7.11 Courtroom Practice in General District Court

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7.11 COURTROOM PRACTICE IN GENERAL DISTRICT COURT

7.1101 In General.

A. Introduction. Although proceedings in the general district court are informal and this may work to the advantage of some unrepresented defendants, the proceedings are speedy, inexpensive, and effective. The number of cases that an attorney or firm can handle is limited only by the number of warrants that the staff can prepare. Efficient use of the general district court is an essential part of an active collection practice.

B. General District Court Manual. The General District Court Manual is widely used in Virginia and can be obtained from the Clerk of the Supreme Court of Virginia. ²⁵⁸ The manual contains detailed instructions and suggestions concerning court procedures. It also provides the court forms referred to in this chapter. In addition, it refers to statutes and rules of court and contains many practical suggestions. For a firm engaged in a substantial general district court practice, the manual is a must.

C. Rules of Court. The Supreme Court of Virginia publishes, and regularly revises, the rules for practice in the courts of the Commonwealth. An attorney must know and comply with these rules in order to practice in Virginia courts. The rules are published annually in Volume 11 of the Code of Virginia and in Virginia Rules Annotated, a separate softbound publication that is updated semiannually. The General Assembly's website, http://leg1.state.va.us, contains a searchable database of the rules. Recent amendments to the rules can be found on the Virginia court system's website, www.court.state.va.us.

Many rules are different for circuit courts and general district courts. Some of the sections of Part 1 apply to both courts while others apply to one only. Part 3 applies only to circuit court, as does Part 4 (with the limited exceptions to Rule 4:9 regarding subpoenas duces tecum). Part 7 applies to general district court, with Part 7B applying specifically to civil practice in general district court. Many attorneys with circuit court practices are unaware

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of the existence of Part 7 and find themselves making errors in pleading and practice when they appear in general district court.

In addition, section 8.01-4 of the Virginia Code permits district courts and circuit courts to

prescribe rules for their respective districts and circuits. Such rules shall be limited to those rules necessary to promote proper order and decorum and the efficient and safe use of courthouse facilities and clerks' offices. No rule of any such court shall be prescribed or enforced which is inconsistent with this statute or any other statutory provision, or the Rules of Supreme Court or contrary to the decided cases, or which has the effect of abridging substantive rights of persons before such court. Any rule of court which violates the provisions of this section shall be invalid.

The courts may prescribe certain docket control procedures which shall not abridge the substantive rights of the parties nor deprive any party the opportunity to present its position as to the merits of a case solely due to the unfamiliarity of counsel of record with any such docket control procedures. No civil matter shall be dismissed with prejudice by any district or circuit court for failure to comply with any rule created under this section.

Practice tip: All attorneys should be fully familiar with the Rules of Court and inform themselves about any local rules, particularly those that concern scheduling of cases and motions. Many courts (particularly general district courts) will allow an attorney to schedule cases or motions by letter and avoid having to make an appearance. In some courts, motions for change of venue or for transfer may be made without appearance. Some courts will not allow a show cause defendant to be released by the plaintiff without a hearing and may require the plaintiff to be present, even if the matter has been resolved. Failure to understand these local rules may result in substantial inconvenience to the court and other parties, which may lead to the filing of a show cause against the attorney.

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The statute permitting courts to prescribe local rules appears, from its language, to limit such rules, giving the courts very little autonomy. The limit of local courts' rulemaking authority was set forth in two rulings of the Supreme Court of Virginia.

In Collins v. Shepherd, ²⁵⁹ a local rule in the Norfolk Circuit Court permitted the court to dismiss a case, sua sponte, because the defendant was not served within one year. Notice was sent to the attorney for the plaintiff but he did not timely object to the dismissal, and a final order was entered. That order was later attacked by the plaintiff, who argued that the court had no authority to make such a rule and that the order was, accordingly, void ab initio and subject to challenge at any time. The Supreme Court agreed, holding that the rule abridged the plaintiff's right of nonsuit because it conflicted with the more liberal rule set forth in section 8.01-335 of the Virginia Code. In short, the court held that it is beyond the authority of local courts to create such rules.

Two years later, in Martin v. Duncan, ²⁶⁰ the court overturned a local rule of the Chesapeake Circuit Court that required the plaintiff to pay the costs of a jury when the case was nonsuited during trial. Again the court concluded that this rule abridged the plaintiff's absolute right to a nonsuit and that the circuit court could not impose costs that were not permitted by statute.

7.1102 Obtaining Judgment in Uncontested Cases. In all cases in which section 8.01-28 is inapplicable and in which it is necessary for the plaintiff or the plaintiff's attorney to appear in court on the return date to attempt to obtain judgment, if the defendant was properly and timely served and the service papers were returned to the court, the clerk will have listed each case, with the names of the parties, the nature of the action, and the amount in controversy on a docket sheet posted in the front of the courtroom. Each case will be given a civil docket number. This docket number should be written on the file, as it will be used in future cases in which an execution is sought. In some courts, both civil and criminal dockets are called on the same day and in the same courtroom. However, the cases are listed on separate docket sheets.

After the court convenes, the judge will hear motions for continuances and will set contested cases for trial. The judge will then call all of the cases

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on the civil docket. The court can call as many as 200 cases in an hour and can grant default judgments in all of the uncontested cases in that amount of time. As each case is called, the attorney will go to the bench, be sworn, and then ask for judgment in the uncontested cases. Generally, no more evidence is required than the attorney's statement that the amount claimed is due. However, if the case has been filed pursuant to a written contract or other written instrument, the instrument must be surrendered to the court to be filed with the court's papers. In uncontested cases, judgments are obtained that easily. Some courts require that a statement of account be filed in addition to the promissory note or contract. It is important for the attorney to check with each court to ascertain the procedure of that court. The clerks of court are very helpful in this regard.

Practice tip: This is a "two-way street." While the plaintiff can obtain a default judgment at the calling of the docket in the general district court, so can the defendant. If the plaintiff or the plaintiff's attorney is late for court, some judges will swear in the defendant during the calling of the docket and dismiss the case upon the defendant's oath that no money is owed. It is also possible in a no-service case that the defendant's attorney could enter a general appearance, swear the money is not owed, and obtain a judgment for the defendant. The plaintiff would then have to note an appeal to the circuit court within 10 days and try it there.

Rule 7B:8 of the Rules of the Supreme Court of Virginia requires the court, on the trial date, if the plaintiff does not appear, to dismiss the case with prejudice if the defendant denies under oath that any money is owed to the plaintiff. Therefore, if the plaintiff has not checked on the warrant that contested cases will be tried at a later date, the return date is the trial date.

7.1103 Service of Process.

A. In General. Before the court can grant a judgment, the defendant must have been served with process in some manner recognized by law. The various methods of service include actual service on the defendant, substituted service (service on a family member in the household who is over 16 years of age), service by posting, and service through a statutory agent, such as the Commissioner of Motor Vehicles or the Secretary of the Commonwealth. Service may be made by the sheriff of the jurisdiction or by a special process server. Typically the sheriff or the process server will have sent the appropriate return to the court showing when the defendant was served and in what manner.

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In some cases, there are special rules for substituted service. For example, a writ of possession for specific real and personal property that cannot be served in person on a party to the case may be served by posting at the front door or main entrance of the property to be executed against or where the specific property is located. Official form DC-467 has been updated to reflect this change. ²⁶¹ In other cases, substituted service is not permitted, and the party must be served personally. This is particularly true for service on a corporation. Generally, service of process on a corporation is accomplished by serving the registered agent of the corporation or by serving an officer or director of the corporation. That individual must be...