Virginia Bar Civil Procedure Flashcards

Front 1

In the constitutional test for personal jurisdiction, what is meant by "fair play and substantial justice"? Be as complete as possible.

Back 1

Fair play & substantial justice = relatedness + convenience + state’s interest
a) Relatedness between this contact and the claim. (“Does the pl’s claim arise from the def’s contact with the forum?”)
--Sliding scale: relatedness can make up for a lack of contacts
--Relatedness not needed if there is general personal juris.
b) Convenience for witnesses and parties (def must show severe disadvantage to challenge)
c) State’s interest (e.g. in providing a forum for its citizens)

Front 2

In Va, which trial court or courts can hear equitable claims?

Back 2

Circuit courts only

Front 3

In Va, in which could may you file a civil suit for monetary recovery or personal property worth ≤ $4,500?

Back 3

GDC only (exclusive juris)

Front 4

In Va, what is the cap on tort, contract, unlawful detainer and detinue claims brought in GDC?

Back 4

Equal to or less than $15,000

Front 5

Hypo: In Va, if a pl has an unlawful detainer claim worth $30,000, where the subject of the claim is a grocery store, in which court can the claim be brought?

Back 5

Either circuit court or GDC. (Usually the GDC cap for unlawful detainer is $15k, but there is NO cap if the property is used for commercial/agricultural purpose)

Front 6

What is a distress warrant?

Back 6

An action in Virginia for a creditor’s right to seize property

Front 7

In Va, what is the cap on an action for attachment of personal property in GDC? On real property?

Back 7

Trick question: If it’s realty, it must go to circuit court regardless of amount
(For personal property, it must be ≤$15k to stay in GDC)

Front 8

In Va, can interpleader cases be brought in GDC?

Back 8

Yes, if stake is ≤$15k

Front 9

In Va, under what circumstances is a case appealable as a matter of right from GDC to circuit court?

Back 9

Appeal is an absolute right if “amount involved” for either party is >$50

Front 10

In Va, what is the procedure for appealing a case from GDC to circuit court?

Back 10

1) File written notice of appeal with GDC clerk within 10 days of judgment
2) Post bond and pay writ tax in GDC with 30 days of judgment

Front 11

Timing: In Va, how long do you have to file notice of appeal when appealing a case from GDC to circuit court?

Back 11

10 days

Front 12

Timing: In Va, how long do you have to post bond and pay writ tax in GDC when appealing a case from GDC to circuit court?

Back 12

30 days
--Exception: 10 days if an unlawful detainer case

Front 13

n Va, can a pl, after a case is appealed from GDC to circuit court, increase the value of the claim?

Back 13

Yes

Front 14

In Va, what are the three types of trial court writs?

Back 14

i) Mandamus: forcing an officer to perform a ministerial act
ii) Prohibition: stopping a lower ct from exercising juris
iii) Certiorari: review of zoning decisions

Front 15

Timing: In Va, when must you make an objection to venue in circuit court?

Back 15

You must file a motion objecting to venue within 21 days of service of process (no mailbox rule)

Front 16

Timing: In Va, when must you make an objection to venue in GDC?

Back 16

Anytime, even the day of trial

Front 17

In Va, if venue is improper, what must a court find to DECLINE to have the case transferred? If proper?

Back 17

good cause! (court's discretion--consider affect on parties)

Front 18

In Va, if a pl brings a claim against multiple defendants, where can the pl lay venue? What if all are non-residents?

Back 18

anywhere that meets venue test for one D. if all non-residents bring to where P lives.

Front 19

Timing: In Va, if a case has multiple defendants, and one pl voluntarily dismisses such that venue is not improper, how long does a remaining def have to object?

Back 19

Within 10 days of dismissal

Front 20

In Va, what is forum non conveniens dismisal?

Back 20

If (1) the claim accrued out-of-state, (2) the claim is brought by a nonresident, and (3) there is a more convenient venue outside of Va --> a court may dismiss without prejudice.
--The ct must first find (1) good cause and (2) that the other ct has juris

Front 21

In Va, what documents constitute "process"?

Back 21

summons + copy of complaint
--Note: the summons is called a "warrant" in GDC

Front 22

In Va, who may serve process?

Back 22

1) Process may be served by an adult civilian who is not interested in the case or by the sheriff/deputy.
2) Officers can serve in county or contiguous counties.

Front 23

In Va, what constituted "posted service"?

Back 23

i) Posting a copy of process on def’s front door, AND
ii) 10 days before judgment, mail process to def and certify to clerk that mailing happened

Front 24

In Va, in the most basic terms, what are the two types of service under the long-arm statute?

Back 24

1) Option 1: use Secretary of the Commonwealth
2) Option 2: serve def out of state personally using someone authorized to serve there

Front 25

In Va, when serving the Secretary of the Commonwealth under the state's long-arm statute, what is the procedure for completing service?

Back 25

i) Serve Secretary of the Commonwealth
ii) Pl makes an affidavit to Sec of Commonwealth that (1) def is a nonresident (or can’t be found with due diligence) and (2) def’s last known address
iii) Secretary then mails copy of process by registered/certified mail
iv) Secretary then files a certificate of mailing with the ct

Front 26

In Va, if service was otherwise faulty, under what circumstances can he faulty service be cured? And what is the exception?

Back 26

It can be cured if def actually and timely received process
--E.g., service on a 10-year old, to long as it gets to Dad
--Exception: no curing ever allowed in divorce/annulment cases

Front 27

In Va, can a def waive service like in fed court?

Back 27

Yes, and the process is the same, except that the pl must mail 2 copies of notice/request for waiver

Front 28

In Va, after process is served or attempted, what does the server do next?

Back 28

File the Return (“Proof of Service”)
--Within 72 hours of service, a report must be filed with the ct indicating status of service
--If failure to serve, reason must be stated.

Front 29

Timing: In Va, how long after filing a civil case must process be served?

Back 29

Within 12 months of filing (absent a showing of due diligence)

Front 30

In Va, for responsive pleadings, counterclaims, motions, and discovery, what service of process is needed?

Back 30

No service of process.
-- Just mail, fax, or hand-deliver a copy of the paper (or email, with consent of party) to all counsel of record before the filing date
-- Counsel serving the documents then certifies the fact of mailing/delivery with the ct

Front 31

What kind of pleading is proper in a Va case? A fed case? (I.e., notice or fact?)

Back 31

Va: Fact pleading.
Pleadings must:
i) Clearly inform the opposing party…
ii) …of the true nature of the claim or defense
Fed: Notice pleading.

Front 32

Under Va procedure, if a relevant document (like a K) form the basis of a civil suit is not attached to the pleading, what can the other party do?

Back 32

File a motion craving oyer

Front 33

Under Va rules, attorneys must sign all pleadings, motions, and other papers certifying what? What is penalty for breaching this certification?

Back 33

i) Document has been read
ii) To the best of atty’s knowledge, information, and belief, the document is grounded in fact and law (or good faith belief that law should be modified)
iii) Document is not for harassment or delay. Attorney can be liable for costs and AFs incurred because of improper document

Front 34

Under Va rules, if a motion or pleading is not signed by an attorney, what can the opposing party request as a remedy?

Back 34

Document can be stricken if not signed

Front 35

In Va GDC, if a plaintiff wants to write his own warrant, what it is called?

Back 35

A motion for judgment

Front 36

How does service of process generally work in Va's GDC?

Back 36

Civil warrant is directed to the sheriff/deputy, who serves it on the def

Front 37

In Va GDC, what is the date called on which the defendant is told to come to GDC to defend the warrant? How far in advance must this date be set?

Back 37

The return date. Between 5 and 60 days from the warrant's filing

Front 38

In Va GDC, if a defendant want to get details of the pl's case, what can he file? (What is it called in Fed court?) If Pl wants details of D's case? What is the penalty for not responding?

Back 38

A “bill of particulars”. (Motion for a more definite statement)
A “motion for grounds of defense”. GDC can enter summary judgment.

Front 39

In Va GDC, under what circumstances can the court grant a continuance before the date of trial? What if the motion is made on the date of trial itself?

Back 39

1) The ct has discretion to grant a continuance if a motion is made before the trial date.
2) If made on the date of trial, the motion must be DENIED unless movant shows the continuance is in the “best interests of justice”

Front 40

In Va, what 5 things must be included in a Circuit Court complaint?

Back 40

i) Name of court
ii) Names/addresses of parties
iii) Signature of lawyer
iv) Statement of facts
Must be in numbered paragraphs that (a) clearly inform def of the (b) true nature of the claim
--Note: you can allege negligence and proximate cause generally, but you must allege ALL elements of claims
v) Prayer for relief
-must include separate statement if punitive damages are requested

Front 41

n Va circuit court, how long does a def have to respond to a complaint?

Back 41

21 days

Front 42

In Va circuit court, what 2 things must you do in a motion objecting to venue?

Back 42

Must state (1) why venue is improper and (2) what places would be proper. Must be filed within 21 days.

Front 43

In Va, if a motion objecting to venue was defective, but the court still wants to transfer the case, can the court do so?

Back 43

Yes, the ct always has the power to transfer a case on its own

Front 44

In Va circuit court, if you want to challenge lack of service of process or challenge personal jursidiction, what must you do?

Back 44

make a special appearance in court specifically to talk about one these two things and nothing else

Front 45

In Va circuit court, if you want to challenge service as defective, what kind of appearance must you make? Can you make a pleading on the merits first?

Back 45

A general appearance is fine. This is called a motion to quash, and though it is waived if you make a general appearance FIRST, you can make the motion simultaneously with a pleading on the merits.

Front 46

What is a demurrer and what does it require?

Back 46

It tests sufficiency of a pleading. Must be filed before an answer (unless with with permission of the court) and must state specifically one of the four grounds:

i) Misjoinder of claims
ii) Lacks of SMJ
iii) Lack of PJ
iv) Failure to state a claim (primary use)

Front 47

What is a special plea and how do you raise it?

Back 47

A special plea/plea in bar of recovery is an affirmative defense (e.g., statute of limitations, res judicata, etc). Theymay be raised separately as a motion to dismiss OR stated as affirmative defenses in the answer

Front 48

What is the content of an answer in Virginia court?

Back 48

i) Respond to allegations of complaint (admit, deny, or state lack of knowledge)
ii) State affirmative defenses (special pleas) (or you can make special pleas separately)

Front 49

In Va court, can a defendant facing a legal claim on a contract plead equitable defenses?

Back 49

Yes

Front 50

In Va, what common law recoupment? How does it differ from statutory recoupment?

Back 50

1) With legal claims on contracts, def can plead equitable defenses (e.g., failure of consideration, fraud in the inducement, breach of warranty, unconscionability, etc). This is “common law recoupment”: def can diminish the pl’s clam by as much as pl’s entire claim (but not more).
2) "Statutory recoupment": Va statute also allows a def to raise these same defenses in a damages action on a K and recover damages even in excess of pl’s claim.

Front 51

In Va, if you are a def facing a legal claim on damages, and you want the contract rescinded because the contract was based on fraud, do you have to raise this by counterclaim?

Back 51

Yes. Statutory recoupment allows you to get damages based on equitable defenses to a contract claim without a counterclaim, but to get reformation or rescission, you do need a counterclaim.

Front 52

In Va circuit court, is a plaintiff required to present a reply to def's answer?

Back 52

Generally no.
--Exception: Def pleads a new matter and requests pl to respond. Pl then has 21 days to admit/deny in a “reply." Otherwise is deemed to have denied any allegations made by D in his answer.

Front 53

In Va circuit court, if a def’s pleading is defective, what can the plaintiff do?

Back 53

If def’s pleading is defective, pl can make a motion to strike the pleading. (Remember, if the def doesn't answer, then the pl's allegations are not denied, and thus they are admitted.)

Front 54

In Va circuit court, under what circumstances will a court allow leave to amend the pleadings?

Back 54

i) Amendment will be allowed liberally to further the ends of justice
ii) Generally a ct will consider (1) delay and (2) prejudice. Court has discretion

Front 55

In Va circuit court, under what circumstance can a plaintiff amend the pleadings AFTER the statute of limitations has run?

Back 55

If a pl does get leave to amend before a S/L runs, then pl can file the amended pleadings after the S/L runs so long as permission was granted BEFORE it ran.

Front 56

In Va court, if a pl fails to get leave to amend the complaint but amends anyway, and the def responds, what happens?

Back 56

Both are a nullity.

Front 57

n Va circuit court, what defenses must be pled in a SWORN affidavit/pleading?

Back 57

i) Lack of genuineness of handwriting
ii) Lack of corporate/ partnership/ agency status (including employment relationship)
iii) Lack of ownership or operation of property of instrumentality

Front 58

Timing: In Va circuit court, if a defendant raised a defense that was required to be raised in a sworn pleading, but fails to do so, what can the plaintiff do? How long does the plaintiff have?

Back 58

Must move to strike within 7 days. Otherwise, objection is waived.

Front 59

Va law allows special procedures to support plaintiffs in actions seeking money payment on a contract. Describe this process.

Back 59

Pl can file with his complaint/warrant an affidavit stating:
i) Amount of claim
ii) That the amount is justly due
iii) Date from which he seeks interest
--After being served with process and the affidavit together, the def must plead under oath that the pl is not entitled to the money, or judgment for pl is entered.

Front 60

Timing: In Va GDC, how far in advance of trial must a plaintiff file subpoenas?

Back 60

Must be filed ≥15 days before trial (or show good cause why not)

Front 61

In Va GDC, if you want a nonparty to produce documents, how can you accomplish this?

Back 61

Compel the person as a witness to bring documents to trial with a subpoena duces tecum

Front 62

How many interrogatories is a civil party limited to in fed ct? Va ct?

Back 62

25 in fed ct; 30 in Va

Front 63

What limits are placed on depositions in fed ct? Va ct?

Back 63

--Fed ct says no more than 10 and no one can be deposed twice.
--No limits in Va.

Front 64

Is the relevance standard in discovery different in fed ct from Va ct?

Back 64

A little.
i) Fed ct: must be relevant to a claim or defense (narrower). Va: must be rel to subj matter of proceeding
ii) Definition is same for both: “reasonably calculated to lead to admissible evidence”
--E.g., info about gross earnings may be rel to punitive damages.

Front 65

Under what circumstances can a Va court limit discovery?

Back 65

Va cts have power to limit discovery if requests are (1) repetitive, (2) unduly burdensome, or (3) the info is more easily available from another source

Front 66

In Va, can a third-party beneficiary on a contract sue in his own right, or must he be mentioned in the contract?

Back 66

They can sue in their own right even if not mentioned in the contract.

Front 67

In Va, if a minor fails to sue (as plaintiff) by a next friend, but wins, will the judgment stand?

Back 67

Generally yes

Front 68

In Va, if a party has a serious mental disability, how will the court proceed?

Back 68

Usually there is a formal incompetency hearing where a fiduciary is appointed. The fiduciary might be a “committee”/”guardian”/”conservator”

Front 69

In Va, how can you sue a convict? How can a convict sue as a plaintiff?

Back 69

1) While in custody, a convict CANNOT be sued individually. You'll wan to get a "committee" appointed.
2) Technically, convicts can sue as pl without a committee, but filing a suit waives the need for a committee.

Front 70

In Va, what is the difference between "survival" and "revival" of claims?

Back 70

1) In Va, all claims "survive" death of any pl or def. If pl dies, pl’s executor must make a motion to substitute himself as pl.
2) If a party changes status in some other way (e.g., insane, convict), the case survives but must be “revived” in the representative’s name.

Front 71

n Va, must counterclaims be served formally with a summons?

Back 71

NO

Front 72

In Va, how long does a def have to file counterclaim in GDC? Circuit court?

Back 72

i) Circuit court: Def must file within 21 days of service of process.
ii) GDC: file anytime before trial

Front 73

In Va, how long does a counter-defendant (i.e., the plaintiff) have to respond to a counterclaim?

Back 73

21 days

Front 74

How does the scope of available counterclaims differ in Va than in fed ct?

Back 74

Unlike fed ct, counterclaims are NOT limited to same T/O
--But still check to make sure SMJ is met! (e.g., watch amount limits in GDC)
-and if more than one P, counterclaim MUST apply to all

Front 75

Cross claims

Back 75

claims against co-P's or co-D's but MUST be related to same T/O in Va and Fed courts

Front 76

In Va, under what circumstances can a tortfeasor can seek contribution from joint tortfeasor? What is the VA name for this type of complaint?

Back 76

a) Like fed ct, if the tort is (1) negligence and (2) involves no moral turpitude
b) BUT def cannot implead joint tortfeasor if the pl could not recover against him. (unlike fed ct). "third party complaint"

Front 77

In Va, can you file an interpleader claim in GDC? In circuit court?

Back 77

Can file in GDC or CC, with some catches:
1) GDC: can order interpleader if value of money/property is ≤$15k
--But a GDC cannot issue an injunction against parties from other proceedings!
2) Circuit ct: no cap on how much money need be at issue, plus the court can enjoin related matters in other proceedings.

Front 78

In Va, can a plaintiff intervene in a GDC case? In a circuit court case? What is the filing called?

Back 78

1) File in circuit court only
2) Form: “petition for intervention”
(this is always discretionary, no right to it and must germane to case at hand)

Front 79

In Va, once a person files a petition for intervention and it is granted, what happens next to complete the intervention?

Back 79

i) If granted, the intervenor pl would then file a compl and serve it formally with process.
ii) Defending parties respond as they would for any compl (i.e. file an “answer in intervention”)

Front 80

In Va, how does the standard for a "necessary" party differ from the standard in fed ct? What about that of an "indispensable" party?

Back 80

a. “Necessary” is defined the same as in fed ct
b. “Indispensable” parties: no such thing in Va
--
Federal court: A party is necessary if (any)
i) Without the absentee, the ct cannot accord complete relief (prevent multiple litigation)
ii) The absentee’s interest will be harmed if not joined (harm to absentee), or
iii) The absentee claims an interest which subjects a party (usually the def) to multiple obligations (harm to party)

Front 81

In Va, what is the hierarchy for beneficiaries in a wrongful death action?

Back 81

1) Spouse + kids/grandkids
2) No kids/grandkids? --> Spouse + parents
3) No kids/grandkids & no spouse? --> parents + siblings
4) ^ Award can include another person if (a) relative (b) who was part of decedent’s household and (c) dependent on decedent for support
5) If no beneficiaries --> benefits go to intestate takers

Front 82

In Va, in a wrongful death action, how is it decided how big a share of the recovery each beneficiary will get?

Back 82

Jury decides how much each beneficiary gets

Front 83

In Va, what damages are recoverable in a wrongful death action?

Back 83

Fair and just” damages, including:
1) Sorrow, anguish, and lost companionship of decedent
2) Services and income of decedent
3) Medical and funeral expenses*
4) Punitive damages IF wanton/willful misconduct* (unless def dies before judgment)
Note: No pain and suffering!
--
* must be stated separately in verdict

Front 84

In Va, if a victim brings action for personal injury but then dies shortly thereafter, how is the action transformed into a wrongful death action? If the suit included a request for pain and suffering, is that still recoverable as a wrongful death action?

Back 84

1) Personal representative can substitute as pl and sue for wrongful death.
2) No pain and suffering for the modified suit

Front 85

In Va, in what court can a plaintiff seek a declaratory judgment? n a plaintiff also recover damages on a declaratory judgment action? Can the plaintiff get an injunction?

Back 85

Circuit court only. Yes, pl can seek consequential relief (damages or an injunction) in THAT action OR a separate proceeding

Front 86

In Va, if a plaintiff shares land with others in common and wants to get rid of the others, what action should be brought?

Back 86

An action for partition of realty. Could be either for division in kind, partition by allotment, or partition by sale

Front 87

In Va, how can a party bringing an action for detinue get immediate possession of the property (i.e., before judgment)?

Back 87

1) Pl can get immediate possession ex parte by verified petition that (1) describes the property, (2) shows pl’s right to it (MUST have immediate right to it to bring action detinue), and (3) shows risk that property will be damaged/hidden/removed. Pl must also (4) post bond of double the value of the property.
--Note: Sheriff cannot forcibly enter def’s house to recover property.

Front 88

In Va, if a plaintiff bringing an action for detinue lawfully gets immediate possession of the property, how can the defendant get it back (i.e., before judgment)?

Back 88

Defendant can get property back if he (1) gives notice to pl and (2) posts a bond of double the value of the property

Front 89

In Va, what is an action "to establish boundaries"? What damages are recoverable in such an action? What court can it be brought in?

Back 89

a. For establishing boundaries between contiguous adjoining lands.
b. Damages: none (it is non-tortious; similar to a declaratory judgment)
c. Only circuit court

Front 90

In Va, what is the purpose of an action for ejectment? What must P show?

Back 90

To get title and obtain possession. P must show he was ousted and show superior right to possession

Front 91

In Va, what damages are recoverable in an action for ejectment?

Back 91

1) Pl may seek rents and profits in the same action
2) Def can get offset for improvements made

Front 92

In Va, in an action for unlawful detainer, can the landlord recover for back rent? For damage to property?

Back 92

Yes and yes (these are the 2 primary kinds of damages in actions for unlawful detainer)--can only be brought in CC

Front 93

In Va, what is laches?

Back 93

Equitable doctrine barring the pl who has delayed unreasonably in bringing suit, where delay has caused prejudice to def.

Front 94

In Va, what 4 types of cases are the exceptions to the general rule that a statute of limitations begins to run on the accrual of the claim?

Back 94

1) Fraud, mistake, and undue influence: S/L runs from when pl discovered harm (or when a reas person would have)
2) Malicious prosecution: from when the underlying case ends
3) Contribution: from when one actually pays more than fair share
4) Malpractice from continuous treatment/service: If treatment/service is continuous, the claim accrues at the end of the related course of treatment

Front 95

In Va, what is the S/L for actions for property damage?

Back 95

5 years

Front 96

In Va, what is the S/L for actions for breach of a written contract? An oral contract?

Back 96

Written contracts: 5 yrs
Unwritten contracts: 3 yrs

Front 97

In Va, what is the S/L for actions for unlawful detainer?

Back 97

3 years

Front 98

In Va, what is the S/L for actions for personal injury? wrongful death?

Back 98

2 years

Front 99

In Va, what is the S/L for actions for fraud?

Back 99

2 years

Front 100

In Va, what is the S/L for actions for defamation?

Back 100

1 year

Front 101

In Va, must the statute of limitations be raised as a special plea? Must the grounds be specifically stated?

Back 101

Yes and no, just need to say its an SOL violation

Front 102

In Va, if a person files a suit before the statute of limitations runs but takes nonsuit, and the statute runs, can the suit be refiled?

Back 102

Yes. Assuming case was filed within S/L, the pl can refile within 6 months or S/L, whichever is LONGER.

Front 103

In Va, will a plaintiff's filing of a claim toll the statute of limitations on crossclaims and counterclaims?

Back 103

Pl’s underlying filing tolls the S/L for counterclaims & crossclaims ONLY if they arise from same T/O as pl’s claim

Front 104

What is a nonsuit? When does a plaintiff have the right to take a nonsuit in Va? What are the exceptions?

Back 104

A voluntary dismissal in Virginia. b. Pl has the right to nonsuit once UNLESS any of the following are true:
1) Jury “is” retired from the bar (currently deliberating, so you could after it returns hung)
2) Nonjury case is submitted for decision
3) Motion to strike the evidence has been granted
4) Demurrer or special plea is (1) fully argued and (2) awaiting decision

Front 105

In Va, can a pl take a nonsuit if there are counterclaims?

Back 105

Pl can still take nonsuit IF either (1) def agrees or (2) def’s case can be adjudicated independently

Front 106

In Va, after taking nonsuit, in what court must a pl refile? What is the exception?

Back 106

Pl must refile in the SAME court UNLESS (1) ct lacks juris/venue OR (2) good cause. Plaintiff can also file in federal court State law cannot prevent this, so it's an exclusion to the usual Va rule that you have to refile in the same court.)

Front 107

In Va, when is a party in default?

Back 107

Party is in default if he fails to respond to an affirmative pleading within the allowed time (this is automatic, unlike fed court, but need court to make it a default judgment)

Front 108

In Va, does a party in default have a right to future notice regarding the case? Right to jury trial?

Back 108

No, unless he has a counsel of record. This is waived when in default. Jury trial is also waived by defaulting.

Front 109

In Va, if the defendant is in default and plaintiff wants to collect, what must the plaintiff do? Assume it is an action for money damages.

Back 109

1) Pl moves for entry of default judgment
2) Pl then asks for a hearing on damages UNLESS damages are liquidated (if so, judgment is entered)

Front 110

How does federal court differ from Va court on the use of affidavits at summary judgment? Depositions? Pleadings?

Back 110

You cannot automatically use these in Va, but you can in fed ct (can use depos in VA if all D's agree)

Front 111

Timing: In Va, how long does the plaintiff have to demand a jury trial?

Back 111

Pl must file demand within 10 days or service of last pleading raising jury issue

Front 112

How many preemptory jury challenges to you get in Va?

Back 112

3, just like fed ct

Front 113

In Va, how many jurors will sit on a jury? Hint: depends on the amount in controversy.

Back 113

Amt > $15k: 7 jurors
Amt ≤ $15k: 5 jurors (all parties can consent to just having three, each side chooses 1 and the 2 choose the 3rd together)

Front 114

In Va, can you object to a jury instruction after it is read?

Back 114

No. Objections must be made before the instructions are read or they are waived

Front 115

In Va, can a court refer an issue “out of chancery” (out of equity) for an evidentiary finding? If so, is the result binding

Back 115

Yes a judge can, but the result is NOT binding

Front 116

Do parties have the right to demand a jury to decide facts regarding special plea? If such a jury is impaneled, is the result binding on the judge?

Back 116

Yes and yes. The parties have a right to such a jury, and the result is binding.

Front 117

In GDC, under what circumstances can a party introduce a report of medical expenses?

Back 117

May be admitted if accompanied by a sworn statement of the custodian that the copies are true and accurate.

Front 118

For an equitable claim being heard in Va circuit court as a bench trial, in what form will the court hear testimony? What if it's a jury trial?

Back 118

Deposition only for bench trials. Live testimony for jury trials.

Front 119

What is "ore tenus"?

Back 119

“oral presentation of testimony” (the term is used in Va to distinguish the use of depositions in trial from the use of live testimony)

Front 120

In Va, what is a "commissioner" and for what kind of claims is one used? When?

Back 120

Commissioners assist the judge in deciding the case (both fact and law issues). But this is only for equitable claims originating in circuit court. Commissioners may ONLY be used if either (1) all parties and the ct agree, OR (2) ct finds good cause on the facts.

Front 121

In Va, what deference do judges give factual findings of commissioners? Legal findings?

Back 121

Not binding generally.
(1) Fact issues: judge may be reversed for abuse of discretion if he ignores findings supported by the evidence
(2) Legal issues: Commissioner gets NO deference

Front 122

In Va, when a commissioner is ready to make a finding, what does he do to communicate his decision?

Back 122

Files report with the ct clerk and notifies counsel of record of filing

Front 123

In Va, can the parties object to a commissioner's report?

Back 123

Yes. They have 10 days to do so.

Front 124

In Va, if a judge grants a motion to strike the evidence, does that terminate the case?

Back 124

No. A judge who grants the motion must then enter summary judgment. (There is no direct motion for summary judgment in Va.)

Front 125

In Va, can a jury award more in damages than demanded in the complaint? What about in fed ct?

Back 125

In Va, the award is limited by the complaint. Not true in fed ct.

Front 126

How long does a party have to seek rehearing of a case in Va GDC?

Back 126

Seek rehearing ≤ 30 days after entry of judgment.
--Note that the court must rule within 45 days of entry of judgment (not motion).

Front 127

In Va circuit court, how long does the court have to vacate, suspend, or modify a judgment? What is this period called? What happens after this period expires?

Back 127

The judgment remains “in the breast of the court” for 21 days.
i) Ct can suspend, vacate, or modify judgment during this period
ii) Otherwise the ct loses jurisdiction (even if under advisement)

Front 128

In Va, must a party moving to set aside the verdict as contrary to the evidence have moved to strike the evidence earlier in the trial? With regard to federal counterparts, would such a motion have been required in fed court?

Back 128

a) In Va, you don't need to move to strike the evidence to later move to set aside the verdict as contrary to evidence.
b) In fed court, you DO need to have moved for JMOL to move for RJMOL after the verdict.

Front 129

Timing: In Va, how long does a party have to move for a new trial?

Back 129

21 days

Front 130

In Va, what are the 5 grounds to move for a new trial?

Back 130

1) Prejudicial error (not harmless) by court (e.g. bad jury instruction)
2) Misconduct by anyone (attorney, party, juror, even 3rd party)
3) New evidence that was not found despite due diligence
4) Unfair surprise by evidence that has a material outcome at trial
5) Excessive/inadequate damages (shock the conscience)

Front 131

In Va, what is remittitur? Is there such a thing in federal court?

Back 131

a. Ordered by court when damages are excessive but not so much that it shows bias. Ct tells pl he can accept a reduced award or take a new trial
b. Yes, this is possible in fed ct too.

Front 132

In Va, what is additur? Is there such a thing in federal court?

Back 132

a. Ordered by court when damages are “clearly inadequate.” Ct tells def he can pay a higher award or take a new trial
b. No, this is NOT allowed in Fed Ct (7th Am)

Front 133

What is a bill of review? In what kind of claims can such a bill be sought?

Back 133

Virginia only:
a. Party seeks review of final decree
b. Equity claims only

Front 134

Timing: How long does a party have to seek a bill of review?

Back 134

Equitable claims only:
Can seek ≤ 6 months after entry (trumps 21 day “breast of the court” period

Front 135

In Va, what cases can be appealed from the circuit court to the Court of Appeals

Back 135

ONLY for (a) domestic relations cases (divorce, adoption, custody, and support) and (b) some administrative matters

Front 136

Timing and Procedure: In Va, what is the procedure for appeal a case from circuit court to the Court of Appeals? How long do you have?

Back 136

File notice of appeal in circuit court within 30 days after entry of appealable decision

Front 137

In Va, how much money must be at issue to appeal a civil case from circuit court to the Supreme Court?

Back 137

≥ $500 (appeal is only a matter of right in death penalty cases)

Front 138

How long do you have to file notice of appeal in Va circuit court to appeal the case to the Supreme Court of Virginia?

Back 138

30 days

Front 139

In Va, if you are appealing a case from circuit court to the Virginia Supreme Court, who prepares and transmits the record?

Back 139

Clerk of the Circuit Court prepares a record for transmission to the Supreme Court.
--Notes:
i) Transcript only becomes part of record if it is filed with the Circuit Court ≤60 days from entry of judgment. The judge corrects any error and signs it.
ii) In lieu of a transcript, appellant can prepare a written statement of facts

Front 140

n Va, in addition to filing a notice of appeal, what else must a party file to appeal the case to the Supreme Court?

Back 140

File petition for appeal with Supreme Court (within 3 months of judgment/decree)

Front 141

In Va, after one party files a petition for appeal with the Va Supreme Court, can the other party file a brief in opposition? Can they state grounds for cross-appeal?

Back 141

Yes and yes

Front 142

If the Va Supreme Court grants the petition for appeal, must appellant post an appeal bond?

Back 142

Yes, within 15 days

Front 143

Terminology: What is the use of res judicata called if the plaintiff won the prior case? If the defendant won?

Back 143

If pl won Case 1, res judicata is called “merger”; if def won, it’s called “bar”

Front 144

Can you use res judicata if the prior case was won on default judgment? What if it was dismissed on grounds of jurisdiction?

Back 144

Yes. That is a "judgment on the merits" for res judicata purposes. Then no, must have ended in a final judgment or decree on the merits.

Front 145

Can you use res judicata if the prior case involved the same parties, just flipped?

Back 145

No. Both cases must be brought “by the same pl against the same def” (config matters)

Front 146

In federal court, can a case have preclusive effect if it is under appeal? What about in Va?

Back 146

In Fed ct, case has preclusive effect EVEN if under appeal (not so in Va)

Front 147

If the parties argue that a case from one jurisdiction precludes a case in another, which jurisdiction's "preclusion law" will govern the preclusion question?

Back 147

Choice of law: the preclusion law of Case 1’s jurisdiction applies (i.e., the law of the allegedly-precluding case)

Front 148

If a judgment is on appeal to the Va Supreme Court, can the plaintiff still execute the judgment? If so, can the defendant stop execution?

Back 148

Pl can still execute the judgment unless def posts a suspending (aka supersedeas) bond (this is in addition to the appeal bond the def posts)

Front 149

What is the procedure in Va for getting an interlocutory appeal from circuit court to the Va Supreme Court?

Back 149

(1) Request interlocutory appeal order from circuit court, (2) file petition with Supreme Court (within 10 days of certification by the Circuit Court)

Front 150

In Va, what four things are required for a circuit court to certify an issue for interlocutory appeal?

Back 150

1) There is a substantial ground for difference of opinion
2) No clear Va appellate precedent
3) The issue is material to the case
4) Ct and parties agree that interlocutory appeal is in the parties best interests