Virginia Circuit Court - Trying Civil Cases in Circuit Court

As always, before reading this post, please read my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Three weeks ago, I began a four part series covering the basics of trying civil cases in each of Virginia's three trial courts.  In that post, I provided a basic introduction to the three courts and a basic breakdown of what kinds of cases they hear.  Two weeks ago, I covered trying cases in the Juvenile and Domestic Relations District Court.  Last week, I covered trying cases in the General District Court.  Today, in the final installment of the series, I will cover handling civil cases in the Circuit Court.

Differences from County to County

Like J&DR and GDC, Circuit Court procedures vary from county to county.  In my experience, however, amongst the three courts, Circuit Court is the court in which the procedures vary the least from county to county.  So while I will again be focusing on Fairfax County's procedures, you can be fairly confident that most counties in Virginia will be the same or very similar.

Typical Case

Again like J&DR and GDC, different kinds of Circuit Court civil cases have different kinds of procedures.  As a result, this post will talk about a "typical" case for the most part, and then have a section at the end discussing some "atypical" cases.  It is worth noting, however, that the vast majority of cases that the Circuit Court hears tend to fit in the "typical" case category.

In Circuit Court, I would consider a "typical case" to be a regular lawsuit for money, a divorce case, a case seeking declaratory judgment, and similar cases.

Step 1:  File your Complaint

Cases in Circuit Court are generally initiated by a "Complaint."  The Complaint lays out the facts that you allege entitle you to judgment, along with what judgment you are seeking.  Before 2006, when our courts of law and courts of equity were merged, a law case was initiated with a "Motion for Judgment" while an equity case was initiated with a "Bill of Complaint," but after the merger, both of those types of filings got combined into a new filing type simply called a "Complaint."  That being said, attorneys who have been practicing for decades can have trouble adjusting, even now, so you may occasionally still see a "Motion for Judgment" or "Bill of Complaint" come up - just know there's no functional difference today between those and a "Complaint."

Now filing a Complaint is trickier than filing a Warrant in GDC or a petition in J&DR.  This is because a Complaint is free-form, so there is no "form" to just fill out like in GDC, and Circuit Courts do not (for a wide variety of reasons) have public intake offices with intake officers authorized to take your issues and type them up like in J&DR.  This means you are going to be largely on your own in terms of crafting your Complaint, and failing to include something you needed to can be fatal to your case (see my post on cases dismissed on technicalities for more on that).  As a result, while it's generally a bad idea, in my opinion at least, to file cases in GDC or J&DR without a lawyer, it's generally an even worse idea to file a case without a lawyer in Circuit Court.

Anyways, once you complete your Complaint, you bring it, along with your filing fee and service of process fee (assuming you want the sheriff to serve the Complaint), to the Circuit Court in which you are filing and file your Complaint.  Your case is now open.

Step 2:  Await an Answer

After you have filed your Complaint and it has been served on the defendant, the defendant has 21 days to file an "Answer."  If the defendant was served personally, or if he was served by "substituted" service (service made on a family member who is 16 and older and lives in the same house as the defendant), the defendant is in default if he does not file an answer after 21 days.  If the defendant was served by posted service (Complaint was posted on front door of defendant's home), you must also mail a copy of the complaint to the defendant, along with notice that the suit is pending, and that the defendant must file an Answer within 21 days of service or within 10 days of receiving your letter, whichever deadline is later.  If 21 days after service and 10 days after mailing (the mailing can be done before the 21 days are up) have passed and there is no Answer filed, the defendant again is in default.

If the defendant is in default, you can proceed to obtain a default judgment (except in divorce cases) - but the process for doing this in Circuit Court varies too widely from case type to case type for me to really get into here.

If the defendant does file an Answer, then we have a live case.

Step 3:  Term Day or Scheduling Conference

Now, in terms of actually setting a trial date, the counties do vary widely.  Most counties use a process called "Term Day."  This is one day every month where attorneys with civil cases pending can come to court and schedule their cases for trial.  In most counties, the parties to the case choose when they go to Term Day - but this does not have to be by agreement.  One party will decide it is time, and file a Notice with the court, copy sent to the other party, setting the case for the next Term Day.  In some counties, however, the court will automatically schedule your case for Term Day.

Other counties, including Fairfax, use an entirely different procedure.  In these counties, once an Answer is filed, a "scheduling conference" is set.  This is a date that can be pretty much any time during any month where you appear before the court clerks to set your trial date.  You only appear before a judge if there is a dispute about the trial date.

Regardless of the procedures your county uses, the purpose is the same - this is where you will set the date of trial, and the estimated duration of trial.

Step 4:  Prepare for Trial

Note that step 4 can be done before step 3, after step 3, or both.

Preparing for trial in the Circuit Court is much like the other courts, except you automatically have discovery available, and you can conduct depositions.  During this time you will typically engage in discovery, potentially retain expert witnesses, interview and prepare witnesses, and otherwise prepare for your trial.

Step 5:  Trial

A trial in the Circuit Court is much like in the other courts, except that, if the case is eligible and either the plaintiff requested it in his Complaint or the defendant requested it in his Answer, your case can be heard by a jury.  All of the usual rules of evidence and procedure apply, and at the end the judge or the jury will rule.  Frequently an order will not be entered that day, but rather a hearing date will be set in the near term future so that the attorneys can write up the order to be entered and submit it on that hearing day to be entered.  It is not uncommon, however, in the case of a simple lawsuit for money for the judgment order to be entered the same day.

Step 6:  Post-Trial

As the Circuit Court is the highest trial court, there is no appeal of right to another court for a brand new trial - the Circuit Court must have done something wrong for you to get a new trial.  In order to file an appeal, you must file your notice of appeal within 30 days of entry of the final judgment or order, along with the appellate filing fee.  Your appeal bond, if you have one, will be due at the time your appeal is perfected.  This means that, in the case of an "appeal of right," your appeal bond is due at the same time as your notice of appeal.  For an "appeal by petition," you only owe an appeal bond if and when your petition is granted.  For more on the appellate litigation process in Virginia, you can review my post on the topic.

Some "atypical" cases

As I mentioned above, not all cases follow the above-listed process.  Below I've summarized some important to know cases that do not follow these exact procedures:

• Appeals from J&DR and GDC:  As I've mentioned before, almost any judgment in the J&DR Court or General District Court can be appealed to the Circuit Court for a whole new trial.  Those appeals do not follow the exact procedures outlined above, however.  Instead, in most counties, the appeals are automatically set for a Term Day.  Once that Term Day is done, however, the same procedures as above apply.  Note that some courts, including Fairfax County's, actually just sets a trial date for General District Court appeals, but they will usually be more open to continuing that date if necessary than the court would be for other types of continuances.

Honestly, that's the only type of common case that is "atypical" that I can think of - as I mentioned before, most cases in the Circuit Court are "typical."

Conclusion

The Circuit Court, as the court of "general jurisdiction" hears probably the largest number and range of civil cases of the three trial courts Virginia has.  Practice there can be perilous for those who do not know its rules and procedures well.  If you have a case coming up or that you would like to file in the Circuit Court, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!