2.1 Strategic Questions—do You Want to Be in Federal Court?

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

2.1 STRATEGIC QUESTIONS—DO YOU WANT TO BE IN FEDERAL COURT?

2.101 Some Potential Advantages

A. Speed of resolution.

B. Uniformity.

C. Familiarity with federal law (if the case involves a federal claim that could be brought in state or federal court). ¹⁷

D. Summary judgment is possible because of the ability to rely on depositions and affidavits, whereas Virginia state procedure prohibits the use of depositions or affidavits to support motions for summary judgment (and Virginia's general bias against summary disposition). ¹⁸

E. In discovery-intensive cases, the parties can get quicker rulings in federal court.

F. Written opinions more frequent than in state court.

G. Federal subpoena power for discovery in other states.

H. Settlement conference and no-cost mediation.

I. Greater "body of law" relating to expert witnesses and other evidentiary issues.

2.102 Some Potential Disadvantages.

A. Fast track may be overwhelming.

B. Unfamiliarity with changing federal rules and procedures can be challenging.

C. Less ability to predict a jury's composition.

D. If a case is "cutting edge," F ed. R. Civ. P. 11 sanctions may be levied more readily than in state court under V a. Code § 8.01-271.1.

E. Federal court cases generally require relatively higher fees and costs in a shorter period than in state court, though in the long run fees and costs may even out.

F. Voir dire is more limited in federal court than in state court.

G. When local law firms agree to act as local counsel, it is their responsibility to know the Local Civil Rules and the particular procedures employed in the Eastern and Western Districts of Virginia. The judges of both the Eastern and Western Districts of Virginia take local counsel responsibilities very seriously. ¹⁹

H. Pretrial scheduling orders and inflexibility of same (depending upon the judge assigned).

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Notes:

^[17] See Appendix 2-1 (Federal Issues Checklist).

^[18] Until recently, an automatic right of appeal was a significant potential advantage to federal court litigation...