4.11 Trial: Preliminaries and Incidents
Library | Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.) |
4.11 TRIAL: PRELIMINARIES AND INCIDENTS
4.1101 Preliminaries.
A. Pre-Trial Conference; 1079 Pre-Trial Scheduling Order. 1080
B. Particular Cases.
1. Medical Malpractice. 1081 The Medical Malpractice Rules of Practice are available at the Supreme Court's website 1082 and are printed in Virginia Rules Annotated. The rules govern all formal proceedings instituted pursuant to the provisions of chapter 21.1 of title 8.01 1083 with respect to the activities of a duly constituted Medical Malpractice Review Panel. Medical Malpractice Panels are now seldom used.
Tort claims are encompassed by the statutory scheme set forth in chapter 21.1 of title 8.01. Contract claims are outside scope of statutory scheme. 1084
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2. Arbitration. 1085 For statutory provisions, see chapter 21 of title 8.01.
A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, except on such grounds as exist at law or in equity for the revocation of any contract. 1086 Under such an agreement, arbitration is a necessary preliminary to instituting court proceedings, and will usually preclude suit.
Upon granting an order confirming, modifying or correcting an arbitration award, a judgment or decree is entered in conformity the award and is docketed and enforced as any other judgment or decree. 1087
C. Setting the Case for Trial. 1088 Practice differs in several jurisdictions. Some set cases for trial by praecipe. 1089
Counsel request court to set a date and indicate time and whether a jury is required. A copy of the praecipe is mailed to opposing counsel.
Appearance at "docket call," usually once a month.
Set date by agreement.
Local Rules of Court determine practice. 1090 Counsel has responsibility to ascertain the rules of court when he becomes counsel of record before it, and abide thereby. Thus, it is good practice to give the clerk of court a call before a hearing and ask for a copy of the rules in force. A local rule of court that abridges the substantive rights of parties is void ab initio. 1091
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D. Continuances.
a. | Definition. Deferring the case to another term or later date. | |||
b. | Distinguish: | |||
(1) | Setting case: fixing a date for trial. | |||
(2) | Postponing: delaying to a later date in the same term. | |||
c. | Discretion of trial court. Except as to the General Assembly statute 1092 the trial court has considerable discretion. 1093 This discretion may not be abused. 1094 | |||
d. | Grounds for continuance: | |||
(1) | General Assembly. 1095 A party or his or her counsel who is an officer, employee or member or member-elect of the General Assembly or employee of the Division of Legislative Services, is entitled to a continuance as a matter of right during the period beginning 30 days prior to the commencement of the session and ending 30 days after adjournment. 1096 There is a continuance of right in this situation only. 1097 A continuance may also be requested for the period beginning one day prior to the meeting date of any reconvened or veto session. |
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(2) | Absence of witness. The evidence would give must be material. 1098 The evidence must not be cumulative. Due diligence (including serving or trying to locate and serve, and tender of due compensation) must have been used. See Shifflett v. Commonwealth, 218 Va. 25, 235 S.E.2d 316 (1977). [Practice pointer: subpoena as soon as trial date set.] Probable availability of the witness at next trial must be shown. | |||
(3) | Absence of documents. Same requirements as for absence of witness. | |||
(4) | Absence or unpreparedness of counsel. Not a cause for continuance if it is due to laxness of a party in procuring counsel. 1099 But a continuance is usually granted if counsel is unavailable because of illness (unless unduly protracted) or counsel has a conflicting case in another court. A lawyer "stacking" cases may, however, be fined if he fails to appear. See, e.g., Mills v. Mills, 232 Va. 94, 348 S.E.2d 250 (1986) (counsel withdrew on the eve of hearing). For ethical perspective, see Rules 1.6 and 1.7 of the Rules of Professional Conduct. | |||
(5) | Surprise. Surprise is possibly a sufficient reason, but only if reasonable diligence has been used. | |||
(6) | Absence of party. If party is an essential witness, or if party reasonably necessary to conduct of case, but not where party is shamming. 1100 | |||
(7) | Amendment of pleadings. Amendment of pleadings is generally good cause if other party needs |
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more time. 1101 In connection with an amendment of a pleading changing or adding a claim or defense against a party, the trial court may grant a continuance or other relief to protect the parties. 1102 | ||||
(8) | An officer's failure to serve process when requested properly to do so. | |||
e. | Evidence of Grounds for Continuance. Affidavits are often used. | |||
f. | Costs of continuance. Generally casts are awarded against the applicant. 1103 |
E. Nonsuit. 1104 By plaintiff only. The first nonsuit is of right: no consent of defendant or leave of court is necessary 1105 A plaintiff may nonsuit before motion to strike has been sustained even if court has indicated it will sustain the motion to strike. 1106 However, a party is not allowed to nonsuit a cause of action, without the consent of an adverse party who has filed a counterclaim, cross claim, or third-party claim which arises out of the same transaction or occurrence as the claim of the nonsuiting party unless the counterclaim, cross claim or third-party claim can remain pending for independent adjudication by the court. 1107
The plaintiff must give notice to all counsel and parties not represented by counsel and order must reflect all prior nonsuits. 1108
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Usually used when plaintiff thinks he or she is going to lose but may win next time. A nonsuit may be used if the plaintiff fails to get a continuance.
When taken: 1109 A nonsuit is often on the morning of trial, but may be any time before the jury retires, or if no jury, before the proceeding has been submitted to the court for decision. 1110
If a nonsuit is taken within seven days of trial, the court in its discretion may assess a reasonable witness fee, travel costs of expert witnesses.
A court may allow a plaintiff to withdraw his or her nonsuit before dismissal of suit, 1111 but a circuit court does not have authority to grant a nonsuit in a writ of certiorari relating to a Board of Zoning Appeal decision. 1112
In detinue actions, if a plaintiff voluntarily nonsuits, he must return property seized or the value thereof to the defendant. 1113
A new proceeding after a nonsuit must be in the same court unless that court is without jurisdiction, or not a proper venue or other good cause is shown for proceeding in another court. 1114 But a new proceeding can be in federal court instead of same state court. 1115
F. Bond. A resident defendant may "suggest" that a non-resident plaintiff post bond. 1116
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4.1102 Jury. 1117
A. Constitutional Background. 1118 The U.S. Constitution does not require jury of twelve. 1119 A trial by jury is not required by either United States or Virginia Constitution for all civil proceedings. 1120 The right to a jury does exist under Seventh Amendment as to those 'suits at common law' requiring a jury when Seventh Amendment was adopted. Thus, a jury is not required for statutory public rights or others. 1121
B. When Jury Trial May Be Had. 1122 At law a jury trial may be had in circuit court when the amount in controversy exceeds $20 and a party demands a jury trial , 1123 or the court orders it sua sponte. 1124 There is no jury trial in general district court. 1125 Except in a case for negligence resulting in injury to a person or property, the court may submit written interrogatories to the jury on one or more issues. 1126
1. Trial by Jury of Plea in Equity. 1127 A special plea , whether in law or equity, is a discrete form of defensive pleading, distinguished from an answer; a plea does not address the merits of the issues raised by complaint; rather it alleges a single state of facts or circumstances (usually not disclosed in the complaint) which if proven constitutes an absolute defense to the claim. 1128 Available only if party requests it. The verdict of the jury is binding.
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2. Issue out of Chancery. 1129 An advisory jury is available in any suit on an equitable claim. The court may, of its own motion or upon motion of any party, supported by such party's affidavit that the case will be rendered doubtful by conflicting evidence of another party, direct an issue to be tried before an advisory jury. This is a different creature from a jury trial on a plea, in that it is advisory only. 1130
3. Trial by Mixed Jury and Non-Jury Claims. In any case where there are both jury and non-jury claims, all jury issues are tried first and applicable factual determinations by the jury must be used by the judge in the resulting non-jury issues in the case. 1131
C. Exemption and Disqualification of Persons from Jury Service. Jury commissions make up lists of qualified persons who are not exempt or excluded. 1132
Qualified persons include citizens over 18, who have been residents of Virginia for one year and of the county or city or town in which they reside six months next preceding their summons to serve. 1133
Disqualified persons include persons adjudicated incapacitated; Persons convicted of treason or a felony, and any other person under a disability as defined in Va. Code § 8.01-2. 1134
In addition, no person is eligible to serve on any jury when that person, or any person for him or her, solicits or requests a jury commissioner to place his or her name in a jury box or in any way designate such person as a juror...
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