Appellate Law

L. Steven Emmert *


Several years ago, the idea of a purely appellate practitioner was almost unheard-of in Virginia, outside government circles. Appellate practice was widely regarded by the practicing bar as a necessary adjunct to trial practice, not as a viable separate field in which to earn a living. Today, the field is experiencing a modest burst of growth. Senior Justice Elizabeth B. Lacy, addressing a symposium sponsored by the Virginia State Bar‘s Appellate Practice Committee in 2009, noted “the rise of an appellate bar” in the Commonwealth and expressed the view that this was a healthy development. By one modern measure, interest in this field of law in Virginia has clearly expanded, as the number of websites devoted to appellate practice—of which there were none as recently as late 2004— continues to grow.

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*Partner, Sykes, Bourdon, Ahern & Levy, Virginia Beach, Virginia. J.D., 1982, University of Virginia School of Law; B.A., 1979, Richmond College. The author is the principal publisher of Virginia Appellate News & Analysis, established in 2005 and available at

Civil Practice and Procedure

John R. Walk *

Andrew P. Sherrod **


This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2009 through April 2010 addressing civil procedure; significant amendments to the Rules of the Supreme Court of Virginia made during the same period; and legislation enacted by the Virginia General Assembly during its 2010 session relating to civil practice.


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*Shareholder, Hirschler Fleischer, P.C., Richmond, Virginia. J.D., 1980, University of Richmond School of Law; B.A., 1977, College of William & Mary. Mr. Walk is an Adjunct Professor of Law at the University of Richmond School of Law

*** Principal, Hirschler Fleischer, P.C., Richmond, Virginia. J.D., 2000, University of North Carolina at Chapel Hill School of Law; B.A., 1996, Hampden-Sydney College.

Construction Law

Christopher G. Hill *


The 2010 bill that will likely have the most impact on the construction industry is the amendment to Virginia Code section 54.1-411. The amendment to the Virginia Code removes language precluding the use of limitation of liability clauses by design professionals. In its place, the General Assembly substituted language stating that the change does not relieve individuals practicing in the covered professions from any liability arising from his or her employment with a covered entity.


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*LEED AP, Construction Attorney, The Law Office of Christopher G. Hill, PC, Richmond, Virginia. J.D., 1997, Washington University School of Law; A.B., 1994, Duke University

Criminal Law and Procedure

Virginia B. Theisen *

Stephen R. McCullough **


In Murillo-Rodriguez v. Commonwealth, the Supreme Court of Virginia, in a lengthy, unanimous opinion, explicitly held that a criminal defendant in a jury trial waives his motion to strike made at the conclusion of the Commonwealth’s case when he presents evidence on his own behalf. Therefore, a defendant who presents any evidence must renew his motion to strike at the conclusion of all the evidence, or present a timely motion to set aside the verdict. If he does not do so, the appellate court will not consider his challenge to the sufficiency of the evidence.

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*Senior Assistant Attorney General, Criminal Litigation Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 1984, Marshall-Wythe School of Law, College of William & Mary; B.A, 1981, College of William & Mary.

**Senior Appellate Counsel, Office of the Attorney General, Commonwealth of Virginia. J.D., 1997, University of Richmond School of Law; B.A., 1994, University of Virginia.

Environmental Law

Caleb A. Jaffe *
Sean M. Carney **


This past spring marked the fortieth anniversary of Earth Day, first held on April 22, 1970.  As the Washington Post reported, the milestone was “cause for celebration—and a mid-life crisis.” The reason for celebration was self-apparent: modern environmental regulation, from 1970 to today, gave us healthier air and cleaner water, and preserved cherished wild places. In addition, thanks to the “technology-forcing” design of many major environmental statutes, environmental regulation fueled greater economic prosperity by spurring industrial innovation. As the economists Michael Porter and Claas van der Linde famously articulated, “Firms can actually benefit from properly crafted environmental regulations that are more stringent (or are imposed earlier) than those faced by their competitors in other countries. By stimulating innovation, strict environmental regulations can actually enhance competitiveness.”

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*Senior Attorney, Southern Environmental Law Center and Lecturer, University of Virginia School of Law.
**J.D. Candidate, May 2011, George Mason University School of Law.

Medical Malpractice Law

Sean P. Byrne *
Lauran G. Stimac **


Health care reform took center stage on a national level over the past year. Despite suggestions that medical liability reform might be incorporated into the federal legislation, in the end, it was not. Similarly, this year saw few legislative developments at the state level in medical malpractice law, as the Virginia General Assembly focused its energy primarily on the budget shortfall and other issues. There were, however, several health care legislative and case developments of note which will impact the medical liability landscape in the coming years. Board of Medicine activity and medical malpractice trial results of interest are also highlighted as we look back at the year‘s noteworthy legal developments in Virginia medical malpractice law.

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*Director, Hancock, Daniel, Johnson & Nagle, P.C., Richmond, Virginia. J.D., 1997, University of Richmond School of Law; B.A., 1993, University of Richmond. Mr. Byrne‘s practice concentrates on medical malpractice defense and health care risk management. He is also an Assistant Adjunct Professor at the University of Richmond School of Law.
**Associate, Hancock, Daniel, Johnson & Nagle, P.C., Richmond, Virginia. J.D., 2007, University of Richmond School of Law; B.A., 2004, University of Richmond. Mrs. Stimac‘s practice also concentrates on medical malpractice defense and health care risk management.