express ban on wind turbines of all
kinds would violate the CEP. But it is not certain
whether a locality would violate the CEP if its
ordinance resulted in an effective ban of wind turbines, rather than an express ban.19 An effective
ban would exist if a locality were to create a land
use scheme that made it economically infeasible
for wind turbines to exist — e.g., by relegating
them to areas that have lower wind speeds and,
therefore, much less useful for energy production.
A scrupulous construction of the commonwealth’s energy objectives and the CEP sheds
some light on the problem.20 Virginia Code § 67103 requires that local siting ordinances “be consistent with the provisions of the [CEP],”21 which
includes “promot[ing] the use of, renewable
energy sources.”22 And the express purpose of the
CEP is to achieve the commonwealth’s energy
objectives found in Virginia Code § 67-101, which
generally seek to ensure an adequate supply of
energy for the entire commonwealth.
After importing the energy objectives of
§ 67-101 into the CEP, it is reasonable to conclude that large-scale wind farms are protected,
notwithstanding an ordinance’s affect on smallscale turbines. Unlike isolated small-scale turbines, large-scale wind farms are the only wind
production facilities that can materially contribute to the commonwealth’s energy supply,
satisfying the commonwealth’s energy objectives
in § 67-101.
With that said, the CEP is quite vague. A
plausible argument can be made that a widespread distributed energy production network of
small-scale wind turbines would satisfy the CEP.
For this approach to work, a locality would have
to show that its land use scheme generously
allows for small-scale wind turbines. This would
be difficult to prove. A widespread network of
stand-alone turbines does not currently exist in
Virginia, and showing that such a distributed
network is feasible under a particular land use
scheme would be speculative.
Only one reported Virginia case has challenged a local wind facility siting decision. In
Miller v. Highland County,23 neighboring property
owners challenged the issuance of a conditional
use permit for a large scale wind farm project. In
the circuit court, the plaintiffs lost their argument
that the decision to grant the permit was arbitrary
and capricious.
In Karr v. Bd. of Supervisors of Roanoke
County,24 the Roanoke County Board of
Supervisors passed an ordinance setting forth the
siting regulations for large- and small-scale wind
turbines. The case is still pending before the
Roanoke County Circuit Court. The plaintiffs are
challenging the ordinance on many grounds,
including arguments that it constitutes a taking of
property; is arbitrary, capricious, irrational and
unreasonable; is spot zoning; and that the board
exceeded its Dillon Rule authority. They claim
that the ordinance would prohibit neighboring
owners from building within newly established
setbacks once turbines are constructed — resulting in a taking. Regarding the Dillon Rule, they
claim that the ordinance is invalid because it “permits the waiver of setback, noise and height
requirements by special exception.”25
The board pointed out in its demurrer that
the zoning ordinance does not constitute a taking
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the cost of producing wind energy decreases, it
might just be a matter of time before the wind
interests raise the issue of siting again in
Richmond.
14
GENERAL INTEREST
as to neighbors, because it only limits the placement of wind turbines and “does not prohibit any
adjoining property owners from . . . developing
his or her property.”26 In responding to the
plaintiffs’ Dillon Rule argument, the board cited
Virginia Code § 15.2-2286 for clear authority to
issue special exceptions. For authority to regulate
the siting of wind turbines, the board cited the
CEP and Virginia Code § 67-103, which allows for
an ordinance including “provisions limiting noise,
requiring buffer areas and setbacks, and addressing generation facility decommissioning.”27 The
board has not yet set the demurrer down for
argument, and the case remains on the docket.
Even when Karr is finally decided, it probably
will not provide much guidance to localities. It is
only a facial challenge and does not address an
actual permit denial. It will, however, (likely)
prove that the siting statutes provide a Dillon
Rule defense for localities that decide to take up
the issue.
Otherwise, localities should consider citing
Virginia Code § 67-102(12)(D) if sued for alleged
violations of the CEP’s goals when making a wind
energy siting decision. That statute provides that
“[t]he failure or refusal of any person to recognize
the elements of the [CEP], to act in a manner
consistent with the [CEP], or to take any other
action whatsoever, shall not create any right,
action, or cause of action or provide standing for
any person to challenge the action of the commonwealth or any of its agencies or political subdivisions.”28 It is unclear whether this statute
would protect a locality from a challenge that it
has exceeded its Dillon Rule authority, which
could be viewed as a prior existing “right.” This
section was not cited in the Roanoke County
Board’s demurrer in the Karr case.
A Perilous Proposition
Virginia’s renewable energy policy is still in flux
and it is hotly contested. For some localities it
may not be politically or economically feasible for
wind production to go forward. For others, wind
energy production might work — providing an
economic and environmental benefit. If localities
go forward with wind energy production, they
risk alienating their residents. If they do not go
forward, they risk losing siting authority.
If a locality decides to address wind energy
production, it can get help from model ordinances and other local governments. There are a
few excellent examples of reasonable ordinances
available. The American Wind Energy
Association’s (AWEA) website offers a good
model ordinance for small wind turbines that
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addresses most of the siting elements mentioned
in this article. 29 The AWEA does not have a
model ordinance for large-scale turbines.
Rockingham County’s ordinance would be a
solid starting point, addressing small- and largescale systems. Some localities, like Franklin
County, define a third, “utility scale,” type of turbine, which encompasses large-scale wind farms
operated by utility companies. The Franklin
County ordinance separates smaller projects into
small- and large-scale systems. These ordinances
can be used as a template to help craft an ordinance for a locality’s particular needs.
The battle for wind farm siting in Virginia is
not over. The CEP is vague, and localities should
be litigation-minded when crafting a siting ordinance. At this point the localities are in the driver’s seat, but this may not always be the case.
Endnotes:
1
S.B. 1341, 2013 S., Reg. Sess. (Va. 2013).
2
Codified at Va. Code § 67-102.
3
See Va. Code § 67-102(A)(1)–(12).
4
Va. Code § 67-102(C).
5
S.B. 262, 2006 S., Reg. Sess. (Va. 2006).
6
S.B. 262, 2006 S., Reg. Sess. (Va. 2006).
7
S.B. 262, 2006 S., Reg. Sess. (Va. 2006) (House
Committee on Commerce and Labor substitute
no. 062777832-H1).
8
H.B. 3068, 2007 H., Reg. Sess. (Va. 2007). Most of
these incentives were repealed in 2013. See S.B.
1259, 2013 S., Reg. Sess. (Va. 2013).
9
American Recovery and Reinvestment Tax Act of
2009, Pub. L. No. 111-5, 123 Stat. 115, 319–20
(codified as amended in scattered sections of
U.S.C.).
10 Pamela Podger, “In a Corner of Virginia’s
‘Switzerland,’ a Division Over a Planned Wind
Farm,” N.Y. TIMES, February 13, 2007, http://www
.nytimes.com/2007/02/13/us/13wind.html?_r=0
(last accessed on June 26, 2014).
11 See Tazewell County Code §§ 15-110 to -127.
Wind Farm Siting continued on page 41
Daniel J. Wisniewski is an assistant county
attorney for Stafford County. He represents the
county in litigation and advises in the areas of
utilities and public works. Before joining the
county, he was an associate with the land use
firm Greehan, Taves, Pandak & Stoner PLLC.
15
Permanent Partial Disability Under The Black Flag:
Workers Compensation
in the Great Age of Piracy
by Wesley G. Marshall
illustration by Madonna Dersch
More than 200 years before modern
16
workers’ compensation laws, pirates on
the high seas adopted their own form of
permanent partial disability compensation. In considering modern permanent
partial disability, it is worthwhile to
examine the roots of the plans adopted
by pirates.
has remained strong for generations. Charles
Ellms, in The Pirates Own Book: Authentic
Narratives of the Most Celebrated Sea Robbers,
wrote in 1837:
In the mind of the mariner, there is a superstitious horror connected with the name of
Pirate; and there are few subjects that interest
and excite the curiosity of mankind generally,
more than the desperate exploits, foul doings,
and diabolical career of these monsters in
human form.3
We like to believe there is a little pirate in all of us.
Fiction writers, Walt Disney, and Hollywood
imbued us with romantic notions of piratical
adventures: sailing the high seas, visiting deserted
islands, and searching for buried treasure. The
reality of pirate life was a far cry from literary fiction. Besides being illegal1 and contrary to any
concept of a fair and just society,2 it was filthy,
dangerous, and unpredictable. Yet, our fascination
Our image of unforgettable pirates includes
unfortunate victims of dismemberment. In
Robert Louis Stevenson’s Treasure Island, Long
John Silver was missing a leg and walked with
crutches. J. M. Barrie’s Peter Pan introduced us
to the handless and aptly named Captain Hook.4
We associate pirates with individuals who, as a
result of their dangerous travails, have suffered
physical loss.
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GENERAL INTEREST
Because piracy presented numerous risks,
pirate crews considered matters of social insurance. Pirates faced injury and dismemberment,
the same risks addressed in modern workers’
compensation systems. A pirate crew in the 1700s
would have understood the United States’
Supreme Court’s reasoning in Ward & Gow v.
Krinsky centuries later:
[W]hen men are employed in hazardous
occupations for gain, it is within the power of
the State to charge the pecuniary losses arising from disabling or fatal personal injury, to
some extent at least, against the industry after
the manner of casualty insurance, instead of
allowing them to rest where they may happen to fall — upon the particular injured
employees or their dependents; and to this
end to require that the employer . . . shall
make or secure to be made such compensation as reasonably may be prescribed, to be
paid in the event of the injury or death of
one of those employed, instead of permitting
the entire risk to be assumed by the individuals immediately affected.5
Permanent Partial Disability
Most modern workers’ compensation laws incorporate benefits for permanent partial disability.
Injured workers who suffer the loss or loss of use
of various parts of the body are entitled to a onetime series of compensation payments. Payment
is intended to compensate an injured worker for
the incremental loss of earning capacity he will
suffer in the future on account of permanent loss.
Many states employ “scheduled loss” for permanent partial disability, where the loss or loss of use
of listed body parts provides a defined amount of
compensation.
Permanent partial disability presents advantages: predictability through well-defined benefits
and economy. This benefits labor, management,
and government through avoidance of litigation.
Early 20th century policymakers concluded in
cases such as dismemberment, the gravity of the
impairment supported a conclusive presumption
that actual wage loss would sooner or later result.
“[T]he conspicuousness of the loss guaranteed
that awards could be made with no controversy
whatsoever.”8 To this day, permanent partial disability provides a fair measure of compensation to
approximate, albeit arbitrarily, a presumed future
wage loss in a manner designed to avoid disagreement and litigation through the use of welldefined statutory benefit provisions.
Workers Compensation and Permanent Partial
Disability in Virginia9
Virginia’s Workmen’s Compensation Act, adopted
on March 21, 1918,10 became effective January 1,
1919.11 The Virginia Workers’ Compensation
Commission now administers this law.12
Virginia compensates injured employees for
permanent partial disability and is a scheduled
loss state. Title 65.2, section 503 of the Virginia
Code grants compensation for the loss of specified parts of the body, e.g., an arm, a leg, a hand, a
foot, an eye, through payment for a designated
number of weeks at the weekly employee’s gross
pay averaged over the year preceding an accident.13 Loss of use is equated with actual loss,14
and compensation may be awarded for proportionate loss or loss of use.15 An award of permanent partial disability benefits is proper once the
injured employee has reached maximum medical
improvement.16
We like to believe there is a little pirate in all of us. Fiction writers,
Walt Disney, and Hollywood imbued us with romantic notions of
piratical adventures: sailing the high seas, visiting deserted islands,
and searching for buried treasure.
Permanent partial disability reflects acceptance of the notion of social insurance.
Compensated injuries either actually or presumptively produce disability and presumably
affect earning power.6 Permanent partial disability affords injured workers a sum that, when
added to their residual earning ability, will enable
them to exist without being an unreasonable
burden on society.7
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Permanent Partial Disability in the Great Age
of Piracy
Many pirates adopted a unique informal form of
government in which permanent partial disability
compensation appears to have enjoyed a central
role. In sharp contrast to the highly-regimented
naval and admiralty systems, pirate crews
employed the power of one man-one vote, a
uniquely democratic form of government.17
”
17
GENERAL INTEREST
The pirate articles provided rules for the
ship, including how shares of plunder were to be
divided, and punishments for wrongdoing.
Exquemelin wrote:
Lastly they stipulate in writing what recompense or reward each one ought to have, that
is either wounded or maimed in his body,
suffering the loss of any limb, by that voyage.
Thus they order for the loss of a right arm six
hundred pieces of eight …; for the loss of a
left arm five hundred pieces of eight …; for a
right leg five hundred pieces of eight …; for
the left leg four hundred pieces of eight … ;
for an eye one hundred pieces of eight … ;
for a finger of the hand the same reward as
for the eye. All which sums of money, as I
have said before, are taken out of the capital
sum or common stock of what is got by
their piracy.24
Exquemelin attributes this account indirectly
to François l’Olonnais, a Frenchman who ended
up in Tortuga, “the common place of refuge of all
sorts of wickedness, and the seminary, as it were,
of all manner of Pirates and thieves.”25 L’Olonnais
ventured out with a massive pirate fleet26 and
captured Gibraltar in Northwest Venezuela. The
force continued to Maracaibo,27 where they
collected a ransom on threat of sacking the
city. They then returned to Isla de la Vaca in
Hispaniola, where they unloaded their ill-gotten
cargo. According to Exquemelin, the bounty was
divided and each pirate received his share in
money, silk, linen, and other commodities. He
noted, “those who had been wounded in this
expedition received their part before all the rest,”
consisting of the, “recompense . . . for the loss of
their limbs which many sustained.”28
Although Exquemelin did not describe most
pirate wounds in detail, he treated a Portuguese
buccaneer who was bitten by a crocodile. After
infection set in, he amputated the leg. The pirate
died while Exquemelin was preparing to fit him
with a wooden leg.29
Another account from the adventures of
Captain John Phillips cried out for some form of
compensation, if not for loss of a limb, then for
the suffering endured as a result of it. After capturing a “snow,”30 three of Phillips’ crew decided
to double cross their captain. Phillips skirmished
with them:
Wherein Wood was kill’d and Taylor
wounded in his Leg; upon which the other
two surrender’d. There was no Surgeon
aboard, and therefore it was advis’d, upon a
learned Consultation, that Phillips’s31 Leg
should be cut off; but who should perform
the Operation was the Dispute; at length the
Carpenter was appointed, as the most proper
Man: Upon which, he fetch’d up the biggest
Saw, and taking the Limb under his Arm, fell
to Work, and separated it from the Body of
the Patient, in as little Time as he could have
cut a Deal Board in two; after that he heated
his Ax red hot in the Fire, and cauteriz’d the
Wound, but not with so much Art as he perform’d the other Part, for he so burnt his
Flesh distant from the Place of Amputation,
that it had like to have mortify’d; however
nature perform’d a Cure at last without any
other Affiance.32
John Phillips captained the Revenge. Its articles stated “If any Man shall lose a Joint in time
of an Engagement, shall have 400 Pieces of Eight;
if a limb, 800.”33
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This was codified in the articles drawn up by
the pirate crew.18
Pirate crews considered their votes, agreements, and articles as their form of water-borne
government. “The first Thing they had now to do,
was to chuse Officers, draw up Articles, and settle
their little Commonwealth, to prevent Disputes
and Ranglings afterwards . . . When this was done,
one of them writ out the following Articles . . .
and all swore to ’em upon a Hatchet for want of
a Bible.”19
An early account of pirate articles occurs in
Buccaneers of America, written by Alexander
Exquemelin20 and first published in English in
1684.21 Exquemelin departed Tortuga in 1666 on
a French West India Company ship and later
joined Caribbean buccaneers as their surgeon.22
He recorded the pirates first convened a council
to determine how to obtain the supplies for their
adventure. After these were secured, often liberated from Spanish livestock keepers, the pirates
returned to their ship and convened a second
council where:
[T]hey agree upon certain articles, which are
put in writing, by way of bond or obligation,
which every one is bound to observe, and all
of them, or the chief, set their hands to it.
Herein they specify, and set down very distinctly, what sums of money each particular
person ought to have for that voyage, the
fund of all the payments being the common
stock of what is gotten by the whole expedition; for otherwise it is the same law, among
these people, as with other Pirates, No prey,
no pay.23
18
GENERAL INTEREST
In 1721 George Lowther sailed from the
Thames as second mate on the Royal African
Company’s Gambia Cattle. On arriving in Africa,
Lowther later instigated a mutiny. The crew refitted the ship by making it “flush fore and aft.”
They “prepared black Colours,” renamed the ship
Delivery, and drew up new Articles. These
included:
He that shall have the Misfortune to lose a
Limb, in Time of Engagement, shall have
the sum of one hundred and fifty Pounds
Sterling, and remain with the Company as
long as he shall think fit.36
ability directly to that under Virginia’s modern
day scheme.37 But examining both systems
reveals striking similarities.
Proportionate Loss Compensation:
Bartholomew Roberts’s pirate articles contained
measures for particular losses and prescribed
compensation for, “lesser hurts proportionately.”
The current Virginia statute, Va. Code § 65.2-503
provides, “for the permanent partial loss or loss of
use of a member, compensation may be proportionately awarded.” The similarity, separated by
almost 200 years of adoption,38 is uncanny.
Extraordinary Compensation for Multiple
Scheduled Losses: Henry Morgan’s crew found the
loss of two body parts deserved extraordinary
compensation as compared to combining the two
losses. For the loss of a hand or a leg, the pirates
awarded 600 pieces of eight. But for the loss of
both hands, proportionately higher compensation
of 1,800 pieces of eight, or a 900 piece of eight
single hand equivalent, was awarded. For the loss
of both legs, 1,500 pieces of eight, or a 750 piece
of eight single leg equivalent, was granted.
Virginia Code § 65.2-503 provides extraordinary compensation, consisting of lifetime weekly
wage benefits, for permanent and total disability.
Most indemnity compensation is payable only for
a maximum of 500 weeks.39 Permanent partial
disability awards are granted for shorter time
periods.40 Permanent and total disability benefits,
for the injured employee’s lifetime, are awarded
for, “loss of both hands, both arms, both feet,
both legs, both eyes, or any two thereof in the
same accident.”41
Measuring Units of Compensation for
Permanent Partial Disability: In modern permanent partial disability, the loss is “scheduled” by
statute to be paid for a specified number of
weeks. The weekly payment amount is defined by
a statutory formula. In Virginia, for instance, this
is 66 2/3 percent of the average weekly wage,42
calculated by averaging gross earnings for the
fifty-two weeks preceding the injury.43 The number of weeks paid for a loss is arbitrarily assigned
by statute, but the amount of a weekly payment is
directly related to the wages an injured worker
earned before the physical loss or loss of use. By
contrast, pirates typically44 were paid on a share
system. The pirate articles granted injury compensation in arbitrary fixed amounts.
Pirate PPD Versus Modern PPD — a
Comparison and Contrast
This article does not attempt to compare the
financial value of pirate permanent partial dis-
The Purposes of Permanent Partial Disability
Compensation
In modern workers’ compensation, permanent
partial disability serves the goals of recognizing
Prior to a 1670 voyage, Captain Henry
Morgan’s pirates agreed:
As to the recompences and rewards, they
were regulated in this voyage much higher
than was expressed in the first part of this
book. Thus, for the loss of both legs, they
assigned one thousand five hundred pieces of
eight or fifteen slaves, the choice being left to
the election of the party; for the loss of both
hands, one thousand eight hundred pieces of
eight or eighteen slaves; for one leg, whether
the right or the left, six hundred pieces of
eight or six slaves; for a hand, as much as for
a leg; and for the loss of an eye, one hundred
pieces of eight or one slave. Lastly, unto him
that in any battle should signalize himself,
either by entering the first any castle, or taking down the Spanish colours and setting up
the English, they constituted fifty pieces of
eight for a reward. In the head of these articles it was stipulated that all these extraordinary salaries, recompences and rewards
should be paid out of the first spoil or purchase they should take, according as every
one should then occur to be either rewarded
or paid.34
Articles attributed to Captain Bartholomew
Roberts were adopted in 1721 and provided:
ARTICLE IX – No Man to talk of breaking
up their Way of Living, till each had shared a
1,000 l. If in order to this, any Man should
lose a Limb, or become a Cripple in their
Service, he was to have 800 Dollars, out of
the publick stock, and for lesser Hurts, proportionately.35
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19
GENERAL INTEREST
20
and compensating for presumed loss of earning
capacity for the loss or loss of use of certain
parts of the body and fixing the compensation
payment to avoid the uncertainties and costs
associated with litigation. In the pirates’ unique
democracies, a “roguish Common-wealth”45 of
criminals, it is worthwhile to examine the roots
in the pirate world of permanent partial disability compensation.
Always Ready for Combat: Why did the
pirates adopt permanent partial disability? This
probably was not out of concern for the longterm care and financial security of disabled
pirates. Was it the need to ensure full and competent participation in armed confrontation? Taking
a ship by force presented the risk of injury or
death. Success was dependent upon full participation and cooperation. All of the pirates had
signed on to an openly illegal adventure. Was the
guarantee of financial compensation for injury
designed to encourage individuals to fight as
strongly as they could? Guaranteed benefits could
discourage cowardice resulting from the threat of
physical injury and its attendant hazard to earning capacity.46
Historical accounts validate the need to
ensure bravery among the pirate crew, both from
within and without their number. Exquemelin
described a crew who vowed “to behave themselves courageously in this attempt [of seizing
another ship], without the least fear or fainting.”47 But to make sure cowardice would not
confound the operation, “they gave orders to the
surgeon of the boat to bore a hole in the sides
thereof, to the intent that, their own vessel sinking under them, they might be compelled to
attack more vigorously, and more hastily to run
aboard the great ship.”48
The prospect of financial gain encouraged
bravery and undermined cowardice. Sir Henry
Morgan proposed an assault on Portobello to a
small band of pirates. When the pirates suggested
they were too few to succeed, Morgan replied;
If our number is small, our hearts are great. And
the fewer persons we are, the more union and
better shares we shall have in the spoil. Hereupon,
being stimulated with the ambition of those vast
riches they promised themselves from their good
success, they unanimously concluded to venture
upon that design.49
Exquemelin recounted other similar rallies to
courage through appeals to greed.50
Professor Peter T. Leeson has written extensively on how economic incentives shaped pirate
conduct. He argues that provisions for injury
compensation in pirate articles created incentives
for crew member productivity and prevented
shirking. Social insurance for pirates encouraged
everyone to participate without fear of uncompensated injury.51
Leeson also suggests that pirates were better
off developing a reputation for aggressiveness
without actually having to engage in battle.
Adopting a rational choice analysis, he argues that
if pirate victims were multiple and could observe
a pirate’s past actions, pirates could maximize
their long-run payoff by building a reputation for
mercilessness toward resistors that deterred future
merchantmen from resisting.52
Familiarity with Other Compensation
Schemes: Were the pirates’ permanent partial disability schemes derived from their exposure to
military disability compensation? Belgium’s
industrial accident schedule was closely associated
with comparable compensation for war wounds,
as was also France’s original schedule.53 Some
researchers have suggested that most pirates were
ex-merchant or Royal Navy sailors.54
The Royal Navy had a pension system for
injured sailors dating back to at least 1590. Sir
Francis Drake, Sir John Hawkins, and Lord
Howard of Effingham created a benevolent fund
for the English Navy. Seamen paid sixpence a
month for the benefit of the wounded and widows of those killed in action. The money was supposed to be collected and stored in a large iron
chest, the “Chatham Chest,” which became a
pseudonym for the fund. The Chatham Chest is
preserved at the Historic Dockyard in Chatham,
England. It was fitted with five locks, the keys to
which were held by different individuals who met
monthly to open it and consider pensioners’ petitions.55 A pensioner was required to obtain a,
“smart ticket,” a certificate declaring the part of
the body injured, the time when, and the manner
how the wound was received.56 The ticket was
filled out, signed, and delivered to the injured
sailor as soon as he was “cured” onboard or
before he was set from the ship for cure, “and not
afterwards.”57
Pirates probably knew about these pension
systems. The pirates were engaged in an illegal
enterprise, and therefore when they disbanded to
go their separate ways, they likely did not want a
fixed address for benefit payments. That would be
too easy a target for the recovery of ill-gotten
gain. So the scheme for a fixed injury pension
approximated the Navy system while preserving
anonymity.
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GENERAL INTEREST
Paying a Price to Maintain Order: The pirates’
permanent partial disability compensation program may have limited dissension among the
pirate crew. Dissension could lead to mutiny, and
re-codifying the social contract.58 In an unstable
criminal enterprise taking place on the unpredictable high seas, the compensation scheme
likely played a role in quelling dissension in those
circumstances where economic gain and a sense
of justice conflicted. It is economically rational to
give the “wounded warrior” pirate a greater form
of compensation from a prize, given the personal
cost to him. Many of the other pirate code provisions were aimed at maintaining order, so the
compensation scheme was a natural complement.
Conclusion
Most of the pirate flags ended up at the bottom of
the sea. Many pirates were hanged or left to rot in
the gibbet, a metal cage where the body was displayed in harbor view as a reminder to anyone
with thoughts of going-a-pirating. The stories of
the pirates live on in transcripts of their trials and
in writers’ imaginations. Evidence of their motivation is sparse.
There are uncanny similarities between 20th
century workers’ compensation laws granting
permanent partial disability and the democratic
articles adopted by the pirates of the early eighteenth-century. But there is a disconnect between
the purpose of modern workers’ compensation
and that adopted by the pirates.
In a November 15, 1912, speech, Professor
Francis H. Bohlen of the University of
Pennsylvania Law School discussed the dual
purpose of a permanent partial disability provision in Pennsylvania’s proposed workers’ compensation law:
The determining consideration was that by
rendering the amount definite litigation
would be prevented and certainty attained,
since whenever a mutilation of this sort
occurred there could be no question as to
the extent of disability of the sufferer or the
amount payable to him.59
In his workers’ compensation treatise
Professor Larson stated:
The ultimate social philosophy behind compensation liability is belief in the wisdom of
providing, in the most efficient, most dignified, and most certain form, financial and
medical benefits for the victims of work-connected injuries which an enlightened community would feel obliged to provide in any
case in some less satisfactory form, and of
allocating the burden of these payments to
the most appropriate source of payment, the
consumer of the product.60
The pirates’ compensation scheme may have
been efficient, dignified, and “most certain,” in
terms of financial recovery. But it is questionable
whether they were an, “enlightened community,”
who felt obliged to pay compensation. In no way
did the cost of pirate physical impairments ultimately fall on the consumer of the product. All of
the cost of the enterprise fell on victims unconnected to the pirates’ social contract. The pirates’
workers’ compensation scheme was dressed up as
a moral principle in the midst of a highly
immoral venture. However, the pirates’ need for
order and to display a willingness to fight may
have paralleled the modern need to avoid litigation in the promotion of certainty and efficiency.
The opinions expressed in this article are comments,
“concerning the law, the legal system, the administration of justice and non-legal subjects,” in accordance with Canon 4(B) of the Canons of Judicial
Conduct for the State of Virginia, are personal, and
they are not official opinions of the author in his
role as a judge, the Virginia Workers’ Compensation
Commission, or any other court or governmental
agency. The author extends gratitude to staff attorneys Brian Larson, Wanda Dotson, and Diane F.
Dusseau for their assistance in researching and editing this article.
Endotes continued on page 65
Wesley G. Marshall was appointed as commissioner at the
Virginia Workers’ Compensation Commission in May 2012.
Previously, he was in private law practice for more than
twenty-three years, mostly representing plaintiffs in workers’
compensation, employment, and other civil litigation. He litigated thousands of cases before the Workers’ Compensation
Commission, the Court of Appeals of Virginia, the Supreme
Court of Virginia, and other federal, state, and administrative
courts and agencies. He is a member of the Southern
Association of Workers’ Compensation Administrators, the
National Association of Workers’ Compensation Judiciary,
the Lewis F. Powell, Jr. American Inn of Court, and other
bench and bar organizations.
21
GENERAL INTEREST
Lawyers Helping Lawyers Remains
Important Resource
by Linda McElroy
Professional impairment counseling organizations such as
Lawyers Helping Lawyers (LHL) continue to be an important
resource for lawyers dealing with substance or mental health
issues, according to the results of a recent substance abuse,
mental health, and other negative behaviors survey of Virginia
attorneys.
The LHL study, funded by ALPS and conducted by the
College of William and Mary, was patterned after a similar 2008
survey. The most recent survey included revisions to some of
the questions, and the inclusion of new questions regarding
Internet, gambling, and sexual behaviors.
The purpose of the more recent survey was threefold:
1) to assess perceptions of legal professionals about the
scope of substance abuse, mental health problems, and
process addictions that included internet, gambling, and
sexual behaviors among lawyers; 2) to assess the extent to
which substance abuse and mental health problems impact
members of the legal profession in Virginia; and 3) to
assess awareness of services provided by LHL.
Nearly 20,000 active Virginia State Bar members (64 percent of active members) received the survey via e-mail, and of
those 14.3 percent responded.
Results of the survey were varied. While some outcomes
such as the percentage of mental health issues and Internet or
gambling addictions were surprising, others were somewhat
expected, such as respondents’ general knowledge of LHL and
alcohol use and its affect on professional versus personal lives.
Generally, Virginia lawyers are aware of LHL and are comfortable to very comfortable in contacting the organization if
they need assistance. Out of the 77 percent of those aware of
LHL, nearly 90 percent of them are aware of the organization’s
strict confidentiality policy.
In terms of alcohol and other substance abuse issues,
researchers summarized that in addition to alcohol being the
clear drug of choice for this target group, the existence of current or previous psychoactive drug-related problems among
lawyers (9 percent) is slightly higher than the general U.S. population. It was also discovered that substance abuse takes a
greater toll on family/personal lives before professional activities. The positive news is that two-thirds of those with these
issues have actually received help — also at a higher rate than
the general U.S. population.
The percentage of lawyers with mental health-related problems appears to be higher than those with alcohol and other
drugs concerns. Twenty percent of participants reported that
mental health challenges have affected either their professional
and/or personal lives. And after combining the results of the
answers surrounding mental health and substance abuse, nearly
22
one-third of Virginia lawyers have at least one of these issues in
their lives.
In an effort to document positive or disturbing trends in
behaviors, researchers also compared results between the 2008
and 2014 surveys.
• Twenty-five percent more attorneys who had a problem with
alcohol and other drugs received help in 2014 than in 2008.
• There was a 4 percent increase in awareness of LHL from the
2008 to 2014, though there was a minimal decrease in the
comfort level in contacting LHL if a lawyer needed information on substance abuse, was concerned about a colleague’s
substance abuse or personally needed help.
• There was an increase in comfort level related to contacting
LHL for help regarding depression or general mental health.
• Nearly .5 percent more lawyers said they have had too much
to drink at work-related functions.
The biggest difference between the 2008 and the 2014
survey itself is the inclusion of questions about Internet, sexual and gambling addictive behaviors. Researchers noted that
while addictive behaviors are not currently listed in the
Diagnostic and Statistical Manual of Mental Disorders Fifth
Edition (DSM-5), it is important to identify these behaviors
before they become problematic.
Internet usage was the number one behavior of concern.
More than 50 percent of lawyers answered that “personal
Internet usage occupied more time than it should.” Just over 6
percent said that their Internet usage has affected their personal
or professional lives.
Following in second place of the three studied behaviors,
sexual fantasies, urges, or activities affect 9 percent of lawyers.
Eleven percent have unsuccessfully tried to curb or stop these
actions, with 7 percent of lawyers scoring in the potentially
problematic range.
Lastly, gambling addictions garnered a 2 percent tally. This
group was asked to report on “having a gambling problem, a
recognized need to cut back, annoyance with others’ perceptions, significant negative consequences or engagement of gambling behaviors as a form of escape.” Only .7 percent of lawyers
indicated a potentially problematic issue.
Based upon the results of the 2014 survey and noted percentage changes between the 2008 and 2014 surveys, researchers
conclude that professional organizations such as LHL are necessary in assisting Virginia bar members with substance abuse
and problematic behavioral issues.
LHL’s mission is to “provide assistance to attorneys, judges,
law students, bar applicants and others in the legal profession
and their families with problems related to mental health and
substance abuse.”
www.vsb.org
Law Stories
Tell Us Your Favorite Law Story
Every lawyer has a story set aside for gatherings of friends or relatives. It’s a special tale
about a legal battle won, or lost. Or about an amusing encounter with a judge. Or a
story with a surprising twist. Maybe it’s a story that will bring a knowing smile, or
shake of the head, from a colleague.
Pick your best Law Story, your incredible adventure, your unusual courtroom or
even boardroom escapade, and send it to us. Keep them short — about
400 words or less — and send them in.
E-mail your stories to us at [email protected].
How I Spent My Fifty-First
Birthday
by Paul G. Taylor
Litigating a contested child abuse case
on my fifty-first birthday was the last
thing I wanted. Cold beer and steamed
crabs was what I had in mind.
New parents Jose and Valerie
Cortez were not native English speakers. Their baby girl, Carmen, was less
than 1 year old.
During a well-baby visit, Carmen
was found to have blood on the brain, a
subdural hematoma. The parents, innocent as they were, could not give a “satisfactory” explanation. The language
barrier did not help either.
The health care providers were
mandatory reporters of suspected child
abuse. Once that call was made, it was
off to the races.
The social workers were new college graduates with their first jobs —
misguided, improperly supervised “dogooders.” Without a meaningful investigation, the Cortez parents were charged
with child abuse. Carmen was taken
away from them.
The court-appointed guardian ad
litem was a retired, rubber stamp, federal prosecutor, one of those people
who believe the investigating and prosecuting authorities never make a mistake. No independent investigation was
conducted.
When I spoke with Mr. and Mrs.
Cortez, they had that deer-in-the headlights look. I put myself in their position:
strangers in a strange land, unfamiliar
with the language, customs and law, no
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friends, no one to turn to, underdogs,
their baby girl in state custody, their
hearts and home broken. I agreed to take
the case. There was something, just. . .
something that I could not ignore.
I dove into the research on pediatric
subdural hematomas, and the so-called
shaken baby syndrome. I spoke with
experts in the field of pediatric neurology. I searched for witnesses and the
answer to Carmen’s condition. I chased
every lead I could imagine. I spent
hours, nights, and weekends for which I
knew I would never be compensated.
Thank God Carmen was fine physically.
But would she have her family?
As both the Cortezes worked, I
learned they often left Carmen in the
care of a babysitter. This babysitter,
unbeknownst to the Cortezes, was an
alcohol abuser. She tended to get frustrated and physical with fussy babies.
When the babysitter knew I was asking
questions, she tried to cover her tracks. I
alerted the prosecutor and guardian ad
litem to my discoveries. They did nothing. I was on my own.
It was a two-day, fully contested,
disposition hearing. The judge, tough
but fair, began to read his decision from
the bench. As the interpreter translated,
the young mother began to sob and cry.
She would soon hold her daughter in
her arms and tuck her into her own bed
that night.
When I heard those sobs and
thought of the magnitude of what had
happened, I melted. This world-weary
and hardened lawyer began to cry, too.
All of the angst of the preceding
months disappeared. You could have
knocked me over with a feather.
It was one of the most meaningful
and validating experiences of my life. I
felt humility, power, and so many other
things at the same time. It was unforgettable and life changing. It was as if
Carmen and I were re-born that day.
Carmen, to her family; I to my life and
profession.
By the way, the slightly delayed cold
beer and steamed crabs tasted just like
the first time, only a little bit sweeter.
Fight the good fight.
Paul G. Taylor has been a small
town general litigation practitioner since 1991. A graduate of
the T.C. Williams School of Law
at the University of Richmond,
he is admitted to practice in
Washington, DC, Virginia, and
West Virginia. He is a member
of the Million Dollar Advocates
Forum.
The Service Monkey
by R. Bruce Long
I was in my chambers in Gloucester
County General District Court one
morning getting ready to begin court.
My clerk, Barbara, came back to my
chambers and said we have a problem at
the front door of the courthouse and I
need your guidance. I replied, “go on,”
Barbara proceeded to tell me that there
was a woman at the front door with what
she claimed was a “service monkey.”
I told Barbara to go to the front
door and determine what function the
lady claimed was performed by the
Vol. 63 | December 2014 | VIRGINIA LAWYER
23
Law Stories
monkey. Barbara returned a few minutes
later and said the lady, who was carrying
an ADA card, said she was prone to
panic attacks and the monkey could
sense such an attack and warn the lady. I
was a little skeptical but told Barbara to
tell the bailiff to let her and the monkey
come into the courtroom.
A few minutes later, I went on the
bench to begin court. This lady was
seated in the courtroom. She was accompanied by a small gray monkey maybe
fifteen inches tall, wearing a hot pink
tutu and a hot pink collar, with a hot
pink leash.
The lady was there for a speeding
ticket. The courtroom was full of (laughing quietly) defendants, attorneys, and
police officers. I decided it best to call
her case first so she could be on her way.
She approached the bench, with the
monkey (whose name was Daisy) jumping from one shoulder to the other and
making monkey sounds.
The lady had a clean driving record
so I put her on six months’ probation
and told her to take the on-line defensive
driving course. I then informed her that
she had to go to Kinkos to take the test
and she asked if she could take Daisy. I
told her she would have to work that out
with Kinkos.
After she departed, one of the attorneys said they were all waiting to see if
the monkey would have any motions.
I must confess that it took a lot of
self-control to keep a straight face. At the
next break I called my wife and told her
of the event. We were both having a
good laugh at that point. I told her, “I
love this job and they pay me to do it.”
Several weeks later I found out from
my colleague in York County that the
same lady, and monkey, had been in his
courtroom. The lady was charged with
shoplifting from the local Walmart. As
you can guess, her defense was “I didn’t
take the item, Daisy did.”
The Honorable R. Bruce Long
retired from the 9th Judicial
Circuit bench at the end of
2013. He previously sat in
General District Court for
eleven years.
24
Duck to the Rescue
by William J. Kopcsak
I went recently to the Claybrook Baptist
Church Cemetery in Weems to visit the
grave of someone I knew long ago. No
one was in the church office or on the
property so it took a while to find his
marker tucked away behind many others. The tombstone reads: LANCASTER
COUNTY SHERIFF’S DEPT —
SERGEANT DONALD C. BENSON —
JUNE 3, 1947–NOVEMBER 5, 1981. I
believe he is looking down and I hope he
recalls our adventure together in the fall
of 1975.
October nights in Virginia can be
downright creepy and that night, close
to Halloween, was no different. I was on
my way home from court in Norfolk.
Dark clouds blocked all moonlight and
a mist rose from the earth. It was easy
to imagine ghosts and goblins, especially
since it was just after midnight. I had
given up flashing the car lights from
high to low and low to high. Visibility
through the mist seemed better on low
beams. Moisture was forming on the
car hood. I set the windshield blades
on a delayed sweep. There I was, on
an isolated two lane road just about
to cross the Norris Bridge over the
Rappahannock River. No signs of life.
My headlights were the only lights in
the area. I hadn’t seen another vehicle
for fifteen minutes.
I knew that after crossing the bridge
it would be a short drive to my home
where I looked forward to a good night’s
sleep. Then I spotted it. Twenty feet from
the road’s edge, on the passenger side of
my car, was what appeared to be a body.
Was I seeing things? It was late. I was
tired. Maybe I’d seen a deer, a dog,
somebody’s trash, and not a body.
I made a u-turn in a farmer’s lane. I
could barely see what looked like a man,
face down on the ground. Another uturn and, now heading back towards the
bridge, I drove slower. Definitely it was a
man with short cropped hair, dressed in
white and covered in blood. I lowered
the window on the passenger side then
blew the horn. Nothing. No sound or
movement. Had he been hit by a car?
The body was probably too far off the
road for that to have occurred. Had he
been mugged and were his assailants
nearby? Both were possibilities. Had he
been murdered elsewhere and his body
dumped along this country road? That
was also possible.
This was a crime scene. I made the
quick decision to drive to the toll booth
on the Lancaster County side of the
bridge. The toll collector with his telephone would be there. And, this was the
time of night when state troopers or
other police officers often congregated
at the toll booth.
Ignoring the speed limit, I sped
over the two-mile-long bridge. On the
Lancaster County side, I felt relief seeing
a county police car and a deputy I recognized — Donald Benson. Most people
called him “Duck.” I had spoken with
him many times at the courthouse and
in the sheriff’s office. When I told him
what I had just seen, his face tightened
with concern. “Come on, Bill. Get in my
car and show me where the body is.” He
sped back over the bridge.
“Duck, slow down, we’re almost
there.” He lowered his window and drove
more slowly. “Good Lord,” he said when
he spotted the body. He drove past the
scene, made a u-turn, and stopped. He
reached in front of me, pulled a revolver
out of the glove compartment, and
handed it to me. “I don’t know what
we’ll find but you need to be ready. It’s
loaded. All you have to do is pull the
trigger.” I thought, pull the trigger! What
am I doing here? I’m just a lawyer.
He reached for a large flashlight.
“I’ll stop the car just before we get to it.”
Ever so slowly, he started driving towards
the body. The mist seemed thicker. I
wondered, where is the full moon when
we need it? The cruiser slowed. Duck got
out and said to stand by the passenger
door. His pistol was drawn and with the
flashlight in his other hand, he swept
the area behind and around the body.
“Hello, hello, are you all right?” No
movement or sound. The body was
prostrate on the ground, head and shirt
smeared in blood. Duck approached it,
“Hello, are you all right?” Still no movement or response. I stood by the car,
holding the pistol, my darting eyes
searching the area, but keeping a watch
on Duck.
Step by step in the damp grass, he
approached the body. Suddenly it made
a loud gurgling sound. Duck halted. The
Law Stories continued on page 60
www.vsb.org
Construction Law in Virginia
photo by Bill Dickinson
by Michael A. Branca
The Construction and Public Contracts Law Section is pleased
to have this opportunity to provide our colleagues with four
timely and disparate articles that vividly illustrate the breadth
of our practice area. The chair of our publications committee,
Randall H. Wintory, worked hard to identify articles that would
both showcase members of our section and more importantly
deliver useful content to our fellow members of the Virginia
bar. We hope you enjoy these articles and find them helpful in
your own area of practice.
Resolving Complex Construction Disputes, penned by the
Honorable Leslie Alden, Shannon Briglia, and Andrew Stephenson,
is a must-read for any lawyer whose practice includes the resolution of disputes, regardless of practice area. Our authors bring
decades of experience to resolving complex construction cases,
with perspectives from the bench and the bar. No doubt there
are takeaways in this article for all practitioners.
Sean Golden and Brandon Sieg provide a very interesting
article on the interplay between copyright protection and architectural works. In Searching for Substantial Similarity between
Architectural Works in the Fourth Circuit, the authors address
the conflict between divergent opinions from district courts
within the Fourth Circuit with respect to the substantial similarity inquiry as it relates to architectural works. As a result of
this split among courts regarding how much protection is provided to an architect by the copyright, neither architects nor
owners have the certainty they need in conducting their respective businesses.
Obtaining Green Certification for Existing Buildings in
Virginia is from Robert Travers and Kelley Holland. This article
addresses the very real issue presented by existing structures
that are anything but “green.” The U.S. Green Building Council
does not view increased construction of new green buildings as
a practical solution to the glut of energy inefficient commercial
floorspace, because it takes up to eighty years to offset the environmental impact of demolishing an old building and constructing a new, more efficient one. Accordingly, “going green”
requires a focus on existing not just new structures.
Matthew Taylor rounds out the quartet with Answering
Questions About Job Order Contracting, which examines a
unique method that public bodies may use to procure construction services. Job order contracting is a method of procurwww.vsb.org
ing construction services through an indefinite delivery, indefinite quantity term contract, using task orders as needed for
individual projects, where the task order price is based on a
book of pre-established unit prices. The purpose is to allow
public agencies to be more nimble and efficient in their purchasing of construction services.
Our section prides itself on the many events and programs
offered to our members. First and foremost is the section’s
flagship two-day CLE given at the Boar’s Head Resort in
Charlottesville each year in November. This year’s program —
the 35th annual — carried the theme “best practices in the
practice of construction law.” Year in and year out we have
also sponsored a CLE program at the bar’s annual meeting at
Virginia Beach. In addition, there are multiple CLEs, webinars,
and networking events sponsored by the section throughout the
year, most of which are free, and a few that require only a nominal registration fee. By way of example, and for the third year
in a row, members of the section and their counterparts from
the Maryland State Bar met for a joint reception and mixer in
suburban Maryland.
We invite each of you to test drive one of our programs.
Indeed, we invite each of you to join our section, take advantage of our many benefits, and spend time with a collegial and
vibrant group of lawyers. Please feel free to contact me if you
have any questions about our section or its offerings.
Michael A. Branca focuses his practice on construction and government contract law. His practice includes the representation of general and prime contractors, construction managers, and other members of the construction and
government contract industries. Mr. Branca provides wide ranging services to
his clients, including the review and negotiation of contract documents, contract administration support and guidance, and the preparation and litigation of bid protests and claims. He is the chair of the board of governors of
the Construction and Public Contract Law Section of the Virginia State Bar.
CONSTRUCTION LAW AND PUBLIC CONTRACTS | Vol. 63 | December 2014 | VIRGINIA LAWYER
25
Resolving Complex Construction Disputes
by Leslie M. Alden, Andrew W. Stephenson, and Shannon J. Briglia
The keys to resolving complex construction disputes are identifying the critical drivers that define them, selecting the
best procedural option, and deploying
the leverage factors available to the parties. Timing also is often a critical component in a successful resolution. When
to attempt resolution and how much
information the parties possess at that
time can have a significant impact on the
potential success of the parties’ alternative dispute resolution (ADR) effort.
The Nature of the Project Will Dictate the
Options for Resolving the Dispute
As a result of statutory directives, ADR is available
to resolve federal, state, and local construction
disputes.1 Any procedure, or combination of procedures, that is used to resolve issues in contro26
versy, including but not limited to conciliation,
facilitation, mediation, fact-finding, mini-trials,
arbitration, and use of ombuds, are permitted for
federal contracts, but only non-binding forms of
ADR are available to resolve disputes on Virginia
state and local construction contracts.2 While the
concept of non-binding arbitration might seem
alien, or futile, as the losing party could simply
ignore the award, a non-binding award has been
held to meet the purpose of ADR and results in
many settlements by “reorient[ing] the parties
toward settlement in a less costly and less confrontational setting than litigation.”3
Express, written agreements to arbitrate in
private construction contracts are uniformly
enforced in Virginia,4 thus, parties are free to
include or exclude binding or non-binding ADR
in their private construction contracts. Various
associations within the construction industry
have developed standard forms of agreement that
are widely utilized by many private (and occasionally public) parties and which include ADR
provisions, sometimes as a condition precedent to
more formal dispute resolution.5 In Virginia, generally speaking, any express provision mutually
requiring the parties to engage in ADR will be
enforceable.
Practical Alternatives for Resolving Disputes: A
Parade of Resolution Techniques
There is no “one size fits all” method for resolving
disputes, rather, the characteristics of the dispute,
the timing of when the dispute arises and when it
might ideally be resolved, the pressure points
available to the parties, and the willingness of the
parties to participate in ADR, among many other
factors, will dictate the ultimate choice of ADR.
Parties should also refrain from thinking lineally
– some disputes will require more than one form
of ADR to reach a settlement and often the
involvement in one form of ADR will lay the
groundwork for success during the second (or
third) type of ADR.
VIRGINIA LAWYER | December 2014 | Vol. 63 | CONSTRUCTION LAW AND PUBLIC CONTRACTS
www.vsb.org
RESOLVING COMPLEX CONSTRUCTION DISPUTES
Informal Proceedings
Solving problems at the lowest possible level in
the management structure is the most cost effective and efficient method. Often called dispute
prevention, many construction contracts require
the parties’ project representatives to meet in an
effort to resolve the conflict. The next step is often
submission of the dispute to the architect for a
decision, which either party can then appeal by
invoking the next level of resolution. Some contracts also require higher-level decision makers to
meet and negotiate the dispute before the next
step, mediation, is invoked.
Partnering, a formal commitment between
the parties to a contract to work collaboratively to
achieve specific business objectives, requiring
establishment of trust and mutual understanding
of the other party’s objectives and values, is commonly used on federal and large or mega-projects.6 A partnering team that includes
representatives of all stakeholders and a designated project neutral facilitate discussions. A partnering agreement is developed and signed to
demonstrate commitment to the ideal, and follow-up workshops are periodically conducted to
ensure that the parties remain committed.
Dispute Resolution Boards (or Panels)
involve the agreement of parties to designate a
panel of neutrals to hear and resolve disputes.
Typically consisting of three people, the DRB
meets regularly during the course of the project to
hear and issue non-binding recommendations
resolving disputes. If the parties agree with the
recommendation, appropriate contract modifications can be issued incorporating the panel’s recommendation.
If the informal negotiations and submission
of the dispute to the architect or the DRB prove
• Participating in good faith, with the intent to
settle
• Selecting the right mediator
• Educating the mediator in advance of the mediation session, including alerting the mediator to
unique pressure points or problems
• Avoiding inflammatory or controversial presentations
• Being candid with the mediator
• The presence of expert witnesses is not always
conducive to settlement
• Substantiating claims
• Owning up to mistakes
• Memorializing any settlement in writing before
ending the mediation session
The parties may structure the process as a
traditional “grind it out” mediation where claims
are submitted in writing and the mediator plays
shuttle diplomacy, working the angles until a resolution is reached. Or the parties may decide in
advance to conduct their negotiations through a
different structure:8
• Baseball mediation. Each side submits its final
position in writing and the mediator chooses
which to use.
• Golf Mediation. The mediator writes down
his/her number and the parties submit their
positions. The parties agree to settle at the offer
closest to the mediator’s number.
• Pocket Golf mediation. The mediator develops
a number and submits it privately and separately to each party. The parties may accept or
reject the number and the mediator only reveals
whether there is a settlement.
• High-low Mediation. The parties establish a
floor and ceiling for the negotiations, and the
mediator works to resolve the dispute within
the settlement range.
a non-binding award has been held to meet the purpose of ADR and results
in many settlements by “reorient[ing] the parties toward settlement in a less
costly and less confrontational setting than litigation.”
ineffective, the most common next step is submission of the dispute to mediation. The hallmark of
mediation is conciliation, so most mediation provisions leave the parties considerable flexibility in
formulating the mediation. The benefits of mediation are obvious; mediation allows the parties to
control their risks and their costs. Key components to ensure a successful mediation include7:
• Sending participants with the authority to settle
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Formal ADR Procedures
If informal ADR mechanisms are not effective,
more formal ADR variants are available, including
options developed in response to complaints that
arbitration is becoming more and more like litigation, with its attendant costs and delays.
Traditional arbitration includes presentation of
the case to an arbitrator or panel of arbitrators
jointly selected by the parties. The parties may opt
”
27
for presentations akin to a trial or a modified or
summary presentation via affidavit, or deposition
extract. Arbitration awards are often final and not
appealable, except in very limited circumstances.
Frequently the parties are not entitled to discovery unless they mutually agree or the arbitrator
orders it.
In response to concerns that traditional arbitration is not cost- or time-efficient, variants have
been developed:
• Fixed Time and Cost Procedures. The parties
agree to conduct their arbitration in accordance
with predetermined timetables and limitations,
so they can predict in terms of total time and
cost the time to complete the arbitration.
• Early Neutral Case Evaluation. Parties request
and mutually select a neutral to provide an early
case evaluation in advance of arbitration.
• Web or Cloud Based Arbitration. The parties
submit their case entirely online, no face to face
evaluation session is conducted and as few as
three and as many as five arbitrators selected by
the parties provide an evaluation of the case.
Alternatives to traditional arbitration include
baseball arbitration, baseball arbitration in the
dark, and other variants. In baseball arbitration,
each party submits a proposed monetary award
to the arbitrator. After the conclusion of the hearing, the arbitrator chooses one award from the
submitted awards without modification. Baseball
arbitration strategically forces each party to offer
a reasonable proposal to the arbitrator with the
hope that his or her award will be selected.
Baseball arbitration is sometimes referred to as an
either/or arbitration or final-offer arbitration.9
Baseball arbitration can be one of two types,
night or day baseball arbitration. In both variants,
the parties submit their last best award to the
arbitrator. In day baseball arbitration, the arbitrator is aware of the award and chooses the award
that he or she considers most closely approaches
the arbitrator’s evaluation of the case. Night baseball arbitration involves submission by the parties
of a proposed award that is kept confidential from
the arbitrator until the issuance of the arbitration
decision. The award that is mathematically closest
to the arbitrator’s award becomes the binding
award.10
Closely similar to baseball arbitration is highlow or bracketed arbitration where the parties
agree in advance to the parameters within which
the arbitrator may render his or her award. If the
award is lower than the pre-set low, the defendant
will pay the agreed-upon low figure; if the award
is higher than the pre-set high, the plaintiff will
28
accept the agreed-upon high; if the award is in
between, the parties agree to be bound by the
arbitrator’s figure. The high and low figures may
or may not be revealed to the arbitrator in
advance of the proceedings.11
An option that is used frequently in international arbitrations is the joint expert meeting and
report. Opposing experts meet, either in the
absence of or with observation of the parties, and
discuss the issues, producing a report identifying
the issues they agree upon and those they do not
agree upon. The testimony of the experts at the
arbitration or trial is narrowed to the disputed
issues, thus reducing the hearing time and removing the undisputed issues from the arbitrator or
judge’s deliberation.12
Another option to reduce arbitration hearing
time is for the opposing experts to present their
testimony concurrently. Concurrent expert panels
or expert witness panels involve the experts providing a brief summary of their key findings and
opinions. Each expert then comments on the
opinions and answers of the other expert and
they may ask questions of each other. The attorneys take turns questioning or cross-examining
each expert witness and the panel may ask the
experts questions.
ADR During Litigation
The opportunities to resolve the case short of trial
do not simply end with the filing of a traditional
lawsuit. Options for resolving a case before trial
include:
• Federal Rule of Civil Procedure 16 – Settlement
Conference
• Federal Rule of Civil Procedure 68 — Offer of
Judgment
• Use of summary judgment and requests for
admission to reach resolution prior to trial.
Resolving the “low hanging fruit” issues can narrow the dispute and promote resolution.
• Judge pro tempore. The parties appoint a mutually acceptable person (sitting or retired judge,
attorney, or other person) to serve as judge pro
tem13 for their matter. The judge pro tem has
the same authority as a circuit court judge to
manage the proceedings, resolve discovery disputes, hear and resolve motions, conduct settlement conferences, and preside at trial.
• Summary jury proceeding. Non-binding summary jury proceedings are available in both federal14 and state15 court and may effectively
provide the parties an assessment of their case at
a fraction of the cost and time of a full trial.
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Identification and Use of Pressure Points Real
and Perceived to Reach Resolution
The key to achieving settlement may lie in identifying and effectively deploying appropriate pressure points:
• Third party influence. Involving a third-party
known and respected by parties to a dispute can
foster settlement dialogue with both sides.
• Political influence. This could include formal
lobbying efforts, or less formal direct appeals to
politicians for intervention.
• “Rally the Subs.” Presenting a uniform front by
subcontractors can be an effective strategy for
resolving claims against the owner.
• Promise of future work or additional work can
be an effective settlement tool.
• Publicity and Reputation. Negative publicity, or
the prospect of negative publicity, can motivate
decision-makers to resolve disputes quickly.
This pressure point carries the substantial risk
of escalating the dispute or causing the adverse
party to respond in-kind.
• Insurance. Claims often can be structured in a
manner to trigger insurance coverage.
• Lender. Notifying the construction lender of
disputes and claims can result in the lender
asserting oversight and control over the project
and/or the claims process.
• Surety. Sureties add another decision-maker
and possible deep-pocket.
• Constituencies and End Users. The ultimate
users of a facility may exert pressure to complete a stalled or problem project, particularly if
the end users are sympathetic or well organized.
• Anti-Deficiency Acts — State and Federal. Antideficiency act compliance may impact the
amount or structure of a settlement.
• Mechanic’s Lien. Mechanic’s liens can offer substantial leverage for general contractors and
subcontractors against an owner.
When Is the Best Time to Resolve a
Construction Dispute?
All complex construction disputes are expensive
to litigate. This fact creates a strong incentive to
settle earlier in the process, rather than later.
There are different schools of thought on whether
settlement before you discover all the facts will
achieve the best result for the client, or whether it
is better to discern all the strengths and weaknesses before you attempt resolution.16
Sometimes parties are reluctant to assert their
best facts and arguments early in the process
because they worry the opponent will have too
much time to develop a good rebuttal.17 At early
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stages in the litigation, parties may, either in a display of ignorance or arrogance, be overconfident
in their assessment of their own case, creating an
artificial impediment to settlement. Of course,
this same overconfidence can also develop over
time, as the parties build their internal assurance
in the merits of their case. Determining the
amount of information that is necessary to reach
a rational settlement is difficult, and must be balanced with the costs of obtaining that information.
Other factors impact the right time to settle a
case. How the parties have accounted financially
for a claim or dispute may dictate when to settle
the matter. For example, a contractor may be able
to take advantage of a tax write-off or write-down
in a period of heightened profitability. Owners of
construction projects may similarly have opportunities to refinance their projects, creating at a
point in time remote from the first eruption of
the dispute additional sources of cash to resolve
the dispute. Offering new or additional work as
part of a settlement package may also affect the
success of the ADR.
Conclusion
The cost and uncertainty of proceeding to trial in
a construction case are strong drivers in favor of
ADR, where the parties can regain some measure
of control over the costs and the outcome. There
are a myriad of ADR options available to parties
in the construction industry and an industrywide support of the concept, leaving the method
of reaching resolution open to the parties’ creativity and determination.
This article is an adaptation of a more detailed
paper presented by the authors at the Virginia
State Bar Construction and Public Contracts Law
seminar on November 6, 2014.
Endnotes:
1
See, Administrative Dispute Resolution Act
(ADRA), 5 U.S.C. §§ 571 to 584 and VA. CODE
ANN. § 2.2-4300 et seq.
2
VA. CODE ANN. § 2.2-4366; see also, VA. CODE
ANN. § 15.2-1404 (1997)(permitting governing
body of a county, city or town to enter into an
agreement to arbitrate an existing dispute, or enter
into a contract with a provision for arbitration).
3
Russell County School Bd. v. Conseco Life Ins. Co.,
No. 1:01CV00131, 2001 WL 1593233 at *3
(W.D.Va. Dec.12, 2001)(relying upon United States
v. Bankers Ins. Co.,245 F.3d 315 (4th Cir.
Resolving Disputes continued on page 41
29
Searching for Substantial Similarity between
Architectural Works in the Fourth Circuit
by Sean M. Golden and J. Brandon Sieg
To succeed in a claim of copyright
infringement, a plaintiff must prove that
“the defendant copied the original elements” of the plaintiff’s copyrighted work.1
In most cases, a plaintiff who suspects his
copyrighted work has been infringed does
not have direct evidence of copying. In the
absence of direct evidence that the defendant actually copied the plaintiff’s work, a
plaintiff can create a presumption of copying, by presenting indirect evidence of
copying. This is done by establishing that
the defendant had access to the copyrighted work, and that the defendant’s
work is “substantially similar” to the plaintiff’s protected material.2
30
This substantial similarity inquiry has proven difficult for many courts, particularly in the context
of claims for the infringement of architectural
works. The difficulties include determining what
test to apply in analyzing whether there is substantial similarity, and determining what portions
of the plaintiff’s work to consider when evaluating similarity. After all, the plaintiff must prove
that the defendant copied original elements of his
copyrighted architectural work,3 meaning that
not all elements of an architectural design are
entitled to copyright protection (and, so, some
elements can be copied without infringing).
Some courts have found the scope of protection for architectural works to be limited, or
“thin,” and have set the bar high for what constitutes substantial similarity. These courts perform
an “analytical dissection” of non-protected elements from protected ones, and “filter” the nonprotectable elements from the plaintiff’s work.
Ultimately, these courts reach the conclusion that
there is not much left deserving of copyright protection. Other courts put less emphasis on “filtering out” unprotectable elements, and have
addressed the substantial similarity question by
considering the “total concept and feel” of the two
works as wholes. As a result, there is a split among
courts regarding how much protection is provided to an architect by the copyright in its
designs.
There was not a great deal of clarity for
architects and their attorneys practicing within
the Fourth Circuit, but a group of recent district
court decisions appeared to set the trend toward
more limited protection. Then a ruling by the
Fourth Circuit specified a different test, but this
test leaves several questions regarding the substantial similarity inquiry unanswered, and it even
raises some new ones.
This article addresses the conflict between
the opposing views on the substantial similarity
inquiry with regard to architectural works and
how some recent decisions from courts within the
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SEARCHING FOR SUBSTANTIAL SIMILARITY BETWEEN ARCHITECTURAL WORKS IN THE FOURTH CIRCUIT
Fourth Circuit have addressed the inquiry. It also
evaluates how the Fourth Circuit’s most recent
decision regarding substantial similarity might
affect copyright protection of architectural works
in the future.
Copyright Protection for Architectural Works
The United States Copyright Act identifies several
categories of “works of authorship” that may be
afforded copyright protection.4 In 1990, Congress
passed the Architectural Works Copyright
Protection Act (AWCPA), which added “architectural works” to the list.5 Architectural works are
defined as:
the design of a building as embodied in any
tangible medium of expression, including a
building, architectural plans, or drawings.
The work includes the overall form as well as
the arrangement and composition of spaces
and elements in the design, but does not
include individual standard features.6
Unfortunately, this definition of architectural
works, as well as the legislative history of the
AWCPA, lends itself to multiple interpretations of
what should and should not be considered when
evaluating substantial similarity.
For example, the definition specifically
excludes “individual standard features,” which the
AWCPA’s legislative history suggests include
“common windows, doors, and other staple
building components.”7 But, Congress also clarified that “[t]he phrase ‘arrangement and composition of spaces and elements’ recognizes that …
creativity in architecture frequently takes the form
of a selection, coordination, or arrangement of
[unprotectable] elements into an original, [protectable] whole.”8 Because the “substantial similarity” inquiry only contemplates whether the
defendant’s work is substantially similar to the
protected material in the plaintiff’s work,9 the
question arises whether and to what extent “individual standard features” are to be considered in
the “substantial similarity” analysis. Are “individual standard features” to be totally excluded,
resulting in a substantial similarity inquiry
focused solely on the plaintiff’s “non-standard”
expressions in the work? Or should “individual
standard features” be considered as part of the
inquiry, because “creativity in architecture frequently takes the form of a selection, coordination, or arrangement of [unprotectable] elements
into an original, [protectable] whole”?10 The text
arguably lends itself to either interpretation.11
Elements of a work may be unprotectable for
reasons besides being “individual standard feawww.vsb.org
tures.” Courts have also grappled with the same
conflict when considering how to treat elements
of an architectural design that are functionally
required,12 that represent established architectural
styles,13 or that are driven by efficiency,14 market
demands,15 or building codes.16
Two Ends of the Spectrum
Generally speaking, courts tend to gravitate to
one of two ends of a spectrum on this issue. On
one end, some courts emphasize the “dissection”
and “filtering out” of unprotectable elements
from the work. Those courts consider similarity
only with regard to the elements remaining after
the filtration process, and tend to require a higher
level of similarity between two works to find
infringement.17
On the other end, some courts place more
focus on the directive that “creativity in architecture frequently takes the form of a selection, coordination, or arrangement of [unprotectable]
elements into an original, [protectable] whole.”18
These courts generally avoid “dissection” of protectable versus non-protectable elements, and
consider whether there is substantial similarity
between two works based on their “total concept
and feel.”19
An example of the first approach is the
Eleventh Circuit’s decision in Intervest
Construction, Inc. v. Canterbury Estate Homes,
Inc.,20 which involved the design of a home. The
Eleventh Circuit reasoned that because the protection afforded to architectural works relies on
arrangement and composition of unprotectable
elements (such as staple building components),
architectural works are analogous to “compilations.”21 A “compilation” is defined under the
Copyright Act as “a work formed by the collection
and assembling of preexisting materials or of data
that are selected, coordinated, or arranged in such
a way that the resulting work as a whole constitutes an original work of authorship.”22
Compilations are only entitled to a “thin” level of
copyright protection.23
The Intervest court held that the substantial
similarity inquiry “must be accomplished at the
level of protected expression,”24 meaning the
court was required “to separate original expression from the non-original elements.”25 The court
explained that because copyright protection in
compilations is “thin,” the substantial similarity
inquiry must be “narrowed.”26 The Eleventh
Circuit endorsed the district court’s dissection of
the plaintiff’s work to compare only the protectable elements of its design, and affirmed summary judgment for the defendant.
31
The second approach was applied by the U.S.
District Court for the Southern District of New
York in Shine v. Childs.27 The plaintiff in Shine
designed a skyscraper as part of his architecture
school coursework, and he presented this design
to a jury of professionals that included the defendant.28 Several years later, the defendant unveiled
a skyscraper design for the “Freedom Tower” at
the site of the World Trade Center in New York
City that was “strikingly similar” to the plaintiff’s
earlier design.29
The court rejected the “dissection” approach
advocated by the defendant, stating “[i]f the court
followed defendants’ suggestion and analyzed the
elements of plaintiff’s works separately, comparing only those elements that are copyrightable to
those present in the designs of the Freedom
Tower, … ‘we might have to decide that there can
be no originality in a painting because all colors
of paint have been used somewhere in the
past.’”30 In comparing the works, the court
applied the “total concept and feel test,”31 which
involves comparison of the works side by side
from a layperson’s perspective.32
The distinction between the two ends of the
spectrum can be summed up by how unprotectable elements are treated in the substantial
similarity inquiry. The Intervest end of the spectrum excludes those elements completely from
the analysis. The Shine end of the spectrum
acknowledges that those elements alone do not
warrant protection, but considers those unprotectable elements when examining the works as a
whole.
AWCPA Cases in the Fourth Circuit
Until the past few years, there had been little
analysis of substantial similarity in the context of
the AWCPA within the Fourth Circuit, and it was
unclear which way on the spectrum courts within
this circuit would lean.
In 2010, the U.S. District Court for the
Eastern District of Virginia began a trend toward
more limited protection for copyrights in architectural works. Harvester, Inc. v. Rule Joy Trammell
+ Rubio, LLC was a copyright infringement action
concerning the renovation and adaptive reuse of
the John Marshall Hotel in Richmond. The suit
was brought by the project’s initial architect
against the architect who completed the renovation/adaptive-reuse design.33
In ruling on the defendant’s motion for summary judgment, the court did not get to the substantial similarity analysis.34 But, the court did
specifically endorse the Eleventh Circuit’s analogy
32
of architectural works to compilations from
Intervest. The court also agreed that architectural
works were only to be afforded “thin” copyright
protection.35 The opinion noted that the protection afforded by the plaintiff’s copyright was limited because the design was constrained by “(1)
market demands, (2) building codes …, (3) functional demands, (4) the existing building’s physical characteristics, and (5) the goal of ‘restoring’
the Hotel to the old … design.”36
The following year, the Western District of
North Carolina considered an AWCPA infringement claim. In Building Graphics, Inc. v. Lennar
Corp., an architect sued a builder and another
architect for allegedly copying the plaintiff’s single-family home designs.37 The court initially
appeared to straddle the line between both ends
of the substantial similarity spectrum: the court
stated that unprotectable elements must be “filter[ed] out,” but it also indicated that the “substantial similarity determination requires
comparison not only of the works’ individual elements in isolation, but also their ‘overall look and
feel.’”38 Ultimately, the court agreed that the
plaintiff’s architectural works should be treated as
“compilations,” and their copyrights “thin.”39 This
lead the court to conclude that no reasonable jury
could find the defendants’ works to be substantially similar to the plaintiff’s works.40
The Eastern District of Virginia again tackled
substantial similarity in the architectural context
in Charles W. Ross Builder, Inc. v. Olsen Fine
Homes Building, LLC (Ross Builder I) in 2011.41
Ross Builder I concerned a single-family residence
in the Ford’s Colony subdivision of
Williamsburg.42 The court described at length the
myriad of influences that “dictat[ed] nearly every
design element of the two houses at issue in the
litigation,” including the fact that both houses
were designed in the traditional Georgian architecture style, and that both were located within
Ford’s Colony and subject to its many building
restrictions.43
As in Harvester and Building Graphics, the
court concluded that architectural works are entitled to only “thin” copyright protection.44 The
court went even further, though, and found that
because plaintiff’s design was modeled after a traditional style and borrowed “heavily … from the
public domain,” the design lacked significant originality.45 Therefore, a heightened showing of substantial similarity was required.46
In performing the substantial similarity
analysis, the court applied the “more discerning
observer” test, which requires the court to “distin-
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guish between protectable and unprotectable elements, put the unprotectable elements out of
mind, and determine whether the remainders of
each work” are substantially similar.47 The court
ultimately concluded that, “once the non-protectable features of [the plaintiff’s design] are
removed from consideration, there are few similarities left to be considered and thus little original work that Defendant could have
impermissibly copied.”48 This holding shows the
court leaning heavily toward the “dissection” and
“filtration” side of the spectrum.49 The court
granted the defendants’ motions for summary
judgment.
Until Ross Builder I,50 the Fourth Circuit had
not squarely addressed the substantial similarity
inquiry in the context of the AWCPA.51 That
changed in November 2012, when the Fourth
Circuit decided the plaintiff’s appeal of the Ross
Builder I decision.
The Fourth Circuit rejected the district
court’s application of a heightened substantial
similarity standard.52 Instead, the court instructed
that the two-part substantial similarity test it had
previously prescribed in other contexts should
also be applied in AWCPA cases53:
under this two-part test, to prove substantial
similarity, a plaintiff must show that the
works are (1) “extrinsically similar because
they contain substantially similar ideas that
are subject to copyright protection,” and (2)
“intrinsically similar in the sense that they
express those ideas in a substantially similar
manner from the perspective of the intended
audience of the work.”54
The court explained that “extrinsic similarity” is
an objective inquiry, which requires consideration
of “external criteria of substantial similarities in
both ideas and expression.”55 In contrast, “intrinsic similarity” is a subjective inquiry, requiring
consideration of the “total concept and feel of the
works.”56 The intrinsic similarity prong asks
whether the “ordinary observer, unless he set out
to detect the disparities, would be disposed to
overlook them, and regard [the] aesthetic appeal
[of the two works] as the same.”57
According to the Fourth Circuit, the district
court had erred by applying the “more discerning
observer” test instead of this two-pronged test.58
The court found that the district court had deviated from an essential principle of the “intrinsic”
prong by engaging in “analytic dissection” of protected and unprotected elements.59 In this sense,
the Fourth Circuit seemed to reject (at least, in
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part) the Intervest side of the substantial similarity
spectrum, which focused on the “filtration” of
unprotectable elements. This is confirmed by the
court’s endorsement of the “total concept and
feel” approach, applied in decisions on the other
end of the spectrum, such as Shine.
But the Fourth Circuit did not reject the
Intervest approach entirely. After all, the court’s
test also has the “extrinsic” prong. “Extrinsic similarity” requires an objective analysis, which, by
implication at least, involves segregating protected
elements from non-protected elements.60 In addition, although the Fourth Circuit did not decide
whether the plaintiff’s work should only be entitled to “thin” protection, the court did instruct
the district court to consider the design constraints imposed by the elements of Georgian
architecture and the requirements of the Ford’s
Colony restrictive covenants within the framework of the two-prong test.61 And, the court did
reference with approval the analogy of architectural works to compilations, an analogy championed by Intervest and similar decisions.62
The Substantial Similarity Inquiry in AWCPA
Cases Post-Ross Builder
The Fourth Circuit’s two-prong test can best be
understood as a hybrid of Intervest’s dissection
approach and Shine’s “total concept and feel”
approach. Instead of pushing in one direction or
the other along the Intervest/Shine spectrum, the
Fourth Circuit’s test requires courts to consider
substantial similarity from both approaches. But
the Fourth Circuit’s opinion in Ross Builder also
presents new questions.
The Fourth Circuit refused to discuss
whether architectural works are afforded only
“thin” protection.63 This issue is further muddied
by uncertainty as to what “thin” copyright actually means: is it merely shorthand for the uncontroversial principle that copyright does not extend
to “data,” but only the selection and arrangement
of that “data”? Or does it mean, as some courts
have suggested, that a plaintiff must demonstrate
a higher level of similarity?64 On one hand, the
Fourth Circuit seemed to reject the application of
a higher standard for substantial similarity by
prescribing an alternate test. On the other hand,
the court did approve of the analogy comparing
architectural works to compilations,65 and the
Supreme Court has held that the copyright protection for compilations is “thin.”66
Another question is whether a plaintiff must
establish both extrinsic and intrinsic similarity to
prove infringement. The immediate answer would
33
appear to be “yes,” because the Fourth Circuit
articulated its test in the conjunctive.67 If the
plaintiff is truly required to prove both, though,
the intrinsic similarity test would have little practical significance because lack of extrinsic similarity (shown through dissection of the work) would
defeat a claim for infringement.68 Furthermore,
the Fourth Circuit’s opinion does not mention
any failure by the district court to perform the
extrinsic similarity analysis correctly. Indeed, the
district court’s substantial similarity inquiry in
Ross Builder I was essentially nothing but an
extrinsic similarity analysis.69 And if the plaintiff
in Ross Builder I had been required to prove both
extrinsic and intrinsic similarity, wouldn’t the district court’s error in not applying the two-part
test have been harmless, because the plaintiff had
not proven extrinsic similarity?70
After appeal, the Eastern District of Virginia
heard the defendants’ renewed motion for summary judgment and rendered its decision last year
(Ross Builder II).71 On remand, much of the Ross
Builder I analysis was preserved, but the substantial similarity standards were revised to reflect the
instruction from the Fourth Circuit. The court
again dissected the works to distinguish protectable from non-protectable elements under the
extrinsic similarity analysis, and after a lengthy
discussion, held that “no reasonable juror could
conclude that the two designs are, extrinsically
speaking, ‘substantially similar.’”72
The district court’s intrinsic similarity discussion was much shorter.73 In assessing the “total
concept and feel” of the two homes, the court
held that there were certainly similarities between
the two, “[b]ut, of course, there are similarities
among most modern homes.”74 After discussing
the similarities that are common to most all
houses – doors, windows, foyers, kitchens, etc. –
the court concluded that “even a lay person would
have enough sense to know that they should not
find that two homes are substantially similar in
‘total concept and feel’ based on such superficial
Sean M. Golden is a senior associate at Vandeventer
Black LLP in Richmond. His practice is focused in
professional liability defense and commercial litigation. He primarily represents architects and engineers, as well as financial service professionals.
34
commonalities.”75 The court once again granted
summary judgment to the defendants.
Conclusion
Ross Builder II (which was not appealed) indicates
that the trends established by Harvester, Building
Graphics, and Ross Builder I are likely to continue,
even after the Fourth Circuit articulated its twopart test. Even though it considered both “extrinsic” and “intrinsic” similarity, the Ross Builder II
court seemed to place a greater emphasis on the
extrinsic analysis and the filtration of unprotectable elements. And while it did not again
describe the plaintiff’s copyright as “thin,” the district court did indicate that the measure of protection in the plaintiff’s work was “very limited.”76
Ross Builder II did not provide any resolution
regarding the other questions posed above. It will
likely take another decision by the Fourth Circuit
to clarify those issues.
Endnotes:
1
Universal Furniture Int’l, Inc. v. Collezione Europa
USA, Inc., 618 F.3d 417, 435 (4th Cir. 2010) (quoting Lyons P’ship v. Morris Costumes, Inc., 243 F.3d
789, 801 (4th Cir. 2001)).
2
Id.
3
Id.
4
17 U.S.C. § 102.
5
Architectural Works Copyright Protection Act,
Pub. L. No. 101-650, 104 Stat. 5089 (1990) (contained within the Judicial Improvements Act of
1990).
Prior to 1990, architects enjoyed copyright
protection only for their drawings as “pictorial,
graphic, and sculptural works.” 17 U.S.C. §
102(a)(5). See also T-Peg, Inc. v. Vermont Timber
Works, Inc., 459 F.3d 97, 109 (1st Cir. 2006). As
“pictorial, graphic, and sculptural works,” architectural structures themselves were afforded very
little protection under the Copyright Act. T-Peg,
459 F.3d at 109.
The AWCPA was passed in 1990, in conjunction with the United States’ accession to the Berne
J. Brandon Sieg is an associate with Vandeventer
Black LLP who devotes a majority of his practice to
representing design professionals. Prior to joining
Vandeventer Black LLP, Brandon practiced architecture at Glavé & Holmes Architecture in Richmond.
www.vsb.org
6
7
8
9
10
11
12
13
14
15
Convention for the Protection of Literary and
Artistic Works. The passage of the AWCPA was
necessary to ensure the United States’ compliance
with the requirements of the Berne Convention,
including protection for works of architecture as
distinct from illustrations, plans, or sketches of
architecture. See id. In fact, in the legislative history of the AWCPA, Congress made clear that
“[t]he sole purpose for legislating at this time is to
place the United States unequivocally in compliance with its Berne Convention obligations.” Rep.
No. 101-735, at 20 (1990), reprinted in 1990
U.S.C.C.A.N. 6935, 6951. Much of the judicial
resistance to protecting architectural works
through copyright may be explained by the rather
unusual way the AWCPA came to be law.
17 U.S.C. § 101.
H.R. Rep. No. 101-735, at 18 (1990), reprinted in
1990 U.S.C.C.A.N. 6935, 6949. Congress explained
that a “grant of exclusive rights in such features
would impede, rather than promote, the progress
of architectural innovation.” Id.
1990 U.S.C.C.A.N. 6935, 6949.
Universal Furniture, 618 F.3d at 435.
1990 U.S.C.C.A.N. 6935, 6949.
See Xiyin Tang, Narrativizing the Architectural
Copyright Act: Another View of the Cathedral, 21
TEX. INTELL. PROP. L.J. 33, 45 (2013) (discussing as
two plausible interpretations, either “filtering out
the standard features and evaluating the remaining whole with a very thin copyright that subsists
mostly in the exact arrangement of elements in
space,” or “acknowledging that while individual
standard features may not be copyrightable by
themselves, they can nonetheless coalesce to form
a copyrightable whole”).
See Design Basics LLC v. DeShano Co., Inc., 2012
WL 4321313, *3-4 (E.D. Mich., Sept. 21, 2012)
(considering whether “design elements of a house
are functionally required, and therefore not protected”).
See Trek Leasing, Inc. v. United States, 66 Fed. Cl. 8,
13 (2005) (evaluating two architectural designs in
the “Pueblo Revival” style, holding that “the hallmarks of a popular architectural style … are not
protectable”). Some courts have also identified
particular architectural styles or motifs as scènes à
faire. See, e.g., Sturdza v. United Arab Emirates, 281
F.3d 1287, 1297 (D.C. Cir. 2002).
See Trek Leasing, 66 Fed. Cl. at 16 (“elements dictated by efficiency, necessity, or external factors
must also be filtered out of the court’s infringement analysis”).
See Zalewski v. Cicero Builder Dev., Inc., 754 F.3d
95, 106 (2d Cir. 2014) (refusing to consider similarities between plaintiff’s work and defendants
work that were “a function of consumer expectations,” or a result of ‘certain conventions” of colonial style homes.)
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16
17
18
19
20
21
22
23
See Harvester, Inc. v. Rule Joy Trammell + Rubio,
LLC, 716 F. Supp. 2d 428, 441 (E.D. Va. 2010) (discussing how “building codes [can] constrain the
ultimate design of a building.”)
See, e.g., Zalewski, 754 F.3d at 106-07 (affirming
dismissal of claims against defendants where “even
if Defendants copied [the plaintiff’s] plans, they
copied only the unprotectable elements of his
designs.”); Trek Leasing, 66 Fed. Cl. at 18-23 (finding the more exacting “supersubstantial similarity”
standard was not met after “filter[ing] out” the
non-protectable portions of Plaintiff’s work).
1990 U.S.C.C.A.N. 6935, 6949.
See, e.g., T-Peg, 459 F.3d at 114 (reversing award of
summary judgment for defendant, holding that
“[t]he district court erred in failing to consider
those similarities that went to the ‘overall form’ of
the building as well as the ‘arrangement and composition of spaces and elements.”) Sturdza, 281
F.3d at 1296 (“Considering the works as a whole is
particularly important because [protectable]
expression may arise through the ways in which
[architects] combine even [unprotectable] elements.”); DeShano, 2012 WL 4321313 at *3-4
(“Just as someone using a kaleidoscope mixes
standard colors into a new pattern, there are certain common features that go into a house
design—a kitchen, bathroom, bedrooms—and the
designer moves each of these elements into an
original, potentially [protectable] arrangement. …
[T]here is no need to conduct a test of separability
when considering the copyrightable nature of an
architectural house plan as a whole.”); Frank Betz
Assocs., Inc. v. J.O. Clark Constr., L.L.C., 2010 WL
4628203, *6 (M.D. Tenn. Nov. 5, 2010) (“identifying or ‘filtering out’ elements of the Plaintiff’s
designs that represent [unprotectable elements]
would not mean that the jury would not still consider those elements in comparing the [Plaintiff’s]
designs to Defendant’s allegedly infringing
works.”)
554 F.3d 914 (11th Cir. 2008).
Id. at 919.
17 U.S.C. § 101.
The seminal case discussing compilations is Feist
Publications, Inc. v. Rural Telephone Service Co, 499
U.S. 340, 111 S.Ct. 1282 (1991). In Feist, the compilation at issue was a phone book, and the preexisting data were names and phone numbers. The
Supreme Court held that creative arrangement
and coordination of unprotectable elements is
entitled to only a “thin” level of copyright protection. The Court reasoned that “the 1976 revisions
to the Copyright Act leave no doubt that originality, not “sweat of the brow,” is the touchstone of
copyright protection in directories and other factbased works.” 499 U.S. at 359-60, 111 S. Ct. at
1295.
Similarity between works continued on page 36
35
Similarity between works continued from page 35
24
25
26
27
28
29
30
31
32
33
34
35
36
Intervest, 554 F.3d 914 at 919.
Id. at 920. Copyright protection extends to “original works of
authorship fixed in any tangible medium of expression….” 17
U.S.C. § 102. Courts have noted that the standard for “originality”
is “a very low threshold.” See Charles W. Ross Builder, Inc. v. Olsen
Fine Home Bldg., LLC, 827 F.Supp.2d 607, 619 (E.D.Va. 2011) (citing Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 103 (2d.
Cir. 1951)). “It has been noted that the concept of ‘originality’
under the Copyright Act does not take its ordinary meaning, but
rather ‘means only that the work was independently created by its
author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Id. (quoting
Axelrod & Cherveny Architects, P.C. v. Minmar Homes, 2007 WL
708798 at *9 (E.D.N.Y. Mar. 6, 2007)).
The term “original” has not always been used consistently by
courts, however. Some courts have used the term “original”
according to its more “ordinary meaning,” describing elements of
an architectural work that were deemed standard, or dictated by
some external force and thus unprotectable, to not be “original.”
See Intervest, 554 F.3d at 919-20; Charles W. Ross Builder, Inc. v.
Olsen Fine Home Bldg., LLC, 827 at 624.
Intervest, 554 F.3d 914, 919 (11th Cir. 2008).
382 F. Supp. 2d 602 (S.D.N.Y. 2005).
The defendant was an architect with the firm Skidmore, Owings
& Merrill, LLP.
Shine, 382 F. Supp. 2d at 606.
Id. at 610 (quoting Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996,
1002 (2d Cir. 1995)). Later in the opinion: “[i]f the court were to
follow the [filtration approach] and separate out only those ‘kernals’ of expression that would qualify as original, that … ‘would
result in almost nothing being copyrightable because original
works broken down into their component parts would usually be
little more than basic unprotectable elements like letters, colors,
and symbols.’” Id. at 613 (quoting Boisson v. Banian, Ltd., 273
F.3d 262, 268 (2d Cir. 2001)).
Shine, 382 F. Supp. 2d at 612.
Id. at 612-615. Although the court quoted authority for the
proposition that the total concept and feel test must also involve
dissection to segregate the protectable elements of a work, the
court’s own analysis of the similarities between the designs did
not distinguish protectable elements from non-protectable elements.
716 F. Supp. 2d 428 (E.D. Va. 2010).
The Plaintiff had alleged that the defendant architecture firm had
infringed on its architectural copyright (1) by making wholesale
copies of the drawings when its employees scanned them into
.PDF files, and (2) by incorporating protected aspects of the
plaintiff’s drawings into its own drawings prepared for the John
Marshall Hotel renovation/adaptive reuse. Id. at 434. The Court
found that there was direct evidence that the defendant had
infringed on the plaintiff’s copyright by scanning the drawings
and converting them into .PDF files, which was enough to defeat
the defendant’s motion for summary judgment. As such, the
court did not reach the issue of whether the defendant incorporated any of the plaintiff’s protected expression into its own
drawings, an issue that would have necessitated the substantial
similarity inquiry. See id. at 446-47.
Id. at 436-38.
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
Id. at 440. Harvester is relatively unique among AWCPA cases in
that it deals with the adaptive reuse of an existing building, and
not the design of a new building.
866 F.Supp.2d 530 (W.D.N.C. 2011).
Id. at 539 (quoting Boisson, 273 F.3d at 265). The court even cited
the D.C. Circuit, a court that had reasoned against “filtering out”
of unprotectable elements. 866 F.Supp.2d at 543 (citing Sturdza,
281 F.3d at 1296).
Building Graphics, 866 F.Supp.2d at 544. The court even a identifies a different standard for similarity to be used when dealing
with thin works – “supersubstantial similarity.” Id.
Id. at 544-45 (granting defendants’ motion for summary judgment). Note also that the plaintiff was unable to prove access,
which is an additional element required of a plaintiff trying to
establish copyright infringement through indirect evidence of
copying. Id. at 539-43.
827 F. Supp. 2d 607 (E.D. Va. 2011). Ross Builder I opinion was
issued on September 29, 2011. The Building Graphics opinion was
issued by the Western District of North Carolina the following
day.
The court describes Ford’s Colony as “one of the largest, if not the
largest, gated communities in Virginia”, comprising “3,000 lots,
2,238 individual residences, three golf courses, swimming pools,
tennis courts, several recreational facilities, and a Marriott Resort
Area.” 827 F. Supp. at 612.
Id. at 612-616. For example, only five architectural styles were
permitted in Ford’s Colony: Colonial, Georgian, Classical Revival,
Federal/Adam, and Greek Revival. Id. at 612. The opinion goes
into great detail regarding the history of colonial architecture in
the area generally, and the Georgian style specifically, including its
typical features and characteristics. Id. at 612-14.
Id. at 619-20 (citing, inter alia, Intervest, 554 F.3d at 919).
See, note 25, supra, for discussion of the use of the term “original”
in AWCPA cases.
Ross Builder I, 827 F. Supp. 2d at 620.
Id. at 621 (citing Boisson, 273 F.3d at 268).
Id. at 624.
This is not to say that the court did not acknowledge the other
end of the spectrum as well. The court even cites an unpublished
Eastern District of New York case for the propositions that “the
fact finder must look at the work as a whole without dissection”
and that the works must be judged by their “total concept and
feel.” Id. at 620 (citing Axelrod, 2007 WL 708798 at *13). But ultimately, the Ross Builder I holding revealed that, like many courts
in the Intervest camp, the elements deemed non-protectable were
not given much (if any) consideration by the court when comparing the works as a whole.
The Building Graphics decision was appealed to the Fourth
Circuit. On appeal, the court affirmed summary judgment in
favor of the defendants, but only on the grounds that the plaintiff
had not marshaled sufficient evidence in support of a finding that
the defendants had access to the plaintiff’s architectural plans.
Building Graphics, Inc. v. Lennar Corp., 708 F.3d 573, 580 (4th Cir.
2013). The court opted to steer clear of the substantial similarity
issue, stating that it did not need to address that inquiry since the
plaintiff had not established the first element, access. Id. at 580
n.3.
See Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg, LLC, 496
Fed. Appx. 314, 318 (4th Cir. 2012) (unpublished decision).
496 Fed. Appx. 319 (4th Cir. 2012).
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53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
Id. at 318. Specifically, the court likened the inquiry presented in
architectural works cases to that in Universal Furniture, Inc. v.
Collezione Europa USA, Inc., supra note 1, a case in which the
court considered a copyright infringement claim regarding cosmetic decorations incorporated into furniture design.
Id. at 318 (quoting Universal Furniture, 618 F.3d at 435).
Id. at 319.
Id. at 320.
See id. at 318-320 (explaining that the district court’s segregation
of non-protected similarities violated the intrinsic prong of the
test, but making no finding that the district court had not properly performed the extrinsic prong of the test).
Id. at 321, n.5.
Id. at 320 (citing Intervest, 554 F.3d at 919 & Harvester, 716
F.Supp.2d at 438).
Id. at 321, n.5. As discussed, supra, the copyright protection in the
architectural works in Harvester, Building Graphics, and Ross
Builder I were each described as “thin.”
See, e.g., Ross Builder I, 827 F.Supp.2d at 620 (citing Transwestern
Publ’g. Co. LP v. Multimedia Mktg. Assoc., Inc., 133 F.3d 773, 776
(10th Cir. 1998)) (stating that where copyright protection for a
particular work is ‘thin,’ the plaintiff must make a showing of
‘supersubstantial similarity’).
See 496 Fed. Appx. at 320.
See Feist Publications, 499 U.S. at 349, 111 S.Ct. at 1289.
See Ross Builder, 496 Fed. Appx. at 318 (“Under this two-part test,
to prove substantial similarity, a plaintiff must show that the
works are (1) extrinsically similar …, and (2) intrinsically similar….” (emphasis added)).
A claim proven by indirect evidence, at least. As discussed, supra,
in note 2 and accompanying text, the substantial similarity
inquiry only arises when the plaintiff cannot prove unlawful
copying through direct evidence, but must establish copying
through indirect evidence.
But see, note 49, supra.
70
71
72
73
74
75
76
The Fourth Circuit’s use of the term “idea” in its substantial similarity test also raises questions. Specifically, the Court’s explanation that extrinsic similarity is shown when works contain
“substantially similar ideas that are subject to copyright protection” is, on its face, contrary to the fundamental principle that
copyright protection extends only to the expression of ideas—not
to ideas themselves. 17 U.S.C. § 102(b). See also, Ale House
Management, Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 142
(2000) (“Copyright protection does not extend to ideas.”). Is this
merely imprecise language used by the Court, or is the Fourth
Circuit’s articulation of the substantial similarity inquiry actually
at odds with this fundamental principle? If the latter, will this formulation of the test require courts to resolve existential questions
about design, such as whether designs that appear similar in their
expression may be distinguished by their different underlying
architectural concepts?
For an example of this challenge, compare Mies van der
Rohe’s Farnsworth House with Philip Johnson’s Glass House.
Although both of these works were completed decades before the
enactment of the AWCPA, they present a useful case study for distinguishing architectural works through their underlying concepts. Both houses are distinguished works of architecture, yet
Johnson’s design intentionally referenced the Farnsworth House
to challenge contemporary ideas about architecture. Because both
buildings were essentially glass boxes, they are more readily distinguished by their underlying concepts than by their physical
appearance. See FARNSWORTH HOUSE, http://farnsworthhouse.org
(last visited Sept. 19, 2014); Paul Goldberger, [behind the glass],
Preservation, Janurary/February 2007, at 37.
Charles W. Ross Builder, Inc. v. Olsen Fine Home Building, LLC
(Ross Builder II), 977 F. Supp. 2d 567 (2013).
Id. at 592-97.
The court’s “extrinsic similarity” analysis spans five pages. Id. at
592-97. Its “intrinsic similarity” analysis is only three paragraphs.
Ross Builder II, 977 F. Supp. 2d at 597.
Id. at 597.
Id. at 593.
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37
Obtaining Green Certification for Existing
Buildings in Virginia
by Robert E. Travers IV and Kelley C. Holland
Revaluing building reuse is not just an environmental issue, it’s an economic opportunity.
One that will reduce our dependence on foreign oil and one that creates American jobs.
Because renovation projects use less material, it is good for the environment, but it requires
more labor, which has to be local. That’s good for America.
— Elizabeth Hider, chief sustainability officer at Skanska USA Inc.
38
On June 19, 2014, the U.S. Energy
Only 14 percent of that (12.2 billion
Information Administration released its
square feet) was constructed within the
preliminary results for the 2012
past ten years — that is, built pursuant to
Commercial Buildings Energy
current green construction standards. By
Consumption Survey. According to the
contrast, 50 percent of the commercial
survey, the United States has 87 billion
buildings in the United States were built
square feet of commercial floorspace.
prior to 1980.1
www.vsb.org
OBTAINING GREEN CERTIFICATION FOR EXISTING BUILDINGS IN VIRGINIA
The U.S. Green Building Council does not view
increased construction of new green buildings as
a practical solution to the glut of energy inefficient commercial floorspace. In fact, the council
estimates that it takes up to eighty years to offset
the environmental impact of demolishing an old
building and constructing a new, albeit more efficient, one.2 In light of an average new construction replacement rate of 2 percent per year in the
United States, we will maintain an incredibly large
supply of low efficiency commercial floorspace
for the foreseeable future.3
The tremendous supply of energy inefficient
commercial space coupled with the increased
public demand for green properties led to owners
and contractors recognizing the profit potential
that accompanies “greening” existing commercial
buildings.4 Various studies demonstrate that
green buildings have longer usable lives, command premium rental rates, enjoy higher tenant
occupancy, present a lower lending risk to financial institutions, and sell for approximately 20
percent more per square foot than similar nongreen properties.5 The federal government and
various states, including Virginia, also offer incentives to owners and contractors for buildings that
can be certified as green. These incentives primarily take the form of tax credits, tax exemptions,
and green mortgages.6
The three most prominent organizations
offering green certification for refurbished green
buildings in Virginia are:
• The Environmental Protection Agency and its
ENERGY STAR certification program begun in
1999;
• The U.S. Green Building Council and LEED
(Leadership in Energy and Environmental
Design), a multi-tiered green building certification program begun in 2000; and
• The Green Building Institute and the Green
Globes program, which was implemented in the
United States in 2004.7
For the purposes of tax incentives, Virginia
delegates the statutory certification of energy efficient commercial construction to, among others,
these three organizations.
Each utilizes a unique and competing green
verification system. Until recently, green certification by the U.S. Green Building Council and the
Green Building Institute focused primarily on
new commercial construction, i.e. the initial
design, materials, and methods used in the construction of a new structure. To address the certification of refurbished buildings, LEED and
Green Globes each created new verification prowww.vsb.org
grams that specifically address existing buildings,
or EBs.
LEED EB:O&M: The U.S. Green Building
Council certification program for existing buildings is referred to as LEED EB:O&M (Existing
Building: Operations & Maintenance). Much like
LEED’s multi-tiered certification program for
new construction, LEED EB:O&M rates an existing structure as certified, silver, gold, or platinum.
In order to apply for LEED EB:O&M certification, the EB and its owner must meet certain
threshold requirements including: the EB must be
in compliance with all applicable environmental
laws; the EB must consist of at least one existing
commercial structure; the owner must employ a
reasonable site boundary on its application of all
lands effected or disturbed by the EB; the EB
must be at least 1,000 square feet in size; the EB
must be currently operating at typical physical
capacity and have been doing so for at least twelve
continuous months; the EB owner must commit
to provide whole building energy and water data;
and the EB must be no less than 2 percent of the
site area.
Assuming these minimum requirements are
satisfied, the applicant must then complete a
request for review and submit historical performance data, calculations, and analysis. The U.S.
Green Building Council will evaluate the application to determine if certification is warranted.
LEED EB:O&M certification is valid for five years,
but annual recertification is encouraged.
Green Globe CIEB: Green Globes refers to its
EB program as Green Globe CIEB (Continual
Improvement of Existing Buildings). Green
Globes CIEB rates EBs from 1 to 4 with 4 Globes
the highest possible rating. Green Globes requires
the EB to be at least 400 square feet in size, have
twelve consecutive months of operational and
water data, and have conditioned space.
Assuming the minimum requirements are
met, the next step is to complete an online environmental assessment. Green Globes scores the
assessment on a 1,000 point scale focusing on
energy, water, resources, emissions, indoor environment, and environmental management. For
an EB to be eligible for Green Globe certification,
the online assessment must achieve a minimum
score of 350 and meet threshold scores in each
assessment area. The self-assessment is then verified by a third-party with expertise in green
building design, engineering, construction, and
facility operations. The third party assessor makes
the final determination as to certification and rating of the EB.
39
OBTAINING GREEN CERTIFICATION FOR EXISTING BUILDINGS IN VIRGINIA
ENERGY STAR: The ENERGY STAR program has always focused on building performance. ENERGY STAR certifies that a qualifying
building is within the top 25 percent of the most
energy efficient buildings in the United States.
Unlike LEED and Green Globes, ENERGY STAR
does not rate EBs at various levels of certification.
ENERGY STAR scores an EB on a 1–100 scale.
Similar to Green Globe CIEB, the EB’s preliminary ENERGY STAR score is established through
an online self-assessment protocol referred to as a
portfolio manager, which focuses on energy consumption, water consumption, and greenhouse
gas emissions. A preliminary portfolio manager
score of seventy-five is required to proceed with
the certification process. Assuming a minimum
Portfolio Manager score, ENERGY STAR requires
verification of an EB’s application by a licensed
professional engineer or registered architect.
ENERGY STAR verification is good for one year
and must be recertified annually.
Future Green Trends
Regardless of the rating system employed, the
purpose of these certification programs is to verify that a qualifying building operates with greater
energy efficiency, reduced water consumption,
enhanced storm water management, and better
indoor air quality than a traditional structure.
While the current focus is on achieving a smaller
carbon footprint, the future of green construction
is sustainability. A sustainable building causes a
net-zero impact on the environment by generating and collecting on-site as much energy and
water as it consumes.
The Living Building Challenge™ gives us a
glimpse of the coming sustainability movement.
Launched in 2006, the Living Building
Challenge™ certifies that a building lives off of
the land by using solar, wind, and geothermal
energy and rain for all of its operating needs.
Only four projects in the world have achieved full
Robert E. Travers IV is a partner at Williams
Mullen. He focuses his practice primarily in
the areas of commercial litigation, including
construction, land use, real estate litigation,
and complex business transactions.
40
certification under the Living Building Challenge.
The Chesapeake Bay Foundation’s Brock
Environmental Center in Virginia Beach is the
first, and to date only, registered Living Building
Challenge™ project in Virginia. The Brock
Environmental Center boasts an indefinite life
expectancy, designed to operate through loss of
power and withstand a 500-year storm event.
Endnotes:
U.S. Energy Information Administration,
1
Commercial Buildings Energy Consumption Survey
2012 (June 19, 2014), available at
http://www.eia.gov/consumption/commercial/rep
orts/2012/preliminary/index.cfm
2
Preservation Green Lab, National Trust for
Historic Preservation, The Greenest Building:
Quantifying the Environmental Value of Building
Reuse (2011), available at http://www.preservationnation.org/information-center/sustainablecommunities/green-lab/lca/The_Greenest_Buildin
g_lowres.pdf
3
U.S. Energy Information Administration,
Commercial Buildings Energy Consumption Survey
2012 (June 19, 2014), available at
http://www.eia.gov/consumption/commercial/rep
orts/2012/preliminary/index.cfm
4
Unless indicated to the contrary, a “commercial
building” generally refers to any structure “greater
than 1,000 square feet that devotes more than half
of its floorspace to activity that is neither residential, manufacturing, industrial, nor agricultural” as
defined by the U.S. Energy Information
Administration.
5
Norm Miller, Jay Spivey, Andy Florance, Does
Green Pay Off? (July 12, 2008), available at
https://www.energystar.gov/sites/default/files/build
ings/tools/DoesGreenPayOff.pdf
6
U.S. Department of Energy, DSIRE Database of
State Incentives for Renewables & Efficiency
(October 6, 2014), available at
http://www.dsireusa.org/incentives/index.cfm; Eric
Gies, Forbes, Green Building Financing Offers More
Profits, Fewer Risks (June 14, 2011) available at
http://www.forbes.com/sites/ericagies/2011/06/14/green-building-financing-offersmore-profits-fewer-risks;
7 Virginia Code § 58.1-3221.2.
Kelley C. Holland is an associate
with Williams Mullen and focuses
her practice on general commercial litigation in both state and
federal courts.
www.vsb.org
Resolving Disputes continued from page 29
10
11
2001)(agreement to nonbinding arbitration are enforceable
under the Federal Arbitration Act).
VA. CODE § 8.01-581.01 (1986); but see, Brooks & Co. Gen’l
Contractors, Inc. v. Randy Robinson Contracting, Inc., 513
S.E.2d 858 (Va.1999) (declining to enforce arbitration provision contained in unexecuted contract).
See, AIA-A201-1997, ¶ 4; Engineers Joint Contract Documents
Committee (EJCDC) Document C-700 § 16.01C;
ConsensusDOCS 200 General Conditions § 12.2.
See, http://www.gsa.gov/portal/content/100822.
Matthew Patrick Tucker, An Overview of Alternative Dispute
Resolution Use in the Construction Industry at 36-37 (August
2005)(available at www.dtic.mil/cgibin/GetTRDoc?AD=ADA458748).
Randy Erickson, Tactics and Strategies for Mediating the MultiParty Complex Construction Case, Orange County Lawyer, Vol.
52, No. 3 at 22(2010)(available at
http://www.crowell.com/documents/Tactics-and-Strategiesfor-Mediating-the-Multi-Party-Complex-ConstructionCase.pdf).
See, U.S. Legal.com Definitions,
http://definitions.uslegal.com/b/baseball-arbitration/.
4
5
6
7
8
9
The Honorable Leslie M. Alden (Ret.) joined
the faculty at the George Mason University
School of Law in 2012 after serving nearly eighteen years on the Fairfax bench. In more than
thirty years, she has litigated, tried, or settled
hundreds of cases, many involving construction
law issues. She is also a Senior Professional
with Juridical Solutions PLC, providing arbitration and mediation services.
12
13
14
15
16
17
Andrew W. Stephenson practices domestically
and internationally in the areas of construction, government contracts, labor law and corporate compliance in virtually all phases of
both the private and public sectors of the construction industry. He is an adjunct professor
at American University Washington College of
Law and is also frequently asked to serve as a
private arbitrator or mediator in construction
disputes as a member of the American
Arbitration Association’s Panel of Arbitrators.
Wind Farm Siting continued from page 15
19
12
13
20
14
15
16
17
18
Miller v. Highland County, 274 Va. 355, 650 S.E.2d 532 (2007).
Rick Webb, “A Final Attempt At Resolution: Highland New
Wind Development Confronts the Endangered Species Act,”
VIRGINIA WIND, January 11, 2011, http://vawind.org/#Final
(last accessed June 26, 2014).
Laurence Hammack, “Company delays Roanoke county wind
farm,” THE ROANOKE TIMES, May 27, 2012, http://hamptonroads.com/2012/05/company-delays-roanoke-county-windfarm (last accessed June 25, 2014).
Va. Code § 67-103.
Va. Code § 67-103(2), (3).
See Va. Code §§ 15.2-2280 to -2286.
Va. Code § 67-103(3).
www.vsb.org
Id.
See, JAMS website, http://www.jamsadr.com/arbitration
-defined/
Patricia D. Galloway, Using Experts Effectively & Efficiently in
Arbitration, Dispute Resolution Journal, Vol. 67, no. 3 at 3-4
(August – October 2012)(available at http://www.pegasusglobal.com/assets/news/Galloway-Using-Experts-2012.pdf).
VA. CODE ANN. § 17.1-110.
William E. Craco, Compelling Alternatives: The Authority of
Federal Judges to Order Summary Jury Trial Participation, 57-3
Fordham L. Rev. at 485 (1988)(citation omitted).
VA. CODE ANN. § 8.01-576.2; Paula Hannaford-Agor & Nicole
L. Waters, The Evolution of the Summary Jury Trial: A Flexible
Tool to Meet a Variety of Needs, National Center for State
Courts (2012)(available at http://www.ncsc.org/sitecore
/content/microsites/future-trends-2012/home/BetterCourts/1-3-Evolution-of-the-Summary-Jury-Trial.aspx).
John D. Onnembo, Jr., When is the Best Time to Mediate a
Complex Construction Dispute?, American Bar Association
Forum on the Construction Industry, UNDER CONSTRUCTION,
Vol. 13, No. 3 at 1(November 2011).
Id. at 2.
21
22
23
24
25
26
27
28
29
Shannon J. Briglia is a founding member of
the construction law firm of
BrigliaMcLaughlin, PLLC, where she concentrates her practice in the resolution of public
and private construction disputes. With more
than twenty-five years of experience in the
construction industry, Ms. Briglia represents
sureties, owners, contractors and subcontractors in federal and state court trials and
appeals, arbitration, mediation and before
commissions and boards of contract appeal.
This logic is familiar to those who have experience with the
siting requirements of the Telecommunications Act of 1996.
See 47 U.S.C. § 332(c)(7)(B)(i)(II).
See also 2013 Va. Att’y Gen. Op. 12-102, 2013 WL 208897 (Jan.
11, 2013).
Va. Code § 67-103(1).
Va. Code § 67-102(A)(1).
274 Va. 355, 650 S.E.2d 532 (2007).
Case No. CL11-1237 (Roanoke Cnty. Cir. Ct. 2011).
Complaint ¶ 18, Karr v. Bd. of Sup’rs, Case No.
CL11-1237 (Roanoke Cnty. Cir. Ct. Oct. 13, 2011).
Demurrer ¶ 23, Karr v. Bd. of Sup’rs, Case No.
CL11-1237 (Roanoke Cnty. Cir. Ct. Jan. 23, 2012).
Id. at ¶ 34.
Va. Code § 67-102(12)(D).
http://www.awea.org (last accessed June 26, 2014).
41
Answering the Questions about Job Order
Contracting
by Mathew A. Taylor
Job Order Contracting (JOC) is coming soon to Virginia public projects, so
lawyers and their clients should know
about it. While some firms may have
experience with JOC through federal
projects, contractors who primarily
obtain their government work on contracts under the Virginia Public
Procurement Act (VPPA) may have questions about this alternative.
What Is It?
Job order contracting is a method of procuring
construction services through an indefinite delivery, indefinite quantity term contract, using task
orders as needed for individual projects, where
the task order price is based on a book of preestablished unit prices.1 The Virginia General
Assembly authorized the use of JOC effective July
1, 2014.2 Other than the definition and basic bidding procedures, however, the General Assembly
provided little guidance for public bodies who
wish to use job order contracting. Statutory
amendments are being drafted, analyzed, debated,
and fine-tuned in a legislative work group. It
42
appears the newly revised amended provisions
will be presented for adoption in the 2015
General Assembly session.3 The requirements discussed in this article reflect those enacted in 2014.
Because many of the statutory details are being
revised, practitioners should track the development of the amendments and the final legislation
at the Division of Legislative Services website.4
How is JOC different? With a typical VPPA
contract, each time that a public body has a need
for goods or services it must procure them by
issuing an invitation for bids or request for proposals, and by awarding a contract requiring
delivery or completion by a definite date. This
type of contract is a one-time deal. In contrast,
JOC allows a public body to procure a wide variety of construction services for multiple projects
to be delivered on an as-needed basis during the
term(s) of the contract. With JOC, the project
costs are set through the book of pre-established
unit prices and modified by a price multiplier.
Once the contract is signed, the public body has a
single contractor it can use for a number of future
projects without repeatedly advertising and bidding each project as required under the VPPA.
Although the specific provisions of job order
contracting in Virginia are being finalized, its use
by agencies outside of the commonwealth or on
www.vsb.org
ANSWERING THE QUESTIONS ABOUT JOB ORDER CONTRACTING
federal projects provides a framework that is typical. The basics of job order contracting are:
• a multi-task contract that contains indefinite
delivery and indefinite quantities based on asneeded job orders;
• a period of time where the contractor is bound
to provide work to the owner;
• a book of pre-established unit pricing that standardizes the costs of professional services, materials, and labor throughout the contract period;
• a price multiplier or coefficient that competitors
use to calculate the contract price in their bid
through competitive negotiation or bidding;
• and contract limits that define the specific terms
and project amounts allowed.
The legislators, administrators, and the
appointed legislative work groups studying job
order contracting have envisioned that it would
be used by public bodies for construction, maintenance, repair, and even the ancillary architectural and engineering services incidental to those
contracts.5 Some have suggested that JOC may
apply to any public procurement tasks outside of
new capital construction.6
The job order contracting method resembles
several types of indefinite delivery contracts,
including task and delivery order contracting,
requirements contracts, and especially indefinite
delivery, indefinite quantity (IDIQ) contracts.
IDIQ has been part of the federal contracting
scheme since at least 1985 and is now endorsed
explicitly for construction contracts in the Federal
Acquisition Regulations.7
An IDIQ is a contract that is used to acquire
supplies and services of an indefinite quantity,
within stated limits, during a fixed period
although the exact times and exact quantities of
future deliveries are not known at the time of
contract award.8 For example, federal regulations
a public body needs a contractor for the renovation of a dormant government building and
potentially other projects, the public body can
award a job order contract for just the building
renovation project to be completed within one
year. The JOC contractor could then fulfill the
public body’s requests for additional individual
job orders on other projects for up to four years.
The prices for each job order are pre-set at the
time of bidding by the unit-price guide and price
modifier, so the costs of the individual jobs can be
submitted for approval and the job proceed
quickly without the need for further negotiation
or contracting.
How Does It Work?
Job order contracts may be procured using the
VPPA’s normal competitive sealed bidding or
competitive negotiation procedures at the discretion of the public body.10 A written Invitation for
Bids or Request for Proposals is issued containing
a description of the goods or services sought by
an agency, the factors to be evaluated, and the
contractual terms and conditions.11 Public notice
must be issued at least ten days prior to the deadline for receipt of the bids or proposals via the
Department of General Services’ eVA online electronic procurement system, appropriate websites,
and newspapers.12 In addition, the agency may
solicit bids or proposals directly from potential
contractors.13
For competitive sealed bidding, the contract
would be awarded to the lowest responsive and
responsible bidder.14 For competitive negotiation,
negotiations take place between two or more
offerors.15 The bid price will be considered, but
the selection will ultimately be made for the
offeror providing the best value.16 The public
body is allowed to negotiate with and award a bid
Statutory amendments are being drafted, analyzed, debated, and
fine-tuned in a legislative work group.
have allowed IDIQ contracts to be used for materials stocking, direct shipping to end users, and
deferred ordering among other things.9
The Virginia version of job order contracting
would allow the public body to address any recurring need for construction, renovation, rehabilitation, and maintenance in a predictable manner. If
www.vsb.org
when there is only one offeror — if the public
body determines in writing and in its sole discretion that the bidder is the only one qualified or if
one offeror is “clearly more qualified.”17 The public body is also allowed to award bids to more
than one offeror if it is specified in the RFP.18 To
ensure that there is consideration to form a bind-
”
43
ing contract, a minimum amount of work must
be specified in the contract.19 This point has been
thoroughly litigated in the federal JOC statutes.20
Job order contracting has a base term of one
year with up to four one-year renewals at the discretion of the public body.21 JOC contracts are
also subject to a cumulative contract dollar limit,
depending on the contracting agency involved
and type of project.22 JOC allows for a contract
covering multiple projects only if the projects
require similar experience and expertise, and are
clearly identified in the original RFP.23
Why Does It Work?
Job order contracting provides an alternative to
the time and expense of completing the normal
contract procurement cycle for each project. The
contracting method is designed to accomplish
multiple repair, maintenance, and construction
projects using a single contract rather than using
multiple smaller contracts. Furthermore, the price
for each project will use pre-set unit prices
marked up with a single price multiplier, so that
materials and labor costs are never negotiated
again. It is often possible for a contractor to trim
their costs because the contractor can take into
account the overall business volume that the multiple projects and longer terms contained in the
job order contract.
Once the contract is made, the public body
has the flexibility to vary the project duration and
its cost within the limits set by the contract, while
maintaining the quality of the work offered when
a single contractor becomes experienced with the
particular project. Furthermore, the promise of
renewals or additional jobs after the original contract can ensure timely performance and quality
work from the contractor.
Because JOC contracts can be procured by
competitive negotiation and the terms renewed
at the public body’s discretion, contractors will
have an incentive to build mutually-beneficial
relationships and a team mentality that can
breed future goodwill. A smaller contractor who
can demonstrate its ability to work quickly and
efficiently will encourage consideration for
future work. Other benefits to the contractor can
include the accelerated preconstruction time,
which cuts the contractor’s operational costs,
overhead, and legal fees.
What Should My Client Look Out For?
Once the JOC contract is awarded, the contractor’s prices are fixed for the term of the contract.
Harry Mellon, a retired lieutenant colonel of the
44
United States Army who is credited with inventing job order contracting in 1982 for his Army
facilities,24 is said to have commented that “[I]n
optimum practice, true Job Order Contracting
does not include any negotiation of price; hence
the agency maintains control of the entire
process.”25
Thus, bidding on a job order contract can be
a tedious and time consuming process. Many
contractors are not attuned to estimating the costs
of multiple and indefinite projects upfront. It can
also be risky. Material and labor costs could drastically change between the time that a project is
bid and the end of a yearlong or multi-yearlong
term. Because unit pricing is standardized, there is
no chance to adjust the prices when the market
values for those goods and services change. The
only flexibility or risk assessment for the JOC
contractor must be built into its price multiplier,
along with its mark-ups for overhead and profit.
The creation of a price multiplier becomes a complex work of estimation and accounting.
A contractor will also be bidding on a project
where it is uncertain of the quantities or delivery
times for its services. There are cases at the federal
level that state that the public body should not be
held accountable for its inaccurate estimations of
the quantities needed in an IDIQ-style job order
contract, so long as it meets the minimum consideration set in its contract.26 Thus, the JOC contractor who does not perform up to the public
body’s expectations may only be guaranteed work
up to the minimum consideration with little
chance for other projects or renewal. The risk is
assigned to the contractor to account for these
uncertainties. Furthermore, there will be less
opportunity to balance the scheduling on multiple consecutive projects if the contractor is
beholden to the government’s needs.
Job order contracting in state procurement
world is imminent. Virginia public bodies want to
use the method because it vests most of the control in the agency who can essentially hire an oncall contractor for a potentially long-term
contract at preset prices through one procurement contract. Nevertheless, JOC contracting will
fit the business model for many contractors who
desire steady long-term relationships built on
multiple, but smaller, scopes of work and projects.
Once the details of its implementation are passed
in Virginia’s legislature, construction lawyers
should be prepared to answer these questions and
help evaluate this new style of contracting to the
benefit of their clients.
www.vsb.org
Any views expressed by the author in this article
are not the views or legal opinions of the Office of
the Attorney General.
Endnotes:
1
See Va. Code § 2.2-4301 (effective July 1, 2014)
(definition of “job order contracting”).
See Va. Code § 2.2-4301 (editors notes).
2
3
See http://dls.virginia.gov/GROUPS/procurement
/2014notice.pdf (last visited Oct. 15, 2014).
4
See http://dls.virginia.gov/interim_studies_
procurement.html (last visited Oct. 15, 2014).
5
See Job Order Contracting, Discussion Draft #3,
issued September 5, 2014, http://dls.virginia.gov
/GROUPS/procurement/meetings/072314am
/job%20order%20contracting.pdf (last visited
Oct. 15, 2014).
6
See id, Comments of Annette Cyphers, Elizabeth
Dooley, Chris Stone, and Tracy Adams, Esq.
7
See Denise Farris, Checking Your Indefinite
Delivery, Indefinite Quantity (IDIQ) IQ, 22 Constr.
Lawyer 24, n. 1; FAR 16-501 et seq. Other helpful
articles on IDIQ and other progenitors of the job
order contracting method include Marko Kipa,
Keith Szelinga and Jonathan Aronie, Conquering
Uncertainty in an Indefinite World: A Survey of
Disputes Arising Under IDIQ Contract, 37 Pub.
Cont. L.J. 415 (Spring 2008) and Karen Thornton,
Fine-Tuning Acquisition Reform’s Favorite
Procurement Vehicle, the Indefinite Delivery
Contract, 31 Pub. Cont. L.J. 383 (Spring 2002).
8
See FAR 16-501-2(a) and 16-504(a).
9
See FAR 16-501-2(b).
10 See Va. Code § 2.2-4301 (definition of “job order
contracting”).
11 See Va. Code § 2.2-4302.2(A)(1).
12 See Va. Code § 2.2-4302.2(A)(2).
13 See id.
14 See Va. Code § 2.2-4302.1(5).
15 See Va. Code § 2.2-4302.2(A)(3).
16 See id.
17 See id.
18 See id.
19 See Va. Code § 2.2-4301 (definition of “job order
contracting”).
20 See Abatement Contr. Corp. v. U. S., 58 Fed. Cl.
594, 605 (2003); Varilease Tech. Group, Inc. v. U. S.,
289 F. 3d 795, 799 (Fed. Cir. 2002); J. Cooper &
Assoc. v. U.S., 53 Fed. Cl. 8, 24 (2002); Dot Systems,
Inc. v. U. S., 231 Ct. Cl. 765, 769 (1982).
21 See Va. Code § 2.2-4302.2(B). This is one point
that is somewhat unclear in the current legislation.
The work group has debated the renewal terms
and currently recommends a one-year term with
the possibility of two additional one-year terms.
See proposed Va. Code § 2.2-4302.2(B) at http://
dls.virginia.gov/groups/procurement/meetings
/101514am/omnibus%20draft.pdf (last visited
October 15, 2014).
www.vsb.org
22
23
24
25
26
See Va. Code § 2.2-4302.2(B)(5) This another area
that has varied greatly in the work group discussions. The current recommendation is for limiting
individual job orders to $500,000 and total jobs in
a one-year period at $5 million. See proposed Va.
Code § 2.2-4302.2(B) at http://dls.virginia.gov
/groups/procurement/meetings/101514am
/omnibus%20draft.pdf (last visited October 15,
2014). Once set, these dollar limits cannot not be
circumvented by splitting a single job into multiple jobs. See proposed Va. Code § 2.2-4302.2(E) at
http://dls.virginia.gov/groups/procurement
/meetings/101514am/omnibus%20draft.pdf (last
visited October 15, 2014).
See Va. Code § 2.2-4302.2(B).
See http://en.wikipedia.org/wiki/Harry_Humphry
_Mellon.
See quote from Rory Woolsey, a fellow member of
the influential Gordian Group founded by Mellon,
at http://woolseyestimating.blogspot.com/2012
/02/negotiating-joc_09.html (last visited Oct. 15,
2014).
See Schweiger Constr. Co. Inc. v. U.S., 49 Fed. Cl.
188 (2001); Dot Systems v. U.S., 231 Ct. Cl. 765,
769 (1982).
Mathew A. Taylor is an assistant attorney general in the
Office of the Attorney General’s Construction Litigation
Section. He represented architects, engineers, contractors
and subcontractors for years while in private practice. He
now handles the legal needs of numerous agencies in state
construction disputes, including the claims process, alternative dispute resolution and litigation.
45
Why Should Attorneys Care About Pro Bono?
by Joanna L. Suyes
Faced with deciding whether to handle
pro bono cases, attorneys understandably hesitate. Lawyers already work
long hours for paying clients, and taking on a matter in an unfamiliar area
of law can be intimidating. With jobs
becoming scarcer and the pressure to
prove one’s worth becoming greater,
why should attorneys care about pro
bono? The answer: it’s good for you,
it’s good for business, and it’s good for
the community.
It’s Good for You
Pro bono work is some of the most challenging, rewarding work an attorney will
do. Faced with endless days of working
with the same clients, the same courts,
and the same small section of the
Virginia code, lawyers who do low- or
no-fee work for people with nowhere
else to turn can at once step outside their
comfort zones, learn something new,
and help a fellow human being. But if
the personal satisfaction of successfully
appealing a denial of unemployment
benefits and helping someone afford
her rent isn’t enough, the Rules of
Professional Conduct should sway every
attorney. Pro bono service is, above all,
ethical. Rule 6.1 encourages attorneys to
devote at least 2 percent of their workyear to pro bono efforts.1 Lawyers who
claim to have the highest ethical standards fall short when they fail to fulfill
this goal.
Not an expert in an area of law?
Legal aid attorneys happily mentor volunteers while the Virginia State Bar regularly offers free CLE opportunities for
attorneys who handle pro bono cases.2
It’s Good for Business
Pro bono work stretches a lawyer’s
knowledge and increases her value. New
attorneys develop skills that enhance
their abilities to bring in paying clients.
Accepting a pro bono eviction case
46
allows a lawyer who otherwise would
wait years for a turn at first chair to
spread his wings and hone his courtroom skills while helping someone stay
in her home. Reviewing a contract for a
legal non-profit or straightening out a
cancer patient’s medical bill sharpens
judgment while polishing leadership and
time management skills. Firms that
allow attorneys to count pro bono work
toward their billable-hours goals reap
the benefits by fostering excitement
among employees and showing commitment to the community.
Pro bono work is good for marketing and reflects positively on an attorney’s skill and character. Attorneys who
support pro bono legal services organizations can promote their volunteer
efforts on their websites and resumes.
Satisfied non-paying clients willingly
spread free, positive word-of-mouth, and
happily “pay” you with good references
that produce paying clients.
It’s Good for the Community
Attorneys possess resources most members of the public don’t have. Attorneys
who consider themselves vital members
of the community yet fail to offer to the
community their specialized skills, familiarity with the justice system, and legal
knowledge should take a long look at
what community they believe they’re a
part of. The benefit to society when an
attorney obtains an Earned Income Tax
Credit for an indigent person or assists
someone whose pay has been withheld
unlawfully should not be underestimated. Studies have shown that represented litigants experience better
outcomes.3 Preserving the rule of law
and promoting fairness in the justice
system should be goals of everyone
admitted to the bar. When people stay in
their homes, when children stay with
their parents, when workers are paid
properly, and when the sick have health
insurance, tax revenues increase, businesses profit, and society benefits.4
If these arguments haven’t persuaded you, maybe this will: help someone just because you can. It’s the right
thing to do.
Endnotes:
1
Rules of Prof’l Conduct R. 6.1(a). Rule
6.1 allows lawyers to “satisfy their
responsibility collectively” and contribute financial resources instead of
time. While the rules make clear that
many possibilities exist for meeting this
aspirational goal, most attorneys never
come close.
2
Recordings may be found at http://www
.vsb.org/site/pro_bono/resources-for
-attorneys.
3
John E. Whitfield, PowerPoint presentation to the Virginia State Bar’s Pro Bono
Celebration (Apr. 15, 2013) (copy on file
with author).
4
See, e.g., Kenneth A. Smith and Andrea
J. Brewer, Economic Impacts of Civil
Legal Aid Organizations in Virginia,
paper prepared for the Legal Services
Corporation of Virginia (Sept. 16,
2011).
Joanna L. Suyes, chair of the VSB’s Special
Committee on Access to Legal Services, is
an associate attorney at Marks & Harrison
and focuses her practice on Social Security
Disability and Supplemental Security
Income claims.
www.vsb.org
Harrisonburg Attorneys Honored for Pro Bono Work
Four Harrisonburg attorneys have been
recognized for their extraordinary pro
bono work done on behalf of Blue Ridge
Legal Services (BRLS). They are (left–
right) Grant Penrod, Jacob Penrod, and
Laura Evick, of the Hoover Penrod Law
Firm; and Michael Beckler, a solo practitioner. John E. Whitfield, BRLS executive
director, presented the awards during
the Harrisonburg-Rockingham Bar
Association’s annual Professionalism
Seminar on October 8. “Looking across
the room, there are so many attorneys
Penrod
Penrod
Evick
here who have generously donated their
services to help make access to justice a
reality for our low-income clients,” said
Whitfield. “But these four attorneys have
Beckler
stood out during the past year with truly
significant contributions to the pro bono
program and their clients.”
Lewis F. Powell, Jr. Pro Bono Award Presented
The VSB Special Committee on Access
to Legal Services honored three Lewis F.
Powell Jr. Pro Bono Award recipients at
its annual Pro Bono Award Dinner and
Ceremony October 22 in Portsmouth.
Virginia Supreme Court Justice William
C. Mims served as guest speaker at the
dinner.
Glenn Hodge and M. Steven Weaver
and The Legal Information Network for
Cancer (LINC) were recognized at the
dinner for their commitment to helping Virginians with their legal needs. As
co-founders of the Blue Ridge Legal
Services Pro Bono Referral Program,
Hodge and Weaver were honored for
more than thirty years of continued
service. LINC was awarded for providing legal and financial advice and referrals to cancer patients, survivors, and
their loved ones. Each received prints
of “Patrick Henry Argues the Parsons’
Cause,” an 1834 painting by George
Cooke from Virginia Supreme Court
Justice S. Bernard Goodwyn and Access
to Legal Services Chair Joanna L. Suyes.
1
Photo 1 (left–right): Justice Goodwyn; John E. Whitfield
(BRLS executive director); Hodge (partner, Wharton,
Aldhizer & Weaver); Weaver (partner, Clark and
Bradshaw); and Suyes (associate, Marks and Harrison).
2
Photo 2 (left–right): Justice Goodwyn; Crista Whitman
Gantz (attorney, LINC client services); Alexandra D.
Bowen, (partner, Bowen, Ten, Cardani); Denise Kranich,
(executive director, LINC); and Suyes.
www.vsb.org
47
Noteworthy
> VSB NEWS
Highlights of the October 24, 2014, Virginia State Bar
Council Meeting
At its meeting on October 24, 2014, in
Alexandria, the Virginia State Bar
Council heard the following significant
reports and took the following actions:
Amendments to Clients’ Protection
Fund Rules
The Council approved, with one nay
vote, amending the Clients’ Protection
Fund Rules to increase the maximum
payment to any one petitioner to
$75,000 for losses incurred on or after
July 1, 2015. Maximum payments for
losses incurred before that date will
remain $50,000. The total amount of
losses reimbursable for any one lawyer
or association of lawyers will increase
from 10 percent of the net worth of the
fund to 15 percent.
Amendment to Council Bylaw
Election Procedures
The Council approved 57 to 3 amending
the bylaws in Council elections to
change the instructions so that members can vote for fewer candidates than
the number of vacancies to be filled.
Revisions to Fiscal Year 2014–2015
VSB Budget
The Council approved by unanimous
vote the revisions to the FY2014–2015
budget, which reduced expenditures by
$840,350.
President-elect Candidates Spoke and
Answered Questions
Raymond B. Benzinger, Thomas A.
Edmonds, and Michael W. Robinson,
candidates for the upcoming presidentelect election, spoke and answered
questions at the Council meeting. The
election started November 1, 2014, and
ended December 1, 2014.
Robinson is Choice for President-elect of the
Virginia State Bar
Michael W. Robinson, of Tysons Corner,
has been elected president-elect of the
Virginia State Bar and will assume that
post after the annual meeting in June
2015.
Robinson was chosen by active bar
members, during a month-long election
that ended December 1, over Raymond
B. Benzinger and Thomas A. Edmonds.
Robinson, a partner with Venable
LLC, is a 19th District representative
on the VSB Council and is chair of the
Standing Committee on Legal Ethics. He
previously served as chair of the Special
Committee on Bench-Bar Relations and
has been on the faculty of the
Professionalism Course.
He also is a member of the Fairfax
County Bar Association.
Robinson is a graduate of George
Mason University, where he received a
48
B.A. in philosophy. His law degree is also
from George Mason University.
His practice focuses on commercial
disputes, business torts, and the protection of intellectual property rights.
He is married to Courtney R.
Robinson and has five children.
Michael W. Robinson
www.vsb.org
Farnaz Thompson (left), former law clerk of the late
Supreme Court of Virginia Chief Justice Leroy R.
Hassell Sr., gestures during a presentation of his portrait in the Court chambers on October 28, 2014.
Justice Hassell was appointed to the Court in 1989
and served as chief justice from February 1, 2003, to
January 31, 2011. The oil on canvas portrait, painted
by Jean Garver, was commissioned by the Virginia Bar
Association and was donated to the Court. (AP
Photo/Steve Helber)
The justices of the Supreme Court of Virginia stood
during the presentation of Chief Justice Hassell’s portrait. (AP Photo/Steve Helber)
In Memoriam
Paul Cornelious Bland
Petersburg
September 1946 – September 2014
Gayle Rachel Morrell
Concord, New Hampshire
January 1966 – August 2014
Charles Henry Staples
Norfolk
October 1946 – July 2014
Elizabeth Gail Fletcher
Fleming Island, Florida
April 1970 – August 2014
Willie Joe Richardson
Richmond
January 1942 – September 2014
Gene Steven Sykes
Scottsdale, Arizona
February 1945 – June 2014
Ray Vinton Hartwell III
Washington, D.C.
June 1947 – February 2014
Leonard Edward Ringler
Newport News
August 1945 – July 2014
Dennis E. Talbert Jr.
Springfield
August 1936 – July 2014
Wade Alexander Hellman
Virginia Beach
July 1959 – July 2014
Richard Kyle Rose
Lexington, Kentucky
March 1979 – February 2014
Terrence Anthony Trepal
Leesburg
December 1945 – September 2014
John Buster Hemmings
Lexington
March 1926 — August 2014
Robert David Schultz
Lexington, Maryland
August 1936 – September 2014
John W. Wine
Marshall
July 1940 – September 2014
Robert J. Ingram
Pulaski
October 1929 – September 2014
Atwell Wilson Somerville
Orange
November 1919 – February 2014
www.vsb.org
49
Noteworthy
> PEOPLE
Virginia Law Foundation to Induct
Fellows Class of 2015
The Virginia Law Foundation will induct
21 Virginia lawyers at its 2015 Class of
Fellows dinner ceremony on January 22
in Williamsburg during The Virginia Bar
Association’s Annual Meeting. The
Virginia Law Foundation is the charitable arm of Virginia’s lawyers and promotes, through philanthropy projects
related to access to justice, law-related
education and the rule of law. Each year
the foundation recognizes a group of
Virginia lawyers, law professors, and
retired judges for their legal excellence
and their community involvement. The
members of the 2015 Class of Fellows
are:
Thomas R. Bagby (Roanoke)
Thomas J. Bondurant (Roanoke)
Matthew E. Cheek (Richmond)
Bernard Cohen (Alexandria)
Kathleen A. Dooley (Fredericksburg)
Kimberly A. Fiske (Alexandria)
Mark Flynn (Richmond)
Claire G. Gastanaga (Richmond)
Michael Goodove (Norfolk)
Leslie A.T. Haley (Midlothian)
Michael E. Harman (Glen Allen)
Cynthia E. Hudson (Richmond)
Kamala H. Lannetti (Virginia Beach)
Darrel Tillar Mason (Richmond)
Joyce Melvin-Jones (Hampton)
Sharon D. Nelson (Fairfax)
Christine L. Poarch (Salem)
Jan L. Proctor (Chesapeake)
Stuart A. Raphael (Richmond)
M. Pierce Rucker (Richmond)
Edna Ruth Vincent (Fairfax)
Have You Moved?
The VSB E-News
To check or change your address of
Have you been receiving the
record with the Virginia State Bar, go
Virginia State Bar E-News? The
to the VSB Member Login at
E-News is a brief monthly sum-
https://member.vsb.org/vsbportal/.
Go to “Membership Information,”
where your current address of record
is listed. To change, go to “Edit Official
mary of deadlines, programs, rule
changes, and news about your
regulatory bar. The E-News is
Address of Record,” click the appropri-
emailed to all VSB members. If
ate box, then click “next.” You can type
your Virginia State Bar E-News is
your new address, phone numbers,
being blocked by your spam filter,
and email address on the form.
contact your email administrator
Contact the VSB Membership
Department ([email protected] or
(804) 775-0530) with questions.
50
Local and
Specialty Bar
Elections
Chesterfield County Bar Association
Travis Ryan Williams, President
David Shawn Clements, 1st Vice
President
Vanessa Laverne Jones, 2nd Vice
President
John Hubbard Taylor, Secretary
Michael Gordon Matheson, Treasurer
Hanover County Bar Association
Thomas Douglas Lane, President
Shari Lynne Skipper, Vice President
Michael Preston Tittermary, Secretary
Adam Michael Jurach, Treasurer
Richmond Criminal Bar Association
Mackenzie Luisa Clements, President
Michael Edward Hollomon, Vice
President
Thomas Leroy Johnson Jr., Secretary
Kelly Scott Miles, Treasurer
South Hampton Roads Bar Association
Wayne Marcus Scriven, President
Lenard Tyrone Myers Jr., President-elect
Ashley Nicole Richard, Secretary
William T. Mason Jr., Treasurer
Warren County Bar, Inc.
Nancie Gallegos Kie, President
Daniel Nichols Whitten, Vice President
John Southall Bell, Secretary
Bridget Ellen Grady Madden, Treasurer
Nancie Gallegos Kie, Conference
Representative
and ask to have the VSB.org
domain added to your permissions list.
www.vsb.org
Law Libraries
Seasoning the Primordial Soup:
Hot Topics and Titles in Construction Law
by Marie Summerlin Hamm
As noted practitioner and prolific author
Philip Bruner once sagely observed,
“Construction law today is a primordial
soup in the melting pot of the law—a
thick broth consisting of centuries-old
legal theories fortified by statutory law
and seasoned by contextual legal innovations reflecting the broad factual realities
of the modern construction process.”1
The recipe is constantly changing and
staying current requires a dash of effort.
Virginia CLE’s recent offering, “The Top
15 Virginia Construction Law Cases
That Every Practitioner Should Know”
(live webcast May 2014), provides an
efficient overview of oft cited opinions
and a summary of newly decided cases.
A two-hour streaming video replay of
the course is available on the Virginia
CLE website. Additionally, Spencer M.
Wiegard, who presented a portion of the
CLE, is authoring a blog post series on
Virginia Construction Law Update
(http://www.vaconstructionlawupdate.co
m) addressing each of the fifteen cases.
The first post appeared August 5, 2014.
Posts include a handy summary of takeaways for the case discussed.
In terms of print resources, the ABA
Construction Law Forum
(http://www.americanbar.org/groups/co
nstruction_industry/publications/forum
_bookshelf.html) has prepared a veritable smorgasbord of “hot” titles.
The Annotated Construction Law
Glossary (2010)
This resource offers concise but nuanced
definitions of key legal and technical
terms commonly used in construction
law and the construction industry. The
glossary is specifically designed to provide a fundamental understanding of
each term defined, making it an appropriate resource for project manager,
architect, and construction law practitioner alike. Terms are annotated and the
www.vsb.org
resource includes a chart of acronyms
and abbreviations.
Fundamentals of Construction Law, 2d
ed. (2013)
This book is presented from the perspective of various stakeholders: owner,
architect, contactor, and lender. With
contributions from twenty-seven noted
experts, the book is in-depth enough to
be of value to experienced practitioners,
but ideal for those new to the construction law field. The book provides excellent overviews of surety law and
government construction contracting, as
well as chapters on delivery systems, payment provisions, project scheduling,
changes in work, and termination. The
new edition includes chapters on construction defects, damages, and ADR.
Construction Subcontracting: A
Comprehensive Practical and Legal
Guide (2014)
Subcontractors are often likened to some
indispensable piece of human anatomy:
the heart; the backbone; the eyes, ears,
hands, and feet of the operation. This
work examines the complexities of legal
relationships between first-tier contractors and their respective subcontractors
and suppliers. Topics include the subcontract document and performance;
insurance, bonding, and licensure; disputes and resolution methods; special
project issues, including alternative project-delivery systems (design-build, IDP,
PPPs), green/sustainable building, and
international projects; and other contracting arrangements.
Construction ADR (2014)
Edited by Adrian Bastianelli III and
Charles M. Sink, with contributions
from a who’s who of construction law
practitioners and scholars, this newly
released title examines the pioneering
use of ADR in the construction industry.
Heavily footnoted with references to
cases, treatises, and industry publications, this in-depth treatment includes
twenty-nine chapters and covers all
aspects of the ADR process. Though
comprehensive, Construction ADR is surprisingly readable and offers practical,
useful advice for novice and expert alike.
Real-time updates to the book are available at http://constructionadrbook.com.
Justin Sweet: An Anthology of
Construction Law Writing (2010)
If you will indulge the pun, we close
with a taste of the varied writings of the
iconic Justin Sweet. This compendium
brings together some of Sweet’s best and
most thought-provoking articles. In
reviewing the work, past editor of The
Construction Lawyer Charles M. Sink
likened it to the Oscar’s Lifetime
Achievement Award.2 Sink opined that
“there are only three types of readers
who should buy this book and keep it
close by: young construction lawyers,
middle-aged ones, and old timers.”3 The
writings, pulled from a career spanning
five decades, are organized into six major
sections, each introduced by a past ABA
Construction Forum chair. The work
Libraries continued on page 60
Marie Summerlin Hamm is assistant director
of collection development at Regent University
Law Library and an adjunct professor of law at
the Regent University School of Law. She is a
past president of the Virginia Association of
Law Libraries.
51
CLE Calendar
Virginia CLE Calendar
Virginia CLE will sponsor the following continuing legal education courses. For details, see http://www.vacle.org/seminars.htm.
January 3–8
34th Annual National Trial Advocacy
College 2015
Live — Charlottesville
January 8
The Nuts and Bolts of Navigating the
U.S. Income and Transfer Tax Maze for
the Non-U.S. Citizen Client
Telephone
10–11 AM
January 13
Representation of Children as a
Guardian Ad Litem — 2014 Qualifying
Course
Video — Tysons Corner
8:30 AM –5:15 PM
January 13
The Rocket Docket: Trying Cases in the
Eastern District of Virginia
Video — Alexandria, Charlottesville,
Norfolk, Richmond
8:55 AM –1:25 PM
January 14
Representation of Children as a
Guardian Ad Litem — 2014 Qualifying
Course
Video — Abingdon, Alexandria,
Charlottesville, Norfolk, Richmond,
Roanoke
8:30 AM –5:15 PM (RICHMOND VIDEO
BEGINS AT 9 AM)
January 14
The Rocket Docket: Trying Cases in the
Eastern District of Virginia
Video — Fredericksburg, Tysons Corner,
Williamsburg
8:55 AM –1:25 PM
January 15
Elder Law Basics 2015
Live — Richmond (Glen Allen)
9 AM –4:10 PM
52
January 15
The Nuts and Bolts of FLSA
Compliance and Litigation
Live — Charlottesville/Webcast/
Telephone
NOON –2 PM
January 20
12th Annual Advanced Seminar for
Guardians Ad Litem for Children —
2012
Roanoke
9 AM –4:30 PM
January 21
12th Annual Advanced Seminar for
Guardians Ad Litem for Children —
2012
9 AM –4:30 PM
January 23
The Nuts and Bolts of Navigating the
U.S. Income and Transfer Tax Maze for
the Non-U.S. Citizen Client
Telephone
10–11 AM
January 27
Representation of Incapacitated
Persons as a Guardian Ad Litem —
2014 Qualifying Course
Roanoke
9 AM –4:05 PM
January 27
The Nuts and Bolts of FLSA
Compliance and Litigation
Webcast/Telephone
10 AM –NOON
January 27
Roanoke
9 AM –4:05 PM
January 28
9 AM –4:05 PM
January 29
Hanging a Shingle: How to Start a
Successful Law Practice
Live — Fairfax
8:30 AM –3:45 PM
February 5
Advanced GAL Topics: What Every GAL
Needs to Know to Be an Effective
Advocate for Children in Families
Facing Special Circumstances
Telephone
NOON –3:15 PM
February 6
45th Annual Criminal Law Seminar
2015
Live — Charlottesville
8:15 AM –5 PM
February 11
Commercial Real Estate Receiverships
—An Alternative to Foreclosure?
Telephone
NOON –1:30 PM
CLE Calendar
February 12
Collaborative Practice: What You and
Your Client Need to Know
Telephone
NOON –2 PM
February 13
45th Annual Criminal Law Seminar
2015
Live — Williamsburg
8:15 AM –5 PM
February 18
Planning with Reverse Mortgages
Telephone
NOON –1:30 PM
February 20
Advanced GAL Topics: What Every GAL
Needs to Know to Be an Effective
Advocate for Children in Families
Facing Special Circumstances
Webcast/Telephone
NOON –3:15 PM
Virginia Lawyer publishes at no charge
notices of continuing legal education programs sponsored by nonprofit bar associations and government agencies. The next
issue will cover February 22 through April
15. Send information by January 8 to
[email protected]. For other CLE opportunities, see Virginia CLE calendar and
“Current Virginia Approved Courses” at
http://www.vsb.org/site/members/mclecourses/ or the websites of commercial
providers.
February 19
Commercial Real Estate Receiverships
—An Alternative to Foreclosure?
Webcast/Telephone
2–3:30 PM
F O R T Y - F I F T H
A N N U A L
2015
Criminal Law Seminar
Recent Developments in Criminal Law and Procedure • Tips from the Bench – Effective Appellate Advocacy
DNA Evidence – Interpretation and Indexes • Ethical Issues in the Practice of Criminal Law
Interviews and Interrogations – Understanding Best Practices
FEBRUARY 6, 2015
DoubleTree by Hilton, Charlottesville
FEBRUARY 13, 2015
DoubleTree by Hilton, Williamsburg
www.vsb.org/site/sections/criminal
Video Replays in 14 Locations on Four Different Dates
Approved 7.0 MCLE Credits (including 1.5 ethics credit)
V I R G I N I A C L E ® A N D V I R G I N I A S TAT E B A R
53
Virginia Lawyer Register
DISCIPLINARY PROCEEDINGS
CIRCUIT COURT
Respondent’s Name
Vaughan Christopher Jones
Kenneth Wayne Paciocco
Address of Record
Richmond, VA
Richmond, VA
Action
Public Reprimand w/Terms
Suspension—3 years
Effective Date
September 10, 2014
September 15, 2014
Address of Record
Richmond, VA
Scottsville, VA
Norfolk, VA
Reston, VA
Richmond, VA
Culpeper, VA
Chesterfield, VA
Annandale, VA
Ashland, VA
Action
Revocation
CRESPA Fine of $500
Revocation
Suspension w/Terms—1 year
Suspension—2 years
Suspension w/Terms—3 years
Suspension w/Terms—5 months
Effective Date
October 30, 2014
November 4, 2014
October 20, 2014
September 12, 2014
October 24, 2014
September 26, 2014
September 11, 2014
September 22, 2014
September 23, 2014
Address of Record
Norfolk, VA
Mechanicsville, VA
Virginia Beach, VA
McLean, VA
Richmond, VA
Falls Church, VA
Action
Public Reprimand
Public Reprimand
Public Admonition
Effective Date
October 8, 2014
November 3, 2014
September 30, 2014
September 26, 2014
November 10, 2014
October 7, 2014
DISCIPLINARY BOARD
Respondent’s Name
Gregory Lee Cassis
Christopher John Dumler
Philip R. Farthing
Mark Richard Galbraith
Arnold Reginald Henderson V
Angela Marie Hensley
Eric Joseph Livingston
Charles A. Price
William Vaughan Riggenbach
DISTRICT COMMITTEES
Respondent’s Name
Benjamin David Bowers
William Stephen Coleman
Mattia Jestelle Corse
Juan Chardiet
Angela Dawn Whitley
Ivan Yacub
SUSPENSION—FAILURE TO PAY DISCIPLINARY COSTS
Respondent’s Name
James Pearce Brice Jr.
Sharon Ann Fitzgerald
Jason Christopher Roper
Address of Record
Virginia Beach, VA
Chesterfield, VA
Mars, PA
Effective Date
October 21, 2014
October 8, 2014
November 7, 2014
SUSPENSION—FAILURE TO COMPLY WITH SUBPOENA
Respondent’s Name
Lucy Ivanoff
Address of Record
Staunton, VA
Effective Date
November 4, 2014
Address of Record
Norfolk, VA
Effective Date
September 8, 2014
IMPAIRMENT
Respondent’s Name
Duncan Robertson St. Clair III
54
Lifted
Disciplinary Summaries
The following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC) (Rules of the
Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, 2000) or another of the Supreme Court Rules.
Copies of disciplinary orders are available at the Web link provided with each summary or by contacting the Virginia State Bar Clerk’s
Office at (804) 775-0539 or [email protected]. VSB docket numbers are provided.
CIRCUIT COURT
Vaughan Christopher Jones
Philip R. Farthing
Richmond, Virginia
13-033-095600
On September 10, 2014, a three-judge panel of the Circuit Court
for the City of Richmond issued a public reprimand with terms
to Vaughan Christopher Jones for violating a professional rule
that governs competence. This was an agreed disposition of
misconduct charges. RPC 1.1
Norfolk, Virginia
14-000-099849
On October 20, 2014, the Virginia State Bar Disciplinary Board
issued a memorandum order with terms to Philip R. Farthing
and ordered him to pay a fine of $500 for violating the Real Estate
Settlement Act. This is an agreed disposition of the RESA charges.
RESA § 55-525.30, 15VAC5-80-30
www.vsb.org/docs/Jones-111314.pdf
www.vsb.org/docs/Farthing-110614.pdf
Kenneth Wayne Paciocco
Mark Richard Galbraith
Richmond, Virginia
14-032-097791
Effective September 15, 2014, a three-judge panel of the Circuit
Court of the City of Richmond suspended Kenneth Wayne
Paciocco’s license to practice law for three years for violating
professional rules that govern communication, safekeeping
property, and misconduct. RPC 1.4(a), 1.15(a)(3),(b)(1,3,4,5),(c)
(1,2),(d)(3), 8.4(c)
Reston, Virginia
14-052-099782
On September 12, 2014, the Virginia State Bar Disciplinary
Board revoked Mark Richard Galbraith’s license to practice law
for violating professional rules that govern safekeeping property
and misconduct. In consenting to the revocation, Mr. Galbraith
admitted that the charges against him are true and that he could
not successfully defend against them. RPC 1.15(a),(b)(3-5),(c)(1)
(2)(i,ii)(4),(d)(3)(i-iv)(4), 8.4(a-c)
www.vsb.org/docs/Paciocco-110614.pdf
www.vsb.org/docs/Galbraith-110714.pdf
DISCIPLINARY BOARD
Gregory Lee Cassis
Richmond, Virginia
13-033-094712, 13-033-095432
issued a public reprimand with terms to Gregory Lee Cassis for
violating professional rules that govern diligence, communication,
fees, and misconduct. This was an agreed disposition of
misconduct charges.
RPC 1.3(a), 1.4 (a)(b), 1.5(a)(1-8), 8.4(c)
www.vsb.org/docs/Cassis-111214.pdf
Christopher John Dumler
Scottsville, Virginia
13-070-093619
On November 4, 2014, the Virginia State Bar Disciplinary Board
revoked Christopher John Dumler’s license to practice law based
on his affidavit consenting to the revocation and his conviction
of a misdemeanor in the General District Court of the County of
Albemarle. In consenting to the revocation, Mr. Dumler admits
that the disciplinary charges against him are true and that he
could not successfully defend against them. Rules Part 6, § IV, ¶
13-28; RPC 8.4(b)
Arnold Reginald Henderson V
Richmond, Virginia
13-032-095270
suspended Arnold Reginald Henderson V’s license to practice
law for one year, with terms, for violating professional rules that
govern diligence and communication. RPC 1.3(a), 1.4(a)
www.vsb.org/docs/Henderson-111914.pdf
DISCIPLINARY BOARD
Angela Marie Hensley
Culpeper, Virginia
15-000-100112
On September 26, 2014, the Virginia State Bar Disciplinary Board
suspended Angela Marie Hensley’s license to practice law for two
years based on her conviction of a felony in the Circuit Court of
Culpeper County. Her license had been summarily suspended on
September 5, 2014.
Rules Part 6, § IV, ¶ 13-22
www.vsb.org/docs/Hensley-110614.pdf
www.vsb.org/docs/Dumler-110614.pdf
55
Disciplinary Summaries
DISCIPLINARY BOARD
William Stephen Coleman
Eric Joseph Livingston
Chesterfield, Virginia
10-031-084027
Effective September 11, 2014, the Virginia State Bar Disciplinary
Board issued a public reprimand with terms to Eric Joseph
Livingston for violating professional rules that govern competence.
RPC 1.1
Mechanicsville, Virginia
14-060-097923
On November 3, 2014, the Virginia State Bar Sixth District
Subcommittee issued a public reprimand to William Stephen
Coleman for violating professional rules that govern diligence and
communication. This was an agreed disposition of misconduct
charges. RPC 1.3(a), 1.4(a)(b)
www.vsb.org/docs/Linvingston-110614.pdf
www.vsb.org/docs/Coleman-111914.pdf
Charles A. Price
Mattia Jestelle Corse
Annandale, Virginia
14-051-096204
suspended Charles A. Price’s license to practice law for three
years, with terms, for violating professional rules that govern firm
names and letterheads, bar admission and disciplinary matters,
misconduct, and unauthorized practice of law; multijurisdictional
practice of law. This was an agreed disposition of misconduct
charges. RPC 5.5(c), 7.5(a), 8.1(c), 8.4(a,b)
Virginia Beach, Virginia
14-022-098580
On September 30, 2014, the Virginia State Bar Second District
Subcommittee issued a public reprimand to Mattia Jestelle
Corse for violating a professional rule that governs unauthorized
practice of law; multijurisdictional practice of law. This was an
agreed disposition of misconduct charges. RPC 5.5(c)
www.vsb.org/docs/Price-110714.pdf
Juan Chardiet
William Vaughan Riggenbach
Ashland, Virginia
13-060-093662, 13-060-094639, 13-060-094941, 13-060-094986,
14-060-096336
suspended William Vaughan Riggenbach’s license to practice law
for five months, with terms, for violating professional rules that
govern competence, diligence, safekeeping property, declining
or terminating representation, responsibilities of partners
and supervisory lawyers, responsibilities regarding nonlawyer
assistants, and unauthorized practice of law; multijurisdictional
practice of law. The board dismissed two charges. This was an
agreed disposition of misconduct charges.
www.vsb.org/docs/Corse-111914.pdf
McLean, Virginia
13-051-093997
On September 26, 2014, the Virginia State Bar Fifth District
Section I Subcommittee issued a public admonition to
Juan Chardiet for violating professional rules that govern
communication and declining or terminating representation. RPC
1.4(a), 1.16(d)(e)
www.vsb.org/docs/Chardiet-110614.pdf
Angela Dawn Whitley
DISTRICT COMMITTEES
Richmond, Virginia
14-032-098417, 14-032-099871, 14-032-099568
On November 10, 2014, the Virginia State Bar Third District
Subcommittee issued a public reprimand with terms to Angela
Dawn Whitley for violating professional rules that govern
diligence and communication. This was an agreed disposition of
misconduct charges. RPC 1.3(a), 1.4(a)(b)
Benjamin David Bowers
www.vsb.org/docs/Whitley-111914.pdf
www.vsb.org/docs/Riggenbach-110714.pdf
Norfolk, Virginia
14-022-098719
On October 8, 2014, the Virginia State Bar Second District
Subcommittee issued a public reprimand with terms to Benjamin
David Bowers for violating a professional rule that governs fees.
This was an agreed disposition of misconduct charges. RPC 1.5(a)
www.vsb.org/docs/Bowers-110614.pdf
Ivan Yacub
Falls Church, Virginia
14-041-097049
On October 7, 2014, the Virginia State Bar Fourth District
Subcommittee issued a public reprimand with terms to Ivan
Yacub for violating professional rules that govern safekeeping
property. This was an agreed disposition of misconduct charges.
RPC 1.15(a)(1), (b)(3), (c)(1)(2)(i,ii), (d)(2)(3)(i-iv)(4)
www.vsb.org/docs/Yacub-110614.pdf
56
Notices to Members
THE VSB IS SEEKING NOMINATIONS FOR THE
FOLLOWING AWARDS:
Betty A. Thompson Lifetime Achievement Award
The award recognizes and honors an individual who has made
a substantial contribution to the practice and administration of
family law in Virginia.
Family Law Service Award
The award is given to an individual or organization who has
consistently given freely of time, talent and energies to provide
valuable services in advancing family, domestic relations, or
juvenile law in Virginia, whether such services are rendered to the
Virginia legal community or directly to the citizens of Virginia.
VOLUNTEERS SOUGHT FOR VSB COMMITTEES
Virginia State Bar President-elect Edward L. Weiner invites
Virginia lawyers to volunteer for bar committees. Appointments
generally will be for three-year terms that run from July 1, 2015,
through June 30, 2018.
A list of committees and an application form is available online.
To be considered for an appointment, fax the form to the bar
at (804) 775-0501 or email it to [email protected] by February
27, 2015. Questions should be addressed to Asha Holloman at
(804) 775-0551 or [email protected]. Persons of diversity are
encouraged to apply.
R. Edwin Burnette, Jr., Young Lawyer of the Year Award
This award honors an outstanding young Virginia lawyer who has
demonstrated dedicated service to the YLC, the legal profession
and the community.
Details:
www.vsb.org/site/members/awards-and-contests/
NOMINATIONS SOUGHT FOR COMMITTEE VACANCIES
Volunteers are needed to serve the Virginia State Bar’s boards and committees. The Nominating Committee will refer nominees to the
VSB Council for consideration at its June meeting.
Vacancies in 2015 are listed below. All appointments will be for the terms specified, beginning on July 1, 2015, unless otherwise noted.
EXECUTIVE COMMITTEE: 6 vacancies (4 current members who are not eligible for reappointment and 2 current members who are
eligible for reappointment). Filled from ranks of the council for 1-year terms, by council appointment.
CLIENTS’ PROTECTION FUND BOARD: 4 lawyer vacancies (1 current lawyer member from the 3rd disciplinary district who is
not eligible for reelection; 2 current lawyer members from the 7th and 10th disciplinary districts who are eligible for reelection and 1
current lawyer member at-large who is eligible for reelection) May serve 2 consecutive 3-year terms. Appointment by council.
JUDICIAL CANDIDATE EVALUATION COMMITTEE: 3 lawyer vacancies (of which 1 vacancy is to be filled by a member from the
1st, 3rd, 5th, 7th or 8th judicial circuits; 1 vacancy is to be filled by a member from the 2nd or 4th judicial circuits and 1 vacancy is to be
filled by a member from the 23rd or 25th judicial circuits). May serve 1 full 3-year term. Appointment by council.
VIRGINIA LAW FOUNDATION BOARD: 3 vacancies (of which 2 current lawyer members are eligible for reelection) and 1 lay member
(who is not eligible for reelection). May serve 2 consecutive 3-year terms. Appointment by VLF Board on recommendation of council.
VIRGINIA CLE COMMITTEE: 6 lawyer vacancies (of which 6 lawyer members are eligible for reelection to 1-year terms).
Appointment by VLF Board on recommendation of council.
AMERICAN BAR ASSOCIATION DELEGATES: 1 vacancy. May serve 3 consecutive 2-year terms. Appointment by council. Term
commences September 1, 2015.
Nominations, along with a brief résumé, should be sent by March 27, 2015, to
VSB Nominating Committee, c/o Asha Holloman
Virginia State Bar,
1111 East Main Street, Suite 700
Richmond, VA 23219-3565
57
Nominations Sought for 2015–2016 District Committee Vacancies
Deadline for Nominations: February 28, 2015
The Standing Committee on Lawyer Discipline calls for nominations for district committee vacancies to be filled by Council in June.
Note that there are vacancies which may not become available because some members are eligible for reappointment.
To review qualifications for eligibility, see Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4 – Establishment of
District Committees, specifically 13-4.E (Qualifications of Members) and 13-4.F (Persons Ineligible for Appointment).
FIRST DISTRICT COMMITTEE: 2 attorney vacancies; 1 non-attorney vacancy. The vacancies are to be filled by members from the 1st,
3rd, 5th, 7th or 8th judicial circuits.
SECOND DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies (both current members are eligible for reappointment). The
vacancies are to be filled by members from the 2nd or 4th judicial circuits.
SECOND DISTRICT COMMITTEE, SECTION II: 1 attorney vacancy (current member is eligible for reappointment). The vacancies are
to be filled by members from the 2nd or 4th judicial circuits.
THIRD DISTRICT COMMITTEE, SECTION I: 3 attorney vacancies (2 current members are eligible for reappointment). The vacancies
are to be filled by members from the 6th, 11th, 12th, 13th or 14th judicial circuits.
THIRD DISTRICT COMMITTEE, SECTION II: 2 attorney vacancies (1 current member is eligible for reappointment); 1 non-attorney
vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th
judicial circuits.
THIRD DISTRICT COMMITTEE, SECTION III: 3 attorney vacancies (2 current members are eligible for reappointment); 1 nonattorney vacancy. The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th judicial circuits.
FOURTH DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies (current member is eligible for reappointment); 1 non-attorney
vacancy. The vacancies are to be filled by members from the 17th or 18th judicial circuits.
FOURTH DISTRICT COMMITTEE, SECTION II: 1 attorney vacancy; 1 non-attorney vacancy. The vacancies are to be filled by
members from the 17th or 18th judicial circuits.
FIFTH DISTRICT COMMITTEE, SECTION I: 3 attorney vacancies (current members are eligible for reappointment); 1 non-attorney
vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st judicial circuits.
FIFTH DISTRICT COMMITTEE, SECTION II: 2 attorney vacancies (1 current member is eligible for reappointment). The vacancies are
to be filled by members from the 19th or 31st judicial circuits.
FIFTH DISTRICT COMMITTEE, SECTION III: 2 attorney vacancies (both current members are eligible for reappointment); 1 nonattorney vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st
judicial circuits.
SIXTH DISTRICT COMMITTEE: 2 attorney vacancies; 1 non-attorney vacancy. The vacancies are to be filled by members from the 9th
or 15th judicial circuits.
SEVENTH DISTRICT COMMITTEE: 1 attorney vacancy (current member is eligible for reappointment); 1 non-attorney vacancy
(current member is eligible for reappointment). The vacancies are to be filled by members from the 16th, 20th or 26th judicial circuits.
EIGHTH DISTRICT COMMITTEE: 4 attorney vacancies (3 current members are eligible for reappointment). The vacancies are to be
filled by members from the 23rd or 25th judicial circuits.
NINTH DISTRICT COMMITTEE: 4 attorney vacancies (current members are eligible for reappointment). The vacancies are to be filled
by members from the 10th, 21st, 22nd or 24th judicial circuits.
TENTH DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies (both current members are eligible for reappointment); 2 nonattorney vacancies. The vacancies are to be filled by members from the 27th, 28th, 29th or 30th judicial circuits.
TENTH DISTRICT COMMITTEE, SECTION II: 3 attorney vacancies (1 current member is eligible for reappointment). The vacancies
are to be filled by members from the 27th, 28th, 29th or 30th judicial circuits.
Nominations, along with a brief resume, should be sent by February 28, 2015, to
Stephanie Blanton, Virginia State Bar,
1111 East Main Street, Suite 700, Richmond, VA 23219-3565
[email protected]
58
President-elect Weiner Seeks Members
for Virginia State Bar Committees
With Terms Commencing July 1, 2015
To: Members of the Bar
From: Edward L. Weiner, President-elect
As you know, much of the work of the Virginia State Bar is done through its committees, and we need members willing
to serve. Appointments will generally be for a three-year term, running from July 1, 2015, to June 30, 2018, with the possibility
of another three-year term to follow. The work of the committees is time consuming and in most cases requires committee
members to set aside substantial time to fulfill the requirements of the job.
To encourage participation — and recognizing the time constraints — members are generally limited to serving on only
one committee. The number of available positions is quite limited, but I will attempt to accommodate as many people as possible.
The committees are as follows:
Standing Committees:*
Ƈ Budget & Finance
Ƈ Lawyer Discipline
Ƈ Legal Ethics
Ƈ Professionalism
Ƈ Unauthorized Practice of Law
Special Committees:
Ƈ Access to Legal Services
Ƈ Bench-Bar Relations
Ƈ Communications
Ƈ Lawyer Malpractice Insurance
Ƈ Lawyer Referral
Ƈ Midyear Legal Seminar
Ƈ Personal Insurance for Members
Ƈ Resolution of Fee Disputes
Ƈ Technology and the Practice of Law
*Lawyer member vacancies on Standing Committees are limited due to requirements for a specific number
of Executive Committee and Council members to serve on each committee.
If you would like to be considered for appointment to any of the VSB committees listed, please complete the form below
or download the form at http://www.vsb.org/site/about and return it to the Virginia State Bar office by February 27, 2015, by mail,
or e-mail to Asha B. Holloman:
Virginia State Bar
1111 East Main Street, Suite 700
Richmond, VA 23219-3565
[email protected]
VSB Committee Preference Form (term commencing July 1, 2015) (Please type or print)
Name:
VSB Attorney No.:
Address:
City/State/Zip:
Choice
1st Choice
2nd Choice
3rd Choice
Phone No.:
Committee Name
Email:
Have you ever served on this committee?
Yes
No
Yes
No
Yes
No
Length of Service
Check here if you have never served on a VSB committee.
To assist us in the committee selection process, please provide the following information:
Private Practice
Corporate Counsel
Primary area of practice:
Other
Government attorney
Commonwealth
City/County
Federal
Attach a separate sheet with additional comments (i.e., qualifications and reason for wanting to serve).
Libraries continued from page 51
encompasses Sweet’s deeply analytical articles addressing construction law and process, comparative
law, as well as the plethora of professional issues that seem to
inevitably arise in a construction
project. There is a selection of
insightful “Provocative Essays.”
The final section republishes each
of Sweet’s “From the Tower” column pieces that appeared in The
Construction Lawyer.
Endnotes:
1
See Philip L. Bruner, “The
Historical Emergence of
Construction Law,” 34 WM
MITCHELL L. REV. 13-14 (2007).
2
Charles M. Sink, “A Lifetime of
Creative Analysis in One Book—
Review of Justin Sweet: An
Anthology of Construction Law
Writings,” Vol. 30, No. 2 THE
CONSTRUCTION LAWYER (Spring
2010).
3
Id.
Law Stories continued from page 24
bloody head rose. Snot dripped in a
steady stream from his nose to the
ground.
“Damn it, Charlie. You drunken
slob.”
“Hey Bill, it’s the town drunk. Smells
like he drank every beer in the county.”
Duck said to get back in his car, that he
would drive me over the bridge, then
come back for Charlie (not his real
name) and drive him to the jail.
A week later at the courthouse, I
ran into Duck. We laughed about our
Halloween adventure. He said Charlie
had slept it off in the jail that night and
had no idea how he had gotten so bloodied. Duck said later Charlie called the
sheriff and claimed his wallet was missing. He thought maybe Duck or I might
have taken it. The sheriff had told Duck
that maybe Charlie had been rolled but
not by a deputy or lawyer. I never saw or
heard of drunken Charlie again.
The last time I saw Duck was at the
7/11 convenience store in the town of
White Stone. My 4-year-old daughter
was with me. “Sara, this is Officer
Benson,” I said. “He’s a police officer.
You better be good.” Duck smiled and
leaned over to shake my daughter’s
hand, “Bill, we don’t want Sara to be
afraid of the police. We want her to like
and trust us.”
A few days later, Duck was shot
and killed in Lancaster County while
attempting to serve a court order for
an emergency mental health evaluation. He was only 34 and left behind a
wife and two small children. I only
hope he knows how grateful we are for
his service.
*To view his Officer Down Memorial
Page, go on the Internet to Donald
Benson, Lancaster County Sheriff’s
Dept. at http://www.odmp.org/officer
/1758-sergeant-donald-c-benson-sr
William J. Kopcsak is a retired
Lancaster County trial attorney
who periodically stops by his
old Irvington office to have a
cup of coffee. His boat is named
the Legal Ease.
ELEVENTH ANNUAL
INDIGENT CRIMINAL DEFENSE
ADVANCED SKILLS FOR THE EXPERIENCED PRACTITIONER
SAVE THE DATE
FRIDAY, MAY 1, 2015
A DAY-LONG ADVANCED TRIAL SKILLS CLE
Registration information and details will be available in early January at http://www.vsb.org/site/events.
60
Professional Notices
Michael W. Smith to Head American
College of Trial Lawyers
Michael W. Smith has been elected president-elect of the American College of
Trial Lawyers (ACTL). He will be
installed as president of the organization
of top trial lawyers in the United States
and Canada at the conclusion of the
group’s annual meeting in October 2015.
Smith is a partner at Christian &
Barton LLP, in Richmond. He is chair of
the firm and of its executive committee,
and is head of the litigation practice
group. He is a former president of the
James W.C. “Jamie” Canup has joined
Hirschler Fleischer as a Richmond-based
partner to chair the firm’s tax practice.
Larry W. Davis, Albemarle county
attorney, received the Edward J.
Finnegan Award for Distinguished
Service by the Local Government
Attorneys of Virginia Inc. at its annual
fall conference in Richmond.
Karen S. Elliott and Annemarie
DiNardo Cleary have joined Eckert
Seamans Cherin & Mellott LLC as
members in the Richmond office.
Elliott is a member of the firm’s Labor
and Employment group, and will be
leading the group’s efforts in Virginia.
Cleary is also part of the Labor and
Employment group as well as the
Financial Services Litigation practice.
Susan S. Grover received the James R.
Treese Award at the Lawyers Helping
Lawyers fall retreat in Wintergreen. The
award recognizes individuals who have
selflessly devoted extraordinary amounts
of time and personal efforts to help
members of the legal community deal
with substance abuse and other issues.
Camellia J. Jacobs has become a partner
with Zavos Juncker Law Group PLLC.
She practices family law in Maryland,
Virginia, and the District of Columbia,
and brings more than a decade of litigation and trial experience in the areas of
Virginia State Bar and
the Bar Association of
the City of Richmond.
Smith will serve as
the 66th president of
the ACTL, and will be
the fourth Virginia
lawyer to hold the position. Those
Virginians preceding him were James W.
Morris III (2004–2005); the late R.
Harvey Chappell Jr. (1986–1987), who
was also a partner at Christian & Barton;
and the late U.S. Supreme Court Justice
Lewis F. Powell Jr. (1969-1970).
family law, domestic violence, negligence
and civil rights.
JoAnne L. Nolte, the principal of the
Nolte Law Firm PC in Richmond, has
joined the board of directors at
Minnesota Lawyers Mutual Insurance
Company, a lawyers professional liability carrier, headquartered in
Minneapolis, MN
Louis S. Pettey, president of Heise
Jorgensen and Stefanelli PA, has been
installed as president of the American
College of Mortgage Attorneys and continues to serve as a member of the executive committee.
Christine Lockhart Poarch was recognized by DePaul Community Resources
with the 2014 Women of Achievement
Award for Law.
Leanne M. Shank, general counsel at
Washington and Lee University, has been
elected to a three-year term as treasurer
of the National Association of College
and University Attorneys.
Jacob P. Stroman IV has joined Allianz
Global Corporate and Specialty as inland
marine practice leader, Americas. AGCS
is a subsidiary of Allianz SE, one of the
world’s largest insurance and financial
services companies based in Munich. He
is the former chief staff attorney of the
Supreme Court of Virginia.
Professional
Notices
E-mail your news to
[email protected] for
publication in Virginia Lawyer.
All professional notices are free to
VSB members and may be edited
for length and clarity.
Marianne Merritt Talbot has joined
Bentham IMF, an international litigation
funding firm that invests in cases and
law firm portfolios, as its chief marketing officer in the United States. She is
based in New York City.
Gibson S. Wright has joined Morris &
Morris as an associate. He will handle
commercial litigation and transportation
matters. He previously practiced with
DurretteCrump.
For confidential,
free consultation
available to all Virginia attorneys
on questions related to legal
malpractice avoidance, claims repair,
professional liability insurance issues,
and law office management, call
Fairfax County lawyer, John J.
Brandt, who acts under the
auspices of the Virginia State Bar at
(703) 281-2600
61
Classified Ads
POSITIONS AVAILABLE
Clark & Bradshaw, P.C., an AV rated,
full-service law firm founded in 1948,
located in Harrisonburg, VA is seeking
a business and real estate transactions
associate. At least 3 years of applicable
practice experience is required; a more
experienced attorney will also be considered. Candidates should possess good
communication and interpersonal skills.
The position offers challenging and varied legal assignments. Salary is commensurate with experience. Full benefits,
including 401k, profit sharing, health,
life, and disability insurance provided.
Interested professionals should send
their qualifications and salary expectation to Clark & Bradshaw, P.C.,
P.O. Box 71, Harrisonburg, VA 22803
Attn: Angela Marrin or amarrin@
clark-bradshaw.com.
RENTALS
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you at the airport and take you to our
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Check out the website for the villa at
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classified @ds
ONLINE
Virginia Lawyer classifieds
are now available online!
Print & Online and Online Only rates available:
http://www.vsb.org/site/publications/rates/#class
contact: Linda McElroy – [email protected]
“Not in Good Standing” Search Available at VSB.org
The Virginia State Bar offers the ability to search active Virginia lawyers’ names
to see if they are not eligible to practice because their licenses are suspended or
revoked using the online Attorney Records Search at http://www.vsb.org
/attorney/attSearch.asp.
The “Attorneys Not in Good Standing” search function was designed in
conjunction with the VSB’s permanent bar cards.
Lawyers are put on not-in-good-standing (NGS) status for administrative
reasons — such as not paying dues or fulfilling continuing legal education
requirements — and when their licenses are suspended or revoked for violating
professional rules.
The NGS search can be used by the public with other attorney records
searches — “Disciplined Attorneys” and “Attorneys without Malpractice
Insurance” — to check on the status and disciplinary history of a lawyer.
ADVERTISER’S INDEX
ALPS Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . inside front cover and 5
Charles Harvey Bayar, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Geronimo Development Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . back cover
L. Steven Emmert. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
McAdoo Gordon & Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
VSB Staff Directory
Frequently requested bar contact
information is available online at
www.vsb.org/site/about/bar-staff.
62
National Legal Research Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Jeffrey M. Summers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Virginia CLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11
Virginia State Bar Members’ Insurance Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ZZZFDVHÀQGHUFRP
GENERAL INTEREST
Endnotes continued from page 21:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
“By the universal law of nations, robbery or forcible depredation
upon the “high seas,” animo furandi, is piracy. The meaning of the
phrase “high seas,” embraces not only the waters of the ocean,
which are out of sight of land, but the waters on the sea coast
below low water mark, whether within the territorial boundaries
of a foreign nation, or of a domestic state. Blackstone says that
the main sea or high sea begins at low water mark. But between
the high water mark and low water mark, where the tide ebbs and
flows, the common law and the Admiralty have divisum
imperium, an alternate jurisdiction, one upon the water when it is
full sea; the other upon the land when it is ebb.” CHARLES ELLMS,
THE PIRATES OWN BOOK: AUTHENTIC NARRATIVES OF THE MOST
CELEBRATED SEA ROBBERS, at ix (Marine Research Soc’y 1924)
(1837).
“Piracy is an offence against the universal law of society, a pirate
being according to Sir Edward Coke, hostis humani generis. As,
therefore, he has renounced all the benefits of society and government, and has reduced himself to the savage state of nature,
by declaring war against all mankind, all mankind must declare
war against him; so that every community has a right by the rule
of self-defense, to inflict that punishment upon him which every
individual would in a state of nature otherwise have been entitled to do, for any invasion of his person or personal property.”
Id. at x.
Id. at iii.
Captain Hook’s hand was cut off by Peter Pan and fed to a saltwater crocodile. The Captain later remarked “It liked my arm so
much . . . that it has followed me ever since, from sea to sea and
from land to land, licking its lips for the rest of me.” J.M. BARRIE,
PETER PAN 49 (Centennial ed., Henry Holt & Co. 2003) (1911).
Ward & Gow v. Krinsky, 259 U.S. 503, 512-13 (1922).
1 LARSON, supra note 10, at § 1.03(4).
This contrasts with tort theories of recovery which attempt to
restore an injured individual to his status before injury and to
replace what he has lost. Id, § 1.03(5).
4 id. § 80.05(4).
Virginia has its own unique connections to piracy. In 1718,
Governor Alexander Spotswood provided funds for two light
sloops to pursue the infamous pirate Blackbeard at Ocracoke
Inlet, now in North Carolina. George Humphrey Yetter, When
Blackbeard Scourged the Seas, available at https://www.history.org
/Foundation/journal/blackbea.cfm (last visited October 15, 2014).
Ch. 400, 1918 Va. Acts 637 (codified as amended at VA. CODE
§§ 65.2-100 to -1310 (2013)).
Ch. 400, § 78, 1918 Va. Acts 637, 659.
VA. CODE § 65.2-200.
The method for calculating the “average weekly wage,” is set forth
in the Workers’ Compensation Act. § 65.2-101. The weekly compensation rate for permanent partial disability is based on 66 2/3
percent of the average weekly wage. § 65.2-503(B).
§ 65.2-503(D).
Id.
“The claimant has the burden of proving maximum medical
improvement.” Montalbano v. Richmond Ford, LLC, 57 Va. App.
235, 250, 701 S.E.2d 72, 79 (2010). “Permanent partial disability
benefits are ‘not awardable until the injury has reached a state of
permanency, i.e. maximum improvement, when the degree of
loss may be medically ascertained.’” Id. (quoting Brown v. United
Airlines, Inc., 34 Va. App. 273, 277, 540 S.E.2d 521, 523
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18
19
20
21
22
23
24
25
26
27
28
29
30
(2001)). “‘[A]n employee has reached maximum medical
improvement if no reasonable expectation exists that the
employee will obtain further functional improvement from
medical treatment, even though the injury remains symptomatic and disabling.’” Montalbano, 57 Va. App. 250, 701 S.E.2d
79 (quoting Gunst Corp. v. Childress, 29 Va. App. 701, 707, 514
S.E.2d 383, 386 (1999)).
Democratic principles extended beyond the concept of one
pirate, one vote. They included limited power invested in the
executive, in this case the captain. The majority retained a right to
override the captain’s mandate. They even employed a democratic
judicial function. The interpretation of their laws was left up to a
Jury, “appointed to explain them, and bring in a Verdict upon the
case in doubt.” CHARLES JOHNSON, A GENERAL HISTORY OF THE
PYRATES, FROM THEIR FIRST RISE AND SETTLEMENT IN THE ISLAND
OF PROVIDENCE, TO THE PRESENT TIME 233 (London, T. Warner
2d ed. 1724), available at https://openlibrary.org/books
/OL23301158M/A_General_History_of_the_Pyrates_from_Their
_first_Rise_and_Settlement_in_the_Island_of_Providence_to
(last visited June 19, 2014) (discussing provisions for trial aboard
the pirate ship commanded by Bartholomew Roberts).
The articles sometimes were drawn up under the, “exhilarating
influence,” of “a large bowl of punch.” ELLMS, supra note 2, at
202-03.
JOHNSON, supra note 35, at 397 (discussing the adoption of articles by the crew of the pirate ship Revenge, commanded by John
Phillips).
Exquemelin’s name in some texts is spelled “Esquemeling,”
“Exquemeling,” or “Oexmelin.”
ALEXANDER EXQUEMELIN, DE AMERICAENSCHE ZEE-ROOVERS
(Amsterdam, Jan ten Hoorn 1678), English translation available at
http://home.online.nl/m.bruyneel/archive/tboa/tboa001.htm (last
visited June 19, 2014). It was subsequently published in various
other versions, some with substantial additions, in German,
Spanish, English, and French. Quotations and page numbers in
this article are from the online English translation.
CORDINGLY, supra note 7, at 40.
EXQUEMELIN, supra note 39, at 45.
Id. at 46.
Id. at 59.
l’Olonnais was a pirate leader with an entrepreneurial flair, or at
least laudable skills of recruitment and organization. His first
pirate adventure to Gibraltar and Maracaibo was recorded as
including approximately 660 pirates. His second expedition
included over 700 pirates. Id. at 61, 72.
Modern day Maracaibo in northwestern Venezuela is the second
largest city in that country with a population of 2.3 million.
CENTRAL INTELLIGENCE AGENCY, Field Listing: Major Urban
Areas—Population, THE WORLD FACTBOOK 2013-14 (2013), available at https://www.cia.gov/library/publications/the-world-factbook/fields/2219.html (last visited June 20, 2014).
Christian Regnier, Alexander Exquemeling and the 17th- and 18thCentury Surgeons to Pirates, Corsairs, Freebooters, and Buccaneers,
93 MEDICOGAPHIA 373, 378 (2007). This article quotes a case
report prepared after the capture of Chagre (Panama) and cites as
its source EXQUEMELIN, supra note 39. However, the quoted text
does not appear in the online English translation.
“The snow was a form of brig-rigged vessel that was in frequent
use before the nineteenth century.” JOHN ROBINSON & GEORGE
FRANCIS DOW, SAILING SHIPS OF NEW ENGLAND 1607 – 1907, at 30
65
GENERAL INTEREST
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
66
(1922), available at https://archive.org/stream/sailingshipsofne00
robirich/sailingshipsofne00robirich_djvu.txt (last visited August
14, 2014).
Johnson apparently lost track of his pirates because the wounded
leg suffered by Taylor is, without further explanation, amputated
from William Phillips, a co-conspirator.
JOHNSON, supra note 35, at 400-01.
Id. at 398.
EXQUEMELIN, supra note 39, at 128-29.
JOHNSON, supra note 35, at 232.
Id. at 352.
The author leaves those investigations to the realm of the
numerically driven: economists, accountants, actuaries, and
mathematicians. But they have done some impressive work.
Stephen J. Dubner, co-author of the acclaimed pop-economics
book FREAKONOMICS: A ROGUE ECONOMIST EXPLORES THE
HIDDEN SIDE OF EVERYTHING (2005), performed a comparative
analysis between modern workers’ compensation and pirate
compensation. Stephen J. Dubner, The Economics of Piracy (the
Real Kind, With Peglegs and Pieces of Eight), FREAKONOMICS
(Sept. 17, 2007, 10:40 AM), http://freakonomics.com/2007/09
/17/the-economics-of-piracy-the-real-kind-with-peglegs-and
-pieces-of-eight/ (last visited June 20, 2014). For a general
account of the economics of pirating, see PETER T. LEESON,
THE INVISIBLE HOOK: THE HIDDEN ECONOMICS OF PIRATES
(Princeton University Press 2009).
Roberts’ code was adopted in 1721. The Virginia provision for
proportionate loss was formally codified in 1920. Ch. 172, § 32(s),
1920 Va. Acts 256, 659 (“In construing the foregoing section the
permanent loss of the use of a members shall be held equivalent
to the loss of such member, and for the permanent partial loss or
loss of use of a member compensation may be proportionally
awarded.”). However, the Commission began awarding compensation for proportionate loss and loss of use as early as 1919, the
first year the Act was in effect. See Bowles v. Va. Bridge & Iron Co.,
1 O.I.C. 179, 181 (1919) (“While the Act does not specifically
provide compensation for the loss of a portion of a hand, the
Commission is of the opinion, and has so held on numerous
occasions that the spirit of the act permits an award wherever the
evidence shows that a substantial part of a member has been lost
as the result of accident.”); Glasgow v. Travis Arts & Crafts Shop,
1 O.I.C. 64, 65 (1919) (“It is manifest that by loss of eye [the
statute] was intended to allow compensation for the loss of sight,
which is the true function of the human eye.”).
VA. CODE § 65.2-518.
§ 65.2-503.
§ 65.2-503(C). Permanent and total disability benefits also may
be awarded for injury for all practical purposes resulting in total
paralysis, as determined by the Commission based on medical
evidence, and for injury to the brain which is so severe as to render the employee permanently unemployable in gainful employment. Id.
See § 65.2-503(B).
§ 65.2-101.
One peculiar “gentleman” pirate hired out a ship to go pirating
and paid wages to his crew rather than offering them a share of
prizes. Bonnet’s enterprises did not fare well and ultimately he
was captured and hanged in Charleston, South Carolina in 1718.
CORDINGLY, supra note 7, at 97.
Johnson is describing the pirate company led by Bartholomew
Roberts. JOHNSON, supra note 35, at 233.
46
47
48
49
50
51
52
53
54
55
56
57
Clearly, pirates suffered injuries. The description of the Jossamee
Chief, Rahmah-Ben-Jabir in Charles Ellms’s THE PIRATES OWN
BOOK, demonstrates this:
Rahmah-ben-Jabir’s figure presented a meagre trunk, with
four lank members, all of them cut and hacked, and pierced
with wounds of sabres, spears and bullets, in every part, to
the number, perhaps of more than twenty different wounds.
He had, besides, a face naturally ferocious and ugly, and now
rendered still more so by several scars there, and by the loss
of one eye. When asked by one of the English gentlemen
present, with a tone of encouragement and familiarity,
whether he could not still dispatch an enemy with his boneless arm, he drew a crooked dagger, or yambeah, from the
girdle round his shirt, and placing his left hand, which was
sound, to support the elbow of the right, which was the one
that was wounded, he grasped the dagger firmly with his
clenched fist, and drew it back ward and forward, twirling it
at the same time, and saying that he desired nothing better
than to have the cutting of as many throats as he could effectually open with his lame hand.
ELLMS, supra note 2, at 54-55.
Id.
Id. at 98.
Monsieur Bertram Ogeron, former governor of Tortuga, inspired
pirates gathered on Hispaniola after his escape from the Spanish
in Puerto Rico: “After having ambarked all the people which the
surgeon had levied at Samana, he made them a speech, exhorting
them to have good courage, and telling them: You may all expect
great spoil and riches from this enterprize and therefore let all fear
and cowardice be set on side. On the contrary, fill your hearts with
courage and valour, for thus you will find yourselves soon satisfied,
of what, at present, bare hopes do promise.” Id. at 177.
Peter T. Leeson, An-arrgh-chy: The Law and Economics of Pirate
Organization, 115 J. POL. ECON. 1049, 1074 (2007), available at
http://www.peterleeson.com/An-arrgh-chy.pdf (last visited June
23, 2014).
Peter T. Leeson, Pirational Choice: The Economics of Infamous
Pirate Practices, 76 J. ECON. BEHAV. & ORG. 497 (manuscript at 5)
(2010), available at
http://www.peterleeson.com/Pirational_Choice.pdf (last visited
June 23, 2014).
See, e.g.,ACHILLE GEERTS, BORRIS A. KORNBLITH & W. JOHN
URMSON, COMPENSATION FOR BODILY HARM: A COMPARATIVE
STUDY 112 (Fernand Nathan 1977), 4 LARSON, supra note 10, at
§ 80.05(4).
Leeson, supra note 69, (manuscript at 10). See also LEESON, supra
note 54.
Chatham Chest , in THE OXFORD COMPANION TO SHIPS AND THE
SEA (2d ed.), available at http://www.oxfordreference.com/view
/10.1093/oi/authority.20110803095604266 (last visited June 23,
2014).
The British National Archives have records for pensions covering
the period of 1653-1799 and 1831-1837. Royal Navy ratings’
pensions, THE NATIONAL ARCHIVES, available at
http://www.nationalarchives.gov.uk/records/research-guides
/royal-navy-rating-pension.htm (last visited June 23, 2014).
Len Barnett, Chatham Chest, BRITISH MARITIME HISTORY,
http://www.barnettmaritime.co.uk/navalchathamchest.htm (last
visited June 23, 2014) (transcription of “smart ticket” for an
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GENERAL INTEREST
58
59
60
injury sustained by Phillip Billet, seaman aboard H.M.S. Victory,
on May 7, 1780).
In his account of the pirate Bartholomew Roberts, Charles Ellms
described the death of pirate captain Davis. Upon Davis’ death,
the pirates convened a council of the “lords.” One addressed the
assembled lords, saying, “that the good of the whole, and the
maintenance of order, demanded a head, but that the proper
authority was deposited in the community at large; so that if one
should be elected who did not act and govern for the general
good, he could be deposed, and another be substituted in his
place.” ELLMS, supra note 2, at 83.
4 LARSON, supra note 10, at § 80.05(4).
1 id. § 1.03(2).
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Virginia Lawyer - Virginia State Bar

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