Why playing dress up with my daughter makes me think of Virginia law on non-competes

This morning my precious child pranced around our kitchen in a tutu, with a fairy wand. She tried to grant our cat Earl three wishes by tapping his head with the wand. I think he wished for her to leave as the plastic star fell upon his head rather aggressively. Sadly, she didn’t quite sense his wishes involved personal space, and kept at it until he ran away.

At one point, she looked at me, twirled and asked “pretty?”

“Oh bug,” I exclaimed. “You are so beautiful inside and out. You are so strong and sweet. I love you sweet girl!” * (Clearly trying my best to get away from focusing on outward beauty but wanting to present the appropriate level of enthusiasm).

It used to be that Virginia judges, when asked to decide whether a restrictive covenant in an employment agreement was binding, reasonable and therefore enforceable, would read the agreement, catch up on Virginia law and decide as a matter of law whether the contract was on its face reasonable.

Now, a shift has occurred where most judges are requiring discovery and evidence between the parties to determine in context of this employee, this industry, this document etc., whether the covenants are reasonable. While I get that context and information is helpful, what it means practically for our clients is that we no longer have access to the courts to determine the validity of a contract without expensive and time consuming evidence gathering. Depositions, written discovery, it all takes time and money.

So what used to be a simple or straight forward process (in theory) is now prolonged, anything but straightforward, and at least 6-9 months in the making.

So how on earth does all this link to my little fairy godmother?

What if, when asked whether my daughter was pretty, I had responded “So sorry bug, I’m not sure yet. I need to examine the tutu fabric, or hold the wand for a few minutes to study its glimmer, then I’ll be able to answer your question.” Don’t you think my need for further information would elicit a tantrum, crying fit or worse, general sadness? I do.

And that response is not dissimilar to what happens when our clients are told, “so sorry, while common sense and Virginia law clearly dictate your contract is overbroad and unreasonable, we have to waste months of time and money on discovery before the judge will determine the contract is overbroad and unreasonable.”

There is very little I can do about this new trend in Virginia courts. I can advise my clients to the reality of their options and complain on my soap box about judicial economy. Very few will listen and even fewer will care.

When asked however by a darling little girl for an observation, or affirmation – I will answer immediately, and with great gusto. I may even waste one of my three wishes tomorrow on this recent legal development. Who knows, maybe it will work. I wish, I wish, I wish!


Lauren Ellerman
Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.