Adjudication

Question 1

What is a nonsuit?

Answer 1

A nonsuit occurs when P decides to drop the case. Timing rules are intricate.

Question 2

P sues D. At trial, P decides to take a nonsuit. He has a right to do so once without prejudice unless any of these is true …

Answer 2

1. the jury is retired from the bar (deliberating)
2. a non-jury case is submitted to the court for decision
3. a motion to strike the evidence is granted or
4. a demurrer or special plea is fully argued and awaiting decision

Summary: The case is fully submitted to the trial court or the jury is retired and deliberating.

NOTE: Virginia supreme court case law holds that when claims have been dismissed by the trial court, a P may not later take a nonsuit of those claims. A claim that has been dismissed has been decided and it is too late at that stage for the P to exercise the statutory right to take nonsuit.

Question 3

If P moves for nonsuit while the jury is deliberating, it must be denied. What if the jury then deadlocks and the court declares a mistrial–can P take a nonsuit now?

Answer 3

Yes, because the case is not fully submitted to the trial court and the jury is not retired to deliberate.

The nonsuit will be without prejudice if it is the 1st time.

Question 4

Assume that D had made a motion to strike P’s evidence before the case was submitted to the trier of fact. The court does not formally rule on the motion, but indicates its strong inclination that it will grant it. Can P take a nonsuit now?

Answer 4

Yes, because the motion is not granted, the case is not fully submitted to the trial court, and the jury is not retired to deliberate.

Question 5

Can P take a nonsuit if the defendant filed a claim in the case (counterclaim, cross-claim, etc.)?

Answer 5

Only if the defendant agrees or the defedant’s claim can be adjudicated independently.

Question 6

After taking a nonsuit, P wants to refile against D. Where does he have to do this? Could he file the new case in federal court (assuming there is federal subject matter jurisdiction)?

Answer 6

In the same court unless it lacks jurisdiction or venue, or unless good cause is shown to litigate elsewhere.

He may file the new case in federal court.

Question 7

When should P refile against D?

Answer 7

Within six months or the limitations period, whichever is longer.

Question 8

Are nonsuits a matter of right?

Answer 8

Only one nonsuit as a matter of right. Others can be allowed by the court with notice to the other parties.

Party taking a nonsuit must inform the court of all previous nonsuits and that number must be reflected in the court order.

Question 9

When is a party in default? When does the court enter the default judgment?

Answer 9

Party is in default if he fails to respond to an affirmative pleading within the allowed time. The court enters default automatically.

Question 10

Does a defaulting party waive notice to further proceedings?

Answer 10

Yes, but notice will be given to counsel of record, if there is one. Also remember posted notice (See handout page 13).

Question 11

Does a defaulting party waive jury trial at further proceedings?

Answer 11

Yes.

Question 12

When a party defaults, what are the further proceedings?

Answer 12

The P moves for injury of default judgment.

Question 13

Say P moves for entry of default judgment and the damages are liquidated, what happens?

Answer 13

Judgment is entered for that amount if the damages are liquidated.

Question 14

Say P moves for entry of default judgment and damages are NOT liquidated, what happens?

Answer 14

P moves for a hearing on damage that is tried to the court unless the P requests a jury.

Question 15

D defaults. D shows up at the hearing on damages and wants to introduce evidence to show that he should not be liable. Can he do that?

Answer 15

No, he can appear and litigate damages but he cannot litigate issues related to liability.

Question 16

D defaults. D shows up at the hearing on damages and wants to object to evidence regarding P’s damages. Can he do that?

Answer 16

Yes, and he can cross-examine witnesses and can offer evidence on damages. He can fully litigate damages but not liability.

Question 17

What are the rules governing summary judgment in Virginia state court? How is it different from federal court?

Answer 17

It is basically the same standard as in federal practice, but with some important procedural differences:

• It is not available in divorce or annulment.
• No provision for using affidavits.
• Depositions can be used only if all parties agree to the use.
• Merely pleading a fact can create a triable issue, which is why summary judgment does not happen much in Virginia state courts. (MOST IMPORTANT DISTINCTION)

Question 18

Are jury trials available in General District Court?

Answer 18

No. Jury trial is never available in General District Court.

Question 19

When is there jury trial in Circuit Court?

Answer 19

In Circuit Court, a jury trial is available for causes of action at law but not at equity. This is based on VA law and not the 7th amendment. The 7th Amendment doesn’t apply.

Same as in federal court when there are some legal issues and some equitable issues, i.e., try the facts underlying the legal causes of action first.

Question 20

Is the judge bound by findings of fact made by the jury?

Answer 20

Yes. The judge is bound by findings of fact made by the jury.

Question 21

How does a party request a jury? What happens if there is a right to jury but no party demands it?

Answer 21

Must file written demand within 10 days after service of the last pleading raising the jury-triable issue(s). (Leave to amend does not extend this unless the court said so.)

If there is a right to jury, but no party demands it, then there is a bench trial– which means that the judge decides the facts, unless the judge enpanels a jury.

Question 22

What is the jury size if case involves more than $25,000?

Answer 22

7 jurors

Question 23

What is the jury size if case involves $25,000 or less?

Answer 23

5 jurors

Question 24

Can a 3 person jury be used?

Answer 24

If the parties consent, a three-person jury may be used.

Question 25

What happens during the voir dire process?

Answer 25

In the voir dire process, the parties may wish to challenge potential jurors. The challenges may be for cause (for “favor”), e.g., if potential juror is biased or related to a party. Each side entitled to unlimited challenges for cause.

Question 26

During the voir dire process of jury selection, when challenging potential jurors, what may a potential juror be challenged for?

Answer 26

The challenges may be for cause (for “favor”), e.g., if potential juror is biased or related to a party.

Question 27

During jury selection, how many challenges is each side entitled to for challenges for cause?

Answer 27

Each side entitled to unlimited challenges for cause.

Question 28

During jury selection, how many peremptory challenges is each side entitled to? What may a potential juror be challenged for?

Answer 28

Each side gets three “peremptory” challenges.

Historically, peremptory challenges did not have to be explained. BUT now, however, peremptory challenges must be exercised in a race-neutral and gender-neutral way, because jury selection is state action and the state cannot engage in race or gender discrimination.

Question 29

What is the process for jury selection? When does “panel” begin?

Answer 29

1. A “panel” begins with the number of jurors to be selected plus six (for the peremptory strikes). After voir dire, the parties exercise their strikes for cause. When one is stricken, another is brought onto the panel.
2. Then each side uses its peremptories. If there are extra jurors left over (because one party did not use all its peremptories), they are stricken by lottery. The jury is then sworn in.
3. Alternate jurors are extras, used when the court thinks some juror might be excused during trial. The alternates (selected at random) are not told of their status until deliberations are to begin.
4. In a three-person jury, each side chooses one and the two jurors pick the third.

Question 30

When are alternate jurors used in trial?

Answer 30

Alternate jurors are extras, used when the court thinks some juror might be excused during trial. The alternates (selected at random) are not told of their status until deliberations are to begin.

Question 31

How does jury selection work for a three-person jury?

Answer 31

In a three-person jury, each side chooses one and the two jurors pick the third.

Question 32

When should objections to jury instructions be raised?

Answer 32

Jury instructions are read to the jury by the court. Any objections should be raised before the jury is charged (or the issue is waived).

Question 33

Can the judge allow the jury to view premises where an event in the cause of action occurred?

Answer 33

Yes, the it is necessary to a just adjudication.

The court has great (but not unlimited) discretion over procedures concerning the jury.

Question 34

Can a judge allow pleadings into the jury room?

Answer 34

No. By statute, the judge cannot allow pleadings into the jury room.

Question 35

Can a judge allow exhibits into the jury room?

Answer 35

Yes, this is within the court’s discretion.

The court has great (but not unlimited) discretion over procedures concerning the jury.

Question 36

Can the judge give her opinion of credibility of witnesses?

Answer 36

No.

Question 37

What is meant by “sequestering” witnesses? Can a judge make an order to sequester winesses?

Answer 37

“Sequestering” witnesses means ordering that witnesses not be allowed in the courtroom when other witnesses are testifying.

The judge may grant a motion to sequester witnesses but cannot sequester parties. Parties have a right to be in the courtroom even if they too are a witness.

Question 38

A witness who was sequestered sneaks back into the courtroom and listens to some evidence. Can the judge nonetheless allow her to testify?

Answer 38

Yes, it is in the court’s discretion.

The court has great (but not unlimited) discretion over procedures concerning the jury.

Question 39

Can a jury ever be used for equitable causes of actions?

Answer 39

Juries can be used concerning equitable causes of action in certain situations. One big question is whether the jury’s decision will be binding on the court, or merely advisory to the court.

Question 40

Does a party have a fright to demand a jury to decide facts regarding a special plea? If so, is the decision binding on the court or merely advisory?

Answer 40

Yes, any party has a right to demand a jury to decide facts regarding a special plea.

The jury’s decision is binding on the court.

Question 41

If the court on its own motion refer an issue out of chancery (equity) and needs to make a finding of conflicting evidence, can a jury be used? Is so, is the jury’s decision binding or advisory?

Answer 41

Yes. A jury may be used and the jury’s decision is merely advisory to the court.

Question 42

When a party files an affidavit that the case will be rendered doubtful by the conflicting evidence of another party, in which case the court may refer issues out of chancery (equitable), can a jury be used? If so, is the decision binding or advisory?

Answer 42

Yes. A jury can be used to issue an advisory decision to the court.

Question 43

What is an advisory jury? Does that mean the judge is always free to ignore its findings?

Answer 43

An advisory jury is to “aid the conscience” of the judge. It does not mean that the judge is always free to ignore its findings.

It could be deemed an abuse of discretion to disregard jury findings that are supported by substantial evidence.

Question 44

How is evidence presented during trial at General District Court?

Answer 44

Usually testimony is given orally. In a personal injury case, a party may present evidence of treatment of the injury by a health care provider’s report or by hospital records.

Question 45

During trial at General District Court, can a medical report be presented as evidence? If so, what is the process for using medical reports as evidence?

Answer 45

A written medical report by a treating health care provider may be admitted if written notice of intent to use the report is given to the other party at least 10 days in advance of the trial.

A health care provider’s report must be accompanied by a sworn statement by the provider that:

(i) the party was treated by her;
(ii) the information contained in the report is true, accurate, and fully describes the injury; and
(iii) any statement of costs contained in the report is true and accurate.

Question 46

In GDC, during trial can a party present hospital records as evidence? If so, when are hospital records admitted?

Answer 46

Copies of hospital records may be admitted if they are accompanied by a sworn statement of the person who had custody of the records that the copies are true and accurate.

Question 47

In an action to recover damages to a motor vehicle in excess of $2,500 in Circuit Court or GDC, can evidence as to such damages be admitted by an itemized estimate or appraisal of the person who repaired the vehicle? If so, what is required? What if the case invovles $1,000 or less?

Answer 47

2. In an action to recover damages to a motor vehicle in excess of $2,500 in Circuit Court or GDC, evidence as to such damages may be admitted by an itemized estimate or appraisal of the person who repaired the vehicle.

– In the estimate, the repair person must state under oath: (i) that he is a motor vehicle repair person qualified to determine the amount of damages; (ii) the length of time that he has done such work; and (iii) the name and address of his employer. A copy of the estimate must be mailed or delivered to the adverse party at least seven days before trial. If that is not done, the document cannot admitted unless adverse party agrees.

– If the case involves $1,000 or less, the estimate can be used in the same way, but need not be mailed or delivered to the adverse party in advance of trial.

Question 48

What is the presentation of evidence in Circuit Court for legal causes of action?

Answer 48

Usually, the witnesses testify orally.

Deposition testimony can be used, as in federal practice.

Question 49

What is the presentation of evidence for trial of equitable causes of action in Circuit Court?

Answer 49

Evidence usually by deposition, with no live testimony.

Can be oral, though, if court desires. Also, will be presented orally anytime the court uses a jury.

Question 50

When evidence is presented for trial of equitable causes of action in Circuit Court, what do they call oral presentation of testimony?

Answer 50

Oral presentation of testimony is called ore tenus.

Question 51

During a trial of equitable causes of action in Circuit Court, who can matters concerning the actions be referred to? What is this called? What is the entity receiving the reference usually asked to do?

Answer 51

Matters concerning equity causes of action may be referred to a Commissioner, who is not really a judge, but who assists the judge in deciding the case.

The judge sends matters to the Commissioner by a “decree of reference,” which spells out what the Commissioner is to do. Usually, the Commissioner is asked to determine facts and suggest conclusions of law.

Question 52

In matters concerning equity causes of action in Circuit Court, when can Commissioners in chancery be used?

Answer 52

Commissioners in chancery may be used only if:

1. all parties and the court agree OR
2. if the court finds good cause on the facts of the case.

Question 53

In matters concerning equity causes of action in Circuit Court, what is the role of the Commissioner?

Answer 53

The Commissioner can subpoena witnesses and take testimony. She makes a record of evidence she finds inadmissible. She files her report with the clerk of the Circuit Court and notifies the counsel of record of that fact.

Question 54

After the Commissioner files her report in an equity cause of action, how long do the parties have to file objections to it in court?

Answer 54

10 days

Question 55

In a Circuit Court equity cause of action, what is the purpose of the Commissioner’s report?

Answer 55

The Commissioner’s report is meant to assist, and not to bind, the judge.

As to matters of fact, the judge is free to make her own findings, but may be reversed for abuse of discretion if she ignores findings that are “supported by the evidence.”

On matters of law, however, the Commissioner’s report is entitled to no deference.

Question 56

What is a motion to strike the evidence? How is it similar and different from the motion for judgment as a matter of law in federal courts?

Answer 56

Functional equivalent of the motion for judgment as a matter of law in federal practice. The number of times each party may raise it and the standard for granting it (reasonable people could not disagree as to result) are the same as on the federal side.

As in federal practice, the fact that D moves at the close of P’s case does not estop D from introducing evidence.

One procedural difference: the state judge, who feels that the standard is met, grants the motion to strike the evidence and enters summary judgment.

Question 57

What is the definition of a verdict? What are the rules?

Answer 57

Verdict must be unanimous unless the parties stipulate otherwise.

If the verdict is not unanimous its a hung jury and a mistrial.

If it’s a three-person jury, all that is required is two votes for the verdict.

Question 58

P files a complaint seeking $40,000 in damages. What is the most she can recover if the case goes to trial? Is this the same as in federal court?

Answer 58

The most she can recover if the case goes to trial is $40,000 because the compliant acts as a cap on damages.

This is not the same as in federal court. In federal court, the compliant is not a cap and the only time the complaint caps your recovery is in default.

Question 59

In determining damages, the jury members decide that they will each set forth their own damages figure, and divide by the number of jurors. Is this OK?

Answer 59

No, this is a quotient verdict and it is misconduct because they must reach a figure as a product of deliberation.

Question 60

Can a verdict be impeached for impropriety by a juror?

Answer 60

Yes, but with great caution. The court can ask jurors about misconduct but not about their subjective processes.

Question 61

What is considered a judgment or decree? What is it called under legal causes of action, and what is it called under equitable causes of action?

Answer 61

A judgment or decree is an official announcement by the court of the decision of the case.

On legal causes of action, it is called a judgment

On equitable causes of action, it can be called a decree

Question 62

What is a post-trial motion?

Answer 62

Post-Trial Motions allow a party to seek review from the court after that same court has entered a judgment or decree,

Question 63

In GDC, when must a party file a post-trial motion to seek rehearing? When must the court rule on that motion?

Answer 63

A party can seek rehearing no later than 30 days after entry of judgment. Court must rule on the motion no later than 45 days of the entry of judgment (not of the motion).

Question 64

In Circuit Court, how long do final judgments remain under the control of the court? What can the court do during this period? Are there any exceptions?

Answer 64

Every final judgment or decree remains under the control of the court for 21 days after entry. During this period, the court can suspend, vacate or modify the judgment or decree. This period is called *in the breast of the court. *

Exception: Can vacate default judgment or decree on the ground of fraud for up to two years after entry.

Question 65

After the circuit court has issued its final judgment or decree, what happens if the court does not suspend, vacate, or modify a judgment or decree within 21 days?

Answer 65

The court loses jurisdiction unless it suspends the judgment or decree.

Question 66

Twenty days after a judgment is entered, a party makes a motion in the circuit court to vacate the judgment. What is the latest date on which the court can grant the motion?

Answer 66

The latest date on which the court can grant the motion is the next day. The rule is 21 days from the judgment not the motion, unless the judge suspends the judgment or decree.

Question 67

Twenty-two days after the judgment is entered, a party makes a motion in the circuit court to vacate the judgment. What happens?

Answer 67

The motion must be denied unless the court suspended the judgment or decree within 21 days.

Question 68

What is a motion to set aside verdict as contrary to the evidence in Circuit Court?

Answer 68

It is the equivalent of the renewed motion for judgment as a matter of law in federal practice.

– Difference from federal practice: NOT REQUIRED THAT THE PARTY HAD MOVED TO STRIKE THE EVIDENCE first.

Question 69

In Circuit Court, what is a motion for new trial? What are the grounds for granting the motion?

Answer 69

Functional equivalent of the Motion for New Trial in federal practice. Move within 21 days after entry of the judgment or decree.

Remember, the court must rule within 21 days (breast of the court) unless it supends the judgment.

Grounds:

(i) Prejudicial (not harmless) error or misconduct by court (e.g., erroneous jury instruction, etc.);
(ii) misconduct of party, attorney (e.g., referring to insurance coverage of party), juror (e.g., making independent investigation of the accident scene), or third party;
(iii) new evidence has been discovered;
(iv) unfair surprise by evidence presented at trial and the evidence has a material outcome on the trial;
(v) excessive or inadequate damages.

Question 70

Joey Gladstone loses a judgment. He moves for new trial, alleging that he has discovered new evidence which would help in his defense. The court denies the motion. Is this proper?

Answer 70

Yes. The court must deny the motion. Joey must allege that his failure to present the evidence at trial was not because of his lack of diligence. He did not allege that here, so his motion is dismissed.

Also, the evidence must be significant new evidence, not cumulative.

Question 71

Charlie, on his way to a party, rams his new sports car into a bicycle being ridden by Goodguy, a retired priest who is on his way to do volunteer work for the homeless. Goodguy suffers a sprained wrist, which was healed by the time of trial, and his bike (worth $50) was wrecked. He sued for damages for the personal injuries and property damage, and for pain and suffering. The jury returned a verdict of $100,000. Charlie now moves to set aside the verdict and for new trial because the verdict was excessive. What is the test for whether the verdict is too high or too low?

Answer 71

The test is does it shock the conscience. Here, the answer is yes. The damages in this case are excessive.

Question 72

If the Circuit Court grants a party’s motions to set aside the verdict and for new trial because the verdict was excessive, could the judge order a new trial on all issues? Could the judge order a new trial on damages only?

Answer 72

if damages are not separable from the liability, a judge could order a new trial on all issues.

If the liability is well established, then the judge can order a new trial on damages only.

Question 73

If a judge finds the verdict is excessive but not so much so that it shows bias, what can the judge do?

Answer 73

If she finds the damages are excessive but not so much so that it shows bias, she could suggest remittitur: tell the winning party that he can either accept a reduced award (which she would state) or that she will order new trial.

Question 74

Suppose the judge orders remittitur, that Goodguy can accept an award of $8,000 or else she will order a new trial on all issues. What are Goodguy’s options?

Answer 74

Goodguy can:

(1) Accept the remittitur without protest;
(2) Accept the remittitur under protest and try to appeal the order to remit; or
(3) Reject the remittitur and go through the new trial and, if still aggrieved, attempt to appeal on the ground that the grant of new trial was error. To do this, though, Goodguy MUST make exception to the order of new trial.

Question 75

When is an additur appropriate?

Answer 75

If liability is clear but the verdict is obviously inadequate, the court can order a new trial or, instead, suggest additur. This means the defendant must pay a higher amount or else submit to a new trial.

Question 76

Plaintiff shows at trial that he was seriously injured. The jury returns a verdict of only $17,000. The court, on P’s motion, suggests additur, that D pay a judgment of $75,000 or face a new trial. What happens if either party rejects the $75,000 judgment?

Answer 76

If either plaitiff or defendant rejects the $75,000 judgment, then the court must order a new trial.

Question 77

Are both remittiturs and additurs okay in federal court? Why or why not?

Answer 77

In federal court, remittitur is okay but additur is not permitted because it violates the 7th amendment. The 7th amendment doesn’t apply in state court.

Question 78

What is a bill of review? When is it available? On what grounds can it be granted?

Answer 78

As to equity causes of action only, a bill of review allows a party to seek review of final decree for up to six months after entry. (This trumps the 21-day “breast of the court” rule.)

Grounds:

• Can file without leave of court to correct errors that are apparent on the face of the record.
• Can file with leave of court based upon new evidence but you must meet standard for new evidence:

1. failure to present evidence at trial was not because of his lack of diligence and
2. The new evidence is significant, not cumulative.