Raising the BarVirginia Trial Lawyers Association

54th Annual Convention

March 21-24, 2013Colonial Williamsburg

V i r g i n i a T r i a l l aw y e r s a s s o c i aT i o n 2 0 1 3 c o n V e n T i o n

Judges’ Panel – Trial Practice Tips

Moderator: The Honorable Robert S. Brewbaker, Jr.Fifth Judicial DistrictSuffolk Juvenile & Domestic Relations Court150 N. Main St.2nd Fl.Suffolk, VA 23434(757) 514-7790

Panelists:The Honorable Barbara J. GadenThirteenth Judicial DistrictRichmond General District CourtJohn Marshall Courts Bldg.400 North Ninth St., Rm. 203Richmond, VA 23219(804) 646-6461

The Honorable Avelina S. JacobTwentieth Judicial DistrictLoudoun County Juvenile & Domestic Relations Court18 East Market St.Leesburg, VA 20176(703) 777-0300

The Honorable Stephen C. MahanSecond Judicial CircuitVirginia Beach Circuit Court2425 Nimmo ParkwayBldg. 10, 4th Fl.Virginia Beach, VA 23456-9017(757) 385-4181

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LOUDOUN COUNTY

JUVENILE AND DOMESTIC RELATIONS COURT

CIVIL PRACTICE

I. CHILD CUSTODY/VISITATION CASES

A. Each CHILD is assigned a separate juvenile base case number; therefore a separate petition must be filed for each child in a family. Further, each matter (i.e. custody and visitation) is assigned a separate sub- number, requiring that you file separate petitions for custody and for visitation for each child with additional service copies for all parties to be served. Petitions are filed In Re: child’s name and not Petitioner versus Respondent. EXAMPLE: You have one child and you are filing for custody and visitation – you file two petitions (one for custody and one for visitation). You have three (3) children and you are filing for custody and visitation – you file six (6) petitions (three for custody and three for visitation).

B. If there is more than one child in a family but all petitions for custody and visitation

are filed at the same time, you pay one filing fee of $25.00. However, if you file the petitions at separate times, there is a filing fee for each separate petition.

EXAMPLE: You have 10 children in a family and you file all 10

Petitions for custody (or 20 petitions if visitation petitions are also filed) at the same time – you pay $25.00

Same family, same 10 children, but you file 9/18 petitions on Monday and the last petition(s) the next day (Tuesday) – You pay $25.00 on Monday for the 9/18 and $25.00 on Tues. for the petition(s) for the remaining child.

C. When cases (or pleadings) are initially filed with the court, the court assigns a judge to hear all matters in that case. Thereafter, any motion in the case (see motions practice below) will be heard before the judge who has been assigned the case. Amendments, motions to modify and/or Rules to Show Cause will also be heard by the Judge who has been assigned the case, assuming he or she is still on the bench at the time.

D. All petitions for Custody or Visitation must include UCCJEA Affidavit, (DC

620) or incorporate the affidavit language within pleading. If the affidavit language is incorporated into the pleading, then the pleading must be sworn to by the petitioner.

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E. Visitation will ONLY be addressed and ordered if a petition for visitation has been filed.

II. SUPPORT ISSUES

A. Support cases are filed in the names of the parents and are indexed under the name of the respondent/payor. The child(ren) name(s) is/are not included in the style of the case. Therefore, if you are filing for the support of a minor child (or several children) that have the same parents, you only need to file one petition for support. However, if you have a mother with three children, two children have one father and the other child has a different father, then you must file two petitions, one for each father. If no support petition is filed in the name of the payor, no support order will be entered. Example: Mother files for child support and custody, father files nothing and father gets custody. No order of visitation and no child support order will be entered because the proper petitions have not been filed.

B If you are filing for child support (assuming the children have the same father) and

for spousal support – you must file two petitions – one for child support and one for spousal support.

CAUTION: If you have a change of custody which will result in a change of who will be paying the support and who will be receiving support, you MUST FILE a new petition on behalf of the person receiving the support.

EXAMPLE: You represent John Smith who has been paying support

for several years through an order of the J&DR court. John Smith is later awarded custody of his two children and now wants support from his former wife Mary. You cannot amend or modify the existing support order; you must file a new petition for support against Mary and a motion to terminate the existing child support order.

EVEN BETTER EXAMPLE: Instead of getting custody of both

children, John Smith only gets custody of one child, Mary keeps the other child. Whether to amend the existing support order or file a new petition will depend on who will be paying support after applying the split custody guidelines.

C. Attorney filed support petitions must contain the language of Rule 8:3 (c), and provide additional service copies for all parties to be served.

III. MOTIONS TO AMEND

If a case is already opened in the J&DR Court and you are seeking to amend an existing order, whether custody, visitation or support, you may file a Motion to Amend. Whenever and wherever possible, you should attach a copy of the original order. Additionally, in the motion to amend, you should state what the latest order of the court says, what you wish to

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amend, and the reason(s) why you wish to amend the order. You do not, however, need to file a new petition. Also, all motions to modify must include all identifying information of the parties and most importantly current addresses. This will ensure proper service of the parties as well as update the courts records.

IV. MEDIATION REFERRAL

A. All cases (whether initial cases or motions to amend) filed by pro se litigants are automatically ordered into a mediation evaluation session and are assigned a date to meet with a certified mediator. That date is at least 15 days prior to the date the case is scheduled for a first-return or status hearing.

B. Cases filed by attorneys are not automatically ordered into mediation and are

scheduled for a first-return or status hearing. If the attorney filing for the party wants the matter sent to mediation, the attorney may request that it go through the mediation process as well.

C. Cases are automatically exempted out of the mediation process where there has been domestic violence (i.e. court is aware of protective order or other criminal violence action) OR when one of the parties is out of state.

F. Parties (or their counsel) may opt out (or object) to participation in the mediation process by filing a written objection with the court within 14 days of the date the Mediation Referral Order is entered.

G. All cases (whether initial determination or modification) are ordered to take the

Parenting Educational Class. However, if a party has taken the Parenting Education Class within the last 24 months then the party will not be required to take it again. Parties are required to submit the certificate of completion of the class to the court for verification.

V. FIRST RETURN/STATUS HEARING CIVIL

After a case has been filed and processed, it will be assigned a “first return” date (Tuesday) and the litigant (and the attorney who filed the case) and the defendant will be notified by Summons of the hearing date and time. The summons will indicate the type of hearing scheduled for that date. The summons does not indicate that this is a status hearing; however, the court will only address agreed upon matters or matters that can be resolved in the allotted 15 minutes at this hearing date. If the matter is contested and the parties are represented by counsel, the judge will enter a pre-trial order and set a pre-trial conference. A trial date will be scheduled at the pre-trial conference. Counsel is expected to make a good faith effort to resolve the case. With cases involving pro se litigants, the court will attempt to resolve the issues at the first return date, send the parties to mediation if they have not already participated in mediation or set the matter for a hearing.

VI. MOTIONS PRACTICE

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A. Once pleadings have been filed AND the case is scheduled for a first return date, a

party or his or her counsel may file non-evidentiary motions to be heard by the judge who has been assigned the case.

NOTE: Only non-evidentiary motions will be heard on motions day. Examples of

non-evidentiary motions are: motions to compel discovery, motions to appoint Guardian ad Litems, motions to allow discovery. This is not an opportunity to have a pendente lite hearing or to jump ahead in the queue.

B. In order to set a matter on the Court’s Motion’s docket, you must file a praecipe and

notice/motion with the court at least seven (7) days prior to the intended date of the motion. A copy of the praecipe, notice/motion shall be mailed, delivered or sent by facsimile at least seven (7) days in advance to all unrepresented parties who have entered a written appearance in the case, all attorneys of record and all guardian ad litems of record at the time of filing. If an unrepresented party has not entered a written appearance in the case, the praecipe, notice/motion must be served by the sheriff or private process server on the party at least 7 days prior to the hearing. The following are the judges’ scheduled times and dates for motions practice:

• Judge Jacob – Wednesdays at 9:00 a.m. • Judge Brooks – Fridays at 9:00 a.m.

Attorneys may select any Wednesday or Friday (depending on the judge assigned to the case) to set their motion(s) provided the clerk’s office has verified that there is time on the docket and they have complied with proper service as set forth above. Counsel of record shall make a reasonable effort to confer before giving notice of the motion to resolve the subject of the motion and to determine a mutually agreeable hearing date and time. Counsel shall prepare and bring a proposed order to Court.

VII. CONTESTED DOCKET

Once a case has been set on the contested docket and time certain has been assigned, new matters filed will not be heard on that date except by leave of court. The parties are expected to fairly divide up the time allocated. Time spent for cross-examination will be charged against the party doing the cross-examination. The court may require evidence to be proffered with the other party afforded an opportunity to cross examine the witness on the proffered testimony. The parties and counsel should promptly notify the court of any settlement of the case so that the time allocated may be assigned to other cases. If the parties represent that a case has been the subject of an agreement, an order shall be submitted on or before the date of the hearing. If the parties represent that the entry of an order prior to the Court date is not

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possible, with approval of the judge, it shall be continued to the motions docket for entry of the order.

VIII. EMERGENCY PETITIONS/MOTIONS and MOTIONS TO RECONSIDER

Petitions/motions for emergency hearing shall be in writing and set forth the basis for the emergency. The clerk shall be responsible for placing these petitions/motions before a judge immediately. A judge shall determine whether the matter is an emergency and the form of notice required and the clerk shall notify the filing party of the judge’s decision. The filing party shall be responsible for providing adequate notice to all opposing counsel and /or parties as determined by the judge. Motions to reconsider shall be in writing and shall set for the basis for the reconsideration. The same protocol followed in emergency motions shall be followed in motions to reconsider.

IX. INTERPRETERS

A. The Juvenile and Domestic Relations Court of Loudoun County has a Spanish language interpreter permanently assigned to the court; therefore, on first returns, there will normally be a Spanish language interpreter who can render assistance, if needed.

B. If you have another language barrier and need an interpreter, you should put the

request in writing as soon as possible and give as much detail as possible, including the following information:

• What language • For whom (party or witness) • Length of time (estimate) • Case Number • Case Name (and all variations of that name) • Hearing Date if known

X. PART EIGHT: RULES OF THE JUVENILE AND DOMESTIC RELATIONS DISTRICT COURTS

Familiarize yourself with the rules of court that pertain to the Juvenile Court. 8:8 Pleadings and Filings:

(b) A party respondent need not file a pleading. If a respondent fails to file pleading, the failure shall be taken as a denial of the allegations in the petition, motion, or summons.

(c) Amendments to written pleadings require leave of court.

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(d) Bill of Particulars 8:13 Requests for subpoenas for witnesses (DC 325) and records (DC 336): Requests for

witness subpoenas should be filed at least ten (10) days prior to hearing. Requests for subpoenas duces tecum should be filed at least fifteen (15) days prior to hearing. Requests for witness subpoenas or subpoenas duces tecum not timely filed shall not be honored except when authorized by the court for good cause.

Exception: This rule does not apply to witness subpoenas or subpoenas duces tecum issued

by attorneys in civil cases as authorized by Virginia Code Sections 8.01-407 and 16.1-265. 8:14 Continuances: Loudoun County JDR has a separate continuance policy which tracks

the language of the rule and a continuance form. 8:15 Discovery: In the Juvenile Court discovery is authorized in civil cases. Upon motion

timely made and for good cause, the court may enter such orders in the aid of discovery and inspection of evidence as permitted under Part Four of the Rules, except that no depositions may be taken.

XI. MISCELLANEOUS The Clerk of Court, Ms. Evamari Bates, was extremely helpful in preparing this outline. She also normally handles attorney-filed petitions. I would strongly recommend cultivating a relationship with her and calling her with any questions you may have about practice in Loudoun County. Juvenile Courts are form driven. Some of the forms such as the UCCJEA affidavit are available to the public at http://www.courts.state.va.us/forms/district/jdrcourt.html Revised February 11, 2013

VIRGINIA:

IN THE JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT OF LOUDOUN COUNTY

, Vs JA JJ , JJ In re:

PRE-TRIAL ORDER

This matter was heard this date for a pre-trial conference. It appearing to the Court that a pre-trial order should be entered to assist in the orderly trial of this matter, it is therefore, ORDERED as follows: 1. Pre-trial conference: This matter is set for an additional pre-trial conference on at a.m./p.m. Prior to this conference, all discovery and discovery disputes should be resolved. Counsel and the parties should be prepared to appear at the pre-trial conference with authority to settle any and all issues in the case, as well as to identify any remaining issues for trial. Once all discovery has been completed and all issues are ripe for trial, the Court will schedule a trial date. No trial date shall be scheduled until counsel and the parties can certify to the Court that they have made a good faith effort to resolve all issues. 2. Discovery: Good cause is found to exist and therefore discovery is authorized under Part 4 of the Rules of the Supreme Court of Virginia, except that no discovery depositions may be taken unless specifically authorized by statute or the Rules of the Supreme Court of Virginia. No provision of this Order supersedes the Rules of the Supreme Court of Virginia governing discovery. Discovery shall be completed on or before . To complete discovery, a party initiating the discovery shall allow sufficient time so that a timely response may be filed within the date set forth for completion. Disputes regarding discovery such as motions to compel discovery shall be promptly filed in advance of the pre-trial conference/trial date so that they are resolved prior to the pre-trial conference date/trial date or they shall be deemed waived. No discovery motion shall be filed until counsel/party has discussed with opposing counsel/party the possibility of resolving the discovery matters in controversy. The Court will not consider any motion considering

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discovery matters unless a statement of counsel that a good faith effort has been made between the attorneys/parties to resolve the discovery matters in dispute accompanies the motion. 3. Failure to Comply: A failure to comply with the provisions of this order may result in a loss of trial date, an award of attorney’s fees, a denial of relief requested, or contempt of court. 4. Other: . ENTERED: Judge 11/11

VIRGINIA:

IN THE JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT OF LOUDOUN COUNTY

, Vs JA JJ , JJ In re:

TRIAL SCHEDULING ORDER

This matter was heard this date for a pre-trial conference. It appearing to the Court that a trial scheduling order should be entered to assist in the orderly trial of this matter, it is therefore, ORDERED as follows: 1. Trial Date: This matter is set for trial on at a.m./p.m. The estimated time for trial is . The parties shall attempt to fairly divide the time. Continuances are not granted unless good cause is shown, and must be granted in advance of the trial date by the Court. New petitions or motions will not be heard on this date without leave of Court. 2. Stipulations: Parties in every case should endeavor to enter stipulations of undisputed facts, which will avoid unnecessary proof and otherwise simplify the trial. The following stipulations have been reached: 3. Issues for trial: The following issues remain to be heard by the Court: Mother:

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Father: 4. Discovery: Good cause is found to exist and therefore discovery is authorized under Part 4 of the Rules of the Supreme Court of Virginia, except that no discovery depositions may be taken unless specifically authorized by statute or the Rules of the Supreme Court of Virginia. No provision of this Order supersedes the Rules of the Supreme Court of Virginia governing discovery. Discovery shall be completed on or before . To complete discovery, a party initiating the discovery shall allow sufficient time so that a timely response may be filed within the date set forth for completion. Disputes regarding discovery such as motions to compel discovery shall be promptly filed in advance of the pre-trial conference/trial date so that they are resolved prior to the pre-trial conference date/trial date or they shall be deemed waived. No discovery motion shall be filed until counsel/party has discussed with opposing counsel/party the possibility of resolving the discovery matters in controversy. The Court will not consider any motion considering discovery matters unless a statement of counsel that a good faith effort has been made between the attorneys/parties to resolve the discovery matters in dispute accompanies the motion. 5. Subpoenas for witnesses and records: Requests for subpoenas for witnesses should be filed at least ten (10) days prior to trial. Requests for records (subpoenas duces tecum) should be filed at least fifteen (15) days prior to trial. Requests not timely filed will ont be honored unless authorized by the Court for good cause shown. Note that compliance with this rule will not guarantee that the subpoenas will be served in a timely fashion, especially if service is outside the County of Loudoun or if there are objections. The failure to allow sufficient time may not be deemed good cause for a continuance. 6. Witnesses: The name and address of all witnesses and a brief statement of their expected testimony shall be filed with the Court. For expert witnesses expected to be called, the subject matter on which the expert is expected to testify, and a summary of the grounds for each opinion shall also be set forth. The Mother’s list shall be filed, with a copy mailed, delivered or sent by facsimile to the Father by . The Father’s list shall be filed, with a copy mailed, delivered or sent to the Mother by . If a guardian ad litem is appointed, a copy shall also be mailed, delivered or sent by facsimile to the guardian ad litem. 7. Exhibits: A list of all exhibits to be introduced at trial shall be filed with the Court, with a copy of the list and a copy of each exhibit mailed, delivered or sent by facsimile to the other party. The Mother shall label the exhibits in such a way as to identify the exhibits as Mother’s exhibits. The Father shall label the exhibits in such a way as to identify the exhibits as Father’s exhibits. Filing a list of exhibits with the Court does not

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guarantee that the exhibits will be admitted into evidence. However, the parties are encouraged to attempt to discuss objections in advance of the trial date so that they may be resolved in advance of trial. If a guardian ad litem is appointed, a copy shall also be mailed, delivered or sent by facsimile to the guardian ad litem. 8. Custody/Visitation Cases: If the case involves an issue of custody or visitation, each parent shall set forth the visitation that is being sought/proposed. Specific beginning and ending times as well as the frequency of the visitation for the following times should be set forth: weekends, midweek, three day weekends, Thanksgiving, winter break, spring break, birthday(s) of the child(ren), other times and transportation arrangements. The Mother shall file this by and the Father shall file this by . A copy shall be mailed, delivered or sent by facsimile to the other party at the same time. If a guardian ad litem is appointed a copy shall also be mailed, delivered or sent by facsimile to the guardian ad litem. 9. Support Cases: If the case involves a request for child support or spousal support, each party shall include the following as exhibits to be filed as set forth in paragraph 7 above:

a. A statement of monthly gross income. This should indicate how often the party is paid (weekly, every two (2) weeks, etc.) and how the calculation was made. All sources of income should be identified such as salary, bonus, commission, rental income, etc. If overtime is received, the rate and frequency should be set forth. If a party is self-employed, a statement of gross receipts and an itemization of all business expenses claimed should be set forth. Any supporting documentation should be included.

b. A statement of monthly work related day care expenses claimed along with any

supporting documents associated with each child and how the calculation was made. If there is a different rate for after school care, summer care or a discount for vacations for a parent, that should be set forth (child support cases only).

c. A statement of the monthly cost of health insurance related to the child(ren)

should be set forth along with any supporting documents. This is the difference between the cost of providing insurance for the parent on a monthly basis, and the cost of providing insurance for the parent and the child(ren) (child support cases only).

d. Any factors that you believe exist that should cause the Court to deviate from the

child support guidelines (child support cases only).

10. Failure to Comply: A failure to comply with the provisions of this order may result in a loss of trial date, an award of attorney’s fees, a denial of relief requested, or contempt of court.

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11. Other: . ENTERED: Judge 11/11

LOUDOUN COUNTY JUVENILE AND DOMESTIC RELATIONS GENERAL DISTRICT COURT MOTION FOR CONTINUANCE

Case Number: _____________________________________ Motion Hearing Date: Case Name: _____________________________________ _____/______/______ Time: 8:30AM Date and Time of Hearing Currently Scheduled: _______________________________________________________ Case Status: □ Preliminary □ Arraignment □ Adjudication/Trail

□ Disposition/Sentencing □ Review □ Other: ____________________ Is defendant being detained: □ Yes □ No Is there a companion case to the above-captioned case? □ Yes □ No If yes, give case name, and next scheduled court date: ___________________________________________________ _______________________________________________________________________________________________ Reasons for continuance request: ____________________________________________________________________ _______________________________________________________________________________________________ _______________________________________________________________________________________________ Attorneys: ________________________________ for _______________________________

________________________________ for _______________________________ ________________________________ for _______________________________

Pro Se (no atty.) _______________________________ Pro Se ______________________________ Continuance is: □ Contested □ Uncontested ______________________________ _________________________________ (Printed name of person requesting continuance) (Signature of person requesting continuance) ______________________________ _________________________________ (Phone number AND Fax number) (DATE)

Certificate of Notice: I, ___________________________________, certify that I faxed or hand delivered a copy of this Request for

continuance to Counsel and/or pro se parties in this case on ________________________________ (Date).

___________________________ ________________________________ Signature Date NOTICE: Upon receipt of notice of court’s order, the party requesting the continuance shall notify all parties of the court’s ruling and/or the next court date.

***************** To request a Continuance, please follow these instructions: 1. Complete this form. 2. Provide at least 48 hours notice by submitting this form to the Clerk’s office by mail, FAX, or hand delivery. Clerk’s fax number:

(703)-771-5039 3. FAX or hand deliver a copy of request to counsel, guardians ad litem, and pro se parties, prior to the hearing date. 4. After the hearing, notify all involved parties in the case, including probation officers, attorneys, guardians ad litem, etc., of Court’s decision, (whether a continuance was granted or not). NOTICE: Parties shall notify their own witnesses of the continuance.

COURT ORDER:

□ Continuance Denied □ Continuance Granted New Court date is ______________. _______________ _____________ Judge Date For Clerk’s Use: Requesting Party notified on: _____________ via: FAX ___________ PHONE ___________ IN PERSON ________ MAIL __________ Clerk: ________________________________

Continuance Policy- (Changing or postponing a court date.)

It is the responsibility of all parties requesting a court date to alert the Court to any known conflicts that exist on the date scheduled and to fairly represent the time required for trail. Pursuant to Rule 8:14 of the Supreme Court of Virginia, continuances should not be granted except by, and at the discretion of a judge for good cause shown, or unless otherwise provided by law. The following policy shall control the granting of continuances:

a. Continuances may be granted only by a judge and may not be granted by the agreement of the parties counsel.

b. Good cause must be shown. The trail judge has the discretion to determine good cause on a case-by-case basis. Good cause is established when the event causing the motion was unforeseen, is not due to lack of preparation, does not cause undue prejudice to the other side, and the motion for continuance is made in a timely manner. A failure to hire an attorney, a delay in hiring an attorney or a conflict in an attorney’s schedule may not be good cause.

c. If a continuance is sought before the hearing date, a written motion is required. Copies of a motion for continuance are available in the clerk’s office.

• The motion should set forth the date and time the motion for continuance will be heard by the Court , the date of the hearing for which a continuance is sought and the good cause for the continuance.

• A copy of the motion shall be mailed, if sufficient time, hand delivered or sent by facsimile to all un-represented parties who have entered a written appearance in the case, all attorneys of record, and all guardians ad litem at least 48 hours prior to the hearing. If an un-represented party has not entered a written appearance in the case, the motion with the date for the hearing on the motion must be served on that party at least 48 hours prior to the hearing on the motion. A party opposing the motion may respond to the motion in writing or appear at the hearing and respond to the motion. A party may file the motion or a response to the motion with the clerk in person, by mail or by facsimile.

• The continuance request shall be scheduled on the 8:30AM arraignment docket. The Wednesday and Friday civil motions docket, rather than the arraignment docket, shall be used for civil continuance requests scheduled on Wednesdays or Fridays depending on the presiding Judge.

• It shall be the duty of the clerk to determine that the motion has a date and time scheduled for a hearing on the motion at the time of filing. The clerk shall schedule a hearing date and time for the motion at the time of filing. The clerk shall schedule a hearing date and time for the motion at the time of filing unless the part filing the motion has selected a date and time that is available for hearing. If the clerk schedules the time for the hearing on the motion for the continuance, the party filing the motion shall be notified of the date selected and the party shall certify that a copy with the date for the hearing on the motion has been sent as set out in c.2. Sufficient time (minimum of 48 hours unless an emergency) for a party to actually receive the request should be allowed. The copy certified to the opposing party shall contain the date and time for the hearing so that the opposing party is notified of the date and time for the hearing on the motion. It shall be the responsibility of the party filing the motion or receiving the motion to determine the date and time for the hearing and for each party to be present if oral argument is desired.

• If a motion is filed and there is insufficient time to allow 48 hours notice, the motion shall be deemed and emergency and placed on the next available date or brought to the attention of the judge.

• A failure to give appropriate notice or to follow the procedure shall result in the denial of the motion except in the case of emergencies.

• It is the responsibility of the party seeking a continuance to determine if the motion was granted and the new date.

d. Where a request for a continuance has not been made prior to the hearing or trial and other parties or witnesses are present and prepared for trail, a continuance should be granted only upon a showing that to proceed with the trail would not be in the best interest of justice.

e. Notification of the continuance to opposing un-represented parties, counsel, and the guardian ad litem, shall be the responsibility of the party seeking the continuance. The parties shall notify their own witnesses of the continuance.

NOTE: Form must be completed in its entirety in order for the clerk’s office to accept it. The clerk’s office will provide case numbers if necessary and available dates and times for hearings. The clerk’s office will not help you complete the form.

GENERAL DISTRICT COURT PRACTICE

A BAKER’S DOZEN:

THINGS THAT ARE IMPORTANT, AND/OR POLITE, OR SIMPLE COMMON SENSE

By Robert A. Pustilnik, Judge

Richmond General District Court (Civil Division)

1. If you work out your case, and if it is not going to be tried, please let the court know as soon as possible. – If there is time, the space can be filled by another case, which needs to be heard at an early date. Even if there is only a day or two, or even if the case gets settled that same day, let the Judge’s docket clerk know immediately. The Court can use that time for something else, including helping the other judges, if made aware of the settlement. Let the witnesses and other parties know about dismissals. Do not make them come to court for a case that is not going to be tried. It is primarily the plaintiff’s responsibility (by counsel) to inform the court. We will only dismiss or continue a case on the advice of the defendant when we are notified by letter, well in advance of the trial date, and then only when the notice has been sent to the plaintiff. If you settle a case and do not notify the court, leaving the Court, the clerk and the deputy sitting in court waiting for you, you risk a show cause. At a minimum, do not expect the Court to enter a Dismissed Agreed order after the Court has already dismissed the case without prejudice for your failure to appear.

2. Dismissals. In Richmond, if a case is marked “Dismissed,” by definition the

dismissal is with prejudice. If you want to have a case dismissed without prejudice, or nonsuited, make this known to the Judge at the time of dismissal, or put it in the order if there is a written order. Cases will be dismissed without prejudice only with court approval, and only when the reason for the dismissal is outside of the control of the plaintiff (i.e., death, bankruptcy, suit against the wrong party). When in doubt, call the court, write the court, or appear to state the reason for the request. NOTE THAT WHEN A CASE IS DISMISSED WITHOUT PREJUDICE, THE STATUTE OF LIMITATIONS HAS BEEN TOLLED FOR THE ENTIRE TIME THAT THE CASE WAS ON THE COURT’S DOCKET. WHEN NONSUITED YOU GET 6 ADDITIONAL MONTHS, OR THE REMAINDER OF THE TIME UNTIL THE STATUTE WOULD HAVE RUN IF NOT SUIT HAD BEEN FILED, BUT YOU DO NOT GET THE EXTRA TIME THAT ELAPSED WHILE THE CASE WAS ON THE COURT’S DOCKET. THESE DISTINCTIONS ARE IMPORTANT. THE CASE ON POINT IS Simon v. Forer, 265 Va. 483.

3. Motions to vacate a judgment must be filed within 30 days of the date of

judgment, and must be heard within 45 days. Beware of these time limits. They are jurisdictional. The court cannot modify a judgment if the motion is not timely filed, and if the motion has not been timely heard, unless there is a defect in service, or unless there is an accord and satisfaction (including agreement of the parties).

4. Appeals must be noted within 10 days, and bond must be posted within 30 days,

and within 10 days in rent cases. These dates cannot be extended. If you have filed a motion to rehear, or to vacate a default judgment, you must note your appeal timely, and must have the motion heard before the 30 day period expires. Filing the motion, and giving notice does not stop the time limit from running. If there is a problem, try to get the court to vacate the judgment order while the motion is pending.

5. Discovery is limited in General District Court. You can file a subpoena duces

tecum, in order to obtain documents. But, if there is a particular issue on which the case turns, on the return day make the issue known to the court and to the other side, and ask the court to order that the issue be dealt with directly in the pleadings. For example, in a credit card case, if the issue is the authenticity of a signature, request that the bill of particulars include the document creating the liability. If the issue is the specific charges, ask the court to order that the documentation of the charges be produced with the pleadings. It is amazing how many cases get resolved promptly when the parties make the real issues known prior to trial. Additionally, the GDC trial can serve as your discovery tool. Try the case to the end, even if you find out that you are not going to win. Call the defendant’s witnesses, and question them. In a large and/or important case, have a court reporter transcribe the proceedings. If you represent the plaintiff, use your nonsuit at the end of the case, or lose the case and appeal it if you think that, on retrial you can overcome the evidence that came out in the case that turned it into a loser. (Clearly, you would not have filed the suit had you known that you would lose, so there must have been some surprise in the trial of the matter.) Just remember that once argument has ended and the case is submitted for decision – even if the judge has not begun to rule, it is too late for the plaintiff to take a nonsuit. See further discussion about nonsuits below.

6. Motions are just motions. Demurrers and special pleas are just pleadings. These

things should be dealt with before the actual trial. When the case is set for trial, set up a hearing on special pleas. If sustained, there is no reason to prepare for trial, no reason to call witnesses and tie up their day. If you want to have a motion or special plea heard before trial, you must set up a hearing day and give notice.

7. General District Court is a court of equity as well as a court of law. The statute

requires that when the principles conflict, the court is to use equitable principles to resolve the case. The judges are to try the cases on their merits if possible. You will find results in GDC that you will not encounter in circuit court, as the judges strive to “be fair” to all parties, particularly those not represented by counsel.

8. The “Rules of the Supreme Court of Virginia” are different for the Circuit Court

and for the General District Court. Some of the Rule 1 rules apply to both, some only to one or the other. Rule 3 applies to the Circuit Court only. So does Rule 4 (with limited exceptions to Rule 4:9 regarding subpoenas duces tecum). Rule 7 applies to GDC; 7B is for Civil Court. You would be very surprised to know that

many attorneys do not know about the GDC rules, because they are relatively new, and seem to be out of order in the Volume 11 (They are near the end of the volume – after the Part VI ethical rules).

9. You will be trying cases for a long time. Sooner or later you are going to make a

mistake, and you will be at the mercy of the other side. Often the Court will be unable to bail you out. Remember this. When someone comes to you and says they goofed, and they need you to sign an order extending time, or continuing a case, or they need to have a judgment vacated where the time has run, if it is possible to do so, accommodate the other side. You will need a favor some time, and the members of the Bar keep score. So do some of the judges. Perhaps most of them. It is rare that an agreed order will not be entered by the judges in this area, if there is an appropriate motion filed which cites that it is “in the interests of justice” to do so.

10. When it is clear that you have lost a case, when you have given it your best shot,

but the judge has clearly ruled against you, go gracefully, no matter how horrible you feel that the decision might have been. Do not sulk and stomp around. Walk out of the courtroom, go into the Clerk’s Office, and note your appeal. Then take a few days to reflect on the matter. If you still think that the judge was wrong, or that you can do a better job on retrial, post bond and perfect the appeal.

11. Understand Nonsuits. If used correctly, a nonsuit can be a powerful weapon. It

gives the plaintiff a second bite at the apple if things go wrong, which might be overcome on retrial. But, nonsuits have limitations. The plaintiff is only entitled to one nonsuit per case as a matter of right, so do not waste it at a preliminary stage of the proceedings. If the judge has started to rule, it is too late to nonsuit. A nonsuit may not be taken if there is a pending counterclaim in the case. Even if you have used your nonsuit in GDC, you may still use it in Circuit Court (trial de novo), if the case gets up there by appeal.

12. Question: If the other party fails to file court ordered pleadings, should I file a

motion for summary judgment prior to the trial date? Answer: This is a tactical decision, with pros and cons. If the party responds by filing the pleading, or by requesting an extension of time, the court will often allow the late filing (perhaps after imposing sanctions, or granting attorney fees). This is not only “in the interest of justice,” but also in the interest of judicial economy, especially if no prejudice is caused by the failure to timely file. Remember, the delinquent plaintiff can nonsuit, and start over, and the delinquent defendant, if judgment is granted, may still appeal and try the case in circuit court. Some judges, on trial date, will always (usually) rule in favor of the non-offending party, others will grant continuances and sanctions if a motion had not been previously filed. Try to find out the practice of the judge handling the case.

13. Above all, be respectful; to the court, to opposing counsel, and to the other party.

The best way to get respect as an attorney is to give it. When no jury is present, the use of theatrics only makes the attorney look bad, and makes the other side look good.

ODDS AND ENDS THAT WILL MAKE PRACTICE EASIER, LESS FRUSTRATING, AND/OR MORE PROFITABLE

APPEALS – If a defendant posts bond and appeals a case, the matter should be promptly set and tried. After a year, the court may, upon notice, dismiss the case, and release the bond back to the defendant. It is very important to record your judgments in Circuit Court. RECORDATION of an abstract of judgment in Circuit Court extends the life of the judgment from 10 to 20 years. Recordation creates a lien on any real estate that a defendant may own in that jurisdiction. If you record your abstract within the ten-year period, in the Circuit Court in the jurisdiction in which the judgment was taken, there in now a procedure by which you may enforce the judgment in GDC even after the ten year period has run. If you take judgment in one court, it is possible to transfer the judgment to another jurisdiction for enforcement, as long as the defendant lives in that jurisdiction, or a jurisdiction that is contiguous to the jurisdiction. TENANCY BY THE ENTIRETIES – In order to constitute a lien on TBE property, a judgment must be against both husband and wife. This is true not only of real estate, but also as to bank accounts, and other joint assets. If there is any reasonable theory under which the spouse of the principal debtor could be held liable, sue both parties, and try to obtain a joint judgment. Note: If the joint judgment is a result of a claim under the doctrine of necessaries, the judgment is not a lien on the principal residence of the debtors. Most judge try, when granting a joint judgment for medical bills, or for childcare expenses, to note on the judgment that this is a necessaries case. LIENS AFTER BANKRUPTCY – The real estate lien of a recorded judgment often survives bankruptcy. In most cases judgment liens must be avoided at the time of filing, or they simply sit there as equity builds in the debtor’s real estate. RELEASES – Do not forget to release satisfied judgments. You might be subject to a $50.00 fine. In some cases, you may wind up paying debtor’s cost of getting a release, including attorney fees. INTEREST – Pre- and post-judgment interest is 6% from the date of judgment. Prejudgment interest must be requested in the warrant in debt. If you represent the plaintiff and a contract calls for a higher rate, ask for that rate. If you do not ask for a higher rate, or earlier date, you will be given only 6% from date of judgment. Also, you should request interested from the date on which it began to accrue, unless this might give rise to a statute of limitations defense. If you represent the defendant, remember to demand any evidence, such as the contract, that would entitle the plaintiff to interest above 6% and/or attorney’s fees. A simple invoice or statement of account, with a declaration at the bottom that late payments will be charged 18% or 24% or whatever, is unenforceable without a contract (i.e., credit agreement) or other acknowledgement signed by the defendant.

SETTLEMENTS BY CHECK – When is a check given in settlement and deposited by the recipient actually a settlement? Read and remember the Gelles case, 264 Va. 285, and the case of Helton vs. Phillip A. Glick Plumbing, 277 Va. ___. If you are suing for a balance that your client is trying to recover, after depositing the aforementioned check, you are almost certainly going to lose. ACCIDENTAL ADMISSIONS – Read and learn 8.01–279. If the defendant in its pleadings does not deny under oath, certain allegations, these items are admitted, and do not need to be proved in court. These include handwriting (signatures), structures of businesses, names of partners in a partnership. Both plaintiffs and defendants must be aware of this code section, and of its implications. ERRORS IN PLEADINGS – Code Section 16.1–93 requires judges to try cases on their merits, if possible. Therefore, if a party has made errors in pleading, or has not timely filed pleadings, and wants to correct the errors, rather than lose a case on the pleadings, the judges will if possible be accommodating, and allow corrections or additions if possible, although provisions must be made as to costs and continuances on behalf of a party not at fault. This of course presumes that there will be no substantial prejudice to the party not at fault. AFFIDAVITS – Know 8.01-413 through 8.01-416, 8.01-419 and 8.01-419.1which allow introduction of certain types of evidence by affidavit, or by use of recognized standard documents, if the statutory procedure is followed. In appropriate cases, medical records and bills are admissible without a doctor/witness; automobile damage repair bills, without calling the mechanic; proof of non-residency simply by filing an affidavit; proof of publication in a newspaper without a witness from the publication; proof of the value of a vehicle, by using evidence from any vehicle valuation service recognized by the automobile industry; proof of life expectancy of a person of any specific age, by using a statutory table of expectancies; and, proof of lost wages or employment evidence, without the presence of the employer. There are statutory procedures for each of these, the effect of which is to streamline a trial, and cut down on expenses to the party employing the techniques. SUIT BY AFFIDAVIT AND STATEMENT - Read 8.01-28. If a suit is filed with affidavit and statement of account attached, the defendant must appear, and answer under oath denying liability or file an answer under oath, denying liability. If the defendant is unable or unwilling to do so, judgment will be entered in favor of the plaintiff on the return day. This prevents stalling and gives the plaintiff a substantial advantage. REMOVAL OF A CASE TO CIRCUIT COURT is a thing of the past. The practice was done away with by the 2007 legislature. Do not embarrass yourself by filing a removal motion. NOTE: Removal sort of came in the back door this year. If you lose a case in GDC, you may appeal without bond if you have an insurance company’s written assurance that it will pay the judgment if the case is lost in circuit court. If you think that there is some strategic reason to do so, confess judgment in GDC, and appeal, using the guarantee of payment in lieu of bond.

BANKRUPTCY - If your client files bankruptcy, it is not sufficient for you to call the court, and tell someone that bankruptcy has been filed. Send us something, anything, in writing, telling us the date on which the petition was filed, the name or names of the petitioners, and the Bankruptcy Court’s case number. Remember that the filing of a bankruptcy does not, in and of itself, stop an execution from issuing where a prior judgment has been granted in an unlawful detainer case. If the court is holding money on a garnishment, and if the bankruptcy is filed before the money is given to the creditor, we will send it to the trustee, unless you furnish us with instructions to the contrary. IT IS VERY IMPORTANT, PARTICULARLY IN A CASE INVOLVING A PRO SE PARTY, but in other cases as well, to understand the Judge’s code words or actions. For example, the time will come when the General District Court judge tells you to stop objecting, and to let the other party testify, even though you know that your objections are well taken. Or the Judge will say something like “I know that is hearsay, but I want to hear what the defendant has to say.” Conversely, the day will come when all of your objections are sustained, no matter how arcane. You need to realize in the first instance, you have already won your case, and the judge just does not want the other party to feel that he/she was not heard, or that the party lost on a technicality. As hard as it is to for an attorney to do so, just sit down and shut up. In the second instance, you should start to worry that you have already lost, and the court is giving you a chance to look good in front of your client. Again, you should probably sit down and shut up at this point also.

A PERSPECTIVE FROM THE OTHER SIDE OF THE BENCH:

 OBVIOUS DO’S AND DON’T’S  ‐‐

 THAT I WISH I HAD APPRECIATED AS A TRIAL LAWYER 

1.  Never show anger towards or direct sarcasm at a witness.

2.  Never engage in a personal attack on opposing counsel.

3.  Never bully or try to take unfair advantage of a pro se litigant.

4.  Always come into the trial with your theory of the case – even if you must revise mid‐stream.

5.  Mold your demeanor to fit the case.

6.  Make only thoughtful objections.

7. Frequently re‐visit and refresh yourself on hearsay and its exceptions.

Robert S. Brewbaker, Jr. (JDR Judge) 

VTLA Annual Convention, Raising the Bar: March 21‐24, 2013 

DISCOVERY IN GENERAL DISTRICT COURT

Robert A. Pustilnik Judge (Retired) Richmond General District Court

As there is little formal discovery available in General District Court, counsel must be innovative. Interrogatories, depositions, admissions, and other formal discovery tools are for Circuit Court. If you are counsel for a plaintiff, and if you are going to need the use of discovery in order to prove your case (if this is the case, perhaps you have filed the matter prematurely, but that is a different story), then you should file it in Circuit Court, and pursue the matter there. If you are representing the defendant, you are just going to have to tough it out, using the tools that are available, or simply use the General District Court proceeding as your discovery. More about this later in the article. The principal formal discovery tool is the use of the subpoena duces tecum. The procedure in District Court is the same as that employed in Circuit Court. Pursuant to Virginia Code 16.1-89, an attorney may issue, and have served, a subpoena duces tecum, using official court form DC-498. Instructions for filling out the form may be found on the State Courts’ website, at www.courts.state.va.us/forms/district. Unlike Circuit Court, the subpoena duces tecum may also be served on counsel for any party in the case. The subpoena duces tecum may be used only for the purpose of obtaining documents, even documents in the hands of a third party. However, the party seeking documents from a non-party to the case may be required to pay the cost of reproducing the documents. The third party must comply by delivering the documents to the party seeking them, or that party’s attorney. If such documents are received, on the request of any party to the action, the receiving party must make the documents available to the requesting party, but the party requesting the documents will have to pay the costs of production. Virginia Code 8.01-417(B). Be careful here If the party does not respond, or if the response is – at least in your opinion – insufficient, you must follow up by taking an appropriate action, usually a motion to compel, accompanied by a motion for attorney fees for having to file the action. Many attorneys fail to realize that filing the motion to compel is not sufficient. Everything in General District Court is time driven. It is essential that you set a court date for the motion, and give notice to the party in default. Each court has its own method for setting a time for motions. In Richmond, a motion can be heard on the 9:00 a.m. motions docket any day. If the motion will not take more than a few minutes, it does not have to be prescheduled. Courtesy requires, or at least suggests, that you try to find a date that is acceptable to the other side before filing the motion. Similarly, a motion to quash the subpoena duces tecum, or to limit its scope, must not only be filed, but must also be set for hearing. Filing alone will not get you there. Again, the motion must be scheduled for hearing, or must be filed on a “motions docket”

if the court has such a docket, and notice must be given. If you do not know the policy of the particular court, call and ask the clerk in charge of civil matters. A similar means to obtain documents pertaining to the case when documents are in the hands of the other party, usually the party plaintiff, is a motion craving oyer. This ancient remedy still comes up from time to time, usually in contract or warranty matters. Craving oyer is a demand to add to the record in a case, usually for the purpose of filing a demurrer, any contract or written agreement upon which the subject matter of the suit is based. The documents, once produced, become a part of the pleadings in the case, and may become the subject of any demurrer to the allegations. There is no mention of Oyer in the Code, nor in the Rules of Court. However, it may be an effective motion in contract cases. Some matters “discover themselves,” particularly in personal injury or property damage cases.

16.1-88.2 provides the parties in a personal injury case, or in a dispute with an insurance company or health care provider, a simple means of putting into the record evidence as to the extent, nature and treatment of the injury, the costs of treatment, and the reports concerning the treatment. All of this may be presented by attaching to the report an affidavit of the healthcare provider, and giving ten days notice to the other party that this will be submitted as evidence. This is better than discovery. You have the actual evidence in advance. 8.01-413.1 provides that subpoenaed records of wages and salary may be admitted, and copies of the employer’s records may be admitted, as if they were originals. Again, the evidence that you might need is available by subpoena, and this aspect of the case may be very simply, and very completely, discovered. 8.01-419.1 allows for the proof of value of a vehicle by use of the NADA “yellow” or “black book,” or by any similar “vehicle valuation service used and recognized in the automobile industry, as evidence of fair market value. 8.01-416 allows the plaintiff in a tort or contract action to prove by affidavit accompanied by a report of a qualified appraiser, repairman, or estimator, the evidence of damage to a vehicle, upon seven day’s notice to the opposing party (notice is not necessary if the value of the damage to the vehicle is less than $2,500). Again, if you receive the affidavit, you have fully discovered the plaintiff’s evidence, and if you have not received it, it is not admissible.

Some other matters are discoverable by statute.

8.01-417 requires the delivery of any written statement or voice recorded statement of the injured party, within thirty days of the date that the statement was made or transcribed, and in all cases when requested by counsel, or by the injured person. It also provides for discovery of the potential defendant’s insurance company’s “policy limits.” The same information is available to attorney for the

representative of an estate of a decedent who died as the result of a motor vehicle accident.

8.01-20.1, 8.01-50.1, 8.01-83.1 require that a plaintiff, in any medical malpractice action, before requesting service of process, must have a certification that the plaintiff “has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness, … a written opinion signed by the expert witness … that the defendant … deviated from the applicable standard of car and the deviation was a proximate cause of the injuries claimed.” The defendant must provide such a certification within 10 days of written request, and if no such certification can be provided, the court shall impose sanctions, and may dismiss the case. This provides a simple means of discovery that such written opinion exists. At trial, Rule 4:1 applies as to discovery of the experts’ opinions and basis therefore. As the applicable Code sections require the certification for “every” malpractice action, clearly these statutes and rules of court apply to General District Court.

There are other matters that do not need to be discovered, matters, which, by statute, are admitted if not denied under oath. See 8.01-279. These “accidental admissions” are not as to minor matters. With some exceptions, by failing to deny, under oath, an allegation in any pleading, the other party admits that it has “made, endorsed, assigned, or accepted any writing, with no proof of handwriting.” When a pleading alleges that a person or business entity “at a stated time, owned, operated, or controlled any property or instrumentality,” no proof of the fact alleged is necessary, unless an affidavit to the contrary is filed with the pleadings. Finally, if parties are sued as partners, or as a corporation, it shall not be necessary to put prove these matters, unless denied by affidavit. While there may be a requirement that the party seeking to rely on these sections object to the pleadings pursuant to Rule 1:10, nevertheless, this simple process may take the place of formal discovery as to these issues.

As formal discovery is limited, in order to obtain the information that you need in order to try a case, it is necessary to be creative. Most of what you will need can be obtained by motion. Most General District Court discovery begins on the return date, when the parties are both before the Court. In most cases, you will have an opportunity to discuss the matter with the other side, before or after the docket, and you can informally find out what the case is all about. If you are unable to determine what you need to know, then ask the court for pleadings. In most cases, the formal pleadings, the Bill of Particulars and the Grounds of Defense, generally will state the case sufficiently to enable the parties to know what to expect at trial. If there are particular issues about the case that concern you, ask the court to order that those issues be dealt with in detail in the pleadings. The most usual cases in which this arises in our courts, are credit card cases, or cases involving payments and credits on an account. If the issue is the accounting, tell that to the court, and ask that a full accounting accompany the pleadings. If your client

feels that someone else has been using the account improperly, ask for copies of the transactions. If they are not produced in accordance with a court order, move to strike the pleading, as it fails to comply with a court order. This will save you from having to file a subpoena duces tecum, later on.

If you represent the defendant, and if the Complaint or the Bill of Particulars does not give you sufficient insight as to the nature of the plaintiff’s claim, than the claim probably has not been properly set forth, and should be subject to a demurrer. In some cases, if the Bill of Particulars does not fully explain plaintiff’s theory of the case, it would be appropriate to file a Motion to Strike the Bill of Particulars, or a Motion for a More Specific Bill of Particulars. This often happens in accident cases. Sometimes a plaintiff will fail to set out the date of the accident, its location, or some other important portion of the factual basis of the claim. If the Court orders or permits the plaintiff to plead again, at the time of the motion, make certain that the court orders the new amended pleading to contain the specific items that you need to know, in order to defend the matter.

Similarly, if the grounds of defense is a simple “general denial,” you have little

need for discovery, as the defendant will not be able to raise special defenses. But, if it contains defenses that you do not understand, use a motion to strike, or to amplify the grounds of defense. In the hearing on the motion, the defendant will have to explain the question, at issue. And even if the defendant does not have to re-plead, you should at least be able to develop an understanding of the issue to be raised.

While all of this is (I hope) interesting information, and while it is (again I hope)

useful, there are two General District Court discovery techniques, which are simple, and very, very effective. One or the other should work in every case in which you feel discovery is necessary.

As indicated above, each General District Court case is returnable on a specific

date, the date on which, in most cases, the parties appear, and set the case for trial. If you have not spoken to the other side by this point, this is an excellent time to get together, in person, before or after the case is set for trial, and exchange or agree to exchange information about the case. If both attorneys are willing to do so, pleadings become a mere formality, and the case there should be little need for formal discovery.

Finally, if all else fails, try your case. Subpoena the other side’s witnesses. Call

them, and examine them under oath. Treat the trial as you would a deposition in a Circuit Court case. Bring a court reporter, if you wish to preserve the evidence. Even if it is clear that you are going to lose, try the case to the bitter end, and find out everything that you could have learned by use of formal discovery, and perhaps more than that. Then, if you are the plaintiff, nonsuit the case, before submitting it to the Court for a decision. If you think that you could win on retrial, that you could overcome the downsides that you have learned about your case, file it again, and try it again.

If you are the defendant, try the case. Cross-examine the plaintiff’s witnesses, and review all of the exhibits. If you are certain that you are going to lose the case at this point, let the case go to judgment, without putting your witness on the stand, and appeal it, getting a trial de novo in Circuit Court. You will, at this point, know everything that there is to know about the opponent’s case, and the opponent will know little a about yours. If the case is winnable, this should give you an advantage on retrial. Remember, however, that your client will either have to post a bond sufficient to cover the judgment, or show evidence of insurance coverage sufficient to pay the judgment if the appeal is unsuccessful.

In summary, there are formal, informal, and statutory tools for discovery in

General District Court cases. Use them when you need them. Above all, be flexible and creative. Using General District Court, in most cases, is easier, quicker, and less expensive than pursuing the matter in Circuit Court, and here, you can get at least two bites at the apple.

PERSONAL INJURY CASES IN GENERAL DISTRICT COURT

The following are the primary statutes covering the introduction of evidence which is likely to be introduced in personal injury cases tried in General District Court. Medical Evidence: § 16.1-88.2. Evidence of medical reports or records; testimony of health care provider or custodian of records. — In a civil suit tried in a general district court or appealed to the circuit court by any defendant to recover damages for personal injuries or to resolve any dispute with an insurance company or health care provider, either party may present evidence as to the extent, nature and treatment of the injury, the examination of the person so injured and the costs of such treatment and examination by a report from the treating or examining health care provider as defined in § 8.01-581.1 and the records of a hospital or similar medical facility at which the treatment or examination was performed. Such medical report shall be admitted if the party intending to present evidence by the use of a report gives the opposing party or parties a copy of the report and written notice of such intention 10 days in advance of trial and if attached to such report is a sworn statement of the treating or examining health care provider that: (i) the person named therein was treated or examined by such health care provider; (ii) the information contained in the report is true and accurate and fully descriptive as to the nature and extent of the injury; and (iii) that any statement of costs contained in the report is true and accurate. Such hospital or other medical facility record shall be admitted if attached to it is a sworn statement of the custodian thereof that the same is a true and accurate copy of the record of such hospital or other medical facility. If, thereafter, the plaintiff or defendant summons the health care provider or custodian making such statement to testify in proper person or by deposition taken de bene esse, the court shall determine which party shall pay the fee and costs for such appearance or depositions, or may apportion the same among the parties in such proportions as the ends of justice may require. If such health care provider or custodian is not subject to subpoena for cross-examination in court or by a deposition de bene esse, then the court shall allow a reasonable opportunity for the party seeking the subpoena for such health care provider or custodian to obtain his testimony as the ends of justice may require. (1978, c. 490; 1983, c. 616; 1985, c. 379; 1989, c. 563; 1990, c. 279; 1996, c. 749; 2005, c. 811; 2007, cc. 425, 869.) Presenter’s Comment: Note that this section does not specifically require the health care provider to opine that the injury was proximately caused by the accident. The affidavit for medical reports by health care providers (not bills, hospital or medical facility records) must be signed by the health care provider, not just a records custodian. A records custodian may sign an affidavit as to the bills and records of the health care facility. Trial Management Tip: This statute does not require the affidavits and records to be filed with the Court in advance of trial, but rather simply requires that they be sent to defense counsel. In practice, however, many lawyers pre-file either their original

affidavits & records or copies thereof. This can lead to a space management issue for courts if multiple copies and originals are received in the court’s file. Copies may be returned to the parties at trial, keeping only the originals in the Court’s file. § 8.01-413. Certain copies of health care provider's records or papers of patient admissible; right of patient, his attorney and authorized insurer to copies of such records or papers; subpoena; damages, costs and attorneys' fees. — A. In any case where the hospital, nursing facility, physician's, or other health care provider's original records or papers of any patient in a hospital or institution for the treatment of physical or mental illness are admissible or would be admissible as evidence, any typewritten copy, photograph, photostatted copy, or microphotograph or printout or other hard copy generated from computerized or other electronic storage, microfilm, or other photographic, mechanical, electronic or chemical storage process thereof shall be admissible as evidence in any court of this Commonwealth in like manner as the original, if the printout or hard copy or microphotograph or photograph is properly authenticated by the employees having authority to release or produce the original records.

*** (remaining provisions of this statute have been omitted.)

§ 8.01-413.01. Authenticity and reasonableness of medical bills; presumption. — A. In any action for personal injuries, wrongful death, or for medical expense benefits payable under a motor vehicle insurance policy issued pursuant to § 38.2-124 or § 38.2-2201, the authenticity of bills for medical services provided and the reasonableness of the charges of the health care provider shall be rebuttably presumed upon identification by the plaintiff of the original bill or a duly authenticated copy and the plaintiff's testimony (i) identifying the health care provider, (ii) explaining the circumstances surrounding his receipt of the bill, (iii) describing the services rendered and (iv) stating that the services were rendered in connection with treatment for the injuries received in the event giving rise to the action. The presumption herein shall not apply unless the opposing party or his attorney has been furnished such medical records at least twenty-one days prior to the trial. B. Where no medical bill is rendered or specific charge made by a health care provider to the insured, an insurer, or any other person, the usual and customary fee charged for the service rendered may be established by the testimony or the affidavit of an expert having knowledge of the usual and customary fees charged for the services rendered. If the fee is to be established by affidavit, the affidavit shall be submitted to the opposing party or his attorney at least twenty-one days prior to trial. The testimony or the affidavit is subject to rebuttal and may be admitted in the same manner as an original bill or authenticated copy described in subsection A of this section. (1993, c. 610; 1996, c. 516; 1997, c. 503.)

Presenter’s Comment: This section is slightly different than 16.1-88.2 (above) with respect to the introduction of medical bills in that it permits the plaintiff to authenticate his own bills. No affidavit is required. However, the rebuttable presumption of reasonableness attaches only if the bills are sent to the opposing party or his attorney 21 days prior to trial, not 10 days as in bills and records sent pursuant to 16.1-88.2. § 8.01-413.02. Admissibility of written reports or records of blood alcohol tests conducted in the regular course of providing emergency medical treatment. — A. Notwithstanding any other provision of law, the written reports or records of blood alcohol tests conducted upon persons receiving medical treatment in a hospital or emergency room are admissible in evidence as a business records exception to the hearsay rule in any civil proceeding. B. The provisions of law pertaining to confidentiality of medical records and medical treatment shall not be applicable to reports or records of blood alcohol tests sought or admitted as evidence under the provisions of this section. Owners or custodians of such reports or records may disclose them, in accordance with regulations concerning patient privacy promulgated by the U.S. Department of Health and Human Services, without obtaining consent or authorization for such disclosure. No person who is involved in taking blood or conducting blood alcohol tests shall be liable for civil damages for breach of confidentiality or unauthorized release of medical records because of the evidentiary use of blood alcohol test results under this section, or as a result of that person's testimony given pursuant to this section. (2005, c. 801.) Employment Evidence: § 8.01-413.1. Certain copies of employment records or papers admissible; right of employee or his attorney to copies of such records or papers; subpoena; damages, costs and attorney's fees. — In any case where the original wage or salary records or papers of any employee are admissible or would be admissible as evidence, any typewritten copy, photograph, photostatic copy, or microphotograph thereof shall be admissible as evidence in any court of this Commonwealth in like manner as the original, provided the typewritten copy, photograph, photostatic copy or microphotograph is properly authenticated by the individual who would have authority to release or produce in court the original records. Any employer whose records or papers relating to any such employee are subpoenaed for production may comply with the subpoena by a timely mailing to the clerk issuing the subpoena properly authenticated copies, photographs or microphotographs in lieu of the originals. The court whose clerk issued the subpoena may, after notice to such employer, enter an order requiring production of the originals, if available, of any records or papers whose copies, photographs or microphotographs are not sufficiently legible. The party requesting the subpoena shall be liable for the reasonable charges of the employer for copying and mailing the items produced. (1987, c. 503.)

Automobile Evidence: § 8.01-416. Affidavit re damages to motor vehicle. — A. In a civil action in any court, whether sounding in contract or tort, to recover for damages to a motor vehicle in excess of $2,500, evidence as to such damages may be presented by an itemized estimate or appraisal sworn to by a person who also makes oath (i) that he is a motor vehicle repairman, estimator or appraiser qualified to determine the amount of such damage or diminution in value; (ii) as to the approximate length of time that he has engaged in such work; and (iii) as to the trade name and address of his business and employer. Such estimate shall not be admitted unless by consent of the adverse party or his counsel, or unless a true copy thereof is mailed or delivered to the adverse party or his counsel not less than seven days prior to the date fixed for trial. B. In a civil action in any court, whether sounding in contract or tort, to recover for damages to a motor vehicle of $2,500 or less, evidence as to such damages may be presented by an itemized estimate or appraisal sworn to by a person who also makes oath (i) that he is a motor vehicle repairman, estimator or appraiser qualified to determine the amount of such damage or diminution in value; (ii) as to the approximate length of time that he has engaged in such work; and (iii) as to the trade name and address of his business and employer. (1977, c. 617; 1980, c. 183; 1990, c. 724; 2010, c. 343.) Presenter’s Comment: Note that the only difference in sections A & B is the requirement that the affidavit be sent to the adverse party or his attorney 7 days prior to trial if the amount of damage or diminution in value exceeds $2500. § 8.01-419.1. Motor vehicle value. — Whenever in any case not otherwise specifically provided for the value of an automobile is in issue, either civilly or criminally, the tabulated retail values set forth in the National Automobile Dealers' Association (NADA) "yellow" or "black" books or any vehicle valuation service regularly used and recognized in the automobile industry that is in effect on the relevant date, shall be admissible as evidence of fair market value on the relevant date. The determination of value shall be subject to such other creditable evidence as any party may offer to demonstrate that the value as set forth in the NADA publication or any vehicle valuation service utilized by another party fails to reflect the actual condition of the vehicle and that therefore the value may be greater or less than that shown by the NADA publication or any vehicle valuation service. (1993, c. 759; 2006, c. 402.) Presenter’s Comment: Since each of these books generally gives a range reflecting, for example “fair” to “excellent” condition, it may still be necessary to take evidence from a dealer to establish which value should apply. However, the books usually also provide definitions in the beginning of the book which show which value applies. In the event of a

dispute about which value should apply, these pages may also be introduced and considered by the Court. § 46.2-880. Tables of speed and stopping distances. — All courts shall take notice of the following tables of speed and stopping distances of motor vehicles, which shall not raise a presumption, in actions in which inquiry thereon is pertinent to the issues:

[TABLE OMITTED HERE]

The courts shall further take notice that the above table has been constructed, using scientific reasoning, to provide factfinders with an average baseline for motor vehicle stopping distances: (1) for a vehicle in good condition and (2) on a level, dry stretch of highway, free from loose material. Deviations from these circumstances do not negate the usefulness of the table, but rather call for additional site-specific examination and/or explanation. Site-specific research may be utilized under any circumstances. (Code 1950, § 46-212.2; 1956, c. 600; 1958, c. 541, § 46.1-195; 1989, c. 727; 2001, c. 145; 2003, c. 277.)

The Honorable Robert S. Brewbaker, Jr.

Judge Brewbaker is the father of two children -- a son who is a civil engineer in

Washington, D. C., and a daughter who teaches fourth grade in the Albemarle County

public schools. His spouse, Nancy, works in a retirement community in Franklin. Judge

Brewbaker graduated from St. Andrews Presbyterian College, has a Masters of Divinity

degree from Union Theological Seminary, and a J. D. from the University of Virginia

School of Law. He did civil litigation in private practice (primarily medical malpractice

litigation) for 12 years in Richmond and for 15 years in the Tidewater area until May

2006 when he became a Juvenile and Domestic Relations Court judge for the 5th

District

(Suffolk, Franklin and the counties of Southampton and Isle of Wight). He remains active

in charitable and non-profit groups -- including the Western Tidewater Free Clinic.

BARBARA J. GADEN

Biographical Information

The Honorable Barbara Gaden was appointed to the bench of the Civil Division of the

Richmond General District Court in April, 2001, serving as Chief Judge of the Court from 2008

to 2010. In summer of 2011, she was elected as the first female President of the Association of

District Court Judges, a service organization representing the nearly 300 active and retired

district court judges of the Commonwealth. Virginia Lawyer’s Weekly named her one of the

“Influential Women of Virginia” for 2012. In addition to her long service on the Executive

Committee of the Association, she has served as Honorary Chair of the Richmond Bench-Bar

Conference, as a member of the Supreme Court’s District Court Forms Committee, and now

serves as a mentor judge and faculty member of the Virginia State Bar’s Harry L. Carrico

Professionalism Course. She is a regular moot court judge for the Virginia CLE Trial Advocacy

School in Charlottesville, and is a frequent speaker at legal conferences, including the Bridge-

the-Gap seminar and recent panels on professionalism and civil practice in the District Court.

For eighteen years prior to joining the bench, Judge Gaden had a wide-ranging litigation

practice. She served as an Assistant Attorney General in the Trial Section of the Virginia

Attorney General’s Office and worked for the firm now known as Reed, Smith. She practiced in

state and federal courts throughout the Commonwealth and represented both plaintiffs and

defendants in constitutional, civil rights, tort and contract cases. In the last few years before

joining the bench she established her own practice, including criminal defense and acting as

special counsel to the Attorney General’s Office in two major federal cases involving interstate

commerce. As a cooperating attorney with Housing Opportunities Made Equal, she also achieved

a landmark settlement in a racial discrimination housing case.

A native of New York, Judge Gaden graduated from Fordham University School of Law

in 1983. She received a Bachelor of Music degree from the Juilliard School with a performance

major in cello, and subsequently worked in the classical music business, including a year as

Director of Public Relations for the Louisville Orchestra and five years running her own concert

management firm in New York City, the last three while also attending law school. A current

member of Local 123 of the American Federation of Musicians, she remains a professional

cellist who, since 1993, has been a member of the Richmond Symphony. She has also been

heard in occasional solo performances, including a 1996 recital at the University of Richmond’s

Perkinson Recital Hall and Chrysler Museum in Norfolk.

Judge Gaden is married to attorney John Mann and has three grown step-daughters. In

her spare time, Judge Gaden is an avid horseback rider who competes in dressage and enjoys

needlework arts.

The Honorable Avelina S. Jacob

is a judge in the 20th

judicial district, presiding as Chief Judge in the Juvenile and

Domestic Relations District Court of Loudoun County. She received her A.B. (1972)

from the College of William and Mary and her J.D. (1978) from George Mason

University. Upon graduation, she entered private practice in Leesburg, Virginia,

specializing in juvenile and domestic relations law, until elected to the Juvenile and

Domestic Relations Court bench in 2000. She is a former president of the Loudoun Bar

Association and former board member of the Northern Virginia Legal Aid Association.

Judge Jacob is board member of Virginia Council of Juvenile and Domestic Relations

Court Judges, a member of the support committee for the same organization, chair of the

Advisory Committee on Domestic Violence Issues in Virginia Courts and a Best Practice

Court. She has participated as a presenter at Best Practices Conferences, the April CIP

conferences, 2009 GEAP Conference and at the annual meetings of the National District

Attorneys Association and the Virginia Community Criminal Justice Association. In

addition, Judge Jacob has attended various advanced trainings in child dependency and

domestic violence.

The Honorable Stephen C. Mahan graduated with distinction from the University of

Virginia and received his law degree from the Marshall-Wythe School of Law of the

College of William and Mary. Following law school, he served as a Judicial Clerk to the

Honorable Robert G. Doumar of the United States District Court for the Eastern District

of Virginia. For the next 19 years, Judge Mahan practiced primarily as a civil and

criminal trial lawyer, as well as a mediator and arbitrator certified by several private

alternative dispute organizations and by the United States Postal Service. Since October

1, 2002, he has served as a Judge of the Second Judicial Circuit of Virginia. Judge

Mahan is the Past President of the I’Anson-Hoffman American Inn Of Court and serves

as a member of the Judicial Education Committee of the Judicial Conference of Virginia,

the Virginia Model Jury Instructions Committee, the Virginia Beach Criminal Justice

Services Board and the Virginia State Bar Special Committee on Bench-Bar Relations.

Judge Mahan is the past Chairman of the Supreme Court of Virginia Committee to

Promulgate Rules and Standards for Court Reporters and is a past member of the Supreme Court of Virginia Circuit Court Clerks Advisory Committee, the

Commonwealth of Virginia Public Defender Commission, the Virginia Trial Lawyers

Association Board of Governors, the William and Mary Law School Association Board

of Directors, the University of Virginia Board of Visitors and of the boards of various

other civic, educational and non-profit organizations. In 2012, Japan’s oldest martial arts

association bestowed its highest professional title upon Judge Mahan after he led a

United States delegation to top team and individual recognition at the association’s 4th

World Martial Arts Exposition in Kyoto, Japan. He is one of 4 men living in the United

States to hold that honor.