Adjudication - Trial

Question 1

What is a nonsuit?

Answer 1

Plaintiff decides to dismiss voluntarily without prejudice.

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 2

Timing of Nonsuit

Answer 2

P has a right to a nonsuit once without prejudice unless any of these are true:

1) Jury is retired from bar
2) Nonjury case submitted to court for a decision
3) Motion to strike evidence is granted
4) Demurrer or special plea is fully argued and awaiting a decision.

If Defendant files a counterclaim, cross claim etc. Plaintiff can take a nonsuit only if D agrees or the claim can be adjudicated independently.

Question 3

After taking a nonsuit, P wants to refile against same Defendant, where must they refile?

Answer 3

Same court unless it lacks jurisdiction, or venue, or unless good cause is shown to litigate somewhere else.

Question 4

Default & Default Judgement

Answer 4

Party is in default if they fail to respond to an affirmative pleading within the allowed time.

The court enters default automatically.

If D is in default, they waive notice to further proceedings. However notice will be given to counsel of record or posted service.

They also waive jury trial at further proceedings.

Question 5

What happens after D defaults?

Answer 5

P moves for entry of Default Judgement
- If damages are liquidated, the Judge will enter a judgement for that amount.
- If damages are not liquidated, P may move for a hearing on damages. P can request a jury for this hearing.

Question 6

What happens if the Defendant Defaults, plaintiff requests a hearing on the damages, and Defendant then shows up to that hearing and wants to introduce evidence?

Answer 6

He is allowed to appear and litigate damages only. Cannot litigate liability.

Defendant can cross examine witnesses and offer evidence on damages only.

Question 7

Summary Judgement

Answer 7

No genuine dispute of material fact and the moving party is entitled to a judgement as a matter of law.

Any party can move for summary judgement.

If all parties agree, a motion for summary judgement can be based on deposition testimony.

A party cannot base their motion on affidavits

A conflict in pleadings regarding a material fact, creates a triable issue. So if pleadings show a dispute in material facts, the court may grant summary judgement.

Question 8

Jury Trial

Answer 8

Circuit Court Only

When there are some legal issues to be tried and some equitable issues, the legal issues will be tried first in front of the jury and then the equity issues by the judge.

The judge is bound by the decision of the judge

Must file a written demand within 10 days after service of the last pleading raising the jury triable issues.

If there is a right to a jury but no party demands it, it is a bench trial unless court orders jury.

Question 9

Jury Size

Answer 9

More than 25K - 7 people
Less than 25K - 5 people

If parties consent, a 3 person jury may be used.

Question 10

Challenging a Potential Juror for Cause

Answer 10

When a potential juror is related to a party, has an interest in the case being tried, or has expressed an opinion or bias in the matter, he can be stricken from the panel for cause.

It is reversible error for a court to force a party to use one of there preemptory strikes, when the juror should be stricken for cause.

Each side is entitled to unlimited for cause challenges.

Question 11

Preemptory Challenges

Answer 11

Each side gets 3 preemptory challenges

Preemptory challenges cannot be based on race or gender.

Question 12

Can the judge allow the jury to view premises?

Answer 12

Yes, if necessary to a just adjudication

Question 13

Can the judge allow pleadings into the jury room?

Answer 13

No

Question 14

Can the judge allow exhibits in the jury room?

Answer 14

Yes at judge’s discretion

Question 15

If a witness who was excluded (sequestered) from the courtroom sneaks back in to the courtroom and listens to evidence, can the judge nonetheless allow the witness to testify?

Answer 15

Yes in court’s discretion.

Question 16

Juries & Equitable Causes of Actions

Answer 16

Juries can be used concerning equitable causes of action in certain situations.

Sometimes the juries decision will be binding on the judge and other times merely advisory.
- Any party has the right to demand a jury to decide facts of a special plea. This will be binding.
- The court may on its own motion refer an issue out of chancery. Probably needs to make a finding of conflicting evidence. Advisory.
- Any party may file an affidavit that the case will be rendered doubtful by conflicting evidence of another party, in which case the court may refer issues out of chancery. Advisory

An advisory jury is to “aid the conscience” of the judge, It could be an abuse of discretion if the judge disregards the finding of the jury if supported by substantial evidence.

Question 17

Presentation of Evidence at Trial

Answer 17

GDC - Testimony given orally
- In a PI case may present evidence of treatment of the injury by a health care provider’s report or by hospital records.
- Medical Report may be admitted if intent to use report was given to the other party at least 10 days in advance of trial.
- Health Care Providers report must be accompanied by a sworn statement that the party was treated by her and that the information contained in the report is true and accurate and fully describes the injury. As well as that any statement of costs in the report is true and accurate.

Hospital Records may be admitted if they are accompanied by a sworn statement by the person who had custody of the records, that the records are true and accurate.

Property Damage:

• if PD is more than $2,500.00 in either Circuit or GDC evidence of such damage may be admitted by an itemized estimate or appraisal of the person who repaired the vehicle.

The estimate must include a statement under oath that (1) he is the motor vehicle repair person qualified to determine the amount of damages (2) length of time that he has done such work and (3) the name and address of his employer.

• A copy of the estimate must be mailed or delivered to adverse party at least 7 days before trial. If not done, it cannot be admitted unless the other party agrees.

If the PD is less than $2,500 no need to give it to the other side in advance of trial.

Question 18

Trial of Equitable Cause of Action

Answer 18

Evidence is usually by deposition transcript with no live testimony.

Can be oral if the court desires.

Will be oral any time a jury is used.

Question 19

What is oral presentation of testimony called?

Answer 19

Ore tenus

Question 20

What is a Motion to Strike Evidence

Answer 20

Essentially same as a JMOL

Defendant would raise it at the end of P’s case saying that looking at the evidence in a light most favorable to the nonmoving party, the Plaintiff has failed to prove their case.

The court will grant the motion if a jury could only properly find one way. Only when it is conclusively apparent that Plaintiff has proven no cause of action.

If a judge feels the standard is met, they would strike the evidence and grant enter summary judgement.

Question 21

Jury Verdict

Answer 21

Must be unanimous, unless the parties stipulate otherwise.

If it’s not unanimous, hung jury and mistrial

Question 22

When coming to the verdict, can the jury members all set forth their own damage figures and then divide by the number of jurors?

Answer 22

No. This is called a quotient verdict. They cannot do this. They must come to the verdict as a product of deliberation.

Hard to prove a quotient verdict because the jurors can be asked about overt misconduct, but not about subjective thought process.

Question 23

Rehearing in General District Court

Answer 23

You can ask for a rehearing, no later than 30 days after the entry of a judgement.

Court must rule on the Motion no later than 45 days of entry of the judgement,

Question 24

Circuit Court - 21 Day Rule

Answer 24

Every final judgement or decree remains in the breast of the court for 21 days days after entry.

During this period, the court may suspend, vacate, or modify a judgement.

If the court doesn’t suspend, vacate, or modify within the 21 days, they must deny it.

Exception: Fraud. They can vacate a judgement or decree on the basis of fraud for 2 years.

Question 25

Motion to Set Aside Verdict As Contrary to the Evidence

Answer 25

The court doesn’t need to give a new trial in this case if their is sufficient evident for the court to decide the case on the merits.

Difference from Federal Law - In VA is not a requirement that the party had to move to strike the evidence first.

Question 26

Motion for New Trial

Answer 26

Must be filed no later than 21 days after judgment

Question 27

Grounds for a new trial

Answer 27

a) Prejudicial error or misconduct by Court
b) Misconduct of party or attorney or juror or third party
c) new evidence has been discovered
d) unfair surprise by evidence presented at trial and the evidence has a material outcome of the trial
e) excessive or inadequate damages

Question 28

A requirenment for being granted a new trial based on discovery of new evidence

Answer 28

The party making the motion has to allege that the failure to present the evidence at trial was not as a result of his lack of due diligence.

Must be truly new evidence and not just cumulative evidence presented at trial.

Question 29

Test for new trial because verdict is too high or low?

Answer 29

Does the damages figure shock the conscience?

A judge can order a new trial on all of the issues if damages is not separable from liability.

The judge can also order a new trial on damaged only if damages is well established.

Remittitur: The judge can also tell the Plaintiff that they can accept a reduced award (which the judge would set) or that she will order a new trial.

Additur: Same goes vice versa. If the verdict was too low. The judge can set a higher amount and give the Defendant the option of paying the higher amount vs. doing new trial.
(In federal court remittitur is allowed but additur is not permitted as it violated seventh amendment.)

Question 30

Bill of Review

Answer 30

This applies to equity causes of action only.

A party can seek review of final decree for up to 6 months after entry. (Trumps 21 day rule)

Grounds:
- Correct errors apparent on face of record
- New Evidence

Question 31

Final Judgement Rule

Answer 31

You can only appeal a final judgement.

Question 32

Pre-trial Interlocutory Ruling

Answer 32

The Court may certify a pretrial interlocutory ruling for appeal to the appropriate appellate court.

A party would have to request it and the court must certify if:

a) There is substancial ground for difference of opinion
b) There is no clear Virginia Appellate precedant
c) Determination of the issues will be dispositive of a material aspect of the case
and
d) The court and the parties agree that it is in the parties best interest to seek an interlocutory review.

Question 33

Cases involving multiple parties - Partial Final Judgement

Answer 33

In cases involving multiple parties. A final partial judgement as to one may be appealable, even though it is not a final judgement for the whole case.

P sues D1 & D2. Court enters a judgment in the claim against D2. This is not a final judgement because D1’s claim has not been resolved yet. The loser on the ruling can appeal if:

a) the trial court enters “partial final judgement” on the claims.
b) the interests involved are separate and distinct from those remaining.
c) results of appeal on the partial final judgement will not affect the decision in the remaining causes of action. and
d) Results of the remaining issues cannot affect disposition of the cause of action determined in the partial final judgment.

Question 34

Appealing from GDC to CC

Answer 34

No later than 10 days after entry of judgment

Post bond and pay writ of tax and costs in GDC no later than 30 days of judgment. (10 days in unlawful detainer cases)

Seeking a rehearing does not alter this time table.

CC - hears cases De-Novo

Question 35

CC Appeal to Court of Appeals

Answer 35

There is now a right of appeal.

• File a notice of appeal - No later than 30 days after entry of final judgement.
• File a bond for costs
• File transcript or written statement of facts.