As always, before reading this post please read 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
Not too long ago, I did a series of posts on our three trial courts in Virginia. The first post of that series explained what cases are heard by what courts. Astute readers (and some not so astute readers since I flat-out said it) will notice that there are some cases that can be heard by either the Circuit Court or the General District Court - most notably lawsuits for money for more than $4,500 but less than or equal to $25,000. What I did not get into, however, is why you might choose one court vs. the other. In this post, I will discuss what you should think about if you are about to file a lawsuit that could be heard by either court to help you decide in which court to file.
Who gets to choose?
First off, it's important to understand that as the plaintiff it is your choice whether to have your case filed in the General District Court or the Circuit Court. The defendant has no say over this. Once upon a time, a case in this category filed in the General District Court could be "removed" at minimal expense by the defendant to the Circuit Court, but that right was abolished in 2007. As a result, plaintiffs now have complete control over which of the two courts a case is first heard in.
The basic advantages and disadvantages of the General District Court
The General District Court has several advantages. Perhaps the biggest - even if you have an attorney, going to court in the General District Court is usually much cheaper. The filing fees are lower, there's no real discovery, and it's much easier to start your case without a lawyer and only add one in later on.
The other big advantage of the General District Court is that it is usually much faster. Unless there are undue delays caused by the parties, a case in the General District Court will frequently go, from filing to trial, about 3-6 months. In Circuit Court, it's closer to a year, and in some counties even longer.
The biggest disadvantage, however, is that you risk the whole thing being a waste of time. Remember, a judgment in the General District Court can be appealed to the Circuit Court where a whole new trial would be held as though the General District Court trial never happened.
The basic advantages and disadvantages of the Circuit Court
So, given all of that, you can probably guess that the reverse is true in the Circuit Court. An appeal from the Circuit Court is much less likely to lead to a new trial, since you actually need to prove that the Circuit Court got something wrong, so a win in the Circuit Court will usually stick. However, the Circuit Court is definitely more expensive to have a case go through, and takes a much longer time.
That being said, the availability of discovery can also be an advantage. If there is information you need to prepare your case, there's a good chance you can't get it in the General District Court. Additionally, the possibility of conducting de bene esse depositions (a deposition that is used in lieu of court testimony) could allow you to have witnesses for trial that would not be available to actually come to a trial.
So, why should I actually choose the General District Court?
When I first prepared for the Bar Exam and was learning about our court system, I once asked "why would I ever file a lawsuit in the General District Court when I'm just going to have to do it all over again if I win?" This was before, however, I fully understood the concept of an appeal bond. You see, if the plaintiff wins in the General District Court, in order to appeal, the defendant must come up with the money found to be owed the plaintiff and pay that to the court in order to appeal. On the other hand, if the plaintiff wins, his or her appeal bond is only the filing fee to file the case in Circuit Court to begin with (plus usually a nominal additional service fee around $10).
As a result of this quirk, personally, when I have a choice I always choose to file in the General District Court unless there is an unusual situation present. This way, I know that if I lose, I can appeal and get a second chance, and if I win, I either got a judgment much faster and cheaper than I would have in Circuit Court, or, if I have to do it again in Circuit Court, the money will at least be available to me easily if I win again, making post-judgment collections much easier.
Then why should I actually choose the Circuit Court?
So, if all of that made sense to you, you might be wondering why you should ever choose the Circuit Court. Well, I get into that a big in my advantages/disadvantages section. If your case is particularly complicated, discovery might be necessary in order to proceed successfully. If your witnesses are out of the country, a de bene esse deposition might also be necessary.
An additional consideration is what you know about the defendant. If they are litigious, but also have a ready supply of money, paying an appeal bond might not be a problem for them, and collecting a judgment against them might not be a problem for you. In that case, filing in the Circuit Court might also make more sense.
Conclusion
Choosing what court in which to file your lawsuit can present its own challenges, and the right answer really depends on your particular case. The best way to figure it out, I would suggest, is to talk to an attorney. If you are preparing a lawsuit and aren't sure what court you should be filing in, 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!
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