My Old Virginia Home: Not The Friendliest Place for Defendants
By Brent J. Schultheis, Esquire and Nancy D. Greene, Esquire.
Virginia is an exceptional place to live and work. Being sued in state court is exceptional – but certainly not fortunate. In fact, the civil litigation rules can be harsh on defendants.
Why is litigation hard on defendants in Virginia?
Most cases don’t go to trial through a combination of settlement and pre-trial dismissals. But here pretrial dismissals are discouraged, and more cases go to trial. So, can you get a case dismissed before trial in Virginia state courts?
Yes, but it’s not easy. There are four options (other than settlement) for pretrial dismissal, and one’s hard on defendants.
One vehicle for dismissal is a “demurrer.” No, that’s not a description of mild-mannered and well-behaved little girl; it’s a motion filed with the Court. Demurrers test whether lawsuits state sufficient facts to establish valid claims. Courts accept the plaintiff’s stated facts as true, and will allow a case to proceed if there’s adequate information stated. Even when the complaint’s lacking, the court normally gives a plaintiff a chance to fix the problems. Demurrers rarely result in cases being dismissed for good.
In the right situations, a court can rule on a case based on the established facts and law (a “motion for summary judgment”) before trial. But getting summary judgment is very difficult in Virginia state courts as a party can’t use affidavits or depositions that expose the flaws in a case without the other side’s agreement. And if it hurts them, do you think they’ll agree? Yeah, no. Unless the other side made costly admissions in a particular manner, a Virginia state court will let the case go to trial rather than “short-circuit” the litigation process.
You dread the stress and cost of litigating, but at least you only do it once. Right? Well, no. If the plaintiff doesn’t like the way his case is going, he has a one-time “right” to dismiss (“nonsuit”) the case before judgment. A nonsuit lets the plaintiff refile. Nobody wants to fight to nearly the finish, only to learn they’ll have to start the nightmare all over again. But, you might have to.
Plea in Bar
Not all the procedural rules are bad for defendants. If there is a discrete set of facts that show the defendant is entitled to victory, then a “plea in bar” is the way to go. In this mini-trial each side puts on evidence related to one narrow issue. Certain defenses like the plaintiff waited too long to sue (the “statute of limitations” has run) are best resolved in this manner. Put these silver bullet defenses before the Court in a plea in bar when possible.
What Virginia’s rules mean for defendants.
With such a dour outlook, you may think you’re halfway to lost once you’ve been sued. But, procedural hurdles cut both ways. Difficulties in getting pre-trial judgments encourage settlements. Have an attorney review the lawsuit. The demurrer is a valuable, but time-limited, procedural tool. Counsel can spot when a plea in bar is viable. And while difficult, it’s possible to obtain summary judgment. Consider bringing any valid counterclaims against the plaintiff. Ordinarily, a counterclaim neutralizes plaintiff’s ability to nonsuit the case without permission (giving you more leverage in settlement discussions). Getting counsel’s opinion and advice on your options is critical to negotiating the tricky waters of litigation in grand old Virginia.
If you need advice about litigation or would like assistance with any other legal matter, please contact Brent or Nancy at: (703) 836-1000
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