23 Jul “Sea Change” in Virginia Evidence
The new rules of evidence went into effect throughout Virginia on July 1st, and as one legal expert stated, it represents a “sea change” within the legal community. Virginia has relied upon a mixture of case law and common law to govern rules of evidence, but now there are rules. The biggest difference is that rules represent black and white mandates, whereas case law has gray areas allowing judges and lawyer room to argue and mold them to suit their purposes.
In a Fairfax Bar Association Seminar the following rules were selected as having the greatest impact:
- The contemporaneous objection requirement of Rule 2:103. The objection must be made with “reasonable certainty,” under the law.
- Character evidence allowed under Rules 2:404-405.
- Offers to compromise (Rule 2:408) this rule allows into evidence an admission as to liability or an admission concerning an independent fact pertinent to a question in issue. Attorneys often speak or write to each other in confidence and this rule could place these type of candid, often constructive, conversations on ice permanently.
- Evidence of repeated abuse of the defendant by the victim, Rule 2:409. The new rule allows evidence of psychological abuse, which some judges may have prohibited.
- Impeachment of witnesses, combination of Rules 2:607-609).
In short, the offers in compromise change alone warrants close examination by personal injury attorneys and underscores the importance of all attorneys at least perusing the Rules for any changes that could affect their practice.