As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Before I begin, a quick programming note. I have a trial next Thursday, which means I won't be able to post on Wednesday or Thursday, my usual posting days. As a result, next week's post probably won't be up until Friday. Sorry for the delay!
Now, have you ever heard of a case being "dismissed on a technicality"? My guess is, you probably have. This is something frequently used to point to problems with our justice system - people are able to escape justice because some technicality unrelated to the merits of the case caused them to get away. Few people actually investigate the technicalities themselves, and if they did, they might discover many of those technicalities exist for a very good reason.
Today, I'm going to cover some of the common "technicalities" in civil litigation, and how you can avoid letting your case become victim to one. There are far too many to cover in one blog post, which is why I labeled this post "part I," I expect to do more in the future.
Why We Have "Technicalities"
The entire purpose of a trial in our system is to allow a judge and/or jury to have their best chance of getting to the actual, relevant truth of a case. As a result, we have many rules designed around the idea of preventing surprise. While surprises in the courtroom may make for good, dramatic television, it usually prevents the court from actually reaching the truth. If you are surprised by something the other side does, you likely have not prepared a response to it. If there is a response you could have prepared, this surprise has now deprived the court of your response, and as a result, of an element of the truth.
We also have many rules designed to prevent unfairness at trial. Unfairness at trial also frequently hinders the court from reaching the truth in one way or another, be it by presenting unreliable evidence that cannot be properly rebutted, forcing a person to go to court who should not have to, providing other obstacles to one party or another that should not be there, etc.
In my experience, the vast majority of the time that a case is "dismissed on a technicality," that technicality is that one party or another had failed to follow the rules regarding surprise or unfairness, meaning that had the case actually gone to trial, that party would have an unfair advantage and prevent the court from having its best chance to reach the truth. Even if such violations are unintentional, their effect, left unresolved, could be devastating on the course of justice. As a result, since the error is their fault (even if not their intentional doing), they are the party that suffers the consequences.
In today's post, I plan to cover just a few of these rules, and I hope to cover a few more in the future.
Witness and Exhibit Lists
Many courts when a trial is scheduled issue what is called a "scheduling order." That order requires you to provide, amongst other things, a list of witnesses and exhibits to your opponent a certain amount of time prior to trial (usually two to three weeks). If you have not listed a person or an exhibit on your list, you can't call that witness, or present that evidence, period. These lists are important so that each party can understand what the other will be presenting at trial so that they can be sure that the full version is heard by the court. Many cases that are dismissed prior to trial are cases where one party failed to produce the list at all. As a result, it is critical that if you are involved in civil litigation, you meet your witness and exhibit list exchange deadline.
It is worth noting, however, that witnesses and exhibits that have the purpose of "rebuttal or impeachment" are not required to be on these lists. The idea behind the rebuttal exclusion is that you may not know what you need to rebut the other side until you get their list - as a result, since your list is likely due at the same time, any witnesses or exhibits that solely rebut the other side can be left off your list since you might not be aware of them yet. Impeachment is the act of challenging the credibility of a witness. Evidence presented for the purpose of impeachment is not supposed to be considered by the court as evidence relating to the case itself - it is only to be considered evidence of the witness's lack of credibility. Since impeachment challenges a witness's credibility, the impeachment evidence usually needs to be a surprise in order to be effective. This is one case where surprise actually aids the pursuit of the truth, and as such, is allowed.
Failure to State a Claim
The number one cause, in my experience, of cases being dismissed is "failure to state a claim." The motion to dismiss a case on that basis in Virginia is known as a "demurrer." Basically, a demurrer states that if everything stated in the plaintiff's Complaint is true, they still have not stated enough to be entitled to relief. In other words, if you sue someone and your entire Complaint is "Bill is a jerk," you have not stated a claim since "being a jerk" is not something you can sue someone for.
In order to properly state a claim, you must lay out in your Complaint a series of events that, if later proven true, would entitle you to relief (and also state what form of relief you are entitled to). You must state specific facts in your Complaint, not just conclusions. For example, a Complaint stating "Plaintiff signed a contract with defendant, which defendant has now breached," does not sufficiently state a claim for breach of contract. However, "Plaintiff signed a contract with defendant wherein plaintiff would pay defendant $10,000 to replace the roof on plaintiff's house, plaintiff did pay defendant the $10,000, the defendant has never replaced the roof and the time for doing so in the contract is now passed, as such the defendant has breached the contract," does state a claim. The second example lays out specific, potentially verifiable facts that, if all true, would support a claim for breach of contract, while the first just states a conclusion.
The idea behind this rule should be fairly obvious - it is one of fairness. It is not fair to ask a defendant to defend against a lawsuit where he does not actually know what he is defending against! The first example above only tells the defendant he has been accused of breach of contract. It does not say how he supposedly breached the contract, and as a result, he cannot know from that statement if he actually did, and he cannot prepare a proper defense.
So, the way to prevent falling into this trap is fairly simple. Make sure you are claiming something that actually allows you to recover under law, and that you state enough factual allegations in your Complaint that if that's the entirety of what you prove, the judge would say that is enough to win your case.
Suing in the Wrong Place
My last topic for today is the issue of filing suit in the wrong place, also known as "venue." When you file a lawsuit, there are a series of places where you can properly file it, and places you cannot properly file it. While there are some exceptions depending on the type of case, it is virtually always ok to file a lawsuit in the home county or city of the defendant. On the other hand, it is frequently not ok to file a lawsuit in the home county or city of the plaintiff if that home county or city is different from the home county or city of the defendant.
The idea behind this rule is that if you live 500 miles away from the defendant, it is not really fair to drag him to court near you. You are the one choosing to go to court as the plaintiff, it should be on you to suffer the inconvenience. Now, there are all kinds of exceptions to this rule, and only an attorney is going to be able to tell you if your case fits into those exceptions, but if you want to proceed without an attorney, your best bet is to file in the home city or county of the defendant - the exceptions to that being ok are very few.
It is worth noting, however, that in Virginia, venue is not what we call a "jurisdictional" matter. In other words, if you do file in the wrong city or county, it's only an issue if the other side objects, otherwise it will go forward. So, the closer you live to the home city or county of the defendant, the less likely they are to object (but also the less inconvenient it would be for you to file there, so why take the chance?). Nonetheless, by and large, unless you know the venue laws well or you have an attorney who says otherwise, my strong recommendation is to file in the home city or county of the defendant.
Conclusion
Civil litigation is fraught with pitfalls that can lead to early dismissal of your case. Avoiding those pitfalls can be challenging, and the best way to do it is to have an attorney. If you are in need of an attorney to review or conduct your civil litigation, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an initial consultation with my office. Our initial consultations are free for up to half an hour!
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