My Experience as a First Year Attorney
August 16, 2024
Reflections by Wes Witmeyer
I should preface this article with the following disclaimer: I work at The Witmeyer Law Firm, owned by Carl J. Witmeyer, II; my father. That being said, I believe that I have endured the same struggle that all first year attorneys have had to endure following graduation from law school and passing the Bar.
In some ways my experience has been easier and in some ways, it has been more difficult. Yes, I did not have to applying and interview with various Firms. Conversely, I was thrown into the pool and told to sink or swim when I was given different types of cases without much direction and training. Any lawyer reading this should know, though perhaps won’t want to admit it, that law school does not necessarily prepare you to be a lawyer. I do not want to discuss the shortcomings of The Appalachian School of Law as it allowed me to attend law school in Virginia and served the purpose for which I needed it (a law degree and therefore the opportunity to sit for the Virginia State Bar Exam). However, like most law schools; in my opinion, I was taught more about legal theory and less about legal practice. Yes, I was able to take an elective class, trial advocacy, taught by my favorite part-time professor and full-time powerhouse litigator in Southwest Virginia, Tom Scott; but even that experience did not fully simulate trying a case in front of a Judge in a court room; despite his best efforts to do so (note: it’s impossible to fully simulate trying a case in front of a Judge in a court room). My school also offered a two week summer course that focused on running a law office, but I was unable to take it. Such a class should be a required course at any law school as should trial advocacy because regardless of the path you take in your legal career, understanding what it’s like to try a case or own a law office is vital to anyone with a law degree as it is more likely than not that you will do one or both of those things at some point during your career. I call for law schools to do two things: teach to the Bar Exam and offer more practice based classes. I cannot say, with certainty, that there are not schools that do that already; but rather, I believe that all schools should do that.
I digress. This article’s purpose is to discuss my experience as a first year attorney with the hope that it gives insight to other young lawyers, or those readers still in law school wondering what to expect in their first year of practice. As I have stated, I work with my father at his firm. We are a small firm with three attorneys, two paralegals, a secretary and a part time book keeper. We practice predominantly family law, including custody, visitation, child and spousal support, fault and no-fault divorces. We also do criminal defense, traffic law, civil litigation, personal injury law and wills. We pride ourselves on being general trial practitioners and I personally have come to appreciate the time I am able to be in court trying cases.
I found out (via text message, one of the many shortcomings associated with my generation) that I passed the Virginia State Bar on Thursday, October 9, 2014. I was in the Caroline County Juvenile and Domestic District Court trying a case a week later. I was thrown into the pool and told to sink or swim. I had to be individually sworn in by each Judge that I practiced in front of until I was officially sworn in by the Supreme Court of Virginia on December 2, 2014. I understand that a lot of young lawyers, especially those without full-time law jobs, are thinking that I am ungrateful for having been given cases to try before I was even officially sworn in. I assure you, my situation was both a blessing and a curse.
Yes, I am lucky to work with my father who refers cases to me that I would not get on my own. However, without any experience, I was put into a situation where I had to try cases that, given my lack of any court room experience, I was not ready to try; but, like other times in my life, I had to figure it out. As I write this article, I am in my second year of being an attorney and despite having practiced law for a year, I still have to prepare for every case as if it’s the most important case of my career; because it is. I have learned more about being a trial lawyer in my first year as an attorney then I did in my three years in law school. Again, that’s not a slight at law schools, it’s just reality. And yet I am still learning and anticipate that I will always be learning.
I will end with five things that will hopefully assist others in their first year of being a trial lawyer:
Learn to lose: The most important advice I can give anyone who practices law is to remember that it’s called the practice of law for a reason. Even the best lawyers lose trials sometimes and you cannot allow a loss to negatively affect your performance on another case. Often times, losing a case will be outside your control. I have had many cases where I prepared as much as possible, performed near perfectly in the court room and still lost. Maybe the facts were against you, maybe your client wasn’t honest with you and despite a thorough investigation into the facts, you were blindsided by case changing, admissible evidence. Or, my least favorite way to lose a case, maybe the Judge ignores the law and decided to rules against your client based on their feeling. Whatever causes the loss is irrelevant; it’s how you respond. A lifetime of playing sports has instilled in me the mentality that you must move on from a loss and focus of the next game. Similarly, do not dwell on a loss or a poor performance in court. Learn from the experience and move onto the next case.
Work smarter; not longer: Put your ego aside and learn how to be a lawyer. I don’t care if you were law review; if you had a 180 LSAT score; if you went to a tier 1 law school; or if you were an intern with a major firm, all first year trial lawyers start out at the bottom knowing less than the older, more experienced attorneys who we face in court. The best way (in my opinion) to become a successful trial attorney is to continue learning the law and to prepare for every case. I won’t pretend that I work 80 hours a week and spend my weekends at the office (the young lawyers who say they do this are either lying or wasting time sitting in their office, not working). Admittedly, I could probably work more hours than I currently do. However, my advice is not to work longer, it’s to work smarter. When asked what I can do to become a better lawyer, my father responds by saying “read the code!” Wow! So simple. Just read the code (the Virginia Code; Virginia’s laws), but there is more to it than that. What he means is read the statutes in the Virginia Code, read the Rules of the Virginia Supreme Court and research case law that is applicable to the cases you have. But I just spent three years reading…a lot. Now you’re telling me to spend my time studying? When you have free time (even if you don’t think you have free time; you do) you should be studying the law. The law is so expansive that no matter how smart you are (or think you are, for some lawyers), you will never be able to remember every aspect of every area of law that you practice. By study, I don’t mean it in the sense that you should create an outline (or download one) as if you are going to have to IRAQ an essay question. I mean that you should examine the law as it relates to the cases you currently have. The most dreaded question a Judge can ask you is, “what authority do I have to do that?” and the best feeling in the world is when you can respond with the statute, rule or case which outlines their authority to do that. As boring or difficult as it may seem, learn to work smarter.
Try different areas of law: The best way to gain experience as a young trial lawyer is to try as many different types of cases as possible. I’m not encouraging you to take on a complicated case for which you have no way of preparing for, but you should not limit your growth as a trial lawyer by focusing on one or two areas of law fresh off of passing the Bar. Rather, you should be willing to take on various types of cases and not be afraid to try cases in the General District Court, the Juvenile Court and the Circuit Court. I try different types of cases in all three courts which forces me to learn various areas of law as well as sharpen my abilities as a trial lawyer. There is a big difference between taking an evidence course and trying a case where you have to make and argue for objections regarding testimony. (Side note: I’ve gotten positive feedback from one Judge who appreciates that I state my objection and give reasoning for my objection. This is not always done by more experienced lawyers, but it seems to be appreciated by Judges. Yes, we all know the witness’s testimony was hearsay and why it was hearsay, but that doesn’t mean you should ignore the procedure of objecting on the basis of hearsay and explaining why it is hearsay!) Do not be afraid to try different areas of law in different courts.
It’s all about relationships: My father reminds daily that the practice of law is all about relationships; and he’s right. You have to take the extra five minutes following Court to converse with the bailiffs, clerks, Judges, Commonwealth’s Attorneys and other lawyers. Attend Bar functions (especially the ones that take place at bars) and get to know other lawyers. Take the time to get to know your clients (this can also help you with their case; especially with custody and visitation). Your reputation directly correlates to your success as an attorney and building relationships with those involved in the practice of law will result in having a good reputation. Building relationships with people will also get you business. Our firm often gets referrals from deputy clerks, Judges, deputy sheriffs (all from other jurisdictions, of course), other lawyers and former clients. Getting a referral from someone as a young attorney is a rewarding feeling because it means that someone believes that you are capable of taking on a case. Take the time to build relationships and it will greatly impact your practice of law.
Being an attorney is what you do, not who you are: Last, but probably the most important advice I can leave you with is do not allow your job to control your life. The stress of being a trial attorney can be, at times, unbearable. You have to find ways to manage that stress. I initially struggled with this, but have more recently been able to find ways to manage the stress of being a young inexperienced lawyer. I play in an adult ice hockey league, I enjoy live music, going to sporting events and I try to go out and be social as often as possible to get away from work and be around my friends and family. Find activities that allow you to relax and forget about the stress that is associated with being an attorney. I will leave you with this: when it comes to the practice of law, don’t sweat the small stuff and it is all small stuff.
A. Applicable Law and Procedure There are three types of Protective Orders. There is an Emergency Protective Order (EPO), Preliminary Protective Order (PPO), and a Protective Order (PO). The general understanding of a Protective Order is that it is a legal Order either issued by a Magistrate or a Judge to protect a person from physical abuse or threatening behavior by another person, usually a spouse or some other family member. A Protective Order can be issued in cases of domestic violence and stalking and should only be issued under the Virginia Statute to protect the health and safety of an abused person and/or his or her family or household members. Family abuse means any act involving violence, force or the threat of violence, including but not limited to any forceful detention, which results in bodily injury or places a person in reasonable fear of bodily injury. Family abuse can only be restrained by a Protective Order, if the abuser is a family or household member of the victim. An EPO may order the abuser to stop the abuse or threatening behavior; prohibit the abuser from contacting the alleged victim either at home, at work, or by phone, directly or indirectly. It also may order the abuser to be removed from the marital residence or the home that they share with the victim and provide other relief as is necessary, such as possession of vehicles, or temporary custody or visitation, etc. An EPO may be obtained as soon as possible, after the victim is either assaulted or threatened with serious bodily harm and it can be issued by a magistrate, sheriff, or other law enforcement officer. The Magistrate is an officer of the Court who may issue Protective Orders preliminary and under an emergency and Law Enforcement Officers may call the Magistrate or Judge for an EPO to be entered. The victim can also request that an EPO be entered in person at the office of the Magistrate or in the Juvenile and Domestic Relations District Court, in the City/County where the abuse occurred. Unfortunately, the abuser has to be served with a copy of the Order when entered so that they are aware of the conditions of the Order, or the Order will not be in effect. The Order is in effect as soon as it is served properly on the alleged abuser. An EPO lasts 72 hours or until the next scheduled Court date, whichever is later. They are entered with the exact termination date and time, depending on the Court's calendar and scheduled Court vacations, etc. Lawyers should advise the victims to petition for a Preliminary Protective Order before the EPO expires. The Preliminary Protective Order like the EPO, is a legal order that stops the abuser or the threatening behavior, it also prohibits contact by the abuser directly or indirectly and can also order the abuser to be removed from the home and/or residence that is shared with the victim. In addition to what can be done with an EPO, a PPO, also may grant exclusive use and possession, but not ownership to a home and/or residence that is jointly owned and also grant temporary custody and visitation of the children that the victim and abuser have in common, and provides for the catch phrase, "other relief as necessary". The PPO must be obtained in a reasonable time; normally a short time after the abuse or threat has occurred. You do not have to receive an EPO to receive a PPO. The abuser does not have to be available in Court or notified of an exparte petition and request for a PPO and it can be done through intake at the Juvenile and Domestic Relations District Court in the County where the threat and/or abuse occurred. It can only last up to 15 days. As most of you know, a Preliminary Protective Order unusually lists a date and time for the Order to be terminated or continued, and then grants notice of the scheduled hearing date and time. The final type of Protective Orders is the Protective Order, which does all of the above as discussed with the EPO and PPO. In addition the Permanent Protective Order may require the abuser to receive treatment or counseling. Virginia Code Section 20-103 which is the Pendente Lite Statute also allows for the Court in a divorce action or in an action for separate maintenance, filed in the Circuit Court, to grant exclusive possession of the home resided in by the married persons. That protection is temporary and also can only be considered in divorce actions. The Code section that allows for exclusive temporary possession of the residence for one of the parties to the divorce does not necessarily require a finding of abuse. I have successfully argued in different Courts, in fact, that evidence of adultery or desertion either financially or physically, should allow the Court jurisdiction under Virginia Code Section 20-103 to grant exclusive possession of a marital residence without the evidence of physical abuse. A Final Protective Order is only entered after both parties are given reasonable notice of a scheduled hearing and it can be extended for up to two years. Most of the procedures that litigants ask of me in reference to Protective Orders indicate that most of them know of the procedures generally, and understand that they probably can receive a PO, as long as they can convince a magistrate or a Law Enforcement Officer or ultimately a Juvenile Court Judge that they have a reasonable fear of bodily injury, either by conduct or threats by the alleged abuser. Protective Orders do not cost anything and legal representation is not required. Protective Orders do not require criminal charges to be made, either at the same time or later. However, it is important to note that a Stalking Protective Order does require that a warrant for the stalker's arrest be obtained, so that the victim is eligible for a Stalking Protective Order, which will be discussed later on in this seminar. Protective Orders from another State are valid and enforceable in Virginia, if they are registered in the appropriate Juvenile and Domestic Relations District Court where the victim is residing and/or visiting and a certified copy of that Order from out of State, needs to be registered. It is important that the victim that has received the Protective Order follow the terms and conditions of the Order and attend all hearings that are scheduled, report all violations of the Order by the abuser, and keep a copy of the Protective Order that has been issued and signed by the Judge on their person at all times. Most importantly, it is important not to violate the Protective Order from the other side. Deliberate contact with the abuser should be avoided and eliminated. Procedurally, it is important that the details are specified, when describing the stalking and/or abuse, to include the dates and times and other details with accurate note taking. It is also important to describe exactly what the abuser has done, to demonstrate or describe any injuries received or property damage caused by the abusive act, and have witnesses available to collaborate what you have reported. B. Uses and Abuses Most clients understand that a Protective Order is a piece of paper and that it does not carry the respect of the abuser, even after being served by the Police. The Proctive Order is normally read by the Law Enforcement Officer, to the abuser, in total, at the time of service and normally the Law Enforcement Officer will ask the abuser if they have any questions or if they have any misunderstanding about the import of the Protective Order. Unfortunately, domestic violence is very common and does effect children more than anyone, along with the victims. Any type of violence, including a slap is disfavored in our society. Of course, it is not a natural part oflife and certainly, not married life. Women who are abused victims do not want to be beaten, they do not usually provoke this type of behavior, and do not deserve to be beaten. Abuse can occur in a same sex relationship also. My practice has been primarily focused on domestic relations and family law for almost 32 years, and Protective Orders did not exists in the form that they now exist. I believe that they were originally passed into Law in 1991. Many people abuse their need for Protective Orders to gain an advantage in a domestic or divorce situation. Most Judges are mindful ofthat abuse of the system. Most Judges do not extend the Protective Order for a two year period, as it can be extended or modified at a later date. Most Judges in the Richmond Metropolitan area extend a PO for a year or less. The entry of a Protective Order can be appealed by either party to the Circuit Court, which is a separate matter from a divorce that may be pending in the Circuit Court on behalf of the same parties. Some Judges in the Richmond Metropolitan area just routinely grant Protective Orders for two years, without a real finding of abuse or threat of reasonable bodily harm. The Statute used to contain the adjective of "serious" bodily harm and that was later removed after one of two years of Judges trying to understand and determine what "serious" meant. A PO is granted not just based on bodily injury but also the threat of bodily injury or harm. There is also not a presumption of abuse. The Court should very carefully consider the entry of a Permanent Protective Order against an alleged abuser, unless there is evidence that is substantial that should allow for a PO for a two year period. C. Ramifications, including special circumstances for Law Enforcement Personnel Most local Sheriffs Department have taken the position that unless the Protective Order specifically states that the abuser is allowed to retrieve personal property or clothing from the home or residence or otherwise, then they can not be involved in that process and will not be involved in that process because it would authorize a violation to occur of the Protective Order. It has taken years for the Judges and Law Enforcement Officers to coordinate their concerns in reference to these types of ramifications and it is also important, to consider that a Protective Order does not stop violence necessarily nor does it shield violence, and in fact, at times it can generate violence. I will discuss, during my presentation, an exact case that I was involved in which generated extraordinary violence simply as a result of a Protective Order being issued and served the alleged abuser, when he felt at least, in his own mind, that no abuse had ever occurred. He actually committed multiple felonies and spent 20 years in a penitentiary because of his reaction and violation of the Protective Order when entered. In addition to the Preliminary Protective Order that can be entered, pursuant to Virginia Code Section 16.1-253, there is also a Preliminary Code Section in cases of family abuse under Virginia Code Section 16.1-253.1. The first Statute listed allows the Court, on its own Motion, to issue a Preliminary Protective Order, after a hearing only, to protective a child's life, health safety or other normal development, pending a final determination of any matter before the Court. Any matter can generate a Court's Motion for a Preliminary Protective Order under Virginia Code Section 16.1-253 and it may be issued exparte, as long as it is supported by an Affidavit or sworn testimony in front of a Judge and as long as the Judge believes that a child would be subject to a threat of life or health to the extent that any delay in the entry of an Order for an adversary hearing would be likely result in serious or waiting injury to the child's health. The Court shall state the basis for the Preliminary Protective Order in reference to a child under this Code Section and make a summary in reference to all allegations made and the Court must make a finding in writing. The Protective Order may only be issued for five (5) business days or less, and notice of a hearing involving all parties must be given at least 24 hours in advance of any hearing to the appropriate parties. A Preliminary Protective Order in cases of family abuse under Virginia Code Section 16.1-253.1 can only be entered after the filing of a petition. The Court may not do so on its own Motion. Virginia Code Section 16.1-253.4, is interesting, in that a District Court Judge, a Circuit Court Judge, a Domestic Relations Judge or Magistrate may issue a written or oral exparte Emergency Protective Order when a Law Enforcement Officer or other alleged abusive person asserts under oath to that Judge or Magistrate that abuse has occurred. I do not know how an Oral Order can be entered nor do I know how an Oral Order can be served, and I believe it would be easily defended if it was simply an Oral Order. Virginia Code Section 20-103 states that in all suits for divorce or separate maintenance, the Court may under Subsection A, grant exclusive use and possession of the family residence during the pendency of this suit. As discussed earlier, the ability by the Court to Order that, does not require any evidence of abuse. Subsection B states that, in addition to the terms provided in Subsection A, a Court may grant exclusive use and possession of a residence, if there is a showing of a reasonable apprehension of physical harm to a party by the party's family or household member as defined in Virginia Code Section 16.1-228, then the Court may enter an Order excluding the party's family or household member from the jointly owned or jointly rented dwelling. If the Order is entered exparte, then the Order shall not exceed 15 days from the date the Order is served, which again, is different from the Emergency Protective Order or temporary Protective Order entered in the Juvenile Court or by the Magistrate, as it is 15 days from the date entered before a hearing is held, and also the Order can provide in its own terms for an extension of time beyond the 15 days to be effective automatically. Virginia Code Section 18.2-60.4, makes it a class 1 Misdemeanor to violate any provision of a Protective Order, and Virginia Code Section 19.2-152.9 states that as long as a petition has been filed, alleging that there has been abuse, stalking or criminal offense resulting in a serious bodily injury to the petitioner, and the allegation is made within a reasonable period of time, and further, that a warrant has been issued for the arrest of the alleged abuser, then the Court may issue a Preliminary Protective Order. Virginia Code Section 19.2-152.10, indicates that Protective Order may be issued to protect the health and safety of any petitioner and family or household members, upon the issuance of a warrant for criminal offense resulting in serious bodily injury or in violation of Virginia Code Section 18.2-60.3, and a hearing must be held pursuant to Subsection D of Virginia Code Section 19.2-152.9 or a conviction of that criminal offense for a violation of 18.2-60.3 or a criminal offense resulting in serious bodily injury to the petitioner only. A Protective Order issued under this Code Section may prohibit criminal offenses in the future, prohibit contacts by the respondent with the petitioner or family or other household members as is necessary, to protect the health and safety of such person, and any other relief necessary to prevent future criminal offenses including injury to person or property, acts of stalking, or communication or any contact of any kind and further these Protective Orders may be issued for up to two (2) years. D. Defending Against Them—5th Amendment Issues Representing a respondent against a Petition for a Protective Order by a spouse or other family member is very difficult. Often, the evidence is simply a "he said" "she said" dispute and most Courts believe the victim over the alleged abuser or respondent. The Standard of Proof is only a preponderance of the evidence. If there is an attending criminal charge, it is probably better not to have the respondent testify in a civil action to defeat the entry of a Protective Order, since that evidence can then be used against the respondent in the criminal matter, which would violate his 5th Amendment rights to remain silent. Certainly, knowing the criteria that Judges use in each individual jurisdiction, being familiar with procedures and the general nature of each Judge within each jurisdictions as to their past history in entering or denying Protective Orders, and most importantly, knowing what acts trigger the issuance of a Protective Order in every case by certain Judges are paramount considerations when defending against the entry of Protective Orders. Reminding the Court continuously, that the extension of up to two (2) years is a discretionary act and it is not mandated or required, and further, if a divorce is pending, trying to convince counsel for the alleged victim to replace a Protective Order with a no contact Order in a divorce action would be preferable to both parties, is an appropriate resolution.
There are numerous Statutes in Virginia that reference the enforceability of prior Court Orders and Contempt proceedings. Specifically, Virginia Code Section 16.1–69.24 indicates that a Judge of a District Court shall have the same powers and jurisdiction as a Judge in the Circuit Court to punish summarily for contempt, but in no case shall the fine exceed $250.00 nor may the imprisonment exceed 10 days for one contempt citation. Additionally, such fine and sentence shall be appealed as a matter of right, within the period described in the Code, which is 10 calendar days, to the Court designated for the Appeal. The Circuit Court shall conform in all respects to the provisions of Virginia Code Section 18.2–456–459. This Code Section has been in effect since 1972 in similar form and it does give the Court the Statutory power to carry out the general provisions in the Virginia Code. The case of Hanson v. Commonwealth, April I, 1997, sets the standard for what evidence is sufficient to find a litigant in contempt of Court. The evidence in this case was sufficient to find that the defendant willfully disobeyed a Court Order, indicates that the standard should be a willful disobeyance of the Court Order, not an inadvertent disobeyance of the Court's Order. The evidence for the litigant to be found in Contempt of Court again is to show that it was a willful or intentional disobeyance or violation of the Court Order. Additionally, Virginia Code Section 16.1– 69.25 allows for a Judge in a District Court, within the scope of their general jurisdiction in the area to which the Court serves, to issue warrants, summons and subpoenas, including subpoena duces tetlims or other process in civil, traffic and criminal cases to include fugitive warrants and conduct proceedings thereon in accordance with the provisions. Additionally, Virginia Code Section 16.1– 69.25 allows for a Judge in a District Court, within the scope of their general jurisdiction in the area to which the Court serves, to issue warrants, summons and subpoenas, including subpoena duces tetlims or other process in civil, traffic and criminal cases to include fugitive warrants and conduct proceedings thereon in accordance with the provisions. This discretionary and summary authority of a Judge in the District allows for these processes to be issued within the jurisdiction of the Court only. Virginia Code Section 16.1–279.1 which deals with Protective Orders in cases of family abuse allows for the Court, in its discretion, to enter orders to include any relief necessary for the protection of a petitioner and family member or household members of the petitioner and a Protective Order that is issued pursuant to these Code Sections can also allow for a temporary custody or support Order. A Protective Order issued in this regard can only be issued for a specific period of time or as otherwise authorized by law. Any violation of such Protective Order, whether entered exparte or after notice to all parties, shall constitute contempt of Court. Please see subsection © of the aforesaid Statute. The Court may also assess costs and fees to either party, even if the Protection Order is entered after a full hearing. Virginia Code Section 16.1–253.2 speaks specifically of violations of any provisions of a Protective Order. In addition to any other penalty provided by law under the genera! contempt Statute previously cited for other criminal sanctions, any person who violates any provision of a Protective Order issued under Virginia Code Section 16.1–253,253.1, 253.4, 278.14 and 279.1 or subsection B of Virginia Code Section 20-103, shall be punishable as contempt of Court and is guilty of a Class 1 misdemeanor. Punishment for any persons committing a second offense, within 5 years of a prior conviction, when either the instant offense or prior offense was based on an act or threat of violence, shall include a mandatory minimum term of confinement of 60 days. If a person is convicted of a third offense of violating a Protective Order.. when the first offenSe is comnutted within 20 years of the first conviction is guilty of a Class 6 felony. Said punishment shall include a mandatory miilimum of 6 months jail time. These penalties are harsh obviously, and I had a case where my client made four separate violations of a Protective Order on the same day, and faced a Class 6 felony with mandatory minimum term of jail time for 6 months. Despite an Order not to contact his wife, he texted her to say happy birthday, he sent her a happy birthday card by mail, left her a voice mail message saying happy birthday and he also sent her flowers. Those four violations, if convicted of each, could constitute a Class 6 felony with a mandatory jail term of at least 6 months. Fortunately, the Juvenile Court saw the wisdom of my argument and found my client guilty of only one (1) violation which resulted in my client only doing one weekend in jail. Again, the first violation of a protective order is a Class I misdemeanor, punishable by up to 12 months in jail and also a $2,500.00 fine, but can also be summarily disposed of with a fine less then $250.00 and 10 days in jail for the violation, under the general contempt Statute. More importantly, Virginia Code Section 16.253.2 states that upon conviction of any offense hereunder for which a mandatory minimum term of jail time is not specified, the person shall serve a term of confinement and in no case shall the entire terms imposed be suspended. The Court shall also enter a Protective order, pursuant to Virginia Code Section 16.1-279.1 for a certain period, no to exceed two years from the date of conviction. In other words, any conviction of a violation of the provisions of a Protective Order, will result in some incarceration. Virginia Code Section 16.1–292 indicates what happens to a person who violates a Court Order, entered by the Juvenile Court. It states that the Court, in addition to the powers under that Code Section, also may have power to punish summarily for contempt acts as set forth in Virginia Code Section 18.2–456. In other words, the Court can summarily punish on general contempt Code Section and charge a $250.00 fine or less but also after Notice and opportunity to be heard, hold a second proceeding to the same offense, and order punishment of up to 10 days in jail or put a juvenile in a detention facility. If a person was a Juvenile at the time of the offense, but 18 at the time of disposition, the Judge may order confinement in jail, under this Code Section. Additionally, upon conviction of any verdict of contempt of Court in failing or refusing to comply with an Order of the Juvenile Court for support, the Court may commit and sentence a party to confinement injail, workhouse, city farm or work squad for an undetermined period or further Order of the Court. The Court can set a fixed period, not to exceed 12 months injail, or it can set the disposition off'for an undetermined period, not to exceed 12 months in jail or continue the matter until further Order of the Court. Generally, the Court will enter a purge clause pursuant to the Statutory Authority under Subsection B of the Virginia Code 16.1–292. The Code further states that the contempt power of the Court is not limited against adults, but the Court is limited with respect to a child violating the terms of an Order of the Court. It goes on to say that this limitation can not be construed to deprive the Court of its power to punish a child summarily for contempt set forth in Virginia Code Section 18.2- 456 or punish a child for contempt of violation of a dispositional order in a delinquency proceeding after notice and a hearing regarding contempt. The Court may also find that the child is in need of services and if they find that the child has willfully or materially violated for a second of time, the Court shall find the Court in need of services for any willful or material violation of an Order of the Court. A child may be taken to foster care, group home or other nonsecure residential facility. The Court has the authority to suspend the child's motor vehicle license for an indefinite period of time. A violation of a Protective Order is a Class 1 misdemeanor, if the violator or defendant is an adult. Pursuant to Virginia Code Section 18.2–60.4, any person who violates the provisions of a Protective Order issued in a stalking case, is also guilty of a Class 1 misdemeanor. If convicted, the Code states that the Court shall, in addition to the sentence imposed, enter a protective Order Tor a specific period not to exceed two years from the date of conviction. In other words, in both instances stated above, the Court has no discretion in whether or not it shall extend a protective order for up to two years, it only has the discretion to determine the duration or term of the proactive order. Finally, Virginia Code Section 18.2–456 speaks in situations where the Courts may issue attachments for contempt and punishment summarily, but it limits the types of cases that the Court has that authority to do so. The Court can only issue a summary contempt proceeding for misbehavior in the court or so near thereto that it would obstruct or interrupt the administration for justice; (2) for violence, threats of violence to a Judge or officer of the Court, to include juror, witness or party going to or returning from Court for any court proceeding; (3) any vile, contemptuous or insulting language to a Judge in Court on in a Judge's presence intended for his hearing; (4) misbehavior of an officer of the Court; and (5) disobedience or resistance of an officer of the Court, juror, witness, etc. or other person to any lawful process. No Court shall without a jury, for any such contempt as is mentioned in the first class stated in Virginia Code Section 18.2–456 impose a fine not exceeding $250.00 or jail time of 10 days. However in the case of a jury, the Court may, ascertain the fine or jail time proper to be inflicted and may give judgment according to the jury verdict. In Virginia Code Section 18.2–458, a District Court judge shall have the same power as a Judge of the Circuit Court. Virginia Code Section 19.2–11, indicates the proper procedure to be followed in contempt cases and states specifically that no Court or Judge shall impose a fine upon a juror, witness or other person for disobedience of its process or any contempt, unless that person is present in Court at the time of such sentence. If not, it shall be served upon said person with the Rule and notice of a certain time for him to Show Cause why a fine shall not be imposed or other disposition that the Court deems proper. Virginia Code Section 19.2–276, indicates that if a witness who was summoned to appear in Court or grand jury fails to appear without good cause to attend, shall be punishable as provided for in other Code Sections. Fortunately, most of the Summary contempt proceedings do require the party to be present before punishment can be inflicted on the alleged violator. No Court shall remit any fine or penalty except for contempt. The Court shall have the authority to set aside a judgment or verdict and set a new trial in any contempt proceedings. Other Virginia Code Sections dealing with contempt are Virginia Code Section 20–66, which relates to what happens if a person is summons as a witness and fails to appear without reasonable cause, it states that the witness will be found in contempt of Court. If the Court makes that disposition, the Court may proceed with the trial of the case in the witness absence and enter a Judgment or continue the case to a future date. I believe I have discussed and included all Virginia Code Sections that I have found in reference to contempt of Court. What Not to Do: A good friend of mine and one of the best trial lawyers that I have ever met told me of a fact situation years ago that resulted in him telling the Court, in response to a question from the Judge, as to whether or not the lawyer thought he was in contempt of Court by stating to the Court that the “Court could not measure my contempt in these proceedings.” I have attempted to use that on one occasion and I would advise you not to. You should mumble that to yourself if you feel the need. It is best not to start any statement with the Court that you believe will probably be contemptuous with the statement "all due respect" nor is it proper to under mind or refuse to comport with the dignity and respect that all Judges deserve as an officer of the Court and as a litigant. I also recently had a client who was an African American refer to a Richmond Circuit Judge as a "colored Judge". Fortunately, that individual Judge had a wonderful sense of humor and countered by asking what color I was, all to the great dismay of me and opposing counsel. My client then spoke with the Judge for approximately 5 minutes in a similar fashion and of course, the Judges good humor diffused the situation. I do believe it is important that all of us consider the dignity and respect that the Court deserves in every aspect of trying a case. It also concerns me that some of the Judges do not control, in my opinion, the banter back and forth between counsel. Judge Farmer, who is now retired, had the best demeanor of any sitting Judge that I have ever experienced. He would repeatedly instruct counsel not to banter back and forth, and he insisted that counsel only speak directly to the Court, without speaking directly to each other. I do believe that this is a proper approach to eliminate that type of disrespect and misconduct that occurs somewhat frequently in litigation matters. Obviously, a Court Order is an obligation that should be taken seriously, and I have understood repeatedly, that some lawyers actually advise their client not to follow a Court Order of visitation or child support, which I believe is bad advice and inappropriate advice and should result in most cases with the Court finding the lawyer in contempt of Court for that advice. I have had cases where counselors of the children have advised mothers not to allow visitation, rather than to have them go back to Court and ask the Court to change visitation before they instruct the client to specifically violate a Court Order. Because of the discussions earlier in this outline, the Court has substantial authority to punish this type of advice and it should not be given by any lawyer nor should it be given by any other person without punishment. The Attorney General has issued an opinion on the application of Virginia Code Section 53.1–116 in contempt proceedings. In reference to good conduct credit awarded persons confined to a local jail for contempt of Court for failure to pay court order support payments. Specifically, Virginia Code Section 53.1–116(a) states that the length of a legislative prisoner's sentence of 12 months or less in jail for misdemeanors shall earn good conduct credit to reduce the length of their time served in prison. Obviously, it states that it is contempt, and that in a civil contempt preceding the contemptor must be in a position to purge himself of contempt because if in a civil contempt preceding the punishment is remedial, imprisonment for civil contempt would need to be purged if possible. The person confined must have the ability to effect a release from incarceration by purging himself of contempt at any time during the sentence that is issued. However, the Court may impose a punishment for failure to comply with a Court Order and if the only option through the Court is confinement, the person in violation would not be able to purge himself from contempt. Accordingly, the Attorney General with the Sheriff or local jail authorities shall determine whether a person detained is pursuant to a civil or criminal contempt finding, and good time credit shall only be awarded to those persons serving criminal contempt sentences to receive good conduct credit described in Virginia Code Section 53.1–116(a). I have read almost every case I could find in reference to contempt of Court, and I will cite some of those cases for your consideration. The case of Gilman v. Commonwealth 275 Va. 222, a 2008 case considered by the Supreme Court of Virginia on Appeal discusses the Circuit Court's adjudication of a petty contempt conviction on Appeal from the Juvenile and Domestic Relations District Court. The issue there was to determine whether the contemptor had a Sixth Amendment right of confrontation that was violated when the Circuit Court admitted into evidence, under Code 18.2–459, the certificate of the District Court Judge reciting the factual circumstances underlying the contempt or adJuaication previously. The Court discusses a petty contempt proceeding, indicating that it may be by direct or indirect evidence and is punishable under a Statute that authorizes no more than six months in prison. It also may be subject to summary adjudication. The Court also addresses the Sixth Amendment right of confrontation and the import of Virginia Code Section 16.1–69.24, which provides for Appeals from summary contempt adjudication in the District Court. The Court determined that because of the application and provisions of that Code Section that Virginia Code Section 16.1–69.24 and Section 18.2–1259 prevail over general provisions cited in Virginia Code Section 16.1–132 through 136, with a conclusion that a contemnor appealing the adjudication of summary contempt does not receive a trial de novo in the Circuit Court with attendant Sixth Amendment protection. As a result, he does not have a Sixth Amendment right of confrontation. The Court found that the General Assembly enacted specific Statutes distinguishing appeals of summary contempt adjudication from other appeals that apply to a right of trial de novo and as a result the General Assembly implicitly recognized the Supreme Court's determination that contempt adjudications are not criminal prosecutions and therefore are not protected by the Sixth Amendment. The case of Austin v. Commonwealth, 42 Va., App. 33 a 2003 case, dealt with a female Juvenile who appealed an Order to the Court Appeals of Virginia from the Circuit Court of Franklin County which revoked her parole: Her Appeal dealt with the issue of whether or not the Circuit Court lacked jurisdiction to enter such an Order, arguing that the Juvenile Court alone had ajudication to determine whether she violated her parole. The Court of Appeals affirmed the Ruling of me Circuit Court stating that they in fact had jurisdiction. Because she was on parole, jurisdiction in the Circuit Court was proper for a parole revocation hearing. The case of B.P., v. Commonwealth, 38 Va. App 735, a 2002 case, dealt with a juvenile Appealing the judgment of the Circuit Court of Rappahannock County, which affirmed a decision of the Juvenile Court, finding B.P., in contempt of Court for failure to obey an Order requiring her to attend school. The Juvenile was ordered to spend 10 days in a detention center for violating that Order. B.P. contended that the Juvenile Court lacked authority to order het to attend school and therefore the Court's order was void as a matter or law. The Court of Appeals disagreed and affirmed the Circuit Court's decision. They relied on the fact that any person violating an Order of the Juvenile Court, including a parent, is able to be sentenced and found guilty of contempt of Court. 1. Benton wrote a dissenting opinion stating that he did not believe that the Juvenile Court Judge was authorized by Statute to order the child to detention Brior to the entry of a Final Disposition Order of the status offense. The case of Robertson v. Commonwealth, 181 Va. 520 a 1943 case is also an interesting case. That case dealt with the failing of an attorney to obey a Court Order. In that case, the Circuit Court entered a Judgment holding the attorney guilty of refusing to obey an Order of the Court while testifying in a case that was pending. The Defendant attorney was counsel for a Corporate Defendant in a personal injury case and the Plaintiff had compelled his testimony and refused to answer certain questions despite a Court Order to do so. The Appellant contended that the Court's power to punish him summarily for contempt of Court was limited and if it had the power to punish him, it would be under the fifth subdivision of the Statute, which authorized punishment for disobedience or resistance to any lawful process, judgment, decree or order and that the oral direction or command of the Court was not such an Order. The Court indicated that the Judge's holding of contempt for refusing to obey the verbal Order of the Court was a proper action. The case of Middlebrooks v. Commonwealth, record no. 1516-01–1, in the Circuit Court for Newport News, involved a Defendant who appealed his conviction for abduction, maiming, robbery and use of a firearm in the commission of a felony. In that case there was a summary contempt proceeding for misbehavior in the presence of the Court and the Court in fact instructed the Defendant that he was disrupting the Court and the administration of justice. The Court specifically indicated to the Defendant what conduct the Court felt disrupted the Court's process. However, the Court found that because the record did not support the Commonwealth's contention that the Appellant defendant intended the trial Judge to hear his negative statement toward the prosecutor, the Apellant Court found that the evidence did not establish a violation of contempt of Court. They also found that the Judge misapplied the proper Code Section and should have sentenced the Defendant pursuant to Virginia Code Section 18.2–457, but because the punishment was in excess of the limits of that section, the part of the sentence that was excessive was deemed to be invalid. Therefore, the Court affirmed a 10 day jail sentence and $250.00 fine which were the Statutory limit involved in that case. The case of Epps v. Commonwealth of Virginia, 47 Va. App. 687, a 2006 case by the Court of Appeals, it specifically addressed orders by Judge D'Alton that were entered by the Court and the Courts finding that the Sheriff of the City of Petersburg had ceased to provide proper security at the Courthouse. The Court again stated that any disobedience or resistance of an Order would be contempt, but if the Order is void, then there would be no contempt. The Court's indicated that the Circuit Court and all Court's hail the authority to ensure the security of the Court room and it certainly had subject matter jurisdiction to Order the Sheriff to provide adequate Courthouse security. The Court indicated that at most the Order was not voidable, not void, and the Sheriff did not have the authority or priviledge to disobey the Order even though it may have been an erroneous Order. The argument on Appeal by the Sheriff of Petersburg that the trial Court errored in failing to advise the Sheriff of whether the contempt charges were civil or criminal were found to be of no import because certainly case law suggests that it is a civil remedial contempt proceeding. In a criminal contempt preceding the defendant is proven to be innocent and his guilt must be proven without a reasonable doubt. Further, he can not compelled to testify against himself. However, in a civil contempt proceeding, the matter has to be solely between the original party of the litigation and criminal cases between the public and the defendant that are not part of the original case. It is not the fact of punishment but rather the character of purpose that distinguishes civil from criminal contempt. The punishment in criminal content was to be determined and unconditional whereas the punishment in a civil contempt proceeding has the ability to remediate or purge itself from any punishment incurred. Obviously, in a criminal contempt proceeding the accused is entitled to Court appointed counsel if qualified, and may elect to have a jury, if the punishment exceeds six months. This case is probably the most important case that I discovered in defining the difference between civil and criminal contempt. The confusion in this case was that the Judge did have the authority to enter certain Orders and that the Sheriff failed to follow those Orders, and leaving the Court room without security was contemptuous. It was not encumbered upon the Judge to advise the Sheriff whether the charges were civil or criminal in nature. Finally, the case of Baugh v. Commonwealth 14 Va. App. 368, a 1992 case that involves my friend David Baugh as a defendant in a criminal contempt proceeding. He also contended that the admissibility into evidence of a certificate prepared by the General District Court Judge detailing the circumstances of the offense, violated his constitutional rights of confrontation and his statutory right to a trial de novo, and that he was also denied his rights to a jury trial. Unfortunately for David the Court of Appeals affirmed the trial Court's ruling. It specifically stated that the events that occurred in the District Court which complies the evidence of the offense before the Court of record in the Circuit Court, had to be relevant and had to be produced as direct evidence and did not affect the de novo nature of the trial. Again, Justice Benton did not believe that David Baugh should have been summarily convicted of contempt by a trial Court of the General District Court for violating Virginia Code Section 18.2–456. Justice Benton felt that the facts failed to prove beyond a reasonable doubt that his conduct lead to a material disruption or obstruction to the administration ofjustice. Finally, there are several other cases concerning this contempt of Court discussion such as Higginbotham v. Commonwealth, 206 Va. 291 1965, Estate of Hackler v. Hackler, 44 Va. App. 51. 2004, and Tharpe v. Commonwealth, 18 Va. App. 37, 1994. All of these cases should be read if you are preparing to defend a summary ruling of contempt. There is an interesting book called "Contempt of Court" which is in reference to a Turnof– the–Century Lynching that launched a hundred years of Federalism and is an interesting book to read. I have just started reading this book at the time that I prepared this outline. Hopefully, I will finish it before my global presentation so I can discuss it in detail. Respectfully Submitted Carl J. Witmeyer, II
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