Legal reforms supported by Boyd-Graves
By Peter Vieth, Virginia Lawyers Weekly – 11/3/2014
Lawyers handling domestic relations appeals could have a mechanism for an award of attorneys’ fees under one proposal approved by the Boyd-Graves conference this year.
The annual meeting of the civil procedure study group concluded Oct. 25 with six recommendations for improvements in Virginia civil litigation. The group reports only those proposals that received resounding support from the gathering of lawyers, academics and judges.
This year, the panel proposed amendment of Rule 5A:30 to provide for awards of appellate attorneys’ fees in domestic relations cases. The amendment would specify the procedure for such awards, according to Boyd-Graves chair L. Steven Emmert.
Another emerging recommendation is to require notice to state lawyers when a litigant in a civil case challenges the constitutionality of a state statute or a provision of the Virginia Constitution.
The suggestion came from current Virginia Solicitor General Stuart A. Raphael, Emmert said.
If you’re attacking the constitutionality of a state law, “you have to give the AG a chance to come in and defend it. Or, possibly, agree with you,” Emmert said.
The Boyd-Graves proposal calls for enactment of a new statute, Code § 8.01-7.1, to require the notice.
No-fault divorces could be easier under another Boyd-Graves proposal. Suggested amendments to Code sections 20-97 and 20-197 would provide for the use of affidavits to establish certain jurisdictional requirements in divorce actions.
With another proposal, statements made during settlement negotiations would not be admissible, even in criminal actions, under a proposed change to Rule 2:408 of the Rules of Evidence.
The conferees say a revised form for qualification of a personal representative of a decedent’s estate could avoid a disastrous misstep for later litigation.
In the 2010 opinion of Antisdel v. Ashby, the Supreme Court of Virginia barred recovery for family of a decedent who may have had “survival” claims for personal injuries suffered before his death. The personal representative had been appointed only for purposes of a wrongful death action, not for a survival lawsuit.
A revised statewide, uniform form to permit the representative to sue for personal injury, wrongful death or both would remove any such barriers, the Boyd-Graves conferees said.
The change would “defang the dragon of Antisdel v. Ashby,” in Emmert’s words.
Finally, a proposed change would fill a gap in statutory language regarding temporary injunctions. Currently, Va. Code § 8.01-628 requires a court to be “satisfied of the plaintiff’s equity” before awarding a temporary injunction.
Boyd-Graves members would add the following: “An application for a temporary injunction may be supported or opposed by an affidavit or a verified pleading.”
Currently, the heading for the statute refers to the use of affidavits, but the statute itself does not.