1. Newsletter
Published Quarterly By The Defense Trial Counsel of West Virginia Summer 2015
President’s Column
By Jeffrey D. Holmstrand
continued on page 2
“SERVICE”
As the Defense Trial Counsel of West Virginia enters its 34th
year, I am
honored and humbled to serve as its current President. Following the
footsteps of so many great leaders – most recently Chazz Printz and
stretching back to Fred Adkins in 1982 – is a daunting task. We are all
grateful for the outstanding job Chazz did in the past year both in terms
of moving the organization forward and in terms of demonstrating a
visionary leadership style I can only hope to emulate.
Fortunately, the other officers of DTCWV, Vice President Jill Rice,
Treasurer Jill McIntyre, and Secretary Erik Legg, are all outstanding
and collectively will be an incredible asset to the organization in the
coming year. In addition, we welcome Randy Saunders to the Board and Larry Morhous back to
the Board to join an already strong group of leaders from around the state. West Virginia has one of
the strongest defense bars in the country. DTCWV is blessed to have so many of its finest lawyers
serving the organization now and in the past. I hope to build on what they have accomplished and
look to this year as an opportunity to focus on service – by and for our members.
In 2008, Tom Hurney asked me to help serve the members of the organization by digesting
new cases coming out of the Northern District of West Virginia as a complement to the yeoman’s
work he and Bob Massie had been doing for years with WV Supreme Court and Fourth Circuit
opinions. I served in that capacity for several years. Tom and his minions, now along with
John Teare in place of Bob, still provide that service for our members. Tom’s Supreme Court
reviews are one of the first things members mention when asked about the benefits of DTCWV
membership. As we move forward into 2016, my hope is to expand both the opportunities for
members to serve and the services that DTCWV provides to its members. I encourage every
member to think about ways the DTCWV can provide better service and, in turn, ways to help
serve other members. Please feel free to contact me with any thoughts you have. In the meantime,
here are several opportunities to consider.
Substantive Law Committees – DTCWV has a number of Substantive Law Committees
that meet (in person or by telephone) on a regular basis. Getting involved in these Committees
allows for networking, learning, and the opportunity to speak and publish. Our Committees and
their leaders:
1. Business/Commercial Law – Randy Saunders, Chair
2. Construction Law – Eric Hulett, Chair
3. Employment Law – Philip Estep, Chair
Highlights
DRI Update
Interviews:
HonorableThomas
C. Evans, III
Honorable Russell
M. Clawges, Jr.
Mike Farrell
HonorableThomas
H. Keadle
Jude Christopher C.
Wilkes & Carol A.
Miller
Honorable James H.
Young, Jr.
Was It a Distrated
Driving Collision
Attorney of Social
Media

2. 2
4. Energy Law – Tim Miller, Chair
5. Insurance Law – Todd Mount, Chair
6. Medical Liability – Philip Glyptis, Chair
7. Product Liability – Mark Hayes, Chair;
8. Safety & Health – Jonathan Ellis, Chair
9. Workers’ Compensation – Lisa Warner Hunter, Chair
If you are not a member of one or more of these Committees, reach out to the Chair and sign up. Both new and existing
members should reach out to the Chair to express ideas and suggestions for the Committee and a willingness to help it serve
its members. Our Substantive Law Committees can serve as the backbone of the organization and provide the opportunity to
derive substantial benefits throughout the entire year.
Publications – In addition to the opportunity to publish within the Substantive Law Committee framework, DTCWV offers
a number of other avenues for members to serve our colleagues through writing. Every year, DTCWV publishes a notebook of
articles in conjunction with the Annual Meeting. We constantly look for interesting topics and well-written discussions about
an area of law or practice relevant to the West Virginia defense lawyer. We also have a regular Newsletter edited by Chuck
Bailey. Finally, we can always use more assistance in keeping our members up-to-date on developments in State and Federal
Court as a complement to what Tom and John are doing. Taking on that responsibility is a great way to serve our members and
to get your name out into the broader defense community.
Networking – DTCWV has offered networking functions in several cities over the past year. Some of these have been
during the summer while firms have summer associates and others have been for specific types of lawyers – women or young
lawyers for example. We have also held a legislative networking reception for DTCWV members and our elected officials.
Volunteering to organize an informal networking event would be a great service to our members. I would love to hear other
suggestions for additional networking opportunities.
Education and advocacy – DTCWV has increased its profile in terms of educating and advocating for the interests of its
members and historically has had a strong interest in member education. The Amicus Committee, chaired by Mychal Schulz,
is looking for lawyers willing and able to assist in preparing briefs on issues of interest to DTCWV members. The Legislative
Committee, now headed by Jill Rice, is looking for ways to increase our profile within the West Virginia Legislature and to
educate its members about the issues important to us. We also offer a number of opportunities for our members to educate
each other outside the Substantive Law Committee framework such as at the Annual Meeting and at the programs the Young
Lawyers Committee, chaired by Briana Marino, organizes and hosts each year (next week’s Deposition Boot Camp being one
of those). Please consider sharing your expertise with our members in one of these settings or, even better, propose another
setting where we do not yet provide a needed service.
Overall, my hope for this year is to utilize the collective wisdom and experience of our enthusiastic Board of Governors
and our talented members to continually increase the benefits DTCWV provides our members. Please let us know how we can
increase the value you get from DTCWV and, as importantly, what you can do to help increase its value to others.
Jeff
Jeffrey Holmstrand
President
Do You Know Where Your DTCWV Chair Is?
"DTCWV super star member Tom Hurney submitted this photo
and stated that the DTCWV chair continues to shine at a variety
of events. Can anyone guess where this photo might be taken?
The chair was our member gift at the 2014 Annual Meeting at the
Stonewall Resort. Most likely Tom was wearing his DTCWV
hat."
continued from page 1

3. 3
DRI Update
By Laurie C. Barbe, DRI WV State Representative
Steptoe & Johnson PLLC, Morgantown, WV
I write this as the end of summer approaches and Morgantown is about to be inundated with the
return of WVU students. The start of the school year also means that we have a lot going on, both
professionally and personally, as we fill up our calendars with workday and weekend commitments. For
those of you who have renewed your DRI memberships, and the many who have recently joined, thank
you. DRI has much to offer, and I hope that you will put your memberships to good use. Here are just
a few of the many offerings in the coming months through DRI that I hope you will consider adding to
your calendars:
• September 8-11, Chicago, IL - Deposition Institute: Three day interactive workshop
• September 9-11, Las Vegas, NV - Construction Law Seminar: Maintain a competitive advantage in construction
litigation and collaborate with other industry professionals.
• September 10-11, Las Vegas, NV – Nursing Home/ALF Litigation: Learn how to successfully take a case to trial,
manage and exceed client expectations, win the punitive damages war, and harness and use cost report data.
• September 10 Webcast – Metrics to Make Your Practice Stronger: Learn how to track and improve your metrics, how
to use good metrics in seeking fee increases, and how to attract and keep your defense business.
• October 7-11, Washington, D.C. – DRI Annual Meeting: Hear keynote remarks from Madeleine Albright, Colin
Powell, Nina Totenberg, and Robert O'Neill; 12 hours of cutting edge CLE presentations on developing legal topics;
substantive law committee meetings; and plenty of networking opportunities.
• November 5-6, Las Vegas, NV – Asbestos Medicine: Preeminent asbestos litigation practitioners and experts will
share their experiences and knowledge and provide insight into the most current best legal practices and updates on
developments in the medical and scientific fields specific to defending asbestos litigation.
• November 4-6, Chicago, IL – Data Breach and Privacy Law: Develop strategies for responding to data breach, gain
insights into state and federal regulatory developments, and learn how to build an effective cyber insurance program.
• November 12-13, Nashville, TN – Strictly Automotive: Hear insights into the hot button issues impacting automotive
manufacturers and component part suppliers, the role of NHTSA, and the rise of automotive product liability class actions.
• November 13, Chicago, IL – Boot Camp for New Life, Health and Disability Lawyers: Lawyers new to this type of
practice will learn the concepts applicable to life, health and disability litigation. To encourage a classroom atmosphere,
registration is limited to 50 persons.
• December 3-4, New York, NY – Insurance Coverage & Practice Symposium: This is the premier educational event on
the subject of insurance coverage and trends.
• December 3-4, New York, NY – Professional Liability: Learn about emerging issues shaping the professional liability
landscape and network with professional liability claims personnel, experts, and defense counsel from across the country.
If you have previously attended a DRI seminar, you know that they are the highest in quality and that networking opportunities
abound. Young lawyers admitted to the bar five years or less can join DRI and receive a certificate for a free registration to one DRI
seminar—a $700 value. For $20, law students can join DRI and receive complimentary registration to all DRI seminars and the
Annual Meeting. Safe travels to all, whether heading to Chicago, Vegas, NYC, D.C., or Nashville! Check it all out at www.dri.org.
I want to leave you this time with information about the newly formed West Virginia Chapter of The National Academy of
Distinguished Neutrals (NADN). In 2013, NADN was named the exclusive neutrals roster to both DRI and AAJ. NADN is the
premier invitation-only association for experienced ADR attorneys and judges in the U.S. For more information and to check out
the member roster from West Virginia, go to www.nadn.org/directory.
Enjoy the end of summer and the hustle and bustle of the coming months.

4. 4
Interview with Honorable Thomas C. Evans, III
By Charles "Chuck" Bailey, Bailey & Wyant, PLLC, Charleston, WV
Introduction
I recently interviewed the Honorable Thomas C. Evans, III, Judge of the Fifth
Judicial Circuit, who was appointed to serve on the Business Court Division on
March 4, 2013. His term is to expire on October 9, 2019. Judge Evans previously
served on the Multi-Litigation Panel, but resigned from the Panel when he was
appointed to the Business Court Division.
Judge Evans graduated from WVU in 1972. He then served with the National
Guard for six years. He graduated from WVU College of Law in 1978. He served
as the Prosecuting Attorney for Roane County for eight years and was in private
practice for thirteen years.
Q: Generally, do you believe that the cases that are being litigated in the Business Court are more complex?
A: Yes. They are more complex. One of the cases I presided over was a multi-million dollar construction claim regarding
the building of a high school in the Northern Panhandle. There were cross claims and third party claims adding to the complexity.
An arbitration clause in one the contracts further added to the complexity. The case eventually settled with the assistance of the
Resolution Judge.
Q: Do you believe the option of having a Resolution Judge assigned to the Business Court is effective?
A: Yes. A judge brings a different perspective to these cases when the judge serves as a mediator. Also, mediation or other
ADR services provided by the Resolution Judge is free to the parties and, therefore, saves mediation costs. In order for me to be
a more effective Resolution Judge, I attended Pepperdine University’s Trial Institute for Alternative Dispute Resolution. This
was a six day course. It was like returning to the first year of law school where you are inundated with new information. The
learning experience was beneficial to me and I am continuing to learn about complex business matters and mediation.
Q: How would you rate the quality of the attorneys who appear before you in Business Court?
A: The attorneys are excellent. Most of them are used to litigating and managing complex cases. We, as the judges,
depend upon these good lawyers to present us with the facts and the law in a clear and cogent manner. I have high praise for
the attorneys who have appeared before me in the Business Court.
Q: I know that you presided over the case of West Virginia Radio Corporation v. West Virginia University Board of
Governors, et al. Was this a difficult case?
A: Yes. There were a number of individual defendants in the case. There were many claims for relief asserted against
the various Defendants, many extending over a period of several years. However, the attorneys representing the plaintiff and
the defendants were very good and made the case easier to manage. The case settled after the Resolution Judges and the parties
invested several days in mediation.
Q: Do you believe the case of Tawney v. Columbia Natural Resources, et al., where the land owners sued oil and gas
producers and distributors because of allegations that expenses were wrongfully deducted from the royalties would have
fit the criteria for the Business Court?
A: I do not believe the claims for relief presented in the Tawney case would have fit the definition of what is to be litigated
in the Business Court. There were over 10,000 members of the Plaintiff class, most of which were not business entities. This
was essentially a type of consumer class action litigation brought by individuals. Rule 29 of the Trial Court Rules excludes
consumer class action litigation from the definition of “Business Litigation” which is a condition precedented to the referral of
the litigation to Business Court.
Q: What do you believe is the greatest advantage to the Business Court?
A: The biggest advantage is the time frame for case resolution. It is 8 to 10 months. Business Court judges are required to
give these cases priority over other cases in order to meet this requirement. Also, trained mediators serve as Resolution Judges
and efforts are made by the Business Court, from the beginning of the case, to encourage early mediation.
Q: What recommendation do you have for attorneys appearing before you in Business Court?
A: Be prepared for a Scheduling Order to be entered very early in the case. Expect that the case might be resolved, either
through mediation or trial, more expeditiously than other civil actions, absent unforeseen circumstances. Be prepared to narrow
the factual and legal issues as much as possible, as early as possible. This allows for a quicker and less costly disposition of the
case.
Q: Any other parting words regarding the Business Court?
A: Yes. We are considering e-discovery issues.

5. 5
Q. Which did you like better, serving on the Mass Litigation Panel or on the Business Court?
A: I like each equally. I did like the collegiality of working with two other judges on the Mass Litigation Panel and the
shared decision-making process. On one particular case, me and two other judges worked for two full days to address complicated
motions for summary judgment on the statute of limitations grounds. With the Business Court cases, like the cases on our regular
dockets, we alone are responsible for the decisions made in the cases.
For those of you who regularly appear before Judge Evans, you know that he has read your motions and the case law cited
in your memoranda. He was enthusiastic in discussing the Business Court, especially the training he received at Pepperdine
University. He also enthusiastically supported the concept of the Resolution Judge and did compliment the attorneys that do
appear before him in these complex business matters.
Interview with the Honorable Russell M. Clawges, Jr.
By Jacob R. Shaffer, Dinsmore & Shohl, LLP, Morgantown, West Virginia
Introduction
As a part of this issue’s theme related to the Business Court Division within
the West Virginia Judiciary, we took some time to speak with Russell M. Clawges,
Jr., Circuit Court Judge for the Seventeenth Judicial Circuit in Monongalia County,
West Virginia. Judge Clawges graduated from West Virginia University in 1971
with an undergraduate degree in Mathematics. He then attended the West Virginia
University College of Law, where he graduated in 1974. Judge Clawges took the
bench over eighteen years ago in Monongalia County and has served as a judge on
the Business Court for the past two years. Judge Clawges shares his perspective
on the Business Court as a relative newcomer.
Shaffer: Judge Clawges, by way of some background, why and how did you become involved with the Business Court and take
on these responsibilities in addition to your full-time docket?
Clawges: It is a combination of things. I had some interest in the concept and I have followed the process from its
beginning. Also, I have had a very long standing relationship with Judge Rowe. We have known each other well and came
on the bench at the same time. He was one of the original Business Court judges, and we often discussed the Business Court
as it was developing. I also have a good relationship with Judge Wilkes and through contact with him and the other Business
Court judges, the possibility of me serving as a Business Court judge became more of an option. At some point, I spoke with
the Supreme Court’s Administrative Office to express in interest in serving on the Business Court, if they were looking for more
judges. They decided that they were, and here I am.
Shaffer: In your opinion, and I know that you have only been on the Business Court for a couple of years now, what sort of
issues was the Business Court designed to deal with?
Clawges: My understanding, and the way that I look at the Business Court, is it is designed to deal with cases that
generally arise out of business relationships of one kind or another. These types of cases can be benefitted by having judges
with some degree of expertise in business disputes. As a result, the Business Court gives the opportunity to develop a core
group of judges who have that business expertise. In handling these kinds of cases and issues, and having some understanding
of these cases and issues, the Business Court is available to take cases that on their face may appear to be complex and tend to
get pushed to the back-burner by some trial judges who have a whole lot of cases and a whole lot of other things to deal with.
So, the Business Court gives the parties an opportunity to get their cases before judges who (1) have some expertise
in business issues and (2) understand the importance of moving these matters along to give business people an opportunity to
resolve their disputes in a timely fashion and hopefully in a less costly fashion. You try to streamline things. We try to move
them a little quicker than most cases; although, I haven’t been as successful with that as I would like to think we could be. But,
generally, it is not because the judges don’t want to move it, because we are; basically the parties indicate that it just takes a
certain amount of time to get these things ready, which I understand. I think the original concept was to try and get cases from
beginning to end in ten months. That is pretty fast by anybody’s calculation.
Shaffer: Is there a complexity requirement for cases to be referred to the Business Court?
Clawges: I don’t know that there is so much of a complexity requirement as the case has to involve businesses and
business issues. Actually, some of the cases that we have dealt with are really not very complex at all. But the cases can range
in complexity from those involving multi-national corporations and contracts that involved multiple entities to other much
more simple issues. Complexity is a factor, but it is not necessarily the controlling factor. Several of the cases that I have been
involved with deal more with the internal affairs of businesses and corporations. They involve disputes within the corporation
and typically end up being dissolutions or, as I call them, corporate divorces, where it is really just a
continued on page 6

6. 6
matter of minority shareholders who are not happy with the way the majority shareholders are doing
things. So, those are the issues that are really not that complex as they are just a matter of sorting them out.
Shaffer: Do you think the parties coming to Business Court are pleased with the results or at least happy that the case is moving
along quicker?
Clawges: Yes, that is the perception that I get and I think that Judge Wilkes has done some surveys with people who
have been involved with Business Court and, generally, the reaction of the people who have been involved or had their cases
involved has been favorable. I think that part of that is because most cases are in Business Court because one or both of the
parties initiated it.
Shaffer: If a party is accepted into Business Court, what tips or advice would you have for those attorneys for both parties to
try to achieve a resolution as quickly and as cost-effective as possible?
Clawges: I think the best advice that I would give is if you are coming into Business Court, come into Business Court
with the mindset that you are going to streamline the process as much as you can. Come with the mindset of, instead of doing
everything possible to prepare the case, do what you need to do to make your point. I think that businesses and business people
understand the time value of money, they understand what it costs. They are probably paying bills once a month to their attorneys,
so they know what this case is costing them. From the lawyer’s standpoint, if you can come into the case with the understanding
that the idea is to give you an opportunity to resolve it faster, with less cost, come in with that mindset. The lawyers should
understand that we don’t need to know everything, but let’s isolate the issues and get those ruled upon by the Business Court as
quickly as possible so that a resolution can reached. Most cases turn on a court’s ruling on a particular legal issue. If we can
focus on those few legal issues and make rulings, resolutions can be reached faster.
Shaffer: Do you often see business disputes where the businesses might want to maintain their business relationship and they
may opt for the Business Court because it is almost a form of alternative dispute resolution?
Clawges: Yes. Sure. Probably the first case that I was involved with as a resolution judge was a case where there was
a good chance that there would have been a continuing relationship between the parties. It was kind of an odd sales tax issue.
But, yes, in fact the resolution of that case did leave open the possibility for continued business. The resolution put the parties in
the position where they were not so adverse to each other through having contentious litigation that they were able to maintain
the business relationship. I can certainly see cases where you have businesses that are probably going to continue business
together and they see the Business Court as a viable option.
Shaffer: Great. Thank you so much for your time, I know that our readers will be happy to have your insight.
Clawges: You are welcome.
The Business Court has “the engine and the caboose,” says Mike Farrell
By Steven L. Snyder, Jenkins Fenstermaker, PLLC, Huntington, WV
Michael J. Farrell does not mince words when it comes to the Business Court – or perhaps
any topic. The Huntington attorney has litigated four cases in the Business Court division and finds
that the judges are better than most of their Circuit Court colleagues when it comes to adjudicating
commercial disputes: “There are some regions of this state where you can fairly well know who you’re
going to get if you apply to the Business Court and the judges are more sophisticated and [have] more
commercial experience and are willing to do things in what I would call a more predictable fashion.”
Farrell’s connection to the Business Court may be stronger than most attorneys: His brother
serves in that division. On October 1, 2013, the Chief Justice appointed Cabell County Circuit Judge
Paul T. Farrell to serve a seven-year term with the Business Court division.
One of the reasons the Business Court judges are better equipped to handle commercial disputes
is that they have more experience in civil litigation. Farrell says that most Circuit Court judges have
little personal familiarity with that area of law: “In a percentage approaching 90%, Circuit Court judges came out of the prosecutor’s office with no civil
experience, or were plaintiffs’lawyers, and as such, the level of sophistication in handling complex cases, and particularly business related cases, is minimal.”
Because of their unfamiliarity with civil litigation, some Circuit Court judges are loath to handle a complex business case: “More often than not, some
of our Circuit judges just delay, expecting that you might settle the case, rather than really getting into the meat of it.”
In contrast, Farrell feels the Circuit Court judges who serve in the Business Court division look forward to the intellectual challenge posed by business
cases: “I think they enjoy that because they get cases that generally have even more of a complexity. If you’re sitting there as a judge with a criminal docket
and a child abuse and neglect docket, you really are looking for, and crave something where your brain will get exercise.”
Alitigant in the Business Court also enjoys the luxury of having two Circuit Court judges assigned to his case. “[In] Business Court you get a presiding
judge … who does what normal trial judges do, but you get the resolution judge who is calling and saying, ‘Let’s have mediation, let’s get together and see
what we’re going to do and how we’re going to do it.’ So you sort of have the engine and the caboose, both judicial officers and both highly skilled in the
area of complex litigation or commercial litigation.”
continued from page 5

7. 7
Introduction
Simply put, the Business Court was created to handle and adjudicate business
disputes within West Virginia. The idea was, in part, to offer an avenue for parties
and judges to refer cases to a court that has special expertise in business matters
and to judges that have demonstrated a desire to assist in this area. In addition
to the interviews of some of the esteemed members of the Business Court, we
thought it might be helpful to speak with a long-time member of the judiciary in
order to assess the benefits that the Business Court Division might offer to judges.
The Honorable Thomas H. Keadle obliged our request for an interview and shared
his insight on the topic.
Thomas H. Keadle, a Senior Status Circuit Court Judge now living in Romney, West Virginia, and a former Circuit
Court Judge for the Twenty-Sixth Judicial Circuit in Lewis and Upshur Counties, West Virginia, has served on the bench for
over thirty years. After graduating from high school, Judge Keadle joined the United States Marine Corp. and later served as
a West Virginia State Trooper before attending West Virginia University and graduating with a degree in Political Science in
1971. He then attended West Virginia University College of Law, where he graduated in 1974. He was first elected as a Circuit
Court Judge and took the bench on January 1, 1985 and held that position until 2013 when he retired. Since his retirement,
however, he has kept busy by travelling across the state serving as a Senior Status Judge.
Shaffer: Judge Keadle, as a judge that served in a judicial circuit of two fairly rural counties, what do you see as the largest
benefit that the Business Court Division adds to our state’s judiciary?
Keadle: The Business Court only started to come about around the time I retired from full-time service, but the benefit of the
Business Court is pretty clear. During my time on the bench, we would sometimes have cases that were pretty complicated
business matters that would demand huge amounts of my time, both in court and out of court. These matters were also
demanding on other courthouse personnel. As a judge in a one judge judicial circuit, if a single case takes up too much time, it
backs up the rest of the docket and slows everything down. With the creation of the Business Court, it allows judges that might
not be able to fully dedicate the time necessary for certain complex business disputes to refer these matters for special attention.
It provides a better solution to the parties and courthouse staff.
Shaffer: What do you mean by “[i]t provides a better solution to the parties and courthouse staff”?
Keadle: Well, all judges these days have busy dockets. But, in more rural judicial circuits, where there might only be one or
two judges, if one judge is held up in a two week long trial, it puts tremendous strain on everyone else. It pumps the breaks
on all of the other cases on the docket and, in my experience, it will take weeks to get all of the other matters straightened out
again. I’ve not had many trials over a week long, but the ones I have had cause problems for weeks because there were no other
judges to hear matters during that time. This has become more of an issue over the past few years as the deadlines for abuse and
neglect and juvenile cases have been tightened. Sometimes, there is just not a judge available for a hearing if he or she is tied
up in trial or another time-consuming hearing. By referring cases to the Business Court, the parties to the referred-case would
have more personalized attention from the Business Court Judge and it would alleviate much of the strain on the judicial staff.
Shaffer: Do you believe that the Business Court should be expanded to include more judges?
Keadle: I’m not sure yet. I am not sure what the workload is for the Business Court Judges. We don’t want to put them in
a situation where they are overworked and cannot provide the personalized attention that the Business Court offers. As the
Business Court continues to be used, it should be examined and reconsidered just like a circuit court is. But, if parties that use
the Business Court are finding it successful and judges are finding it helpful, then the Supreme Court should certainly look into
expanding it.
Shaffer: While serving as a Senior Status Judge, do you ever discuss with parties the option of participating in the Business
Court?
Keadle: I have not yet, but, as a Senior Status Judge, I am moving around quite a bit and only filling in for other judges. If the
Business Court had been operating while I was on the bench full-time, then I think I would actively encourage parties to seek
out the benefits of the Business Court. It would certainly seem appealing to parties that are dealing with a complex commercial
or business dispute. It would help my staff and I deal with issues that we may not otherwise have time to handle.
Shaffer: Judge Keadle, we appreciate your time and perspective. Thank you.
Keadle: You are welcome.
Interview with the Honorable Thomas H. Keadle
By Jacob R. Shaffer, Dinsmore & Shohl, LLP, Morgantown, West Virginia

8. 8
Interview with Judge Christopher C. Wilkes and Carol A. Miller
By Susan Snowden, Martin & Seibert, LLC, Martinsburg, WV
I recently had occasion to speak with Judge Christopher C. Wilkes and Carol A.
Miller. Wilkes is the Chief Judge of the 23rd
Judicial Circuit. He also serves as the
Chairman of the Business Court Division of Judges also known as the BCD. Miller
is employed by the Supreme Court of Appeals and is the Executive Director of the
Business Court Division.
Snowden: What would you say is the most important change in the Business Court
since you spoke to our DTCWV membership in 2013?
Wilkes: The most important procedural change is that there is no longer a 3 month rule
regarding filing a motion for cases to be referred to the business court. Rule 29 was
amended on June 13, 2014 and removed the portion of Rule 29.06 (a)(2) requiring a
motion be filed within three months after the filing date of the action.
Miller: The Supreme Court also amended the way that you file a request for referral. Now, under rule 29.06 a motion to refer the case is
filed with the Clerk of the Supreme Court ofAppeals with a copy of the complaint, answer, docket sheet and other documents to support
the referral as an attachment. You no longer file the request with the circuit court.
Wilkes: The amendments have simplified the process for a party wishing to request a referral to the business court.
Snowden: Are your receiving many referrals?
Miller: As of July 7, 2015, there have been 75 Motions to Refer matters to business court filed since the inception of the BCD.
Wilkes: Of those 75 Motions, 50 have been granted, with 28 cases pending currently with the BCD and 22 cases disposed.
Snowden: Why should litigants seek referral to BCD?
Wilkes: Areal advantage is the ability to obtain a resolution of complex cases short of a trial. OurWVBCD is nationally recognized for
its use of alternative resolution. 99 percent of litigation resolves prior to trial….but many clients feel that the resolution is too late and it
was too costly to get to that point. But in the BCD a BCD Judge may serve as a mediator, with no cost to the litigants. Most of our BCD
Judges are very experienced in complex litigation.
Susan: Carol, on the administrative side, what can a litigant expect time wise?
Miller: Within 30 days a case is set for a scheduling conference with a BCD Judge. The Judges usually issue an order 15 days later.
Each trial date has a number one position, the cases are not “stacked” as in most civil trial dates. Also, our statistics show that many cases
are resolved within 12 months.
Wilkes: Cases are assigned based upon their location, the number of assignments and the expertise of the judge. Assignment is made
by the Chair.
Snowden: Does a referred case get moved to Martinsburg, because that is where the BCD central office is located?
Wilkes: No, the Judges travel to the litigants. There are some situations where there are not adequate facilities for use to conduct a trial
in the originating county. In those situations we move the case to a neighboring county.
Snowden: Procedurally how does that work?
Miller: We pull the jury from the location where the case will be tried.
Snowden: What staffing does the BCD have?
Miller: In addition to myself as the Executive Director, Lori Stotler is our administrative assistant. In 2014 a law clerk position was
authorized and since January 2015, Claire Watson has served as the BCD law clerk.
Snowden: How does one law clerk serve six Judges?
Wilkes: The BCD Judges use a combination of their Chambers Clerk and the BCD Clerk, depending upon the case.
Snowden: How has it worked having the Central Office of the Court in Martinsburg?
Wilkes: TheBCDistheONLYdivisiontohaveitsCentralOfficesoutsideofCharleston. WeareverypleasedthattheEasternPanhandle
is the home of the BCD offices. Additionally, we have integrated WebEx video conferencing to allow for more efficient scheduling and
reduced travel time for lawyers, judges and litigants.
Snowden: Have you had feedback from lawyers as to the efficacy of the BCD?
Miller: We generated an anonymous questionnaire which was sent to the attorneys once a case was concluded to obtain feedback.
Wilkes: The Division had predominantly positive feedback. Attorneys see the BCD as a way to obtain “free” mediation in a case, and
the attorneys and litigants like the fact that the system is geared towards business.
A2014 article in the West Virginia Law Review by Stephanie Zwerner noted that the state’s judicial environment for businesses has
improved with the introduction of the BCD. The article asserts that “[t]he Business Court Division is a significant improvement to how
cases between companies are handled and decided in West Virginia.”

9. 9
Interview with Honorable James H. Young, Jr.
By Michael Taylor, Bailey and Wyant, PLLC, Charleston, WV
JudgeYoungisanativeofWayneCounty,WestVirginia. HeattendedMarshall
University, where he obtained his undergraduate degree. He then obtained his law
degree from West Virginia University in 1979. After law school, Judge Young
entered private practice where he did a wide variety of work for a number of
years. In 1997, Judge Young became the prosecutor in Wayne County, where
he held that position until 2008. In 2008, Judge Young was appointed by then
Governor Manchin to fill the newly created judge position for the Twenty-Fourth
Judicial Circuit, which raised the number of judges for this Judicial Circuit to two.
In 2010, Judge Young ran for and won the election to maintain this position. On
October 10, 2012, the West Virginia Business Court opened. While Judge Young
was in the group of judges that were first appointed to serve as a judge for the
Business Court, due to staggering judicial terms for these appointments, Judge Young did not begin until January 1, 2013. He
has been on the Court ever since. I asked Judge Young the following questions related to the Business Court:
Q: How are cases assigned to a specific judge in the Business Court?
A: The case assignment process starts in accordance with the West Virginia Trial Court Rules related to the practice
before the Business Court. There is an application filed to the Chief Justice of the Business Court. The application can be filed
by one or both parties, or a judge may refer a matter to the Business Court. The Chief Justice will determine if this is a matter
suitable for the Business Court. If the Chief Justice makes this determination, the Chief Justice will then refer it to the Business
Court who assigns the matter to a specific judge. Each case is assigned a presiding judge and a resolution judge. The resolution
judge essentially acts as a mediator.
Q: What is the purpose of the Business Court?
A: While the name of the court is the “Business Court”, this is somewhat confusing as not all business cases are complex
enough to be referred to the Business Court. This is because the purpose of the Business Court is to provide an alternative court
for complex business cases that need more attention than what can be given by the civil court. Business Court judges receive
more training and education related to these complex business matters, which helps in the resolution of these matters and makes
this a specialized court. This means that the Business Court is for complex matters or multijurisdictional cases. Finally, another
purpose of the Business Court is to get these complex matters resolved quickly. The goal is to have a matter resolved in 10
months.
Q: As both a Circuit Court Judge and a Business Court Judge, what differences do you see in how a case progresses
in a civil court vs. business court?
A: One of the biggest differences between cases in civil court and business court is that cases in business court are more
complex, so these cases require more time on the part of the litigants and the judges assigned to the case. Also, there is a
logistical difference between cases in civil court versus business court. Cases that are referred to business court will remain
in the jurisdiction where the case was initially filed. That means you will have a judge, for example, based in Wayne County
who may be assigned to preside over a case pending in Kanawha County. So this makes the process more complicated from
a logistical standpoint because the circuit clerks and the litigants need to ensure that the judge is kept up to date with all the
filings. However, technology is helping this resolve some of these logistical concerns. The parties and the circuit clerks are
able to scan documents and email them to the judge. Also, with the agreement of all the parties a lot of times courts in the
jurisdiction where the case isn’t pending will be utilized for certain hearings if it’s more convenient for the parties and the
judges. For example, if it is most convenient for all the parties, while a case may be pending in McDowell County, a hearing
may be held in Kanawha County, with, of course, the agreement of all the parties. Another example of technology assisting
the logistical concerns is the use of webcams and teleconferences. The judges on the Business Court can webconference with
the other judges, instead of travelling to meet at a location. Also, hearings and conferences with the parties can be conducted
by webcam or telephone. Finally, the Supreme Court has been extremely supportive in providing educational opportunities
about the Business Court and providing other opportunities for the judges to help promote the Business Court and resolve these
logistical concerns.
Q: As of December 31, 2014, there were 58 motions for referral and 38 of those motions were accepted, with 5
referrals settling before a decision was made regarding the referral. Do you think the Business Court is underutilized,
overutilized or is being utilized in the appropriate amount and why?
continued on page 10

10. 10
A: I think the Business Court is being appropriately utilized. We are going through a refining
process and are trying to feel our way to interpret the rules and determine on a case by case basis
whether this specific case meets the standards and rules set forth related to the specific type of cases that are to be heard in
business court. As of right now, the Court is certainly not overburdened because there are 7 judges assigned to the Business
Court that are assigned these cases. This is a specialized court and it is not to be utilized just because it exists. The use of
the court needs to be dictated by the case load that meets the requirements for cases to be in the Court and only hear those
appropriate cases. Again, this is not an every “business litigation” court. You have to meet certain criteria of what is set forth
in the rules and therefore the cases that fit those rules will determine the case load.
Q: What do you see as the benefits of the business court?
A: A benefit of the Business Court is that these cases, which are very complex, will be timely heard with expertise on the
part of the litigants and the Court.
Q: What are the disadvantages, if any, of the business court?
A: A disadvantage, if anything, may be on the litigants due to the logistics of the judge not being the circuit where the
court is presiding. As previously discussed, the logistics of ensuring the judge is up to date with all the filings is certainly more
burdensome on the litigants.
Q: What recommendations do you have for attorneys appearing before you in business matters?
A: While this advice goes for all matters, not just Business Court matters, but you always need to be prepared. Preparation
is especially important in matters pending before the Business Court due to the complexity in these matters. Otherwise, just be
prepared and understand the rules and follow them.
Q; Any parting words regarding the business court?
A: The business court is definitely a work in progress. The Bar is still feeling its way as to the role of the Business Court
and the Court is looking how to best serve the litigants before it. There are rules that govern the process and procedure of the
Business Court and these Rules have been amended when appropriate. The court will continue to refine the Rules as time goes
on in order to best serve and efficiently resolve complex business matters. This refining process is all in the best interest of the
litigants appearing before the Business Court.
continued from page 9
• Do You Use the DTCWV Website?
• Have you updated your profile? Put in your photo?
• Have you uploaded your verdicts/rulings/opinions?
• Do you use it to search for Expert Witnesses or Expertise?
• The more exposure you have on the web the easier a client will find you.
Did you know that you can find:
Past Newsletters
Past Notebook of Articles
Listings of Subcommittees
Listing of Board Members
Verdicts/Rulings/Opinions if you Populate the Database with Your Information
www.dtcwv.org
USE IT!

11. 11
Was It A Distracted Driving Collision?
By Kevin Theriault*, Crash & Safety Consultants, LLC, Hopewell, VA
Here are a few stats from 2013 regarding distracted driving (1):
 3,154 people were killed in motor vehicle crashes involving distracted drivers. This represents
a 6.7 percent decrease in the number of fatalities recorded in 2012. Unfortunately,
approximately 424,000 people were injured, which is an increase from the 421,000 people
who were injured in 2012.
 Drivers in their twenties make up 27 percent of the distracted drivers in fatal crashes. (NHTSA)
 At any given daylight moment across America, approximately 660,000 drivers are using cell
phones or manipulating electronic devices while driving, a number that has held steady since
2010. (NOPUS)
 Engaging in visual-manual subtasks (such as reaching for a phone, dialing and texting)
associated with the use of hand-held phones and other portable devices increased the risk of getting into a crash by
three times. (VTTI)
 Five seconds is the average time your eyes are off the road while texting. When traveling at 55mph, that's enough time
to cover the length of a football field blindfolded. (2009 VTTI)
 Headset cell phone use is not substantially safer than hand-held use. (VTTI)
What is distracted driving? NHTSA describes distracted driving as any distraction that diverts the driver’s attention
from the primary tasks of navigating the vehicle and responding to critical events. To put it another way, a distraction is
anything that takes your eyes off the road (visual distraction), your mind off the road (cognitive distraction), or your hands off
the wheel (manual distraction). So when you think about tasks that can be a driving distraction, you can see that they often fit
into more than one category: eating is visual and manual, whereas using a navigation system is all three.
There are two basic components of the distracted driving problem: Task demands relate to the amount of resources
(visual, cognitive, manual) required to perform the task. With the texting task, all three of the resources are used during the
texting action. So in other words, while you are texting, you are not driving. The other issue is exposure, which is how often
drivers engage in the distractive task. Putting those two concepts together, even an easy task can be a bigger safety problem if
the person does that easy task 50 percent of their driving time.
So how do driver's compensate their driving while using their cell phone? They decrease their driving speed at the
start of a call. Within six seconds of initiating or taking a call, on average, drivers were five to six miles per hour slower than
any other times. (2)
Can a vehicular collision be evaluated for the possibility of distracted driving? Yes! As soon as possible, have an
experienced collision reconstructionist conduct a site inspection of the collision site in order to document the area by examining,
forensic mapping, and photographing the physical evidence and roadway. The reconstructionist should also inspect, photograph,
and map the involved vehicles, which should include the recovery of the EDR (Event Data Recorder) data that is part of the
Restraint/Air Bag Control Module or the Electronic Control Module of diesel engines of the involved vehicles. Conducting
these inspections of the scene and vehicles as quickly as possible it eliminates the issues that arise after a vehicle has been
destroyed and never inspected or the roadway is redesigned or resurfaced.
Oftentimes, and especially with commercial motor vehicles, motor carriers have aftermarket products which are
capable of capturing and recording crash related events. Attorneys can obtain this data from the motor carrier and pass it on to
the reconstructionist. Attorneys can also assist by gathering the cell phone records of the drivers involved in the collision and
having that information available to the reconstructionist.
A reconstructionist should be able to review the physical evidence, conduct an analysis of the collision, and then
correlate the crash recorded data and cell phone information to the physical evidence and EDR data in order to establish if
distracted driving was an issue or was the probable cause of the collision.
Depositions of drivers or passengers involved are used to resolve or clarify some issues raised. Discuss with your
reconstructionist before taking depositions to develop the questions that should be asked to elicit the information needed to
resolve the issues.
Distracted driving has been labeled the new DWI (Distracted While Intoxicated) and studies have shown that a person
texting and driving exhibit the same type of driving behavior as a person with a BAC (Blood Alcohol Concentration) of .08%
or higher.
Like DWI, OUI, or DUI cases, the physical evidence can be short lived, just like the BAC of someoneʼs blood. Thus I
would like to stress the importance of involving an experienced collision reconstructionist early into
the case in order to document the physical evidence on the roadway and the vehicles involved; to
continued on page 12

12. 12
WVU Student Society Update
By Teresa J. Dumire, Kay Casto & Chaney PLLC
obtain the data from the vehicles' recording devices; and provide guidance as to other materials that
should be requested from the client.
*Kevin’s career started in 1987 as a patrolman investigating motor vehicle collisions. During his law enforcement career, he
received specialized training in traffic collision reconstruction and experience while investigating serious injury and fatality
collisions while testifying as a law enforcement officer in district and circuit courts. In 1998, he went into the private sector
where he continued his specialized training and experience in collision reconstruction. He is the founding owner of Crash &
Safety Consultants, LLC which is based in Hopewell, Virginia. He has reconstructed over 1100 collisions and has testified
over 130 times as a forensic consultant / collision reconstructionist in Federal and State Courts in depositions and trials. He
can be reached at 804-822-2609 or kevin@crashandsafety.com
References:
1. See http://www.distraction.gov/stats-research-laws/facts-and-statistics.html.
2. IIHS Status Report, Vol. 49, No. 8 | SPECIAL ISSUE: DISTRACTED DRIVING | October 24, 2014.
The Fall Semester is underway at the WVU College of Law and the Defense Trial Counsel of West
Virginia Student Society has renewed its activities. The Student Society’s officers for the 2015-2016
school year are: Ryan Umina (President), McKenzi Cooley (Vice President), Berkley Bentley (Secretary),
and Esha Sharma (Treasurer). The officers were successful in obtaining a sizable budget from WVU to
support their activities this year. Among other activities, the Student Society is planning to send members
to attend the Deposition Bootcamp, the DRI Annual Meeting, and the 2016 DTCWV Annual Meeting in
Myrtle Beach.
On August 27, 2015, DTCWV sponsored our Annual Cupcake Reception to kick off the interview
season for second and third year students. Several students and DTCWV members attended this event and
enjoyed the opportunity to interact…and to eat cupcakes!
On October 2, 2015, DTCWV will be sponsoring two DTC Student Society members to attend the Young Lawyers’ Deposition
Bootcamp in our continuing effort to enrich the legal education of our student members.
On November 2, 2015, a panel of DTCW members will be sharing our interviewing advice with first year students at our annual
Interviewing Skills Panel.
DTCWV continues to value our relationship with our Student Society members!
continued from page 12

13. 13
2015 Fall Tech Tip: ATTORNEY USE OF SOCIAL MEDIA
By Jill McIntyre, Jackson Kelly, PLLC, Charleston, WV
What can a lawyer do with social media?
The Lawyer Disciplinary Board is soliciting comments on draft Legal Ethics Opinion 2015-02,
Social Media andAttorneys, available at draft LEO 2015-02. See paragraph 1 of the draft for a definition
of social media and social networking. Here, we will discuss why a West Virginia civil defense attorney
might wish to use social media to distinguish him- or herself from others and a few of the ethical and
practical implications of such an undertaking.
First things first: Phone directories are dead. Nobody is going to determine whether to call you using
“yellow pages” of any sort. Online versions of the phone book are notoriously outdated and inundate the
user with advertising and fees. I know of no successful person who endorses a print or online business
phone directory. Further, potential clients aren’t really looking for your phone number – that’s the easy part. They want to read
about what you have done and are doing. If you are skilled and lucky, they heard about you first from a colleague or satisfied
client. Now they want to make sure you do not have two heads. Or that you do have some grandchildren or military service or
an MBA.
Second, most law firms limit what a lawyer can say about him- or herself on the firm’s website, both for consistency and
aesthetics. And candidly, while most lawyers can write a convincing legal argument, many find it difficult to describe themselves
or their practice positively or simply cannot be bothered with updating their resume. They rely on “marketers.” This is where
social media can give you an edge. If you are willing to craft what amounts to a visually appealing, robust professional scrapbook,
your LinkedIn profile can help you kick the competition’s proverbial butt. Add regular, pithy posts in your practice area and gain
a following. Becoming a professional pied piper or “personality” is within everyone’s grasp through social media.
Third – as much as we wish it were not so – many would-be clients hire individuals rather than firms; consequently, you
may wish to identify both as a member of a stable, multi-service professional conglomerate and as a unique individual with a
compelling background or perspective or goal, or a lawyer whose highest loyalty is to something other than the business of a law
firm (e.g., to fairness, the rule of law, or access to justice). For example, the law firm offers one-stop shopping; I try cases. The
law firm charges rates; I protect the client’s interests. The law firm has a diverse foot print; I know how to navigate West Virginia
courts. Social media is a place to be you and not just a member of your firm.
What are the ethical and practical limits on my internet-posting activity?
American adults spend more and more time online. Educated people use the internet to learn more about history, engineering,
and science; to locate people, places, or things; for entertainment; to shop (for everything from shoes to legal services); and
sometimes to express themselves, either openly or incognito. Regarding such expression, one might ask whether it is ethical for
an attorney to use an alias. While LEO No 2015-02 does not address this question generally, it does indicate that a lawyer may
not use an alias to gain access to non-public social media content. (“[A]ttorneys . . . may not use a pretextual basis for viewing
information on a social networking site that would otherwise be private/unavailable to the public.”) Various jurisdictions have
described such conduct as subterfuge, trickery, dishonesty, deception, and acting under false pretenses. But an attorney’s use of
an alias to express opinion may not run afoul of any ethical rule and actually may be the better course where an attorney’s firm
prohibits direct or indirect attribution of social media postings to the firm. Blogging may be a fine way to express opinion or
expertise, but make sure you know what your firm’s policies are before you publish.
One must be wary of the risks social media presents to firm reputation (via lack of accuracy, truthfulness, respectfulness,
professionalism, or quality) and to the creation of inadvertent attorney-client relationships or issue conflicts, interfering with
business relations, or waiving attorney-client privilege. See Christina Vassiliou Harvey, Mac R. McCoy, & Brook Sneath, 10 Tips
for Avoiding Ethical Lapses When Using Social Media (available at http://www.americanbar.org/publications/blt/2014/01/03_
harvey.html). While the rift between First Amendment rights and the historical prohibition against attorney advertising was
resolved in 1977 in favor of commercial speech (see Bates v. State Bar of Arizona, 433 U.S. 350), offering personal opinions
about other lawyers, judges, politicians, or clients, or about potentially controversial topics such as politics and religion, or
offering referrals, endorsements, or recommendations, could come back to haunt the lawyer or his firm (e.g., claims of defamation,
plagiarism, harassment, unethical advertising, copyright violation).
West Virginia’s Lawyer Disciplinary Board is poised to conclude that one may accept client reviews (providing they are
accurate), comment on or respond to reviews or endorsements, endorse others, connect with judges (unless the intent is to
improperly influence the judge), and advertise on social media, so long as those activities otherwise
comply with the Rules of Professional Conduct. I still think lawyer advertising is unseemly, though continued on page 14

14. 14
I am not opposed to pointing out practice area emphases and experience. My LinkedIn page, once I
improve it, will differ from my firm website page in several notable ways: It will show my personality
and will be as firm agnostic as I want it to be. It may contain work history or experience not included on my firm webpage. It will
be designed to serve me well should opportunity come a-knocking. If it happens to benefit my firm, too, I will be glad to have
harnessed the power of social media to fulfill my obligations as a co-owner.
I have chosen to maintain my Facebook page 180 degrees from my firm website page. Facebook peeks into my life as a
lawyer but features my thoughts and activities as a gardener, choral singer, reader, volunteer, outdoorswoman, dabbler in history,
child of God, cook, aunt, and daughter. I have Facebook friends who are firm colleagues, opposing counsel, judges, clients, old
friends, acquaintances, and family. Because I am a lawyer, I share judiciously, avoid intemperate language, and keep some of my
opinions to myself. If I gain legal work because of my Facebook page, I will instantly feel close to any client who has seen the
Facebook side of me and likes me anyway. Indeed, I yearn for legal matters that allow that kind of relationship, fewer and farther
between when one represents legal fictions.
I guess the bottom line for use of social media, an unforgiving and powerful tool, is that we lawyers are governed by the Rules
of Professional Conduct at all times and everywhere we go: at work, at home, and online. Our use of social media may not work
harm to the administration of justice, the public’s perception of the judiciary, any client, or the professional or pecuniary interests
of those with whom we share a law practice. Happy professional scrapbooking. Go forth and be known for the good and right.
One may submit comments on draft LEO 2015-02 to: Social Media Committee, c/o Office of Disciplinary Counsel, 4700
MacCorkle Avenue SE, Suite 1200C, Charleston, WV 25304.
DTCWV Board of Governors Annual Retreat at the Canaan Resort
The DTCWVBoard of Governors recently met
for theirAnnual Retreat at the Canaan Resort and
Conference Center. The meeting was conducted
by Jeff Holmstrand, DTCWV President. The
Board of Governors holds a Retreat every year
in September in a different location with focus
on the future of DTCWV. Obviously these
meetings are paying off as DTCWV continues to
thrive and provide a valuable service to the West
Virginia defense bar.
DTCWV Members,
Professional Success - Join a DTCWV Substantive Committee - Be A SUPER HERO!
You know the value of sharing information and you certainly know the value of receiving information.
Substantive Committees provide quarterly meetings with one CLE per year, all focused on your practice area.
The information sharing is beneficial but it can also be fun. The emails and conversation can provide some
chuckles amidst the information and relationship building for your professional success.
Substantive Committees:
Business/Commercial Law
Construction Law
Employment Law
Energy Law
Insurance Law
Medical Law
Product Liability Law
Safety & Health Law
Workers’ Compensation
continued from page 13

15. 15
Now he likes the Business Court: An interview with John Meadows, Esq.
By Steven L. Snyder, Jenkins Fenstermaker, PLLC, Huntington, WV
John J. Meadows is a member of Steptoe & Johnson. Based in Charleston,
Meadows litigates a wide variety of energy-related and commercial disputes.
His practice takes him into federal and state courts, including the West Virginia
Business Court. Meadows recently spoke about his experiences in the Business
Court with Steven Snyder, a member of the DTCWV Newsletter Committee and
a Senior Counsel at Jenkins Fenstermaker, PLLC. In their conversation, which
is summarized below, Meadows recounts that he initially opposed having a case
transferred to that tribunal.
Question: How many cases have you had in the Business Court?
Answer: I have seen three cases through the Business Court division and I also participated in a case where it was
attempted to be removed to the Business Court division and I opposed it. That was actually our first
experience with the Business Court division.
We opposed the referral to Business Court very early in the process. There was some miscommunication, in
a case that had very many counsel, about what would happen if we actually removed it to the Business Court
division. But that was many years ago. I think now the Business Court has matured, they have changed their
rules and it has become more streamlined. There’s less miscommunication among counsel over what the real
implications from removal to Business Court division are. So way back when, we opposed it and we actually
prevailed in our opposition to it. I don’t know if today, if that same case were filed, if we would also prevail
in opposing it.
Question: The Business Court went into effect in 2012, so it was not that terribly long ago?
Answer: In the initial period of time no one was sure which cases were going to be rejected and which cases were going
to be accepted, so it was a real testing period. But that lasted exactly for a year and three months, before the
Court modified the standards for admission, the procedure by which one takes cases to the Business Court
division.
Question: What were the significant modifications that changed how you and how others have viewed the Business
Court?
Answer: The biggest modification was the method by which cases are referred to the Business Court division. There
used to be some confusion among counsel and the court over who needed to do what in order to send a case
up for referral. The biggest effect of the amendments was to streamline that process. Three years ago, a
party would move to refer a case to the Business Court division and judges weren’t sure if they needed to file
something. Some judges believed they had to be the ones to refer. There was just a bit of confusion and these
amendments have really streamlined the process and helped educate the legal community about the process.
Question: It appears from Trial Court Rule 29 that anyone can refer a case -- the judge or the litigants?
Answer: Right.
Question: You said there was some miscommunication in the first case that was referred to Business Court. Was it also
daunting because you had not litigated there before?
Answer: That was part of the problem, but there was a legitimate question over the propriety of the removal because
of the parties. There are quasi-governmental agencies that sometimes operate as businesses and there are
exceptions that take out certain litigants. So, there were some legitimate questions over who gets in. Is a
county commission allowed to be a litigant in a Business Court case? It appears they are not, they are a
government body. But how about a county’s development authority? It appears that they are. So I think, at
first, the opposition was due to a misunderstanding among counsel.
People at that time were also concerned that you were losing your jury pool and that your case was moving.
Of course none of those things were borne out to be true. But at that initial stage, when the words “Business
Court Division” were first uttered, in a case with twenty counsel, there was almost bound to be some
misunderstanding among counsel as to what all that meant.
Some of the other cases that have successfully made it to the Business Court Division continued on page 16

16. 16
that I’ve worked on were more garden-variety business versus business. A good
example is a matter involving a dispute between two raw material manufacturers
as part of a coal industry operation. Just a supplier dispute. But the supplier dispute was much more easily
resolved through a Business Court division referral. We immediately received specialized treatment. And I
think the parties were interested in immediately receiving specialized treatment.
That’s part of what happens in a Business Court division referral. You’re immediately assigned two judges.
You’re assigned a trial judge and a resolution judge, very similar to the way the mass tort litigation panel
works.
Question: And pretty similar to federal litigation?
Answer: Yes. So it’s very streamlined in that you almost immediately hear from your judicial officer who wants to
know, much like a Rule 16 conference, what do you guys need? Do you need a bunch of conferences with
me? Do you need a great deal of discovery? What’s this dispute all about? You get to have more of an
opportunity to have a conversation right there with the Court and explain what your case really is about. It
provides time for reflection among counsel as well to make sure they understand where the case is going to
go.
Generally, the Court will try to keep you on a streamlined time-frame in order to get cases resolved in a timely
fashion.
Question: Are the deadlines set forth in the Rule for a scheduling conference, a scheduling order, and then a trial in ten
months really adhered to?
Answer: Yes. The Court is willing to adhere to them if the parties are. Every time, the judges have been very
forthcoming about asking questions, such as what do you want? There is always an emphasis to keep things
going, but if the parties say, “Judge, we need to conduct fifteen depositions, and that’s going to take more time
than we initially allotted,” you’ll get more time.
The judges are paying attention to your real needs. You are separated from a regular docket, and you’re given
special attention for that reason. You’re assigned to a judge who can pay a little more attention to your case.
It’s no reflection on the original judge that you’ve asked to be referred. It’s to get you out of the regular
docket, to get you into a special docket.
The appointment of the resolution judge is perhaps the most effective and wonderful part of the Business
Court division – it’s having a free mediator who cares and who is a well-trained judicial officer and who can
exert the kind of influence you want a mediator to be able to exert. That person is a circuit judge who can
say, “Look, if this argument was in front of me, Counsel, I’d throw it out.” It’s not just a very well-trained
mediator saying that, it’s a guy who wears a robe in his day job.
It’s a very different situation, having that resolution judge pushing the parties toward compromise. What
we find often is that when businesses end up suing each other, it’s because they haven’t been able to reach
compromise. It’s not that sort of personal dispute you get from an individual who is a surface owner and who
is mad about losing his acreage – that becomes a very personal dispute for him. It’s a business dispute, and
generally the parties aren’t emotional about it.
Question: Have you noted greater expertise by the Business Court judges as opposed to regular circuit court judges?
Answer: Our circuit court judges do a great job as generalists, being able to handle everything, but if we have the
opportunity to take advantage of judges who have historically, for whatever reason, gotten more cases of this
type and flavor, then using them in different areas of the state when those cases arise seems to make a lot of
sense.
Question: Wouldn’t it be nice if you could file a case initially with the Business Court rather than having to depend on
the referral? Is that an idea that you think has merit?
Answer: I think that’s the next logical, organic step if this continues to grow. I think it will be dictated by how much
actual use is generated for the Business Court division.
Question: What about having dedicated judges who do nothing but business court?
Answer: If we could arrange a system that would have the volume, I think that’d be great.
continued from page 15

17. 17
34th Annual Meeting
June 12 - 15, 2016
Marriott Myrtle Beach
Grande Dunes
Myrtle Beach, SC
MARK YOUR CALENDAR NOW!
What better way to jump
into summer vacation - join us
in Myrtle Beach
More information coming soon
for room reservations

18. 18
Jeffrey Holmstrand, President
Jill Cranston Rice, Vice President
Jill McIntyre, Treasurer
Erik Legg, Secretary
Charles Printz, Jr., Im. Past President
Laurie Barbe, DRI State Rep & Past President
Peggy L. Schultz, Executive Director
Charles Bailey
Teresa Dumire
Jill Francisco, Paralegal Representative
William Galeota
Roberta Green
Mark Hayes
Eric Hulett
Robert Kent
Luke Lafferre
John McCuskey
Laurie Miller
Timothy Miller
Lawrence Morhous
Todd Mount
Heather Noel
Randall Saunders
Susan Snowden
John Teare, Jr.
Bernard Vallejos
Jeffrey Van Volkenburg, YL Representative
Steve Wellman
Monté Williams
2015 - 2016 DTCWV Board of Governors
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Verdicts, OrderS, & Rulings
The DTCWV website is waiting for you to submit your verdicts, orders, and rulings for viewing by only the DTCWV
members. It is very simple to do. Go the Member Area of the website. At the top of the drop down box is the category “Verdicts,
Orders & Rulings.” Click on that and the instructions appear for you to “Submit a Document.” This sharing of information is a
valuable asset for DTCWV and its members.
Once the data has been submitted, then members can use the “Search” feature that is listed on the same page. Type in the
information requested and anything related to the word search which has been submitted will pop up for your review.
Please help populate this area of the website. It can become a valuable resource for all.
www.dtcwv.org
Substantive Committee Chairs
DTCWV Membership
DTCWV requests that you encourage young associates to join our organization. We offer CLE and a variety of
activities to help young defense associates continue their education and develop their skills, which is a direct path to serving
clients better and enhancing the firm’s reputation. The DTCWV Membership Application is found on the website Home
Page at www.dtcwv.org.
Construction Law - Eric Hulett, Chair, Steptoe & Johnson PLLC
Business/Commercial Law - Randy Saunders, Chair, Nelson, Mullins, Riley & Scarborough
Energy Law - Timothy M. Miller, Chair, Babst Calland
Employment and Labor Law - Phillip Estep, Chair, Flaherty Sensabaugh & Bonasso PLLC
Insurance Law - Todd Mount, Chair, Shaffer & Shafer Law, PLLC
Medical Liability - Phillip Glyptis, Chair, Steptoe & Johnson PLLC
Products Liability - Mark Hayes, Chair, Robinson & McElwee, PLLC
Safety & Health - Katrina Bowers, Chair, Steptoe & Johnson PLLC
Workers’ Compensation - Lisa Warner Hunter, Chair, Pullin, Fowler, Flanagan , Brown & Poe, PLLC