Trial, Judgment, and Post Trial Motions

Question 1

What is the right to a jury trial in VA?

Answer 1

• No jury in GDC
• In CC, jury right same as federal court, but under state law, not the Seventh Amendment

Question 2

What if a case involves law and equity?

Answer 2

Same as federal court–issues of fact underlying law causes of action tried to jury first
* Then issues of fact underlying equity causes tried to the judge, and in ruling on these, judge bound by findings of fact made by the jury

Question 3

How does a party get a jury trial?

Answer 3

Files written demand for jury trial no later than 10 days after service of the last pleading raising a jury-triable issue
* Leave to amend does not extend this unless court so rules
* If no party demands, court holds bench trial unless it orders a jury trial

Question 4

What is the jury size?

Answer 4

1. If case involves more than $25,000, 7 jurors
2. If case involves $25,000 or less, 5 jurors
3. If parties consent, 3 jurors

Question 5

How many challenges for cause and how many peremptory challenges does each party get?

Answer 5

• For cause–unlimited
• Peremptory–3 (must be exercised in race and gender neutral way)

Question 6

What is the process for seating a jury?

Answer 6

1. Begin “panel” with the number of jurors to be selected plus 6 (for peremptories)
2. After voir dire, parties exercise strikes for cause and when one is striken, another person is brought in
3. Side uses its peremptories
4. If extras (i.e., one side doesn’t use all peremptories), stricken by lottery
5. Alternate jurors used when court thinks some juror might be excused during trial, and are selected at random and not told of status until deliberations begin

Question 7

What is the process for seating a 3-person jury?

Answer 7

Same general process, but each side chooses one juror and the two jurors pick the third

Question 8

When must objections be made to jury instructions?

Answer 8

Before the jury is charged or else they are waived

Question 9

May a judge allow the jury to view the premises?

Answer 9

Yes–if necessary to a just adjudication

Question 10

May a judge allow pleadings into the jury room?

Answer 10

NO

Question 11

May a judge allow exhibits into the jury room?

Answer 11

Yes–in the court’s discretion

Question 12

May a judge give her opinion on witness credibility?

Answer 12

No

Question 13

May the judge make an order sequestering witnesses?

Answer 13

Can grant a motion to sequester witnesses, but parties cannot be sequestered

Question 14

If a juror who was sequestered but snuck back into courtroom and listened to evidence, can judge allow witness to testify still?

Answer 14

Yes–in her discretion

Question 15

Does a party have a right to demand a jury to decide facts regarding a special plea?

Answer 15

Yes–their factfinding is binding

Question 16

May a court on its own motion refer an issue out of chancery?

Answer 16

Yes, but probably needs ot make a finding of conflicting evidence–this is advisory

Question 17

When else may a court refer issues out of chancery?

Answer 17

When a party files an affidavit that the case will be rendered doubtful by the conflicting evidence of another party–this is advisory

Question 18

What is an advisory judge?

Answer 18

Intended to “aid the consience” of the judge
* Could be abuse of discretion to disregard findings upported by substantial evidence

Question 19

How is evidence generally presented at GDC?

Answer 19

Usually given orally
* In PI case, party may present evidence of treatment of the injury by healthcare provider’s report or hospital records

Question 20

How are medical reports used in GDC?

Answer 20

Admissible if written notice of intent to use report given to other party at least 10 days before trial
* Report must be accompanied by sworn statement by provider that: (1) she treated the party; (2) information in report is true, accurate, and fully describes injury; and (3) any statement of costs contained in the report is true and accurate

Question 21

How are hospital records used in GDC?

Answer 21

Admissible if accompanied by sworn statement of the person who had custody of the records that copies are true and accurate

Question 22

How may P prove evidence as to damages in Circuit Court or GDC?

Answer 22

Itemized estimate or appraisal of the person who repaired the vehicle, whereby repair person must state under oath: (1) he is motor vehicle repair person euqliafied to determine amount of damages; (2) length of time he has done such work; and (3) name and address of employer

A copy of estimate must be mailed at least 7 days before trial and if not, can’t be used
* If case involves $2,500 or less, estimate can be used in same way, but need not be mailed to adverse party

Question 23

How may evidence be presented of equitable causes of action in CC?

Answer 23

Usually by deposition transcript, with no live testimony
* Oral evidence may be given if court orders (and this will happen any time the court uses a jury)

Question 24

What is a commissioner in equity?

Answer 24

Not a judge, but one who assists the judge in deciding the case
* Judge sends to commissioner by “decree of reference,” which spells out what the commissioner is to do

Question 25

When may a judge refer a matter to a commissioner?

Answer 25

Where parties agree or court finds good cause

Question 26

What powers does the commissioner have?

Answer 26

She may subpoena witnesses and take testimony
* Makes record of evidence she finds inadmissible
* Files report with clerk of circuit court and notifies counsel of record

Question 27

How long do parties have to file objections to commissioner’s report?

Answer 27

10 days

Question 28

What level of deference is given to the commissioner’s report?

Answer 28

As to matters of fact, judge may 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, no deference

Question 29

What is a motion to strike the evidence?

Answer 29

Functional equivalent of JMOL–“reasonable people could not disagree as to result”
* D moves at the close of P’s case
* Judge who feels that standard is satisfied (1) grants motion and (2) enters summary judgment

Question 30

How many jurors must agree to a verdict?

Answer 30

Must be unanimous unless the parties agree otherwise
* If it’s a three-person jury, just need majority

Question 31

How much relief is recoverable in VA?

Answer 31

The amount in the complaint

Question 32

What is a quotient verdict?

Answer 32

Where jurors decide to set forth individual damages figures and then divide by the total number of jurors
* This is improper, but difficult to impeach–jurors may be asked about overt misconduct but generally not subjective thought processes

Question 33

When may a party seek rehearing in GDC?

Answer 33

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 the motion)

Question 34

What does it mean to say “in the breast of the court?”

Answer 34

21-day period after every final judgment or decree where decision remains under control of CC
* Can suspend, modify, or vacate the judgment or decree, but if it doesn’t, it loses jurisdiction even if there is a motion under advisement
* If 21st day falls on holiday or weekend, party may act on next business day
* Exception–court can vacate default judgment or decree on ground of fraud for up to 2 years after entry

Question 35

What is a motion to set aside verdict as contrary to evidence?

Answer 35

Equivalent of renewed judgment as a matter of law in federal court
* Difference is that the party making the motion is not required to have moved to strike the evidence first

Question 36

What is a motion for a new trial?

Answer 36

Same thing as in federal court–must move promptly because of the 21-day period

Question 37

What are some grounds for a new trial?

Answer 37

1. Prejudicial error or misconduct by the court (e.g., incorrect jury instruction)
2. Misconduct of a party, attorney, or juror
3. New evidence discovered
4. Unfair surprise by evidence at trial and evidence has material outcome on trial
5. Excessive or inadequate damages

Question 38

What is the standard for remittitur?

Answer 38

Whether the damages figure shocks the conscience (same standard for new trial based on excessive or inadequate damages)

Question 39

May a judge order a new trial on damages only?

Answer 39

Yes–if liability is well-established
* If there is evidence that the damages award was based upon a bias against the defendant, then even if liability is well-established, there should be a new trial on liability as well

Question 40

What options does a plaintiff have upon offer of remittitur?

Answer 40

(1) Accept without protest
(2) Accept under protest and try to appeal the order to remit OR
(3) Reject remititur, make exception to order of new trial, go through with new trial and, if still aggrieved, attempt to appeal on ground that grant of new trial was error

Question 41

When may the court suggest additur?

Answer 41

Where liability is clear but the verdict is so low that it shocks the consience, court may order new trial or suggest additur

Question 42

What is a bill of review?

Answer 42

As to equity causes of action only, party can seek review of final decree for up to 6 months after entry
* Without leave of court, party can file to correct errors apparent on the face of the record
* With leave of court, party can file based on new evidence