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Virginia Bar Exam - Essay > Virginia Civil Procedure > Flashcards

Virginia Civil Procedure Flashcards

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1
Q

When does P have to respond to D’s response?

A

P must reply to D’s response only if
1. it inserts new facts into the case *and *
2. expressly requests that **P respond **to them

THEN P must reply within **21 days **

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2
Q

How can a special plea be raised?

A

A special plea may be raised:
1. separately,
2. As a motion to dismiss, or
3. In the answer

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3
Q

When can service be performed by Publication in Virginia?

A

Only in cases concerning rights to property or status

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4
Q

When does a statute of limitations start to run?

A

Upon the accrual of the cause of action (i.e., date of injury or breach)
NOT from date P discovered or should have discovered

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5
Q

In a court of equity, what is oral testimony called?

A

Ore tenus

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6
Q

What is the difference between an action for ejectment and an action for unlawful detainer

A

Ejectment - ousting someone in possession of land
Unlawful Detainer - ousting tenant to recover possession

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7
Q

With regard to personal jurisdiction, what requires a special appearance, and what is okay for a general appearance?

A

A special appearance can be made only when (1) no personal jurisdiction exists or (2) **service was never made **

A general appearance may be made when service was improper

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8
Q

What is a pretrial interlocutory ruling

A

A pretrial interlocutory ruling is when a party requests the court to certify to the appellate court regarding a matter in which:

  1. No substantial ground for difference of opinion,
  2. No clear Virginia appellate precedent,
  3. Determination will e dispositive of material aspect
  4. In best interest of parties to seek interlocutory review

After getting this certification, file a petition with Supreme Court within 10 days

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9
Q

What is forum non conveniens

A

A court might dismiss without prejudice if all of the following are present:
- cause of action arose out of state
- cause of action was brought by non-resident of VA
- There is a more convenient venue ouside of VA

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10
Q

When can you move for a new trial?

A

Within 21 days of entry of final order

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11
Q

What are the grounds for moving for a new trial?

A

Grounds:
1. Prejudicial error or misconduct by court
2. Misconduct of party, attorney, juror, or third party
3. New evidence
4. Unfair surprise
5. Excessive of inadequate damages

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12
Q

In GDC, if the court orders P to file a bill of particulars, or order D to file grounds of defense, and they fail to do so, what can happen?

A

The court can enter summary judgment against any party

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13
Q

What are the two pleading types?

A

Fact pleading and notice pleading

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14
Q

What type of pleading does Virginia require?

A

Virginia requires fact pleading (i.e., must include all facts necessary to back up allegations)
- facts must be in **numbered paragraphs **

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15
Q

What tolls the statute of limitations in VA? Service or filing?

A

Filing - so if service is not made until after the statute of limitations has run, that is okay as long as the suit was filed beforehand

BUT P must be served with process within 12 months of filing or else he cannot win judgment

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16
Q

How does an incompetent (including minor) sue?

A

Either through:
1. His/her guardian
2. In his/her name, by next of friend

17
Q

Which party bears the burden of showing that statute of limitations bars the claim?

A

The Defendant

18
Q

What is the size of the jury in civil cases in Virginia?

A
  1. If case involves over $25,000, then 7 jurors
  2. If the case involves less than $25,000, then 5 jurors
  3. If the parties consent, then 3 jurors
19
Q

Can a party seek discovery of another party’s insurance coverage that** could not** be admitted at trial?

A

Yes, discoverability is broader than admissibility.

20
Q

What is remittitur?

A

In Virginia, remittitur is when the trial judge requires the plaintiff to “remit” a part of his recovery, as ascertained by a jury (essentially reduces the amount of an award given by the jury).

21
Q

What are a party’s options if a judge orders remittitur?

A

The party may:
1. accept the remittitur
2. Accept the remittitur under protest and appeal
3. Reject the remittitur and go through a new trial

22
Q

How do you serve an individual in Virginia (Specifically)?

A

Based on the Descending Order Rule (i.e., can only move down the list if former methods are impossible):

  1. Personal Service - directly to D (must be attempted)
  2. Substituted Service - must be served:
    (i) At D’s usual abode,
    (ii) On member of D’s family (at least 16yo and not a guest),
    AND
    (iii) Explain the purpose of the service.
  3. **Posted Service - Must:
    (i) post a copy of process on D’s front door,
    (ii) mail a copy of process to D (at least **10 days     before taking default judgment),
    (iii) explain to D that P may seek default judgment 10 days later (in Circuit Court)
    AND
    (iv) certify to the clerk that mailing took place
23
Q

What is the statute of limitations on personal injuries?

A

2 years

24
Q

What is the statue of limitations for nonphysical personal torts?

A

2 years

25
Q

What is the statute of limitations for defamation?

A

1 year

26
Q

What is the statute of limitation for property damage?

A

5 years

27
Q

What is the statute of limitations for property damages for sales under UCC?

A

4 years

28
Q

What is the statute of limitation for fraud?

A

2 years

29
Q

What is the statute of limitations for written contracts?

A

5 years

30
Q

What is the statute of limitations for unlawful detainer?

A

3 years from detention

31
Q

What is the statute of limitations for wrongful death?

A

2 years from death

32
Q

How many jurors have to agree in order to get a verdict?

A

It must be unanimous, unless:
- parties agree otherwise, or
- it is a three person jury

33
Q

May a party orally move to amend a pleading?

A

Yes

34
Q

What do the rules mandate on the Court’s discretion on motions to amend a pleading?

A

Although the Court has discretion, the rules mandate a court liberally grant leave to amend unless another part would be prejudiced by the amendment

35
Q

How may a party reopen a proceeding?

A

It depends on whether or not the party moves to reopen (a) prior to issuance of a final order, (b) within 21-days of a final order, or (c) after 21 days of entry of a final order

Can make a motion if (a) or (b)

If (c) then, if for purposes of enforcement ONLY, must move to reinstate the case

Virginia Bar Exam - Essay (2 decks)

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