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VOL . 6 3 / NO. 4 • D EC EMBER 2 0 1 4
VIRGINIA LAWYER REGISTERThe Official Publication of the Virginia State Bar
VO L . 6 3 / NO. 4 • D EC EMBER 2 0 1 4
Virginia LawyerVirginia LawyerThe Official Publication of the Virginia State Bar
VIRGINIA LAWYER REGISTER
Construction LawWind Farms and Worker’s Comp for Pirates
Construction LawWind Farms and Worker’s Comp for Pirates
December 2014Volume 63/ Number 4
The Official Publication of the Virginia State Bar
Virginia Lawyer
Features
GENERAL INTEREST
12 The Battle for Wind Farm Siting in Virginiaby Daniel J. Wisniewski
16 Permanent Partial Disability Under The Black Flag: Workers Compensation in the Great Age of Piracyby Wesley G. Marshall
22 Lawyers Helping Lawyers Remains Important Resourceby Linda McElroy
NoteworthyVSB NEWS
48 Highlights of the October 24, 2014,Virginia State Bar Council Meeting
48 Robinson is Choice for President-elect of the Virginia State Bar
49 Presentation of Chief JusticeHassell’s Portrait
PEOPLE
49 In Memoriam
50 Virginia Law Foundation to InductFellows Class of 2015
50 Local and Specialty Bar Elections
Departments6 Letters to the Editor
23 Law Stories
52 CLE Calendar
61 Professional Notices
62 Classified Ads
63 Infographic
Columns8 President’s Message
51 Law Libraries
CONSTRUCTION LAW & PUBLIC CONTRACTS
Cover: Construction is continuing on the office building in downtown Richmond that will house the office of McGuireWoods LLP. The firm’s current officeis 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.
25 Construction Law in Virginiaby Michael A. Branca
26 Resolving Complex Construction Disputesby Leslie M. Alden, Andrew W. Stephenson, andShannon J. Briglia
30 Searching for Substantial Similarity betweenArchitectural Works in the Fourth Circuitby Sean M. Golden and J. Brandon Sieg
38 Obtaining Green Certification for ExistingBuildings in Virginiaby Robert E. Travers IV and Kelley C. Holland
42 Answering the Questions about Job OrderContractingby Mathew A. Taylor
VIRGINIA LAWYER REGISTER
54 Disciplinary Proceedings
55 Disciplinary Summaries
57 Notices to Members:
VSB Is Seeking Nominations forAwards
VSB Seeks Volunteers forCommittees and Boards
58 Nominations Sought for2015–2016 District CommitteeVacancies
59 President-elect Weiner SeeksMembers for 2015–16 VirginiaState Bar Committees
Access to Legal Services46 Why Should Attorneys Care About
Pro Bono?by Joanna L. Suyes
47 Harrisonburg Attorneys Honoredfor Pro Bono Work
47 Lewis F. Powell, Jr. Pro Bono AwardPresented
VIRGINIA LAWYER | October 2014 | Vol. 63 No. 14 www.vsb.org
Virginia State Bar Staff DirectoryFrequently requested bar contact
information is available online at
www.vsb.org/site/about/bar-staff.
http://www.vsb.org
Editor:Gordon Hickey ([email protected])
Advertising: Linda McElroy
Virginia Lawyer Graphic Design:Caryn B.Persinger ([email protected])
Virginia Lawyer Register Graphic Design:Madonna G. Dersch([email protected])
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
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Virginia LawyerThe Official Publication of the Virginia State Bar
2014–15 OFFICERS
Kevin E. Martingayle, Virginia Beach, PresidentEdward L. Weiner, Fairfax, President-electSharon D. Nelson, Fairfax, Immediate Past PresidentKaren A. Gould, Executive Director and ChiefOperating Officer
EXECUTIVE COMMITTEEKevin E. Martingayle, PresidentEdward L. Weiner, President-electSharon D. Nelson, Immediate Past PresidentAlan S. Anderson, AlexandriaDoris H. Causey, RichmondNancy C. Dickenson, AbingdonTracy A. Giles, RoanokeLeonard C. Heath, Jr., Newport NewsMichael W. Robinson, Tysons CornerMary M. Benzinger, Washington, DC, CLBA ChairEva N. Juncker, Silver Spring, MD, Diversity Conference ChairRenae R. Patrick, Winchester, SLC ChairMaureen E. Danker, Fairfax, YLC President
COUNCIL
1st CircuitNancy G. Parr, Chesapeake
2nd CircuitSteven G. Owen, Virginia BeachJudith L. Rosenblatt, Virginia BeachDaniel M. Schieble, Virginia Beach
3rd CircuitNicholas D. Renninger, Portsmouth
4th CircuitLisa A. Bertini, NorfolkI. Lionel Hancock, III, NorfolkAnn B. Brogan, Norfolk
5th CircuitCarl Phillips “Phil” Ferguson, Suffolk
6th CircuitPeter D. Eliades, Hopewell
7th CircuitLeonard C. Heath, Jr., Newport News
8th CircuitLesa J. Yeatts, Hampton
9th CircuitW. Hunter Old, Williamsburg
10th CircuitCharles H. Crowder, Jr., South Hill
11th CircuitDale W. Pittman, Petersburg
12th CircuitGraham C. Daniels, Chester
13th CircuitPaula S. Beran, RichmondBrian L. Buniva, RichmondDoris Henderson Causey, RichmondChristy E. Kiely, RichmondGeorge W. Marget, III, RichmondEric M. Page, RichmondO. Randolph Rollins, Richmond
14th CircuitThomas A. Edmonds, RichmondJon A. Nichols, Jr., Glen AllenDaniel L. Rosenthal, Richmond
15th CircuitJennifer L. Parrish, Fredericksburg
16th CircuitBruce T. Clark, CulpeperJames M. Hingeley, Jr, Charlottesville
17th CircuitRaymond B. Benzinger, ArlingtonJohn H. Crouch, ArlingtonHarry A. Dennis, III, ArlingtonAdam D. Elfenbein, ArlingtonDavid A. Oblon, Arlington
18th CircuitAlan S. Anderson, AlexandriaFoster S. B. Friedman, AlexandriaCarolyn M. Grimes, Alexandria
19th CircuitJames F. Davis, FairfaxPeter D. Greenspun, FairfaxJoyce M. Henry-Schargorodski, FairfaxSean P. Kelly, FairfaxGary H. Moliken, FairfaxJay B. Myerson, RestonLuis A. Perez, Falls ChurchWilliam B. Porter, FairfaxDennis J. Quinn, ViennaCatherine M. Reese, FairfaxMichael W. Robinson, Tysons CornerMelinda L. VanLowe, FairfaxJames A. Watson, II, FairfaxMichael M. York, Reston
20th CircuitChristine H. Mougin-Boal, LeesburgT. Huntley Thorpe, III, Warrenton
21st CircuitJoan Ziglar, Martinsville
22nd CircuitLee H. Turpin, Chatham
23rd CircuitMark K. Cathey, RoanokeTracy A. Giles, Roanoke
24th CircuitDavid B. Neumeyer, Lynchburg
25th CircuitRoscoe B. Stephenson, III, Covington
26th CircuitW. Andrew Harding, Harrisonburg
27th CircuitRichard L. Chidester, Pearisburg
28th CircuitRoy F. Evans, Jr., Marion
29th CircuitJoseph M. Bowen, Tazewell
30th CircuitWilliam E. Bradshaw, Big Stone Gap
31st CircuitGifford R. Hampshire, Manassas
MEMBERS AT LARGENancy C. Dickenson, AbingdonWilliam E. Glover, FredericksburgMichael HuYoung, RichmondBeverly P. Leatherbury, EastvilleDarrel Tillar Mason, Manakin SabotTodd A. Pilot, AlexandriaSavalle C. Sims, Silver Spring, MDLorrie A. Sinclair, LeesburgA. Benjamin Spencer, Charlottesville
Conference of Local Bar Associations ChairMary M. Benzinger, Washington, DC
Diversity Conference ChairEva N. Juncker, Silver Spring, MD
Senior Lawyers Conference ChairRenae R. Patrick, Winchester
Young Lawyers Conference PresidentMaureen E. Danker, Fairfax
Virginia State Bar
VIRGINIA LAWYER | December 2014 | Vol. 636
On the Burden of BeingNon-White
As the husband and father of personswith mixed ethnic ancestry, I have totake exception to John A. Dezio’s veryinapt reference to those who “sufferfrom . . . the burden of being non-white.” (Letters, Virginia Lawyer Aug.2014). Mr. Dezio apparently means noill will, and in fact quite the contrary,which makes this reference, and a laterone—“even if some are non-white”—all the more dismaying.
There is no “burden” of having anancestry other than Caucasian. Anysuch burden is the work of other person’s prejudices.
Walter M. WeberAnnandale
Access to Justice
I have been a lawyer since 1973. All ofmy legal career has involved the repre-sentation of low income and othermarginalized people. Because of mylong and diverse experience in thework of advocacy for the largely power-less, I was naturally interested in yourOctober issue and its many articlesdealing with the issue of access to jus-tice by those who lack money or areotherwise vulnerable.
Trying to persuade bar membersthat the sole threat to the societally rev-erenced goal of equal justice is a declinein funding, Mark Braley and the LSCpresident have nothing to say abouttheir own specific contributions to adelivery system that arbitrarily set uptwo categories of programs, and arbi-trarily discriminates against clientspurely according to the accident ofgeography.
Prior to 2000, the legal aid pro-grams in Virginia that received fund-ing from the federal Legal Services
Corporation served catchment areasthat were mutually exclusive. Underthat arrangement, all programs servingclients were subject to the same rulesand restrictions. In that year, then LSCPresident John McKay arbitrarilydecided that he wanted to reduce thenumber of programs by consolidatingservice areas. Although some programswere eliminated from LSC funding as aresult of this process (Client Centered,Legal Aid Society of the New RiverValley— the only program headed by a woman), others sought survival as“unrestricted programs” totally fundedby state funding from the Legal ServicesCorporation of Virginia. As a result ofthis twinning process, the “unrestricted”programs could supposedly avoidrestrictions imposed by LSC. Because of the twinning process, instigated andpromoted by Braley in his capacity asLSCV director, persons in certain areasof the commonwealth such as Roanoke,Charlottesville, Richmond, andPetersburg are served by not just onebut two distinct programs having twodistinct managements, boards, and cen-tral offices. Although residents of theareas in question have access to servicesun-encumbered by federal restrictionsand limitations, persons who live in lessfortunate areas of the commonwealthsuch as Southside and SouthwestVirginia have no such luck. Contrary to the inferences that might be drawnfrom the articles, this example ofunequal justice has nothing to do witha decline in funding and everything todo with conscious decisions made byLSCV and others parading their com-mitment to equal justice.
Hugh F. O’DonnellNorton
Letters
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Correction
The Northern Virginia Pro Bono LawCenter was inaccurately described inan October 2014 article. The centerprovides civil legal assistance to low-income and poverty clients in a num-ber of areas including employment,housing, consumer, and family law.Other programs include Wills onWheels, Neighborhood Outreach (pro-viding civil legal advice and referralinformation), and our Nonprofit LegalAssistance Program (assisting localnonprofits with transactional issues).Opportunities are available for differ-ent levels of commitment. Training,materials and support are provided inaddition to malpractice coverage.
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VIRGINIA LAWYER | December 2014 | Vol. 638
THIS EDITION OF Virginia Lawyer isdedicated to construction law, and eventhough construction litigation has longbeen a part of my practice, I am takingthis opportunity to talk about buildingsomething else, a more educated andfunctional world around us.
It is no secret that governmentalfunding of institutions of education atevery level is always challenging andrequires tough choices in local, state,and federal budgets. And yet, the valueof education in our society is some-thing so well-recognized that it isenshrined in the Constitution ofVirginia:
That free government rests, asdoes all progress, upon the broad-est possible diffusion of knowl-edge, and that the Commonwealthshould avail itself of those talentswhich nature has sown so liberallyamong its people by assuring theopportunity for their fullest devel-opment by an effective system ofeducation throughout theCommonwealth.1
This statement is more than merelyaspirational or philosophical. It is arecognition that a properly functioninggovernment depends on an educatedcitizenry.
Only a tiny percentage of us willever hold a public position with directresponsibility for education in Virginia,but that does not mean that we shouldleave the work to others or shy awayfrom accepting responsibility. To thecontrary, attorneys are not only amongthe most highly educated and well-trained members of society, but we areuniquely skilled in words, logic, andproblem-solving. As a parent of twopublic high school students and onemiddle school student, my experiencehas been that educators and adminis-
trators appreciate parental involvementand support, particularly that fromprofessionals such as attorneys.
An example of a terrific successstory is the mentoring program atSeatack Elementary School in VirginiaBeach. Inspired by a thesis on inter-generational mentoring written by hisdaughter who was then a student atPrinceton, now-retired Circuit CourtJudge Thomas Shadrick started theprogram in 2000. Each third grade stu-dent in the school is assigned a mentorwho visits once per week and assistswith math, reading, and general socialdevelopment skills. Seatack wasselected for the program because theschool zone has a disproportionatelyhigh percentage of students with finan-cial, family, and other factors that makethem more at risk for educational fail-ure and legal trouble. The program’svolunteers include many lawyers, aswell as other positive role models suchas law enforcement officers and a vari-ety of retirees with time and wisdom toshare. After more than a decade in exis-tence, the mentor program is thriving,and the feedback from parents, teach-ers, and administrators is very positive.
Another great way for attorneys toparticipate in the education of our citi-zens is hosting paid or unpaid interns.Although most lawyers automaticallythink of law school “summer associ-ates” when they contemplate workingwith students, our firm has workedwith several high school and collegeinterns over the years, and it has beenmutually beneficial and a lot of fun.
One of my favorite educationalactivities has been serving as a volun-teer coach for middle school and highschool teams. As trained organizers,communicators, and competitors,lawyers have a lot to offer students par-ticipating in academic and athletic
competitions, and I have found thatcoaches are grateful for the help.
There are many other ways to getinvolved, including:• volunteering with parent-teacherassociations and similar organiza-tions,• presenting educational videos andparticipating in programs organizedby various voluntary bar associations,• speaking on legal subjects in classesand school assemblies,• qualifying to serve as a hearing officerin school discipline cases,• providing feedback and guidance toteachers, administrators, and publicofficials when you see problems andhave suggestions for improvement.
Whatever your interest or particu-lar talent, there are meaningful andvaluable opportunities to participate inadvancing education, thus benefittingand improving our society.
An inscription on the wall of theJames Madison Memorial Hall at theLibrary of Congress is particularly onpoint:
Learned institutions ought to befavorite objects with every freepeople. They throw that light overthe public mind which is the bestsecurity against crafty & danger-ous encroachments on the publicliberty.2
These words are as true today asthey were when written nearly 200years ago. No group of professionals ismore capable of advancing educationin so many different ways than themembers of the Virginia State Bar. Let’sbuild a better tomorrow by contribut-ing 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)
www.vsb.org
President’s Messageby Kevin E. Martingayle
Our Role in Education
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Farnum, John T.Farrell, John W.Feil, III, Otto F.Feldmann, Mark E.Fletcher, LynnFlora, John W.Foley, Douglas M.Fontham, Michael R.Foster, Dr. RobinFrankel, Kenneth M.Freed, Robert L.Furrow, DavidGaden, Hon. Barbara J.Gangemi, Stephen P.Garczynski, EileenGatewood, Christopher E.Gecker, DanielGeiger, Jeffrey H.Georges, Frances BeltonGibbs, Hon. Angela F.Gibney, Jr., Hon. John A.Gibson, CullenGiles, Malissa L.Giordano, StephenGiragosian, C. ChristopherGlasgow, Ryan A.Glickman, Amanda L.Gluckman, David E.Gogal, David J.Goldstein, CharlesGoodman, Michael L.Gordon, AlexanderGould, Karen A.Gray, Daniel L.Gray, Elizabeth L.Gray, Jr., J. WilliamGray, Robyn S.Green, Ann McGeeGrigg, Virginia H.Grounds, Alison A.Guare, Timothy H.Guggenheim, Seth M.Hager, RonHaley, Leslie A.T.Hall, III, C. WellsHam, Jason J.Han, JohnHansson, Leigh T.Harbert, III, Guy M.Harless, Warren DavidHarper, M. BruceHarrell, Nicole J. Harris, Charles C.Hart, James R.Hastings, Patricia A.Hauser, Jonathan L.Heishman, Anne MarieHenderson, SharonHenenberg, Hon. Karen A.Hetzel, Mindy DickersonHibarger, Thomas J.Hickman, Susan B.Hicks, C. ThomasHiggs, Steven L.Hill, CarltonHill, Christopher G.Hill, Travis Hirsch, Brian M.Hissong, Christine P.Hite, Collin J.Holleran, Michael J.Holm, W. Michael
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Brenda R.Rogan, Christopher L.Rogers, Hon. Gerald F.Rohrstaff, SandraRose, Neil L.Ross, Robert TayloeRothenberg, Elizabeth M.Roush, Hon. JaneRowe, William L. S.
Rust, Dana L.Rust, Jr., John H.Rustioni, MarchellaSaltzburg, Stephen A.Samorajczyk, Stanley J.Sampson, CraigSanderson, William I.Santoro, Hon. Frank J.Sargent, Hon. Pamela M.Satterwhite, Rodney A.Sawicki, Donald S.Sayers, Stephen M.Schenkel, Lisa L.Schmalz, ArthurSchwab, Hon. Arthur J.Schwab, John A.Scott, IV, William C.Selz, Bryan K.Shansab, YamaShapiro, JonathanSharp, Hon. Charles S.Sheridan, Hon. Paul FSibley, III, George P.Simek, John W.Sims, Jr., Hunter W.Sinclair, Professor Kent Skilling, James C.Slaughter, Alexander H.Slaughter, M. BryanSmith, AdamSmith, Adam W.Smith, Michael W.Smith, Ronald E.Smith, Sandra L.Smollar, Paul R.Sommers, MarkSotelo, 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 LynnTavenner, Lynn L.Tennant, J. Christian
Terry, Roy M.Thomas, David W.Thomas, III, Frank A.Thomas, Jr., Colin J. S.Thomson, ChristineThorsen, James B.Tomac, JenniferTomasik, Jr., Timothy S.Trainor, Madeline A.Trapani, Jr., Philip R.Trigiani, Lucia AnnaTrimbath, LeroyTubbs, Nancy R.Tucker, Stefan F.Tully, LisaTurner, Brett R.Turner, Lori H.Tyler, Robert M.Urbanski, Hon. Michael F.Valdivia, Carlos A.Van E. James E.Vann, AntonioVistica, David M.Volenik, Adrienne E.Ware, Jr., Henry N. “Harry” Wasserman, Richard L.Weckstein, Hon. Clifford R.Westermann, Robert S.White, Hon. A. EllenWhite, RonaldWhitescarver, Jr., Furman B.Whitt, BurtWiegard, Spencer M.Wiemken, Christopher J. Williams, Hon. Roger L.Williams, III, C. JamesWilliams, J. PageWilliamson, Jr., Thomas W.Winn, III, Thomas M.Wise, David H.Witmeyer, II, Carl J.Wood, III, Robert C.Wood, R. CraigWooldridge, Jr., Robert W.Wright, Bradley C.Yager, MichaelYates, Thomas D.Yoder, P. MarshallYoung, H. KimberlieZaritsky, Howard M.Zeigler, Brandon H.Zetlin, Edward E. Zinsner, Mary C.Zogby, Michael C.
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12
Some may remember a short-livedeffort in the 2013 General Assembly toeliminate local government siting author-ity over large-scale wind farms.1 Thesponsor pulled the plug on the bill afterit generated a concentrated backlash bythe Virginia Association of Counties, theVirginia Municipal League, and a numberof local governments.
But is the battle for renewable energy facility sit-ing authority over? Not likely. Virginia’s renewableenergy policy is relatively new and unsettled.Since 2006, the General Assembly has been chip-ping away at local siting authority. Local govern-ments should consider implementing reasonablewind facility siting regulations in order to under-cut further movements by the energy industry toreduce local power to regulate.
The Legislative BattleThe keystone of the Virginia Energy Plan, adoptedin 2006, is the Commonwealth Energy Policy(CEP),2 which is a list of progressive energy goals
to be followed by state agencies and local govern-ments. Some of the CEP’s goals include promot-ing the use of renewable energy sources, energyefficient systems and vehicles, biofuels, clean coaltechnologies, improved energy infrastructure,and methane and natural gas.3 The CEP does notdirectly address energy facility siting, and insteadcreates an oblique siting obligation for local governments.4
As proposed by Senator Frank W. Wagner (R-Virginia Beach), however, the original 2006 billwould have recast the energy facility siting regula-tory landscape in Virginia, eliminating local sitingauthority over large-scale wind farm proposals,liquefied natural gas facilities, and nuclear powerplants.5 A utility provider would only have tosatisfy a “one-stop permitting process” at thestate level.6
The 2006 bill made it through the VirginiaSenate with its anti-local-government siting pro-visions intact. But it met resistance in the House’sCommerce and Labor Committee. The new billwould still have taken siting control out of thehands of local governments, but it would haverequired the State Corporation Commission toconsider the “local land use plan” when scoring
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The Battle for Wind FarmSiting in Virginiaby Daniel J. Wisniewski
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 coalbreaker in the world. Photo by Bill Dickinson
GENERAL INTEREST FEATURES | Vol. 63 | December 2014 | VIRGINIA LAWYER 13
potential sites for wind, nuclear, and liquefiednatural gas projects.7 Additionally, the governingbody of any locality where a site was proposed fordevelopment would have had the opportunity,along with property owners, to provide input atan SCC public hearing held in the locality. Thenew bill passed both houses, but GovernorTimothy M. Kaine rewrote SB262, killing theone-stop permitting process and preserving local siting authority.
Even without a uniform siting policy, theregulatory landscape made it economically feasi-ble to pursue renewable energy production inVirginia. Dominion Power, BP Wind Energy, andother private enterprises sought to take advan-tage of Virginia’s renewable energy portfolioincentives passed in 20078 and federal produc-tion incentives extended by Congress in 2009.9
Massive wind turbines were proposed on scenicridgelines in a number of localities, includingHighland County (Red Oak Knob and TamarackRidge), Roanoke County (Poor Mountain),Tazewell County (East River Mountain), andWise County (Black Mountain).
Local concern over the proposed wind farmscaused opposition groups to sprout up along theBlue Ridge. For the residents of rural Virginia,their “heritage” was at stake.10 The large-scalewind farms threatened pristine mountaintopsand various species of bats and birds, includingthe American Bald Eagle. This natural beauty ofwestern Virginia was, and is, a major draw fortourists. More important, it has simply beenhome for generations of Virginians.
Various projects were attempted in the faceof fierce opposition. Dominion tried to developthe East River Mountain project, only to bethwarted by a restrictive ridgeline protection ordinance.11 Highland New Wind Developmentobtained county and SCC approval before beingstalled by an unsuccessful lawsuit filed byHighland County residents in 2006.12 After brieflystarting construction, Highland New Wind wasagain forced to stop after being threatened withnew litigation under the Endangered Species Act.13
Highland New Wind wasn’t the only renew-able energy enterprise struggling at the time. Thefuture of federal incentives for wind energy pro-duction was uncertain in 2011 and 2012, causingprojects to stall across the country.14 For the proponents of wind energy, the law had to bechanged.
In January 2011, Senator Wagner introducedanother bill aimed at reducing local siting author-ity. Senate Bill 862 threatened to override restric-tive local ordinances, including Tazewell County’s
ridgeline protection ordinance. The bill ultimatelypassed into law with only a prospective, limitedeffect.
The law, codified at Virginia Code § 67-103,requires that “[i]n the development of any localordinance addressing the siting of renewableenergy facilities that generate electricity fromwind . . . resources,” local governments must com-ply with the goals of the CEP.15 More specifically,the ordinance must include “reasonable criteria tobe addressed in” siting facilities, such as “provi-sions limiting noise, requiring buffer areas andsetbacks, and addressing generation facilitydecommissioning.”16
The most important provision of the law wasappended at its end, stating that “[a]ny measuresrequired by the ordinance shall be consistent withthe locality’s existing ordinances.” Effectively, thislanguage grandfathered any restrictive local gov-ernment ordinance already on the books, includ-ing those contrary to the goals of the CEP, like aridgeline protection ordinance.
This language was a win for those local gov-ernments that already had restrictive ordinancesin place, but the power companies had gainedground. Localities with restrictive ordinanceswould have to comply with the goals of the CEP ifthey ever wanted to revise any ordinance pertain-ing to the siting of solar or wind facilities. Andlocalities with no such ordinance directly onpoint—most of Virginia—would be obligatedto comply with the CEP if they ever decided toadopt one.
Thus, with the 2011 law, the battle for windenergy siting authority became a waiting game.
To date there are still no large-scale windfarms operational in the commonwealth, makingVirginia part of a shrinking minority of states.
The East River Mountain and Highland NewWind Development projects are on hold, facingvarious obstacles. A handful of other projectsremain stalled or are in early feasibility and envi-ronmental impact phases.
But, the power companies have expressedtheir intent to further pursue wind energy pro-duction in Virginia, and although new federal taxcredits are not certain to be renewed, they wouldcertainly reinvigorate those plans. In any event, as
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”Local concern over the proposed wind farms caused opposition groupsto sprout up along the Blue Ridge.
14
the cost of producing wind energy decreases, itmight just be a matter of time before the windinterests raise the issue of siting again inRichmond.
Finding a “Reasonable” Siting OrdinanceLocalities should consider numerous factors whentaking “discretionary action” and crafting an ordi-nance. They need to include adequate siting pro-visions in their comprehensive plans and zoningordinances to address wind turbines. But becauseof the vague standards of the CEP, localities mighthave difficulty finding the boundaries of theirDillon Rule authority to regulate the siting ofwind turbines.
The few Virginia localities that have addressedthe siting of wind energy systems have generallyregulated them as either large- or small-scale sys-tems. Large-scale wind farms are subject to morestringent siting standards and go through exten-sive public hearings before approval, where, onthe other hand, small-scale systems are sometimesallowed by right.
When crafting an ordinance, a locality shouldobviously consider traditional siting concerns,including structure size, aesthetics, historic andnatural preservation, compatibility with sur-rounding uses, economic development, and envi-ronmental protection.17 Additionally, there are afew provisions recognized in the Virginia Codethat are particularly important—i.e., those “lim-iting noise, requiring buffer areas and setbacks,and addressing generation facility decommission-ing.”18 Enforcement mechanisms should be put inplace to ensure compliance, especially bondingthe decommissioning of large turbines.
These requirements all seem commonenough, but there is a vast gray area in the DillonRule authority of local governments. It is unclearhow restrictive a local government’s siting ordi-nance can be without violating the CEP.Obviously, an express ban on wind turbines of allkinds would violate the CEP. But it is not certainwhether a locality would violate the CEP if itsordinance resulted in an effective ban of wind tur-bines, rather than an express ban.19 An effectiveban would exist if a locality were to create a landuse scheme that made it economically infeasiblefor wind turbines to exist—e.g., by relegatingthem to areas that have lower wind speeds and,therefore, much less useful for energy production.
A scrupulous construction of the common-wealth’s energy objectives and the CEP shedssome light on the problem.20 Virginia Code § 67-103 requires that local siting ordinances “be con-sistent with the provisions of the [CEP],”21 which
includes “promot[ing] the use of, renewableenergy sources.”22 And the express purpose of theCEP is to achieve the commonwealth’s energyobjectives found in Virginia Code § 67-101, whichgenerally seek to ensure an adequate supply ofenergy for the entire commonwealth.
After importing the energy objectives of § 67-101 into the CEP, it is reasonable to con-clude that large-scale wind farms are protected,notwithstanding an ordinance’s affect on small-scale turbines. Unlike isolated small-scale tur-bines, large-scale wind farms are the only windproduction facilities that can materially con-tribute to the commonwealth’s energy supply,satisfying the commonwealth’s energy objectivesin § 67-101.
With that said, the CEP is quite vague. Aplausible argument can be made that a wide-spread distributed energy production network ofsmall-scale wind turbines would satisfy the CEP.For this approach to work, a locality would haveto show that its land use scheme generouslyallows for small-scale wind turbines. This wouldbe difficult to prove. A widespread network ofstand-alone turbines does not currently exist inVirginia, and showing that such a distributednetwork is feasible under a particular land usescheme would be speculative.
Only one reported Virginia case has chal-lenged a local wind facility siting decision. InMiller v. Highland County,23 neighboring propertyowners challenged the issuance of a conditionaluse permit for a large scale wind farm project. Inthe circuit court, the plaintiffs lost their argumentthat the decision to grant the permit was arbitraryand capricious.
In Karr v. Bd. of Supervisors of RoanokeCounty,24 the Roanoke County Board ofSupervisors passed an ordinance setting forth thesiting regulations for large- and small-scale windturbines. The case is still pending before theRoanoke County Circuit Court. The plaintiffs arechallenging the ordinance on many grounds,including arguments that it constitutes a taking ofproperty; is arbitrary, capricious, irrational andunreasonable; is spot zoning; and that the boardexceeded its Dillon Rule authority. They claimthat the ordinance would prohibit neighboringowners from building within newly establishedsetbacks once turbines are constructed—result-ing in a taking. Regarding the Dillon Rule, theyclaim that the ordinance is invalid because it “per-mits the waiver of setback, noise and heightrequirements by special exception.”25
The board pointed out in its demurrer thatthe zoning ordinance does not constitute a taking
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GENERAL INTEREST FEATURES | Vol. 63 | December 2014 | VIRGINIA LAWYER 15
as to neighbors, because it only limits the place-ment of wind turbines and “does not prohibit anyadjoining property owners from . . . developinghis or her property.”26 In responding to theplaintiffs’ Dillon Rule argument, the board citedVirginia Code § 15.2-2286 for clear authority toissue special exceptions. For authority to regulatethe siting of wind turbines, the board cited theCEP and Virginia Code § 67-103, which allows foran ordinance including “provisions limiting noise,requiring buffer areas and setbacks, and address-ing generation facility decommissioning.”27 Theboard has not yet set the demurrer down forargument, and the case remains on the docket.
Even when Karr is finally decided, it probablywill not provide much guidance to localities. It isonly a facial challenge and does not address anactual permit denial. It will, however, (likely)prove that the siting statutes provide a DillonRule defense for localities that decide to take upthe issue.
Otherwise, localities should consider citingVirginia Code § 67-102(12)(D) if sued for allegedviolations of the CEP’s goals when making a windenergy siting decision. That statute provides that“[t]he failure or refusal of any person to recognizethe elements of the [CEP], to act in a mannerconsistent with the [CEP], or to take any otheraction whatsoever, shall not create any right,action, or cause of action or provide standing forany person to challenge the action of the com-monwealth or any of its agencies or political sub-divisions.”28 It is unclear whether this statutewould protect a locality from a challenge that ithas exceeded its Dillon Rule authority, whichcould be viewed as a prior existing “right.” Thissection was not cited in the Roanoke CountyBoard’s demurrer in the Karr case.
A Perilous PropositionVirginia’s renewable energy policy is still in fluxand it is hotly contested. For some localities itmay not be politically or economically feasible forwind production to go forward. For others, windenergy production might work—providing aneconomic and environmental benefit. If localitiesgo forward with wind energy production, theyrisk alienating their residents. If they do not goforward, they risk losing siting authority.
If a locality decides to address wind energyproduction, it can get help from model ordi-nances and other local governments. There are afew excellent examples of reasonable ordinancesavailable. The American Wind EnergyAssociation’s (AWEA) website offers a goodmodel ordinance for small wind turbines that
addresses most of the siting elements mentionedin this article. 29 The AWEA does not have amodel ordinance for large-scale turbines.Rockingham County’s ordinance would be asolid starting point, addressing small- and large-scale systems. Some localities, like FranklinCounty, define a third, “utility scale,” type of tur-bine, which encompasses large-scale wind farmsoperated by utility companies. The FranklinCounty ordinance separates smaller projects intosmall- and large-scale systems. These ordinancescan be used as a template to help craft an ordi-nance for a locality’s particular needs.
The battle for wind farm siting in Virginia isnot over. The CEP is vague, and localities shouldbe litigation-minded when crafting a siting ordi-nance. At this point the localities are in the dri-ver’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 substituteno. 062777832-H1).
8 H.B. 3068, 2007 H., Reg. Sess. (Va. 2007). Most ofthese incentives were repealed in 2013. See S.B.1259, 2013 S., Reg. Sess. (Va. 2013).
9 American Recovery and Reinvestment Tax Act of2009, Pub. L. No. 111-5, 123 Stat. 115, 319–20(codified as amended in scattered sections ofU.S.C.).
10 Pamela Podger, “In a Corner of Virginia’s‘Switzerland,’ a Division Over a Planned WindFarm,” 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.
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GENERAL INTEREST
Wind Farm Siting continued on page 41
Daniel J. Wisniewski is an assistant countyattorney for Stafford County. He represents thecounty in litigation and advises in the areas ofutilities and public works. Before joining thecounty, he was an associate with the land usefirm Greehan, Taves, Pandak & Stoner PLLC.
16
More than 200 years before modernworkers’ compensation laws, pirates on
the high seas adopted their own form of
permanent partial disability compensa-
tion. In considering modern permanent
partial disability, it is worthwhile to
examine the roots of the plans adopted
by pirates.
We like to believe there is a little pirate in all of us.Fiction writers, Walt Disney, and Hollywoodimbued us with romantic notions of piraticaladventures: sailing the high seas, visiting desertedislands, and searching for buried treasure. Thereality of pirate life was a far cry from literary fic-tion. Besides being illegal1 and contrary to anyconcept of a fair and just society,2 it was filthy,dangerous, and unpredictable. Yet, our fascination
has remained strong for generations. CharlesEllms, in The Pirates Own Book: AuthenticNarratives of the Most Celebrated Sea Robbers,wrote in 1837:
In the mind of the mariner, there is a super-stitious horror connected with the name ofPirate; and there are few subjects that interestand excite the curiosity of mankind generally,more than the desperate exploits, foul doings,and diabolical career of these monsters inhuman form.3
Our image of unforgettable pirates includesunfortunate victims of dismemberment. InRobert Louis Stevenson’s Treasure Island, LongJohn Silver was missing a leg and walked withcrutches. J. M. Barrie’s Peter Pan introduced usto the handless and aptly named Captain Hook.4
We associate pirates with individuals who, as aresult of their dangerous travails, have sufferedphysical loss.
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Permanent Partial Disability Under The Black Flag:
Workers Compensation in the Great Age of Piracyby Wesley G. Marshall
illustration by Madonna Dersch
GENERAL INTEREST FEATURES | Vol. 63 | December 2014 | VIRGINIA LAWYER 17
Because piracy presented numerous risks,pirate crews considered matters of social insur-ance. Pirates faced injury and dismemberment,the same risks addressed in modern workers’compensation systems. A pirate crew in the 1700swould have understood the United States’Supreme Court’s reasoning in Ward & Gow v.Krinsky centuries later:
[W]hen men are employed in hazardousoccupations for gain, it is within the power ofthe State to charge the pecuniary losses aris-ing from disabling or fatal personal injury, tosome extent at least, against the industry afterthe manner of casualty insurance, instead ofallowing them to rest where they may hap-pen to fall—upon the particular injuredemployees or their dependents; and to thisend to require that the employer . . . shallmake or secure to be made such compensa-tion as reasonably may be prescribed, to bepaid in the event of the injury or death ofone of those employed, instead of permittingthe entire risk to be assumed by the individu-als immediately affected.5
Permanent Partial DisabilityMost modern workers’ compensation laws incor-porate benefits for permanent partial disability.Injured workers who suffer the loss or loss of useof various parts of the body are entitled to a one-time series of compensation payments. Paymentis intended to compensate an injured worker forthe incremental loss of earning capacity he willsuffer in the future on account of permanent loss.Many states employ “scheduled loss” for perma-nent partial disability, where the loss or loss of useof listed body parts provides a defined amount ofcompensation.
Permanent partial disability reflects accep-tance of the notion of social insurance.Compensated injuries either actually or pre-sumptively produce disability and presumablyaffect earning power.6 Permanent partial disabil-ity affords injured workers a sum that, whenadded to their residual earning ability, will enablethem to exist without being an unreasonableburden on society.7
Permanent partial disability presents advan-tages: predictability through well-defined benefitsand economy. This benefits labor, management,and government through avoidance of litigation.Early 20th century policymakers concluded incases such as dismemberment, the gravity of theimpairment supported a conclusive presumptionthat actual wage loss would sooner or later result.“[T]he conspicuousness of the loss guaranteedthat awards could be made with no controversywhatsoever.”8 To this day, permanent partial dis-ability provides a fair measure of compensation toapproximate, albeit arbitrarily, a presumed futurewage loss in a manner designed to avoid disagree-ment and litigation through the use of well-defined statutory benefit provisions.
Workers Compensation and Permanent PartialDisability in Virginia9
Virginia’s Workmen’s Compensation Act, adoptedon March 21, 1918,10 became effective January 1,1919.11 The Virginia Workers’ CompensationCommission now administers this law.12
Virginia compensates injured employees forpermanent partial disability and is a scheduledloss state. Title 65.2, section 503 of the VirginiaCode grants compensation for the loss of speci-fied parts of the body, e.g., an arm, a leg, a hand, afoot, an eye, through payment for a designatednumber of weeks at the weekly employee’s grosspay averaged over the year preceding an acci-dent.13 Loss of use is equated with actual loss,14
and compensation may be awarded for propor-tionate loss or loss of use.15 An award of perma-nent partial disability benefits is proper once theinjured employee has reached maximum medicalimprovement.16
Permanent Partial Disability in the Great Age of PiracyMany pirates adopted a unique informal form ofgovernment in which permanent partial disabilitycompensation appears to have enjoyed a centralrole. In sharp contrast to the highly-regimentednaval and admiralty systems, pirate crewsemployed the power of one man-one vote, auniquely democratic form of government.17
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GENERAL INTEREST
”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.
18
This was codified in the articles drawn up bythe pirate crew.18
Pirate crews considered their votes, agree-ments, and articles as their form of water-bornegovernment. “The first Thing they had now to do,was to chuse Officers, draw up Articles, and settletheir little Commonwealth, to prevent Disputesand Ranglings afterwards . . . When this was done,one of them writ out the following Articles . . .and all swore to ’em upon a Hatchet for want ofa Bible.”19
An early account of pirate articles occurs inBuccaneers of America, written by AlexanderExquemelin20 and first published in English in1684.21 Exquemelin departed Tortuga in 1666 ona French West India Company ship and laterjoined Caribbean buccaneers as their surgeon.22
He recorded the pirates first convened a councilto determine how to obtain the supplies for theiradventure. After these were secured, often liber-ated from Spanish livestock keepers, the piratesreturned to their ship and convened a secondcouncil where:
[T]hey agree upon certain articles, which areput in writing, by way of bond or obligation,which every one is bound to observe, and allof them, or the chief, set their hands to it.Herein they specify, and set down very dis-tinctly, what sums of money each particularperson ought to have for that voyage, thefund of all the payments being the commonstock of what is gotten by the whole expedi-tion; for otherwise it is the same law, amongthese people, as with other Pirates, No prey,no pay.23
The pirate articles provided rules for theship, including how shares of plunder were to bedivided, and punishments for wrongdoing.Exquemelin wrote:
Lastly they stipulate in writing what recom-pense or reward each one ought to have, thatis 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 sixhundred pieces of eight …; for the loss of aleft arm five hundred pieces of eight …; for aright leg five hundred pieces of eight …; forthe left leg four hundred pieces of eight … ;for an eye one hundred pieces of eight … ;for a finger of the hand the same reward asfor the eye. All which sums of money, as Ihave said before, are taken out of the capitalsum or common stock of what is got bytheir piracy.24
Exquemelin attributes this account indirectlyto François l’Olonnais, a Frenchman who endedup in Tortuga, “the common place of refuge of allsorts of wickedness, and the seminary, as it were,of all manner of Pirates and thieves.”25 L’Olonnaisventured out with a massive pirate fleet26 andcaptured Gibraltar in Northwest Venezuela. Theforce continued to Maracaibo,27 where they collected a ransom on threat of sacking the city. They then returned to Isla de la Vaca inHispaniola, where they unloaded their ill-gottencargo. According to Exquemelin, the bounty wasdivided and each pirate received his share inmoney, silk, linen, and other commodities. Henoted, “those who had been wounded in thisexpedition received their part before all the rest,”consisting of the, “recompense . . . for the loss oftheir limbs which many sustained.”28
Although Exquemelin did not describe mostpirate wounds in detail, he treated a Portuguesebuccaneer who was bitten by a crocodile. Afterinfection set in, he amputated the leg. The piratedied while Exquemelin was preparing to fit himwith a wooden leg.29
Another account from the adventures ofCaptain John Phillips cried out for some form ofcompensation, if not for loss of a limb, then forthe suffering endured as a result of it. After cap-turing a “snow,”30 three of Phillips’ crew decidedto double cross their captain. Phillips skirmishedwith them:
Wherein Wood was kill’d and Taylorwounded in his Leg; upon which the othertwo surrender’d. There was no Surgeonaboard, and therefore it was advis’d, upon alearned Consultation, that Phillips’s31 Legshould be cut off; but who should performthe Operation was the Dispute; at length theCarpenter was appointed, as the most properMan: Upon which, he fetch’d up the biggestSaw, and taking the Limb under his Arm, fellto Work, and separated it from the Body ofthe Patient, in as little Time as he could havecut a Deal Board in two; after that he heatedhis Ax red hot in the Fire, and cauteriz’d theWound, but not with so much Art as he per-form’d the other Part, for he so burnt hisFlesh distant from the Place of Amputation,that it had like to have mortify’d; howevernature perform’d a Cure at last without anyother Affiance.32
John Phillips captained the Revenge. Its arti-cles stated “If any Man shall lose a Joint in timeof an Engagement, shall have 400 Pieces of Eight;if a limb, 800.”33
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Prior to a 1670 voyage, Captain HenryMorgan’s pirates agreed:
As to the recompences and rewards, theywere regulated in this voyage much higherthan was expressed in the first part of thisbook. Thus, for the loss of both legs, theyassigned one thousand five hundred pieces ofeight or fifteen slaves, the choice being left tothe election of the party; for the loss of bothhands, one thousand eight hundred pieces ofeight or eighteen slaves; for one leg, whetherthe right or the left, six hundred pieces ofeight or six slaves; for a hand, as much as fora leg; and for the loss of an eye, one hundredpieces of eight or one slave. Lastly, unto himthat in any battle should signalize himself,either by entering the first any castle, or tak-ing down the Spanish colours and setting upthe English, they constituted fifty pieces ofeight for a reward. In the head of these arti-cles it was stipulated that all these extraordi-nary salaries, recompences and rewardsshould be paid out of the first spoil or pur-chase they should take, according as everyone should then occur to be either rewardedor paid.34
Articles attributed to Captain BartholomewRoberts were adopted in 1721 and provided:
ARTICLE IX – No Man to talk of breakingup their Way of Living, till each had shared a1,000 l. If in order to this, any Man shouldlose a Limb, or become a Cripple in theirService, he was to have 800 Dollars, out ofthe publick stock, and for lesser Hurts, pro-portionately.35
In 1721 George Lowther sailed from theThames as second mate on the Royal AfricanCompany’s Gambia Cattle. On arriving in Africa,Lowther later instigated a mutiny. The crew refit-ted the ship by making it “flush fore and aft.”They “prepared black Colours,” renamed the shipDelivery, and drew up new Articles. Theseincluded:
He that shall have the Misfortune to lose aLimb, in Time of Engagement, shall havethe sum of one hundred and fifty PoundsSterling, and remain with the Company aslong as he shall think fit.36
Pirate PPD Versus Modern PPD—aComparison and ContrastThis article does not attempt to compare thefinancial value of pirate permanent partial dis-
ability directly to that under Virginia’s modernday scheme.37 But examining both systemsreveals striking similarities.
Proportionate Loss Compensation:Bartholomew Roberts’s pirate articles containedmeasures for particular losses and prescribedcompensation for, “lesser hurts proportionately.”The current Virginia statute, Va. Code § 65.2-503provides, “for the permanent partial loss or loss ofuse of a member, compensation may be propor-tionately awarded.” The similarity, separated byalmost 200 years of adoption,38 is uncanny.
Extraordinary Compensation for MultipleScheduled Losses:Henry Morgan’s crew found theloss of two body parts deserved extraordinarycompensation as compared to combining the twolosses. For the loss of a hand or a leg, the piratesawarded 600 pieces of eight. But for the loss ofboth hands, proportionately higher compensationof 1,800 pieces of eight, or a 900 piece of eightsingle hand equivalent, was awarded. For the lossof both legs, 1,500 pieces of eight, or a 750 pieceof eight single leg equivalent, was granted.
Virginia Code § 65.2-503 provides extraordi-nary compensation, consisting of lifetime weeklywage benefits, for permanent and total disability.Most indemnity compensation is payable only fora maximum of 500 weeks.39 Permanent partialdisability awards are granted for shorter timeperiods.40 Permanent and total disability benefits,for the injured employee’s lifetime, are awardedfor, “loss of both hands, both arms, both feet,both legs, both eyes, or any two thereof in thesame accident.”41
Measuring Units of Compensation forPermanent Partial Disability: In modern perma-nent partial disability, the loss is “scheduled” bystatute to be paid for a specified number ofweeks. The weekly payment amount is defined bya statutory formula. In Virginia, for instance, thisis 66 2/3 percent of the average weekly wage,42
calculated by averaging gross earnings for thefifty-two weeks preceding the injury.43 The num-ber of weeks paid for a loss is arbitrarily assignedby statute, but the amount of a weekly payment isdirectly related to the wages an injured workerearned before the physical loss or loss of use. Bycontrast, pirates typically44 were paid on a sharesystem. The pirate articles granted injury com-pensation in arbitrary fixed amounts.
The Purposes of Permanent Partial DisabilityCompensationIn modern workers’ compensation, permanentpartial disability serves the goals of recognizing
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GENERAL INTEREST
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and compensating for presumed loss of earningcapacity for the loss or loss of use of certainparts of the body and fixing the compensationpayment to avoid the uncertainties and costsassociated with litigation. In the pirates’ uniquedemocracies, a “roguish Common-wealth”45 ofcriminals, it is worthwhile to examine the rootsin the pirate world of permanent partial disabil-ity compensation.
Always Ready for Combat:Why did thepirates adopt permanent partial disability? Thisprobably was not out of concern for the long-term care and financial security of disabledpirates. Was it the need to ensure full and compe-tent participation in armed confrontation? Takinga ship by force presented the risk of injury ordeath. Success was dependent upon full participa-tion and cooperation. All of the pirates hadsigned on to an openly illegal adventure. Was theguarantee of financial compensation for injurydesigned to encourage individuals to fight asstrongly as they could? Guaranteed benefits coulddiscourage cowardice resulting from the threat ofphysical injury and its attendant hazard to earn-ing capacity.46
Historical accounts validate the need toensure bravery among the pirate crew, both fromwithin and without their number. Exquemelindescribed a crew who vowed “to behave them-selves courageously in this attempt [of seizinganother ship], without the least fear or faint-ing.”47 But to make sure cowardice would notconfound the operation, “they gave orders to thesurgeon of the boat to bore a hole in the sidesthereof, to the intent that, their own vessel sink-ing under them, they might be compelled toattack more vigorously, and more hastily to runaboard the great ship.”48
The prospect of financial gain encouragedbravery and undermined cowardice. Sir HenryMorgan proposed an assault on Portobello to asmall band of pirates. When the pirates suggestedthey were too few to succeed, Morgan replied;If our number is small, our hearts are great. Andthe fewer persons we are, the more union andbetter shares we shall have in the spoil. Hereupon,being stimulated with the ambition of those vastriches they promised themselves from their goodsuccess, they unanimously concluded to ventureupon that design.49
Exquemelin recounted other similar rallies tocourage through appeals to greed.50
Professor Peter T. Leeson has written exten-sively on how economic incentives shaped pirateconduct. He argues that provisions for injury
compensation in pirate articles created incentivesfor crew member productivity and preventedshirking. Social insurance for pirates encouragedeveryone to participate without fear of uncom-pensated injury.51
Leeson also suggests that pirates were betteroff developing a reputation for aggressivenesswithout actually having to engage in battle.Adopting a rational choice analysis, he argues thatif pirate victims were multiple and could observea pirate’s past actions, pirates could maximizetheir long-run payoff by building a reputation formercilessness toward resistors that deterred futuremerchantmen from resisting.52
Familiarity with Other CompensationSchemes:Were the pirates’ permanent partial dis-ability schemes derived from their exposure tomilitary disability compensation? Belgium’sindustrial accident schedule was closely associatedwith comparable compensation for war wounds,as was also France’s original schedule.53 Someresearchers have suggested that most pirates wereex-merchant or Royal Navy sailors.54
The Royal Navy had a pension system forinjured sailors dating back to at least 1590. SirFrancis Drake, Sir John Hawkins, and LordHoward of Effingham created a benevolent fundfor the English Navy. Seamen paid sixpence amonth for the benefit of the wounded and wid-ows of those killed in action. The money was sup-posed to be collected and stored in a large ironchest, the “Chatham Chest,” which became apseudonym for the fund. The Chatham Chest ispreserved at the Historic Dockyard in Chatham,England. It was fitted with five locks, the keys towhich were held by different individuals who metmonthly to open it and consider pensioners’ peti-tions.55 A pensioner was required to obtain a,“smart ticket,” a certificate declaring the part ofthe body injured, the time when, and the mannerhow the wound was received.56 The ticket wasfilled out, signed, and delivered to the injuredsailor as soon as he was “cured” onboard orbefore he was set from the ship for cure, “and notafterwards.”57
Pirates probably knew about these pensionsystems. The pirates were engaged in an illegalenterprise, and therefore when they disbanded togo their separate ways, they likely did not want afixed address for benefit payments. That would betoo easy a target for the recovery of ill-gottengain. So the scheme for a fixed injury pensionapproximated the Navy system while preservinganonymity.
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Paying a Price to Maintain Order: The pirates’permanent partial disability compensation pro-gram may have limited dissension among thepirate crew. Dissension could lead to mutiny, andre-codifying the social contract.58 In an unstablecriminal enterprise taking place on the unpre-dictable high seas, the compensation schemelikely played a role in quelling dissension in thosecircumstances where economic gain and a senseof justice conflicted. It is economically rational togive the “wounded warrior” pirate a greater formof compensation from a prize, given the personalcost to him. Many of the other pirate code provi-sions were aimed at maintaining order, so thecompensation scheme was a natural complement.
ConclusionMost of the pirate flags ended up at the bottom ofthe sea. Many pirates were hanged or left to rot inthe gibbet, a metal cage where the body was dis-played in harbor view as a reminder to anyonewith thoughts of going-a-pirating. The stories ofthe pirates live on in transcripts of their trials andin writers’ imaginations. Evidence of their moti-vation is sparse.
There are uncanny similarities between 20thcentury workers’ compensation laws grantingpermanent partial disability and the democraticarticles adopted by the pirates of the early eigh-teenth-century. But there is a disconnect betweenthe purpose of modern workers’ compensationand that adopted by the pirates.
In a November 15, 1912, speech, ProfessorFrancis H. Bohlen of the University ofPennsylvania Law School discussed the dualpurpose of a permanent partial disability provi-sion in Pennsylvania’s proposed workers’ com-pensation law:
The determining consideration was that byrendering the amount definite litigationwould be prevented and certainty attained,since whenever a mutilation of this sortoccurred there could be no question as tothe extent of disability of the sufferer or theamount payable to him.59
In his workers’ compensation treatiseProfessor Larson stated:
The ultimate social philosophy behind com-pensation liability is belief in the wisdom ofproviding, in the most efficient, most digni-fied, and most certain form, financial andmedical benefits for the victims of work-con-nected injuries which an enlightened com-munity would feel obliged to provide in any
case in some less satisfactory form, and ofallocating the burden of these payments tothe most appropriate source of payment, theconsumer of the product.60
The pirates’ compensation scheme may havebeen efficient, dignified, and “most certain,” interms of financial recovery. But it is questionablewhether they were an, “enlightened community,”who felt obliged to pay compensation. In no waydid the cost of pirate physical impairments ulti-mately fall on the consumer of the product. All ofthe cost of the enterprise fell on victims uncon-nected to the pirates’ social contract. The pirates’workers’ compensation scheme was dressed up asa moral principle in the midst of a highlyimmoral venture. However, the pirates’ need fororder and to display a willingness to fight mayhave paralleled the modern need to avoid litiga-tion in the promotion of certainty and efficiency.
The opinions expressed in this article are comments,“concerning the law, the legal system, the adminis-tration of justice and non-legal subjects,” in accor-dance with Canon 4(B) of the Canons of JudicialConduct for the State of Virginia, are personal, andthey are not official opinions of the author in hisrole as a judge, the Virginia Workers’ CompensationCommission, or any other court or governmentalagency. The author extends gratitude to staff attor-neys Brian Larson, Wanda Dotson, and Diane F.Dusseau for their assistance in researching and edit-ing this article.
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Wesley G. Marshall was appointed as commissioner at theVirginia Workers’ Compensation Commission in May 2012.Previously, he was in private law practice for more thantwenty-three years, mostly representing plaintiffs in workers’compensation, employment, and other civil litigation. He lit-igated thousands of cases before the Workers’ CompensationCommission, the Court of Appeals of Virginia, the SupremeCourt of Virginia, and other federal, state, and administrativecourts and agencies. He is a member of the SouthernAssociation of Workers’ Compensation Administrators, theNational Association of Workers’ Compensation Judiciary,the Lewis F. Powell, Jr. American Inn of Court, and otherbench and bar organizations.
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GENERAL INTEREST
Lawyers Helping Lawyers RemainsImportant Resourceby Linda McElroy
Professional impairment counseling organizations such asLawyers Helping Lawyers (LHL) continue to be an importantresource for lawyers dealing with substance or mental healthissues, according to the results of a recent substance abuse,mental health, and other negative behaviors survey of Virginiaattorneys.
The LHL study, funded by ALPS and conducted by theCollege of William and Mary, was patterned after a similar 2008survey. The most recent survey included revisions to some ofthe questions, and the inclusion of new questions regardingInternet, gambling, and sexual behaviors.
The purpose of the more recent survey was threefold:1) to assess perceptions of legal professionals about thescope of substance abuse, mental health problems, andprocess addictions that included internet, gambling, andsexual behaviors among lawyers; 2) to assess the extent towhich substance abuse and mental health problems impactmembers of the legal profession in Virginia; and 3) toassess awareness of services provided by LHL.
Nearly 20,000 active Virginia State Bar members (64 per-cent of active members) received the survey via e-mail, and ofthose 14.3 percent responded.
Results of the survey were varied. While some outcomessuch as the percentage of mental health issues and Internet orgambling addictions were surprising, others were somewhatexpected, such as respondents’ general knowledge of LHL andalcohol use and its affect on professional versus personal lives.
Generally, Virginia lawyers are aware of LHL and are com-fortable to very comfortable in contacting the organization ifthey need assistance. Out of the 77 percent of those aware ofLHL, nearly 90 percent of them are aware of the organization’sstrict confidentiality policy.
In terms of alcohol and other substance abuse issues,researchers summarized that in addition to alcohol being theclear drug of choice for this target group, the existence of cur-rent or previous psychoactive drug-related problems amonglawyers (9 percent) is slightly higher than the general U.S. pop-ulation. It was also discovered that substance abuse takes agreater toll on family/personal lives before professional activi-ties. The positive news is that two-thirds of those with theseissues have actually received help—also at a higher rate thanthe general U.S. population.
The percentage of lawyers with mental health-related prob-lems appears to be higher than those with alcohol and otherdrugs concerns. Twenty percent of participants reported thatmental health challenges have affected either their professionaland/or personal lives. And after combining the results of theanswers surrounding mental health and substance abuse, nearly
one-third of Virginia lawyers have at least one of these issues intheir lives.
In an effort to document positive or disturbing trends inbehaviors, researchers also compared results between the 2008and 2014 surveys. • Twenty-five percent more attorneys who had a problem withalcohol and other drugs received help in 2014 than in 2008. • There was a 4 percent increase in awareness of LHL from the2008 to 2014, though there was a minimal decrease in thecomfort level in contacting LHL if a lawyer needed informa-tion on substance abuse, was concerned about a colleague’ssubstance abuse or personally needed help.
• There was an increase in comfort level related to contactingLHL for help regarding depression or general mental health. • Nearly .5 percent more lawyers said they have had too muchto drink at work-related functions.
The biggest difference between the 2008 and the 2014survey itself is the inclusion of questions about Internet, sex-ual and gambling addictive behaviors. Researchers noted thatwhile addictive behaviors are not currently listed in theDiagnostic and Statistical Manual of Mental Disorders FifthEdition (DSM-5), it is important to identify these behaviorsbefore they become problematic.
Internet usage was the number one behavior of concern.More than 50 percent of lawyers answered that “personalInternet usage occupied more time than it should.” Just over 6percent said that their Internet usage has affected their personalor 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 theseactions, with 7 percent of lawyers scoring in the potentiallyproblematic range.
Lastly, gambling addictions garnered a 2 percent tally. Thisgroup was asked to report on “having a gambling problem, arecognized need to cut back, annoyance with others’ percep-tions, significant negative consequences or engagement of gam-bling behaviors as a form of escape.” Only .7 percent of lawyersindicated a potentially problematic issue.
Based upon the results of the 2014 survey and noted per-centage changes between the 2008 and 2014 surveys, researchersconclude that professional organizations such as LHL are neces-sary in assisting Virginia bar members with substance abuseand problematic behavioral issues.
LHL’s mission is to “provide assistance to attorneys, judges,law students, bar applicants and others in the legal professionand their families with problems related to mental health andsubstance abuse.”
Every lawyer has a story set aside for gatherings of friends or relatives. It’s a special taleabout a legal battle won, or lost. Or about an amusing encounter with a judge. Or astory with a surprising twist. Maybe it’s a story that will bring a knowing smile, orshake of the head, from a colleague.
Pick your best Law Story, your incredible adventure, your unusual courtroom oreven boardroom escapade, and send it to us. Keep them short—about400 words or less—and send them in.
E-mail your stories to us at [email protected].
Vol. 63 | December 2014 | VIRGINIA LAWYER 23
Law Stories
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How I Spent My Fifty-FirstBirthdayby Paul G. Taylor
Litigating a contested child abuse caseon my fifty-first birthday was the lastthing I wanted. Cold beer and steamedcrabs was what I had in mind.
New parents Jose and ValerieCortez were not native English speak-ers. Their baby girl, Carmen, was lessthan 1 year old.
During a well-baby visit, Carmenwas found to have blood on the brain, asubdural hematoma. The parents, inno-cent as they were, could not give a “satis-factory” explanation. The languagebarrier did not help either.
The health care providers weremandatory reporters of suspected childabuse. Once that call was made, it wasoff to the races.
The social workers were new col-lege graduates with their first jobs—misguided, improperly supervised “do-gooders.” Without a meaningful investi-gation, the Cortez parents were chargedwith child abuse. Carmen was takenaway from them.
The court-appointed guardian adlitem was a retired, rubber stamp, fed-eral prosecutor, one of those peoplewho believe the investigating and prose-cuting authorities never make a mis-take. No independent investigation wasconducted.
When I spoke with Mr. and Mrs.Cortez, they had that deer-in-the head-lights look. I put myself in their position:strangers in a strange land, unfamiliarwith the language, customs and law, no
friends, no one to turn to, underdogs,their baby girl in state custody, theirhearts and home broken. I agreed to takethe case. There was something, just. . .something that I could not ignore.
I dove into the research on pediatricsubdural hematomas, and the so-calledshaken baby syndrome. I spoke withexperts in the field of pediatric neurol-ogy. I searched for witnesses and theanswer to Carmen’s condition. I chasedevery lead I could imagine. I spenthours, nights, and weekends for which Iknew I would never be compensated.Thank God Carmen was fine physically.But would she have her family?
As both the Cortezes worked, Ilearned they often left Carmen in thecare of a babysitter. This babysitter,unbeknownst to the Cortezes, was analcohol abuser. She tended to get frus-trated and physical with fussy babies.When the babysitter knew I was askingquestions, she tried to cover her tracks. Ialerted the prosecutor and guardian adlitem to my discoveries. They did noth-ing. I was on my own.
It was a two-day, fully contested,disposition hearing. The judge, toughbut fair, began to read his decision fromthe bench. As the interpreter translated,the young mother began to sob and cry.She would soon hold her daughter inher arms and tuck her into her own bedthat night.
When I heard those sobs andthought of the magnitude of what hadhappened, I melted. This world-wearyand hardened lawyer began to cry, too.All of the angst of the preceding
months disappeared. You could haveknocked me over with a feather.
It was one of the most meaningfuland validating experiences of my life. Ifelt humility, power, and so many otherthings at the same time. It was unforget-table and life changing. It was as ifCarmen and I were re-born that day.Carmen, to her family; I to my life andprofession.
By the way, the slightly delayed coldbeer and steamed crabs tasted just likethe first time, only a little bit sweeter.
Fight the good fight.
Paul G. Taylor has been a smalltown general litigation practi-tioner since 1991. A graduate ofthe T.C. Williams School of Lawat the University of Richmond,he is admitted to practice inWashington, DC, Virginia, andWest Virginia. He is a memberof the Million Dollar AdvocatesForum.
The Service Monkeyby R. Bruce Long
I was in my chambers in GloucesterCounty General District Court onemorning getting ready to begin court. My clerk, Barbara, came back to mychambers and said we have a problem atthe front door of the courthouse and Ineed your guidance. I replied, “go on,”Barbara proceeded to tell me that therewas a woman at the front door with whatshe claimed was a “service monkey.”
I told Barbara to go to the frontdoor and determine what function thelady claimed was performed by the
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VIRGINIA LAWYER | December 2014 | Vol. 6324
monkey. Barbara returned a few minuteslater and said the lady, who was carryingan ADA card, said she was prone topanic attacks and the monkey couldsense such an attack and warn the lady. Iwas a little skeptical but told Barbara totell the bailiff to let her and the monkeycome into the courtroom.
A few minutes later, I went on thebench to begin court. This lady wasseated in the courtroom. She was accom-panied by a small gray monkey maybefifteen inches tall, wearing a hot pinktutu and a hot pink collar, with a hotpink leash.
The lady was there for a speedingticket. The courtroom was full of (laugh-ing quietly) defendants, attorneys, andpolice officers. I decided it best to callher case first so she could be on her way.She approached the bench, with themonkey (whose name was Daisy) jump-ing from one shoulder to the other andmaking monkey sounds.
The lady had a clean driving recordso I put her on six months’ probationand told her to take the on-line defensivedriving course. I then informed her thatshe had to go to Kinkos to take the testand she asked if she could take Daisy. Itold her she would have to work that outwith Kinkos.
After she departed, one of the attor-neys said they were all waiting to see ifthe monkey would have any motions.
I must confess that it took a lot ofself-control to keep a straight face. At thenext break I called my wife and told herof the event. We were both having agood laugh at that point. I told her, “Ilove this job and they pay me to do it.”
Several weeks later I found out frommy colleague in York County that thesame lady, and monkey, had been in hiscourtroom. The lady was charged withshoplifting from the local Walmart. Asyou can guess, her defense was “I didn’ttake the item, Daisy did.”
The Honorable R. Bruce Longretired from the 9th JudicialCircuit bench at the end of2013. He previously sat inGeneral District Court foreleven years.
Duck to the Rescueby William J. Kopcsak
I went recently to the Claybrook BaptistChurch Cemetery in Weems to visit thegrave of someone I knew long ago. Noone was in the church office or on theproperty so it took a while to find hismarker tucked away behind many oth-ers. The tombstone reads: LANCASTERCOUNTY SHERIFF’S DEPT —SERGEANT DONALD C. BENSON —JUNE 3, 1947–NOVEMBER 5, 1981. Ibelieve he is looking down and I hope herecalls our adventure together in the fallof 1975.
October nights in Virginia can bedownright creepy and that night, closeto Halloween, was no different. I was onmy way home from court in Norfolk.Dark clouds blocked all moonlight anda mist rose from the earth. It was easyto imagine ghosts and goblins, especiallysince it was just after midnight. I hadgiven up flashing the car lights fromhigh to low and low to high. Visibilitythrough the mist seemed better on lowbeams. Moisture was forming on thecar hood. I set the windshield bladeson a delayed sweep. There I was, on an isolated two lane road just about to cross the Norris Bridge over theRappahannock River. No signs of life.My headlights were the only lights inthe area. I hadn’t seen another vehiclefor fifteen minutes.
I knew that after crossing the bridgeit would be a short drive to my homewhere I looked forward to a good night’ssleep. Then I spotted it. Twenty feet fromthe road’s edge, on the passenger side ofmy car, was what appeared to be a body.Was I seeing things? It was late. I wastired. 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. Icould barely see what looked like a man,face down on the ground. Another u-turn and, now heading back towards thebridge, I drove slower. Definitely it was aman with short cropped hair, dressed inwhite and covered in blood. I loweredthe window on the passenger side thenblew the horn. Nothing. No sound ormovement. Had he been hit by a car?The body was probably too far off theroad for that to have occurred. Had hebeen mugged and were his assailantsnearby? Both were possibilities. Had he
been murdered elsewhere and his bodydumped along this country road? Thatwas also possible.
This was a crime scene. I made thequick decision to drive to the toll boothon the Lancaster County side of thebridge. The toll collector with his tele-phone would be there. And, this was thetime of night when state troopers orother police officers often congregatedat the toll booth.
Ignoring the speed limit, I spedover the two-mile-long bridge. On theLancaster County side, I felt relief seeinga county police car and a deputy I recog-nized—Donald Benson. Most peoplecalled him “Duck.” I had spoken withhim many times at the courthouse andin the sheriff ’s office. When I told himwhat I had just seen, his face tightenedwith concern. “Come on, Bill. Get in mycar and show me where the body is.” Hesped back over the bridge.
“Duck, slow down, we’re almostthere.” He lowered his window and drovemore slowly. “Good Lord,” he said whenhe spotted the body. He drove past thescene, made a u-turn, and stopped. Hereached in front of me, pulled a revolverout of the glove compartment, andhanded it to me. “I don’t know whatwe’ll find but you need to be ready. It’sloaded. All you have to do is pull thetrigger.” I thought, pull the trigger! Whatam 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 towardsthe body. The mist seemed thicker. Iwondered, where is the full moon whenwe need it? The cruiser slowed. Duck gotout and said to stand by the passengerdoor. His pistol was drawn and with theflashlight in his other hand, he sweptthe area behind and around the body.“Hello, hello, are you all right?” Nomovement or sound. The body wasprostrate on the ground, head and shirtsmeared in blood. Duck approached it,“Hello, are you all right?” Still no move-ment or response. I stood by the car,holding the pistol, my darting eyessearching the area, but keeping a watchon Duck.
Step by step in the damp grass, heapproached the body. Suddenly it madea loud gurgling sound. Duck halted. The
Law Stories
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CONSTRUCTION LAW AND PUBLIC CONTRACTS | Vol. 63 | December 2014 | VIRGINIA LAWYER 25
The Construction and Public Contracts Law Section is pleasedto have this opportunity to provide our colleagues with fourtimely and disparate articles that vividly illustrate the breadthof our practice area. The chair of our publications committee,Randall H. Wintory, worked hard to identify articles that wouldboth showcase members of our section and more importantlydeliver useful content to our fellow members of the Virginiabar. We hope you enjoy these articles and find them helpful inyour own area of practice.
Resolving Complex Construction Disputes, penned by theHonorable Leslie Alden, Shannon Briglia, and Andrew Stephenson,is a must-read for any lawyer whose practice includes the reso-lution of disputes, regardless of practice area. Our authors bringdecades of experience to resolving complex construction cases,with perspectives from the bench and the bar. No doubt thereare takeaways in this article for all practitioners.
Sean Golden and Brandon Sieg provide a very interestingarticle on the interplay between copyright protection and archi-tectural works. In Searching for Substantial Similarity betweenArchitectural Works in the Fourth Circuit, the authors addressthe conflict between divergent opinions from district courtswithin the Fourth Circuit with respect to the substantial simi-larity inquiry as it relates to architectural works. As a result ofthis split among courts regarding how much protection is pro-vided to an architect by the copyright, neither architects norowners have the certainty they need in conducting their respec-tive businesses.
Obtaining Green Certification for Existing Buildings inVirginia is from Robert Travers and Kelley Holland. This articleaddresses the very real issue presented by existing structuresthat are anything but “green.” The U.S. Green Building Councildoes not view increased construction of new green buildings asa practical solution to the glut of energy inefficient commercialfloorspace, because it takes up to eighty years to offset the envi-ronmental impact of demolishing an old building and con-structing a new, more efficient one. Accordingly, “going green”requires a focus on existing not just new structures.
Matthew Taylor rounds out the quartet with AnsweringQuestions About Job Order Contracting, which examines aunique method that public bodies may use to procure con-struction services. Job order contracting is a method of procur-
ing construction services through an indefinite delivery, indefi-nite quantity term contract, using task orders as needed forindividual projects, where the task order price is based on abook of pre-established unit prices. The purpose is to allowpublic agencies to be more nimble and efficient in their pur-chasing of construction services.
Our section prides itself on the many events and programsoffered to our members. First and foremost is the section’sflagship two-day CLE given at the Boar’s Head Resort inCharlottesville 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 atVirginia Beach. In addition, there are multiple CLEs, webinars,and networking events sponsored by the section throughout theyear, most of which are free, and a few that require only a nom-inal registration fee. By way of example, and for the third yearin a row, members of the section and their counterparts fromthe Maryland State Bar met for a joint reception and mixer insuburban Maryland.
We invite each of you to test drive one of our programs.Indeed, we invite each of you to join our section, take advan-tage of our many benefits, and spend time with a collegial andvibrant group of lawyers. Please feel free to contact me if youhave any questions about our section or its offerings.
www.vsb.org
Michael A. Branca focuses his practice on construction and government con-tract law. His practice includes the representation of general and prime con-tractors, construction managers, and other members of the construction andgovernment contract industries. Mr. Branca provides wide ranging services tohis clients, including the review and negotiation of contract documents, con-tract administration support and guidance, and the preparation and litiga-tion of bid protests and claims. He is the chair of the board of governors ofthe Construction and Public Contract Law Section of the Virginia State Bar.
by Michael A. Branca
photo by Bill Dickinson
Construction Law in VirginiaConstruction Law in Virginia
26
The keys to resolving complex con-struction disputes are identifying the crit-
ical drivers that define them, selecting the
best procedural option, and deploying
the leverage factors available to the par-
ties. Timing also is often a critical com-
ponent 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’ alterna-
tive dispute resolution (ADR) effort.
The Nature of the Project Will Dictate theOptions for Resolving the DisputeAs a result of statutory directives, ADR is availableto resolve federal, state, and local constructiondisputes.1 Any procedure, or combination of pro-cedures, that is used to resolve issues in contro-
versy, including but not limited to conciliation,facilitation, mediation, fact-finding, mini-trials,arbitration, and use of ombuds, are permitted forfederal contracts, but only non-binding forms ofADR are available to resolve disputes on Virginiastate and local construction contracts.2 While theconcept of non-binding arbitration might seemalien, or futile, as the losing party could simplyignore the award, a non-binding award has beenheld to meet the purpose of ADR and results inmany settlements by “reorient[ing] the partiestoward settlement in a less costly and less con-frontational setting than litigation.”3
Express, written agreements to arbitrate inprivate construction contracts are uniformlyenforced in Virginia,4 thus, parties are free toinclude or exclude binding or non-binding ADRin their private construction contracts. Variousassociations within the construction industryhave developed standard forms of agreement thatare widely utilized by many private (and occa-sionally public) parties and which include ADRprovisions, sometimes as a condition precedent tomore formal dispute resolution.5 In Virginia, gen-erally speaking, any express provision mutuallyrequiring the parties to engage in ADR will beenforceable.
Practical Alternatives for Resolving Disputes: AParade of Resolution TechniquesThere is no “one size fits all” method for resolvingdisputes, rather, the characteristics of the dispute,the timing of when the dispute arises and when itmight ideally be resolved, the pressure pointsavailable to the parties, and the willingness of theparties to participate in ADR, among many otherfactors, will dictate the ultimate choice of ADR.Parties should also refrain from thinking lineally– some disputes will require more than one formof ADR to reach a settlement and often theinvolvement in one form of ADR will lay thegroundwork for success during the second (orthird) type of ADR.
www.vsb.orgVIRGINIA LAWYER | December 2014 | Vol. 63 | CONSTRUCTION LAW AND PUBLIC CONTRACTS
Resolving Complex Construction Disputesby Leslie M. Alden, Andrew W. Stephenson, and Shannon J. Briglia
illustration by Madonna Dersch
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Informal ProceedingsSolving problems at the lowest possible level inthe management structure is the most cost effec-tive and efficient method. Often called disputeprevention, many construction contracts requirethe parties’ project representatives to meet in aneffort to resolve the conflict. The next step is oftensubmission of the dispute to the architect for adecision, which either party can then appeal byinvoking the next level of resolution. Some con-tracts also require higher-level decision makers tomeet and negotiate the dispute before the nextstep, mediation, is invoked.
Partnering, a formal commitment betweenthe parties to a contract to work collaboratively toachieve specific business objectives, requiringestablishment of trust and mutual understandingof the other party’s objectives and values, is com-monly used on federal and large or mega-pro-jects.6 A partnering team that includesrepresentatives of all stakeholders and a desig-nated project neutral facilitate discussions. A part-nering agreement is developed and signed todemonstrate commitment to the ideal, and fol-low-up workshops are periodically conducted toensure that the parties remain committed.
Dispute Resolution Boards (or Panels)involve the agreement of parties to designate apanel of neutrals to hear and resolve disputes.Typically consisting of three people, the DRBmeets regularly during the course of the project tohear and issue non-binding recommendationsresolving disputes. If the parties agree with therecommendation, appropriate contract modifica-tions can be issued incorporating the panel’s rec-ommendation.
If the informal negotiations and submissionof the dispute to the architect or the DRB prove
ineffective, the most common next step is submis-sion of the dispute to mediation. The hallmark ofmediation is conciliation, so most mediation pro-visions leave the parties considerable flexibility informulating the mediation. The benefits of medi-ation are obvious; mediation allows the parties tocontrol their risks and their costs. Key compo-nents to ensure a successful mediation include7:• Sending participants with the authority to settle
• Participating in good faith, with the intent tosettle• Selecting the right mediator• Educating the mediator in advance of the medi-ation session, including alerting the mediator tounique pressure points or problems• Avoiding inflammatory or controversial presen-tations• Being candid with the mediator• The presence of expert witnesses is not alwaysconducive to settlement• Substantiating claims• Owning up to mistakes• Memorializing any settlement in writing beforeending the mediation sessionThe parties may structure the process as a
traditional “grind it out” mediation where claimsare submitted in writing and the mediator playsshuttle diplomacy, working the angles until a res-olution is reached. Or the parties may decide inadvance to conduct their negotiations through adifferent structure:8
• Baseball mediation. Each side submits its finalposition in writing and the mediator chooseswhich to use.
• Golf Mediation. The mediator writes downhis/her number and the parties submit theirpositions. The parties agree to settle at the offerclosest to the mediator’s number.
• Pocket Golf mediation. The mediator developsa number and submits it privately and sepa-rately to each party. The parties may accept orreject the number and the mediator only revealswhether there is a settlement.
• High-low Mediation. The parties establish afloor and ceiling for the negotiations, and themediator works to resolve the dispute withinthe settlement range.
Formal ADR ProceduresIf informal ADR mechanisms are not effective,more formal ADR variants are available, includingoptions developed in response to complaints thatarbitration is becoming more and more like liti-gation, with its attendant costs and delays.Traditional arbitration includes presentation ofthe case to an arbitrator or panel of arbitratorsjointly selected by the parties. The parties may opt
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”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.”
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for presentations akin to a trial or a modified orsummary presentation via affidavit, or depositionextract. Arbitration awards are often final and notappealable, except in very limited circumstances.Frequently the parties are not entitled to discov-ery unless they mutually agree or the arbitratororders it.
In response to concerns that traditional arbi-tration is not cost- or time-efficient, variants havebeen developed:• Fixed Time and Cost Procedures. The partiesagree to conduct their arbitration in accordancewith predetermined timetables and limitations,so they can predict in terms of total time andcost the time to complete the arbitration. • Early Neutral Case Evaluation. Parties requestand mutually select a neutral to provide an earlycase evaluation in advance of arbitration.• Web or Cloud Based Arbitration. The partiessubmit their case entirely online, no face to faceevaluation session is conducted and as few asthree and as many as five arbitrators selected bythe parties provide an evaluation of the case. Alternatives to traditional arbitration include
baseball arbitration, baseball arbitration in thedark, and other variants. In baseball arbitration,each party submits a proposed monetary awardto the arbitrator. After the conclusion of the hear-ing, the arbitrator chooses one award from thesubmitted awards without modification. Baseballarbitration strategically forces each party to offera reasonable proposal to the arbitrator with thehope that his or her award will be selected.Baseball arbitration is sometimes referred to as aneither/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 thearbitrator. In day baseball arbitration, the arbitra-tor is aware of the award and chooses the awardthat he or she considers most closely approachesthe arbitrator’s evaluation of the case. Night base-ball arbitration involves submission by the partiesof a proposed award that is kept confidential fromthe arbitrator until the issuance of the arbitrationdecision. The award that is mathematically closestto the arbitrator’s award becomes the bindingaward.10
Closely similar to baseball arbitration is high-low or bracketed arbitration where the partiesagree in advance to the parameters within whichthe arbitrator may render his or her award. If theaward is lower than the pre-set low, the defendantwill pay the agreed-upon low figure; if the awardis higher than the pre-set high, the plaintiff will
accept the agreed-upon high; if the award is inbetween, the parties agree to be bound by thearbitrator’s figure. The high and low figures mayor may not be revealed to the arbitrator inadvance of the proceedings.11
An option that is used frequently in interna-tional arbitrations is the joint expert meeting andreport. Opposing experts meet, either in theabsence of or with observation of the parties, anddiscuss the issues, producing a report identifyingthe issues they agree upon and those they do notagree upon. The testimony of the experts at thearbitration or trial is narrowed to the disputedissues, thus reducing the hearing time and remov-ing the undisputed issues from the arbitrator orjudge’s deliberation.12
Another option to reduce arbitration hearingtime is for the opposing experts to present theirtestimony concurrently. Concurrent expert panelsor expert witness panels involve the experts pro-viding a brief summary of their key findings andopinions. Each expert then comments on theopinions and answers of the other expert andthey may ask questions of each other. The attor-neys take turns questioning or cross-examiningeach expert witness and the panel may ask theexperts questions.
ADR During LitigationThe opportunities to resolve the case short of trialdo not simply end with the filing of a traditionallawsuit. Options for resolving a case before trialinclude:• Federal Rule of Civil Procedure 16 – SettlementConference • Federal Rule of Civil Procedure 68 — Offer ofJudgment
• Use of summary judgment and requests foradmission to reach resolution prior to trial.Resolving the “low hanging fruit” issues can nar-row the dispute and promote resolution.• Judge pro tempore. The parties appoint a mutu-ally acceptable person (sitting or retired judge,attorney, or other person) to serve as judge protem13 for their matter. The judge pro tem hasthe same authority as a circuit court judge tomanage the proceedings, resolve discovery dis-putes, hear and resolve motions, conduct settle-ment conferences, and preside at trial. • Summary jury proceeding. Non-binding sum-mary jury proceedings are available in both fed-eral14 and state15 court and may effectivelyprovide the parties an assessment of their case ata fraction of the cost and time of a full trial.
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Identification and Use of Pressure Points Realand Perceived to Reach ResolutionThe key to achieving settlement may lie in identi-fying and effectively deploying appropriate pres-sure points:• Third party influence. Involving a third-partyknown and respected by parties to a dispute canfoster settlement dialogue with both sides. • Political influence. This could include formallobbying efforts, or less formal direct appeals topoliticians for intervention.• “Rally the Subs.” Presenting a uniform front bysubcontractors can be an effective strategy forresolving claims against the owner. • Promise of future work or additional work canbe an effective settlement tool. • Publicity and Reputation. Negative publicity, orthe prospect of negative publicity, can motivatedecision-makers to resolve disputes quickly.This pressure point carries the substantial riskof escalating the dispute or causing the adverseparty to respond in-kind.
• Insurance. Claims often can be structured in amanner to trigger insurance coverage.
• Lender. Notifying the construction lender ofdisputes and claims can result in the lenderasserting oversight and control over the projectand/or the claims process.
• Surety. Sureties add another decision-makerand possible deep-pocket.
• Constituencies and End Users. The ultimateusers of a facility may exert pressure to com-plete a stalled or problem project, particularly ifthe end users are sympathetic or well organized.
• Anti-Deficiency Acts — State and Federal. Anti-deficiency act compliance may impact theamount or structure of a settlement.
• Mechanic’s Lien. Mechanic’s liens can offer sub-stantial leverage for general contractors andsubcontractors against an owner.
When Is the Best Time to Resolve aConstruction Dispute?All complex construction disputes are expensiveto litigate. This fact creates a strong incentive tosettle earlier in the process, rather than later.There are different schools of thought on whethersettlement before you discover all the facts willachieve the best result for the client, or whether itis better to discern all the strengths and weak-nesses before you attempt resolution.16
Sometimes parties are reluctant to assert theirbest facts and arguments early in the processbecause they worry the opponent will have toomuch time to develop a good rebuttal.17 At early
stages in the litigation, parties may, either in a dis-play of ignorance or arrogance, be overconfidentin their assessment of their own case, creating anartificial impediment to settlement. Of course,this same overconfidence can also develop overtime, as the parties build their internal assurancein the merits of their case. Determining theamount of information that is necessary to reacha rational settlement is difficult, and must be bal-anced with the costs of obtaining that informa-tion.
Other factors impact the right time to settle acase. How the parties have accounted financiallyfor a claim or dispute may dictate when to settlethe matter. For example, a contractor may be ableto take advantage of a tax write-off or write-downin a period of heightened profitability. Owners ofconstruction projects may similarly have oppor-tunities to refinance their projects, creating at apoint in time remote from the first eruption ofthe dispute additional sources of cash to resolvethe dispute. Offering new or additional work aspart of a settlement package may also affect thesuccess of the ADR.
ConclusionThe cost and uncertainty of proceeding to trial ina construction case are strong drivers in favor ofADR, where the parties can regain some measureof control over the costs and the outcome. Thereare a myriad of ADR options available to partiesin the construction industry and an industry-wide support of the concept, leaving the methodof reaching resolution open to the parties’ creativ-ity and determination.
This article is an adaptation of a more detailedpaper presented by the authors at the VirginiaState Bar Construction and Public Contracts Lawseminar on November 6, 2014.
Endnotes:1 See, Administrative Dispute Resolution Act
(ADRA), 5 U.S.C. §§ 571 to 584 and VA. CODEANN. § 2.2-4300 et seq.
2 VA. CODE ANN. § 2.2-4366; see also, VA. CODEANN. § 15.2-1404 (1997)(permitting governingbody of a county, city or town to enter into anagreement to arbitrate an existing dispute, or enterinto 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 Statesv. Bankers Ins. Co.,245 F.3d 315 (4th Cir.
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To succeed in a claim of copyrightinfringement, a plaintiff must prove that
“the defendant copied the original ele-
ments” 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 defen-
dant actually copied the plaintiff ’s work, a
plaintiff can create a presumption of copy-
ing, by presenting indirect evidence of
copying. This is done by establishing that
the defendant had access to the copy-
righted work, and that the defendant’s
work is “substantially similar” to the plain-
tiff ’s protected material.2
This substantial similarity inquiry has proven dif-ficult for many courts, particularly in the contextof claims for the infringement of architecturalworks. The difficulties include determining whattest to apply in analyzing whether there is sub-stantial similarity, and determining what portionsof the plaintiff ’s work to consider when evaluat-ing similarity. After all, the plaintiff must provethat the defendant copied original elements of hiscopyrighted architectural work,3 meaning thatnot all elements of an architectural design areentitled to copyright protection (and, so, someelements can be copied without infringing).
Some courts have found the scope of protec-tion for architectural works to be limited, or“thin,” and have set the bar high for what consti-tutes substantial similarity. These courts performan “analytical dissection” of non-protected ele-ments from protected ones, and “filter” the non-protectable elements from the plaintiff ’s work.Ultimately, these courts reach the conclusion thatthere is not much left deserving of copyright pro-tection. Other courts put less emphasis on “filter-ing out” unprotectable elements, and haveaddressed the substantial similarity question byconsidering the “total concept and feel” of the twoworks as wholes. As a result, there is a split amongcourts regarding how much protection is pro-vided to an architect by the copyright in itsdesigns.
There was not a great deal of clarity forarchitects and their attorneys practicing withinthe Fourth Circuit, but a group of recent districtcourt decisions appeared to set the trend towardmore limited protection. Then a ruling by theFourth Circuit specified a different test, but thistest leaves several questions regarding the sub-stantial similarity inquiry unanswered, and it evenraises some new ones.
This article addresses the conflict betweenthe opposing views on the substantial similarityinquiry with regard to architectural works andhow some recent decisions from courts within the
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Searching for Substantial Similarity betweenArchitectural Works in the Fourth Circuitby Sean M. Golden and J. Brandon Sieg
illustration by Madonna Dersch
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Fourth Circuit have addressed the inquiry. It alsoevaluates how the Fourth Circuit’s most recentdecision regarding substantial similarity mightaffect copyright protection of architectural worksin the future.
Copyright Protection for Architectural WorksThe United States Copyright Act identifies severalcategories of “works of authorship” that may beafforded copyright protection.4 In 1990, Congresspassed the Architectural Works CopyrightProtection Act (AWCPA), which added “architec-tural works” to the list.5 Architectural works aredefined as:
the design of a building as embodied in anytangible medium of expression, including abuilding, architectural plans, or drawings.The work includes the overall form as well asthe arrangement and composition of spacesand elements in the design, but does notinclude individual standard features.6
Unfortunately, this definition of architecturalworks, as well as the legislative history of theAWCPA, lends itself to multiple interpretations ofwhat should and should not be considered whenevaluating substantial similarity.
For example, the definition specificallyexcludes “individual standard features,” which theAWCPA’s legislative history suggests include“common windows, doors, and other staplebuilding components.”7 But, Congress also clari-fied that “[t]he phrase ‘arrangement and compo-sition of spaces and elements’ recognizes that …creativity in architecture frequently takes the formof a selection, coordination, or arrangement of[unprotectable] elements into an original, [pro-tectable] whole.”8 Because the “substantial simi-larity” inquiry only contemplates whether thedefendant’s work is substantially similar to theprotected material in the plaintiff ’s work,9 thequestion arises whether and to what extent “indi-vidual standard features” are to be considered inthe “substantial similarity” analysis. Are “individ-ual standard features” to be totally excluded,resulting in a substantial similarity inquiryfocused solely on the plaintiff ’s “non-standard”expressions in the work? Or should “individualstandard features” be considered as part of theinquiry, because “creativity in architecture fre-quently takes the form of a selection, coordina-tion, or arrangement of [unprotectable] elementsinto an original, [protectable] whole”?10 The textarguably lends itself to either interpretation.11
Elements of a work may be unprotectable forreasons besides being “individual standard fea-
tures.” Courts have also grappled with the sameconflict when considering how to treat elementsof an architectural design that are functionallyrequired,12 that represent established architecturalstyles,13 or that are driven by efficiency,14 marketdemands,15 or building codes.16
Two Ends of the SpectrumGenerally speaking, courts tend to gravitate toone of two ends of a spectrum on this issue. Onone end, some courts emphasize the “dissection”and “filtering out” of unprotectable elementsfrom the work. Those courts consider similarityonly with regard to the elements remaining afterthe filtration process, and tend to require a higherlevel of similarity between two works to findinfringement.17
On the other end, some courts place morefocus on the directive that “creativity in architec-ture frequently takes the form of a selection, coor-dination, or arrangement of [unprotectable]elements into an original, [protectable] whole.”18
These courts generally avoid “dissection” of pro-tectable versus non-protectable elements, andconsider whether there is substantial similaritybetween two works based on their “total conceptand feel.”19
An example of the first approach is theEleventh Circuit’s decision in IntervestConstruction, Inc. v. Canterbury Estate Homes,Inc.,20 which involved the design of a home. TheEleventh Circuit reasoned that because the pro-tection afforded to architectural works relies onarrangement and composition of unprotectableelements (such as staple building components),architectural works are analogous to “compila-tions.”21 A “compilation” is defined under theCopyright Act as “a work formed by the collectionand assembling of preexisting materials or of datathat are selected, coordinated, or arranged in sucha way that the resulting work as a whole consti-tutes an original work of authorship.”22
Compilations are only entitled to a “thin” level ofcopyright protection.23
The Intervest court held that the substantialsimilarity inquiry “must be accomplished at thelevel of protected expression,”24 meaning thecourt was required “to separate original expres-sion from the non-original elements.”25 The courtexplained that because copyright protection incompilations is “thin,” the substantial similarityinquiry must be “narrowed.”26 The EleventhCircuit endorsed the district court’s dissection ofthe plaintiff ’s work to compare only the pro-tectable elements of its design, and affirmed sum-mary judgment for the defendant.
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The second approach was applied by the U.S.District Court for the Southern District of NewYork in Shine v. Childs.27 The plaintiff in Shinedesigned a skyscraper as part of his architectureschool coursework, and he presented this designto a jury of professionals that included the defen-dant.28 Several years later, the defendant unveileda skyscraper design for the “Freedom Tower” atthe site of the World Trade Center in New YorkCity that was “strikingly similar” to the plaintiff ’searlier design.29
The court rejected the “dissection” approachadvocated by the defendant, stating “[i]f the courtfollowed defendants’ suggestion and analyzed theelements of plaintiff ’s works separately, compar-ing only those elements that are copyrightable tothose present in the designs of the FreedomTower, … ‘we might have to decide that there canbe no originality in a painting because all colorsof paint have been used somewhere in thepast.’”30 In comparing the works, the courtapplied the “total concept and feel test,”31 whichinvolves comparison of the works side by sidefrom a layperson’s perspective.32
The distinction between the two ends of thespectrum can be summed up by how unpro-tectable elements are treated in the substantialsimilarity inquiry. The Intervest end of the spec-trum excludes those elements completely fromthe analysis. The Shine end of the spectrumacknowledges that those elements alone do notwarrant protection, but considers those unpro-tectable elements when examining the works as awhole.
AWCPA Cases in the Fourth CircuitUntil the past few years, there had been littleanalysis of substantial similarity in the context ofthe AWCPA within the Fourth Circuit, and it wasunclear which way on the spectrum courts withinthis circuit would lean.
In 2010, the U.S. District Court for theEastern District of Virginia began a trend towardmore limited protection for copyrights in archi-tectural works. Harvester, Inc. v. Rule Joy Trammell+ Rubio, LLC was a copyright infringement actionconcerning the renovation and adaptive reuse ofthe John Marshall Hotel in Richmond. The suitwas brought by the project’s initial architectagainst the architect who completed the renova-tion/adaptive-reuse design.33
In ruling on the defendant’s motion for sum-mary judgment, the court did not get to the sub-stantial similarity analysis.34 But, the court didspecifically endorse the Eleventh Circuit’s analogy
of architectural works to compilations fromIntervest. The court also agreed that architecturalworks were only to be afforded “thin” copyrightprotection.35 The opinion noted that the protec-tion afforded by the plaintiff ’s copyright was lim-ited because the design was constrained by “(1)market demands, (2) building codes …, (3) func-tional demands, (4) the existing building’s physi-cal characteristics, and (5) the goal of ‘restoring’the Hotel to the old … design.”36
The following year, the Western District ofNorth Carolina considered an AWCPA infringe-ment claim. In Building Graphics, Inc. v. LennarCorp., an architect sued a builder and anotherarchitect for allegedly copying the plaintiff ’s sin-gle-family home designs.37 The court initiallyappeared to straddle the line between both endsof the substantial similarity spectrum: the courtstated that unprotectable elements must be “fil-ter[ed] out,” but it also indicated that the “sub-stantial similarity determination requirescomparison not only of the works’ individual ele-ments in isolation, but also their ‘overall look andfeel.’”38 Ultimately, the court agreed that theplaintiff ’s architectural works should be treated as“compilations,” and their copyrights “thin.”39 Thislead the court to conclude that no reasonable jurycould find the defendants’ works to be substan-tially similar to the plaintiff ’s works.40
The Eastern District of Virginia again tackledsubstantial similarity in the architectural contextin Charles W. Ross Builder, Inc. v. Olsen FineHomes Building, LLC (Ross Builder I) in 2011.41
Ross Builder I concerned a single-family residencein the Ford’s Colony subdivision ofWilliamsburg.42 The court described at length themyriad of influences that “dictat[ed] nearly everydesign element of the two houses at issue in thelitigation,” including the fact that both houseswere designed in the traditional Georgian archi-tecture style, and that both were located withinFord’s Colony and subject to its many buildingrestrictions.43
As in Harvester and Building Graphics, thecourt concluded that architectural works are enti-tled to only “thin” copyright protection.44 Thecourt went even further, though, and found thatbecause plaintiff ’s design was modeled after a tra-ditional style and borrowed “heavily … from thepublic domain,” the design lacked significant orig-inality.45 Therefore, a heightened showing of sub-stantial similarity was required.46
In performing the substantial similarityanalysis, the court applied the “more discerningobserver” test, which requires the court to “distin-
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guish between protectable and unprotectable ele-ments, put the unprotectable elements out ofmind, and determine whether the remainders ofeach work” are substantially similar.47 The courtultimately concluded that, “once the non-pro-tectable features of [the plaintiff ’s design] areremoved from consideration, there are few simi-larities left to be considered and thus little origi-nal work that Defendant could haveimpermissibly copied.”48 This holding shows thecourt leaning heavily toward the “dissection” and“filtration” side of the spectrum.49 The courtgranted the defendants’ motions for summaryjudgment.
Until Ross Builder I,50 the Fourth Circuit hadnot squarely addressed the substantial similarityinquiry in the context of the AWCPA.51 Thatchanged in November 2012, when the FourthCircuit decided the plaintiff ’s appeal of the RossBuilder I decision.
The Fourth Circuit rejected the districtcourt’s application of a heightened substantialsimilarity standard.52 Instead, the court instructedthat the two-part substantial similarity test it hadpreviously prescribed in other contexts shouldalso be applied in AWCPA cases53:
under this two-part test, to prove substantialsimilarity, a plaintiff must show that theworks are (1) “extrinsically similar becausethey contain substantially similar ideas thatare subject to copyright protection,” and (2)“intrinsically similar in the sense that theyexpress those ideas in a substantially similarmanner from the perspective of the intendedaudience of the work.”54
The court explained that “extrinsic similarity” isan objective inquiry, which requires considerationof “external criteria of substantial similarities inboth ideas and expression.”55 In contrast, “intrin-sic similarity” is a subjective inquiry, requiringconsideration of the “total concept and feel of theworks.”56 The intrinsic similarity prong askswhether the “ordinary observer, unless he set outto detect the disparities, would be disposed tooverlook them, and regard [the] aesthetic appeal[of the two works] as the same.”57
According to the Fourth Circuit, the districtcourt had erred by applying the “more discerningobserver” test instead of this two-pronged test.58
The court found that the district court had devi-ated from an essential principle of the “intrinsic”prong by engaging in “analytic dissection” of pro-tected and unprotected elements.59 In this sense,the Fourth Circuit seemed to reject (at least, in
part) the Intervest side of the substantial similarityspectrum, which focused on the “filtration” ofunprotectable elements. This is confirmed by thecourt’s endorsement of the “total concept andfeel” approach, applied in decisions on the otherend of the spectrum, such as Shine.
But the Fourth Circuit did not reject theIntervest approach entirely. After all, the court’stest also has the “extrinsic” prong. “Extrinsic simi-larity” requires an objective analysis, which, byimplication at least, involves segregating protectedelements from non-protected elements.60 In addi-tion, although the Fourth Circuit did not decidewhether the plaintiff ’s work should only be enti-tled to “thin” protection, the court did instructthe district court to consider the design con-straints imposed by the elements of Georgianarchitecture and the requirements of the Ford’sColony restrictive covenants within the frame-work of the two-prong test.61 And, the court didreference with approval the analogy of architec-tural works to compilations, an analogy champi-oned by Intervest and similar decisions.62
The Substantial Similarity Inquiry in AWCPACases Post-Ross BuilderThe Fourth Circuit’s two-prong test can best beunderstood as a hybrid of Intervest’s dissectionapproach and Shine’s “total concept and feel”approach. Instead of pushing in one direction orthe other along the Intervest/Shine spectrum, theFourth Circuit’s test requires courts to considersubstantial similarity from both approaches. Butthe Fourth Circuit’s opinion in Ross Builder alsopresents new questions.
The Fourth Circuit refused to discusswhether architectural works are afforded only“thin” protection.63 This issue is further muddiedby uncertainty as to what “thin” copyright actu-ally means: is it merely shorthand for the uncon-troversial principle that copyright does not extendto “data,” but only the selection and arrangementof that “data”? Or does it mean, as some courtshave suggested, that a plaintiff must demonstratea higher level of similarity?64 On one hand, theFourth Circuit seemed to reject the application ofa higher standard for substantial similarity byprescribing an alternate test. On the other hand,the court did approve of the analogy comparingarchitectural works to compilations,65 and theSupreme Court has held that the copyright pro-tection for compilations is “thin.”66
Another question is whether a plaintiff mustestablish both extrinsic and intrinsic similarity toprove infringement. The immediate answer would
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appear to be “yes,” because the Fourth Circuitarticulated its test in the conjunctive.67 If theplaintiff is truly required to prove both, though,the intrinsic similarity test would have little prac-tical significance because lack of extrinsic similar-ity (shown through dissection of the work) woulddefeat a claim for infringement.68 Furthermore,the Fourth Circuit’s opinion does not mentionany failure by the district court to perform theextrinsic similarity analysis correctly. Indeed, thedistrict court’s substantial similarity inquiry inRoss Builder I was essentially nothing but anextrinsic similarity analysis.69 And if the plaintiffin Ross Builder I had been required to prove bothextrinsic and intrinsic similarity, wouldn’t the dis-trict court’s error in not applying the two-parttest have been harmless, because the plaintiff hadnot proven extrinsic similarity?70
After appeal, the Eastern District of Virginiaheard the defendants’ renewed motion for sum-mary judgment and rendered its decision last year(Ross Builder II).71 On remand, much of the RossBuilder I analysis was preserved, but the substan-tial similarity standards were revised to reflect theinstruction from the Fourth Circuit. The courtagain dissected the works to distinguish pro-tectable from non-protectable elements under theextrinsic similarity analysis, and after a lengthydiscussion, held that “no reasonable juror couldconclude that the two designs are, extrinsicallyspeaking, ‘substantially similar.’”72
The district court’s intrinsic similarity discus-sion was much shorter.73 In assessing the “totalconcept and feel” of the two homes, the courtheld that there were certainly similarities betweenthe two, “[b]ut, of course, there are similaritiesamong most modern homes.”74 After discussingthe similarities that are common to most allhouses – doors, windows, foyers, kitchens, etc. –the court concluded that “even a lay person wouldhave enough sense to know that they should notfind that two homes are substantially similar in‘total concept and feel’ based on such superficial
commonalities.”75 The court once again grantedsummary judgment to the defendants.
ConclusionRoss Builder II (which was not appealed) indicatesthat the trends established by Harvester, BuildingGraphics, and Ross Builder I are likely to continue,even after the Fourth Circuit articulated its two-part test. Even though it considered both “extrin-sic” and “intrinsic” similarity, the Ross Builder IIcourt seemed to place a greater emphasis on theextrinsic analysis and the filtration of unpro-tectable elements. And while it did not againdescribe the plaintiff ’s copyright as “thin,” the dis-trict court did indicate that the measure of pro-tection in the plaintiff ’s work was “very limited.”76
Ross Builder II did not provide any resolutionregarding the other questions posed above. It willlikely take another decision by the Fourth Circuitto clarify those issues.
Endnotes:1 Universal Furniture Int’l, Inc. v. Collezione Europa
USA, Inc., 618 F.3d 417, 435 (4th Cir. 2010) (quot-ing Lyons P’ship v. Morris Costumes, Inc., 243 F.3d789, 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) (con-tained within the Judicial Improvements Act of1990).
Prior to 1990, architects enjoyed copyrightprotection only for their drawings as “pictorial,graphic, and sculptural works.” 17 U.S.C. §102(a)(5). See also T-Peg, Inc. v. Vermont TimberWorks, Inc., 459 F.3d 97, 109 (1st Cir. 2006). As“pictorial, graphic, and sculptural works,” archi-tectural structures themselves were afforded verylittle protection under the Copyright Act. T-Peg,459 F.3d at 109.
The AWCPA was passed in 1990, in conjunc-tion with the United States’ accession to the Berne
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Sean M. Golden is a senior associate at VandeventerBlack LLP in Richmond. His practice is focused inprofessional liability defense and commercial litiga-tion. He primarily represents architects and engi-neers, as well as financial service professionals.
J. Brandon Sieg is an associate with VandeventerBlack LLP who devotes a majority of his practice torepresenting design professionals. Prior to joiningVandeventer Black LLP, Brandon practiced architec-ture at Glavé & Holmes Architecture in Richmond.
CONSTRUCTION LAW AND PUBLIC CONTRACTS | Vol. 63 | December 2014 | VIRGINIA LAWYER 35
Convention for the Protection of Literary andArtistic Works. The passage of the AWCPA wasnecessary to ensure the United States’ compliancewith the requirements of the Berne Convention,including protection for works of architecture asdistinct from illustrations, plans, or sketches ofarchitecture. See id. In fact, in the legislative his-tory of the AWCPA, Congress made clear that“[t]he sole purpose for legislating at this time is toplace the United States unequivocally in compli-ance with its Berne Convention obligations.” Rep.No. 101-735, at 20 (1990), reprinted in 1990U.S.C.C.A.N. 6935, 6951. Much of the judicialresistance to protecting architectural worksthrough copyright may be explained by the ratherunusual way the AWCPA came to be law.
6 17 U.S.C. § 101.7 H.R. Rep. No. 101-735, at 18 (1990), reprinted in
1990 U.S.C.C.A.N. 6935, 6949. Congress explainedthat a “grant of exclusive rights in such featureswould impede, rather than promote, the progressof architectural innovation.” Id.
8 H.R. Rep. No. 101-735, at 18 (1990), reprinted in1990 U.S.C.C.A.N. 6935, 6949.
9 Universal Furniture, 618 F.3d at 435.10 H.R. Rep. No. 101-735, at 18 (1990), reprinted in
1990 U.S.C.C.A.N. 6935, 6949. 11 See Xiyin Tang, Narrativizing the Architectural
Copyright Act: Another View of the Cathedral, 21TEX. INTELL. PROP. L.J. 33, 45 (2013) (discussing astwo plausible interpretations, either “filtering outthe standard features and evaluating the remain-ing whole with a very thin copyright that subsistsmostly in the exact arrangement of elements inspace,” or “acknowledging that while individualstandard features may not be copyrightable bythemselves, they can nonetheless coalesce to forma copyrightable whole”).
12 See Design Basics LLC v. DeShano Co., Inc., 2012WL 4321313, *3-4 (E.D. Mich., Sept. 21, 2012)(considering whether “design elements of a houseare functionally required, and therefore not pro-tected”).
13 See Trek Leasing, Inc. v. United States, 66 Fed. Cl. 8,13 (2005) (evaluating two architectural designs inthe “Pueblo Revival” style, holding that “the hall-marks of a popular architectural style … are notprotectable”). Some courts have also identifiedparticular architectural styles or motifs as scènes àfaire. See, e.g., Sturdza v. United Arab Emirates, 281F.3d 1287, 1297 (D.C. Cir. 2002).
14 See Trek Leasing, 66 Fed. Cl. at 16 (“elements dic-tated by efficiency, necessity, or external factorsmust also be filtered out of the court’s infringe-ment analysis”).
15 See Zalewski v. Cicero Builder Dev., Inc., 754 F.3d95, 106 (2d Cir. 2014) (refusing to consider simi-larities between plaintiff ’s work and defendantswork that were “a function of consumer expecta-tions,” or a result of ‘certain conventions” of colo-nial style homes.)
16 See Harvester, Inc. v. Rule Joy Trammell + Rubio,LLC, 716 F. Supp. 2d 428, 441 (E.D. Va. 2010) (dis-cussing how “building codes [can] constrain theultimate design of a building.”)
17 See, e.g., Zalewski, 754 F.3d at 106-07 (affirmingdismissal of claims against defendants where “evenif Defendants copied [the plaintiff ’s] plans, theycopied only the unprotectable elements of hisdesigns.”); Trek Leasing, 66 Fed. Cl. at 18-23 (find-ing the more exacting “supersubstantial similarity”standard was not met after “filter[ing] out” thenon-protectable portions of Plaintiff ’s work).
18 H.R. Rep. No. 101-735, at 18 (1990), reprinted in1990 U.S.C.C.A.N. 6935, 6949.
19 See, e.g., T-Peg, 459 F.3d at 114 (reversing award ofsummary judgment for defendant, holding that“[t]he district court erred in failing to considerthose similarities that went to the ‘overall form’ ofthe building as well as the ‘arrangement and com-position of spaces and elements.”) Sturdza, 281F.3d at 1296 (“Considering the works as a whole isparticularly important because [protectable]expression may arise through the ways in which[architects] combine even [unprotectable] ele-ments.”); DeShano, 2012 WL 4321313 at *3-4(“Just as someone using a kaleidoscope mixesstandard colors into a new pattern, there are cer-tain common features that go into a housedesign—a kitchen, bathroom, bedrooms—and thedesigner moves each of these elements into anoriginal, potentially [protectable] arrangement. …[T]here is no need to conduct a test of separabilitywhen considering the copyrightable nature of anarchitectural house plan as a whole.”); Frank BetzAssocs., Inc. v. J.O. Clark Constr., L.L.C., 2010 WL4628203, *6 (M.D. Tenn. Nov. 5, 2010) (“identify-ing or ‘filtering out’ elements of the Plaintiff ’sdesigns that represent [unprotectable elements]would not mean that the jury would not still con-sider those elements in comparing the [Plaintiff ’s]designs to Defendant’s allegedly infringingworks.”)
20 554 F.3d 914 (11th Cir. 2008).21 Id. at 919.22 17 U.S.C. § 101.23 The seminal case discussing compilations is Feist
Publications, Inc. v. Rural Telephone Service Co, 499U.S. 340, 111 S.Ct. 1282 (1991). In Feist, the com-pilation at issue was a phone book, and the preex-isting data were names and phone numbers. TheSupreme Court held that creative arrangementand coordination of unprotectable elements isentitled to only a “thin” level of copyright protec-tion. The Court reasoned that “the 1976 revisionsto the Copyright Act leave no doubt that original-ity, not “sweat of the brow,” is the touchstone ofcopyright protection in directories and other fact-based works.” 499 U.S. at 359-60, 111 S. Ct. at1295.
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24 Intervest, 554 F.3d 914 at 919.25 Id. at 920. Copyright protection extends to “original works of
authorship fixed in any tangible medium of expression….” 17U.S.C. § 102. Courts have noted that the standard for “originality”is “a very low threshold.” See Charles W. Ross Builder, Inc. v. OlsenFine Home Bldg., LLC, 827 F.Supp.2d 607, 619 (E.D.Va. 2011) (cit-ing 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, butrather ‘means only that the work was independently created by itsauthor (as opposed to copied from other works), and that it pos-sesses at least some minimal degree of creativity.” Id. (quotingAxelrod & Cherveny Architects, P.C. v. Minmar Homes, 2007 WL708798 at *9 (E.D.N.Y. Mar. 6, 2007)).
The term “original” has not always been used consistently bycourts, however. Some courts have used the term “original”according to its more “ordinary meaning,” describing elements ofan architectural work that were deemed standard, or dictated bysome 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.
26 Intervest, 554 F.3d 914, 919 (11th Cir. 2008).27 382 F. Supp. 2d 602 (S.D.N.Y. 2005). 28 The defendant was an architect with the firm Skidmore, Owings
& Merrill, LLP.29 Shine, 382 F. Supp. 2d at 606.30 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 tofollow the [filtration approach] and separate out only those ‘ker-nals’ of expression that would qualify as original, that … ‘wouldresult in almost nothing being copyrightable because originalworks broken down into their component parts would usually belittle more than basic unprotectable elements like letters, colors,and symbols.’” Id. at 613 (quoting Boisson v. Banian, Ltd., 273F.3d 262, 268 (2d Cir. 2001)).
31 Shine, 382 F. Supp. 2d at 612.32 Id. at 612-615. Although the court quoted authority for the
proposition that the total concept and feel test must also involvedissection to segregate the protectable elements of a work, thecourt’s own analysis of the similarities between the designs didnot distinguish protectable elements from non-protectable ele-ments.
33 716 F. Supp. 2d 428 (E.D. Va. 2010).34 The Plaintiff had alleged that the defendant architecture firm had
infringed on its architectural copyright (1) by making wholesalecopies of the drawings when its employees scanned them into.PDF files, and (2) by incorporating protected aspects of theplaintiff ’s drawings into its own drawings prepared for the JohnMarshall Hotel renovation/adaptive reuse. Id. at 434. The Courtfound that there was direct evidence that the defendant hadinfringed on the plaintiff ’s copyright by scanning the drawingsand converting them into .PDF files, which was enough to defeatthe defendant’s motion for summary judgment. As such, thecourt did not reach the issue of whether the defendant incorpo-rated any of the plaintiff ’s protected expression into its owndrawings, an issue that would have necessitated the substantialsimilarity inquiry. See id. at 446-47.
35 Id. at 436-38.
36 Id. at 440. Harvester is relatively unique among AWCPA cases inthat it deals with the adaptive reuse of an existing building, andnot the design of a new building.
37 866 F.Supp.2d 530 (W.D.N.C. 2011). 38 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).
39 Building Graphics, 866 F.Supp.2d at 544. The court even a identi-fies a different standard for similarity to be used when dealingwith thin works – “supersubstantial similarity.” Id.
40 Id. at 544-45 (granting defendants’ motion for summary judg-ment). Note also that the plaintiff was unable to prove access,which is an additional element required of a plaintiff trying toestablish copyright infringement through indirect evidence ofcopying. Id. at 539-43.
41 827 F. Supp. 2d 607 (E.D. Va. 2011). Ross Builder I opinion wasissued on September 29, 2011. The Building Graphics opinion wasissued by the Western District of North Carolina the followingday.
42 The court describes Ford’s Colony as “one of the largest, if not thelargest, 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 ResortArea.” 827 F. Supp. at 612.
43 Id. at 612-616. For example, only five architectural styles werepermitted in Ford’s Colony: Colonial, Georgian, Classical Revival,Federal/Adam, and Greek Revival. Id. at 612. The opinion goesinto great detail regarding the history of colonial architecture inthe area generally, and the Georgian style specifically, including itstypical features and characteristics. Id. at 612-14.
44 Id. at 619-20 (citing, inter alia, Intervest, 554 F.3d at 919).45 See, note 25, supra, for discussion of the use of the term “original”
in AWCPA cases.46 Ross Builder I, 827 F. Supp. 2d at 620.47 Id. at 621 (citing Boisson, 273 F.3d at 268).48 Id. at 624.49 This is not to say that the court did not acknowledge the other
end of the spectrum as well. The court even cites an unpublishedEastern District of New York case for the propositions that “thefact finder must look at the work as a whole without dissection”and that the works must be judged by their “total concept andfeel.” Id. at 620 (citing Axelrod, 2007 WL 708798 at *13). But ulti-mately, the Ross Builder I holding revealed that, like many courtsin the Intervest camp, the elements deemed non-protectable werenot given much (if any) consideration by the court when com-paring the works as a whole.
50 The Building Graphics decision was appealed to the FourthCircuit. On appeal, the court affirmed summary judgment infavor of the defendants, but only on the grounds that the plaintiffhad not marshaled sufficient evidence in support of a finding thatthe 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 similarityissue, stating that it did not need to address that inquiry since theplaintiff had not established the first element, access. Id. at 580n.3.
51 See Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg, LLC, 496Fed. Appx. 314, 318 (4th Cir. 2012) (unpublished decision).
52 496 Fed. Appx. 319 (4th Cir. 2012).
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53 Id. at 318. Specifically, the court likened the inquiry presented inarchitectural works cases to that in Universal Furniture, Inc. v.Collezione Europa USA, Inc., supra note 1, a case in which thecourt considered a copyright infringement claim regarding cos-metic decorations incorporated into furniture design.
54 Id. at 318 (quoting Universal Furniture, 618 F.3d at 435).55 Id. at 318 (quoting Universal Furniture, 618 F.3d at 435).56 Id. at 318 (quoting Universal Furniture, 618 F.3d at 436).57 Id. at 318 (quoting Universal Furniture, 618 F.3d at 436).58 Id. at 319.59 Id. at 320.60 See id. at 318-320 (explaining that the district court’s segregation
of non-protected similarities violated the intrinsic prong of thetest, but making no finding that the district court had not prop-erly performed the extrinsic prong of the test).
61 Id. at 321, n.5.62 Id. at 320 (citing Intervest, 554 F.3d at 919 & Harvester, 716
F.Supp.2d at 438). 63 Id. at 321, n.5. As discussed, supra, the copyright protection in the
architectural works in Harvester, Building Graphics, and RossBuilder I were each described as “thin.”
64 See, e.g., Ross Builder I, 827 F.Supp.2d at 620 (citing TranswesternPubl’g. Co. LP v. Multimedia Mktg. Assoc., Inc., 133 F.3d 773, 776(10th Cir. 1998)) (stating that where copyright protection for aparticular work is ‘thin,’ the plaintiff must make a showing of‘supersubstantial similarity’).
65 See 496 Fed. Appx. at 320.66 See Feist Publications, 499 U.S. at 349, 111 S.Ct. at 1289.67 See Ross Builder, 496 Fed. Appx. at 318 (“Under this two-part test,
to prove substantial similarity, a plaintiff must show that theworks are (1) extrinsically similar …, and (2) intrinsically simi-lar….” (emphasis added)).
68 A claim proven by indirect evidence, at least. As discussed, supra,in note 2 and accompanying text, the substantial similarityinquiry only arises when the plaintiff cannot prove unlawfulcopying through direct evidence, but must establish copyingthrough indirect evidence.
69 But see, note 49, supra.
70 The Fourth Circuit’s use of the term “idea” in its substantial simi-larity test also raises questions. Specifically, the Court’s explana-tion that extrinsic similarity is shown when works contain“substantially similar ideas that are subject to copyright protec-tion” is, on its face, contrary to the fundamental principle thatcopyright protection extends only to the expression of ideas—notto ideas themselves. 17 U.S.C. § 102(b). See also, Ale HouseManagement, Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 142(2000) (“Copyright protection does not extend to ideas.”). Is thismerely imprecise language used by the Court, or is the FourthCircuit’s articulation of the substantial similarity inquiry actuallyat odds with this fundamental principle? If the latter, will this for-mulation of the test require courts to resolve existential questionsabout design, such as whether designs that appear similar in theirexpression may be distinguished by their different underlyingarchitectural concepts?
For an example of this challenge, compare Mies van derRohe’s Farnsworth House with Philip Johnson’s Glass House.Although both of these works were completed decades before theenactment of the AWCPA, they present a useful case study for dis-tinguishing architectural works through their underlying con-cepts. Both houses are distinguished works of architecture, yetJohnson’s design intentionally referenced the Farnsworth Houseto challenge contemporary ideas about architecture. Because bothbuildings were essentially glass boxes, they are more readily dis-tinguished by their underlying concepts than by their physicalappearance. See FARNSWORTH HOUSE, http://farnsworthhouse.org(last visited Sept. 19, 2014); Paul Goldberger, [behind the glass],Preservation, Janurary/February 2007, at 37.
71 Charles W. Ross Builder, Inc. v. Olsen Fine Home Building, LLC(Ross Builder II), 977 F. Supp. 2d 567 (2013).
72 Id. at 592-97.73 The court’s “extrinsic similarity” analysis spans five pages. Id. at
592-97. Its “intrinsic similarity” analysis is only three paragraphs.74 Ross Builder II, 977 F. Supp. 2d at 597.75 Id. at 597.76 Id. at 593.
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On June 19, 2014, the U.S. Energy
Information Administration released its
preliminary results for the 2012
Commercial Buildings Energy
Consumption Survey. According to the
survey, the United States has 87 billion
square feet of commercial floorspace.
Only 14 percent of that (12.2 billion
square feet) was constructed within the
past ten years — that is, built pursuant to
current green construction standards. By
contrast, 50 percent of the commercial
buildings in the United States were built
prior to 1980.1
www.vsb.orgVIRGINIA LAWYER | December 2014 | Vol. 63 | CONSTRUCTION LAW AND PUBLIC CONTRACTS
Obtaining Green Certification for ExistingBuildings 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.
illustration by Madonna Dersch
CONSTRUCTION LAW AND PUBLIC CONTRACTS | Vol. 63 | December 2014 | VIRGINIA LAWYER 39
The U.S. Green Building Council does not viewincreased construction of new green buildings asa practical solution to the glut of energy ineffi-cient commercial floorspace. In fact, the councilestimates that it takes up to eighty years to offsetthe environmental impact of demolishing an oldbuilding and constructing a new, albeit more effi-cient, one.2 In light of an average new construc-tion replacement rate of 2 percent per year in theUnited States, we will maintain an incredibly largesupply of low efficiency commercial floorspacefor the foreseeable future.3
The tremendous supply of energy inefficientcommercial space coupled with the increasedpublic demand for green properties led to ownersand contractors recognizing the profit potentialthat accompanies “greening” existing commercialbuildings.4 Various studies demonstrate thatgreen buildings have longer usable lives, com-mand premium rental rates, enjoy higher tenantoccupancy, present a lower lending risk to finan-cial institutions, and sell for approximately 20percent more per square foot than similar non-green properties.5 The federal government andvarious states, including Virginia, also offer incen-tives to owners and contractors for buildings thatcan be certified as green. These incentives primar-ily take the form of tax credits, tax exemptions,and green mortgages.6
The three most prominent organizationsoffering green certification for refurbished greenbuildings in Virginia are:• The Environmental Protection Agency and itsENERGY STAR certification program begun in1999; • The U.S. Green Building Council and LEED(Leadership in Energy and EnvironmentalDesign), a multi-tiered green building certifica-tion program begun in 2000; and• The Green Building Institute and the GreenGlobes program, which was implemented in theUnited States in 2004.7
For the purposes of tax incentives, Virginiadelegates the statutory certification of energy effi-cient commercial construction to, among others,these three organizations.
Each utilizes a unique and competing greenverification system. Until recently, green certifica-tion by the U.S. Green Building Council and theGreen Building Institute focused primarily onnew commercial construction, i.e. the initialdesign, materials, and methods used in the con-struction of a new structure. To address the certi-fication of refurbished buildings, LEED andGreen Globes each created new verification pro-
grams that specifically address existing buildings,or EBs.
LEED EB:O&M: The U.S. Green BuildingCouncil certification program for existing build-ings is referred to as LEED EB:O&M (ExistingBuilding: Operations & Maintenance). Much likeLEED’s multi-tiered certification program fornew construction, LEED EB:O&M rates an exist-ing structure as certified, silver, gold, or platinum.In order to apply for LEED EB:O&M certifica-tion, the EB and its owner must meet certainthreshold requirements including: the EB must bein compliance with all applicable environmentallaws; the EB must consist of at least one existingcommercial structure; the owner must employ areasonable site boundary on its application of alllands effected or disturbed by the EB; the EBmust be at least 1,000 square feet in size; the EBmust be currently operating at typical physicalcapacity and have been doing so for at least twelvecontinuous months; the EB owner must committo provide whole building energy and water data;and the EB must be no less than 2 percent of thesite area.
Assuming these minimum requirements aresatisfied, the applicant must then complete arequest for review and submit historical perfor-mance data, calculations, and analysis. The U.S.Green Building Council will evaluate the applica-tion 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 itsEB program as Green Globe CIEB (ContinualImprovement of Existing Buildings). GreenGlobes CIEB rates EBs from 1 to 4 with 4 Globesthe highest possible rating. Green Globes requiresthe EB to be at least 400 square feet in size, havetwelve consecutive months of operational andwater data, and have conditioned space.
Assuming the minimum requirements aremet, the next step is to complete an online envi-ronmental assessment. Green Globes scores theassessment on a 1,000 point scale focusing onenergy, water, resources, emissions, indoor envi-ronment, and environmental management. Foran EB to be eligible for Green Globe certification,the online assessment must achieve a minimumscore of 350 and meet threshold scores in eachassessment area. The self-assessment is then veri-fied by a third-party with expertise in greenbuilding design, engineering, construction, andfacility operations. The third party assessor makesthe final determination as to certification and rat-ing of the EB.
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40
ENERGY STAR: The ENERGY STAR pro-gram has always focused on building perfor-mance. ENERGY STAR certifies that a qualifyingbuilding is within the top 25 percent of the mostenergy efficient buildings in the United States.Unlike LEED and Green Globes, ENERGY STARdoes 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 prelimi-nary ENERGY STAR score is established throughan online self-assessment protocol referred to as aportfolio manager, which focuses on energy con-sumption, water consumption, and greenhousegas emissions. A preliminary portfolio managerscore of seventy-five is required to proceed withthe certification process. Assuming a minimumPortfolio Manager score, ENERGY STAR requiresverification of an EB’s application by a licensedprofessional engineer or registered architect.ENERGY STAR verification is good for one yearand must be recertified annually.
Future Green Trends Regardless of the rating system employed, thepurpose of these certification programs is to ver-ify that a qualifying building operates with greaterenergy efficiency, reduced water consumption,enhanced storm water management, and betterindoor air quality than a traditional structure.While the current focus is on achieving a smallercarbon footprint, the future of green constructionis sustainability. A sustainable building causes anet-zero impact on the environment by generat-ing and collecting on-site as much energy andwater as it consumes.
The Living Building Challenge™ gives us aglimpse of the coming sustainability movement.Launched in 2006, the Living BuildingChallenge™ certifies that a building lives off ofthe land by using solar, wind, and geothermalenergy and rain for all of its operating needs.Only four projects in the world have achieved full
certification under the Living Building Challenge.The Chesapeake Bay Foundation’s BrockEnvironmental Center in Virginia Beach is thefirst, and to date only, registered Living BuildingChallenge™ project in Virginia. The BrockEnvironmental Center boasts an indefinite lifeexpectancy, designed to operate through loss ofpower and withstand a 500-year storm event.
Endnotes:1 U.S. Energy Information Administration,
Commercial Buildings Energy Consumption Survey2012 (June 19, 2014), available athttp://www.eia.gov/consumption/commercial/reports/2012/preliminary/index.cfm
2 Preservation Green Lab, National Trust forHistoric Preservation, The Greenest Building:Quantifying the Environmental Value of BuildingReuse (2011), available at http://www.preserva-tionnation.org/information-center/sustainable-communities/green-lab/lca/The_Greenest_Building_lowres.pdf
3 U.S. Energy Information Administration,Commercial Buildings Energy Consumption Survey2012 (June 19, 2014), available athttp://www.eia.gov/consumption/commercial/reports/2012/preliminary/index.cfm
4 Unless indicated to the contrary, a “commercialbuilding” generally refers to any structure “greaterthan 1,000 square feet that devotes more than halfof its floorspace to activity that is neither residen-tial, manufacturing, industrial, nor agricultural” asdefined by the U.S. Energy InformationAdministration.
5 Norm Miller, Jay Spivey, Andy Florance, DoesGreen Pay Off? (July 12, 2008), available athttps://www.energystar.gov/sites/default/files/buildings/tools/DoesGreenPayOff.pdf
6 U.S. Department of Energy, DSIRE Database ofState Incentives for Renewables & Efficiency(October 6, 2014), available athttp://www.dsireusa.org/incentives/index.cfm; EricGies, Forbes, Green Building Financing Offers MoreProfits, Fewer Risks (June 14, 2011) available athttp://www.forbes.com/sites/erica-gies/2011/06/14/green-building-financing-offers-more-profits-fewer-risks;
7 Virginia Code § 58.1-3221.2.
OBTAINING GREEN CERTIFICATION FOR EXISTING BUILDINGS IN VIRGINIA
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Robert E. Travers IV is a partner at WilliamsMullen. He focuses his practice primarily inthe areas of commercial litigation, includingconstruction, land use, real estate litigation,and complex business transactions.
Kelley C. Holland is an associatewith Williams Mullen and focusesher practice on general commer-cial litigation in both state andfederal courts.
CONSTRUCTION LAW AND PUBLIC CONTRACTS | Vol. 63 | December 2014 | VIRGINIA LAWYER 41
2001)(agreement to nonbinding arbitration are enforceableunder the Federal Arbitration Act).
4 VA. CODE § 8.01-581.01 (1986); but see, Brooks & Co. Gen’lContractors, Inc. v. Randy Robinson Contracting, Inc., 513S.E.2d 858 (Va.1999) (declining to enforce arbitration provi-sion contained in unexecuted contract).
5 See, AIA-A201-1997, ¶ 4; Engineers Joint Contract DocumentsCommittee (EJCDC) Document C-700 § 16.01C;ConsensusDOCS 200 General Conditions § 12.2.
6 See, http://www.gsa.gov/portal/content/100822.7 Matthew Patrick Tucker, An Overview of Alternative Dispute
Resolution Use in the Construction Industry at 36-37 (August2005)(available at www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA458748).
8 Randy Erickson, Tactics and Strategies for Mediating the Multi-Party Complex Construction Case, Orange County Lawyer, Vol.52, No. 3 at 22(2010)(available athttp://www.crowell.com/documents/Tactics-and-Strategies-for-Mediating-the-Multi-Party-Complex-Construction-Case.pdf).
9 See, U.S. Legal.com Definitions,http://definitions.uslegal.com/b/baseball-arbitration/.
10 Id.11 See, JAMS website, http://www.jamsadr.com/arbitration
-defined/12 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.pegasus-global.com/assets/news/Galloway-Using-Experts-2012.pdf).
13 VA. CODE ANN. § 17.1-110.14 William E. Craco, Compelling Alternatives: The Authority of
Federal Judges to Order Summary Jury Trial Participation, 57-3Fordham L. Rev. at 485 (1988)(citation omitted).
15 VA. CODE ANN. § 8.01-576.2; Paula Hannaford-Agor & NicoleL. Waters, The Evolution of the Summary Jury Trial: A FlexibleTool to Meet a Variety of Needs, National Center for StateCourts (2012)(available at http://www.ncsc.org/sitecore/content/microsites/future-trends-2012/home/Better-Courts/1-3-Evolution-of-the-Summary-Jury-Trial.aspx).
16 John D. Onnembo, Jr., When is the Best Time to Mediate aComplex Construction Dispute?, American Bar AssociationForum on the Construction Industry, UNDER CONSTRUCTION,Vol. 13, No. 3 at 1(November 2011).
17 Id. at 2.
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The Honorable Leslie M. Alden (Ret.) joinedthe faculty at the George Mason UniversitySchool of Law in 2012 after serving nearly eigh-teen years on the Fairfax bench. In more thanthirty years, she has litigated, tried, or settledhundreds of cases, many involving constructionlaw issues. She is also a Senior Professionalwith Juridical Solutions PLC, providing arbitra-tion and mediation services.
Andrew W. Stephenson practices domesticallyand internationally in the areas of construc-tion, government contracts, labor law and cor-porate compliance in virtually all phases ofboth the private and public sectors of the con-struction industry. He is an adjunct professorat American University Washington College ofLaw and is also frequently asked to serve as aprivate arbitrator or mediator in constructiondisputes as a member of the AmericanArbitration Association’s Panel of Arbitrators.
Shannon J. Briglia is a founding member ofthe construction law firm ofBrigliaMcLaughlin, PLLC, where she concen-trates her practice in the resolution of publicand private construction disputes. With morethan twenty-five years of experience in theconstruction industry, Ms. Briglia representssureties, owners, contractors and subcontrac-tors in federal and state court trials andappeals, arbitration, mediation and beforecommissions and boards of contract appeal.
Resolving Disputes continued from page 29
12 Miller v. Highland County, 274 Va. 355, 650 S.E.2d 532 (2007).13 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).
14 Laurence Hammack, “Company delays Roanoke county windfarm,” THE ROANOKE TIMES, May 27, 2012, http://hampton-roads.com/2012/05/company-delays-roanoke-county-wind-farm (last accessed June 25, 2014).
15 Va. Code § 67-103.16 Va. Code § 67-103(2), (3).17 See Va. Code §§ 15.2-2280 to -2286.18 Va. Code § 67-103(3).
19 This logic is familiar to those who have experience with thesiting requirements of the Telecommunications Act of 1996.See 47 U.S.C. § 332(c)(7)(B)(i)(II).
20 See also 2013 Va. Att’y Gen. Op. 12-102, 2013 WL 208897 (Jan.11, 2013).
21 Va. Code § 67-103(1).22 Va. Code § 67-102(A)(1). 23 274 Va. 355, 650 S.E.2d 532 (2007).24 Case No. CL11-1237 (Roanoke Cnty. Cir. Ct. 2011).25 Complaint ¶ 18, Karr v. Bd. of Sup’rs, Case No.
CL11-1237 (Roanoke Cnty. Cir. Ct. Oct. 13, 2011).26 Demurrer ¶ 23, Karr v. Bd. of Sup’rs, Case No.
CL11-1237 (Roanoke Cnty. Cir. Ct. Jan. 23, 2012).27 Id. at ¶ 34.28 Va. Code § 67-102(12)(D).29 http://www.awea.org (last accessed June 26, 2014).
Wind Farm Siting continued from page 15
42
Job Order Contracting (JOC) is com-ing 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 con-
tracts under the Virginia Public
Procurement Act (VPPA) may have ques-
tions about this alternative.
What Is It? Job order contracting is a method of procuringconstruction services through an indefinite deliv-ery, indefinite quantity term contract, using taskorders as needed for individual projects, wherethe task order price is based on a book of pre-established unit prices.1 The Virginia GeneralAssembly authorized the use of JOC effective July1, 2014.2 Other than the definition and basic bid-ding procedures, however, the General Assemblyprovided little guidance for public bodies whowish to use job order contracting. Statutoryamendments are being drafted, analyzed, debated,and fine-tuned in a legislative work group. It
appears the newly revised amended provisionswill be presented for adoption in the 2015General Assembly session.3 The requirements dis-cussed in this article reflect those enacted in 2014.Because many of the statutory details are beingrevised, practitioners should track the develop-ment of the amendments and the final legislationat the Division of Legislative Services website.4
How is JOC different? With a typical VPPAcontract, each time that a public body has a needfor goods or services it must procure them byissuing an invitation for bids or request for pro-posals, and by awarding a contract requiringdelivery or completion by a definite date. Thistype of contract is a one-time deal. In contrast,JOC allows a public body to procure a wide vari-ety of construction services for multiple projectsto be delivered on an as-needed basis during theterm(s) of the contract. With JOC, the projectcosts are set through the book of pre-establishedunit prices and modified by a price multiplier.Once the contract is signed, the public body has asingle contractor it can use for a number of futureprojects without repeatedly advertising and bid-ding each project as required under the VPPA.
Although the specific provisions of job ordercontracting in Virginia are being finalized, its useby agencies outside of the commonwealth or on
www.vsb.orgVIRGINIA LAWYER | December 2014 | Vol. 63 | CONSTRUCTION LAW AND PUBLIC CONTRACTS
Answering the Questions about Job OrderContractingby Mathew A. Taylor
illustration by Madonna Dersch
CONSTRUCTION LAW AND PUBLIC CONTRACTS | Vol. 63 | December 2014 | VIRGINIA LAWYER 43
federal projects provides a framework that is typi-cal. The basics of job order contracting are: • a multi-task contract that contains indefinitedelivery and indefinite quantities based on as-needed job orders; • a period of time where the contractor is boundto provide work to the owner; • a book of pre-established unit pricing that stan-dardizes the costs of professional services, mate-rials, and labor throughout the contract period; • a price multiplier or coefficient that competitorsuse to calculate the contract price in their bidthrough competitive negotiation or bidding; • and contract limits that define the specific termsand project amounts allowed. The legislators, administrators, and the
appointed legislative work groups studying joborder contracting have envisioned that it wouldbe used by public bodies for construction, main-tenance, repair, and even the ancillary architec-tural and engineering services incidental to thosecontracts.5 Some have suggested that JOC mayapply to any public procurement tasks outside ofnew capital construction.6
The job order contracting method resemblesseveral types of indefinite delivery contracts,including task and delivery order contracting,requirements contracts, and especially indefinitedelivery, indefinite quantity (IDIQ) contracts.IDIQ has been part of the federal contractingscheme since at least 1985 and is now endorsedexplicitly for construction contracts in the FederalAcquisition Regulations.7
An IDIQ is a contract that is used to acquiresupplies and services of an indefinite quantity,within stated limits, during a fixed periodalthough the exact times and exact quantities offuture deliveries are not known at the time ofcontract award.8 For example, federal regulations
have allowed IDIQ contracts to be used for mate-rials stocking, direct shipping to end users, anddeferred ordering among other things.9
The Virginia version of job order contractingwould allow the public body to address any recur-ring need for construction, renovation, rehabilita-tion, and maintenance in a predictable manner. If
a public body needs a contractor for the renova-tion of a dormant government building andpotentially other projects, the public body canaward a job order contract for just the buildingrenovation project to be completed within oneyear. The JOC contractor could then fulfill thepublic body’s requests for additional individualjob orders on other projects for up to four years.The prices for each job order are pre-set at thetime of bidding by the unit-price guide and pricemodifier, so the costs of the individual jobs can besubmitted for approval and the job proceedquickly without the need for further negotiationor contracting.
How Does It Work? Job order contracts may be procured using theVPPA’s normal competitive sealed bidding orcompetitive negotiation procedures at the discre-tion of the public body.10 A written Invitation forBids or Request for Proposals is issued containinga description of the goods or services sought byan agency, the factors to be evaluated, and thecontractual terms and conditions.11 Public noticemust be issued at least ten days prior to the dead-line for receipt of the bids or proposals via theDepartment of General Services’ eVA online elec-tronic procurement system, appropriate websites,and newspapers.12 In addition, the agency maysolicit bids or proposals directly from potentialcontractors.13
For competitive sealed bidding, the contractwould be awarded to the lowest responsive andresponsible bidder.14 For competitive negotiation,negotiations take place between two or moreofferors.15 The bid price will be considered, butthe selection will ultimately be made for theofferor providing the best value.16 The publicbody is allowed to negotiate with and award a bid
when there is only one offeror—if the publicbody determines in writing and in its sole discre-tion that the bidder is the only one qualified or ifone offeror is “clearly more qualified.”17 The pub-lic body is also allowed to award bids to morethan one offeror if it is specified in the RFP.18 Toensure that there is consideration to form a bind-
ANSWERING THE QUESTIONS ABOUT JOB ORDER CONTRACTING
www.vsb.org
”Statutory amendments are being drafted, analyzed, debated, and
fine-tuned in a legislative work group.
44
ing contract, a minimum amount of work mustbe specified in the contract.19 This point has beenthoroughly litigated in the federal JOC statutes.20
Job order contracting has a base term of oneyear with up to four one-year renewals at the dis-cretion of the public body.21 JOC contracts arealso subject to a cumulative contract dollar limit,depending on the contracting agency involvedand type of project.22 JOC allows for a contractcovering multiple projects only if the projectsrequire similar experience and expertise, and areclearly identified in the original RFP.23
Why Does It Work? Job order contracting provides an alternative tothe time and expense of completing the normalcontract procurement cycle for each project. Thecontracting method is designed to accomplishmultiple repair, maintenance, and constructionprojects using a single contract rather than usingmultiple smaller contracts. Furthermore, the pricefor each project will use pre-set unit pricesmarked up with a single price multiplier, so thatmaterials and labor costs are never negotiatedagain. It is often possible for a contractor to trimtheir costs because the contractor can take intoaccount the overall business volume that the mul-tiple projects and longer terms contained in thejob order contract.
Once the contract is made, the public bodyhas the flexibility to vary the project duration andits cost within the limits set by the contract, whilemaintaining the quality of the work offered whena single contractor becomes experienced with theparticular project. Furthermore, the promise ofrenewals or additional jobs after the original con-tract can ensure timely performance and qualitywork from the contractor.
Because JOC contracts can be procured bycompetitive negotiation and the terms renewedat the public body’s discretion, contractors willhave an incentive to build mutually-beneficialrelationships and a team mentality that canbreed future goodwill. A smaller contractor whocan demonstrate its ability to work quickly andefficiently will encourage consideration forfuture work. Other benefits to the contractor caninclude 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 contrac-tor’s prices are fixed for the term of the contract.Harry Mellon, a retired lieutenant colonel of the
United States Army who is credited with invent-ing job order contracting in 1982 for his Armyfacilities,24 is said to have commented that “[I]noptimum practice, true Job Order Contractingdoes not include any negotiation of price; hencethe agency maintains control of the entireprocess.”25
Thus, bidding on a job order contract can bea tedious and time consuming process. Manycontractors are not attuned to estimating the costsof multiple and indefinite projects upfront. It canalso be risky. Material and labor costs could dras-tically change between the time that a project isbid and the end of a yearlong or multi-yearlongterm. Because unit pricing is standardized, there isno chance to adjust the prices when the marketvalues for those goods and services change. Theonly flexibility or risk assessment for the JOCcontractor must be built into its price multiplier,along with its mark-ups for overhead and profit.The creation of a price multiplier becomes a com-plex work of estimation and accounting.
A contractor will also be bidding on a projectwhere it is uncertain of the quantities or deliverytimes for its services. There are cases at the federallevel that state that the public body should not beheld accountable for its inaccurate estimations ofthe quantities needed in an IDIQ-style job ordercontract, so long as it meets the minimum con-sideration set in its contract.26 Thus, the JOC con-tractor who does not perform up to the publicbody’s expectations may only be guaranteed workup to the minimum consideration with littlechance for other projects or renewal. The risk isassigned to the contractor to account for theseuncertainties. Furthermore, there will be lessopportunity to balance the scheduling on multi-ple consecutive projects if the contractor isbeholden to the government’s needs.
Job order contracting in state procurementworld is imminent. Virginia public bodies want touse the method because it vests most of the con-trol in the agency who can essentially hire an on-call contractor for a potentially long-termcontract at preset prices through one procure-ment contract. Nevertheless, JOC contracting willfit the business model for many contractors whodesire steady long-term relationships built onmultiple, but smaller, scopes of work and projects.Once the details of its implementation are passedin Virginia’s legislature, construction lawyersshould be prepared to answer these questions andhelp evaluate this new style of contracting to thebenefit of their clients.
ANSWERING THE QUESTIONS ABOUT JOB ORDER CONTRACTING
www.vsb.orgVIRGINIA LAWYER | December 2014 | Vol. 63 | CONSTRUCTION LAW AND PUBLIC CONTRACTS
CONSTRUCTION LAW AND PUBLIC CONTRACTS | Vol. 63 | December 2014 | VIRGINIA LAWYER 45
Any views expressed by the author in this articleare not the views or legal opinions of the Office ofthe Attorney General.
Endnotes:1 SeeVa. Code § 2.2-4301 (effective July 1, 2014)
(definition of “job order contracting”). 2 SeeVa. Code § 2.2-4301 (editors notes).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 visitedOct. 15, 2014).
6 See id, Comments of Annette Cyphers, ElizabethDooley, Chris Stone, and Tracy Adams, Esq.
7 See Denise Farris, Checking Your IndefiniteDelivery, Indefinite Quantity (IDIQ) IQ, 22 Constr.Lawyer 24, n. 1; FAR 16-501 et seq. Other helpfularticles on IDIQ and other progenitors of the joborder contracting method include Marko Kipa,Keith Szelinga and Jonathan Aronie, ConqueringUncertainty in an Indefinite World: A Survey ofDisputes Arising Under IDIQ Contract, 37 Pub.Cont. L.J. 415 (Spring 2008) and Karen Thornton,Fine-Tuning Acquisition Reform’s FavoriteProcurement Vehicle, the Indefinite DeliveryContract, 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 SeeVa. Code § 2.2-4301 (definition of “job order
contracting”). 11 SeeVa. Code § 2.2-4302.2(A)(1).12 SeeVa. Code § 2.2-4302.2(A)(2).13 See id.14 SeeVa. Code § 2.2-4302.1(5).15 SeeVa. 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 SeeVa. Code § 2.2-4302.2(B). This is one pointthat is somewhat unclear in the current legislation.The work group has debated the renewal termsand currently recommends a one-year term withthe 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 visitedOctober 15, 2014).
22 SeeVa. Code § 2.2-4302.2(B)(5) This another areathat has varied greatly in the work group discus-sions. The current recommendation is for limitingindividual job orders to $500,000 and total jobs ina 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 becircumvented by splitting a single job into multi-ple jobs. See proposed Va. Code § 2.2-4302.2(E) athttp://dls.virginia.gov/groups/procurement/meetings/101514am/omnibus%20draft.pdf (lastvisited October 15, 2014).
23 SeeVa. Code § 2.2-4302.2(B).24 See http://en.wikipedia.org/wiki/Harry_Humphry
_Mellon.25 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).
26 See Schweiger Constr. Co. Inc. v. U.S., 49 Fed. Cl.188 (2001); Dot Systems v. U.S., 231 Ct. Cl. 765,769 (1982).
ANSWERING THE QUESTIONS ABOUT JOB ORDER CONTRACTING
www.vsb.org
Mathew A. Taylor is an assistant attorney general in theOffice of the Attorney General’s Construction LitigationSection. He represented architects, engineers, contractorsand subcontractors for years while in private practice. Henow handles the legal needs of numerous agencies in stateconstruction disputes, including the claims process, alterna-tive dispute resolution and litigation.
illustration by Madonna Dersch
VIRGINIA LAWYER | December 2014 | Vol. 6346
Faced with deciding whether to handlepro bono cases, attorneys understand-ably hesitate. Lawyers already worklong hours for paying clients, and tak-ing on a matter in an unfamiliar area of law can be intimidating. With jobsbecoming scarcer and the pressure toprove one’s worth becoming greater,why should attorneys care about probono? The answer: it’s good for you, it’s good for business, and it’s good forthe community.
It’s Good for YouPro bono work is some of the most chal-lenging, rewarding work an attorney willdo. Faced with endless days of workingwith the same clients, the same courts,and the same small section of theVirginia code, lawyers who do low- orno-fee work for people with nowhereelse to turn can at once step outside theircomfort zones, learn something new,and help a fellow human being. But ifthe personal satisfaction of successfullyappealing a denial of unemploymentbenefits and helping someone affordher rent isn’t enough, the Rules ofProfessional Conduct should sway everyattorney. Pro bono service is, above all,ethical. Rule 6.1 encourages attorneys todevote at least 2 percent of their work-year to pro bono efforts.1 Lawyers whoclaim to have the highest ethical stan-dards fall short when they fail to fulfillthis goal.
Not an expert in an area of law?Legal aid attorneys happily mentor vol-unteers while the Virginia State Bar reg-ularly offers free CLE opportunities forattorneys who handle pro bono cases.2
It’s Good for BusinessPro bono work stretches a lawyer’sknowledge and increases her value. Newattorneys develop skills that enhancetheir abilities to bring in paying clients.Accepting a pro bono eviction case
allows a lawyer who otherwise wouldwait years for a turn at first chair tospread his wings and hone his court-room skills while helping someone stayin her home. Reviewing a contract for alegal non-profit or straightening out acancer patient’s medical bill sharpensjudgment while polishing leadership andtime management skills. Firms thatallow attorneys to count pro bono worktoward their billable-hours goals reapthe benefits by fostering excitementamong employees and showing com-mitment to the community.
Pro bono work is good for market-ing and reflects positively on an attor-ney’s skill and character. Attorneys whosupport pro bono legal services organi-zations can promote their volunteerefforts on their websites and resumes.Satisfied non-paying clients willinglyspread free, positive word-of-mouth, andhappily “pay” you with good referencesthat produce paying clients.
It’s Good for the CommunityAttorneys possess resources most mem-bers of the public don’t have. Attorneyswho consider themselves vital membersof the community yet fail to offer to thecommunity their specialized skills, famil-iarity with the justice system, and legalknowledge should take a long look atwhat community they believe they’re apart of. The benefit to society when anattorney obtains an Earned Income TaxCredit for an indigent person or assistssomeone whose pay has been withheldunlawfully should not be underesti-mated. Studies have shown that repre-sented litigants experience betteroutcomes.3 Preserving the rule of lawand promoting fairness in the justicesystem should be goals of everyoneadmitted to the bar. When people stay intheir homes, when children stay withtheir parents, when workers are paidproperly, and when the sick have health
insurance, tax revenues increase, busi-nesses profit, and society benefits.4
If these arguments haven’t per-suaded you, maybe this will: help some-one just because you can. It’s the rightthing to do.
Endnotes:1 Rules of Prof ’l Conduct R. 6.1(a). Rule
6.1 allows lawyers to “satisfy theirresponsibility collectively” and con-tribute financial resources instead oftime. While the rules make clear thatmany possibilities exist for meeting thisaspirational goal, most attorneys nevercome close.
2 Recordings may be found at http://www.vsb.org/site/pro_bono/resources-for-attorneys.
3 John E. Whitfield, PowerPoint presenta-tion to the Virginia State Bar’s Pro BonoCelebration (Apr. 15, 2013) (copy on filewith author).
4 See, e.g., Kenneth A. Smith and AndreaJ. Brewer, Economic Impacts of CivilLegal Aid Organizations in Virginia,paper prepared for the Legal ServicesCorporation of Virginia (Sept. 16,2011).
Access to Legal Services
www.vsb.org
Why Should Attorneys Care About Pro Bono?by Joanna L. Suyes
Joanna L. Suyes, chair of the VSB’s SpecialCommittee on Access to Legal Services, isan associate attorney at Marks & Harrisonand focuses her practice on Social SecurityDisability and Supplemental SecurityIncome claims.
Vol. 63 | December 2014 | VIRGINIA LAWYER 47
Four Harrisonburg attorneys have beenrecognized for their extraordinary probono work done on behalf of Blue RidgeLegal Services (BRLS). They are (left–right) Grant Penrod, Jacob Penrod, andLaura Evick, of the Hoover Penrod LawFirm; and Michael Beckler, a solo practi-tioner. John E. Whitfield, BRLS executivedirector, presented the awards during the Harrisonburg-Rockingham BarAssociation’s annual ProfessionalismSeminar on October 8. “Looking acrossthe room, there are so many attorneys
here who have generously donated theirservices to help make access to justice areality for our low-income clients,” saidWhitfield. “But these four attorneys have
stood out during the past year with trulysignificant contributions to the pro bonoprogram and their clients.”
Access to Legal Services
www.vsb.org
The VSB Special Committee on Accessto Legal Services honored three Lewis F.Powell Jr. Pro Bono Award recipients atits annual Pro Bono Award Dinner andCeremony October 22 in Portsmouth.Virginia Supreme Court Justice WilliamC. Mims served as guest speaker at thedinner.
Glenn Hodge and M. Steven Weaverand The Legal Information Network forCancer (LINC) were recognized at thedinner for their commitment to help-ing Virginians with their legal needs. Asco-founders of the Blue Ridge LegalServices Pro Bono Referral Program,Hodge and Weaver were honored formore than thirty years of continued service. LINC was awarded for provid-ing legal and financial advice and refer-rals to cancer patients, survivors, andtheir loved ones. Each received prints of “Patrick Henry Argues the Parsons’Cause,” an 1834 painting by GeorgeCooke from Virginia Supreme Court Justice S. Bernard Goodwyn and Accessto Legal Services Chair Joanna L. Suyes.
Photo 1 (left–right): Justice Goodwyn; John E. Whitfield(BRLS executive director); Hodge (partner, Wharton,Aldhizer & Weaver); Weaver (partner, Clark andBradshaw); and Suyes (associate, Marks and Harrison).
Photo 2 (left–right): Justice Goodwyn; Crista WhitmanGantz (attorney, LINC client services); Alexandra D.Bowen, (partner, Bowen, Ten, Cardani); Denise Kranich,(executive director, LINC); and Suyes.
Harrisonburg Attorneys Honored for Pro Bono Work
Lewis F. Powell, Jr. Pro Bono Award Presented
Penrod Penrod Evick Beckler
1
2
VIRGINIA LAWYER | December 2014 | Vol. 6348
Noteworthy > VSB NEWS
www.vsb.org
Highlights of the October 24, 2014, Virginia State BarCouncil MeetingAt its meeting on October 24, 2014, inAlexandria, the Virginia State BarCouncil heard the following significantreports and took the following actions:
Amendments to Clients’ ProtectionFund Rules The Council approved, with one nayvote, amending the Clients’ ProtectionFund Rules to increase the maximumpayment to any one petitioner to$75,000 for losses incurred on or afterJuly 1, 2015. Maximum payments forlosses incurred before that date willremain $50,000. The total amount oflosses reimbursable for any one lawyer
or association of lawyers will increasefrom 10 percent of the net worth of thefund to 15 percent.
Amendment to Council Bylaw Election ProceduresThe Council approved 57 to 3 amendingthe bylaws in Council elections tochange the instructions so that mem-bers can vote for fewer candidates thanthe number of vacancies to be filled.
Revisions to Fiscal Year 2014–2015 VSB BudgetThe Council approved by unanimousvote 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 president-
elect election, spoke and answered
questions at the Council meeting. The
election started November 1, 2014, and
ended December 1, 2014.
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
B.A. in philosophy. His law degree is also
from George Mason University.
His practice focuses on commercial
disputes, business torts, and the protec-
tion of intellectual property rights.
He is married to Courtney R.
Robinson and has five children.
Robinson is Choice for President-elect of the Virginia State Bar
Michael W. Robinson
Vol. 63 | December 2014 | VIRGINIA LAWYER 49www.vsb.org
Farnaz Thompson (left), former law clerk of the lateSupreme Court of Virginia Chief Justice Leroy R.Hassell Sr., gestures during a presentation of his por-trait in the Court chambers on October 28, 2014.Justice Hassell was appointed to the Court in 1989and served as chief justice from February 1, 2003, toJanuary 31, 2011. The oil on canvas portrait, paintedby Jean Garver, was commissioned by the Virginia BarAssociation and was donated to the Court. (APPhoto/Steve Helber)
The justices of the Supreme Court of Virginia stoodduring the presentation of Chief Justice Hassell’s por-trait. (AP Photo/Steve Helber)
Paul Cornelious BlandPetersburg
September 1946 – September 2014
Elizabeth Gail FletcherFleming Island, FloridaApril 1970 – August 2014
Ray Vinton Hartwell IIIWashington, D.C.
June 1947 – February 2014
Wade Alexander HellmanVirginia Beach
July 1959 – July 2014
John Buster HemmingsLexington
March 1926 — August 2014
Robert J. IngramPulaski
October 1929 – September 2014
Gayle Rachel MorrellConcord, New HampshireJanuary 1966 – August 2014
Willie Joe RichardsonRichmond
January 1942 – September 2014
Leonard Edward RinglerNewport News
August 1945 – July 2014
Richard Kyle RoseLexington, Kentucky
March 1979 – February 2014
Robert David SchultzLexington, Maryland
August 1936 – September 2014
Atwell Wilson SomervilleOrange
November 1919 – February 2014
Charles Henry StaplesNorfolk
October 1946 – July 2014
Gene Steven SykesScottsdale, Arizona
February 1945 – June 2014
Dennis E. Talbert Jr.Springfield
August 1936 – July 2014
Terrence Anthony TrepalLeesburg
December 1945 – September 2014
John W. WineMarshall
July 1940 – September 2014
In Memoriam
VIRGINIA LAWYER | December 2014 | Vol. 6350
Noteworthy > PEOPLE
www.vsb.org
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 charita-
ble arm of Virginia’s lawyers and pro-
motes, 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)
Virginia Law Foundation to InductFellows Class of 2015
Local andSpecialty BarElectionsChesterfield County Bar AssociationTravis Ryan Williams, PresidentDavid Shawn Clements, 1st Vice
PresidentVanessa Laverne Jones, 2nd Vice
PresidentJohn Hubbard Taylor, SecretaryMichael Gordon Matheson, Treasurer
Hanover County Bar AssociationThomas Douglas Lane, PresidentShari Lynne Skipper, Vice PresidentMichael Preston Tittermary, SecretaryAdam Michael Jurach, Treasurer
Richmond Criminal Bar AssociationMackenzie Luisa Clements, PresidentMichael Edward Hollomon, Vice
PresidentThomas Leroy Johnson Jr., SecretaryKelly Scott Miles, Treasurer
South Hampton Roads Bar AssociationWayne Marcus Scriven, PresidentLenard Tyrone Myers Jr., President-electAshley Nicole Richard, SecretaryWilliam T. Mason Jr., Treasurer
Warren County Bar, Inc.Nancie Gallegos Kie, PresidentDaniel Nichols Whitten, Vice PresidentJohn Southall Bell, SecretaryBridget Ellen Grady Madden, TreasurerNancie Gallegos Kie, Conference
Representative
Have You Moved?
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Vol. 63 | December 2014 | VIRGINIA LAWYER 51
As noted practitioner and prolific authorPhilip Bruner once sagely observed,“Construction law today is a primordialsoup in the melting pot of the law—athick broth consisting of centuries-oldlegal theories fortified by statutory lawand seasoned by contextual legal innova-tions reflecting the broad factual realitiesof the modern construction process.”1
The recipe is constantly changing andstaying current requires a dash of effort.Virginia CLE’s recent offering, “The Top15 Virginia Construction Law CasesThat Every Practitioner Should Know”(live webcast May 2014), provides anefficient overview of oft cited opinionsand a summary of newly decided cases.A two-hour streaming video replay ofthe course is available on the VirginiaCLE website. Additionally, Spencer M.Wiegard, who presented a portion of theCLE, is authoring a blog post series onVirginia Construction Law Update(http://www.vaconstructionlawupdate.com) addressing each of the fifteen cases.The first post appeared August 5, 2014.Posts include a handy summary of take-aways for the case discussed. In terms of print resources, the ABAConstruction Law Forum(http://www.americanbar.org/groups/construction_industry/publications/forum_bookshelf.html) has prepared a verita-ble smorgasbord of “hot” titles.
The Annotated Construction LawGlossary (2010)This resource offers concise but nuanceddefinitions of key legal and technicalterms commonly used in constructionlaw and the construction industry. Theglossary is specifically designed to pro-vide a fundamental understanding ofeach term defined, making it an appro-priate resource for project manager,architect, and construction law practi-tioner alike. Terms are annotated and the
resource includes a chart of acronymsand abbreviations.
Fundamentals of Construction Law, 2ded. (2013)This book is presented from the perspec-tive of various stakeholders: owner,architect, contactor, and lender. Withcontributions from twenty-seven notedexperts, the book is in-depth enough tobe of value to experienced practitioners,but ideal for those new to the construc-tion law field. The book provides excel-lent overviews of surety law andgovernment construction contracting, aswell as chapters on delivery systems, pay-ment provisions, project scheduling,changes in work, and termination. Thenew edition includes chapters on con-struction defects, damages, and ADR.
Construction Subcontracting: AComprehensive Practical and LegalGuide (2014)Subcontractors are often likened to someindispensable piece of human anatomy:the heart; the backbone; the eyes, ears,hands, and feet of the operation. Thiswork examines the complexities of legalrelationships between first-tier contrac-tors and their respective subcontractorsand suppliers. Topics include the sub-contract document and performance;insurance, bonding, and licensure; dis-putes and resolution methods; specialproject issues, including alternative pro-ject-delivery systems (design-build, IDP,PPPs), green/sustainable building, andinternational projects; and other con-tracting arrangements.
Construction ADR (2014)Edited by Adrian Bastianelli III andCharles M. Sink, with contributionsfrom a who’s who of construction lawpractitioners and scholars, this newlyreleased title examines the pioneering
use of ADR in the construction industry.Heavily footnoted with references tocases, treatises, and industry publica-tions, this in-depth treatment includestwenty-nine chapters and covers allaspects of the ADR process. Thoughcomprehensive, Construction ADR is sur-prisingly readable and offers practical,useful advice for novice and expert alike.Real-time updates to the book are avail-able at http://constructionadrbook.com.
Justin Sweet: An Anthology ofConstruction Law Writing (2010)If you will indulge the pun, we closewith a taste of the varied writings of theiconic Justin Sweet. This compendiumbrings together some of Sweet’s best andmost thought-provoking articles. Inreviewing the work, past editor of TheConstruction Lawyer Charles M. Sinklikened it to the Oscar’s LifetimeAchievement Award.2 Sink opined that“there are only three types of readerswho should buy this book and keep itclose by: young construction lawyers,middle-aged ones, and old timers.”3 Thewritings, pulled from a career spanningfive decades, are organized into six majorsections, each introduced by a past ABAConstruction Forum chair. The work
Law Libraries
www.vsb.org
Marie Summerlin Hamm is assistant directorof collection development at Regent UniversityLaw Library and an adjunct professor of law atthe Regent University School of Law. She is apast president of the Virginia Association ofLaw Libraries.
Seasoning the Primordial Soup:Hot Topics and Titles in Construction Lawby Marie Summerlin Hamm
Libraries continued on page 60
January 3–834th Annual National Trial AdvocacyCollege 2015Live—Charlottesville
January 8The Nuts and Bolts of Navigating theU.S. Income and Transfer Tax Maze forthe Non-U.S. Citizen ClientTelephone10–11 AM
January 13Representation of Children as aGuardian Ad Litem—2014 QualifyingCourseVideo—Tysons Corner8:30 AM–5:15 PM
January 13The Rocket Docket: Trying Cases in theEastern District of VirginiaVideo—Alexandria, Charlottesville,Norfolk, Richmond8:55 AM–1:25 PM
January 14Representation of Children as aGuardian Ad Litem—2014 QualifyingCourseVideo—Abingdon, Alexandria,Charlottesville, Norfolk, Richmond,Roanoke8:30 AM–5:15 PM (RICHMOND VIDEOBEGINS AT 9 AM)
January 14The Rocket Docket: Trying Cases in theEastern District of VirginiaVideo—Fredericksburg, Tysons Corner,Williamsburg8:55 AM–1:25 PM
January 15Elder Law Basics 2015Live—Richmond (Glen Allen)9 AM–4:10 PM
January 15The Nuts and Bolts of FLSACompliance and LitigationLive—Charlottesville/Webcast/TelephoneNOON–2 PM
January 2012th Annual Advanced Seminar forGuardians Ad Litem for Children—2012Video—Abingdon, Alexandria,Charlottesville, Norfolk, Richmond,Roanoke9 AM–4:30 PM
January 2112th Annual Advanced Seminar forGuardians Ad Litem for Children—2012Video—Tysons Corner9 AM–4:30 PM
January 23The Nuts and Bolts of Navigating theU.S. Income and Transfer Tax Maze forthe Non-U.S. Citizen ClientTelephone10–11 AM
January 27Representation of IncapacitatedPersons as a Guardian Ad Litem— 2014 Qualifying CourseVideo—Abingdon, Alexandria,Charlottesville, Norfolk, Richmond,Roanoke9 AM–4:05 PM
January 27The Nuts and Bolts of FLSACompliance and LitigationWebcast/Telephone10 AM–NOON
January 27Representation of IncapacitatedPersons as a Guardian Ad Litem— 2014 Qualifying CourseVideo—Abingdon, Alexandria,Charlottesville, Norfolk, Richmond,Roanoke9 AM–4:05 PM
January 28Representation of IncapacitatedPersons as a Guardian Ad Litem— 2014 Qualifying CourseVideo—Tysons Corner9 AM–4:05 PM
January 29Hanging a Shingle: How to Start aSuccessful Law PracticeLive—Fairfax8:30 AM–3:45 PM
February 5Advanced GAL Topics: What Every GALNeeds to Know to Be an EffectiveAdvocate for Children in FamiliesFacing Special CircumstancesLive—Charlottesville/Webcast/TelephoneNOON–3:15 PM
February 645th Annual Criminal Law Seminar2015Live—Charlottesville8:15 AM–5 PM
February 11Commercial Real Estate Receiverships—An Alternative to Foreclosure?Live—Charlottesville/Webcast/TelephoneNOON–1:30 PM
Virginia CLE CalendarVirginia CLE will sponsor the following continuing legal education courses. For details, see http://www.vacle.org/seminars.htm.
52 VIRGINIA LAWYER | December 2014 | Vol. 63
CLE Calendar
February 12Collaborative Practice: What You andYour Client Need to KnowLive—Charlottesville/Webcast/TelephoneNOON–2 PM
February 1345th Annual Criminal Law Seminar2015Live—Williamsburg8:15 AM–5 PM
February 18Planning with Reverse MortgagesLive—Charlottesville/Webcast/TelephoneNOON–1:30 PM
February 19Commercial Real Estate Receiverships—An Alternative to Foreclosure?Webcast/Telephone2–3:30 PM
February 20Advanced GAL Topics: What Every GALNeeds to Know to Be an EffectiveAdvocate for Children in FamiliesFacing Special CircumstancesWebcast/TelephoneNOON–3:15 PM
Virginia Lawyer publishes at no chargenotices of continuing legal education pro-grams sponsored by nonprofit bar associa-tions and government agencies. The nextissue will cover February 22 through April15. Send information by January 8 [email protected]. For other CLE opportuni-ties, see Virginia CLE calendar and“Current Virginia Approved Courses” athttp://www.vsb.org/site/members/mcle-courses/ or the websites of commercialproviders.
53Vol. 63 | December 2014 | VIRGINIA LAWYER
CLE Calendar
2015F O R T Y - F I F T H A N N U A L
Criminal Law Seminar
Recent Developments in Criminal Law and Procedure • Tips from the Bench – Effective Appellate AdvocacyDNA Evidence – Interpretation and Indexes • Ethical Issues in the Practice of Criminal Law
Interviews and Interrogations –Understanding Best Practices
www.vsb.org/site/sections/criminal
Video Replays in 14 Locations on Four Different DatesApproved 7.0 MCLE Credits (including 1.5 ethics credit)
VIRGINIA CLE ® AND VIRGINIA STATE BAR
FEBRUARY 6, 2015DoubleTree by Hilton, Charlottesville
FEBRUARY 13, 2015DoubleTree by Hilton, Williamsburg
DISCIPLINARY PROCEEDINGS
CIRCUIT COURT Respondent’s Name Address of Record Action E�ective DateVaughan Christopher Jones Richmond, VA Public Reprimand w/Terms September 10, 2014Kenneth Wayne Paciocco Richmond, VA Suspension—3 years September 15, 2014
DISCIPLINARY BOARD Respondent’s Name Address of Record Action E�ective DateGregory Lee Cassis Richmond, VA Public Reprimand w/Terms October 30, 2014Christopher John Dumler Scottsville, VA Revocation November 4, 2014Philip R. Farthing Norfolk, VA CRESPA Fine of $500 October 20, 2014Mark Richard Galbraith Reston, VA Revocation September 12, 2014Arnold Reginald Henderson V Richmond, VA Suspension w/Terms—1 year October 24, 2014Angela Marie Hensley Culpeper, VA Suspension—2 years September 26, 2014Eric Joseph Livingston Chester�eld, VA Public Reprimand w/Terms September 11, 2014Charles A. Price Annandale, VA Suspension w/Terms—3 years September 22, 2014William Vaughan Riggenbach Ashland, VA Suspension w/Terms—5 months September 23, 2014
DISTRICT COMMITTEESRespondent’s Name Address of Record Action E�ective DateBenjamin David Bowers Norfolk, VA Public Reprimand w/Terms October 8, 2014William Stephen Coleman Mechanicsville, VA Public Reprimand November 3, 2014Mattia Jestelle Corse Virginia Beach, VA Public Reprimand September 30, 2014 Juan Chardiet McLean, VA Public Admonition September 26, 2014 Angela Dawn Whitley Richmond, VA Public Reprimand w/Terms November 10, 2014Ivan Yacub Falls Church, VA Public Reprimand w/Terms October 7, 2014
SUSPENSION—FAILURE TO PAY DISCIPLINARY COSTS Respondent’s Name Address of Record E�ective Date Li�edJames Pearce Brice Jr. Virginia Beach, VA October 21, 2014Sharon Ann Fitzgerald Chester�eld, VA October 8, 2014Jason Christopher Roper Mars, PA November 7, 2014
SUSPENSION—FAILURE TO COMPLY WITH SUBPOENA Respondent’s Name Address of Record E�ective DateLucy Ivano� Staunton, VA November 4, 2014
IMPAIRMENT Respondent’s Name Address of Record E�ective DateDuncan Robertson St. Clair III Norfolk, VA September 8, 2014
Virginia Lawyer Register
54 VIRGINIA LAWYER | December 2014 | Vol. 63
CIRCUIT COURT Vaughan Christopher JonesRichmond, Virginia13-033-095600On 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. �is was an agreed disposition of misconduct charges. RPC 1.1
www.vsb.org/docs/Jones-111314.pdf
Kenneth Wayne PacioccoRichmond, Virginia14-032-097791E�ective 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)
www.vsb.org/docs/Paciocco-110614.pdf
DISCIPLINARY BOARDGregory Lee CassisRichmond, Virginia13-033-094712, 13-033-095432On October 30, 2014, the Virginia State Bar Disciplinary Board issued a public reprimand with terms to Gregory Lee Cassis for violating professional rules that govern diligence, communication, fees, and misconduct. �is 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 DumlerScottsville, Virginia13-070-093619On November 4, 2014, the Virginia State Bar Disciplinary Board revoked Christopher John Dumler’s license to practice law based on his a�davit 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)
www.vsb.org/docs/Dumler-110614.pdf
Philip R. FarthingNorfolk, Virginia14-000-099849On 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 �ne of $500 for violating the Real Estate Settlement Act. �is is an agreed disposition of the RESA charges. RESA § 55-525.30, 15VAC5-80-30
www.vsb.org/docs/Farthing-110614.pdf
Mark Richard GalbraithReston, Virginia14-052-099782On 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/Galbraith-110714.pdf
Arnold Reginald Henderson VRichmond, Virginia13-032-095270On October 24, 2014, the Virginia State Bar Disciplinary Board 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 BOARDAngela Marie HensleyCulpeper, Virginia15-000-100112On 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
Disciplinary Summaries�e 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, e�. 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 O�ce at (804) 775-0539 or [email protected]. VSB docket numbers are provided.
Virginia Lawyer Register
55Vol. 63 | December 2014 | VIRGINIA LAWYER
DISCIPLINARY BOARDEric Joseph LivingstonChester�eld, Virginia10-031-084027E�ective 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
www.vsb.org/docs/Linvingston-110614.pdf
Charles A. PriceAnnandale, Virginia14-051-096204On September 22, 2014, the Virginia State Bar Disciplinary Board suspended Charles A. Price’s license to practice law for three years, with terms, for violating professional rules that govern �rm names and letterheads, bar admission and disciplinary matters, misconduct, and unauthorized practice of law; multijurisdictional practice of law. �is was an agreed disposition of misconduct charges. RPC 5.5(c), 7.5(a), 8.1(c), 8.4(a,b)
www.vsb.org/docs/Price-110714.pdf
William Vaughan RiggenbachAshland, Virginia13-060-093662, 13-060-094639, 13-060-094941, 13-060-094986, 14-060-096336On September 23, 2014, the Virginia State Bar Disciplinary Board suspended William Vaughan Riggenbach’s license to practice law for �ve 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. �e board dismissed two charges. �is was an agreed disposition of misconduct charges.
www.vsb.org/docs/Riggenbach-110714.pdf
DISTRICT COMMITTEESBenjamin David BowersNorfolk, Virginia14-022-098719On 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. �is was an agreed disposition of misconduct charges. RPC 1.5(a)
www.vsb.org/docs/Bowers-110614.pdf
William Stephen ColemanMechanicsville, Virginia14-060-097923On 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. �is was an agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a)(b)
www.vsb.org/docs/Coleman-111914.pdf
Mattia Jestelle CorseVirginia Beach, Virginia14-022-098580On 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. �is was an agreed disposition of misconduct charges. RPC 5.5(c)
www.vsb.org/docs/Corse-111914.pdf
Juan ChardietMcLean, Virginia13-051-093997On September 26, 2014, the Virginia State Bar Fi�h 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 WhitleyRichmond, Virginia14-032-098417, 14-032-099871, 14-032-099568On November 10, 2014, the Virginia State Bar �ird District Subcommittee issued a public reprimand with terms to Angela Dawn Whitley for violating professional rules that govern diligence and communication. �is was an agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a)(b)
www.vsb.org/docs/Whitley-111914.pdf
Ivan YacubFalls Church, Virginia14-041-097049On 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. �is 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
Disciplinary Summaries
Virginia Lawyer Register
56 VIRGINIA LAWYER | December 2014 | Vol. 63
THE VSB IS SEEKING NOMINATIONS FOR THE FOLLOWING AWARDS:
Betty A. Thompson Lifetime Achievement Award�e 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�e 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.
R. Edwin Burnette, Jr., Young Lawyer of the Year Award�is 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/
VOLUNTEERS SOUGHT FOR VSB COMMITTEESVirginia 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.
Notices to Members
NOMINATIONS SOUGHT FOR COMMITTEE VACANCIESVolunteers are needed to serve the Virginia State Bar’s boards and committees. �e 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 speci�ed, 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 �lled by a member from the 1st, 3rd, 5th, 7th or 8th judicial circuits; 1 vacancy is to be �lled by a member from the 2nd or 4th judicial circuits and 1 vacancy is to be �lled 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, toVSB Nominating Committee, c/o Asha Holloman
Virginia State Bar,1111 East Main Street, Suite 700
Richmond, VA 23219-3565
Virginia Lawyer Register
57Vol. 63 | December 2014 | VIRGINIA LAWYER
Nominations Sought for 2015–2016 District Committee VacanciesDeadline for Nominations: February 28, 2015
�e Standing Committee on Lawyer Discipline calls for nominations for district committee vacancies to be �lled by Council in June. Note that there are vacancies which may not become available because some members are eligible for reappointment.
To review quali�cations for eligibility, see Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4 – Establishment of District Committees, speci�cally 13-4.E (Quali�cations of Members) and 13-4.F (Persons Ineligible for Appointment).
FIRST DISTRICT COMMITTEE: 2 attorney vacancies; 1 non-attorney vacancy. �e vacancies are to be �lled 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). �e vacancies are to be �lled by members from the 2nd or 4th judicial circuits.
SECOND DISTRICT COMMITTEE, SECTION II: 1 attorney vacancy (current member is eligible for reappointment). �e vacancies are to be �lled by members from the 2nd or 4th judicial circuits.
THIRD DISTRICT COMMITTEE, SECTION I: 3 attorney vacancies (2 current members are eligible for reappointment). �e vacancies are to be �lled 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). �e vacancies are to be �lled 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 non-attorney vacancy. �e vacancies are to be �lled 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. �e vacancies are to be �lled by members from the 17th or 18th judicial circuits.
FOURTH DISTRICT COMMITTEE, SECTION II: 1 attorney vacancy; 1 non-attorney vacancy. �e vacancies are to be �lled 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). �e vacancies are to be �lled by members from the 19th or 31st judicial circuits.
FIFTH DISTRICT COMMITTEE, SECTION II: 2 attorney vacancies (1 current member is eligible for reappointment). �e vacancies are to be �lled 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 non-attorney vacancy (current member is eligible for reappointment). �e vacancies are to be �lled by members from the 19th or 31st judicial circuits.
SIXTH DISTRICT COMMITTEE: 2 attorney vacancies; 1 non-attorney vacancy. �e vacancies are to be �lled 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). �e vacancies are to be �lled by members from the 16th, 20th or 26th judicial circuits.
EIGHTH DISTRICT COMMITTEE: 4 attorney vacancies (3 current members are eligible for reappointment). �e vacancies are to be �lled by members from the 23rd or 25th judicial circuits.
NINTH DISTRICT COMMITTEE: 4 attorney vacancies (current members are eligible for reappointment). �e vacancies are to be �lled 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 non-attorney vacancies. �e vacancies are to be �lled 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). �e vacancies are to be �lled by members from the 27th, 28th, 29th or 30th judicial circuits.
Nominations, along with a brief resume, should be sent by February 28, 2015, toStephanie Blanton, Virginia State Bar,
1111 East Main Street, Suite 700, Richmond, VA [email protected]
Edward L. Weiner, President-elect
C
Virginia Lawyer Register
58 VIRGINIA LAWYER | December 2014 | Vol. 63
President-elect Weiner Seeks Members for Virginia State Bar Committees
With Terms Commencing July 1, 2015
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:
To: Members of the Bar From: Edward L. Weiner, President-elect
Standing Committees:* Budget & Finance Professionalism Lawyer Discipline Unauthorized Practice of Law Legal Ethics
Special Committees: Access to Legal Services Midyear Legal Seminar Bench-Bar Relations Personal Insurance for Members Communications Resolution of Fee Disputes Lawyer Malpractice Insurance Technology and the Practice of Law Lawyer Referral
*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: Phone No.: Email:
Choice Committee Name Have you ever served on this committee? Length of Service
1st Choice
2nd Choice
3rd Choice
Yes No
Yes No
Check here if you have never served on a VSB committee.
Yes No
To assist us in the committee selection process, please provide the following information:Private PracticePrimary area of practice:
Corporate Counsel
OtherGovernment attorney
Commonwealth City/County FederalAttach a separate sheet with additional comments (i.e., qualifications and reason for wanting to serve).
60 VIRGINIA LAWYER | December 2014 | Vol. 63
encompasses Sweet’s deeply analyt-ical articles addressing construc-tion law and process, comparativelaw, as well as the plethora of pro-fessional issues that seem toinevitably arise in a constructionproject. There is a selection ofinsightful “Provocative Essays.”The final section republishes eachof Sweet’s “From the Tower” col-umn pieces that appeared in TheConstruction Lawyer.
Endnotes:1 See Philip L. Bruner, “The
Historical Emergence ofConstruction 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: AnAnthology of Construction LawWritings,” Vol. 30, No. 2 THECONSTRUCTION LAWYER (Spring2010).
3 Id.
Libraries continued from page 51
bloody head rose. Snot dripped in asteady stream from his nose to theground.
“Damn it, Charlie. You drunkenslob.”
“Hey Bill, it’s the town drunk. Smellslike he drank every beer in the county.”Duck said to get back in his car, that hewould drive me over the bridge, thencome back for Charlie (not his realname) and drive him to the jail.
A week later at the courthouse, Iran into Duck. We laughed about ourHalloween adventure. He said Charliehad slept it off in the jail that night andhad no idea how he had gotten so blood-ied. Duck said later Charlie called thesheriff and claimed his wallet was miss-ing. He thought maybe Duck or I mighthave taken it. The sheriff had told Duckthat maybe Charlie had been rolled butnot by a deputy or lawyer. I never saw orheard of drunken Charlie again.
The last time I saw Duck was at the7/11 convenience store in the town ofWhite Stone. My 4-year-old daughterwas with me. “Sara, this is OfficerBenson,” I said. “He’s a police officer.
You better be good.” Duck smiled andleaned over to shake my daughter’shand, “Bill, we don’t want Sara to beafraid of the police. We want her to likeand trust us.”
A few days later, Duck was shotand killed in Lancaster County whileattempting to serve a court order foran emergency mental health evalua-tion. He was only 34 and left behind awife and two small children. I onlyhope he knows how grateful we are forhis service.
*To view his Officer Down MemorialPage, go on the Internet to DonaldBenson, Lancaster County Sheriff ’sDept. at http://www.odmp.org/officer/1758-sergeant-donald-c-benson-sr
William J. Kopcsak is a retiredLancaster County trial attorneywho periodically stops by hisold Irvington office to have acup of coffee. His boat is namedthe Legal Ease.
Law Stories continued from page 24
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Michael W. Smith to Head AmericanCollege of Trial Lawyers
Michael W. Smith has been elected presi-dent-elect of the American College ofTrial Lawyers (ACTL). He will beinstalled as president of the organizationof top trial lawyers in the United Statesand Canada at the conclusion of thegroup’s annual meeting in October 2015.
Smith is a partner at Christian &Barton LLP, in Richmond. He is chair ofthe firm and of its executive committee,and is head of the litigation practicegroup. He is a former president of the
Virginia State Bar andthe Bar Association ofthe City of Richmond.
Smith will serve asthe 66th president ofthe ACTL, and will bethe fourth Virginialawyer to hold the position. ThoseVirginians preceding him were James W.Morris III (2004–2005); the late R.Harvey Chappell Jr. (1986–1987), whowas also a partner at Christian & Barton;and the late U.S. Supreme Court JusticeLewis F. Powell Jr. (1969-1970).
James W.C. “Jamie” Canup has joinedHirschler Fleischer as a Richmond-basedpartner to chair the firm’s tax practice.
Larry W. Davis, Albemarle countyattorney, received the Edward J.Finnegan Award for DistinguishedService by the Local GovernmentAttorneys of Virginia Inc. at its annualfall conference in Richmond.
Karen S. Elliott and AnnemarieDiNardo Cleary have joined EckertSeamans Cherin & Mellott LLC asmembers in the Richmond office.Elliott is a member of the firm’s Laborand Employment group, and will beleading the group’s efforts in Virginia.Cleary is also part of the Labor andEmployment group as well as theFinancial Services Litigation practice.
Susan S. Grover received the James R.Treese Award at the Lawyers HelpingLawyers fall retreat in Wintergreen. Theaward recognizes individuals who haveselflessly devoted extraordinary amountsof time and personal efforts to helpmembers of the legal community dealwith substance abuse and other issues.
Camellia J. Jacobs has become a partnerwith Zavos Juncker Law Group PLLC.She practices family law in Maryland,Virginia, and the District of Columbia,and brings more than a decade of litiga-tion and trial experience in the areas of
family law, domestic violence, negligenceand civil rights.
JoAnne L. Nolte, the principal of theNolte Law Firm PC in Richmond, hasjoined the board of directors atMinnesota Lawyers Mutual InsuranceCompany, a lawyers professional liabil-ity carrier, headquartered inMinneapolis, MN
Louis S. Pettey, president of HeiseJorgensen and Stefanelli PA, has beeninstalled as president of the AmericanCollege of Mortgage Attorneys and con-tinues to serve as a member of the exec-utive committee.
Christine Lockhart Poarch was recog-nized by DePaul Community Resourceswith the 2014 Women of AchievementAward for Law.
Leanne M. Shank, general counsel atWashington and Lee University, has beenelected to a three-year term as treasurerof the National Association of Collegeand University Attorneys.
Jacob P. Stroman IV has joined AllianzGlobal Corporate and Specialty as inlandmarine practice leader, Americas. AGCSis a subsidiary of Allianz SE, one of theworld’s largest insurance and financialservices companies based in Munich. Heis the former chief staff attorney of theSupreme Court of Virginia.
Marianne Merritt Talbot has joinedBentham IMF, an international litigationfunding firm that invests in cases andlaw firm portfolios, as its chief market-ing officer in the United States. She isbased in New York City.
Gibson S. Wright has joined Morris &Morris as an associate. He will handlecommercial litigation and transportationmatters. He previously practiced withDurretteCrump.
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Endnotes continued from page 21:
1 “By the universal law of nations, robbery or forcible depredationupon the “high seas,” animo furandi, is piracy. The meaning of thephrase “high seas,” embraces not only the waters of the ocean,which are out of sight of land, but the waters on the sea coastbelow low water mark, whether within the territorial boundariesof a foreign nation, or of a domestic state. Blackstone says thatthe main sea or high sea begins at low water mark. But betweenthe high water mark and low water mark, where the tide ebbs andflows, the common law and the Admiralty have divisumimperium, an alternate jurisdiction, one upon the water when it isfull 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).
2 “Piracy is an offence against the universal law of society, a piratebeing according to Sir Edward Coke, hostis humani generis. As,therefore, he has renounced all the benefits of society and gov-ernment, and has reduced himself to the savage state of nature,by declaring war against all mankind, all mankind must declarewar against him; so that every community has a right by the ruleof self-defense, to inflict that punishment upon him which everyindividual would in a state of nature otherwise have been enti-tled to do, for any invasion of his person or personal property.”Id. at x.
3 Id. at iii.4 Captain Hook’s hand was cut off by Peter Pan and fed to a saltwa-
ter crocodile. The Captain later remarked “It liked my arm somuch . . . that it has followed me ever since, from sea to sea andfrom land to land, licking its lips for the rest of me.” J.M. BARRIE,PETER PAN 49 (Centennial ed., Henry Holt & Co. 2003) (1911).
5 Ward & Gow v. Krinsky, 259 U.S. 503, 512-13 (1922). 6 1 LARSON, supra note 10, at § 1.03(4). 7 This contrasts with tort theories of recovery which attempt to
restore an injured individual to his status before injury and toreplace what he has lost. Id, § 1.03(5).
8 4 id. § 80.05(4). 9 Virginia has its own unique connections to piracy. In 1718,
Governor Alexander Spotswood provided funds for two lightsloops to pursue the infamous pirate Blackbeard at OcracokeInlet, now in North Carolina. George Humphrey Yetter, WhenBlackbeard Scourged the Seas, available at https://www.history.org/Foundation/journal/blackbea.cfm (last visited October 15, 2014).
10 Ch. 400, 1918 Va. Acts 637 (codified as amended at VA. CODE§§ 65.2-100 to -1310 (2013)).
11 Ch. 400, § 78, 1918 Va. Acts 637, 659. 12 VA. CODE § 65.2-200.13 The method for calculating the “average weekly wage,” is set forth
in the Workers’ Compensation Act. § 65.2-101. The weekly com-pensation rate for permanent partial disability is based on 66 2/3percent of the average weekly wage. § 65.2-503(B).
14 § 65.2-503(D).15 Id.16 “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 disabilitybenefits are ‘not awardable until the injury has reached a state ofpermanency, i.e. maximum improvement, when the degree ofloss may be medically ascertained.’” Id. (quoting Brown v. UnitedAirlines, Inc., 34 Va. App. 273, 277, 540 S.E.2d 521, 523
(2001)). “‘[A]n employee has reached maximum medicalimprovement if no reasonable expectation exists that theemployee will obtain further functional improvement frommedical treatment, even though the injury remains sympto-matic and disabling.’” Montalbano, 57 Va. App. 250, 701 S.E.2d79 (quoting Gunst Corp. v. Childress, 29 Va. App. 701, 707, 514S.E.2d 383, 386 (1999)).
17 Democratic principles extended beyond the concept of onepirate, one vote. They included limited power invested in theexecutive, in this case the captain. The majority retained a right tooverride the captain’s mandate. They even employed a democraticjudicial function. The interpretation of their laws was left up to aJury, “appointed to explain them, and bring in a Verdict upon thecase in doubt.” CHARLES JOHNSON, A GENERAL HISTORY OF THEPYRATES, FROM THEIR FIRST RISE AND SETTLEMENT IN THE ISLANDOF PROVIDENCE, TO THE PRESENT TIME 233 (London, T. Warner2d 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 aboardthe pirate ship commanded by Bartholomew Roberts).
18 The articles sometimes were drawn up under the, “exhilaratinginfluence,” of “a large bowl of punch.” ELLMS, supra note 2, at 202-03.
19 JOHNSON, supra note 35, at 397 (discussing the adoption of arti-cles by the crew of the pirate ship Revenge, commanded by JohnPhillips).
20 Exquemelin’s name in some texts is spelled “Esquemeling,”“Exquemeling,” or “Oexmelin.”
21 ALEXANDER EXQUEMELIN, DE AMERICAENSCHE ZEE-ROOVERS(Amsterdam, Jan ten Hoorn 1678), English translation available athttp://home.online.nl/m.bruyneel/archive/tboa/tboa001.htm (lastvisited June 19, 2014). It was subsequently published in variousother versions, some with substantial additions, in German,Spanish, English, and French. Quotations and page numbers inthis article are from the online English translation.
22 CORDINGLY, supra note 7, at 40. 23 EXQUEMELIN, supra note 39, at 45. 24 Id. at 46.25 Id. at 59.26 l’Olonnais was a pirate leader with an entrepreneurial flair, or at
least laudable skills of recruitment and organization. His firstpirate adventure to Gibraltar and Maracaibo was recorded asincluding approximately 660 pirates. His second expeditionincluded over 700 pirates. Id. at 61, 72.
27 Modern day Maracaibo in northwestern Venezuela is the secondlargest city in that country with a population of 2.3 million.CENTRAL INTELLIGENCE AGENCY, Field Listing: Major UrbanAreas—Population, THE WORLD FACTBOOK 2013-14 (2013), avail-able at https://www.cia.gov/library/publications/the-world-fact-book/fields/2219.html (last visited June 20, 2014).
28 EXQUEMELIN, supra note 39, at 71.29 Christian Regnier, Alexander Exquemeling and the 17th- and 18th-
Century Surgeons to Pirates, Corsairs, Freebooters, and Buccaneers,93 MEDICOGAPHIA 373, 378 (2007). This article quotes a casereport prepared after the capture of Chagre (Panama) and cites asits source EXQUEMELIN, supra note 39. However, the quoted textdoes not appear in the online English translation.
30 “The snow was a form of brig-rigged vessel that was in frequentuse before the nineteenth century.” JOHN ROBINSON & GEORGEFRANCIS DOW, SAILING SHIPS OF NEW ENGLAND 1607–1907, at 30
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(1922), available at https://archive.org/stream/sailingshipsofne00robirich/sailingshipsofne00robirich_djvu.txt (last visited August14, 2014).
31 Johnson apparently lost track of his pirates because the woundedleg suffered by Taylor is, without further explanation, amputatedfrom William Phillips, a co-conspirator.
32 JOHNSON, supra note 35, at 400-01.33 Id. at 398.34 EXQUEMELIN, supra note 39, at 128-29.35 JOHNSON, supra note 35, at 232.36 Id. at 352.37 The author leaves those investigations to the realm of the
numerically driven: economists, accountants, actuaries, andmathematicians. But they have done some impressive work.Stephen J. Dubner, co-author of the acclaimed pop-economicsbook FREAKONOMICS: A ROGUE ECONOMIST EXPLORES THEHIDDEN SIDE OF EVERYTHING (2005), performed a comparativeanalysis between modern workers’ compensation and piratecompensation. Stephen J. Dubner, The Economics of Piracy (theReal 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 generalaccount of the economics of pirating, see PETER T. LEESON, THE INVISIBLE HOOK: THE HIDDEN ECONOMICS OF PIRATES(Princeton University Press 2009).
38 Roberts’ code was adopted in 1721. The Virginia provision forproportionate loss was formally codified in 1920. Ch. 172, § 32(s),1920 Va. Acts 256, 659 (“In construing the foregoing section thepermanent loss of the use of a members shall be held equivalentto the loss of such member, and for the permanent partial loss orloss of use of a member compensation may be proportionallyawarded.”). However, the Commission began awarding compen-sation for proportionate loss and loss of use as early as 1919, thefirst 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 specificallyprovide compensation for the loss of a portion of a hand, theCommission is of the opinion, and has so held on numerousoccasions that the spirit of the act permits an award wherever theevidence shows that a substantial part of a member has been lostas 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 [thestatute] was intended to allow compensation for the loss of sight,which is the true function of the human eye.”).
39 VA. CODE § 65.2-518.40 § 65.2-503.41 § 65.2-503(C). Permanent and total disability benefits also may
be awarded for injury for all practical purposes resulting in totalparalysis, as determined by the Commission based on medicalevidence, and for injury to the brain which is so severe as to ren-der the employee permanently unemployable in gainful employ-ment. Id.
42 See § 65.2-503(B). 43 § 65.2-101.44 One peculiar “gentleman” pirate hired out a ship to go pirating
and paid wages to his crew rather than offering them a share ofprizes. Bonnet’s enterprises did not fare well and ultimately hewas captured and hanged in Charleston, South Carolina in 1718.CORDINGLY, supra note 7, at 97.
45 Johnson is describing the pirate company led by BartholomewRoberts. JOHNSON, supra note 35, at 233.
46 Clearly, pirates suffered injuries. The description of the JossameeChief, Rahmah-Ben-Jabir in Charles Ellms’s THE PIRATES OWNBOOK, demonstrates this:
Rahmah-ben-Jabir’s figure presented a meagre trunk, withfour lank members, all of them cut and hacked, and piercedwith wounds of sabres, spears and bullets, in every part, tothe number, perhaps of more than twenty different wounds.He had, besides, a face naturally ferocious and ugly, and nowrendered still more so by several scars there, and by the lossof one eye. When asked by one of the English gentlemenpresent, with a tone of encouragement and familiarity,whether he could not still dispatch an enemy with his bone-less arm, he drew a crooked dagger, or yambeah, from thegirdle round his shirt, and placing his left hand, which wassound, to support the elbow of the right, which was the onethat was wounded, he grasped the dagger firmly with hisclenched fist, and drew it back ward and forward, twirling itat the same time, and saying that he desired nothing betterthan to have the cutting of as many throats as he could effec-tually open with his lame hand.
ELLMS, supra note 2, at 54-55.47 EXQUEMELIN, supra note 39, at 43.48 Id.49 Id. at 98.50 Monsieur Bertram Ogeron, former governor of Tortuga, inspired
pirates gathered on Hispaniola after his escape from the Spanishin Puerto Rico: “After having ambarked all the people which thesurgeon had levied at Samana, he made them a speech, exhortingthem to have good courage, and telling them: You may all expectgreat spoil and riches from this enterprize and therefore let all fearand cowardice be set on side. On the contrary, fill your hearts withcourage and valour, for thus you will find yourselves soon satisfied,of what, at present, bare hopes do promise.” Id. at 177.
51 Peter T. Leeson, An-arrgh-chy: The Law and Economics of PirateOrganization, 115 J. POL. ECON. 1049, 1074 (2007), available athttp://www.peterleeson.com/An-arrgh-chy.pdf (last visited June23, 2014).
52 Peter T. Leeson, Pirational Choice: The Economics of InfamousPirate Practices, 76 J. ECON. BEHAV. & ORG. 497 (manuscript at 5)(2010), available athttp://www.peterleeson.com/Pirational_Choice.pdf (last visitedJune 23, 2014).
53 See, e.g.,ACHILLE GEERTS, BORRIS A. KORNBLITH & W. JOHNURMSON, COMPENSATION FOR BODILY HARM: A COMPARATIVESTUDY 112 (Fernand Nathan 1977), 4 LARSON, supra note 10, at § 80.05(4).
54 Leeson, supra note 69, (manuscript at 10). See also LEESON, supranote 54.
55 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).
56 The British National Archives have records for pensions coveringthe period of 1653-1799 and 1831-1837. Royal Navy ratings’ pensions, THE NATIONAL ARCHIVES, available athttp://www.nationalarchives.gov.uk/records/research-guides/royal-navy-rating-pension.htm (last visited June 23, 2014).
57 Len Barnett, Chatham Chest, BRITISH MARITIME HISTORY,http://www.barnettmaritime.co.uk/navalchathamchest.htm (lastvisited June 23, 2014) (transcription of “smart ticket” for an
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injury sustained by Phillip Billet, seaman aboard H.M.S. Victory,on May 7, 1780).
58 In his account of the pirate Bartholomew Roberts, Charles Ellmsdescribed the death of pirate captain Davis. Upon Davis’ death,the pirates convened a council of the “lords.” One addressed theassembled lords, saying, “that the good of the whole, and themaintenance of order, demanded a head, but that the properauthority was deposited in the community at large; so that if oneshould be elected who did not act and govern for the generalgood, he could be deposed, and another be substituted in hisplace.” ELLMS, supra note 2, at 83.
59 4 LARSON, supra note 10, at § 80.05(4).60 1 id. § 1.03(2).
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