Litigation in Virginia: Civil and Criminal

Litigation in Virginia: Civil and Criminal
Publication Date: 2018
Electronic Forms: 24
Available Formats: Print (341 pages, softcover, 1 volume)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
Product #: 969

Information

Content Highlights:
  • Civil Practice in the General District Courts
  • Criminal Practice in the General District Courts
  • Criminal Defense
  • Juvenile Law
  • Alternative Dispute Resolution

This book is drawn from the 2018 edition of The Virginia Lawyer: A Deskbook for Practitioners.

Current through the 2018 legislative session, Litigation in Virginia: Civil and Criminal provides a focused look at trial practice in all state courts and also mediation options for resolving your client’s dispute. Experienced advocates in each court cover the fundamental principles from service through trial and also provide electronic forms for many basic tasks.


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Table of Contents

CHAPTER 1: CIVIL PRACTICE IN THE GENERAL
DISTRICT COURTS


1.1 JURISDICTION
        1.101 Amount in Controversy
        1.102 Subject Matter
        1.103 Injunctive Relief

1.2 VENUE AND SERVICE OF PROCESS
        1.201 Venue
        1.202 Service of Process
    
1.3 COMMENCEMENT OF AN ACTION
        1.301 Initial Pleading
        1.302 Contents of the Pleading
        1.303 Fees and Costs

1.4 SPECIFIC ACTIONS
        1.401 Attachments
        1.402 Contracts or Open Accounts
        1.403 Detinue
        1.404 Distress for Rent
        1.405 Unlawful Detainer
        1.406 Garnishments
        1.407 Debtor’s Interrogatories

1.5 PROCEDURE IN THE GENERAL DISTRICT COURT
        1.501 Principles of Law and Equity
        1.502 Rules of Court
        1.503 Counterclaims, Cross-Claims, and Third-Party Claims
        1.504 Return Date
        1.505 Bill of Particulars and Grounds of Defense
        1.506 Discovery
        1.507 Subpoena of Witnesses
        1.508 Trial

1.6 FINALITY OF JUDGMENT
        1.601 Appeal
        1.602 New Trial
        1.603 Setting Aside of Default Judgments
        1.604 Clerical Errors

1.7 SATISFACTION OF JUDGMENT

1.8 SUBSTITUTION OF COUNSEL

1.9 WITHDRAWAL AS COUNSEL

APPENDIX 1-1: NOTICE OF PRESENTATION OF ORDER

APPENDIX 1-2: LIST OF STANDARD GENERAL DISTRICT
COURT FORMS

CHAPTER 2: CIVIL PRACTICE IN THE CIRCUIT COURTS

2.1 INTRODUCTION

2.2 PROPER VENUE
        2.201 In General
        2.202 Choice of Venue, Objection, and Transfer
        2.203 Forum Non Conveniens
        2.204 Default Venue

2.3 COMPLAINT
        2.301 In General
        2.302 Specificity
        2.303 Good Faith
        2.304 Alternative Facts and Theories
        2.305 Uninsured Motorists

2.4 SERVICE OF PROCESS
        2.401 By Whom Served
        2.402 Method of Service
        2.403 Domestic Corporations and LLCs
        2.404 Partnerships
        2.405 Foreign Corporations
        2.406 Nonresident Motorists
        2.407 Owners or Operators of Aircraft
        2.408 Unknown and Uninsured Motorists
        2.409 Persons Under a Disability

2.5 DEFENSIVE PLEADINGS
        2.501 General Requirements
        2.502 Demurrer
        2.503 Bill of Particulars
        2.504 Peremptory Pleas (Pleas in Bar)
        2.505 Answer
        2.506 Claims Against the Plaintiff or Codefendant
        2.507 Third-Party Action
        2.508 Statutory Interpleader
        2.509 Intervention

2.6 DISCOVERY

2.7 PRETRIAL MOTIONS
        2.701 Default Judgment
        2.702 Motion for Summary Judgment

2.8 SCHEDULING CASES FOR TRIAL
        2.801 In General
        2.802 Pretrial Scheduling Order
        2.803 Pretrial Conference

2.9 WITNESSES
        2.901 In General
        2.902 Subpoena Essential to Continuance
        2.903 Voluntary Acceptance
        2.904 Failure to Appear
        2.905 Advance Notice
        2.906 Requests for Subpoenas
        2.907 Private Service
        2.908 Deposition Subpoenas

2.10 COURT REPORTER

2.11 INITIAL STAGE OF TRIAL
        2.1101 Voir Dire
        2.1102 Witnesses
        2.1103 Opening Statements

2.12 EVIDENCE
        2.1201 Virginia Rules of Evidence
        2.1202 Order of Proof
        2.1203 Documentary Evidence
        2.1204 Viewing a Scene
        2.1205 Objections
    
2.13 MOTIONS DURING TRIAL
        2.1301 At the Conclusion of the Plaintiff’s Evidence
        2.1302 At the Conclusion of All Evidence

2.14 NONSUIT
        2.1401 Voluntary Nonsuit
        2.1402 Discontinuance

2.15 INSTRUCTIONS AND ARGUMENT
        2.1501 Proposed Jury Instructions
        2.1502 Argument

2.16 VERDICTS AND MOTIONS AFTER VERDICT
        2.1601 Verdict
        2.1602 Motions After Verdict

2.17 FINAL DISPOSITION OF THE CASE

2.18 APPELLATE PRACTICE RULES

2.19 SETTLEMENT OF CASES
        2.1901 In General
        2.1902 Personal Injury Claims of Persons Under a Disability
        2.1903 Wrongful Death Actions
    
2.20 FINANCIAL SETTLEMENT WITH CLIENT
        2.2001 Disbursement of Settlement Proceeds
        2.2002 Liens

APPENDIX 2-1: COMPLAINT—VEHICLE ACCIDENT

APPENDIX 2-2: COMPLAINT—BODILY INJURY

APPENDIX 2-3: ORDER APPOINTING DEFENDANT’S ATTORNEY
AS GUARDIAN AD LITEM

APPENDIX 2-4: ORDER EXTENDING TIME TO FILE
RESPONSIVE PLEADINGS

APPENDIX 2-5: RESPONSIVE PLEADING

APPENDIX 2-6: DEMURRER

APPENDIX 2-7: MOTION OF DEFENDANT FOR A BILL OF
PARTICULARS

APPENDIX 2-8: SPECIAL PLEA OF THE STATUTE OF
LIMITATIONS

APPENDIX 2-9: ANSWER

APPENDIX 2-10: MOTION FOR SUMMARY JUDGMENT

APPENDIX 2-11: PRAECIPE

APPENDIX 2-12: REQUEST TO CLERK TO ISSUE SUBPOENAS

APPENDIX 2-13: JUDGMENT ORDER—BENCH TRIAL

APPENDIX 2-14: JUDGMENT ORDER—JURY VERDICT FOR
PLAINTIFF

APPENDIX 2-15: JUDGMENT ORDER—JURY VERDICT FOR
DEFENDANT

APPENDIX 2-16: DISMISSAL ORDER

APPENDIX 2-17: RELEASE OF ALL CLAIMS

APPENDIX 2-18: MOTION TO APPROVE COMPROMISE
SETTLEMENT UNDER SECTION 8.01-424

APPENDIX 2-19: ANSWER OF DEFENDANT OFFERING
COMPROMISE

APPENDIX 2-20: ANSWER OF THE GUARDIAN AD LITEM

APPENDIX 2-21: ORDER APPROVING SETTLEMENT

APPENDIX 2-22: RECEIPTS

APPENDIX 2-23: JUDGMENT ORDER—WRONGFUL DEATH
SETTLEMENT

CHAPTER 3: CRIMINAL DEFENSE

3.1 INTRODUCTION TO THE CRIMINAL PROCESS
        3.101 Concepts and Objectives of the Criminal Process
        3.102 The Source of the Law
        3.103 Classes of Offenses
        3.104 The Criminal Justice System in Virginia
        3.105 Sequence of a Typical Criminal Case
        3.106 General Duties of Defense Counsel
        3.107 Professional Conduct

3.2 PRETRIAL PROCEEDINGS
        3.201 Initial Investigation and Client Interview
        3.202 Discovery
        3.203 The Preliminary Hearing
        3.204 The Grand Jury
        3.205 The Charge upon Which the Accused Is Tried
        3.206 The Arraignment
        3.207 Pleas
        3.208 Plea Bargaining
        3.209 Pretrial Motions
    
3.3 THE TRIAL
        3.301 Venue
        3.302 Selection of Jurors
        3.303 Opening Statement
        3.304 Presenting the Evidence
        3.305 Instructions to the Jury
        3.306 Argument in Summation
        3.307 Verdict
        3.308 Postverdict Motions
        3.309 Sentencing
        3.310 Post-Sentencing Reduction of Sentence

CHAPTER 4: JUVENILE LAW

4.1 INTRODUCTION
        4.101 Historical Background
        4.102 Organization of Juvenile Code
        4.103 Jurisdiction of Juvenile Court
    
4.2 PRETRIAL PROCEEDINGS
        4.201 Intake and Diversion
        4.202 Detention and Shelter Care
        4.203 Discovery
        4.204 Motion Practice
        4.205 Arraignment

4.3 ADJUDICATORY HEARING
        4.301 Introduction
        4.302 Petition and Notice of Charges
        4.303 Subpoenas
        4.304 Competency, Insanity, and Infancy
        4.305 Admissions and Pleas
        4.306 Burden of Proof and Evidentiary Rules
        4.307 Trial Rights Generally for Juveniles Charged with
        Delinquency
        4.308 Right to Jury Trial
        4.309 Transfer and Certification
        4.310 Double Jeopardy
        4.311 Contempt of Court
    
4.4 DISPOSITION
        4.401 Philosophy of Disposition
        4.402 Venue
        4.403 Supervision Following Adjudicatory Hearing
        4.404 Collection of Information Necessary for Effective
        Disposition
        4.405 Substance Abuse Evaluations
        4.406 Placement of Child Pending Disposition
        4.407 Role of Defense Counsel
        4.408 Role of Prosecutor
        4.409 Disposition Hearing
        4.410 Dispositional Alternatives
        4.411 Other Dispositional Considerations

APPENDIX 4-1: DETENTION ASSESSMENT INSTRUMENT A

APPENDIX 4-2: DETENTION ASSESSMENT INSTRUMENT B

CHAPTER 5: ALTERNATIVE DISPUTE RESOLUTION

5.1 INTRODUCTION

5.2 CONTINUUM OF DISPUTE RESOLUTION OPTIONS

5.3 MEDIATION
        5.301 Virginia Statutory Provisions
        5.302 Ethics
        5.303 Lawyer’s Role
        5.304 Case Selection for Mediation
        5.305 Persuading the Opposing Party to Mediate
        5.306 Selecting the Mediator
        5.307 Timing
        5.308 The Mediation Process
        5.309 Vacating Mediated Agreements
        5.310 Conclusion

5.4 ARBITRATION

TABLE OF AUTHORITIES

INDEX

Authors

Authors

Michael G. Matheson, ThompsonMcMullan, PC / Richmond (Expand/Collapse Bio)

Michael G. Matheson, co-author of Chapter 3, is a civil litigation attorney whose practice emphasizes claims involving business disputes, real estate and land use, civil rights, commercial law, and construction law. Mr. Matheson received a B.S. in Economics from Virginia Commonwealth University and, in 2011, earned his J.D., summa cum laude, from the University of Richmond’s T.C. Williams School of Law. As a law student, Mr. Matheson served as the Executive Editor of the Richmond Law Review, Vol. 46. He is a member of the Order of the Coif and the McNeil Law Society. In 2010, Mr. Matheson was a student clerk for the Hon. James R. Spencer (Ret.) of the United States District Court for the Eastern District of Virginia. Upon graduation, he served as judicial law clerk for the Hon. Michael C. Allen (Ret.) of the Circuit Court for Chesterfield County. Mr. Matheson currently serves as President-Elect of the Chesterfield County Bar Association.

Stephen A. Mutnick, Winslow & McCurry, PLLC / Midlothian (Expand/Collapse Bio)

Stephen A. Mutnick, co-author of Chapter 3, practices primarily in the areas of criminal and traffic defense and also acts as a guardian ad litem. Mr. Mutnick regularly defends those accused of crimes, ranging from speeding to murder, in the counties of Chesterfield, Henrico, and Hanover, and in the City of Richmond and other jurisdictions in central Virginia. He is certified as court-appointed counsel for both adults and juveniles in misdemeanor and felony cases and as a guardian ad litem for juveniles. He also regularly appears as counsel and as guardian ad litem for juveniles in delinquency cases.

Mr. Mutnick has been a speaker for Virginia CLE since 2013 and has lectured in the areas of the DUI defense, Serious Traffic Offenses, and Juvenile Criminal Law. In 2016, Mr. Mutnick created and was lead faculty in the seminar Representing the Criminal Juvenile Defendant: Navigating the Juvenile Justice System. He also has taught at the Commonwealth Attorney’s Services Council Spring Institute, the Virginia State Police Academy, and the Henrico Police Academy.

During the General Assembly session, Mr. Mutnick serves as Counsel to the House of Delegates’ Courts of Justice Committee, where he advises the members of the General Assembly on important issues in criminal law. In 2016, he was appointed to a two-year term as a member of the Chesterfield Colonial Heights Community Criminal Justice Board, in which capacity he assists county leaders in developing criminal justice policy.

Mr. Mutnick joined the firm of Winslow & McCurry in 2013 after serving as an Assistant Commonwealth’s Attorney for approximately six years. He was an Assistant Commonwealth’s Attorney in Loudoun County for two years, before serving as an Assistant Commonwealth’s Attorney in Henrico County until 2013.

Born and raised in Burke, Virginia, Mr. Mutnick attended the College of William and Mary with a major in Public Policy. After college, he attended the T.C. Williams School of Law at the University of Richmond, where he was awarded the trial advocacy award upon graduation from the Virginia Trial Lawyers Association. Mr. Mutnick lives with his wife and two dogs in the Richmond area.

Rhonda Quagliana, St. John, Bowling, Lawrence & Quagliana, LLP / Charlottesville (Expand/Collapse Bio)

Rhonda Quagliana, co-author of Chapter 3, earned a B.A. in 1984 from Tulane University and a Ph.D. in English from the University of Virginia in 1992 before earning a J.D. from the University of Virginia in 1995. She is a partner with St. John, Bowling, Lawrence & Quagliana, LLP, a litigation and business transaction firm that represents clients in state and federal courts in a variety of matters. Her general litigation practice focuses on complex civil and criminal cases. She is an adjunct faculty member at the University of Virginia School of Law, where she teaches trial advocacy and Federal Criminal Pretrial and Trial Practice. Ms. Quagliana serves as a substitute judge in the General District and Juvenile and Domestic Relations Courts of the Sixteenth Judicial District. She has contributed her efforts to a number of law-related organizations, including as president of the Charlottesville/Albemarle Bar Association, the Indigent Defense Commission’s Capital Qualification Standards Committee, and the Local Rules Committee for the United States District Court for the Western District of Virginia. Ms. Quagliana has lectured and written on a variety of topics, including Title IX disciplinary matters; the effective use of voir dire in criminal trials; litigating death penalty cases; the importance of pro bono efforts by attorneys in their communities; and the recovery of damages in Virginia courts. Ms. Quagliana has also served on community boards and nonprofit organizations, including the Region Ten Local Human Rights Committee and the Charlottesville/Albemarle SPCA.

Mark E. Rubin, The McCammon Group / Richmond (Expand/Collapse Bio)

Mark E. Rubin, co-author of Chapter 3, is an attorney and a certified mediator for the McCammon Group. Mr. Rubin is also the executive director of the Virginia Center for Consensus Building and the former executive director for the Office of Government Relations for Virginia Commonwealth University and for the university’s Health System. His ADR experience covers a broad range of areas, including professional malpractice, personal injury, securities, employment, and general commercial matters.

Mr. Rubin is a Fellow in the Virginia Law Foundation and a recipient of the Distinguished Service Award from the Virginia Trial Lawyers Foundation. He is also a former chairperson of the Virginia State Bar/Virginia Bar Association Joint Committee on Dispute Resolution. He is a member of Phi Beta Kappa and received his B.A. from the University of North Carolina and his J.D. from The University of Virginia School of Law.

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