Judges Panel Trial Practice Tips

Transcription

1 Virginia Trial Lawyers Association 2013 Convention Judges Panel Trial Practice Tips Moderator: The Honorable Robert S. Brewbaker, Jr. Fifth Judicial District Suffolk Juvenile & Domestic Relations Court 150 N. Main St. 2nd Fl. Suffolk, VA (757) Panelists: The Honorable Barbara J. Gaden Thirteenth Judicial District Richmond General District Court John Marshall Courts Bldg. 400 North Ninth St., Rm. 203 Richmond, VA (804) The Honorable Stephen C. Mahan Second Judicial Circuit Virginia Beach Circuit Court 2425 Nimmo Parkway Bldg. 10, 4th Fl. Virginia Beach, VA (757) The Honorable Avelina S. Jacob Twentieth Judicial District Loudoun County Juvenile & Domestic Relations Court 18 East Market St. Leesburg, VA (703) Raising the Bar Virginia Trial Lawyers Association 54 th Annual Convention March 21-24, 2013 Colonial Williamsburg

2 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 $ 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. 1

3 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 2

4 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 3

5 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 4

6 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. 5

7 (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 and :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 Revised February 11,

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12 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

13 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 2

14 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:

15 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 2

16 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. 3

17 11. Other:. ENTERED: Judge 11/11 4

18 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 ***************** 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) 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: 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.

19 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.

20 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 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).

21 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

22 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.

23 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.

24 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 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 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 through , and which 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 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.

25 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.

26 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

27 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 , 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 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 (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