1 Effective Trial Advocacy CLE Moderator: David L. Marks, Esq. Law Offices of David L. Marks Speakers: Hon. Leslie M. Alden (Ret.) Fairfax County Circuit Court Hon. Lisa A. Mayne Fairfax County General District Court Christie A. Leary, Esq. Law Offices of Christie A. Leary, P.C. Edward L. Weiner, Esq. Weiner, Spivey & Miller, PLC Kathleen O Brien, Esq. Fite, O Brien & Anderson, Ltd.
2 FAIRFAX BAR ASSOCIATION CLE SEMINAR Any views expressed in these materials are those of the individual authors and do not necessarily represent the views of any of the authors organizations or of the Fairfax Bar Association. The materials are for general instructional purposes only and are not offered for use in lieu of legal research and analysis by an appropriately qualified attorney. *Registrants, instructors, exhibitors and guests attending the FBA events agree they may be photographed, videotaped and/or recorded during the event. The photographic, video and recorded materials are the sole property of the FBA and the FBA reserves the right to use attendees names and likenesses in promotional materials or for any other legitimate purpose without providing monetary compensation.
3 SPEAKERS BIOGRAPHIES Hon. Leslie M. Alden (Ret.) Judge Alden is a 1978 graduate in business administration from George Mason University and a 1983 graduate from its School of Law. Before beginning her tenure as judge on the Circuit Court in Fairfax in 1996, she served as a judge on the General District Court from , and before that she practiced all aspects of commercial trial work in state and federal courts in the Northern Virginia area for twelve years. In addition, Judge Alden served as an Assistant City Attorney and City Prosecutor for the City of Fairfax for nearly ten years and was a shareholder in the firm of Verner, Liipfert, Bernhard, McPherson & Hand. Formerly, Judge Alden has served on the boards of directors of the Virginia Women Attorneys Association and Legal Services of Northern Virginia. She continues to be active with the Fairfax and other Bar Associations as well as with various judicial groups. For several years, Judge Alden has worked with the International Association of Women Judges, and served as its President from The IAWJ has 4500 members in 100 nations and promotes judicial education, equal access to justice, and the rule of law, in legal systems around the world. She has been a full time faculty member at the George Mason University School of Law since 2012, and acts as a neutral evaluator at Juridical Solutions, PLC, working in alternative dispute resolution. Hon. Lisa A. Mayne Judge Mayne has been a judge in the Fairfax County General District Court since 2006 and served as a substitute judge for two years prior to that. Before joining the bench, Judge Mayne was a partner in the firm of Kelly, Mayne & Daughtrey in Fairfax, having practiced with the firm and its predecessors for twenty years, principally in the areas of insurance subrogation and defense, creditor s rights and collections. As an attorney, Judge Mayne served on several committees of the Fairfax Bar Association, including the Public Relations and Community Outreach Committees and as Chair of its General District Court Committee. Judge Mayne is a past President of the George Mason American Inn of Court, a past lecturer at the Mandatory Judicial Conference for District Court Judges and the Regional Conference for Substitute Judges, and was recently appointed by the Virginia Supreme Court to serve as a member of the Judicial Education Committee of the Judicial Conference for District Courts. She is a graduate of Pitzer College in Claremont, California and the George Mason University School of Law. Christie A. Leary, Esq. Christie Leary, a native of Northern Virginia, has litigated cases heard in the state courts of every jurisdiction in Northern Virginia, the District of Columbia, the United States Fourth Circuit Court of Appeals, the United States Ninth Circuit Court of Appeals and the United States Supreme Court. Named by Super Lawyers as a Rising Star and by Richmond Magazine as a Top Young Attorney in Virginia, Christie has tried bench and jury trials in criminal and civil matters ranging from traffic offenses to serious criminal offenses and cases involving complex personal injury issues and medical malpractice. Along with her former partners Peter Greenspun and Jonathan Shapiro at Greenspun,
4 Shapiro, Davis & Leary, P.C., Christie was a member of the defense team appointed to represent John Allen Muhammad, the Beltway Sniper. Christie s practice focuses on criminal and traffic law, personal injury, medical malpractice and civil litigation. An active member of the Fairfax Bar Association (FBA), Christie currently serves as a member of the FBA Board of Directors and the Board of Directors of the Fairfax Law Foundation (FLF). Christie currently serves as the Chair of the FLF Run for Justice 5k race committee. In recognition of her efforts with the bar, Christie received the 2010 and 2011 FBA President s Award. Christie graduated with a Bachelor of Arts degree in History and Government from the College of William and Mary; and received her Juris Doctor degree from George Mason University School of Law. While in law school, Christie was a member of the board of editors for the Journal of International Legal Studies and authored "The Political Offense Exception", which was published in Volume 5 of the journal. While in law school, Christie taught legal research, writing, and analysis to first-year law students. Christie previously served as an adjunct professor for the law school s appellate writing class. David L. Marks, Esq.. David Lyndon Marks was born in Fairfax Hospital, grew up in Annandale and currently resides in Fairfax, Virginia. Mr. Marks attended Annandale High School before graduating from Mary Washington College in Fredericksburg, Virginia in 1994, with a Bachelor of Arts degree in Political Science. He then received his juris doctor in 1997 from the T.C. Williams School of Law of the University of Richmond in Richmond, Virginia. Following graduation from law school, Mr. Marks was first employed by the law firm of Brandt, Jennings, Roberts, Davis & Snee, PLLC in Falls Church, Virginia, specializing in Insurance Defense and Plaintiff's Civil Litigation. To better serve his clients and to practice the type of law that helps those have been injured, Mr. Marks founded his own firm in 2004 concentrating solely on Plaintiff's Personal Injury Law and Medical Malpractice. Mr. Marks has been a member of the Virginia Bar since 1998, the District of Columbia Bar since 1999 and the Maryland Bar since He is admitted to practice in all Virginia State trial and appellate Courts, the U.S. District Court for the Eastern District of Virginia, the U.S. Court of Appeals for the Fourth Circuit, the Superior Court and Court of Appeals for the District of Columbia and the U.S. District Court of Maryland. Mr. Marks is very active in the Fairfax Bar Association, having served on the Board of the Young Lawyers Section of the Fairfax Bar Association since 2002 and served as President of the Young Lawyers Section and ex officio member of the Fairfax Bar Association Board of Directors for 2004 and Mr. Marks was been a member of the Pro Bono Advisory Committee of the Fairfax Bar Association from 2000 to 2007 and served as Co-Chairperson of the Committee from 2003 to Mr. Marks was honored to have received in 2005 the Fairfax Bar Association President's Award for Outstanding Services. Mr. Marks has been elected a member of the Fairfax Bar Association Board of Directors since 2007 and is currently serving as Treasurer.
5 Mr. Marks is a member of the Virginia State Bar, the Virginia Trial Lawyers Association, the Association of Trial Lawyers of America, the Maryland State Bar Association and the District of Columbia Bar Association. He has been requested as a speaker at Continuing Legal Education Seminars, including the Personal Injury Seminar sponsored by the Fairfax Bar Association. Mr. Marks was profiled in Virginia Lawyers Weekly as an "Up and Coming Lawyer." For the past two years, Mr. Marks has been honored to be selected as a Super Lawyer Rising Star. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The Rising Stars represents only 2.5% of the attorneys in the Commonwealth. Mr. Marks enjoys spending time with his wife and trying to keep up with his three active children. He also enjoys coaching his kids soccer teams. Kathleen O Brien, Esq. Kathleen O'Brien has been a trial attorney for over twenty-five years, and has always concentrated her practice in the field of Family Law. After four years of practice associated with one of Northern Virginia's most prestigious larger law firms, she joined Ms. Fite as a partner in Ms. O'Brien was born in Boston, Massachusetts and has been a long-time resident of Virginia. She graduated from Suffolk University in 1976 and obtained her law degree at the Catholic University of America in She was admitted to the Virginia Bar in 1981, and to the District of Columbia, U.S. Court of Appeals, Fourth Circuit, and the U.S. District Court, Eastern District of Virginia, in Ms. O'Brien was the first woman President of the Virginia State Bar ( ) and she is a Fellow of the Virginia Law Foundation. She has held many positions throughout the State Bar from Chair of the Ethics Committee to delegate to the American Bar Association. Ms. O'Brien is also a member of the McLean, Fairfax, and American Bar Associations, and is a member of the Family Law sections of the American Bar Association, Virginia State Bar and the Fairfax Bar. She serves as a Commissioner in Chancery in the Fairfax County Circuit Court and is active in the local, Fairfax Bar Association. Most recently she served as President of the Fairfax Bar Foundation for Ms. O'Brien has extensive experience in the courtroom and has represented clients in both state trial and appellate courts and federal district and appellate courts. She has also been trained in Collaborative Law, another alternative available to parties who wish to settle divorce matters in a private respectful manner. By creating an atmosphere of open communication and cooperation, the Collaborative Law process allows both parties to preserve their dignity while they work toward a settlement that works for everyone involved. Along with Ms. Fite and Mr. Anderson, Ms. O'Brien has embraced this new alternative. She is a member of the International Academy of Collaborative Professionals, and she is currently a co-chair of the Collaborative Professionals of Northern Virginia.
6 Edward L. Weiner, Esq. Edward L. Weiner is founder of Weiner Spivey & Miller, PLC. He has been an active member of the Fairfax Bar Association since 1980 and serves as its current President. He has been a member of the Board of Directors of the Fairfax Law Foundation since January 2002 and as a past President. He currently serves on the Virginia State Bar Council of Local Bar Leaders. He was honored in 2012 by being appointed to serve on the Virginia Supreme Court Professionalism Faculty. Ed has over 33 years of proven successful performance representing plaintiffs who have been seriously injured. His achievements include numerous multi-million dollar verdicts and cases before the Virginia Supreme Court; winning precedent-setting appellate cases; and achieving a reputation as an effective trial attorney. He is a recipient of the FBA President s Award for Outstanding Service in 2008 and 2013.He has been consistently named one of Washington's "Best Lawyers" for Personal Injury by the Washingtonian and Northern Virginia Magazine, is AV-rated by Martindale-Hubble, and has been listed in SuperLawyers Magazine since A graduate of the State University of New York at Binghamton, Ed received his J.D. from the University of Richmond and his LL.M in International Law from Georgetown University Law Center. Ed is a member of the Board of Directors of the George Mason University Center for the Performing Arts, a 5-year platinum level fundraiser for the American Cancer Society and host of an annual Law Day celebration which benefits the Fairfax Law Foundation s Pro Bono programs. His brainchild, Jazz 4 Justice, is an annual concert that has raised more than $150,000 for the Fairfax Law Foundation since Recently, other universities and local bar associations have begun to foster this unique partnership between education, music, and law. George Mason University presented Ed with the Directors Award in 2011 for his contributions to the university s music program. Ed was honored in 2009 to receive a Leader of Law Award and the James Keith Award for Public Service. He and his wife, Maura, have two daughters, Maurissa and Brianna.
7 TRIAL ADVOCACY CLE FAIRFAX BAR CONVENTION MONTREAL, CANADA I. Introduction II. JUDICIAL REVIEW A. Judge Tran and Judge Azcarate s Top Ten Most Common Mistakes Made By Practitioners In Court. (1) Lack of Civility (including being rude to the court and law clerks, opposing counsel, parties and witnesses) (2) Inability to appreciate the value of Candor (or sometimes plain Common Sense) (3) Lack of Focus/Simplicity (4) Excessive Number of Proposed Witnesses/Exhibits (see Mistake 3) or Disorganized and ineffective use of Exhibits - e.g., labeling Exhibit #1 to cover 40 separate documents. (5) Unfamiliarity with the Rules of Evidence or Procedure (6) Lack of Flexibility in Argument (not responding to Court's Questions) (7) Reliance on too many cases (especially Circuit Court opinions - even from the same judge plus the dreaded string cites (see Rule 3) - here's the test: can you recite the rudimentary facts in all cases you've cited?) (8) Time Management - not building pretrial motions, voir dire, selection, jury instructions, opening and closing into time estimates. A bench trial with 3 witnesses may take 3 hours. A jury trial with 3 witnesses may take a day. (9) Making Statements such as: "In my years of practice, I've never seen a ruling like that "; and "With all due respect, " (10) Personal Vouching for the Case - "I believe... ; I've come to know [the client] and I must say...."; "I don't know why [fill in the blank]... "In my Opinion (fill in the blank) etc. - becoming overly emotional on behalf of client - whether through anger or tears. (See Rule #1)... PLUS BONUS ROUND: (11) Filing Discovery in Court File (Certificates of Service, Notice of Depositions, etc.)
8 B. JUDGE MAYNE S TIPS for TRIAL ADVOCACY CLE (1). Although there is a right of de novo appeal from the General District Court to the Circuit Court, isn t your client better served if you only have to try the case once? Be prepared. (2). Review the entire court file, civil or criminal (3). Read the statute each time (4). Va Code was amended in 2004 removing personal liability for officers or directors transacting business in the interim between the time a corp. is terminated and the time it was reinstated. I still see lawyers that permit personal judgments to be entered against their clients in these circumstances (5). Read the governing documents, i.e., the lease or contract, and think about/anticipate objections. (6). If there is a provision in the contract specifying that all amendments must be in writing signed by the parties and your case is based on an oral amendment of the contract, be prepared for an objection to testimony about that oral amendment on the basis of the Parole Evidence Rule. (7). Judges are not legal encyclopedias. In anticipation of the above objection, bring the cases that permit the above testimony. (8). Master the art of direct examination. I have seen more cases lost on a bad direct than won on a good cross. It should be a conversation, with your client doing most of the talking. Leading questions can sanitize the evidence more powerful if they tell their story than if they merely answer yes or no. (9). Personal Injury Cases Maybe hearts & flowers witnesses don t exist/are not appropriate for every case, but why is it that in the last 2 3 years, I have only seen one such witness and that one witness significantly increased the value of that case. The General Assembly amended Va. Code , effective this past July 1 st, to clarify that medical bills may be introduced into evidence in the same manner as medical records after notice to the opposing party at least 10 days before trial and if accompanied by an affidavit of the custodian of the records attesting that the records are true and accurate copies. It should be noted that distinguishes between reports of a treating or examining health care provider and records/bills of a hospital/other medical facility. Reports require 3 specific affirmations and must be signed by the doctor, not an employee custodian. Records can be verified by an employee custodian who attests to the accuracy of the copies. Often it is the records of a plaintiff s treating physician, not reports that are introduced into evidence. Recently I have noticed that some attorneys include in the treating physician s affidavit
9 a statement that the physician is a custodian of the records which are true and accurate. This allows the attorney to argue that the records come in under either scenario. Do not hand up a pile of records and expect me to read them all and figure it out. Closing argument should address the specific portions of the records that support your case. If there is something wacky in the Chiro s report, better that you bring it to the attention of the Judge than your opponent. If at first you don t succeed, try, try again. Sometimes there is a problem with the affidavit and so the reports/records don t come into evidence for that reason. At that point, many attorneys fold up shop, take their nonsuit and go home. But there is also which provides that the authenticity of the bills and the reasonableness of the charges shall be rebuttable presumed upon identification by the plaintiff of the bill and the plaintiff s testimony (1) identifying the health care provider (2) explaining the circumstances surrounding his receipt of the bill (3) describing the services rendered and (4) stating that the services were rendered in connection with the event at issue. This statute plus Sumner v Smith, 220 Va. 222, may be enough to prevail without the records. While failure to adduce direct medical evidence, generally relied upon to establish causal connection between injury and accident, may significantly increase the plaintiff s risk of nonpersuasion, such evidence is not a prerequisite to recovery. But remember you must provide the bills to the other side at least 21 days before trial. (10). Time Management - Trials that will take longer than 2 hours must be specially docketed. On a regular trial docket, remember to account for any time you expect to spend cross examining the other side s witnesses. In a two hour trial, you get 1 hour to do two things - put on your evidence and cross examine the other side.
90 Wakole v. Barber, 283 Va. 488, 722 S.E.2d 238 (2012) Presented by: Edward L. Weiner, Esq. Weiner Spivey & Miller, PLC
91 Overview Wakole v. Barber, 283 Va. 488, 722 S.E.2d 238 (2012): Supreme Court held that, in closing, Plaintiff s Counsel can argue separate amounts for each element of damages Each element of damages was based on Model Jury Instruction Damages were argued using a chart which tracked Model Instruction and requested specific amounts for each element of damages
92 History leading up to this case and analysis of the Decision How to use a Damages Chart and argue separate damage amounts based on evidence Upcoming battles
93 The History Leading to the Decision Inconsistent decisions at the Circuit Court level regarding use of a damages chart during closing Defense bar wanted to put a stop to the practice of specifying dollar amounts for each element of damages Wakole v. Barber was a small case consolidated with another larger case to get the appeal heard
94 The History Leading to the Decision (cont d) Virginia is in the minority - prohibits per diem arguments Minority states which prohibit per diem but allow lump sum argument Kansas - Huxol v. Nickell, 473 P.2d 90 (1970) Missouri - Ricketts v. Kan. City Stockyards,537 S.W.2d 613 (1976) Maine - Hart v. Wiggin, 379 A2d 155 (1977) Wisconsin - Affett v. Milwaukee Trans. Corp., (1960) Nebraska - Baylor v. Tyrrell, 131 N.W.2d 393 (1964) Hawaii - Kometani v. Heath, 431 P.2d 931 (1969)
95 Underlying Case Legally Irrelevant Facts Plaintiff was fifty-four years old and of Azerbaijanian descent She was a naturalized American citizen with a heavy accent Plaintiff s only medical expert was a chiropractor with a $1,250 court appearance fee Plaintiff did not want to go to trial Demand $6,000; Offer $2,500
96 Underlying Case Legally Relevant Facts Plaintiff was passenger in auto accident Soft tissue injuries, persistent neck/back pain Past medical expenses: $4,173 Asked for $50,000; jury awarded $30,000 Defendant appealed VA Supreme Court granted petition for appeal VTLA filed Amicus Brief in support of Plaintiff/Appellee
97 Appellant/Defense Arguments Arguing specific $ amounts violates holding of Certified T.V. v. Harrington, 201 Va. 109, 109 S.E.2d 126 (1959) (prohibiting per diem* arguments) *Per diem arguments are based on $ per unit/time Most states allow per diem arguments - Virginia does not Certified T.V. is still the law
98 Appellant/Defense Arguments (cont d) Sought to expand holding of Certified T.V. Focused on or other fixed basis language Use of chart is using a formula Use of chart invades the province of the jury
99 Appellant/Defense Arguments (cont d) Plaintiff s Counsel gave personal opinions in closing, i.e. I submit to you that this is a modest sum. Va. Code prohibits arguing component damages because statute only says an amount Notwithstanding any other provision of law, any party in any civil action may inform the jury of the amount of damages sought by the plaintiff in the opening statement or closing argument, or both. The plaintiff may request an amount which is less than the ad damnum in the motion for judgment.
100 Appellee/Plaintiff Arguments Courts must apply the plain meaning of a statute Virginia Code Section is permissive, not prohibitive Lump sum amount is not based on any mathematical formula, therefore arguing for lump sum is not per diem argument Suggesting an amount for each element of damages is drawing an inference based on evidence In final argument an advocate should be allowed to state what his or her client wants and why
101 The Decision Allows Plaintiff to argue lump sum amounts for each element of damages, provided there is evidence to support it Implicitly rejects the extension of Certified T.V. Cautions against personal opinions Rejects Appellant/Defense interpretation of Va. Code
104 Updike believes the case played a significant role in the verdict, and said the jury sought to have those amounts repeated during deliberation.
105 Track the language of the Jury Instruction on Damages Elicit evidence for each element of Damages Relate the Evidence to the money the jury will award
106 Track the Language of the Jury Instruction Model Jury Instruction in determining the damages to which he is entitled, you shall consider any of the following which you believe by the greater weight of the evidence was caused by the negligence of the defendant Any bodily Injuries he sustained and their effect on his health according to their degree and probable duration; Any physical pain and mental anguish he suffered in the past and any that he may be reasonably expected to suffer in the future; Any inconvenience caused in the past and any that probably will be caused in the future; Any earnings he lost because he was unable to work at his calling; and any loss of earnings and lessening of earning capacity, or either, that he may reasonably be expected to sustain in the future; Any medical expenses incurred in the past and any that may be reasonably expected to occur in the future;
107 DAMAGES Mr. Smith Past Medicals Future Medicals Disfigurement Past Inconvenience Future Inconvenience Past Pain Future Pain Effect on Health $ $ $ $ $ $ $ $ TOTAL $
108 Instruction vs Chart Model Jury Instruction in determining the damages to which he is entitled, you shall consider any of the following which you believe by the greater weight of the evidence was caused by the negligence of the defendant Any bodily Injuries he sustained and their effect on his health according to their degree and probable duration; Any physical pain and mental anguish he suffered in the past and any that he may be reasonably expected to suffer in the future; Any inconvenience caused in the past and any that probably will be caused in the future; Any earnings he lost because he was unable to work at his calling; and any loss of earnings and lessening of earning capacity, or either, that he may reasonably be expected to sustain in the future; Any medical expenses incurred in the past and any that may be reasonably expected to occur in the future; DAMAGES Past Medicals Future Medicals Disfigurement Past Inconvenience Future Inconvenience Past Pain Future Pain Effect on Health $ $ $ $ $ $ $ $ TOTAL $
109 Elicit evidence for each element Pain & Anguish ambulance ride uncertainty regarding future medical problems Inconvenience number of medical appointments getting to appointments time spent waiting Disfigurement scars (including surgical scars) limp internal abnormalities Effect on Health impact of decreased quality of life (goes to parties but doesn t dance) restrictions/limitations on ADLs (buys milk in smaller containers) hobbies/activities previously enjoyed (previously ran, now walks) side effects of medications (upset stomach)
111 1) Avoid Personal Opinion Statements 2) Avoid $ Amounts Not Based on Evidence
112 Warning #1: Avoid Personal Opinion Statements in Closing Don t say: I believe this is a fair amount. Don t say: My client believes this amount is reasonable. KEEP IT SIMPLE: WE ARE ASKING FOR..
113 Warning #2: Avoid $ Amounts not Based on Evidence Opinion states: The plaintiff is allowed to break the lump sum into its component parts and argue a fixed amount for each element of damages claimed as long as the amount is not based on a per diem or other fixed basis. What does this mean?
114 Don t make a Per Diem or Fixed Basis Argument Avoid use of mathematical formulas Avoid use of arbitrary fixed ratios or numbers Examples: DON T SAY We are asking for $1,000 per day for 100 days. DON T SAY We are asking for FIVE TIMES the Medical Bills. DON T SAY Medicals = $100,000 therefore Future Pain = $100,000 Do make an argument CORRELATING amounts with the evidence
115 Discovery Open Questions
116 New Defense Attacks on the Chart: Discovery Phase SAMPLE INTERROGATORY: Describe and itemize the nature and amount of every claim for damages, including past, continuing, and future damages, that you seek to recover in this action, including, but not limited to, medical and hospital expenses, pharmaceutical expenses, lost wages and income, future inconvenience, future physical pain, or mental anguish and describe in detail the method used to calculate each item of damage if such method would not be self-evident from the details provided. ANSWER: OBJECTION: To the extent that this question seeks attorney work product and seeks final amounts that will be requested by Plaintiff s counsel from the jury at trial, after all evidence has been received, it is objected to.
117 New Defense Attacks on the Chart: Discovery Phase Deposition two parts: 1) Describe the Evidence 2) What amount? Example Questions: Tell me all facts of which you are aware which support your claim that this injury has had an effect on your health. 2) What amount are you seeking for the effect this injury has had on your health? 1)
118 The Future: Open Questions on the Use of the Chart Question: Can you break down each element into sub- parts, based on the Evidence? Example: Past Pain and Suffering Hospitalization (1 week) Rehabilitation (8 weeks) Surgery (rods/ pins) Total Past Pain and Suffering $ 25,000 $ 75,000 $125,000 $225,000
119 Answer: Maybe, if you can show a real basis in the evidence. Baylor v. Tyrrell, 131 N.W.2d 393 (Nebraska 1964) Supreme Court of Nebraska allowed it. Court noted that the different categories for which pain was assigned bore some real relation to the evidence.
120 Conclusion Go forward Try lots of cases Win big verdict$ for your clients
121 TRIAL ADVOCACY CLE FAIRFAX BAR CONVENTION MONTREAL, CANADA -- OCTOBER 3-6, 2013 JUDGE ALDEN (RET.) SUMMARY JUDGMENT Code Section Has been revised so that RFA for which the responses are submitted in support of a motion for SJ may be based in whole or in part upon discovery depositions (so may include admitted facts learned or referenced in such deposition), as long as the RFA does not reference the deposition or require the party to admit that the deponent gave specific testimony. Furthermore, (B) now permits a motion for SJ seeking dismissal of a claim for punitive damages to be based in whole or in part on discovery depositions under Rule 4:5, except where the claim for punitives grows out of a DWI. The prohibition against use of deposition testimony to support a motion for SJ without agreement of the parties, applies also to motions that are the functional equivalent of SJ, such as motions in limine regarding expert testimony, motion to dismiss for lack of jurisdiction, SOL. Rule 3:20 and DO NOT apply to the use of depositions to oppose SJ. Lloyd v. Kime, 275 Va. 98 (2008). RULE 3:11 If a pleading or affirmative defense sets up a new matter and contains words expressly requesting a reply, the adverse party must admit or deny within 21 days or the matter is taken as admitted. NoVa Real Estate v. Martins, 283 Va. 86 (2012) In a 5 th affirmative defense, D asserted that Neither P ever had a contract with the owner of the subject property, nor did either have a reasonable business or contractual expectancy which could supply a claim of tortious interference. A Reply is requested pursuant to Rule 3:11 and 1:4. The P failed to reply and the facts were deemed admitted before trial. SERVICE OF PROCESS Domestic Corporation : Personal service on officer, director, or registered Agent. If Plaintiff cannot find the R/A, serve the Clerk of the State Corporation Commission (SCC). 1