Trial, Judgment, and Post-Trial Motions

Question 1

are there juries in GDC?

Answer 1

no! there is no jury in GDC

Question 2

is there a jury in Circuit court?

Answer 2

the jury right is the same as in federal court. In state law - jury right is preserved in CIVIL ACTIONS AT LAW - but not in suits of equity (does not arise from 7th amendment - but rather state law)

Question 3

what if a case includes both law and equity? (same standard as federal courts)

Answer 3

then the facts underlying the LAW causes of action are tried to the jury first. THEN the issues of fact underlying the equity causes are tried to the judge, and on ruling on these issues, the judge is bound by findings of fact made by the jury

Question 4

how and when must a party ‘demand’ a jury?

Answer 4

a party must file a written demand for a jury trial NO LATER THAN 10 DAYS AFTER SERVICE of the last pleading raising jury-triable issue(s)

Question 5

does a motion for leave to amend extend the time that a party has to demand a jury?

Answer 5

nope!

Question 6

if there is a right to a jury - but no party demands it - what happens?

Answer 6

the court holds a BENCH TRIAL (the facts are determined by the court) UNLESS the court orders jury

Question 7

what is the size of a jury?

Answer 7

if case involves more than $25,000 - there are 7 jurors

if the case involves $25,000 or less - there are 5 jurors

if the parties CONSENT - a 3-person jury may be used

(different from fed court where you need a minimum of 6 and max of 12, unless parties agree otherwise)

Question 8

voir dire process: what are the two types of challenges?

Answer 8

1) for cause challenges (for “Favor”) (i.e. if a potential juror is biased or related to a party) - each side is entitled to UNLIMITED CHALLENGES FOR CAUSE

2) Peremptory challenges –> historically, do not have to be explained - but must be excursive in a race-neutral and gender-neutral way (because it is a state action) ****each side gets 3 peremptory challenges!

Question 9

procedure for seating a jury?

Answer 9

a “panel” begins with the number of jurors to be selected (depending on the amount in controversy - 5 or 7 - or if consent - then 3) +PLUS 6 (for the peremptory strikes).

Question 10

what happens after voir dire (after judge assess witnesses), what do the parties do?

Answer 10

the parties exercise their strikes FOR CAUSE. When one party is stricken, another person is brought onto the panel.

Question 11

what happens after parties use their ‘for cause’ challenges?

Answer 11

then each side uses its 3 peremptory challenges. 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.

Question 12

what are ‘alternate’ jurors?

Answer 12

alternate jurors are EXTRA jurors and are 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 13

in a 3-person jury (which is used when) - how are jurors selected?

Answer 13

3-person juries can be selected if the parties consent. in a 3-person jury, each side chooses 1 juror and the 2 jurors pick the third juror

Question 14

jury instructions in VA

Answer 14

the court reads jury instructions to the jury.

Question 15

are objections to jury instructions waived?

Answer 15

Objections are waived if not made before the jury is charged

Question 16

the court has great discretion over procedures concerning the jury:

Answer 16

the judge can:
a) allow the jury to view the premises - if necessary to a just adjudication
b) allow exhibits into the room
c) “sequester” witnesses - order that witness are not allowed in the courtroom when other witnesses are testifying (can grant a motion to sequester witnesses)
d) allow a witness - who was sequestered but sneaked back in courtroom and listened to some evidence - to testify

Question 17

what does a judge not have discretion to do re: juries?

Answer 17

a judge can not:
a) allow pleadings into the room
b) give her opinion of credibility of witnesses

Question 18

can juries be used in equitable causes of action?

Answer 18

Juries can be used in equitable causes of action in three situations

Question 19

is a jury’s decision binding on the court or merely advisory to the court:

Answer 19

when jury’s decision is BINDING on the court:
1) any party has right to demand a jury to decide facts regarding a SPECIAL PLEA

when jury’s decision is ADVISORY to the court:
1) The court may on its own motion refer an issue out of chancery. Probably needs to make a finding of conflicting evidence.
2) Any party may file 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

Question 20

An advisory jury is to “aid the conscience” of the judge. Does that mean the judge is always free to ignore its findings?

Answer 20

No, it could be abuse of discretion to disregard findings supported by substantial evidence.

Question 21

presentation at evidence of trial: GDC

Answer 21

in GDC, testimony is usually given ORALLY.

Question 22

how is evidence presented in a personal injury case (GDC)?

Answer 22

in a personal injury case - a party may present the evidence of TREATMENT of the injury by a healthcare provider’s report OR by medical records

Question 23

when may a medical report be admitted into evidence in GDC?

Answer 23

A written medical report by a treating healthcare provider may be admitted if WRITTEN NOTICE OF INTENT to use the report is given to the other party at least 10 days before trial.

Question 24

what must the medical report be accompanied with?

Answer 24

A healthcare provider’s report must be accompanied by a sworn statement by the provider that:
(1) she treated the party;
(2) the information in the report is true, accurate, and fully describes the injury; and
(3) any statement of costs contained in the report is true and accurate.

Question 25

when may hospital records be admitted as evidence?

Answer 25

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 26

how may evidence in an action to recover damages to a motor vehicle in excess of $2,500 be admitted?

Answer 26

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:
a) an itemized estimate OR appraisal of the person who repaired the vehicle.

Question 27

what must the repair person state in the estimate they give?

Answer 27

the repair person must state under oath:
(1) that they are a motor vehicle repair person qualified to determine the amount of damages;
(2) the length of time that he has done such work; and
(3) the name and address of his employer.

Question 28

what must the party (who is trying to submit evidence of damage to a vehicle) do with the evidence?

Answer 28

A copy of the estimate must be mailed or delivered to the adverse party at least 7 days before trial.

If that is not done, the document cannot be admitted unless the adverse party agrees.

Question 29

what if a case for damage to a vehicle exceeds $2,500 or more?

Answer 29

then the estimate can be used in the same way, BUT need NOT be mated or delivered to the adverse party in advance of trial

Question 30

evidence in LEGAL causes of action in CIRCUIT COURT:

Answer 30

In legal causes of action in circuit court:
a) the witnesses usually testify orally.
b) Deposition testimony can be used as in federal practice.
—may be used at trial to: 1) impeach the deponent; 2) for any purpose if the deponent is an adverse party; 3) for any purpose if the deponent (regardless of whether a party) is unavailable for trial (i.e. illness or out of country) unless absence was procured by the party seeking to introduce the evidence

Question 31

evidence in EQUITABLE causes of action in CIRCUIT COURT:

Answer 31

In the trial of equitable causes of action in circuit court, evidence is usually presented by deposition transcript, with no live testimony.

Evidence can be given orally, though, if the court so orders.

Also, evidence will be presented orally any time the court uses a jury.

Question 32

what is ‘ore tenus’

Answer 32

oral presentation of testimony

Question 33

use of commissioners in equity (chancery)

Answer 33

issues in equity causes of action may be referred to a commissioner - who is NOT judge - but who assists the judge in deciding the case

Question 34

how does the judge send matters to a commissioner?

Answer 34

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 35

what is a decree of reference?

Answer 35

the judge sends matters to the commissioner by a “decree of reference,” which spells out what the commissioner is to do.

Question 36

what is a commissioner usually asked to determine?

Answer 36

Usually, the commissioner is asked to determine facts and suggest conclusions of law

Question 37

when may commissioners in chancery be used?

Answer 37

commissioners in chancery may be used only if:
a) all parties and the court agree; OR
b) if the court finds good cause on facts of the case

Question 38

what can the commissioner do?

Answer 38

The commissioner can subpoena witnesses and take testimony.

Question 39

what does the commissioner make a record of?

Answer 39

the commissioner makes a record of evidence she finds inadmissible.

Question 40

who does the commissioner file their report with?

Answer 40

She files her report with the clerk of the circuit court and notifies the counsel of record of that fact.

Question 41

after the commissioner files their report, what can the parties do?

Answer 41

the parties can file objections to the commissioner’s report - and must do so within 10 days

Question 42

regarding matters of fact and of law - how much weight does the commissioners report hold?

Answer 42

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 they ignore findings that are “supported by the evidence.”

On matters of LAW, however, the commissioner’s report is entitled to no deference.

Question 43

bar exam question example?

Answer 43

Question about the partition of land (for example, whether partition in kind is feasible and how it should be done).

Question 44

what is a motion to strike the evidence?

Answer 44

a motion to strike the evidence is the functional equivalent of the motion for judgment as a matter of law (jMOL) in federal practice – i.e. “that reasonable people could not disagree on the result” (saying there is no dispute of material fact but at trial)

Question 45

how many times can a party raise a motion to strike the evidence?

Answer 45

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.

Question 46

what if the defendant moves for a motion to strike evidence at the close of the platinum’s case???

Answer 46

As in federal practice, the fact that the defendant moves at the close of the plaintiff’s case does NOT estop the defendant from introducing evidence.

Question 47

who grants a motion to strike evidence - and what happens after?

Answer 47

One procedural difference: the state judge who feels that the standard is satisfied
(1) grants motion to strike evidence and
(2) enters summary judgment.
(in federal court - there is no summary judgment)

Question 48

what is a VERDICT?

Answer 48

a verdict is the jury’s finding

Question 49

does a verdict have to be unanimous?

Answer 49

The verdict must be unanimous UNLESS the parties stipulate otherwise.

Question 50

if the parties do not stipulate otherwise (to a unanimous verdict) - what happens if the Verdict is NOT unanimous?

Answer 50

that is a hung jury and a mistrial!

Question 51

what is required for a verdict in a 3-person jury?

Answer 51

all that is required is 2 votes for the verdict!!

Question 52

relief recoverable: can a plaintiff recover more in damages (if the case goes to trial) than what they pleaded in their complaint?

Answer 52

nope! the complaint is a LIMIT on the recovery (not only on default, but Las on jury trial)
example: Assume the plaintiff’s complaint seeks $40,000 in damages. What is the most she can recover if the case goes to trial? $40,000.

THIS IS DIFFERNT THAN FEDERAL COURT –> In federal court, the complaint is a cap only in default judgment cases.

Question 53

what is a quotient verdict?

Answer 53

In determining damages, jurors decide to set forth their individual damages figures and then divide the total by the number of jurors.

Question 54

is a quotient verdict valid / proper?

Answer 54

nope! a quotient verdict is iMPROPER - the jury should reach the number as a group through deliberation.

Question 55

what is a ‘judgment’ or ‘decree’?

Answer 55

a ‘judgment’ or ‘decree’ is the official ANNOUNCEMENT by the court of the decision of the case

legal cause of action - it is called a ‘judgment’

equitable causes of action - may be called a ‘decree’

Question 56

post-trial motions - what are they?

Answer 56

After the court has entered judgment or decree, a party may seek review from that court.

Question 57

post trial motion - GDC: when can a party seek a rehearing in GDC?

Answer 57

In GDC, a party can seek a 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 58

when must a court in GDC rule on the party’s motion for a rehearing?

Answer 58

Court must rule on the motion no later than 45 days of the entry of judgment (not of the motion).

Question 59

what does “in the breast of the court” refer to and who has control over a final judgment/decree?

Answer 59

Every final judgment or decree remains under the control of the court for 21 days after entry.

During this period, the court can:
1) suspend,
2) vacate, or
3) modify the judgment or decree.

This 21-day period is called in the breast of the court

Question 60

what happens in Circuit Court, if the court does not either suspend, vacate, or modify the judgment or decree within the 21 days?

Answer 60

it loses jurisdiction even if there is a motion under advisement

Question 61

how is 21 days calculated?

Answer 61

When we count, we mean calendar days. If the 21st day falls on a Saturday, Sunday, or holiday, the party may act on the next business day.

Question 62

what is the one exception to the 21 day rule?

Answer 62

Exception: A court can vacate a default judgment or decree on the ground of FRAUD for up to 2 years after entry.

Question 63

what is a ‘motion to set aside verdict as contrary to evidence’?

Answer 63

A motion to set aside verdict as contrary to the evidence is the equivalent of the renewed motion for judgment as a matter of law (RJMOL) in federal practice

BUT in VA (unlike federal) the party making the motion is NOT required to have moved to strike the evidence first (whereas in federal - you have to move for a JMOL before moving for a RJMOL)

Question 64

how do you prove that the jury came to their verdict through a quotient verdict?

Answer 64

it is difficult to prove a quotient verdict or “impeach” the jury verdict through juror testimony.

Jurors may be asked about overt misconduct but generally not about their subjective thought processes. So it might be dicult to set aside a quotient verdict.

Question 65

what is a motion for a new trial?

Answer 65

A motion for new trial is the functional equivalent of the motion for new trial in federal practice

Question 66

when must a party move for a new trial in VA?

Answer 66

Promptly, UNLESS the court suspends, vacates, or modifies the judgment, it loses jurisdiction after 21 days.

Question 67

what are ground for which the court would grant a motion for a new trial?

Answer 67

1) Prejudicial (not harmless) error or misconduct by court (for example, an erroneous jury instruction, etc.);

(2) misconduct of party, attorney (for example, referring to insurance coverage of party), of a juror (such as making an independent investigation of the accident scene), or of a third party; (party, attorney, of a juror or third party)

(3) new evidence has been discovered; (has to be truly new evidence - not just cumulative evidence; and party has to show that their failure to present evidence at trial was not result of their lack of diligence)

(4) unfair surprise by evidence presented at trial and the evidence has a material outcome on the trial;

(5) excessive or inadequate damages

Question 68

what is the test for a new trial because verdict is TOO HIGH or TOO LOW?

Answer 68

the test for whether to grant a new trial is: “Does damages figure shock the conscience?”

Question 69

if damages are too high or too low - can a judge order a new trial on DAMAGES ONLY?

Answer 69

Yes - if liability is well established; BUT

Could a judge order a new trial on all issues - including liability? Yes - if all the damages are not separable from the question of liability

Question 70

if the judge finds that damages are excessive - what else coudl the judge do/ could the judge suggest?

Answer 70

judge could suggest remittitur

Question 71

what is ‘remittitur’?

Answer 71

tell the plaintiff that they can either:
1) accept a REDUCED REWARD (which judge would state); or
2) judge will order a new trial
(plays hardball with the plaintiff to avoid new trial)

Question 72

what are the P’s options when the judge suggests remittitur?

Answer 72

3 options:
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 take the third option, though, plaintiff must ‘make exception to the order of new trial’ after rejecting the remittitur

Question 73

what an a court do if they find that verdict of damages is LOW that it shocks the conscience?

Answer 73

if liability is clear but the verdict is so low that it shocks the conscience, the court can:
a) order a new trial; or
b) suggest additur

Question 74

what is additur?

Answer 74

this means the defendant either has to:
1) must pay a HIGHER amount; or
2) submit to a new trial
(plays hardball with defendant to avoid new trial)

Question 75

what is the difference of additur in VA and Federal court?

Answer 75

Federal court does NOT permit additive - as it violates the 7th Amendment, but because 7th Amendment does not apply to set court - VA courts recognize both remitter and additur

Question 76

in equity cases of action - what else can a party do/ seek review of?

Answer 76

As to equity causes of action only, a party can seek review of final decree for up to 6 months after entry. (This trumps the 21-day “breast of the court” rule.)

Question 77

what can a party do with a bill of review?

Answer 77

With a bill of review, a party can file, WITHOUT leave of court, to correct errors apparent on face of record.

With leave of court, a party can file based on new evidence.